HomeMy WebLinkAboutResolution - 2010-R0574 - Contract 9753 Sprint Solutions, Inc. RFP 10-138-DT - 11/15/2010Resolution No. 2010-RO574
November 15, 2010
Item No. 5.12
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, Contract No. 9753 for Cellular. 2 -Way
Telephone Services per RFP 10 -138 -DT, by and between the City of Lubbock and Sprint
Solutions, Inc. of Reston, Virginia, and related documents. Said Contract is attached
hereto and incorporated in this resolution as if fully set forth herein and shall be included
in the minutes of the City Council.
Passed by the City Council on November 15, 2010
TOMARTIN, MAYOR
ATTEST:
Rebec Garza, City Secretary
APPROVFD AS TO CONTENT:
X "�
Mark Y rwoo Assistant City Manager
Chief In rmation Officer
APPROVED AS TO FORM:
iChad Weaver. Assistant City Attorney
,vw:ccdocs RES.Contract-Sprint Solutions, Inc.
November 1, 2010
City of Lubbock, TX Resolution No. 2010—RO574
SERVICE AGREEMENT
Cellular /2 -Way Telephone Services
RFP 10 -138 -DT
Contract 9753
This Service Agreement (this "Agreement") is entered into as of the 15th, day of, November,
2010, ("Effective Date") by and between Sprint Solutions. Inc. with offices in Reston. Virginia as
contracting agent for the affiliated Sprint and Nextel entities providing the Products and Services (the
Contractor), and the City of Lubbock (the "City").
RECITALS
WHEREAS, the City has issued a Request for Proposals 10 -138 -DT for Cellular/2-Way Telephone
Services.
WHEREAS, the proposal submitted by the Contractor pursuant to the pricing, terms and
conditions of the State of Texas Department of Information Resources Contract No. DIR-SDD-611
("Texas DIR Contract") has been selected as the proposal which best meets the needs of the City for this
service. This Agreement incorporates all the terms, conditions, attachments and any current or future
amendments of the Texas DIR Contract except as modified herein.; and
WHEREAS, Contractor desires to perform as an independent contractor to provide cellular/2-
way telephone services upon terms and conditions maintained in this Agreement; and
NOW THEREFORE, for and in consideration of the mutual promises contained herein, the City
and Contractor agree as follows:
City and Contractor acknowledge the Agreement consists of the following documents which are
attached hereto and incorporated herein by reference, listed in their order of priority in the event of
inconsistent or contradictory provisions:
1. This Agreement
2. Sprint's Proposal Submittal to RFP No. 10 -138 -DT dated October 14, 2010
3. Texas DIR Contract No. DIR-SDD-611, Amendments 1, 2 and 3, and Appendix A
4. Exhibit A — Intent and General Conditions
ARTICLE I
SERVICE
1.1 Contractor agrees to perform those services for the City that are specified on Exhibit A
(the "Services") and attached hereto.
1.2 Contractor shall use its commercially reasonable efforts to render Services under this
Agreement in a professional and business -like manner and in accordance with the
standards and practices recognized in the industry.
Nonappropriation clause. All funds for payment by the City under this Agreement are
subject to the availability of an annual appropriation for this purpose by the City. In the
event of non appropriation of funds by the City Council of the City of Lubbock for the
goods or services provided under the Agreement, the City will terminate the Agreement,
without termination charge or other liability, on the last day of the then -current fiscal year
or when the appropriation made for the then -current year for the goods or services
covered by this Agreement is spent, whichever event occurs first. If at any time funds are
RFP 10 -138 -DT, Cellular/2-Way Telephone Services Pagel of 9
not appropriated for the continuance of this Agreement, cancellation shall be accepted by
the contractor on thirty (30) days prior written notice..
ARTICLE H
MISCELLANEOUS
2.1 This Agreement is made in the State of Texas and shall for all purposes be construed in
accordance with the laws of said State, without reference to choice of law provisions.
2.2 This Agreement is performable in, and venue of any action related or pertaining to this
Agreement shall lie in, Lubbock, Texas.
2.3 This Agreement and its Exhibits contains the entire agreement between the City and
Contractor and supersedes any and all previous agreements, written or oral, between the
parties relating to the subject matter hereof. No amendment or modification of the terms
of this Agreement shall be binding upon the parties unless reduced to writing and signed
by both parties.
2.4 This Agreement may be executed in counterparts, each of which shall be deemed an
original.
2.5 In the event any provision of this Agreement is held illegal or invalid, the remaining
provisions of this Agreement shall not be affected thereby.
2.6 The waiver of a breach of any provision of this Agreement by any parties or the failure of
any parties otherwise to insist upon strict performance of any provision hereof shall not
constitute a waiver of any subsequent breach or of any subsequent failure to perform.
2.7 This Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, representatives and successors and may be assigned by Contractor or the
City to any successor only on the written approval of the other party except that
Contractor may assign this Agreement to a parent company, controlled Affiliate, Affiliate
under common control or an entity that has purchased all or substantially all of its assets
upon written notice to the City.
2.8 Disputes. The provisions defined within Appendix A, Standard Terms and Conditions,
Section 10, Paragraph A ("Enforcement of Contract and Dispute Resolution") of the
Texas DIR Contract shall apply to this Agreement. Notwithstanding any provision to the
contrary, any action or cause of action arising from this Agreement shall be governed
pursuant to the laws of the State of Texas and venue shall be in Lubbock County, Texas.
ARTICLE III
TERM
3.1 This Agreement is effective upon final execution by the parties (the "Effective Date")
and shall be coterminous with the Texas DIR Contract.
RFP 10 -138 -DT, Cellular/2-Way Telephone Services Page 2 of 9
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date.
City of Lubbock, TX Contractor
Lfl�'I
To Martin, Mayor' Name: Michaela Clairmonte
Title: Manager, Contract Negotiations
ATTEST:
Spent—Approved
as to Legal Forth
HRF
05 Nov 10
1;� -ap , , -, - -
ebe a Garza, City Secretary
APPROVED AS TO CONTENT:
4.r
Mark earwo , Assistant City Manager
Chief Information Officer
-17
APPR7ED TO FORM:
C ad Weaver, Assistant City Attorney
RFP 10 -138 -DT, Cellulari2-Way Telephone Services Page 3 of 10
EXHIBIT A Resolution No. 2010—RO574
City of Lubbock, TX
High Technology RFP
Intent and General Conditions
for
Cellular/2-Way Telephone Services
1.0 INTRODUCTION AND OVERVIEW
1.1 The City of Lubbock is issuing a Request for Proposal (RFP) under the guidelines of a
High -Technology RFP, and the award of the contract shall be made to the responsible
vendor whose proposal is determined to be the best evaluated offer resulting from
negotiation, taking into consideration the relative importance of price, qualifications,
experience, references, local support and service, and other evaluation factors set forth.
Receipt of any proposal shall under no circumstance obligate the City of Lubbock to
accept the best price offering.
1.2 The Contract Agreement awarded under this RFP will grant to the successful respondent
rights for wireless telephone services for the City of Lubbock, Texas for a period of one
year with two additional one-year renewal options.
2.0 CURRENT ENVIRONMENT
2.2 The City of Lubbock has approximately 212 wireless telephones in service, and uses an
average of 76,000 cell minutes. Based on the results of the RFP and need, the number of
cellular/2-way telephones needed may change.
3.0 SCOPE
3.1 The specifications encompass the requirements for Vendor response via sealed proposals
for cellular/2-way telephone services. The responder to this Request for Proposals shall
be solely responsible to ensure that the services offered shall meet the City of Lubbock's
requirements.
4.0 VENDOR RESPONSIBILITIES
4.1 The Vendor shall bear the following responsibilities:
4.1.1 Demonstrate, by local references, prior to acceptance of proposal that the
cellular/2-way services being proposed to the City of Lubbock will perform as
represented in the proposal. (Cellular/2-way telephones should be available for a
trial period during the RFP process to confirm service availability)
4.1.2 Provide complete, turnkey, swap -out of cellular/2-way telephones and
accessories (car & wall chargers, and cases) for the City of Lubbock without any
interruption in service.
