permit cannabis retailers within City limits, but do not allow any in the downtown area. The Ordinance further established that wholesale cannabis businesses, such as testing, nurseries, microbusinesses, manufacturing, distribution, and cultivation (indoor) are permitted.
On December 4, 2018, under Resolution No. 2018-538, City Council imposed the Annual Commercial Cannabis Permit Fee for approved cannabis businesses to pay for on-going administration and monitoring of approved businesses in the amount of $21,740. The fee cost was analyzed by the City’s cannabis consultants HdL Companies. HdL interviewed the City Manager, individual staff from Code Enforcement, City Attorney, Police, Fire, and Finance.
Based on the interviews, the consultants experience in administering other commercial cannabis programs, and estimated staff time and costs, including equipment needs and training costs, HdL provided an estimate of $21,740 annually for the permit fee to carry out Resolution No. 2018-538.
On November 9, 2021, under Resolution No. 2021-441, City Council approved amending the Annual Commercial Cannabis Permit Fee to decrease the amount by $3,008 from $21,740 to $18,732 annually based on estimated staff time costs, and HdL Companies consulting services including annual financial audits, annual inspections, and subject matter expertise. This reduction is primarily due to fewer financial audits being required, as some businesses remained non-operational longer than initially anticipated. Also on November 9, 2021, by Resolution No. 2021-442, Council approved simplifying the application process for commercial cannabis businesses by retaining an optional pre-application screening fee of $1,250 and consolidating Phase 1 and Phase 2 deposit fees into a single non-refundable flat fee of $6,380.
On November 14, 2023, under Resolution No. 2023-504, the City Council approved amending the Annual Commercial Cannabis Permit Fee by establishing two types of commercial cannabis permit fees: an Operational Annual Commercial Cannabis Permit Fee and a Non-Operational Annual Commercial Cannabis Permit Fee. The Operational Annual Commercial Cannabis Permit Fee for Fiscal Year 2024 was kept at $18,732 for the on-going administration, annual inspections, financial audits, and monitoring of operational cannabis businesses. The NonOperational Annual Commercial Cannabis Permit Fee for Fiscal Year 2024 was established at $4,307 for Council approved businesses that are non-operational for the on-going administration and monitoring.
DISCUSSION:
ANNUAL CANNABIS PERMIT FEE:
Each year, City staff calculates the Commercial Cannabis Permit Fee based on estimated costs from the Community and Economic Development, City Attorney’s Office, City Manager’s Office, Police, and Finance departments. These estimates reflect staff time required to support the cannabis program. The fee also includes expenses for annual financial audits, compliance reviews, and general consulting services provided by HdL Companies and Avenu Insights, related to approved Cannabis businesses. Once the annual cost is determined, the fee is divided among the approved permitted businesses. Each year, any increases or decreases to the number of approved businesses is factored in, and the cost may adjust accordingly.
For Fiscal Year 2026, the permit fee is based on the approved eighteen (18) permits, consisting of nine (9) operational businesses and nine (9) non-operational businesses. Costs are distributed among all permitted businesses. It is important to note that the Annual Commercial #9..
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Finance Committee, April 21, 2025
Amending the Annual Commercial Cannabis Permit Fee and Application Fee and Adopting the Commercial Cannabis Business Modification Request Deposits
Cannabis Permit Fee pays for the costs associated with the ongoing administration of legally permitted cannabis businesses and it does not pay for enforcement activities associated with illegal cannabis businesses. The attached Annual Commercial Cannabis Permit Fee Cost Analysis provides a detailed breakdown of the City’s staff estimate.
For Fiscal Year 2025, the proposed Operational Annual Commercial Cannabis Permit Fee is $22,821 an increase in the amount of $4,089 for Council-approved operational cannabis businesses covering ongoing administration, annual inspections, financial audits, and monitoring. The proposed Non-Operational Annual Commercial Cannabis Permit Fee is $3,991 a decrease in the amount of $316 for Council-approved non-operational cannabis businesses covering ongoing administration and monitoring.
Several factors have contributed to the approximate 21% increase to the Operational Annual Commercial Cannabis Permit Fee, including a smaller number of operational businesses, resulting in fewer entities sharing the overall costs. Additionally, audit costs have risen by 64% and inspections fees have increased 61% since the last fee adjustment in 2021 due to greater complexity and time requirements exceeding initial estimates. In addition, staff salary cost has increased approximately 14% since the last fee adjustment, primarily due to cost-of-living increases and increases to overhead rates.
The permit fee will not be prorated, except for newly established approved businesses. In such cases, the fee may be prorated for the remaining months of the fiscal year once the permit is approved by Council, Cannabis Committee, or any other final cannabis permitting authority, including the Director of Finance. The City will not prorate permit fees for the period between the City’s approval of a business and when that business becomes operational. Any partial month shall be treated as a full month when calculating the Annual Commercial Cannabis Permit Fee.
The Annual Commercial Cannabis Permit Fee is due annually on August 1st and considered delinquent at the close of business hours on August 15th. In lieu of paying the Annual Commercial Cannabis Permit Fee at City Hall, the fee may be deposited in the United States mail, postage prepaid, on the due date, provided the transmitting envelope contains a postage cancellation stamp or post mark showing cancellation no later than 12:00 p.m. on the due date.
If the due date falls on a Saturday, Sunday, or Holiday, the due date shall be extended to the next regular business day on which City Hall is open to the public.
The Annual Commercial Cannabis Permit Fee will be reviewed and reconciled annually to capture any increases or decreases related to the administration of the compliance program.
The permit fee is designed as a cost recovery measure, not a revenue-generating fee. Any overpayment or underpayment will be reconciled annually and applied to future cannabis permit fees.
COMMERCIAL CANNABIS PERMIT APPLICATION DEPOSIT:
During Fiscal Year 2025, an analysis was completed evaluating the application process for cannabis businesses, comparing the actual costs incurred for the review of recent permit applications compared to the revenue generated by the reduced non-refundable fee. It was determined that due to recent efficiencies of the review process that reestablishing the application fee as a deposit, at the reduced levels, would maintain a net zero impact to the General Fund from cannabis program services while also providing applicants with much #9..
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Finance Committee, April 21, 2025
Amending the Annual Commercial Cannabis Permit Fee and Application Fee and Adopting the Commercial Cannabis Business Modification Request Deposits
needed capital relief through a refund of their deposit if actual City costs are less than applicant payments.
Along with the reestablishment of the cannabis permit application as a refundable deposit, the adoption of a business modification deposit for commercial cannabis businesses has also been noted as a need for the City. Business modification can take two forms through a change in ownership request or a change in location. Pursuant to section 10-3.704(d) of the Modesto Municipal Code, permits are not transferable to another individual or physical location without City approval. Current permitted businesses are required to submit a business modification request form for formal approval of either change. Each request carries a different level of administrative cost incurred by the City for review noted below.
Business Modification Type Review Components
Change in ownership Cannabis program administrative staff reviews documents including proof of filing with the Secretary of State, bylaws, operating agreements, partnership agreements, corporate meeting minutes, and purchase agreements to confirm the ownership change is in compliance with City policy.
Change in location City Staff with current cannabis consultant support reviews the updated security plan and premises diagram for compliance with State and Local regulations. The Planning Division performs a zoning analysis to determine compliance with Modesto Municipal Code section 10-3.703. The Finance
department provides confirmation that all applicant related taxes and fees are current. Cannabis program administrative staff also confirms that the business is compliant with annual inspections and audits and a site inspection is conducted to confirm that unauthorized cannabis actives are not engaged in at the proposed location.
Due to the similar steps involved in a relocation request’s review compared to the commercial cannabis application process, it was determined that the charging of a $5,000 deposit was reasonable to recover costs while allowing for a refund to the applicants at the end of the process. A change in ownership is slightly less involved than a relocation, and the review process does not require the current assistance of a consultant which has led to lower expenses incurred by the City. Based on an analysis of three (3) ownership change requests received throughout the past two (2) years, the average City administrative cost burden was found to be approximately $2,000 per request which would be the basis for the initial change in ownership deposit.
FISCAL IMPACT:
The fees were approved by Council as cost recovery and not revenue generating fees. The last five (5) years of the Annual Commercial Cannabis Permit Fee Revenues and the Cannabis Application Fee Revenues are shown on Table #1.
