The URL can be used to link to this page

2014-224ORDINANCE NO. 2014-224 AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF UPGRADE AND MAINTENANCE SERVICES 1NCLUDING EQUIPMENT, FOR THE RADIO COMMUNICATION SYSTEM FOR THE CITY OF DENTON WATER PRODUCTION DEPARTMENT AS AWARDED BY THE STATE OF TEXA5 DEPARTMENT OF 1NFORMATION 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. 1N 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 5598 VENDOR Johnston Technical Services, Inc. AMOUNT $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. 5ECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ,�� ,� � , day of '� �� 3 2014. },r � : p� / j „»� f� � „t� ,... �' �� .. :.. _we.m..�. _._ .........�. �Ii��C�� WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY ,� BY: �� . � APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: , � � � �..�" ` :;� _�°`` .�-Y:.-�.��', _�,:� ,�� .�, �� ,��"�,�� CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND JOHNSTON TECHNICAL SERVICES (JTS) (FILE 5598) �'�IIS C�1�Ti��T i;� ��1�ade ��c� �i�te:�cd i��i:c� �hi� �� .i� t�f��` ,�' l`,��1�.1�., �C�14, �y ��c� �c�tv,�ee�� Jo��ta�� T�c;��i�,�� e�-vic:.°�� [J`i'�"� � c�ai��d-��tita�a, ��rl►t��c; ci�r3r�� i� �3 ��} � 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"); (fl 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 �rst 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 IN WIT'NESS 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 �� t "'�� tf � APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �-�_ � � � � � � � ��„ BY: �� LL� .�-:,�. �.� � �� ,. ��"� ,�.�-��—�r ,�'. , '" CONTRACTOR BY. � �_Jw � AUTHORIZED SIGNATURE Date: Name: Jeremy Bigham Title: President (972) 620-1435 PHONE NUMBER jerem_y.bigham@jts.net EMAIL ADDRESS CITY OF DENTON, "�"��,�.�„ -� �.� t _ �'�,� ;a _ ,� _. _ � � � ��,� BY°�� . {- �' ��.,� � �� ..__ � _ �a� �� :��1�CaE.��'fC. CAMPBELL, �.i`1` MANAGER Date: � ,� _ _ _ �F Page 2 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $150,000. Aricing 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 tssued 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 ContracdPurchase 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 coriditions, 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, wlien 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 identiiied. 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 ihe 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 pariy 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 tertns 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 rnaintain, 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 wananty, but failure to give timely notice shall not impair flie 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 coirection 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 ASSURANC�: 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 perforniance 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 overcorne 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 OI' THE CITi�, INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFI'ICIALS HARMLESS rROM AND AGAINST ALL INDEMNII'IED CLAIMS DIRECTLY ARISING OUT OI', INCIDENT TO, CONCERNING OR RESULTING rROM THE rAULT OF THE CONTRACTOR, OR Page 9 THE CONTRA.CTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER TI�E CONTRACT. NOTAING HER�IN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RTGHT TO SEEK CONTRIBUTION) AGAINST ANY TI�IRD PARTY WHO MAY BE LIABLE I'OR 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 forni 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 inodification 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 CONTRA.CTUAL 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 INrRINGEMENTS: 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 specifcations 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 Conf dential Information. Page 12 26. OWNERSHIP AND USE OF D�LIVERABLES: 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 ernployees 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 ofl 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 I'EES: 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 ernployee 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 of�cer, 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 Connactor 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 incorne 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 beneiits 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 pernlanent 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. MODII'ICATIONS: 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 iinal, 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. Altl�ough 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 Unifonn 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 lirnitations 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 parlies 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 a��ee to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or inteipreted 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 OI' 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 AMEItICAN 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. l0a - lOd) 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. LICENS� 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/davisbacon/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 WORKI'LACE: 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 perfonnance 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 execufion, all insurance requirements shall become contractual obligations, which the successful confractor shall have a duty to mainfain throughout fhe course of this contract. STANDARD PROVISIONS: Without limiiing any of the oiher obligations or liabilifies of the Contracfor, the Contracfor shall provide and maintain until the contracted work has been completed and accepted by fhe Cify of Denton, Owner, the minimum insurance coverage as indicafed hereinafter. Contracfor sha// file with the Purchasing Department safisfactory certificates of insurance including any applicable addendum or endorsements, confaining the contract number and title of the project. Contractor may, upon writfen request fo the Purchasing Department, ask for clarification of any insurance requirements ai any time; however, Contractor shall nof commence any work or deliver any material until he or she receives nofification that fhe contract has been accepted, approved, and signed by the City of Denfon. All insurance policies proposed or obtained in satisfacfion of fhese requiremenfs shall comply wifh the following general specifications, and shall be maintained in compliance with fhese general specifications throughouf the duration of fhe Confracf, 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 wriffen notice should any of the policies described on the certificafe be cancelled or materially changed before fhe expirafion 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 obiained in satisfaction of this Contract shall addifionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Confract, 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 _ eacli 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. - .l�� 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 (NVCC-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. ,.�..t.^. ��i 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. .� Exhibit E _ __ CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other p�rson doir�� business with local ��av�rrxmental entcty ___ 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 person who has a business relationship as defined by Section 176.001(1-a) with a local govemmental °a1e Reoe�ved ' 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 Govemment 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: mi�cEcrne�r�tar.. __ _ � Nant� €�f person w3�ts l�a� 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 7'h 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? � Yes � 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 Iocal governmental entity? 0 Yes � No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government o�cer serves as an o�cer or director, or holds an ownership of 10 percent or more? � Yes � No D. Describe each a�liation or business relationship. .�.. v 4 ��_..__M _ _�. ..� �... wg... Signature of person doing business with the governmental Date entity Page 27 EXHIBIT "F" O•�+� ; . _� ; 7/16/2014 To: City of Denton Attn: Kathy Gault R�: JTS Service Rates 5310 S. C:oci<rcll I lill fZoad L)alias. l�X 7�23G "f `77?-C2Ct- I =� ;; I� 97?-247-SO? i s�jles(c�'ta s.nct �v��v._its.net Scheduled Service (Services schedule two (2) weeks in advance; i.e. Annual or Monthly Services, Misc. Pro- jects,etc...)wit11 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 inaterials during normal business hours $175.00 per hour plus materials during non-business hours Emergency On-Site Service (Services required wiihin 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 off ce in Dallas and stops when the crew arrives at JTS of- fice from the customers site. There wil] be a vehicle f'ee ior each service call to cover the cost of the vehicle, fuel and specialized test equip- ment. $140.00 vehicle fee Thomas �merick Service Manager :iTS 5310 S Cockrell Hill Rd Dallas TX 75236 Oifice: 972-620-1435 ext 141 I'ax: 972-247-5023 Emergency Response: 972-620-1435 ext 130 Wllen it Corzres to Wireless, We KJlow GVhat to Do .