4.1.3 Provide training and appropriate documented instructions to the City of Lubbock
for the use of its proposed cellular/2-way telephone services.
4.1.4 Provide fixed price services for one year with two additional one-year renewal
options.
4.1.5 Provide local Customer Care Center or service facility for all telephone repairs
and replacements; and for telephone accessory repair and replacements for the
entire length of the contract.
RFP 10 -138 -DT, Cellular/2-Way Telephone Services Page 4 of 9
4.1.6 Furnish a map, indicating the location of cellular tower sites that will be used to
provide the cellular service included in this proposal and their coverage area. If
the coverage area increases in size for other customers of the Vendor, then the
City of Lubbock should have the option to increase its service area. Areas where
roaming charges apply shall be clearly indicated.
4.1.7 If a government agency in the State of Texas is given a lower rate during the life
of this proposal, the lower rate will apply to this proposal.
4.1.8 Legal venue for this proposal will be Lubbock County and Choice of Law for this
proposal will be Texas.
5.0 RIGHTS OF THE CITY OF LUBBOCK
5.1 The City of Lubbock reserves the right to award these services on the basis of responses
to this RFP or an agreement/proposal with the State of Texas, for cellular/2-way
telephone services, whichever is deemed solely by the City to be in its best interests. The
City of Lubbock reserves the right to negotiate any and all parts of the proposals
received, reject any and all proposals, or to accept selected components of any proposal.
The City of Lubbock reserves the right to award these services for all existing number
of telephones, some of the telephones or none of the telephones, whichever is deemed
solely by the City to be in its best interests. If a responding Vendor or their parent
company has an agreement or proposal in effect with the State of Texas, indicate what the
agreement / proposal is and how it compares to your proposal to the City.
6.0 SELECTION CRITERIA
6.1
20%
Quality of references received from business users of the Vendor's cellular/2-way
services and financial information provided by the Vendor.
6.2
25%
Ease of access to customer care center or service facility and coverage areas.
6.3
10%
Adequacy of reporting (invoicing) to enable City to allocate charges by
employee, i.e. electronic billing. (Including allowing showing the incoming
telephone numbers on the bill)
6.4
35%
Net monthly cost to the City for cellular/2-way services.
6.5
10%
Disaster plan for Cellular/2-way services.
6.6
The successful Vendor(s) must score at least 80% of each of the above evaluation
criteria.
7.0 DETAIL SPECIFICATIONS
7.1 Vendor shall indicate to what extent the cellular services being proposed meet, exceed or
falls short of the stated requirements. This discussion is to follow each specification
description. Discussion such as "Meets all specifications" or "See attached
specifications" do not qualify as explanations of what the Vendor is proposing.
7.2 Features:
7.2.1 City of Lubbock is interested in the following features on some or all of the
proposed devices and will need prices for these items in the proposal
• Texting
• Data
• Internet
RFP 10 -138 -DT, Cellular. 2 -Way Telephone Services Page 5 of 9
• Group 2 -Way
7.3 Service:
7.3.1 Indicate the location of your service facility and ability to provide parts and
equipment. Also, indicate the hours of operation.
7.3.2 Explain the procedure if a telephone is stolen/lost on the weekends or after hours.
7.3.3 Discuss who will provide service to the City and what the response time will be
for delivery of new or replacement telephones or additional accessories.
7.3.4 In the event of a major problem, provide an escalation list of personnel that can
be contacted. List name, title, location and contact telephone number.
7.3.5 Explain the process when a telephone model is being utilized by the City of
Lubbock gets discontinued by the vendor especially how it relates to
accessories for the telephone, parts for the telephone and replacement telephones.
7.4 Emergency Situation or Weather Issues:
7.5 Billing:
7.4.1 In the event of an emergency incident, such as a weather related disaster, how
would you ensure cellular/2-way telephone service for the City's Emergency
Management Team and Public Safety Group?
7.4.2 What would be your response time in activating this plan?
7.4.3 Do you have access to mobile towers to be delivered to an area of the City in
need of coverage in this situation?
7.4.4 Describe how the Vendor ensures that Cellular/2-way telephone services will
always be available to the City including during severe weather conditions.
7.5.1 Discuss how charges for cellular/2-way telephone calls are calculated. Will the
rate be the same for 24 hours per day 7 days a week? If not, discuss other rates
and the hours available.
7.5.2 Explain any other charges, costs, fees, etc., that the City could/will incur by using
the Vendor's Cellular/2-way telephone services. Discuss any minimum charges
that will be incurred by the City.
7.5.3 Describe how invoices will be detailed so as to indicate all calls placed from or
received by a telephone, including number, City and State of number, date, time
of call and cost of call. Describe how the electronic billing will be handled and
the formats available for the invoice. Describe what media billing will be
provided in. Provide samples of invoices that show the above requirements.
7.5.4 Discuss how the City will resolve invoicing problems or receipt of late monthly
bills. Provide the contact(s) name, title, phone number, email address, and
location.
7.6 Change Over Process:
7.6.1 Describe how the City will be converted to the proposed cellular/2-way services
while keeping existing telephone numbers. The City expects that the cutover to
these services will be done without interruption of cellular/2-way telephone
services and at no cost to the City.
RFP 10 -138 -DT, Cellular/2-Way Telephone Services Page 6 of 9
7.7 Other:
7.6.2. During the event of a mass changeover of a type of telephone the City is using
during the term of the contract (instigated by the vendor) shall not be liable for
the expense of the telephones or accessories.
7.7.1 In the event that a cellular/2-way telephone is cloned by a hacker and the number
is being used by an unauthorized user, how does your company check for this
kind of activity and what would the City's liability be?
7.7.2 Is there a set amount of free long distance service with each telephone? Please
explain.
7.7.3 List local businesses to which you provide similar cellular/2-way services that
have 100 or more cellular telephones. Indicate name of business, number of
cellular telephones, contact person and their telephone number.
8.0 GENERAL CONDITIONS
8.1 The Cellular/2-way telephone services proposed must meet Federal, State and PUC
requirements. The Vendor shall be responsible for including all items required by these
regulations even though these items may not be requested in these specifications.
8.2 Any omissions from these specifications shall not relieve the Vendor from the
responsibility of furnishing the necessary information and costs required.
8.3 Vendor shall include three (3) copies of their Proposal, including illustrative and
technical data covering the proposed services. Also include a sample contract and
warranty description, if applicable.
8.4 Vendor shall include the financial information for the Vendor and the Vendor's parent
company, if any.
9.0 PROPOSAL FORMAT
9.1 Prefacing the proposal, the respondent shall provide an Executive Summary of three (3)
pages or less, which gives in brief, concise terms, a summation of the proposal. Include
descriptions of primary and alternative configurations. The proposal itself shall be
organized in the following format and informational sequence:
9.2 Letter of Transmittal:
The letter of transmittal should be physically signed by an officer of the firm and include
the following:
9.2.1 Name, address, and identification number (SSN or FEIN) of the respondent.
9.2.2 Name, title and telephone number of the individual authorized to commit the
respondent, if different from above.
9.2.3 Name, title and telephone number of the individual to be contracted regarding the
content of the RFP proposal, if different from above.
9.2.4 City and state of respondent's corporate headquarters, if different from above.
9.2.5 A statement ensuring validity of the proposal for at least ninety (90) days.
9.2.6 A statement that the respondent understands and will comply with the various
clearance procedures required by the City including equal opportunity and tax
clearance certification.
RFP 10 -138 -DT, Cellular/2-Way Telephone Services Page 7 of
9.3 Business Organizations:
9.3.1 State full name and address of your organization and identify parent company if
you are a subsidiary. Specify the branch office or subordinate element, which
will perform, or assist in performing, work herein. Indicate whether you operate
as a corporation, partnership, or individual. Include the State in which
incorporated or licensed to operate.
9.4 System Concept and Solution:
9.4.1 Define in detail your understanding of the problem presented earlier in this
request for proposal and your system solution. Provide all details required in
addition to those facts you deem necessary to evaluate your proposal.