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Finance Committee, April 21, 2025
Amending the Annual Commercial Cannabis Permit Fee and Application Fee and Adopting the Commercial Cannabis Business Modification Request Deposits
Table #1
Fee Revenue FY 2024 FY 2023 FY 2022 FY 2021 FY 2020 Total Annual Commercial
Cannabis Permit Fee
Revenue $250,282 $256,644 $293,734 $338,093 $266,295 $1,405,048 Cannabis Application
Fee Revenue $0 $1,630 $12,760 $30,347 $14,250 $58,987
RECOMMENDED COMMITTEE ACTION:
Staff Recommendations:
Motion recommending an Amendment to the Operational Annual Commercial Cannabis Permit Fee with an annual cost of $22,821 and the Non-Operational Annual Commercial Cannabis Permit Fee with an annual cost of $3,991 and forwarding to Council for approval.
Motion recommending an Amendment to the Commercial Cannabis Permit Application fee adjusting the fee to a $6,380 Refundable Deposit and forwarding to Council for approval.
Motion recommending the Adoption of Commercial Cannabis Business Modification Request Deposits in the amount of $5,000 for changes in ownership and $2,000 for changes in location and forwarding to Council for approval.
Approved by:
DeAnna Christensen, Director of Finance
Jessica Hill,
Director of Community and Economic Development
Joseph P. Lopez, City Manager
Attachments:
1.Annual Admin Fee Cost Analysis
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City of Modesto
Cannabis Permits Annual Fee Analysis
4/2/2025
Department/Activity Employee Type/ Program Name
Hourly &
Overhead
Rate/Unit Rate
HoursRequired
Estimated
OperationalPermit Cost
Estimated
NonOperational
Permit Cost
Estimated
Program Cost Roles and Responsibilities
City Attorney's Office City Attorney ‐ Billable Hrs 327.50 140.0 36,680.00 9,170.00 45,850.00 Provides legal advice to staff and drafts non‐compliance issue notices to business operators.
City Attorney's Office City Deputy Attorney ‐ Direct Charge 295.00 12.0 1,770.00 1,770.00 3,540.00 Provides legal advice to staff and drafts non‐compliance issue notices to business operators.
City Attorney's Office Paralegal III ‐ Direct Charge 275.00 12.0 1,650.00 1,650.00 3,300.00 Cannabis program administration.
City Manager's Office Deputy City Manager ‐ S.D. 173.55 6.0 521.00 520.30 1,041.30 Monthly cannabis meetings and Cannabis Committee meetings.
City Manager's Office Deputy City Manager ‐ A.V.G 211.45 6.0 634.00 634.70 1,268.70 Monthly cannabis meetings and Cannabis Committee meetings.
City Manager's Office City Manager 211.45 ‐ ‐ ‐ ‐ Monthly cannabis meetings.Community & Economic Development Director 145.52 59.9 7,845.00 871.65 8,716.65 Cannabis Program oversight.
Community & Economic Development Business Analyst 83.55 344.0 22,993.00 5,748.20 28,741.20 Cannabis program administration.
Community & Economic Development Advertising & Shipping fees 277.00 ‐ 271.00 14.31 285.31 Advertising & Shipping fees Finance Department Director of Finance 146.35 40.0 2,342.00 3,512.00 5,854.00 Weekly cannabis meetings, ad hoc questions, and discussions.
Finance Department Revenue Collections and Compliance Manager 95.68 110.0 7,367.00 3,157.80 10,524.80 Manages and coordinates with consultant audit staff overs collection of fees and taxes Finance Department Account Clerk II 45.85 12.0 523.00 27.20 550.20 Collects fees, taxes, responds to permittee inquiries.
Finance Department Revenue Collections and Compliance Supervisor 88.32 180.0 10,333.00 5,564.60 15,897.60 Time will be moved from FA to Supervisor Finance Department Financial Analyst III 82.02 20.0 984.00 656.40 1,640.40 Miscellaneous questions, monthly revenue reports, scheduling onboarding meetings, assist with HDL Audits, annual permit fee billing, Monthly & quarterly reports to operators.
Finance Department Account Tech II 58.07 25.0 1,161.00 290.75 1,451.75 Misc. Questions ‐ ongoing, assisting with fee collection, opening cannabis accounts.
Finance Department Senior Account Clerk 50.08 6.0 300.00 0.48 300.48 Deposit preparation for Loomis. ACH Payment review and reconciliation.
Finance Department Cannabis Module Maintenance 7,193.00 1.1 7,121.00 791.30 7,912.30 HDL software ‐ need to send monthly cannabis tax remittance form. Creates Annual permit due letters. Report out monthly remittance.
Finance Department Cannabis Training ‐ Annual 535.00 ‐ 495.00 55.00 550.00 Annual training for City staff for HdL, Avenu Insights & Analytics Consultant 8,222.00 9.0 73,998.00 ‐ 73,998.00 Conducts financial audits annually.
HdL, Avenu Insights & Analytics Consultant 2,000.00 9.0 18,000.00 ‐ 18,000.00 Conducts one compliance inspections per year for dispensaries.
HdL‐Compliance Reviews Consultant 250.00 0.8 10.00 190.00 200.00 Conduct Site Plan Evaluations.
HdL‐General Consulting Consultant 250.00 10.0 2,125.00 375.00 2,500.00 General consulting/subject matter expertise as needed for Community & Economic Development Department.
HdL‐General Consulting Consultant 250.00 25.0 5,625.00 625.00 6,250.00 General consulting/subject matter expertise as needed for the Finance Department.
Police Department Lieutenant 168.23 5.0 757.00 84.15 841.15 Reviews and approves background checks conducted by the Consultant. Receives escalated complaints, investigates thefts and other crimes.
Police Department Captain 148.70 5.0 669.00 74.50 743.50 Reviews and approves background checks conducted by the Consultant. Receives escalated complaints, investigates thefts and other crimes.
Police Department Sergeant 134.72 10.0 1,212.00 135.20 1,347.20 Conducts non‐qualified sales program, monitors crime statistical data and service calls related to cannabis operations.
Total Program Costs 205,386.00 35,918.54 $ 241,305
9 Operational 9 non‐operational
$ 22,821 $ 3,991
City of Modesto
Cannabis Permits Annual Fee Analysis
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CITY OF MODESTO
COMMITTEE AGENDA REPORT
DATE OF MEETING:
April 21, 2025
Date: March 24, 2025
TO: Finance Committee
Rosa Escutia-Braaton, Chair
David Wright, Vice-Chair
Nick Bavaro, Member
THROUGH: Joseph P. Lopez, City Manager
FROM: Dameon Booker, Chief Information Officer
SUBJECT: Personal Computer Replacement Purchase – Dell Technologies, Inc.
CONTACT: Kyle Ford, Information Technology Manager, [email protected], 209-571-5508
DESCRIPTION:
Consider the purchase of Personal Computers (PC) and Laptops to Dell Technologies, Inc., Round Rack, TX for an amount not to exceed $3,000,000 over four years and forwarding to Council for approval. (Funding Source: Information Technology Fund).
STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan Initiatives: Build A High Performance Organization. Modern technology will help attract and retain high performance employees and will help to explore “Smart Cities” initiatives and develop related policies to leverage technology to address key community needs and interests.
BACKGROUND:
The City of Modesto has approximately 1,450 personal computers in service within its environment to conduct City business. Within the four years, approximately 1,200 (83%) of the personal computers will have been in service for more than six (6) years and are out of warranty.
The Information Technology Department (ITD) has been challenged in extending the units well beyond their five-year life; however, repairs are time consuming, replacement parts are becoming scarce and costly to obtain, and unit performance has degraded due to advances in technology.
Failure to keep systems updated creates a security risk to the entire organization from ransomware, viruses and malicious attacks. Replacing personal computers, Microsoft Operating System and Microsoft Office will allow employees to be more efficient in their daily duties, provide the assurance that productivity will not be lost due to aging equipment, and reduce City security risk by deploying current software products.
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Finance Committee, April 21, 2025
Personal Computer Replacement Purchase – Dell Technologies, Inc.
On September 14, 2019, under Resolution 2019-418, Council approved the Award of Proposal and Agreement for the purchase of desktop computers, laptops, tablets, software and services to Dell Technologies, of Round Rock, TX, for a three-year agreement for an initial cost not to exceed $1.35 million and a total amount not to exceed $1.95 million over three (3) years.
On January 25, 2022, under Resolution 2022-037, Council approved an increase for this purchase with Dell Technologies by $291,534 to a new total amount not to exceed $2,241,534 due to additional mobile device computers for the Modesto Police Department. This agreement expired on November 13, 2022, and based on the various department needs, these devices have been purchased on an individual basis.