��] EXHIBIT "F" SERVIC�S PRICINC DIR-SDD-2060 JOHNSTOI�' TECIiNICAL SEI2VICGS INC. nqSRP/List Technical Ser��ices - Radio Svstems . _ __ __ ._ _ 'Annual Maintenance A�reement Application based - Call for pricing lnstallation & Maintenance Hourly Rate (I-man crcw) $]25.00 _ _ _ ..__ - - Installation & Maintcnancc Dav Ratc Bam-Spm, 1-man crew) �1 000.00 Installation & Maintcnancc Hourl Ra y te (2-man crew) $250.00 ]nstallation & Maintenance Day Rate (8am-Snm, 2-man crew) $2,000.00 ]nstallation & Maintenance Hourly Rate (3-man crew) �� $375.00 � � . � _ _..... installation & Maintenance Day Rate (8atn-Spm, 3-man crcw) �3,000.00 Installation & Maintenance Hourly Rate (4-man crcw) $500.00 Installation & Maintenance Day Rate (8am-Spm, 4-man crew) �4,000.00 Sitc Survcy (per day) V �2,000.00 _ __ __ . Spectrum Analysis (per day) �2,000:00 _ _ , . . . _ _ _ __..__ Svstems �n�ineerin� I-Iourlv Rate $250.00 Trottbleshootin� Hourly Ratc (2-man crew) � $250.00 FCC Liccnse Coordination Fee (sin�le point-to-point hop) �2,000.00 Tra i ni nk ( l-dav) � � 1,000.00 � . . , __, _ _ _ Mccting (2-hour slot) $250.00 Mobilization (per 1-hour incremcnt per tcch) $80.00 _ _ . --- Report Generation �1,000.00 . _ _ _ _ __ JTS Bucket Tnick Usa�c (dav ratc) $500.00 _ _ . _ - -,_ _ ___ _— External Rcsource Lease - Man Lift (day rate) Commercial List Price Lxternal Resow-ce Lcase - Cranc �lscauriy r�te} Commercial List Price Externa] Resource Leasc - Backhoe (dav rate) Commercial List Price . . . _ . _ _ __ ___ Tcchnical Services - Tower Construction & Misc Tower Related Services __ Tower inspection (per towcr) $3,150.00 Tower �n�inccrin� (Geotechnical and PC Reuortsl $5,500.00 �. .,_. . _ _— Tower Installation (Foundation) Application based - Call for pricing Tower Installation (Slackin�) Annlication based - Call for pricing Tower Groundin� (per tower) Application based - Call for pricing ,�.a:, , __ ...._... Tower Repair - Hourly Rate (per man) $125.00 _ __ ..__. — Tower 1�Vork - Gencral Hourly Rate (per man crew) $125.00 Towcr Tear-Down and Removal - Dav Rate (4-man crew) �4,000.00 For more information and current D!R pricing on these and other JTS Services, please contacf JTS at: sales@jfs.nef or 972-620-1435 x.140. Prices subjecf change without notice. ,� Contract Details Page I of 1 EXHIBIT "F" _... . . _.. Search PV o Enter sz�arr,7i cr te r a .. . . ......_ .._._� � Nome Ca-op Contracts Texas.gov Security Data Cenlcr Tclecom IT Leadcrship Abou[ DIR Contact Us < Return to search resu! s< Re[urn to Main Search ]ohnsto� Technical Services, Inc. Dba: ]TS URL Vendor Website DIR Contract Number 6JR-56D-20G0 VendorID 1752621300600 ContractTerm End Date 2/27/2015 HUB Type Non HUB Contrac[ Exp Date 2/27/2017 7ohnston Technical Services, Inc. Dba: ]TS DIR Con[att Kvle Fuller Contacl Deana Lce Phone (972)620-1435,%125 Phone (512)4G3-0687 Fax (972)247-5023 Fax (512)475-5759 Cont�act Overview �t A o6e R�adei Co�[rac[: PIR-SDD-2060 $Cd11/Sdfd TCPIriS blld C011d6$10185 PDF -4�.7 KB 7his appendix ton[ains [he standarG D%R Terms and Conditions for the contrad as of 4he date identified. Any initial exeeptians ta these Terms will be eanlained in the original contrae[. All subsequen[ changes or upda[es to [he Terms and Condilions witl be re(lected in contract amentlments. NUB Subcontradlna Plan (HSP1 PDF - 486 K8 ( Updated 02/28/2083 The purpose o( [he HU6 Program is [o promo[e full and equal business opportunities Por all businesses In Sta4e mntrac[ing in aceordance with the goals specifled In the 5[aYe of Texas Disparity Study. The HSP ide�tifies all authorized resellers and/or all subcontractor5 perfarming services. ' I PDP - 19 K6 I Updated 02/19/2014 Prieing far avaitabie products and/or services under this eontrac[ are IimiCed to those identified in the appendix. Electronic and Informatioea Resources (EIR) Accesslblllty InParmation regarding Elec[ronie and %nPormatlan Resourees (E%R) a[cesslbllity of this vendor's oPPerings is Included in the contrac[. Agenties purehasing produe4s or services are responsible Por complying with Texas E1Fi Aecessibllity statute and rules, as defined In TGC 2054 Subehapter M, 1TAC 206, and 1 TAC 213. For additional informa4ian, visit the Vendor Website or contac[ the vendor direc[ly. e�Q�'I�ttlt�� CCqB➢699 $d7 $C A'Ci9 Reseller Vertdor Contacts 7here are no resellers associa[ed with tliis contrad Cauetol_Compl_cu dlir�do� potunsene Libeerb+ C-AO5 Seat�wide Search SAO I"raud Reoareinq Sit� Polieies —..._,,,,_�...,.,,.�...,.,,_.. Snansoeed SiAes tdomePand 5ecuriPV it Ma i Planrr�d f�roturP.men2 Seitfdul� Texas VePe�ans Pprtal �ab V�asPin� HOw to OCdef 1. For produR and pricing InPOrma[ion, visit the �u��hrr5}�?J!�,�.1""1oj=--"srriC SCrvi��s ltrr I1it�_�];e »��6ysEa^ aar �€arilact �,�I�= I�iulEer �E (��7'�p Cr�3.§- 1435 ,%125. Resetler Vendors are also available through [his Contract. Szlect from any Reseller Vendor con[act lis[ed below to also ob[ain produtt antl pri[ing informaflon. 2. Generale a purchase order, ma0e payabte to 7ahnston 7echnical Servlees, Inc. Dba: 3T5 or � any Reseller Vendar Iisted belaw. You must reference the DIR Con[ract Number DIR-SDD- 20G0 on your purchase order, 3. E-mail or Faz your purchase order and quote form ta your designated vendor or rese�ler sales representative. Available Brands Axell Cambium Networks Draganwave E-Band PureWZVe Rohn Available Productx & ServBces Emergency Preparedness Hardware and Related Services Add"ationa! Contract Infarmation Aooentlix D. Se^��rP i PvPI Aqr2ement (80 KB) Amendment 1 (223 KB) Dep[. of Information Resources 300 W. 151h St. Ste. 1300 Austin, 7X 7870H MAP (512J475•4700 Honie�, Co.-o_gr_Corttracts 7�x,as;gov Scc,uri).y vata.,_Ce.nter i:elecaere IT Leb6ershi.n Mbc�,ue DPR Cpnt:set Us O L7epar¢nren6 oP 9nfoenlation Ptesourtes 20Y2 P2C�@ �o ]lttp://�w��Jw2.di�-.state.tx.us/ici/cantracts/Pages/Details.aspx?dir_ contract_ number=DIR-SD... 7/16/2014 EXHIBIT "F" APP�NDIX C - PRICING IND�X DIR-SDD-2060 Customer AMI;NDM�NT No. 1 Discouni % off JOHNSTON T�CHNICAL SERVICES INC. MSRP �mergency Preparedness Hardware Products _..�F... .�.��. Axell Al1 Products ] 0.00% 'Cambium Networks �F�N� M�� Radios/AntennaslLicense Keys 18.00% _..�. Accessories (Mounts, Protectors, etc.) 22.00% __ __ DragonWave/All Products 15.00% �-Band/All Products 15.00% PureWave Base Stations/Antennas/Pole Mount Kit/Management System 10.00% CPGs 3.00°/a Accessories 5.00% _ _ Rohn Towers/All Products (excludes Roof Mounts) 10.00% .�.� � _ l��r}��c��v'r"tll Products cxce�t 3rd Pariy Items 8•00% Sabre Site Solutions/All Products ] 1.50% �� 12.00% 'Sik]u All Products _ . __ Sub 10 Systems/All Products ]0.00% __ Trylon Towers/All Products ]4.50% Emer�ency Prcparedness Accessories Cabling . - _ 5.00% _ _ _ _ _ -- Patch Cords 5.00% ___ _ _ _ __ _ _ Connectors 5.00% __ Power Supplies .. 5.00% �.___.�. _ _ -� __ Protectors 5.00% _ ..�. - _ _ _ ------- 5.00% Mounlia:�� Hardware ��'I�i��s, 1°I��rye��s, Brackets, Mounts, Ma�ts, etc.j Cat°rrual�3�� Kiis._ _. 5.00% Weaiherproofing Material 5.00% . _ __ r�z��°�;��zc� Pre��aredncss Ser-viccs Tcchnical Serviccs - Radio �i��sQci��s __ Annual Maintenance ��„t�c�.��a�t 12.00% _. _ Instailation & Maintenance Hourly Rate (1-man crew) 12.00% �- lnstallation �. Maintenance Day Rate ��r�••�J�i��, 1-man �:�°�R�^� 12.00% .� ,.�,. . �.__�.___.�c_ . � _ _ _ Installation & Maintenance l�r�tmrly Rate �2 xs��rt crerv) 12_00% _ _____._.... Installation & Maintenance 1:)�ay Rate (�ara-�-5��s��, 2-man cre�v) 12.00% _ .�-- _ Installation & Maintenance Hourly Rate (3-man crew) � 2•00% u� _� m� Installaiion & 1�4aintenance U�y Rate �$am-Sg��, 3-man crctia�) I2.00% �.�.�, .�. - _�__ .._. �_u��_ Installation & Mainienance I-l��tas��yr Rale �4-man crew) 12.00% ___ _�. ,� Installation & Maintenance Day Rate (8am-Spm, 4-man cre��) 12.00% _. _ wv�.�. _ _ �--- � Site Surve�� {�rc��• nade� 12.00°/a Page 31 EXHIBIT "F" Page 32 EXHIBIT "F" Appcndix A Standard Tcrms and Conditions For Product and Related Services Contracts Table of Contents 1. Contract Scope ...a ................ ....... .. .............. .... ........ . ......... _........ .......,, ..._s............ 1 2. No Quantity Guarantees...,.,.. ......... ......... ......... ...........�....� 1 3. Definitions......, ...�.,... 4. General Provisions ................ ... ......t...,.,. .. ..._...,,, . ._.....}. ........, ..................._........ 2 A. �ntire Agreemenl .......................................................................................................... 2 B. ModifcaYion ofContract Terms and/orAmendments.......,...� ......................................2 C. Invalid Term or Condition ...............................................