9.5 Project Management Structure:
9.5.1 Provide a general explanation and chart, which specifies project leadership and
reporting responsibilities. If use of subcontractors is proposed, identify their
placement in the primary management structure, and provide internal
management description for each subcontractor.
9.6 Prior Experience:
9.6.1 Describe general relevant corporate experience providing service to organizations
similar in size, complexity and type of government.
9.6.2 List customer references, concentrating on organizations with similar
environments, preferably within the state. Even more preferable are customer
references in the area.
9.6.3 A list of existing city, county, or other public entity users of similar systems
provided by the respondent must be included. Please give the client name,
contact person, address, telephone number, and number of cellular/2-way
telephones. These references must have a minimum of 100 cellular/2-way
telephones.
9.7 Personnel:
9.7.1. Include names and qualifications of all professional personnel who will be
assigned to this project. State the primary work assigned to this person and the
percentage of time each person will devote to this work. Identify key persons by
names and title. Provide all resumes.
9.8 Authorized Negotiator:
9.8.1 Include name, address and telephone number of person in your organization
authorized to negotiate contract terms and render binding decisions on contract
matters.
9.9 Cost Proposal:
RFP 10 -138 -DT, Cellular/2-Way Telephone Services Page 8 of 9
9.9.1 Complete a cost proposal evaluation matrix for the equipment specified. Be sure
to indicate the costs for each device type. Be sure to include discounts, where
applicable, and type of payment (monthly, annually, etc.)
10.0 ANY ADDITIONAL COSTS MUST BE CLEARLY INDICATED
10.1 Exceptions: any exception to this RFP must be explicitly indicated.
11.0 ACCEPTANCE TESTING
11.1 The successful respondent shall demonstrate a complete capability to maintain
compliance with this proposal specification.
12.0 THE CITY RIGHT TO AUDIT
13.1 At any time during the term of the contract, or thereafter, the City, or a duly authorized
audit representative of the City or the State of Texas, at its expense and at reasonable
times, reserves the right to audit Contractor's records and books relevant to all services
provided to the City under this Contract. In the event such an audit by the City reveals
any errors or overpayments by the City, Contractor shall refund the City the full amount
of such overpayments within thirty (30) days of such audit findings, or the City, at its
option, reserves the right to deduct such amounts owing the City from any payments due
Contractor.
RFP ]0 -138 -DT, Cellular 2 -Way Telephone Services Page 9 of 9
Resolution No. 2010-RO574
DIR Contract No. DIR-SDD-611
Sprint Reference: #BSG0704-068683
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR WIRELESS VOICE & DATA SERVICES AND EQUIPMENT
Sprint Solutions, Inc. (Sprint)
1. Introduction
A. Parties
This Contract for products and related services is entered into between the State of
Texas, acting by and through the Department of Information Resources (hereinafter
"DIR") with its principal place of business at 300 West 15th Street, Suite 1300, Austin,
Texas 78701, and Sprint Solutions, Inc. (Sprint) (hereinafter "Vendor"), with its principal
place of business at 2001 Edmund Halley Drive, Reston, Virginia 20191.
B. Compliance with Procurement Laws
This Contract is the result of compliance with applicable procurement laws of the State
of Texas. DIR issued a solicitation on the Comptroller of Public Accounts' Electronic
State Business Daily, Request for Offer (RFO) DIR-SDD-TMP-089, on April 23, 2007, for
Wireless Voice and/or Data Services and Equipment. Upon execution of this Contract, a
notice of award for RFO DIR-SDD-TMP-089 shall be posted by DIR on the Electronic
State Business Daily.
C. Order of Precedence
This Contract; Appendix A, Standard Terms and Conditions For Products and Related
Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses
Subcontracting Pian; Appendix C, Standard Agreement and Licensing Terms; Sprint
Corrective Action Plan dated November 14, 2007; Exhibit 1, Vendor's Response to RFO
DIR-SDD-TMP-089, including all addenda; and Exhibit 2, RFO DIR-SDD-TMP-089,
including all addenda; are incorporated by reference and constitute the entire
agreement between DIR and Vendor. In the event of a conflict between the documents
listed in this paragraph, the controlling document shall be this Contract, then Appendix
A, then Appendix B, then Appendix C, then Corrective Action Plan, then Exhibit 1, and
finally Exhibit 2. In the event and to the extent any provisions contained in multiple
documents address the same or substantially the same subject matter but do not
actually conflict, the more recent provisions shall be deemed to have superseded earlier
provisions.
2. Tenn of Contract
A. The term of this Contract shall be one (1) year commencing on the last date of
approval by DIR and Vendor. Prior to expiration of the original term, DIR and Vendor
may extend the Contract, upon mutual agreement, for up to three (3) optional one-
year terms.
Page 1 of 11
DIR Contract No. DIR-SDD-611
Sprint Reference: #BSG0704-0686R3
E. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling
fees. Shipments will be Free On Board Customer's destination. No additional fees
shall be charged to the Customer for standard shipping and handling. If the
Customer requests expedited delivery, Customer will be responsible for any charges
for expedited delivery.
F. Tax-Exem pt
As per Section 151.309, Texas Tax Code, Customers under this Contract are
exempt from the assessment of State sales, use and excise taxes. Further,
Customers under this Contract are exempt from Federal Excise Taxes, 26 United
States Code Sections 4253(1) and 0).
G. Travel Expense Reimbursement
Pricing for services provided under this Contract are exclusive of any travel
expenses that may be incurred in the performance of those services. Travel
expense reimbursement may include personal vehicle mileage or commercial coach
transportation, hotel accommodations, parking and meals; provided, however, the
amount of reimbursement by Customers shall not exceed the amounts authorized by
the current State Travel Regulations. Travel time may not be included as part of the
amounts payable by Customer for any services rendered under this Contract. The
DIR administrative fee specified in Section 5 below is not applicable to travel
expense reimbursement. Anticipated travel expenses must be pre -approved in
writing by Customer.
H. Changes to Prices
Vendor may change the price of any product or service at any time, based upon
changes to the MSRP, but discount levels shall remain consistent with the discount
levels specified in this Contract. MSRP decreases shall take effect automatically
during the term of this Contract and shall be passed onto the Customer immediately.
I. Telecommunications Fees
1) The only applicable FCC authorized fee, surcharge or assessment in effect as of
the date of this Contract are the following:
a. Federal Universal Service Fund charge. Pursuant to the FCC, and
pertaining only to Sprint PCS Cellular Voice Service, this charge has
been modified in the following manner: (a) Non -LD surcharge and (b) LD
surcharge. The Federal Universal Service Fund charge is not modified
for Nextel iD EN Cellular Voice Services.
b. Federal E911 charge.
These fees may appear on billings to Customers. No other FCC or PUC authorized
fee, cost recovery fee, surcharge or assessment applicable to wireless voice and/or
data telecommunications services may be imposed during the term of this Contract,
Page 3 of 11
7.
8.
300 W. 15th St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-4700
Facsimile: (512) 475-4759
Email: sherri.parks(cD-dir.state.tx.us
Software License Agreements
A. Software License Agreement
DIR Contract No. DIR-SDD-611
Sprint Reference: #BSG0704-0686R3
Reston, Virginia 20191
Phone: (703) 433-8581
Facsimile: (703) 433-8798
Email: M ichaela.c lai rm onte(cD sprint. com
1) Customers acquiring software licenses under the Contract shall hold, use and
operate such software subject to compliance with the Standard Agreement and
Software Licensing Terms set forth in Appendix C of this Contract. No changes to
the Standard Agreement and Software Licensing Terms may be made unless
previously agreed to between Vendor and DIR. Customers may not add, delete or
alter any of the language in Appendix C. Vendor shall make the Software Licensing
Agreement Terms available to all Customers at all times.
2) Compliance with the Standard Agreement and Software Licensing Terms is the
responsibility of the Customer. DIR shall not be responsible for any Customer's
compliance with the Standard Agreement and Software Licensing Terms. If DIR
purchases software licenses for its own use under this Contract, it shall be
responsible for its compliance with the Standard Agreement and Software Licensing
Terms.