DISCUSSION:
On March 26, 2025, the City Manager authorized the Purchasing Manager to solicit the procurement for Computer Equipment, Peripherals, and Related Services.
On November 4, 2020, National Association of State Procurement Officials (NASPO) ValuePoint issued Request for Proposal (RFP) 292720 for Computer Equipment, Peripherals, and Related Services which was advertised on NASPO ValuePoint’s website.
NASPO ValuePoint is a cooperative agency which streamlines the procurement process by developing Invitation for Bids (IFB) or RFPs for national competitive solicitations that meet or exceed local requirements. The competitive process is continually refined to best meet agency needs and allows NASPO ValuePoint to offer exceptional products from nationally acclaimed vendors.
On March 18, 2021, proposals were opened at 50 Sherburne Avenue, St. Paul, MN. Twentyeight (28) proposals were received and based on the criteria outlined in the RFP, twenty-three (23) contracts were awarded for this commodity which includes the Personal Computer Devices – Windows Operating Systems: Desktops, Laptops, and Tablets. Based on the results of this solicitation, City staff recommends awarding to Dell Technologies, Inc. to purchase Personal Computers and Laptops for an annual estimated amount of $750,000 and a total amount not to exceed $3,000,000 over four (4) years.
Modesto Municipal Code Section 8-3.203 generally requires all purchases that meet or exceed $100,000 for material, equipment or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(d) “Where the Purchasing Manager, in her discretion, determines that a process other than the formal bid procedure set for in Section 8-
3.203 will result in a procurement for the City at the lowest possible cost commensurate with the desired quality.” In addition, MMC 8-3.202(h) encourages the Purchasing Manager to join with the State of California or other units of government in cooperative purchasing plans when the best cost savings would be in the best interest of the City. By utilizing the NASPO ValuePoint, the City is complying with the requirements defined under this code for Computer Equipment, Peripherals, and Related Services.
FISCAL IMPACT:
As part of the Information Technology Internal Service Fund (ISF) charges, there is a replacement charge which is billed to all City departments over five (5) years based on the anticipated replacement of PCs and laptops. The Information Technology Fund has accumulated sufficient fund reserves with a projected Fiscal Year 2024-25 reserve amount of $4.1 million to cover the #10..
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Finance Committee, April 21, 2025
Personal Computer Replacement Purchase – Dell Technologies, Inc.
cost for these PC and laptop replacements needed over this four (4) year period. The estimated annual amount of $750,000 will be absorbed within the current operating budget and is part of the proposed Fiscal Year 2025-26 operating budget.
RECOMMENDED COMMITTEE ACTION:
Staff Recommendations:
Motion recommending the Competitive Bidding Process from The State of Minnesota in partnership with NASPO ValuePoint, with Dell Technologies, Inc., Round Rack, TX for the purchase of Personal Computers and Laptops for an annual estimated amount $750,000 and a total amount not to exceed $3,000,000 over four years; and forwarding to Council for approval.
Approved by:
Dameon Booker, Chief Information Officeri
Joseph P. Lopez, City Manager
Attachments:
1. Cooperative Agreement - NASPO
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Persons with a hearing or speech disability may contact us by dialing 711 or 1.800.627.3529 Assignment of NASPO Master Agreement 23004 Page 1 of 3
ASSIGNMENT OF NASPO MASTER AGREEMENT 23004
This Assignment Agreement is by and among the State of Minnesota, acting through its Commissioner of Administration (State), Dell Inc., One Dell Way, Round Rock, TX 78682 (Original Contractor), and Dell Marketing L.P., One Dell Way, Mailstop RR1-33 Legal, Round Rock, TX 78682 (Assigned Contractor).
WHEREAS, the State has an agreement with the Original Contractor identified as Contract 23004, effective July 14, 2023, through June 30, 2025 (Contract), to provide Computer Equipment, Peripherals & Related Services; and WHEREAS, the Original Contractor wishes to assign all its interests in the Contract to the Assigned Contractor; and WHEREAS, the assignment provision of the Contract provides assignment of the agreement only upon written consent of the State.
NOW, THEREFORE, it is agreed by the parties to amend the Contract as follows:
1. The Assigned Contractor is assigned Contract 23026 to accommodate participating addenda under the Master Agreement.
2. This Assignment Agreement will become effective upon its approval and execution by the parties and approval of the appropriate State officials, pursuant to Minn. Stat. § 16C.05, subd. 2.
3. The State hereby approves the request of the Original Contractor to assign the Assigned Contractor all its interests, rights, and responsibilities, duties, and other provisions set forth in the Contract, which is attached and incorporated as Exhibit A, provided the Original Contractor and the Assigned Contractor agree to all provisions set forth in this Assignment Agreement.
4. Representations and Warranties:
a. The Original Contractor represents and warrants to the State that it is not in default of any of its obligations under the Contract.
b. The Assigned Contractor represents and warrants to the State that: (i) as of the effective date of this Assignment Agreement, the Assigned Contractor will have received sufficient information, right to technology, and key personnel sufficient to properly perform the duties, responsibilities, obligations, and all other provisions assigned to it, and (ii) the Assigned Contractor is ready, willing, and able to perform all of the duties, obligations, and responsibilities of the Contract. c. The representations and warranties set forth in this Section 4 are for the sole benefit of the State and its permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity (including the Original Contractor and the Assigned Contractor) any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Assignment Agreement.
5. The Assigned Contractor accepts assignment of all of the provisions of the Contract.
6. Any and all amounts due to the Original Contractor by a Participating Entity for goods or services provided by the Original Contractor prior to July 14, 2023, under the Contract will be paid to the Original Contractor by the Participating Entity. Any and all amounts due under the Contract on or after July 14, 2023, will be paid to the Assigned Contractor by the Participating Entity and the Original Contractor.
7. When applicable, payment for remaining work and travel expenses from the Contract will be paid at the rates set in #10..
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Persons with a hearing or speech disability may contact us by dialing 711 or 1.800.627.3529 Assignment of NASPO Master Agreement 23004 Page 2 of 3
total payments made to the Original Contractor.
8. If applicable, the Assigned Contractor will provide proof of insurance with the coverage and in the amounts called for in the original solicitation document, attached herein.
9. If applicable, the Assigned Contractor will provide a copy of its Affirmative Action Certification as approved by the Minnesota Department of Human Rights.
10. If applicable, the Assigned Contractor will provide a copy of its Equal Pay Certification as approved by the Minnesota Department of Human Rights.
This Assignment Agreement is effective upon the date that the final required signatures are obtained.
IN WITNESS WHEREOF, the parties have caused this Assignment Agreement to be duly executed intending to be bound thereby.
1. ORIGINAL CONTRACTOR
Dell Inc.
The Original Contract Vendor certifies that the appropriate person(s) have executed this document on behalf of the Contract Vendor as required by applicable articles, bylaws, resolutions, or ordinances.
By:
Signature Printed Name Title:
Date:
By:
Title:
Date:
3. OFFICE OF STATE PROCUREMENT
In accordance with Minn. Stat. §16C.03, Subd. 3.
By:
Signature Printed Name Title: Date:
2. ASSIGNED CONTRACTOR
Dell Marketing L.P.
The Assigned Contract Vendor certifies that the appropriate person(s) have executed the Contract on behalf of the Contract Vendor as required by applicable articles, bylaws, resolutions, or ordinances.
By:
Signature
Printed Name Title:
Date:
By:
Title:
Date:
4. COMMISSIONER OF ADMINISTRATION
Or delegated representative.
By:
Signature
Printed Name Title:
Date:
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Persons with a hearing or speech disability may contact us by dialing 711 or 1.800.627.3529 Assignment of NASPO Master Agreement 23004 Page 3 of 3
EXHIBIT A: CONTRACT
Attached and incorporated into Exhibit A is the following document(s):
NASPO Master Agreement 23004.
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NASPO ValuePoint Master Agreement No.: 23004
Dell Inc., whose designated business address is One Dell Way, Recitals
1. The State of Minnesota, Department of Administration, Office of State Procurement, on behalf of the State of Minnesota and NASPO ValuePoint Cooperat
Computer Equipment (Desktops, Laptops, Tablets, Servers, and Storage, including related Peripherals & Services);
2. Contractor provided a response to the Solicitation indicating its interest in and ability to provide the goods or services requested in the Solicitation; and
3. Subsequent to an evaluation in accordance with the terms of the Solicitation and negotiation, the Parties desire to enter into a contract; and
4. All authorized governmental entities in any state or participating US Territory are welcome to use the resulting Master Agreement through NASPO ValuePoint with the approval of the State Chief Procurement Official. Upon final award of the overarching Master Agreement, Contractors are able to sign Participating Addendums (PA) at the option of Participating States. Participating States reserve the right to add state specific terms and conditions and modify the scope of the contract in their Participating Addendum as allowed by the Master Agreement.