�.......,..........�..................._....e 2 D. Assignment _.,..__ . ........ ......._.,...,... .... .......... ._... ......_.. _........-......... .......,.....,... 3 �. Survival .. ......... ......... ......�......,...... �........... ,... .,......_ ..t...... .....�.-- --..M....,.......3 F. Choice of Law .................... ......,� ......,,. ......_.. ,......._........ 3 ...... G. Limitation ofAuthority ............ . ........t.,....... ......... ........... ........ ....�............3 5. Product Terms and Conditions........._ ................. .....,... ....---.. ......... ,.�........._..... 3 A. �Clectronic and Infonnation Resources Accessibility Standards, As Required by ] TAC Chapters 20G and 2] 3(Applicable to Siate Agency and Institution of Higher Cducation Purchases Only) ......................................................... 3 B. Purchase of Commodity Items (Applicable to State Agency Purchases OnIY) •• ............................................ ... .� ............. ....... ..... ......... .......... .................. 4 6. Contract Fulfillment and Promotion .......... ......... ......... .................... ......... ......�.........., 4 A. Service, Sales and Support of the Contract .... ......... ......... ......... ......... .................• 4 B, Use of Order Pulfillers ....................... ..---. ......_�,.,�........ .............----- 5 ]) Designation ofOrderFulfllers ..... ......... ......... ............ .�.... .,....... ..,....._..�....., 5 2) Changes in Order Pulf]ler List ..................................�..,......,,..�_.....................,...,... 5 3) Order Pulfller Pricing to Customer ........ ......... ......... ......... ......... ..............�.-. 5 C. Product Warranty and Return Policies ........... .......... .......,. ....._... .......-e .........__......a 5 D. Cusiomer Site Preparation ,....� ... ......... ......... ......�.. ......... ....,.... ,.._........,..... 6 --,.... �. Internet Access to Contract and Pricing Information ......... ......... ......... ...�......_....._. 6 I ) Vendor Website ...... ......... ......... . ......�. ......... .,....... ........----....,, 6 ....�... ........ 2) Accurate and Timely Contraci Informaiion ....... ......... ........� .......s. ,,...........M..,. 6 3) Website Compliance Checks ............................. ...e..... ...,,.... _�....... .............,.... 6 4) Website Changes ..................................................................................................... 6 5) Use of Access Data Prohibited .............................�..._.,..............,........,,..........,....... 6 6) Responsibility for Content .......................................�._,...,.................._....,....,..,......, 7 P. DTR Logo ...................... ....... .. ...........�,. .... --,...., . ......... .,....... ......... ......... ......... 7 G. Vendor and Order Pulfiller Logo ............................................._....,..................._........,... 7 H. Trade Show Participaiion ......... ....... 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 ........... ......... ......... ....a.... ..,....., ....,.... ........_ 8 A. Purchase Orders .................... ......... ......... .................. ......... ......... ....�.... ,...,.... 8 B. Invoices ........... .............. �...�.,.,......,.:.......,. . .....,... ,.....,.. ......... .,................8 C. Payments .................... . ................... ................ ....._........ .,......,,.......... ,..,,.... ......... 8 8. Contract Administration ...... ......... ......... �.,,......,....,, _ ......... ......... ...t,.�.. ......... .,....... 8 A. Contract Administrators........ ,.. ......... ....�....... ...... .....,�.. ....�.,.. ........, ......... � ..,,.. 1) State Contract Administrator ..... ........ ......... ......... ......... ......... ......... ......... i3 2) Vendor Contract Administrator . ......... ......... .......�. ....,,... ......... ......... ,,.,...._ �3 B. Reporting and AdminisU�ative Pees ............ ......... ......... ......... ......... ......... .........'� 1) Reporting Responsibility ........ ......... ......... ........ � 2) Detailed Monthly Report � ........ ......... ......... ......... ......... . 3) Historically Underutilized Businesses Subcontract Reports .. ........ ......... .........'� 4) DIR Administrative Fee_. ...,..,., ......... ......... .. ....... ......... ......... _.....�.. ........ � 5) Accurate and Timely Submission of Reports ....................................................... 1(� C. Records and Audit ............................................................. ...a..,.. ......... ................. 10 D. Contract Administration Notification ......................................................................... 11 9. Vendor Responsibilities ...... ......... ......... .......... ......�.. . --....� ....,,._� ...,..... ,...........k...,. 1 I A. ]ndemnification ......... ......... ............... ........... . ......... ......... ...•-.... .......,,.......,. 1 ] B. Taxes/Worker's Compensation/UN�MPLOYM�NT INSURANCC ........................ 12 C. Vendor Certifications ..........................................�.,........................---.......................... l3 D. Ability to Conduct Business in Texas ....................................�.............,.._................... 15 E. Cqual Opportunity Compliance .................................................................................. ] 5 F. Use of Subcontractors ........... ......... ......... ......... ......... ......... ......... �.,.........._.... 15 G. Responsibility for Actions ............... .....,.... ......,., .....,.t. ._......, .......... ......_,_........,. 15 H. Confidentialily . ......... .. ....,...... ,....., ..,,..,... ..w.....� ....,,... ........,..._....t 16 ......... ......... L Security ofPremises, Equipment, Data and Personnel ............................................... 16 J. Background and/or Criminal History lnvestigation ........................................�.........-. 16 K. Limitation of Liability ............... ...,.,..�-......... . . ....... ......,.. ..,...�.. ...........,...... I6 ....... L. Overcharges ...................................... ......................... ... ......... ......... ................. ] 7 M. Prohibited Conduct ........................... .......... .....,.,. ......... .....,... ..,.......,.,,......,........ ] 7 N. Required lnsurance Coverage ......... ......... ......... ......... ....�.,.. ...,.......................... ] 7 O. Use of State Property ................................................._.................,.r............................ 18 P. Immigration ..... .............. ..... .............. ........ .... ......... ......... .............................. 18 Q. Public Disclosure .................. ......... ......... .............. ...e ...._....-�,.....-- -......,,.......... 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 ......... ........t ......... ......... .....,... .......}. ................... 19 10. Contract Enforcement .................... ......... ..�...........,... ....,..... ,........ ......,.. ._.._.,........,,.. ]9 A. Cnforcement orContract and Dispute Resolution .........................e................,........... ]9 B. Termination .................................................................................................................20 1) Termination for Non-Appropriation ..................................................................... 20 ] 2/] 7/12 � Page 34 EXHIBIT "F" Appendix A Standard Tcrms 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 .............................. .......... ............. ..... ................................k..20 3) Termination forConvenience .................. ......... ......... ......... ......... ..............20 4) Tcrmination for Cause ....................................�... ......... ........� .....�... ............ 21 a) Contraci ............. .....�... ......... ....,.... ............, _._......,..... ......... .......,......21 b) Purchase Order ............................................................,............._...._...,.....,..,.... 2l 5) Customer Rights Under Termination .................._...............,...._......._..._.....,.._....._. 21 6) Vendor oc Order Pulfiller Rights Under Termination ........................................... 21 C. Force Majeure ..........................................................................................�........._..,,.... 2l 11. Notifcation .....� ... ......... .. .... ......�.. .,...... .. . ,._.... ........., . _...... ....__.._ .....�... ..,,,...�...... 22 A, Notices ..� ........ ..... ......... ...............22 .......................... ........ B, Handling of Written Complaints ........... .. ......,.,.... ,...,...... ..�..,,., ..._....... ....�,, 22 12. Captions ............................................ ........... .�...... .,.... ., ...........,. .�.., ......._. ...,..,.,,,.... 