B. Shrink/Click-wrap License Agreement
Regardless of any other provision or other license terms which may be issued by
Vendor after the effective date of this Contract, and irrespective of whether any such
provisions have been proposed prior to or after the issuance of a Purchase Order for
products licensed under this Contract, or the fact that such other agreement may be
affixed to or accompany software upon delivery (shrink-wrap), the terms and
conditions set forth in this Contract shall supersede and govern the license terms
between Customers and Vendor.
Authorized Exceptions to Appendix A, Standard Terms and Conditions for
Product and Related Services Contracts.
1. All references to Catalog Information System Vendors (CISV) in Appendix A are
hereby deleted.
2. All references to "leasing of products" in Appendix A are hereby deleted.
3. All references to "order fulfillers" in Appendix A are meant to refer to the Vendor only
and no other third parties.
4. Appendix A, Section 3, Paragraph G is restated in its entirety as follows:
A. CPA — refers to the Texas Comptroller of Public Accounts
Page 5 of 11
DIR Contract No. DIR-SDD-611
Sprint Reference: #BSG0704-068683
necessary to enforce its rights under this section, including but not limited to,
compliance checks of Vendor's applicable Contract books at DIR's expense. This
provision is subject to the audit requirements of paragraph 8.C.3. below.
10. Appendix A, Section 8, Paragraph 8.2. is restated in its entirety as follows:
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract
for the previous month period. Reports shall be submitted to the DIR Go DIRect
Coordinator. Reports are due on the fifteenth (15th) calendar day after the close of
the previous month period. If the fifteenth (15th) calendar day falls on a non-
business day, the report shall be due on the next business day. It is the responsibility
of Vendor to collect and compile all sales under the Contract from participating Order
Fulfillers and submit one (1) monthly report. The monthly report shall include, per
transaction: the detailed sales for the period, the Order Fulfiller's company name, if
applicable, Customer name, invoice date, invoice number, description, part number,
manufacturer, quantity, unit price, extended price, Customer Purchase Order
number, contact name, Customer's complete billing address, and other information
as required by DIR. Each report must contain all information listed above per
transaction or the report will be rejected and returned to the Vendor for correction in
accordance with this section.
If Sprint submits six (6) consecutive monthly reports or administrative fee payments
late, DIR reserves the right to suspend or terminate this Contract for cause per
Section 10.B.4.a. of Appendix A, Termination for Cause. If Sprint is late with its
monthly report or administrative fee payment, Sprint will pay DIR one hundred dollars
($100) per day ("Late Payment"), for each day the monthly report or the
administrative fee is late, up to ten (10) days ("Grace Period") per month for a
maximum monthly Late Payment amount of $1000. Beyond this 10 day Grace
Period, DIR does not waive any other contractual remedy pursuant to this Contract.
The requirements for Late Reporting and Late Payment shall be in existence only for
the initial term of the Contract.
11. Appendix A, Section 8, Paragraph B.4.a. is restated in its entirety as follows:
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of
negotiating, executing, and administering the Contract. The administrative fee is
specified in Section 5 of the Contract. Payment of the administrative fee shall be due
on the seventeenth (17th) calendar day after the close of the previous month period.
If the seventeenth (17th) calendar day falls on a non -business day, the administrative
fee shall be due on the next business day.
12. Appendix A, Section 8, Paragraph B.5.a. is restated in its entirety as follows:
a) The reports and administrative fees shall be accurate and timely and submitted in
accordance with the due dates specified in this section. Vendor shall correct any
Page 7 of 11
DIR Contract No. DIR-SDD-611
Sprint Reference: #BSG0704-068683
Sprint's standard Non -disclosure agreement prior to examining, inspecting, copying
or auditing records.
14. Appendix A, Section 9., Paragraph A.I. is restated in its entirety as follows:
1) Acts or Omissions
Sprint will indemnify and defend the State of Texas, Customer, its directors, officers,
employees, agents, and their successors against all third party claims for damages,
losses, liabilities, or expenses including reasonable attorney's fees, arising directly
from performance of this Agreement and relating to personal injury, death, or
damage to tangible personal property that is alleged to have resulted, in whole or in
part, from the negligence or willful misconduct of Sprint or its subcontractors,
directors, officers, employees or authorized agents. Vendor agrees to coordinate
defense with the Texas Office of Attorney General, as requested by DIR .
15. Appendix A, Section 9., Paragraph H. is restated in its entirety as follows:
H. Security of Premises, Equipment, Data and Personnel
Vendor and/or Order Fulfiller may, from time to time during the performance of the
Contract, have access to the personnel, premises, equipment, and other property,
including data, files and /or materials (collectively referred to as "Data") belonging to
the Customer. Vendor and/or Order Fulfiller shall use their commercially reasonable
efforts to preserve the safety, security, and the integrity of the personnel, premises,
equipment, Data and other property of the Customer, in accordance with the
instruction of the Customer. Vendor and/or Order Fulfiller shall be responsible for
damage to Customer's equipment, workplace, and its contents when such damage is
caused by its employees or subcontractors.
16. Appendix A, Section 9, Paragraph J. is restated in its entirety as follows:
J. Limitation of Liability
For any claim or cause of action arising under or related to the Contract: i) none of
the parties shall be liable to the other for punitive, special, or consequential
damages, even if it is advised of the possibility of such damages; and ii) Vendor's
liability for damages of any kind to the Customer shall be limited to the total amount
paid to Vendor under the Contract during the twelve months immediately preceding
the accrual of the claim or cause of action.
a) Service Disruption. Sprint's sole liability arising from or related to Service
disruption, regardless of the cause, is limited to a credit allowance equal to the
proportionate charge to Customer for the period of the Service disruption. Service
disruptions do not include unavailability of the Service during periods of scheduled or
unscheduled network maintenance.
b) Unauthorized Access/Hacking. Sprint is not liable for unauthorized third party
access to, or alteration, theft, or destruction of, Customer's data, programs or other
information while such information is stored on or transmitted through the Sprint
Networks, whether by accident, wrongful means or any other cause not exclusively
within Sprint's control.
c) Transmission Over Sprint Network. Sprint is not liable for any third party
content accessed through Sprint Wireless Products and Services, including but not
Page 9 of 11
DIR Contract No. DIR-SDD-611
Sprint Reference: #BSG0704-0686R3
This Contract is executed to be effective as of the date of last signature.
Sprint Solutions, Inc. (Sprint) The State of Texas, acting by and through
The Department of Information Resources
Authorized By: Signature on File Authorized By: Signature on File
Name: H. Leon Frazier Name: Cindy Reed
Title: Senior Vice President Title: Deputy Executive Director
Operations & Statewide Technology
Sourcing
Date: 11/19/07 Date: 11/16107
Sprint—Approved
as to Legal Forth
HRF — 19 Oct 2007
Legal: Signature on File
Page 11 of 11
Resolution No. 2010—RO574
DIR Contract No. DIR-SDD-611
Amendment No. 1
Sprint Reference: #BSG0802-0220
Amendment No. 1
to
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR WIRELESS VOICE & DATA SERVICES AND EQUIPMENT
Sprint Solutions, Inc. (Sprint)
This Amendment Number 1 to Contract Number DIR-SDD-611 ("Contract') is between the
Department of Information Resources ("DIR") and Sprint Solutions, Inc. (Sprint) (hereinafter
"Vendor"). DIR and Vendor agree to modify the terms and conditions of the Contract as follows:
1. Contract, Section 4 Paragraph 1.1. Telecommunication Fees is hereby restated in its
entirety as follows:
1) The only applicable FCC authorized fee, surcharge or assessment in effect as of the
date of this Contract are the following:
a. Federal Universal Service Fund charge. Pursuant to the FCC, and pertaining only
to Sprint PCS Cellular Voice Service, this charge has been modified in the
following manner: (a) Non -LD surcharge and (b) LD surcharge. The Federal
Universal Service Fund charge is not modified for Nextel iDEN Cellular Voice
Services.
b. Federal E911 charge.