Accordingly, the Parties agree as follows:
Contract
Term of Contract
Effective date. July 1, 2023, or the date the Lead State obtains all required signatures under Minn. Stat. § 16C.05, subd. 2, whichever is later.
Expiration date. June 30, 2025. This Master Agreement may be extended for up to an additional 36 months, in increments as determined by the Lead State, through a duly executed amendment.
If, in the judgment of the Lead State, a follow-on, competitive procurement will be unavoidably delayed beyond the planned date of execution of the follow-on master agreement, this Master Agreement may be extended for a reasonable period of time, not to exceed six months. This subsection shall not be deemed to limit the authority of a Lead State under its state law otherwise to negotiate contract extensions. #10..
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Representations and Warranties
Under Minn. Stat. §§ 15.061 and 16C.03, subd. 3, and other applicable law the Lead State is empowered to engage such assistance as deemed necessary.
Contractor warrants that it is duly qualified and shall perform its obligations under this Master Agreement in acco
or profession, and in accordance with the specifications set forth in this Master Agreement, to the satisfaction of the Lead State.
Contractor warrants that it possesses the legal authority to enter into this Master Agreement and that it has taken all actions required by its procedures, by-laws, and applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Master Agreement, or any part thereof, and to bind Contractor to its terms.
Awarded Band(s)
The solicitation included three product Bands: Band 1, Personal Computing Devices Windows Operating Systems:
Desktops, Laptops, Tablets; and Band 2, Personal Computing Devices Non-Windows Operating Systems: Desktops, Laptops, Tablets; and Band 3, Servers and Storage. The Contractor is awarded the following Band(s):
Band 1, Personal Computer Devices Windows Operating Systems Band 2, Personal Computer Devices - Non-Windows Operating Systems Band 3, Servers and Storage
Configuration Dollar Limits
The following configuration limits apply to the Master Agreement. Participating Entities may define their configuration the configuration limits, as defined in their Participating Addendum. The Participating Entity will determine with the Contractor how to approve these modifications to the Product and Service Schedule.
The dollar limits identified below are based on a SINGLE computer/system configuration. This is NOT a restriction on the purchase of multiple configurations (e.g., an entity could purchase 10 laptops at $15,000 each, for a total purchase price of $150,000).
ITEM CONFIGURATION
Band One $15,000
Band Two $15,000
Band Three $1,000,000
Peripherals $10,000
Services Addressed in the Participating Addendum
Restrictions
The following restrictions apply to the Master Agreement. A Participating Entity may set further restrictions of products in their Participating Addendum. The Participating Entity will determine with the Contractor how to approve these Software
Software is restricted to operating systems and commercial off-the-shelf (COTS) software and is subject to equipment configuration limits.
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Any software purchased must be related to the procurement of equipment.
Software must be pre-loaded or provided as an electronic link with the initial purchase of equipment, except for the exceptions allowed under Paragraph 5.a.4.
Software such as middleware which is not always installed on the equipment, but is related to storage and server equipment (Band 3) purchased, is allowed and may be procured after the initial purchase of equipment.
General Services
Services must be related to the procurement of equipment.
Service limits will be addressed by each State.
Wireless phone and internet service is not allowed.
Managed Print Services are not allowed.
Cloud Services
Cloud Services are restricted to Services that function as operating systems and software needed to support or configure hardware purchased under the scope of the contract and is subject to equipment configuration limits.
Any Cloud Service purchased must be related to the procurement of equipment.
Third-Party Products
Third-Party Products can be offered only in the Bands they have been awarded. All third-party products must meet the definition(s) of the Band(s) in which they are being offered.
Products manufactured by another Contractor holding a Minnesota NASPO ValuePoint Master Agreement for Computer Equipment cannot be offered unless approved by the Lead State.
Additional Product/Services
Hardware and software required to solely support wide area network (WAN) operation and management are not allowed.
Lease/Rentals of equipment may be allowed and will be addressed by each State.
Cellular Phone Equipment is not allowed.
EPEAT Bronze requirement may be waived, on a State case-byProcurement Officer. EPEAT Bronze requirement does not currently apply to storage. #10..
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Authorized Representative
Master Agreement Administrator. The Master Agreement Administrator designated by NASPO ValuePoint and the State of Minnesota, Department of Administration is Elizabeth Randa, Acquisition Management Specialist.
Elizabeth Randa, Acquisition Management Specialist
Department of Administration
Office of State Procurement
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
E-mail: [email protected]
Phone: 651.201.3122
Authorized Representative is Ashley Salinas, SLED
Contract Program Manager.
Ashley Salinas, SLED Contract Program Manager
Dell Inc.
One Dell Way
Round Rock, TX 78682
[email protected]
Phone: 512.542.1237
If the
immediately notify the Lead State.
Notices
If one party is required to give notice to the other under the Master Agreement, such notice shall be in writing and shall be effective upon receipt. Delivery may be by certified United States mail or by hand, in which case a signed receipt shall be obtained. An email shall constitute sufficient notice, provided the receipt of the transmission is confirmed by the receiving party. Either party must notify the other of a change in address for notification purposes. All notices to the Lead State shall be addressed to the Master Agreement Administrator.
Exhibits
The following Exhibits are attached and incorporated into this Contract. In the event of a conflict between the terms of this Contract and its Exhibits, or between Exhibits, the order of precedence is first the Contract, and then in the following order:
Exhibit A: NASPO ValuePoint Terms and Conditions
Exhibit B: Minnesota Terms and Conditions
Exhibit C: Requirement
Exhibit D: Price Schedule
Exhibit E: Contractor Terms and Conditions
Survival of Terms:
The following clauses survive the expiration or cancellation of this Master Agreement: Indemnification; State Audits; Government Data Practices and Intellectual Property; Publicity and Endorsement; Governing Law, Jurisdiction, and Venue; and Data Disclosure. Any other Contract term that states it shall survive, shall survive. #10..
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Entire Agreement
This Contract and any written addenda thereto constitute the entire agreement of the parties to the Master Agreement.
1. Contractor
The Contractor certifies that the appropriate
person(s) have executed the Contract on behalf of
the Contractor as required by applicable articles,
bylaws, resolutions, or ordinances.
2. State Agency
With delegated authority
Print name: Print name:
Signature: Signature:
Title: Date: Title: Date:
3. Commissioner of Administration
As delegated to The Office of State Procurement
Print name:
Signature:
Title: Date:
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Exhibit A: NASPO ValuePoint Master Agreement Terms and Conditions Conflict of Terms/Order of Precedence.
Any order placed under this Master Agreement shall consist of the following documents:
Minnesota NASPO ValuePoint Master Agreement, as negotiated, including all exhibits; A Purchase Order issued against a PA (terms and conditions set forth in a Purchase Order will not be deemed to modify, diminish, or otherwise derogate the terms and conditions set forth in a Participating Addendum or Minnesota NASPO ValuePoint Master Agreement).
These documents shall be read to be consistent and complementary. Any conflict among these documents shall be resolved by giving priority to these documents in the order listed above. Contractor terms and conditions that apply to this Master Agreement are only those that are expressly accepted by the Lead State and must be in writing and attached to this Master Agreement as an Exhibit or Attachment.
Contractor terms and conditions may be incorporated if expressly accepted by the Lead State and attached to the Master Agreement as an Exhibit or Attachment, or by written reference (including reference to information contained in a URL or referenced policy). A written reference, including by URL or policy, is incorporated into the s must be explicitly
referenced are not incorporated into the Master Agreement. Any Contractor term or condition incorporated by URL or written reference applies to this Master Agreement only to the extent such term or condition is not prohibited by applicable law. Any change to information contained in a URL or referenced policy will not affect any financial obligation, place any additional materia
ability to use the product or service.
response incorporated therein by reference) will constitute the entire agreement of the parties to the Master response to the RFP, or terms listed or referenced on the Contractor's website not otherwise incorporated into the Master Agreement, in the Contractor quotation/sales order, or in similar documents subsequently provided by the Contractor.