22 l2/17/12 � Page 35 EXHIBIT "F" Appendix A Standard Terms and Conditions I'or Product and Related Services Contracts The following terms and conditions sl�all govern the conduct of DiR and Vendor durinb the tertn of tl�e Contract. 1. Contract Scope The Vendor shall provide the products and related services specifed in Section 3 of the Contract ror purchase by Customers. In addition, DIR and Vcndor may a�ree to provisions that allow Vendor and/or Order Pulf ller to lease the products offered under fhe Coniract. 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. D1R makes no express or implied warranties whatsoever that any parlicular 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 Chaptec 2170, Texas Government Code, assistance organizations as defned 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 witl� tlte 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 nonproft organization approved by ihe Supreme Courf 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.] O1 l, Texas Agriculture Code; 8) A nonprofit computer bank tl�at solicits, stores, refurbishes and redistributes used computer equipment to public school students and their families; and 9) A nonprofit organization that provides affordable housinb. ] 2/17/12 Page 1 af 22 ..- . EXHIBIT "F" Appendix A Standard Terms and Conditions For Product and Related Services Contracts B. Complianee Clieck — an audit of Vendor's compliance vvith ihe Contract may be perfonned by, but not limited to, a third party auditor, D1R Inten�al Audit deparimeni, or DIR contract management staff or their desi�nees. C. Contract — the document executed between DIR and Vendor into which this Appendix A is incorporated. D. CPA — refers to ihe Texas Comptroller of Public Accounis. E_ Day - shall mean business days, Monday through Friday, except for State and Pederal holidays. If ihe 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 pariy that may be designated by Vendor, who is fulfilling a Purchase Order pursuant to the Contract. G. Purchase Order - the Customer's fscal form or format, which is used when making a purchase (e.g., formal written Purchase Order, Procurement Card, �lectronic Purchase Order, or other authorized instrument). H. State — refers to the State of Texas. 4. General Provisions A. Entire Agreement The Contract, Appendices, and Cxhibits constitute the entire agreement between D1R and the Vendor. No statement, promise, condition, understanding, inducement or representation, oral or writlen, expressed or implied, which is not contained in the Contract, Appendices, or its �xhibits 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 tl�e Contract. The Contract may only be modif ed or amended upon mutual written agreement of DIR and Vendor. 2) Customers shall not have the authority to modify the terms oT the Contract; however, additional Customei- tern�s and conditions that do not conilict with the Contract and are acceptable to Order Pulfiller 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 tenns and conditions on any Purchase Order issued by Customer hereunder will have no force and effect. In the event or 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 i•egarding statements of work, service level agreements, remedies, acceptance criteria, information confdentiality and security requirements, and other tenns specifc to tl�eir 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 1'exas and/or Uniied Siates law or regulation, such Contract term or condition is void and unenforceable. By executing a contraci which contains the coni7icting ierm or condition, DIR makes no representations or warranties regarding the enforceability of� sucl� ierm or condition and DIR does not waive the applicable Texas and/or United 12/]7/12 Page 2 of22 Page 37 5. EXHIBIT "F" Appendix A Standard Terms and Conditions For I'roduct and Related Services Contracts States ]aw or regulation which conflicts ��ith the Contract term or condition. 2) If one or more term or condition in the Contraet, or the application of any term or condiiion to any party or circumstance, is hcld invalid, unenforceable, or illegal in any respect by a final judbmcnt or order of the State Ofiice of Administrative l�earings or a court of competent jurisdiction, the remainder of ille Contract and the application of the tern� 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 subsidiaa�y, parent company or affliate, or iii) as necessary to satisfy a regulatory requirement imposed upon a parly by a governing body wiih the appropriate authority. Assignment of ihe Contract under the above terms shall require written notification by the assignin� party. Any other assignment by a party shal] require the written consent of the other party. Each party agrees to cooperate to amend the Contract as necessary to maintain an accurate record ofthe contracting parties. �. 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 Pulfiller 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 Contract. Exclusive venue for all actions with be i Nothing in the Contract or its Appendices shall sovereibn immunity. G. Limitation of Authority n state court, Travis County, be construed to waive tl�e of the Texas. State's 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 Inronnation Resources. Product Terms and Conditions A. �lectronic and Information ltesources Accessibility Siandards, As Required by 1 TAC Chapters 206 a�id 213 (Applicable to State Agency and Institution of I3igher �ducation Purchases Onl}�) I) �ffective September l, 2006 state agencies and institutions of higher education shall procure products which comply with the State of 7'exas Accessibility requiremenis for Electronic and Information Resources specifed in 1 TAC Chapiers l 2/17/12 � ,� EXHIBIT "F" Appendix A Standard Tcrms and Conditions For 1'roduct and Related Services Coniracts 206 and 213 ��I�en such products are availab]e in the co�nmercial marketplace or ��vhen sucl� �roducts are developed in response to a procuremenl solicitation. 2) Upon requcst, but not later thirty (30) days after request, Vendor shall provide DTR with a completed Voluniary Product Accessibility Template (VPAT) of ihe specified product or a URL to the VPAT for reviewing comp]iance with tlie Siate of Texas Accessibility requirements (based on the federal standards establisl�ed under Section 508 of the Rel�abilitation Act). B. Purchase of Commodity Ttems (ApplicaUle to State Agency Purchases Only) 1) Texas Government Code, §2157.068 requires State agencies to buy commodity items, as derned in S.II.2 below, in accordance with contracts developed by DIR, unless the agency obtains an exemption from DIR. 2) Commodity items are commercialJy available software, hardware and technology services that are generally available io 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. Sofiware 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, modifcations, 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, staffng 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. lnstitutions of higher education are exempt from this Subsection S.B. 6. Contract rulfillment and Promotion A. Service, Sales and Support of thc Contract Vendor shail 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 ifis best efforts to ensure that potential Customers are made aware of the existence of the Contract. All sales to Customers for producis and services available under tl�e Contraci shall be processed ihrough tlie Conlract. 12/17/12 i .. -_� EXHIBIT "F" Appendi�: A Standard Terms and Conditions For Product and Related Services Contracts B. Usc of Ordcr Fulfillers DIR agrees to permit Vendor to utilize designated Order Pulfillers to provide service, sales and support resources to Customers. Such participation is subject to ihe followinb conditions: 1) Dcsignation of Ordcr Fulfillers a) Vendor may designate Order Pulfillers to act as the distributors for products and services available under the Contract. ]n designating Order Pulfllers, 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 D1R with the following Order Fulf ]ler information: Order Fulfiller name, Order f ulfiller business address, Order Fulfiller CPA Identifcation Number, Order Fulfiller contact person email address and phone number. b) DIR reserves the right to require the Vendor to rescind any such Order Fulfller pariicipation or request that Vendor name additional Order Pulfillers should DTR determine it is in the best interest of the State. c) Vendor shall be fully liable for its Order rulfillers' performance under and co�npliance with the terms and conditions of the Contract. Vendor shall enter into contracts with Order Fulfllers 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 iheir participation under the Contract provided that: i) any criteria is uniformly applied to all potential Order Pulfillers 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 fi-om participating in other procurement opportunities offered through D1R. 2) Changes in Order Fulfiller List Vendor may add or delete Order Pulfillers throughout the term of the Contract upon written authorization by DIR. Prior to adding or deleting Order Fulfllers, Vendor musi make a•good faith effort in ihe revision of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. Vendor shall provide D1R 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 Fulfller pricing to the Customer shall comply with the Custon�er price as stated within Section 4 of the Contract. This pricing shall only be ofrered by Order Fulfllers to Customers for sa(es that pass through the Contract. C. Product Warranty and Return Policies Order f-ulfller 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. 