These fees may appear on billings to Customers. No other FCC or PUC authorized fee,
cost recovery fee, surcharge or assessment applicable to wireless voice and/or data
telecommunications services may be imposed during the term of this Contract, without the
prior amendment to authorize such imposition under the Contract. Vendor acknowledges
that certain Customers, that are political subdivisions, are exempt from the imposition and
collection of certain Texas telecommunications fees, including the Texas Universal Service
Fund Charge and Texas Infrastructure Fund assessment. In addition, state agency -
Customers have additional exemptions from Texas fees, including the 9-1-1 emergency
service fee, 9-1-1 equalization surcharge, poison control surcharge, and late charges
imposed under Section 55.010, Utilities Code. Local agency -Customers are not exempt
from the Texas 911 emergency service fee and surcharge. Vendor agrees to not bill for any
items which are not mandated by the FCC or PUC and which are otherwise not applicable to
wireless voice and/or data telecommunications services. Vendor also agrees to not bill for
items for which a Customer has an exemption. Vendor agrees to promptly correct any
incorrect billings that occur.
2. Appendix A, Section 8, Paragraph B.4.a. DIR Administrative Fee is restated in its
entirety as follows:
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of
negotiating, executing, and administering the Contract. The administrative fee is specified in
Page 1 of 2
Amendment Number 2
to
Contract Number DIR-SDD-611
between
State of Texas, acting by and through the Department of Information Resources
and
Sprint Solutions, Inc. (Sprint)
This Amendment Number 2 to Contract Number DIR-SDD-611 ("Contract") is between
the Department of Information Resources (DIR) and Sprint Solutions, Inc. ("Sprint"). DIR
and Sprint agree to modify the terms and conditions of the Contract as follows:
1. Contract, Section 2, Term of Contract, is hereby amended as follows:
DIR and Sprint hereby agree to extend the term of the Contract for one (1) year
through November 19, 2009. Prior to expiration of the term, DIR and Vendor may
extend the Contract, upon mutual agreement, for up to two (2) optional one-year
terms.
2. Contract, Section 17, is hereby amended to refer to Appendix A, Section 9,
Paragraph I.
I. Background and/or Criminal History Investigation.
3. Appendix A, Section 4, General Provisions, A. Entire Agreement, is hereby
restated in its entirety as follows:
A. Entire Agreement
The Contract, Appendices, and Exhibits constitute the entire agreement between
DIR and the Vendor. No statement, promise, condition, understanding,
inducement or representation, oral or written, expressed or implied, which is not
contained in the Contract, Appendices, or its Exhibits shall be binding or valid.
4. Appendix A, Section 8, Contract Administration, B. Reporting and
Administrative Fees, 2) Detailed Monthly Report is hereby restated in its
entirety as follows:
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract for the
previous month period. Reports shall be submitted to the DIR Go DlRect E -Mail
Box at GoDirect.Sales(cDdir.state.tx.us. Reports are due on the fifteenth (15th)
calendar day after the close of the previous month period. If the fifteenth (15th) calendar
day falls on a non -business day, the report shall be due on the next business day. It is
the responsibility of Vendor to collect and compile all sales under the Contract from
participating Order Fulfillers and submit one (1) monthly report. The monthly report shall
include, per transaction: the detailed sales for the period, the Order Fulfillers company
Amendment Number 2
DIR-SDD-611 I of 8
AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF
ANY SUCH CLAIM. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF
DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE
COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR
TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL
COUNSEL FOR NON -STATE AGENCY CUSTOMERS.
b) If Vendor becomes aware of an actual or potential claim, or Customer
provides Vendor with notice of an actual or potential claim, Vendor may (or in
the case of an injunction against Customer, shall), at Vendor's sole option and
expense: (i) procure for the Customer the right to continue to use the affected
portion of the product or service, or (ii) modify or replace the affected portion of
the product or service with functionally equivalent or superior product or
service so that Customer's use is non -infringing.
c) Vendor shall have no liability if the alleged infringement is caused in whole
or part by: (i) use of the product or service in combination with product or
services not provided under the Contract, (ii) use of the product or service for
a purpose or in a manner for which the product or service was not designed,
(iii) any modification made to the product without Vendor's written approval,
(iv) any modifications made to the product by the Vendor pursuant to
Customer's specific instructions, (v) any intellectual property right owned by or
licensed to Customer, or (vi) any use of the product or service by Customer
that is not in conformity with the terms of any applicable license agreement.
3) Independent Contractor
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, IT IS FURNISHING SERVICES IN THE
CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS
NOT AN EMPLOYEE OF THE CUSTOMER, DIR OR THE STATE OF
TEXAS.
6. Appendix A, Section 9, Vendor Responsibilities B. Vendor Certifications, is
hereby restated in its entirety as follows:
B. TaxesMorker's Compensation/UNEMPLOYMENT INSURANCE
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY
RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND
VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF
THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY
WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH
PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE,
AND WORKERS' COMPENSATION. VENDOR AGREES AND
Amendment Number 2
DIR-SDD-611 3 Of 8
determined adversely to them will have a material adverse effect on the ability to
fulfill their obligations under the Contract, (vii) are not suspended or debarred from
doing business with the federal government as listed in the Excluded Parties List
System (EPLS) maintained by the General Services Administration, and (viii) as
of the effective date of the Contract, are not listed in the prohibited vendors list
authorized by Executive Order #13224, Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism'; published by the United States Department of the Treasury, Office of
Foreign Assets Control; and (ix) under Section 2155.006, Government Code,
Vendor certifies that the individual or business entity in this contract is not
ineligible to receive the specified contract and acknowledges that this contract
may be terminated and payment withheld if this certification is inaccurate. In
addition, Vendor acknowledges the applicability of §2155.444 and §2155.4441,
Texas Government Code, in fulfilling the terms of the Contract.
8. Appendix A, Section 9, Vendor Responsibilities C. Ability to Conduct
Business in Texas, is hereby renumbered as follows:
D. Ability to Conduct Business in Texas
Vendor shall be an entity authorized and validly existing under the laws of its state
or organization, and shall be authorized to do business in the State of Texas.
9. Appendix A, Section 9, Vendor Responsibilities D. Equal Opportunity
Compliance, is hereby renumbered as follows:
E. Equal Opportunity Compliance
10. Appendix A, Section 9, Vendor Responsibilities E. Use of Subcontractors, is
hereby renumbered as follows:
F. Use of Subcontractors
11.Appendix A, Section 9, Vendor Responsibilities F. Responsibility for
Actions, is hereby renumbered as follows:
G. Responsibility for Actions
12. Appendix A, Section 9, Vendor Responsibilities G. Confidentiality, is hereby
renumbered as follows:
H. Confidentiality
13.Appendix A, Section 9, Vendor Responsibilities H. Security of Premises,
Equipment, Data and Personnel, is hereby renumbered as follows:
I. Security of Premises, Equipment, Data and Personnel
Amendment Number 2
DIR-SDD-611 5 of 8
a) Blanket contractual liability coverage for liability assumed under the
Contract;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer listed as an additional insured;
d) 30 -day Notice of Termination in favor of DIR and/or Customer; and
e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
2) Workers' Compensation Insurance
Workers' Compensation Insurance and Employers' Liability coverage must
include limits consistent with statutory benefits outlined in the Texas Workers'
Compensation Act (Art. 8308-1.01 et seq. Tex. Rev. Civ. Stat) and minimum
policy limits for Employers' Liability of $250,000 bodily injury per accident,
$500,000 bodily injury disease policy limit and $250,000 per disease per
employee.
3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non -owned and
hired vehicles with a minimum combined single limit of $500,000 per
occurrence for bodily injury and property damage. Alternative acceptable limits
are $250,000 bodily injury per person, $500,000 bodily injury per occurrence
and at least $100,000 property damage liability per accident. The policy shall
contain the following endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation;
b) 30 -day Notice of Termination; and
c) Additional Insured.