Additional Agreement with NASPO. Upon request by NASPO ValuePoint, awarded Contractor shall enter into a under the terms of the Master Agreement, the terms of which shall be the same or similar (and not less favorable) than the terms set forth in the Master Agreement.
Definitions.
Acceptance is defined by the applicable commercial code, except Acceptance shall not occur before the completion of delivery in accordance with the Order, installation if required, and a reasonable time for inspection of the Product.
Accessory means a product that enhances the user experience but does not extend the functionality of the computer (e.g. mouse pad or monitor stand). For the purposes of this Contract, accessories are considered peripherals.
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_____ as a Service (_aaS) refers to any good provided in a subscription-based model that is defined in the mitted only when they
meet the restrictions found in Paragraph 5.c, above.
Band means a category of products. There are three product bands which may be awarded through this Contract. Each product band includes related peripherals and services.
Components are the parts that make up a computer configuration.
Contractor means the person or entity delivering Products or performing services under the terms and conditions set forth in this Master Agreement.
Configuration means the combination of hardware and software components that make up the total functioning system.
Customer (see Purchasing Entity).
Desktop means a personal computer intended for regular use at a single location. A desktop computer typically comes in several units connected together during installation: (1) the processor, 2) display monitor, and 3) input devices usually a keyboard and a mouse. Desktops, including desktop virtualization endpoints such as zero and thin clients, are included in Bands 1 and 2 of this Contract.
Embedded Software means one or more software applications which permanently reside on a computing device.
Energy Star® is a voluntary energy efficiency program sponsored by the U.S. Environmental Protection Agency.
The Energy Star program makes it easy to identify energy efficient computers by labeling products that deliver the same or better performance as comparable models while using less energy and saving money. For additional information on the Energy Star program, including product specifications and a list of qualifying products, visit the Energy Star website at http://www.energystar.gov.
EPEAT is a type-1 ecolabel for identifying and purchasing sustainable IT products. EPEAT-registered products must meet sustainability criteria detailed in voluntary consensus-based standards that are free and publicly available Silver, or Gold based on meeting criteria that address the life cycle of the products. Product life cycle includes material extraction, hazardous substance reduction, end-of-life management, packaging, and corporate sustainability. Only products listed as Active in the online EPEAT Registry are considered to meet the EPEAT criteria.
FOB Destination means that shipping charges are included in the price of the item and the shipped item becomes the legal property and responsibility of the receiver when it reaches its destination unless there is acceptance testing required.
FOB Inside Delivery means that shipping charges are included in the price of the item, and that the shipped item becomes the legal property and responsibility of the receiver when it reaches the inside delivery point, which is beyond the front door or loading dock. FOB Inside Delivery is a special shipping arrangement that may include additional fees payable by the Purchasing Entity. FOB Inside Delivery must be annotated on the Purchasing Entity ordering document.
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Intellectual Property means any and all patents, copyrights, service marks, trademarks, trade secrets, trade names, patentable inventions, or other similar proprietary rights, in tangible or intangible form, and all rights, title, and interest therein.
Laptop means a personal computer for mobile use. A laptop includes a display, keyboard, point device such as a touchpad, and speakers in a single unit. A laptop can be used away from an outlet using a rechargeable battery.
Laptops include notebooks, ultrabooks, netbooks, Zero and thin client devices, and computers with mobile operating systems. Laptops are included in Bands 1 and 2 of this Contract.
Lead State means the State centrally administering any resulting Master Agreement(s).
Mandatory Requirement is a requirement that the failure to meet results in the rejection of the resp identify a mandatory requirement. Any objection to a mandatory requirement should be identified by responders in the Question and Answer period.
Manufacturer means a company that, as one of its primary business functions, designs, assembles, owns the trademark/patent for, and markets branded computer equipment.
Master Agreement means the underlying agreement executed by and between the Lead State, acting on behalf of NASPO ValuePoint, and the Contractor.
Middleware
computers) work together. The most basic function of middleware is to enable communication between different pieces of software.
NASPO ValuePoint
limited liability company. NASPO ValuePoint facilitates administration of the NASPO cooperative group contracting consortium of state chief procurement officials for the benefit of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states, the District of Columbia, and territories of the United States. NASPO ValuePoint is identified in the Master Agreement as the recipient of reports and may perform contract administration functions relating to collecting and receiving reports as well as other contract administration functions as assigned by the Lead State.
Option means an item of equipment or a feature that may be chosen as an addition to or replacement for standard equipment and features.
Order or Purchase Order means any purchase order, sales order, contract or other method used by a Purchasing Entity to order the Products.
Participating Addendum means a bilateral agreement executed by a Contractor and a Participating Entity incorporating this Master Agreement and any other additional Participating Entity specific language or other requirements, e.g. ordering procedures specific to the Participating Entity, other terms and conditions.
Participating Entity means a state (as well as the District of Columbia and U.S territories), city, county, district, other political subdivision of a State, or a nonprofit organization under the laws of some states properly authorized to enter into a Participating Addendum, that has executed a Participating Addendum.
Participating State means a state that has executed a Participating Addendum. #10..
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Partner means a company, authorized by the Contractor and approved by the Participating Entity, to provide marketing, support, or other authorized contract services on behalf of the Contractor in accordance with the terms subcontractor, fulfillment partner, channel partner, business partner, servicing subcontractor, etc.
Peripherals means any hardware product that can be attached to, added within, or networked with personal computers, servers, or storage. Peripherals extend the functionality of a computer without modifying the core components of the system.
Per Transaction Multiple Unit Discount means a contractual volume discount based on dollars in a single purchase order or combination of purchase orders submitted at one time by a Participating Entity or multiple entities conducting a cooperative purchase.
Premium Savings Package(s) (PSP) are deeply discounted standard configurations available to Purchasing Entities using the Master Agreement. NASPO ValuePoint reserves the right to expand and modify the PSP throughout the life of the contract. For more information see: https://www.naspovaluepoint.org/portfolio/57/.
Product means any equipment, software (including embedded software), documentation, service, or other deliverable supplied or created by the Contractor pursuant to this Master Agreement. The term Products, supplies and services, and products and services are used interchangeably in these terms and conditions.
Purchasing Entity means a state (including the District of Columbia and U.S. territories), city, county, district, other political subdivision of a state, other public entities domestic or foreign, and nonprofit organizations under the laws of some states if authorized by a Participating Addendum, that issues a Purchase Order under the terms of the Master Agreement, or any Participating Addendum thereto, and becomes financially committed to the purchase.
Ruggedized means equipment specifically designed to operate reliably in harsh usage environments and conditions, such as strong vibrations, extreme temperatures, and wet or dusty conditions. Ruggedized equipment may be proposed under the band that most closely fits the equipment being proposed.
Server means computer hardware dedicated to run one or more services or applications (as a host) to serve the needs of the users of other computers on a network. Servers may be either physical or virtual. Servers, including server appliances, are included in Band 3 of this Contract. Server appliances have their hardware and software preconfigured by the manufacturer, and include embedded networking components such as those found in blade chassis systems.
Services are broadly classified as installation or de-installation, maintenance, support, training, migration, and optimization of products offered or supplied under the Master Agreement. These classifications of services may include, but are not limited to: warranty services, maintenance, installation, de-installation, factory integration (software or hardware components), asset management, recycling or disposal, training and certification, preimplementation design, disaster recovery planning and support, service desk or helpdesk, imaging, and any other directly related technical support service required for the effective operation of a product offered or supplied.
Contractors may offer limited professional services related ONLY to the equipment and configuration of the equipment purchased through the resulting contracts.
EACH PARTICIPATING ENTITY WILL DETERMINE RESTRICTIONS AND NEGOTIATE TERMS FOR SERVICES THROUGH THEIR PARTICIPATING ADDENDUM.
Software means, for the purposes of this Contract, commercial operating off the shelf machine-readable object code instructions including microcode, firmware, and operating system software that meet the restrictions specified #10..
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in Paragraph 5.a
and modifications of software.
Storage means hardware or a virtual appliance with the ability to store large amounts of data. Storage, including SAN switching necessary for the proper functioning of storage equipment, is included in Band 3 of this Contract Storage Area Network (SAN) is a high-speed special-purpose network (or subnetwork) that interconnects different kinds of data storage devices with associated data servers on behalf of a larger network of users.
Tablet means a mobile computer that provides a touchscreen that acts as the primary means of control. Tablets, including notebooks, ultrabooks, and netbooks with touchscreen capabilities, are included in Bands 1 and 2 of this Contract.
Takeback Program
Thin Client is a lightweight computer that has been optimized for establishing a remote connection with a server-based computing environment.