12/17/I 2 Pa�e 5 of 22 ,-... , � EXHIBIT "F" Appendix A St'andard Terms and Conditions For Product and Related Services Contracts D. Customer Site Preparaiion Customers shall preparc and maintain its siie in accordance wilh written instructions furnished by Order Pulf ller prior to ll�e scheduled delivery date of any product or service and shall bear the costs associated with the site preparation. �. Internel Access io Coiitract and Pricing Information 1) Vendor Wcbsite Within ihirty days of ihe effective date of ihe 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 Contrac[ offerings al Vendor's website. The website must include: the product and services offered, product and service specifcations, Contract pricing, designated Order Pulfilers, contact information for Vendor and designated Order Fulf Ilers, instructions for obtaining quotes and placing Purchase Orders, and vvarranty 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 witl� the requirements in paragraph I' of this Section, and contain a link to the DIR website for the Contract. 2) Accuratc and Timely Contract Information Vendor warrants and represents that the weUsite information specified in ihe above paragraph ��ill be accurately and completely posted, maintained and displayed in an objective and iimely manner. Vendor, at its own expense, shall correct any non- conforining or inaccurate information posted at Vendor's website within ten (10) business days afterwritten notifcation 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 ofthe Contract. 4) Website Changcs Vendor hereby consents to a link from the DIR website to Vendor's website in order to facilitate access to Contract information. The estab]ishment orihe link is provided solely for convenience in carrying out ihe 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 writien 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 Ue used internally by Vendor for the purpose of implementing or marketing the Contracf, and shall not be disseminated to ihird parlies or used for other marketing purposes. The Contract constitutes a public document under the ]aws of the Staie and Vendor shall not restrict access to Contract terms and conditions including pricing, i.e., through use of restrictive technology or 12/17/l2 Page 6 of 22 .� EXHIBIT "F" Appendix A Standard Terms and Conditions For Product and l2clated Services Contracts passwords. 6) Responsibility for Content Vendor is solely responsible for administration, content, intellectual property rights, and all materials at Vcndor's websile. DIR reserves the right to require a change of listed contcnt if, in tl�e opinion of DIR, it does not adequately represent ihe Contract. F. DIR Logo Order Fulfiller may use the DIR logo in the promotion orthe Contract to Customers with the following stipulaiions: (i) the ]ogo may not be modified in any way, (ii) when displayed, the size of the D1R logo must be equal to or smaller than the Order Fulf Iler logo, (iii) the DIR logo is only used to communicate the availability of products and services under ihe 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 Fulf Iler's name and logo in the protnotion 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, tiile, 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 Fulf ]ler. H. Trade Show Participation At D1R's discretion, Vendor and Order Fulf llers may be required to participate in one or more DIR sponsored trade shows each calendar year. Vendor understands and agrees ihat participation, at the Vendor's and Order Pulfiller'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 Fulfi(lers 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 lJpon thirty (30) calendar days from execution or 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. D1R shall bear no cost for the time and travel of the Vendor or Order Fulf llers for attendance at the meeting. J. Performancc Revic�v Meetings D1R 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 ror 12/]7/12 I'a�e 7 ofi22 -f�'� EXHIBIT "F" Appendix A Standard Tcrms and Conditions l+or Producl and Relatcd Services Contracts ihe time and travel of the Vendor for attcndance at the meeting. K. DIR Cost A��oidancc As part of the performance measures reported to state ]eadership, DIR must provide the cost avoidance tl�e State has achieved tl�rough the Contract. Upon request by D]R, Vendor shall provide D1R with a detailed report of a representative sample of products sold under the Contract. The report shall contain: product parl number, product description, ]ist price, price to Customer under the Coniract, and pricing from three (3) aliernative sources under which DIR customers can procure the products. 7. Purchase Orders, Tnvoices, and Payments A. Purchase Orders All Customer Purchasc Orders will be placed directly with the Order Fulf Iler. Accurate Purcl�ase Orders shall be effective and binding upon Order rulfiller when accepted by Order Pulf ller. B. Invoices 1) Invoices shall be submitted by the Order Fulfiller directly to the Customer and sliall be issued in compliance with Chapter 2251, Texas Government Code. Al1 payments for products and/or services purchased under ihe Contract and any provision of acceptance of such products and/or services shall be made by the Customer to the Order Fulf ller. 2) Invoices must be timely and accurate. Cach invoice must match Customer's Purchase Order and include any written changes that may apply, as it relates to producis, 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 ihe Customer. C. Payments Cuslomers 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 afier the goods are provided, the services completed, or a correct invoice is i•eceived, whichever is later. Payment under the Contract shall not foreclose the rigllt io recover wrongful payments. 8. Co�itract Administration A. Contract Administrators DIR and the Vendor will each provide a Contract Administrator to support the Contract. Information regarding the Contract Administcators will be posted on the internei website designaied ror the Contract. 1) Sfate Coniract Administrator DIR sliall provide a Contract Administrator wl�ose duties shall include but not be limited to: i) supporting the inarketing and management oTthe Contract, ii) advising DIR of Vendor's performance imder the terms and conditions of the Contract, and iii) periodic verif cation of producc pricing and monthly reports submitted by Vendor. 12/17/12 Page 8 of22 .�� EXHIBIT "F" Appendix A Standard Terms and Conditions For Product and Related Services Contracts 2) Vendor Contract Adminisirator Vendor shall provide a dedicated Contract Administcator whose duties shall include but not be limited to: i) supporcing the marketing and management of the Contract, ii) facilitating dispute resolution between a Order rulfiller and a Customer, and iii) advising DIR of Order Pulfillers performance under the terms and conditions of the Contract. DiR reseives ihe right to require a chan�e in Vendor's then-current Contract Administrator if tl�e assigned Contract Administrator is not, in the opinion oT DIR, adequately serving the needs of the State. B. Reporting and Administrative I+ees 1) Reporting Responsibility a) Vendor shall be responsib]e for reporting all products and services purchased through Order Fulfillers under the Contract. Vendor shall f le 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 Conlract books at DIR's expense. 2) Detailed Monthly Report Vendor shall electronically provide DIR with a detailed monthly report in the format required by D]R showing the dollar volume of any and all sales under the Contract for the previous month period. Reports shall be submitted to t11e DIR ICT Cooperative Contracts �-Mail I3ox at ict.sales(a�dir.texas.at,ov_. Reports are due on the fifieenth (15`�') calendar day after the close of the previous month period. The monthly report shall include, per transaction: the detailed sales for the peciod, 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 cotnplete billing address, and other information as required by D]R. Cach report must contain all information listed above per transaction or the reporl will be rejected and returned to tl�e Vendor ror correction in accordance with this section. 