19.Appendix A, Section 10, Contract Enforcement, B.2) Absolute Right is
hereby restated in its entirety as follows:
2) Absolute Right
DIR shall have the absolute right to terminate the Contract without recourse in
the event that: i) Vendor becomes listed on the prohibited vendors list
authorized by Executive Order #13224, "Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism". published by the United States Department of the Treasury, Office
of Foreign Assets Control; ii) Vendor becomes suspended or debarred from
doing business with the federal government as listed in the Excluded Parties
List System (EPLS) maintained by the General Services Administration; or (iii)
Vendor is found by DIR to be ineligible to hold this Contract under Subsection
(b) of Section 2155.006, Texas Government Code. Vendor shall be provided
written notice in accordance with Section 11.A, Notices, of intent to terminate.
20.All other terms and conditions of the Contract as amended, not specifically
modified herein, shall remain in full force and effect. In the event of conflict
among the provisions, the order of precedence shall be Amendment No. 2, then
Amendment Number 1 and then the Contract.
Amendment Number 2
DIR-SDD-61 I 7 of 8
Resolution No. 2010-RO574
Amendment Number 3
to
Contract Number DIR-SDD-611
between
State of Texas, acting by and through the Department of Information Resources
and
Sprint Solutions, Inc. (Sprint)
This Amendment Number 3 to Contract Number DIR-SDD-611 ("Contract") is between
the Department of Information Resources (DIR) and Sprint Solutions, Inc. ("Sprint"). DIR
and Sprint agree to modify the terms and conditions of the Contract as follows:
Contract, Section 2.A. Term of Contract, is hereby amended as follows:
A. DIR and Vendor hereby agree to extend the term of the Contract for one (1)
year through November 19, 2010. Prior to expiration of the term, DIR and
Vendor may extend the Contract, upon mutual agreement, for up to one (1)
optional one-year term.
2. Contract, Section 4.G. Travel Expenses Reimbursement, is hereby amended as
follows:
G. Travel Expense Reimbursement
Pricing for services provided under this Contract are exclusive of any travel
expenses that may be incurred in the performance of those services. Travel
expense reimbursement may include personal vehicle mileage or commercial
coach transportation, hotel accommodations, parking and meals; provided,
however, the amount of reimbursement by Customers shall not exceed the
amounts authorized for state employees as adopted by each Customer; and
provided, further, that all reimbursement rates shall not exceed the maximum
rates established for state employees under the current State Travel
Management Program. Travel time may not be included as part of the
amounts payable by Customer for any services rendered under this Contract.
The DIR administrative fee specified in Section 5 below is not applicable to
travel expense reimbursement. Anticipated travel expenses must be pre -
approved in writing by Customer.
3. Appendix A, Section 4, General Provisions, G. Limitation of Authority, is hereby added
to the Contract as follows:
G. Limitation of Authority
Vendor shall have no authority to act for or on behalf of the Texas Department of
Information Resources or the State of Texas except as expressly provided for in this
Contract; no other authority, power or use is granted or implied. Contractor may not incur
Amendment Number 3
DIR-SDD-611 1 of 4
and other remedies available to DIR and Customer under the contract and applicable
law.
6. Appendix A, Section 9, Vendor Responsibilities, P. Immigration, is hereby added to the
Contract as follows:
P. Immigration
Vendor shall comply with the requirements of the Immigration Reform and Control Act of
1986 and the Immigration Act of 1990 (8 U.S.C.1101, et seq.) regarding employment
verification and retention of verification forms for any individual(s) hired on or after
November 6, 1986, who will perform any labor or services under this Contract.
7. Appendix A, Section 10, Contract Enforcement, B. Termination, 5) Customer Rights
Under Termination, is hereby updated and restated in its entirety as follows:
5) Customer Rights Under Termination
In the event the Contract expires or is terminated for any reason, a Customer shall retain
its rights under the Contract and the Purchase Order issued prior to the termination or
expiration of the Contract. The Purchase Order survives the expiration or termination of
the Contract for its then effective term.
8. Appendix A, Section 10, Contract Enforcement, B. Termination, 6) Vendor or Order
Fulfiller Rights Under Termination, is hereby updated and restated in its entirety as
follows:
6) Vendor or Order Fulfiller Rights Under Termination
In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all
amounts due for products or services ordered prior to the effective termination date and
ultimately accepted, and 2) any applicable early termination fees agreed to in such
Purchase Order.
9. All other terms and conditions of the Contract as amended, not specifically modified herein,
shall remain in full force and effect. In the event of conflict among the provisions, the order of
precedence shall be Amendment No. 3, then Amendment No. 2, then Amendment No. 1 and
finally the Contract DIR-SDD-611.
Amendment Number 3
DIR-SDD-611 3 of 4
Resolution No. 2010-R0574
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
Table of Contents
1. Contract Scope....................................................................................................................... 1
2. No Quantity Guarantees......................................................................................................... 1
3.
Definitions..............................................................................................................................1
4.
General Provisions................................................................................................................. 1
A.
Entire Agreement.......................................................................................................... 1
B.
Modification of Contract Terms and/or Amendments .................................................. 1
C.
Invalid Term or Condition............................................................................................ 2
D.
Assignment................................................................................................................... 2
E.
Survival.........................................................................................................................2
F.
Choice of Law............................................................................................................... 2
5.
Product Terms and Conditions.............................................................................................. 3
A.
Electronic and Information Resources Accessibility Standards, As Required
by 1 TAC Chapter 213 (Applicable to State Agency and Institution of
Higher Education Purchases Only) ..............................•••• 3
B.
Purchase of Commodity Items (Applicable to State Agency Purchases
Only)............................................................................................................................. 3
6.
Contract Fulfillment and Promotion...................................................................................... 3
A.
Service, Sales and Support of the Contract................................................................... 4
B.
Use of Order Fulfillers.................................................................................................. 4
1) Designation of Order Fulfillers............................................................................... 4
2) Changes in Order Fulfiller List............................................................................... 4
3) Order Fulfiller Pricing to Customer........................................................................ 4
C.
Product Warranty and Return Policies.......................................................................... 5
D.
Customer Site Preparation............................................................................................ 5
E.
Internet Access to Contract and Pricing Information................................................... 5
1) Vendor Website...................................................................................................... 5
2) Accurate and Timely Contract Information............................................................ 5
3) Website Compliance Checks.................................................................................. 5
4) Website Changes..................................................................................................... 5
5) Use of Access Data Prohibited............................................................................... 6
6) Responsibility for Content...................................................................................... 6
F.
DIR Logo...................................................................................................................... 6
G.
Vendor and Order Fulfiller Logo.................................................................................. 6
H.
Trade Show Participation.............................................................................................. 6
I.
Orientation Meeting...................................................................................................... 6
J.
Performance Review Meetings..................................................................................... 7
K.
DIR Cost Avoidance..................................................................................................... 7
7.
Purchase Orders, Invoices, and Payments............................................................................. 7
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i
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
A. Notices........................................................................................................................ 16
B. Handling of Written Complaints................................................................................. 16
12. Captions............................................................................................................................... 16
10/10/07 iii
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
Customers under the Contract. The Contract may only be modified or amended upon
mutual written agreement of DIR and Vendor.
2) Customers shall not have the authority to modify the terms of the Contract;
however, additional Customer terms and conditions that do not conflict with the
Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and
given effect. No additional term or condition added in a Purchase Order issued by a
Customer can weaken a term or condition of the Contract. Pre-printed terms and
conditions on any Purchase Order issued by Customer hereunder will have no force
and effect. In the event of a conflict between a Customer's Purchase Order and the
Contract, the Contract term shall control.
C. Invalid Term or Condition
1) To the extent any term or condition in the Contract conflicts with the applicable
Texas and/or United States law or regulation, such Contract term or condition is void
and unenforceable. By executing a contract which contains the conflicting term or
condition, DIR makes no representations or warranties regarding the enforceability of
such term or condition and DIR does not waive the applicable Texas and/or United
States law or regulation which conflicts with the Contract term or condition.
2) If one or more term or condition in the Contract, or the application of any term or
condition to any party or circumstance, is held invalid, unenforceable, or illegal in
any respect by a final judgment or order of the State Office of Administrative
Hearings or a court of competent jurisdiction, the remainder of the Contract and the
application of the term or condition to other parties or circumstances shall remain
valid and in full force and effect.