Third Party Product is a good sold by the Contractor that is manufactured by another company. Third Party Products are intended to enhance or supp
Upgrade means the replacement of existing software, hardware, or hardware component with a newer version.
Warranty
Wide Area Network (WAN) is a data network that serves users across a broad geographic area and often uses transmission devices provided by common carriers.
Term of the Master Agreement.
The initial term of this Master Agreement is for 2 years. This Master Agreement may be extended beyond the review of requirements of Participating Entities, current market conditions, and Contractor performance.
The Master Agreement may be extended for a reasonable period of time if in the judgment of the Lead State a follow-on, competitive procurement will be unavoidably delayed (despite good faith efforts) beyond the planned date of execution of the follow-on master agreement. This subsection shall not be deemed to limit the authority of a Lead State under its state law otherwise to negotiate contract extensions.
Amendments.
The terms of this Master Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever without a written amendment to the Master Agreement executed by the Contractor and Lead State as required by law. Master Agreement amendments will be negotiated by the Lead State with the Contractor whenever necessary to address changes in the terms and conditions, costs, timetable, or increased or decreased scope of work.
Participants and Scope.
Canadian Participation. Subject to the approval of Contractor, any Canadian provincial government or provincially funded entity in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, #10..
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Nova Scotia, Ontario, Prince Edward Island, Quebec, or Saskatchewan, and territorial government or territorial government funded entity in the Northwest Territories, Nunavut, or Yukon, including municipalities, universities, community colleges, school boards, health authorities, housing authorities, agencies, boards, commissions, and crown corporations, may be eligible to use Contractor's Master Agreement. Canadian Participation. Subject to the approval of the Contractor, any Canadian provincial government or provincially funded entity in Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, Northwest Territories, Nunavut, Yukon, and Newfoundland and Labrador, including municipalities, universities, community colleges, school boards, health authorities, housing authorities, agencies, boards, commissions, and crown corporations, may be eligible to use Contractor's Master Agreement.
Contractor may not deliver Products under this Master Agreement until a Participating Addendum acceptable to the Participating Entity and Contractor is executed. The NASPO ValuePoint Master Agreement Terms and Conditions are applicable to any Order by a Participating Entity (and other Purchasing Entities covered by their Participating Addendum), except to the extent altered, modified, supplemented or amended by a Participating Addendum. By way of illustration and not limitation, this authority may apply to unique delivery and invoicing requirements, confidentiality requirements, defaults on Orders, governing law and venue relating to Orders by a Participating Entity, indemnification, and insurance requirements. Statutory or constitutional requirements relating to availability of funds may require specific language in some Participating Addenda in order to comply with applicable law. The expectation is that these alterations, modifications, supplements, or amendments will be addressed in the Participating Addendum or, with the consent of the Purchasing Entity and Contractor, may be included in the ordering document (e.g. purchase order or contract) used by the Purchasing Entity to place the Order.
Use of specific NASPO ValuePoint Master Agreements by state agencies, political subdivisions and other subject to the approval of the respective State Chief Procurement Official. Issues of interpretation and eligibility for participation are solely within the authority of the respective State Chief Procurement Official.
Obligations under this Master Agreement are limited to those Participating Entities who have signed a Participating Addendum and Purchasing Entities within the scope of those Participating Addenda. States or other entities permitted to participate may use an informal competitive process to determine which Master Agreements to participate in through execution of a Participating Addendum. Financial obligations of Participating Entities who are states are limited to the orders placed by the departments or other state agencies and institutions having available funds. Participating Entities who are states incur no financial obligations on behalf of other Purchasing Entities. Contractor shall email a fully executed PDF copy of each Participating Addendum to [email protected] to support documentation of participation and posting in appropriate data bases.
NASPO and NASPO ValuePoint are not parties to the Master Agreement.
Participating Addenda shall not be construed to amend the following provisions in this Master Agreement between the Lead State and Contractor that prescribe NASPO ValuePoint requirements: Term of the Master Agreement; Amendments; Participants and Scope; Administrative Fee; NASPO ValuePoint Summary and Detailed Usage Reports; NASPO ValuePoint Cooperative Program Marketing and Performance Review; Right to Publish; Price and Rate Guarantee Period; and Individual Customers. Any such language shall be void and of no effect.
Participating Entities who are not states may under some circumstances sign their own Participating Addendum, subject to the consent to participation by the Chief Procurement Official of the state where the Participating Entity is located. Coordinate requests for such participation through NASPO ValuePoint. Any permission to participate through execution of a Participating Addendum is not a determination that procurement authority exists in the Participating Entity; they must ensure that they have the requisite procurement authority to execute a Participating Addendum.
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right to services. Subject to any specific conditions included in the Master Agreement, or as explicitly permitted in a Participating Addendum, Purchasing Entities may not resell Products (the definition of which includes services that are deliverables). Absent any such condition or explicit permission, this limitation does not prohibit: payments by employees of a Purchasing Entity for Products; sales of Products to the general public as surplus property; and fees associated with inventory transactions with other governmental or nonprofit entities and consistent with a license rights granted for use of intellectual property.
Individual Customers.
Except to the extent modified by a Participating Addendum, each Purchasing Entity shall follow the terms and conditions of the Master Agreement and applicable Participating Addendum and will have the same rights and responsibilities for their purchases as the Lead State has in the Master Agreement, including but not limited to, any indemnity or right to recover any costs as such right is defined in the Master Agreement and applicable Participating Addendum for their purchases. Each Purchasing Entity will be responsible for its own charges, fees, and liabilities. The Contractor will apply the charges and invoice each Purchasing Entity individually.
Independent Contractor.
The Contractor is an independent contractor. Contractor shall have no authorization, express or implied, to bind the Lead State, Participating States, other Participating Entities, or Purchasing Entities to any agreements, settlements, liability or understanding whatsoever, and agrees not to hold itself out as an agent except as expressly set forth herein or as expressly agreed in any Participating Addendum.
Contracting Personnel.
Contractor must provide adequate contracting personnel to assist states with the completing and processing Participating Addenda. It is preferred that each Contractor be able to provide each Participating Entity with a primary contact person for that Participating Entity.
Changes in Contractor Representation.
The Contractor must n
Master Agreement in writing within 10 calendar days of the change. The Lead State reserves the right to approve changes in key personnel, as identified in the Con
The Contractor agrees to propose replacement key personnel having substantially equal or better education, training, and experience as was possessed by the key person proposed and evalua Contractor Verification.
The Contractor is responsible for delivering products or performing services under the terms and conditions set forth in the Master Agreement. The Contractor must ensure partners utilized in the performance of this contract adhere to all the terms and conditions. The term Partner will be utilized in naming the relationship a Contractor has with another company to market and sell under the contract. Participating Entities will have final determination/approval if a Partner may be approved for that state in the role identified by the Contractor.
Contractor Performance Meeting.
An annual performance meeting may be held each year with the NASPO ValuePoint Sourcing Team. Historically performance meetings have been held in Minnesota, but the Lead State may hold the meetings in person or virtually at All contractors that are invited to participate must send their Primary Account Representative, unless an exception is granted in writing by the Lead State. It is possible that not all contractors will be invited to participate in a performance meeting.
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Laws and Regulations.
Any and all Products offered and furnished shall comply fully with all applicable Federal, State, and local laws and regulations, including Minn. Stat. § 181.59 prohibiting discrimination and business registration requirements of the Office of the Minnesota Secretary of State. To the extent any purchase is subject to Federal Acquisition Regulations, as may be required by the terms of a federal grant, a Participating Entity and Contractor may include in their Participating Addendum terms that reflect such a requirement.
Price and Rate Guarantee Period.
All minimum discounts and rates must be guaranteed for the initial term of the Master Agreement. Following the initial Master Agreement period, any request for minimum discount or rate adjustment must be for a guarantee period as offered by the Contractor, and must be made at least 30 days prior to the effective date. Requests for minimum discount or rate adjustment must include sufficient documentation supporting the request. Any adjustment or amendment to the Master Agreement shall not be effective unless approved by the Lead State. No retroactive adjustments to minimum discounts or rates will be allowed.
Premium Savings Package Program.
The Lead State reserves the right to create a Premium Savings Package Program (PSP) as outlined in the Definitions, Paragraph 2.ee of Exhibit A. Participation by Contractor is voluntary. The details and commitments of the PSP will be detailed as a part of any request for Contractor to participate.
Services.