3) Historically Underutilized Businesses Subconlract 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) DTR Administrative Fee a) An administrative fee shall bc paid by Vendor to DIR to dei'ray the DIR costs of negotiating, executing, and administering the Contract. The maximum adminislrative fee is set by the Texas Legislature in the biennial General Appropriations Act. Payment of the administrative fee shall be due on tl�e fifteenth (15`�') calendar day after the close of the previous month period. DIR may change the amount of the administrative fee upon thirty (30) days written ] 2/17/12 Pabe 9 of 22 Page 44 EXHIBIT "F" Appendix A Standard Tei•ms atid Conditions I+or Product and Related Scrvices Contracis notice to Vendor wiihout the need for a formal contract amendment. b) Vendor shall reference the DIR Contract �wmber on any remittance insiruments. 5) Accurate and Timely SuUmission of Rcports a) Tl�e reporis and administrative fee;s shall be accurate and timely and submitted in accordance with the due dates specifed in tliis section. Vendor shall correct any inaccurate reports or administrative fee payments within three (3) business days upon written notification by DIR. Vendor sha11 deliver any late repoi�s or late administrative fee payments within three (3) business days upon written notification by DIR. IT 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 or action sliall be subject to DIR approval. b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery of reports and paymenis within the corrective plan of action timeline, DIR reserves the right to require an independent third party audit of the Vendor's records as specif ed in C.3 of this Section, at DIR's expense_ c) Pailure to timely submit lhree (3) reports within any rolling iwelve (12) month period may, at DIR's discretion, result in termination of Vendor's Contract. C. Records and Audii 1) Acceptance of funds under the Contract by Vendor and/or Order Pulf ller acis as acceptance of ihe authority oTthe State Auditor's Office, or any successor agency, to conduct an audit or investigation in conneciion with those funds. Vendor furlher agrees to cooperate fully with ihe State Auditor's Office or iis successor in ihe conduct of the audit or investigation, includi�� ca�r��sw�� % �'�:c��arcis requested. Vendor will ensure that this clause concerning il7e ��tt��a��it� ic� ��c��i f%ri�ds received indirectly by subcontractors through Vendor oa° cii€��tfy �a� 4��"��' 1=�aliiilers and the requirement to cooperate is included in any subcontract or Order Fulfiller contract it awards perlaining 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 ihe State Auditor's Offce with access to any information the State Auditor's Offce considers re]evant to the investigation or audit. 2) Vendor and Order rulfillers shall maintain adequate records to establish compliance with the Contract until the later of a period of four (4) years after termination of the Contracl or until full, fnal and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract. Such records shall include per transaction: tlle Order Pultller's company name if applicable, Customer name, invoice date, invoice number, description, par( number, manufacturer, quaniity, unit price, extended price, Customer Purchase Order number, contact name, Custoil�er's complete billing address, ihe calculations supporting each administrative fee owed DIR under the Contract, Hisiorically Underutilized Businesses SuUcontracting reports, and such other documentation as DIR may 12/�'7/] 2 Page 10 of 22 .�'� EXHIBIT "F" Appendix A Standard Terms and Conditions For Product and ltelated Scrvices Contracts request. 3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records, books, documents, accounting procedures, practices and any oiher items relevant to t11e performance of the Contract to the DIR Internal Audil department or D1R Contract Management staff, including the compliance checks designated by the DIR Internal Audit department, DTR Contract Management staff, the State Auditor's Offce, and of the United States, and such other persons or entities designated by DIR for ihe purposes of inspecting, Compliance Checking and/or copying such books and records. Vendor and/or Order Fulfillers shal] provide copies and printouts requested by DIR without cliarge. DIR shall provide Vendor and/or Order Fulf llers ten (10) business days' notice prior to inspecting, Compliance Checking, and/or copying Vendor's and/or Order Pulfiller's records. Vendor's and/or Order Fulfillers records, whetlier paper or electronic, shall be made available during regular offce hours. Vendor and/or Order Pulfiller personnel familiar with the Vendor's and/or Order Fulfiller's books and records shall be available to the DIR Tnternal Audit department, or DIR Contract Management staff and designees as needed. Vendor and/or Order Fulfiller shall provide adequate office space to D1R 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 i'ulfllers 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 Noti�cation 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-Mai] Box inrormation. 9. Vendor Responsibilities A. Xndemnification 1) Acts or Omissions Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRCSCNTATIVCS, CON7'RACTORS, ASSIGNC�S, AND/OR DCSIGNCES FROM AND AGAINST ANY AND ALL LIABILITY, ACTIONS, C1�AIMS, D�MANDS, OR SUITS, AND ALL RCLATED COSTS, ATTORNEY FECS, AND CXPLNSES arising out of, or ] 2/17/] 2 Page 11 of 22 ... . , EXHIBIT "F" Appendix A Siandard Tcr�ns and Conditions For Product and Rclatcd Serviccs Contracts resulting from any acts or omissions of the Vendor or its agents, emp]oyees, subcontractors, Order rulfillers, or suppliers of subcontractors in ihe execution or perrormance of the Contract and any Purchase Orders issued under the Contracl REGARDLESS Or THC NCGLIGCNC� OP THE CUSTOMER, THC STATC OP TEXAS AND/OR THCIR �MPLOYEES, AG�NTS, RCPRES�NTATIVCS, CONTRACTORS, ASSIGNC�S, AND/OR D�SIGNEES. VCNDOR SHALL PAY ALL COSTS OF D�rCNSE INCLUDING ATTORNEYS FCCS. THE DCT'ENSE SI�ALL BL COORDINATCD BY THE OPPtCE OF THE ATTORNCY GENERAL POR TEXAS STAT� AGLNC]�S AND BY CUSTOMER'S LCGAL COUNSEL FOR NON-STATE AGCNCY CUSTOMERS. 2) Infringcmcnts a) Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR EMPLOYECS, AGENTS, RCPR�SENTATIVCS, CONTRACTORS, ASSIGNECS, AND/OR DCSIGN��S, 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 PERFORMANC�S OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VCNDOR AND TH� CUSTOMER AGREE TO rURNTSH TIMELY WRITTEN NOTIC� TO �ACH OTHER OF ANY SUCH CLATM. VCNDOR SI�ALL BE LIABLE TO PAY ALL COSTS OF DEP�NSC INCLUDING ATTORN�YS' P��S. THE DEFENSC SHALL BE COORDINATCD IIY TH� OFFICC OF TI3C ATTORNCY GCNCRAL POR T�XAS STATE AG�NCY CUSTOMERS AND BY CUSTOMER'S L�GAL COUNS�L POR NON-STATC AGENCY CUSTOMERS. b) 1f Vendor becomes aware of an actua] 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 il�e 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 functiona]ly equivalent or superior product oi• service so that Customer's use is non- infringing. 3) Independent Contractor V�NDOR AGR��S AND ACKNOWL�DG�S THAT DURING TH� ]CXISTENC� OF TIiI5 CONTRACT, IT IS I+URNISHING SERVIC�S IN TH[� CAPACITY Or AN IND�PENDENT CONTRACTOR AND TI3AT V�NllOR IS NOT AN �MPLOY�� OF TH� CUSTOM�R, DIR OR TI3� STATE OF TEXAS. B. Taxes/Workcr's Compensation/UN�MPLOYMENT INSURANC� 1) V�NDOR AGRC�S AND ACKNOWLCDGES THAT DURING THC �XISTLNCC OF TH1S CONTRACI', VGNDOR SI�ALL BE CT�TIRELY RCSPONSIBLC POR THC LIABII.iTY AND PAYMCNT OF VCNDOR'S AND VCNDOR'S CMPLOYGCS' TAXCS OF WHATCVCR KIND, ARISING OUT OF TH� PCRPORMANCCS lN THIS CONTRACT. VCNDOR AGRCCS TO 12/17/12 Page ] 2 of 22 Page 47 EXHIBIT "F" Appcndix A Standard Terms and Condiiions For Product and Relatcd Services Contracts COMPLY W1TH ALL STATE AND FCD�RAL LAWS APPLICAI3L� TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGCS, 1'AXCS, INSURANCC, AND WORK�RS' COMP�NSATION. VGNDOR AGRCCS AND ACKNOWLEDGLS THAT VENDOR [TS EMPLOYCES, REPRrSGNTATIVCS, AG�NTS OR SUBCONTRACTORS SHALL NOT BE �NTITLED TO ANY STATC B�N�F1T OR BENCPIT OF ANOTI�ER GOVCRNMENTAL ENTITY CUSTOMER. TI�E CUSTOMER AND/OR THE STATE SHALL NOT BE L]ABLE TO THE VENDOR ITS CMPLOYCCS, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR TH� PROVISION OF UNEMPLOYMENT INSURANC� AND/OR WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE �MPLOYCE OR EMPLOYEE OF ANOTHER GOVERNMENTAL CNTITY CUSTOMGR. 2) VENDOR AGREES TO INDEMNIPY AND HOLD HARMLESS CUSTOMCRS, TH� STAT� OP TCXAS AND/OR THEIR EMPLOYCES, AGENTS, REPRCSCNTATIVCS, CONTRACTORS, ASSIGNCES, AND/OR DESIGNCCS FROM ANY AND ALL LiAB1LITY, ACTIONS, CLAIMS, DEMANDS, OR SU1TS, AND ALL RCLATED COSTS, ATTORNEY FEES, AND CXPENSES, RELATING TO TAX LIABILITY, UNCMPLOYMENT 1NSURANCE AND/OR WORKCRS' COMPCNSATION OR CXPCCTATIONS OF I3ENEFITS BY VCNDOR, ITS EMPLOYEES, REPRESCNTATIVCS, AGENTS OR SUBCONTRACTORS 1N ITS PERFORMANCC UNDER THIS CONTRACT. V�NDOR SHALL BC LIABLE TO PAY ALL COSTS OF DCPCNSE INCLUD]NG ATTORNEYS' FEES. THE DEFCNSE SI�ALL BC COORDINATED I3Y TH� OFFICC OF THE ATTORNEY GENERAL POR TEXAS STATC AGENCY CUSTOMGRS AND BY CUSTOMER'S LEGAL COUNSCL FOR NON-STATE AGCNCY CUSTOMERS. C. Vendor Certifications Vendor cerlifes on behalf of Vendor and its designated Order Pulf Ilers 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 witl� tlie Contract; (ii) are not currently delinquent in the payment of any franchise iax owed the State of Texas and are not ineligible to receive payment under §231.006 of the Texas Pamily Code and acknowledge the Contract may be terminated and payment withheld ifthis certification is inaccurate; (iii) neither they, nor anyone acting for them, have violated the antitrust laws of ihe 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 pui-pose of obtaining an unfair price advantage; (iv) have not received paymcnt 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 certifes that the 12/17/] 2 Page 13 of 22 .