D. Assignment
DIR or Vendor may assign the Contract without prior written approval to: i) a successor
in interest (for DIR, another state agency as designated by the Texas Legislature), or ii) a
subsidiary, parent company or affiliate, or iii) as necessary to satisfy a regulatory
requirement imposed upon a party by a governing body with the appropriate authority.
Assignment of the Contract under the above terms shall require written notification by
the assigning party. Any other assignment by a party shall require the written consent of
the other party. Each party agrees to cooperate to amend the Contract as necessary to
maintain an accurate record of the contracting parties.
E. Survival
All applicable software license agreements, warranties or service agreements that were
entered into between Vendor and a Customer under the terms and conditions of the
Contract shall survive the expiration or termination of the Contract. All Purchase Orders
issued and accepted by Order Fulfiller shall survive expiration or termination of the
Contract.
F. Choice of Law
The laws of the State of Texas shall govern the construction and interpretation of the
Contract. Nothing in the Contract or its Appendices shall be construed to waive the
State's sovereign immunity.
10/10/07 Page 2 of 17
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
A. Service, Sales and Support of the Contract
Vendor shall provide service, sales and support resources to serve all Customers
throughout the State. It is the responsibility of the Vendor to sell, market, and promote
products and services available under the Contract. Vendor shall use its best efforts to
ensure that potential Customers are made aware of the existence of the Contract. All sales
to Customers for products and services available under the Contract shall be processed
through the Contract.
B. Use of Order Fulfillers
DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide service,
sales and support resources to Customers. Such participation is subject to the following
conditions:
1) Designation of Order Fulfillers
a) Vendor may designate Order Fulfillers to act as the distributors for products
and services available under the Contract. In designating Order Fulfillers, Vendor
must be in compliance with the State's Policy on Utilization of Historically
Underutilized Businesses. In addition to the required Subcontracting Plan, Vendor
shall provide DIR with the following Order Fulfiller information: Order Fulfiller
name, Order Fulfiller business address, Order Fulfiller CPA Identification
Number, Order Fulfiller contact person email address and phone number.
b) DIR reserves the right to require the Vendor to rescind any such Order
Fulfiller participation or request that Vendor name additional Order Fulfillers
should DIR determine it is in the best interest of the State.
c) Vendor shall be fully liable for its Order Fulfillers' performance under and
compliance with the terms and conditions of the Contract. Vendor shall enter into
contracts with Order Fulfillers and use terms and conditions that are consistent
with the terms and conditions of the Contract.
d) Vendor shall have the right to qualify Order Fulfillers and their participation
under the Contract provided that: i) any criteria is uniformly applied to all
potential Order Fulfillers based upon Vendor's established, neutrally applied
criteria, ii) the criteria is not based on a particular procurement, and iii) all
Customers are supported under the different criteria.
e) Vendor shall not prohibit Order Fulfiller from participating in other
procurement opportunities offered through DIR.
2) Changes in Order Fulfiller List
Vendor may add or delete Order Fulfillers throughout the term of the Contract upon
written authorization by DIR. Prior to adding or deleting Order Fulfillers, Vendor
must make a good faith effort in the revision of its Subcontracting Plan in accordance
with the State's Policy on Utilization of Historically Underutilized Businesses.
Vendor shall provide DIR with its updated Subcontracting Plan and the Order
Fulfiller information listed in Section 6.B.l.a above.
3) Order Fulfiller Pricing to Customer
Order Fulfiller pricing to the Customer shall comply with the Customer price as
10/10/07 Page 4 of 17
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
access the site and/or maintain the link.
5) Use of Access Data Prohibited
If Vendor stores, collects or maintains data electronically as a condition of accessing
Contract information, such data shall only be used internally by Vendor for the
purpose of implementing or marketing the Contract, and shall not be disseminated to
third parties or used for other marketing purposes. The Contract constitutes a public
document under the laws of the State and Vendor shall not restrict access to Contract
terms and conditions including pricing, i.e., through use of restrictive technology or
passwords.
6) Responsibility for Content
Vendor is solely responsible for administration, content, intellectual property rights,
and all materials at Vendor's website. DIR reserves the right to require a change of
listed content if, in the opinion of DIR, it does not adequately represent the Contract.
F. DIR Logo
Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with
the following stipulations: (i) the logo may not be modified in any way, (ii) when
displayed, the size of the DIR logo must be equal to or smaller than the Order Fulfiller
logo, (iii) the DIR logo is only used to communicate the availability of products and
services under the Contract to Customers, and (iv) any other use of the DIR logo requires
prior written permission from DIR.
G. Vendor and Order Fulfiller Logo
DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of the
Contract to communicate the availability of products and services under the Contract to
Customers. Use of the logos may be on the DIR website or on printed materials. Any
use of Vendor's and Order Fulfiller's logo by DIR must comply with and be solely
related to the purposes of the Contract and any usage guidelines communicated to DIR
from time to time. Nothing contained in the Contract will give DIR any right, title, or
interest in or to Vendor's or Order Fulfiller' trademarks or the goodwill associated
therewith, except for the limited usage rights expressly provided by Vendor and Order
Fulfiller.
H. Trade Show Participation
At DIR's discretion, Vendor and Order Fulfillers may be required to participate in one or
more DIR sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor's and Order Fulfiller's expense, includes providing a manned
booth display or similar presence. DIR will provide four months advance notice of any
required participation. Vendor and Order Fulfillers must display the DIR logo at all trade
shows that potential Customers will attend. DIR reserves the right to approve or
disapprove of the location or the use of the DIR logo in or on the Vendor's or Order
Fulfiller's booth.
I. Orientation Meeting
Upon thirty (30) calendar days from execution of the Contract, Vendor and Order
Fulfillers will be required to attend an orientation meeting to discuss the content and
10/10/07 Page 6 of 17
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
designated for the Contract.
1) State Contract Administrator
DIR shall provide a Contract Administrator whose duties shall include but not be
limited to: i) supporting the marketing and management of the Contract, ii) advising
DIR of Vendor's performance under the terms and conditions of the Contract, and iii)
periodic verification of product pricing and monthly reports submitted by Vendor.
2) Vendor Contract Administrator
Vendor shall provide a dedicated Contract Administrator whose duties shall include
but not be limited to: i) supporting the marketing and management of the Contract, ii)
facilitating dispute resolution between a Order Fulfiller and a Customer, and iii)
advising DIR of Order Fulfillers performance under the terms and conditions of the
Contract. DIR reserves the right to require a change in Vendor's then -current
Contract Administrator if the assigned Contract Administrator is not, in the opinion of
DIR, adequately serving the needs of the State.
B. Reporting and Administrative Fees
1) Reporting Responsibility
a) Vendor shall be responsible for reporting all products and services purchased
through Order Fulfillers under the Contract. Vendor shall file the monthly reports,
subcontract reports, and pay the administrative fees in accordance with the due
dates specified in this section.
b) DIR shall have the right to verify required reports and to take any actions
necessary to enforce its rights under this section, including but not limited to,
compliance checks of Vendor's applicable Contract books at DIR's expense.
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract
for the previous month period. Reports shall be submitted to the DIR Go DIRect
Coordinator. Reports are due on the fifteenth (15`h) calendar day after the close of the
previous month period. It is the responsibility of Vendor to collect and compile all
sales under the Contract from participating Order Fulfillers and submit one (1)
monthly report. The monthly report shall include, per transaction: the detailed sales
for the period, the Order Fulfiller's company name, if applicable, Customer name,
invoice date, invoice number, description, part number, manufacturer, quantity, unit
price, extended price, Customer Purchase Order number, contact name, Customer's
complete billing address, and other information as required by DIR. Each report must
contain all information listed above per transaction or the report will be rejected and
returned to the Vendor for correction in accordance with this section.
3) Historically Underutilized Businesses Subcontract Reports
a) Vendor shall electronically provide each Customer with their relevant
Historically Underutilized Business Subcontracting Report, pursuant to the
Contract, as required by Chapter 2161, Texas Government Code. Reports shall
also be submitted to DIR.
b) Reports shall be due in accordance with the CPA rules.