Participating Entities must explicitly allow services in their Participating Addenda for the approved services to be allowed under that Participating Addendum. The Participating Addendum by each Participating Entity will address service agreement terms and related travel.
Ordering.
Master Agreement and purchase order numbers shall be clearly shown on all acknowledgments, packing slips, invoices, and on all correspondence.
Purchasing Entities may define entity or project-specific requirements and informally compete the requirement am
requirements are aggregated or other firm commitments may be made to achieve reductions in pricing. This procedure may be modified in Participating Addend
Purchasing Entity may in its sole discretion determine which Master Agreement Contractors should be solicited for a quote. The Purchasing Entity may select the quote that it considers most advantageous, cost and other factors considered.
Each Purchasing Entity will identify and utilize its own appropriate purchasing procedure and documentation. res regarding the
ordering of supplies or services contemplated by this Master Agreement.
Contractor shall not begin work without a valid Purchase Order or other appropriate commitment document under the law of the Purchasing Entity.
Orders may be placed consistent with the terms of this Master Agreement during the term of the Master Agreement.
All Orders pursuant to this Master Agreement, at a minimum, shall include:
The service description or supplies being delivered;
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The place and requested time of delivery;
A billing address;
The name, phone number, and address of the Purchasing Entity representative; proposal;
A ceiling amount of the order for services being ordered; The Master Agreement identifier; and
Statement of Work, when applicable.
All communications concerning administration of Orders placed shall be furnished solely to the authorized ng office, or to such other individual identified in writing in the Order.
Orders must be placed pursuant to this Master Agreement prior to the termination date thereof, but may have a delivery date or performance period up to 120 days past the then-current termination date of this Master Agreement. Contractor is reminded that financial obligations of Purchasing Entities payable after the current applicable fiscal year are contingent upon agency funds for that purpose being appropriated, budgeted, and otherwise made available.
Notwithstanding the expiration, cancellation or termination of this Master Agreement, Contractor agrees to perform in accordance with the terms of any Orders then outstanding at the time of such expiration or termination.
Contractor shall not honor any Orders placed after the expiration, cancellation or termination of this Master Agreement, or otherwise inconsistent with its terms. Orders from any separate indefinite quantity, task orders, or other form of indefinite delivery order arrangement priced against this Master Agreement may not be placed after the expiration or termination of this Master Agreement, notwithstanding the term of any such indefinite delivery order agreement.
Trade-In.
Any trade-in programs offered during the life of the Master Agreement must be approved by the Lead State.
Participating Entities must explicitly allow trade-in programs in their Participating Addenda for the approved programs to be allowed under that Participating Addendum. Trade-in value shall not decrease the discounts offered through the Master Agreement.
Shipping and Delivery.
The prices are the delivered price to any Purchasing Entity for standard 3-5 day shipping. If an order is requested with expedited shipping, the Contractor must provide a firm quote. All deliveries shall be FOB Destination, freight pre-paid, with all transportation and handling charges paid by the Contractor. Responsibility and liability for loss or damage shall remain the warranty obligations. Any order for less than the specified amount is to be shipped with the freight prepaid and added as a separate item on the invoice. Any portion of an Order to be shipped without transportation charges that is back ordered shall be shipped without charge.
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Specific delivery instructions, including FOB Inside Delivery, will be noted on the order form or Purchase Order.
Any damage to the building interior, scratched walls, damage to the freight elevator, etc., will be the responsibility of the Contractor. If damage does occur, it is the responsibility of the Contractor to promptly notify the Purchasing Entity placing the Order.
crating charges. Cases shall be of durable construction, good condition, properly labeled and suitable in every Order number and other information sufficient for the Purchasing Entity to properly identify the shipment as outlined in the Participating Addendum of the Purchasing Entity.
Inspection and Acceptance.
Where the Master Agreement, a Participating Addendum, or an Order does not otherwise specify a process for inspection and Acceptance, this section governs. This section is not intended to limit rights and remedies under the applicable commercial code.
Acceptance. Purchasing Entity shall determine whether all Products and Services delivered meet the Contractor's published specifications. No payment shall be made for any Products or Services until the Purchasing Entity has accepted the Products or Services. The Purchasing Entity will make every effort to notify the Contractor within thirty (30) calendar days following delivery of non-acceptance of a Product or completion of Service. In the event that the Contractor has not been notified within 30 calendar days from delivery of Product or completion of Service, the Product and Services will be deemed accepted on the 31st day after delivery of Product or completion of Services. Failure to reject upon receipt, however, does not relieve the Contractor of liability for latent or hidden material defects. Acceptance of such goods may be revoked in accordance with the provisions of the applicable commercial code, and the Contractor is liable for any resulting expense incurred by the Purchasing Entity related to the preparation and shipping of Product rejected and returned, or for which Acceptance is revoked. The warranty period shall begin upon Acceptance. If the parties agree to acceptance testing, the terms of subsection (c), below, apply.
Acceptance Testing. The Purchasing Entity and the Contractor shall determine if Acceptance Testing is applicable and required for the purchase.
standard of performance prior to Acceptance by the Purchasing Entity.
The Acceptance Testing period shall be thirty (30) calendar days starting from the day after the Product is delivered or, if installed, the day after the Product is installed and Contractor certifies that the Product is ready for Acceptance Testing. If the Product does not meet the standard of performance during the initial period of Acceptance Testing, Purchasing Entity may, at its discretion, continue Acceptance Testing on a day-to-day basis until the standard of performance is met. Upon rejection, the Contractor will have fifteen (15) calendar days to cure the standard of performance issue(s). If after the cure period, the Product still has not met the standard of performance, the Purchasing Entity may, at its option: (a) declare Contractor to be in breach and terminate the Order; (b) demand replacement Product from Contractor at no additional cost to Purchasing Entity; or, (c) continue the cure period for an additional time period agreed upon by the Purchasing Entity and the Contractor.
No Product shall be deemed Accepted and no charges shall be paid until the standard of performance is met. Products that do not meet specifications may be rejected. Failure to reject upon receipt, however, does not relieve the Contractor of liability for material (nonconformity that substantially impairs value) latent or hidden defects subsequently revealed when goods are put to use. Acceptance of such goods may be revoked in accordance with the provisions of the applicable commercial code, and the Contractor is liable for any resulting expense incurred by the Purchasing Entity related to the preparation and shipping of Product rejected and returned, or for which Acceptance is revoked. The warranty period shall begin upon Acceptance. #10..
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If any services do not conform to contract requirements, the Purchasing Entity may require the Contractor to perform the services again in conformity with contract requirements, at no increase in Order amount. When defects cannot be corrected by re-performance, the Purchasing Entity may require the Contractor to take necessary action to ensure that future performance conforms to contract requirements; and reduce the contract price to reflect the reduced value of services performed.
Title of Product.
Definitions. For purposes of this section, the following terms are defined as follows:
obligations to Purchasing Entity.
Contractor-branded hardware products.
s all patents, copyrights, trademarks, trade secrets, and other intellectual property rights of a party.
Upon Acceptance by the Purchasing Entity, Contractor shall convey to Purchasing Entity title to the Equipment free and clear of all liens, encumbrances, or other security interests. rights to use the software delivered by Contractor are governed by the terms of the applicable end-user license agreement. Unless different a Participating
Addendum or the issuance of an Order and shall meet or exceed the terms set forth in this Master Agreement.
Unless expressly otherwise agreed, microcode, firmware or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions, is licensed for use solely on such Equipment.
Contractor grants Purchasing Entity a non-exclusive, non-transferable, irrevocable license to use (without the and
governmental purposes, only and solely in accordance with the applicable service specification and subject to this Master Agreement. The grant of this license is s
. Such license shall be perpetual
unless granted pursuant to the purchase of a subscription, in which case the license shall be for the term of the subscription. Purchasing Entity may authorize its service providers to use the Deliverables, but solely on Purchasing Purchasing Entity business or governmental purposes, and Purchasing Entity shall This section shall not affect a Purchasing
ed by Contractor or its licensors, licenses
sale of used products to employees or former employees.
Contractor reserves for itself all Proprietary Rights that it has not expressly granted to Purchasing Entity herein.
The license granted in this clause 20(c) does not apply to: (i) Equipment; (ii) Contractor-branded generally available software; or (ii) items licensed or otherwise provided under a separate agreement. Contractor is not limited in developing, using, or marketing services or products that are similar to the Deliverables or Professional Services ty obligations to Purchasing
Entity, in using the Deliverables or performing similar Professional Services for any other projects. Notwithstanding s subject to
Purchasing Entity approval.