� EXHIBIT "F" Appendix A Standard Terms and Conditions For I'roduct and Related Services Contracts individua] or business entity na�ned in tl�is bid or contract is not ineligible to receive il�e specifed contract and acknowledges that this coniract may be ierminated and paymentwithheld ifihis certifcation is inaccurate; (vi) to ihe best of their knowled�e and belief, there are no suiis or proceedings pending or ihreatened against or affecting them, which if determined adversely to ihem will have a material adverse effect on the ability to fulfll their obligations under the Contract; (vii) are not suspended or debarred fi-om doing business with the federal government as listed in ihe Excluded Pa��lies List System (EPLS) maintained by the General Services Administration; (viii) as of the efrective date of the Contract, are not listed in ihe prohibited vendors list authorized by Executive Order #] 3224, "131ocking Prope��ry and Prohibiling Ti�a»saciiof�s �vith Persons Wl�o Commit, Threaten io Conzmit, or Suppor-1 Te��'OYIS117", published by the United States Deparlment ofthe Treasury, Office of roreign Assets Control; (ix) to the extent applicable to this scope of this Coniract, Vendor hereby certifies that it is in compliance wiih Subchapter Y, Chapter 361, Healih 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 ��ith executive head of a state agency; (xi) have identified all current or former, within the last fve 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 ofthe Contract, cerlify ihey 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 Coniract ��ill 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 ihey shall disclose ihe 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 thac 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 ]obbying expenditures. In addition, they acknowledge the applicability of �2155.444 and �2155.4441, Texas Government Code, in fulfilling ihe terms of ihe Contract. � 2/�'7/� 2 Page 14 of 22 Page 49 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 Fulf llers, promptly disclose to DIR all changes ihat occur to the foregoing certifications, representations and wai•ranties. Vendor covenants to fully cooperate in the development and execution of resultinb documentation necessary to maintain an accurate record ofthe certificalions, 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. AUility to Conduct Business in Texas Vendor and its Order Fulfiller sl�all 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 Compliancc 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 eaecutive orders, the Vendor agrees that no person in ihe United States shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be excluded fi•om 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 defciencies. Upon request, Vendor will furnish information regarding its nondiscriminatory I�iring and promotion policies, as well as specific information on ihe composition of its principals and staff, includin� the identification of minorities and women in management or other positions with discretionary or decision-making authority. F. Use of Subcontractors IT Vendor uses any subcontractors in the performance of this Contract, Vendor ir►ust make a good faith effort in the submission of its Subcontraciing 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. Rcsponsibility for Actions 1) Vendor is solely responsible for its actions and those of its agents, eiriployees, or subcontractors, and agrees that neither Vendor nor any of the foregoing llas any autllority 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 ltem 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 witl� DIR to update and amend the Contract to accurately 12/17/12 Page ] 5 of 22 ., - � EXHIBIT "F" Appendix A Standard Tcrms aud Conditions I+or Product and Related Services Contracts disclose employmcnt of current or former State employees and their rclatives and/or the status of conflicts of interest. H. Confidentiality 1) Vendor acknowled�es tliat 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 GeneraPs office concerning ihis Act. 2) Under the tenns ofthe Contract, DIR may provide Vendor with infortnation related to Customers. Vendor shall not re-sell or otherwise distribute or release Customer information to any party in any mannec•. I. Security of Premises, �quipment, Data and Personnei Vendor and/or Order Fulfller may, from time io time during the performance of il�e Contract, have access to the personnel, premises, equipment, �vici nil��t� �ro��7�ty', including data, files and /o►• materials (collectively referred to as "Data"} Iac:lt�r��in� ta ila� Customer. Vendor and/or Order Fulf iller shall use their best efforts tQ ��r-�.se:r�� l�e s�fety, security, and the integrity of the personnel, premises, equipment, Daia and other properly of the Customer, in accordance with the iinstruction of the Customer. Vendor and/or Order Pulfiller shall be responsible Tor damage io Customer's equipment, workplace, and iis contenis when such damage is caused by its employees or subcontractors. If a Vendor and/or Order Fulfller 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 Hisiory Investigation Prior to commencement of any services, bacic.��•c��»�# a"�3Jc�r �t`ss�lir�aal i�i�tc��`y irjvestigation of the Vendor and/or Order Fulfller's er��nl�rfec�; �r�� a.��n�,ti��ci��s �'t�o will be providing services to the Customer under i1�e Ccan�ra�:t �i�$�y i�e j��"f�s'p��e�l by certain Customers having legislative authority to require such investigations. Should any employee or subcontractor of the Vendor and/or Order Fulfller who will be providing services to the Customer under the Contracfi not bc acceptable to the Customer as a result of the background and/or criminal histoi-y 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 LiaUility For any claim or cause of action arising under or related to ihe Contract: i) to the extent permitied by the Constitution and the laws of tl�e State of Texas, none of the parlies shall be liable to the otl�er for punitive, special, or consequential damages, even ir it is advised of che possibilily of such damages; and ii) Vendor's liability for damages of any kind to ihe Customer shall be limited to the total amount paid to Vendor under the Contr.act during the twelve months immediately preceding the accrual of the claim or cause of aciion. However, this Iimitation of Vendoc-'s liabilily sliall not apply to claims of patent, trademark, or copyright infi�ingement. � 2/� �/� 2 Page 16 of 22 Page 51 EXHIBIT "F" Appendix A Standard Terms and Conditions For Product and Related Services Contracts L. Overcharges Vendor hereby assigns to D]R any and all of its claims for overcharges associated with ihis contract which arise under the antitrust laws of ihe United States, 15 U.S.C.A. Section 1, et seq., and wl�ich arise under the antitrust laws of the State of Texas, Tex. Bus. and Comm. Code Section ]5.01, et seq. M. ProhiUited Conduct Vendor represents and warrants that, to the best of its knowledge as of the date of this certification, neither Vendor nor any Order Fulfller, subcontractor, firm, corporation, partnership, or institution represented by Vendor, nor anyone acting for such Order Pulfller, subcontractor, frm, corporation or institution has: (1) violated the antitrust laws of the State of Texas under Texas Business & Commerce Code, Chapter ] 5, 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 ihe Vendor is awarded services which require that Vendor's et�ployees 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 fve (5) business days following the execution of the Purchase Order. Vendor may noi 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 lnsureds 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 covera�e for liability assumed under the Contract; b) Independent Contractor coverage; c) State ofTexas, 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 Cuslomer. 2) Woi-kcrs' Compensation Insuraucc 12/l7/i2 Page 17of22 ..