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administrative fee owed DIR under the Contract, Historically Underutilized
Businesses Subcontracting reports, and such other documentation as DIR may
request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic
records, books, documents, accounting procedures, practices and any other items
relevant to the performance of the Contract to DIR, including the compliance checks
designated by DIR, the State Auditor's Office and of the United States, and such
other persons or entities designated by DIR for the purposes of inspecting,
Compliance Checking and/or copying such books and records. Vendor and/or Order
Fulfillers shall provide copies and printouts requested by DIR without charge. DIR
shall provide Vendor and/or Order Fulfillers ten (10) business days' notice prior to
inspecting, Compliance Checking, and/or copying Vendor's and/or Order Fulfiller's
records. Vendor's and/or Order Fulfillers records, whether paper or electronic, shall
be made available during regular office hours. Vendor and/or Order Fulfiller
personnel familiar with the Vendor's and/or Order Fulfiller's books and records shall
be available to DIR staff and designees as needed. Vendor and/or Order Fulfiller
shall provide adequate office space to DIR staff during the performance of
Compliance Check.
4) For procuring State Agencies whose payments are processed by the Texas
Comptroller of Public Accounts, the volume of payments made to Order Fulfillers
through the Texas Comptroller of Public Accounts and the administrative fee based
thereon shall be presumed correct unless Vendor can demonstrate to DIR's
satisfaction that Vendor's calculation of DIR's administrative fee is correct.
D. Contract Administration Notification
1) Upon execution of the Contract, Vendor shall provide DIR with written
notification of the following: i) Vendor Contract Administrator name and contact
information, ii) Vendor sales representative name and contact information, and iii)
name and contact information of Vendor personnel responsible for submitting reports
and payment of administrative fees specified herein.
2) Upon execution of the Contract, DIR shall provide Vendor with written
notification of the following: i) DIR Contract Administrator name and contact
information, and ii) DIR Go DIRect Coordinator name and contact information.
9. Vendor Responsibilities
A. Indemnification
1) Acts or Omissions
Vendor shall defend, indemnify and hold harmless the State of Texas and Customers,
their officers, agents, and employees from and against all claims, actions, suits,
demands, proceeding, costs, damages and liabilities, including attorneys fees, arising
out of, or resulting from any acts or omissions of the Vendor or its agents, employees,
subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or
performance of the Contract and any Purchase Orders issued under the Contract.
Vendor agrees to coordinate defense with the Texas Office of Attorney General, as
requested by DIR.
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terminated and payment withheld if this certification is inaccurate, (vi) to the best of their
knowledge and belief, there are no suits or proceedings pending or threatened against or
affecting them, which if determined adversely to them will have a material adverse effect
on the ability to fulfill their obligations under the Contract, (vii) are not suspended or
debarred from doing business with the federal government as listed in the Exchided
Parties List System (EPLS) maintained by the General Services Administration, and (viii)
as of the effective date of the Contract, are not listed in the prohibited vendors list
authorized by Executive Order #13224, "Blocking Property and Prohibiting Transactions
with Persons Who Commit, Threaten to Commit, or Support Terrorism ", published by
the United States Department of the Treasury, Office of Foreign Assets Control. In
addition, Vendor acknowledges the applicability of §2155.444 and §2155.4441, Texas
Government Code, in fulfilling the terms of the Contract.
C. Ability to Conduct Business in Texas
Order Fulfiller shall be an entity authorized and validly existing under the laws of its state
of organization, and shall be authorized to do business in the State of Texas. Equal
Opportunity Compliance
Vendor agrees to abide by all applicable laws, regulations, and executive orders
pertaining to equal employment opportunity, including federal laws and the laws of the
State in which its primary place of business is located. In accordance with such laws,
regulations, and executive orders, the Vendor agrees that no person in the United States
shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or
handicap, be excluded from employment with or participation in, be denied the benefits
of, or be otherwise subjected to discrimination under any program or activity performed
by Vendor under the Contract. If Vendor is found to be not in compliance with these
requirements during the term of the Contract, Vendor agrees to take appropriate steps to
correct these deficiencies. Upon request, Vendor will furnish information regarding its
nondiscriminatory hiring and promotion policies, as well as specific information on the
composition of its principals and staff, including the identification of minorities and
women in management or other positions with discretionary or decision-making
authority.
D. Use of Subcontractors
If Vendor uses any subcontractors in the performance of this Contract, Vendor must
make a good faith effort in the submission of its Subcontracting Plan in accordance with
the State's Policy on Utilization of Historically Underutilized Businesses. A revised
Subcontracting Plan shall be required before Vendor can engage additional
subcontractors in the performance of this Contract. Vendor shall remain solely
responsible for the performance of its obligations under the Contract.
E. Responsibility for Actions
Vendor is solely responsible for its actions and those of its agents, employees, or
subcontractors, and agrees that neither Vendor nor any of the foregoing has any authority
to act or speak on behalf of DIR or the State.
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certification, neither Vendor nor any Order Fulfiller, subcontractor, firm, corporation,
partnership, or institution represented by Vendor, nor anyone acting for such Order
Fulfiller, subcontractor, firm, corporation or institution has: (1) violated the antitrust laws
of the State of Texas under Texas Business & Commerce Code, Chapter 15, or the
federal antitrust laws; or (2) communicated its response to the Request for Offer directly
or indirectly to any competitor or any other person engaged in such line of business
during the procurement for the Contract.
10. Contract Enforcement
A. Enforcement of Contract and Dispute Resolution
1) Vendor and DIR agree to the following: (i) a party's failure to require strict
performance of any provision of the Contract shall not waive or diminish that party's
right thereafter to demand strict compliance with that or any other provision, (ii) for
disputes not resolved in the normal course of business, the dispute resolution process
provided for in Chapter 2260, Texas Government Code, shall be used, and (iii)
actions or proceedings arising from the Contract shall be heard in a state court of
competent jurisdiction in Travis County, Texas.
2) Disputes arising between a Customer and the Vendor shall be resolved in
accordance with the dispute resolution process of the Customer that is not
inconsistent with subparagraph A.1 above. DIR shall not be a party to any such
dispute unless DIR, Customer, and Vendor agree in writing.
B. Termination
1) Termination for Non -Appropriation
Customer may terminate Purchase Orders if funds sufficient to pay its obligations
under the Contract are not appropriated by the governing body on behalf of local
governments, or by the Texas legislature on behalf of state agencies. In the event of
non -appropriation, Vendor and/or Order Fulfiller will be provided ten (10) calendar
days written notice of intent to terminate. Notwithstanding the foregoing, if a
Customer issues a Purchase Order and has accepted delivery of the product or
services, they are obligated to pay for the product or services or they may return the
product and discontinue using services under any return provisions that Vendor
offers.
2) Absolute Right
DIR shall have the absolute right to terminate the Contract without recourse in the
event that: i) Vendor becomes listed on the prohibited vendors list authorized by
Executive Order #13224, "Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism ", published by the
United States Department of the Treasury, Office of Foreign Assets Control, or ii)
Vendor becomes suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List System (EPLS) maintained by the
General Services Administration. Vendor shall be provided written notice in
accordance with Section 1 LA, Notices, of intent to terminate.
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Customer that Order Fulfiller will not be able to deliver product or services in a timely
manner to meet the business needs of the Customer.
11. Notification
A. Notices
All notices, demands, designations, certificates, requests, offers, consents, approvals and
other instruments given pursuant to the Contract shall be in writing and shall be validly
given on: (i) the date of delivery if delivered by email, facsimile transmission, mailed by
registered or certified mail, or hand delivered, or (ii) three business days after being
mailed via United States Postal Service. All notices under the Contract shall be sent to a
party at the respective address indicated in Section 6 of the Contract or to such other
address as such party shall have notified the other party in writing.
B. Handling of Written Complaints
In addition to other remedies contained in the Contract, a person contracting with DIR
may direct their written complaints to the following office:
Public Information Office
Department of Information Resources
Attn: Public Information Officer
300 W. 15`h Street, Suite 1300
Austin, Texas 78701
(512) 475-4759, facsimile.
12. Captions
The captions contained in the Contract and its Appendices are intended for convenience
and reference purposes only and shall in no way be deemed to define or limit any
provision thereof.
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