� EXHIBIT "F" Appcndix A Standai-d Terms and Conditions For Product and Related Services Coniracts Workcrs' Compensation Tnsurance and Employers' LiaUility coverage must include limits consistent with statutory benefts outlined in the Texas Workers' Compensation Act (Arl. 8308-].O1 ct seq. Tex. Rev. Civ. Stat) and minitnum policy limits for �mployers' 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 LiaUility 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. Altemative 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 Tcrmination; and c) Additional Insured. O. Use of State Property Vendor is prohibited from using ihe Customer's equipment, ihe Customer's Location, or any other resources or 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 witll all requirements related to federal immigration laws and regulations, to include but not be ]imited to, tiz� i�r��i��t��t7 a�� I�efa�a�►�� 1�,� �1� 1��C, ti�� Illegal Immigration Refonn and Immigrant ��e�;�aan�i��lity l'��t n�� 1��G {"11�11�.��") ��i�� the Immigration Act of 1990 (8 U.S.C.I 101, cE �;��.� r��;��i,�� J��l��71�� '��iiic�tirr� and retention of verifcation Torms for any in�i��F��u�1�sj ��i�•ed c��i c�s� �a�"-��r t�� ecti�� daie of the 199G Act who will perform any labor or services under this Coniract. Nothing herein is intended to exclude compliance by Vendor with all other relevant federal immigration statutes and regulations promulgated pursuant ihereto. Q. 1'uUlic Disclosure No public disclosures or news releases pertaining io this contract shall be made without prior written approval of DIR. R. Product and/or Services SuUstitutions Substitutions are noi per�nitted wiiliout the writtcn permissian of DIR or Custo�ner. ]2/17/12 Pa�e 18 of22 Page 53 EXHIBIT "F" Appendix A Standard 'Tcrms and Conditions ror Product and Related Services Contracts S. Secure �rasure of Hard Disk Producis and/or Scrvices Vendor agrees that all products and/or services equipped with hard disk drives (i.e. computers, telepl�ones, 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 Cusiomer's Managed Seivices product's useful life or tl�e end of the related Cusiomer Managed Services Agreement for such products and/ services, in accordance with 1 TAC 202. T. Deceptive Trade Practices; Unfair Business Practices a) Vendor represenis and warrants that neither Vendor nor any of its Subcontractors has been (i) Tound liable in any administrative hearing, litigation or other proceeding of Deceptive Trade Practices violations as de�ned 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 outsianding allegations of any Decepiive Trade Practice pending in any administrative hearing, litigation or other proceeding. U. Drug Free WorkPlace Policy The conti•actor shall comply with the applic�i>1� �r'c?vissc�s�;� caT t3ae i7r��-t°r'r�� "��'k �'"�� Act of 1988 (Public Law 100-690, Title V, ��?iitl� �; � 1 i.J.�•�. i�7� 1�`l� ��.) �� maintain a drug-free work environment; �� ih� fi��ai rule, �c�v�c"i��rr�s�i-��i�ca requirements for drug-free work place (granti3�r i��eci I�y tl�� C�fi�c� �{'�vl�3�ti��ea��c��t ��d Budget and the Department of Defense (32 �'1�1� T��[ 2��, Stat�l��r�t �`} �� 1��r��L �� 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 fnal rule that may hereafter be issued. 10. Contract �nforcement A. �nforcement of Contract and Dispute Resolution 1) Vendor and DIR agree to the following: (i) a party's failui-e to require strict performance of any pt'ovision of the Contr,act shall not waive or diminish that party's right ihereafler to demand strici compliance with that or any other provision, (ii) for disputes noi 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 subparagrapll A.l above. DIR shall not be a party to any such dispute unless D1R, Customer, and Vendor agree in writing. 12/17/l2 Page I9 of 22 �� EXHIBIT "F" Appendiz A Standard Terms and Conditions For Product and Relatcd Services Contracts B. Termination 1) Terinination for Non-Appropriation a) Termination for Non-Appropriation by Customer Customer may terminate Purchase Orders if funds sufficient to pay its obligations under ihe Contraci are not appropriated: i) by tlle governin�; body on bellalf of ]ocal governmenis; ii) by the Texas ]egislature on behalf of state agencies; or iii) by budget execution authority provisioned to the Governor or the 1_egislative Budget Board as provided in Chapter 317, Texas Government Code. In the event of non-appropriation, Vendor and/or Order Fulf Iler will be provided ten (l0) 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 ihis Contract, nor shall it be liable for any further payments ordinarily due under ihis Contract, nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. 1�� °�'c.r��iir�k�#icsr� for Non-Appro�a�-i:atic�� i�y �Il� I7]F� ra��+ i�:s-[��it�ate Contract if fi.arid� su1`ficiczat tc� pay its obligations under the C:c�r�t�-�ct ai-e z��t appropriated: ��Y t�a�. s,� `I°�xa:� legislature or ii) by budget �;�e.cta�i�t� att�l�t��ity provisioned tc� t��e �o�ei��a�t� r�s' the Legislative Budget Board as provided in Chapier 317, Texas Government Code. In the event of non- appropriation, Vendor and/or Order Pulfiller will be provided thirty (30) calendar days written notice oT 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 furlher payments ordinarily due under this Contract, nor sha11 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 t��c prc��i�itcc� v�:•r�c�c��s list ��it�c'r�d�ccl ��' Executive Order #13224, "Blocki�7g Pro��°ta� ery�� '��x��F��7� �"'�"��`�_��'�1°3�,�° "'�� Perso��s Wl�o Commit, Tl�reaten to Con��»i�, r�r° �a��}?c�rl ��p'1'c��'i.sa��", �t�l��isl��,d %y t1�c United States Deparcment of the Treasur�� C�f�c� c�i� ��'ci;�r� ,r�:��ct� �� ) Vendor becomes suspended or debarrer� �`i��a7t d�ii�� :�� ''t�� E�r government as ]isted in ihe Excluded Parlies List Systen� (EPLS) maintained by tlle 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 sl�all be provided written notice in accordance with Section 11.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 � Zn �i� 2 r�a�� Za or 22 �.� EXHIBIT "F" Appendix A Standard 1'erms and Conditions For Product and Related Scrvices Contracts (30) calendar days written notice. A Customer may terminate a Purchase Order if it is determined by the Customer that Order Fulf Iler will not be able to deliver product or services in a timely manner to meet the business needs of ihe Customer. 4) Termination for Cause a) Contract �ither 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 followinb 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 tlte defaulting party fails to cure said default within ihe 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 ihe 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 ] O.B.2 above, upon the following preconditions: first, the parties must comply with the requirements of Chapter 2260, Texas Government Code, in an attempt to resolve a dispute; second, after complying with Chapter 2260, Texas Government Code, and the dispute remains unresolved, then the non-defaulting party shall give the defaulting party thirty (30) calendar days from receipt of notice to cure said default. If the defaulting parly fails to cure said default within the timeframe allowed, the non- defaulting party may, at its option and in addition lo any other remedies it may have available, cancel and terminate the Purchase Order. 5) Customer Rights Under Terminafion 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 tern�ination or expiration of the Contract. The Purchase Order survives the expiration or termination oi'the Contract for its then efi'ective term. 6) Vendor or Order Fulfiller Rights Under Tcrmination In the event a Purchase Order expires or is tenninated, 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 D1R, Customer, or Order Fulfiller may be excused fi-om performance under the Contract for any period whcn performance is prcvented as the result of an act of God, strike, war, 12/ 17/ 12 Page 2] of 22 Page 56 11. 12. EXHIBIT "F" Appendix A Standard Tcrms and Conditions For Product and Related Services Coaitracts civil disturbance, epidemic, or court order, provided that the parCy experiencing the event of Force Majcure has prudently and promptly acted to iake any and all steps ihat are within the party's control io ensure performance and to shorlen the dw-ation of the event of I'orce Majeure. The party sufferinb an event of Porce Majeure shall provide notice or 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. l�owever, a Customer may terminate a Purchase Order if it is detennined by the Customer that Order Pulfller ��ill not be able to deliver product or services in a timely manner io meet the business needs ofthe Customer. Notification A. Notices All notices, demands, designations, certificates, requests, orre��s, 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 ihe respective address indicated in Section 6 of the Contract or to such other address as such party shall have notifed 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 lnformation Office Department of Information Resources Attn: Public Information Officer 300 W. 15`" Street, Suite ] 300 Austin, Texas 78701 (512) 475-4759, facsimile Captions The captions contained in convenience and reference ]imit any provision thereof 12/17/] 2 lhe Contract, Appendices, and its Exhibits are intended for purposes only and shall in no way be deemed to define or �i�* . -L�'ti