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Any and all licensing, maintenance, cloud services, or order specific agreements referenced within the terms and conditions of this Master Agreement are agreed to only to the extent that the terms do not conflict with the terms of the Participating Addendum or the terms of the Master Agreement as incorporated into the Participating event of a conflict in the terms and conditions, the conflict shall be resolved as detailed in the Order of Precedence defined herein. Notwithstanding the foregoing, licensing, maintenance, cloud services agreements, or order specific agreements may be further negotiated by the Contractor or, if applicable, the Licensor, and the potential Purchasing Entity, provided the contractual documents are duly executed in writing.
If (i) Contractor is or becomes aware of any infringement claim made against a third-party branded product offered by Contractor through this Master Agreement, (ii) the third-party branded product is determined to infringe upon the intellectual property rights of another third party, and (iii) such infringement is not remedied by the third party so that the product is no longer infringing, Contractor shall immediately cease offering the product under this Master Agreement and notify the Lead State, NASPO, Participating Entities, and purchasers of the product.
Warranty.
The Contractor must ensure warranty service and maintenance for all equipment, including third party products provided. The Contractor must facilitate the Manufacturer or Publisher warranty and maintenance of third party products furnished through the Master Agreement. The Contractor shall provide the warranty service and maintenance for equipment and all peripherals on the Master Agreement.
System Failure or Damage.
In the event of system failure or damage caused by the Contractor or its Product, the Contractor shall use reasonable efforts to restore or assist in restoring the system to operational capacity. The Contractor shall be responsible under this provision to the extent a 'system' is defined at the time of the Order; otherwise the rights of the Purchasing Entity shall be governed by the Warranty.
Payment.
Payment after Acceptance is normally made within 30 days following the date the entire order is delivered or the date a correct invoice is received, whichever is later. After 45 days the Contractor may assess overdue account charges up to a maximum rate of one percent per month on the outstanding balance, unless a different late payment amount is specified in a Participating Addendum, Order, or otherwise prescribed by applicable law.
Payments will be remitted by mail or electronically. Payments may be made via a State or political subdivision Prices are exclusive of taxes, duties, and fees, unless otherwise quoted. If a withholding tax is required by law, the tax will be added and identified on the applicable invoice. All applicable taxes, duties, and fees must be identified on the quote.
Leasing or Alternative Financing Methods.
Lease purchase and term leases are allowable only for Purchasing Entities whose rules and regulations permit leasing of software. Individual Purchasing Entities may enter into a lease agreement for the products covered in this Master Agreement, if they have the legal authority to enter into these types of agreements without going through a competitive process and if the applicable PAs permit leasing. No lease agreements will be reviewed or evaluated as part of the RFP evaluation process.
Contract Provisions for Orders Utilizing Federal Funds.
Pursuant to Appendix II to 2 Code of Federal Regulations (CFR) Part 200, Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, Orders funded with federal funds may have additional contractual requirements or certifications that must be satisfied at the time the Order is placed or upon delivery. These federal requirements may be #10..
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proposed by Participating Entities in Participating Addenda and Purchasing Entities for incorporation in Orders placed under this Master Agreement.
Self Audit.
The Contractor must conduct at a minimum a quarterly self-audit, unless approved by the Lead State. The audit will sample a minimum of one tenth of one percent (.001) of orders with a maximum of 100 audits per quarter conducted.
For example: Up to 1,000 sales = 1 audit; 10,000 sales = 10 audits; Up to 100,000 sales = 100 audits. This will be a random sample of orders and invoices and must include documentation of pricing. Summary findings must be reported to Lead State with actions to correct documented findings.
Assignment/Subcontracts.
Contractor shall not assign, sell or otherwise transfer all or any part of this Master Agreement without prior written consent from the Lead State, such consent not to be unreasonably withheld.
The Lead State, or Participating Entity, shall not assign, delegate or otherwise transfer all or any part of this Master Agreement without prior written consent from Contractor, except for assignment or delegation to a Participating Entity State agency or eligible Purchasing Entity. The Lead State reserves the right to assign any rights or duties, including written assignment of contract administration duties to NASPO ValuePoint and other third parties.
Insurance.
Contractor shall, during the term of this Master Agreement, maintain in full force and effect, the insurance described in this section. Contractor shall acquire such insurance from an insurance carrier or carriers legally authorized to conduct business in the Lead State and in -, Class VII or better, in the most recently
option, result in termination of its Participating Addendum.
Coverage shall be written on an occurrence basis. The minimum acceptable limits shall be as indicated below:
Commercial General Liability covering premises operations, independent contractors, products and completed operations, blanket contractual liability, personal injury (including death), advertising liability, and property damage, with a limit of not less than $1 million per occurrence/$2 million general aggregate; Contractor must comply with any applicable State Workers Compensation or Employers Liability Insurance requirements.
Contractor shall pay premiums on all insurance policies. Contractor will use reasonable efforts to give thirty (30) days prior written notice to State prior to cancellation or non-renewal of any of the policies providing such coverage; provided, however that Contractor shall not be obligated to provide such notice if, concurrently with such cancellation or non-renewal, Contractor obtains coverage from different insurer(s) meeting the requirements described herein.
Prior to commencement of performance, Contractor shall provide to the Participating Entity a certificate of the Lead State that (1) names the Participating Entity as an additional insured, (2) provides that written notice of liability insurance policy shall be primary, with any liability insurance of any Participating Entity as secondary and #10..
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pt the
endorsement is provided to the applicable state.
During the term of this Master Agreement, Contractor shall upon request provide to the Lead State and Participating Entities evidence of coverage that meets the requirements of this Section and the applicable Participating Addendum. Failure to provide evidence of coverage, within thirty (30) calendar days of receipt of request
termination or the termination of any Participating Addendum.
Participating Addendum, or any Purchase Order.
Administrative Fees.
The Contractor shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint Administrative Fee of onequarter of one percent (0.25% or 0.0025) no later than sixty (60) days following the end of each calendar quarter.
The NASPO ValuePoint Administrative Fee shall be submitted quarterly and is based on all sales of products and services under the Master Agreement (less any charges for taxes or shipping). The NASPO ValuePoint Administrative Fee is not negotiable.
The NASPO ValuePoint Administrative Fee in this section shall be based on the gross amount of all sales (less any charges for taxes or shipping) at the adjusted prices (if any) in Participating Addenda.
Additionally, some states may require an additional fee be paid directly to the state only on purchases made by Purchasing Entities within that state. For all such requests, the fee level, payment method and schedule for such reports and payments will be incorporated into the Participating Addendum that is made a part of the Master Agreement. The Purchasing Entity may allow the Contractor to adjust the Master Agreement pricing to account for these additional fees for purchases made by Purchasing Entities within the jurisdiction of the Participating Entity. All such agreements shall not affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by the Purchasing Entities outside the jurisdiction of the state requesting the additional fee.
NASPO ValuePoint Reports
Sales Data Reporting. In accordance with this section, Contractor shall report to NASPO ValuePoint all Orders under this Master Agreement for which Contractor has invoiced the ordering entity or individual, including Orders invoiced to Participating Entity or Purchasing Entity employees for personal use if such use is permitted by this Master Agreement and the
Sales Data is a material requirement of this Master Agreement. Reporting requirements, including those related to the format, contents, frequency, or delivery of reports, may be updated by NASPO ValuePoint with reasonable notice to Contractor and without amendment to this Master Agreement. NASPO ValuePoint shall have exclusive ownership of any media on which reports are submitted and shall have a perpetual, irrevocable, non-exclusive, royalty free, and transferable right to display, modify, copy, and otherwise use reports, data, and information provided under this section.
Summary Sales Data.
shall, using the reporting tool or template provided by NASPO ValuePoint, report Summary Sales Data to NASPO ValuePoint for each calendar quarter no later than thirty (30) days following the end of the quarter. If Contractor has no reportable Sales Data for the quarter, Contractor shall submit a zero-sales report. the Solicitation or by NASPO ValuePoint, including customer information, Order information, and line-item details. #10..
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Contractor shall, using the reporting tool or template provided by NASPO ValuePoint, report Detailed Sales Data to NASPO ValuePoint for each calendar quarter no later than thirty (30) days following the end of the quarter. Detailed Sales Data shall be reported in the format provided in the Solicitation or provided by NASPO ValuePoint. The total sales volume of reported Detailed Sales Data shall be consistent with the total sales volume of reported Summary Sales Data.
Sales Data Crosswalks. Reserved.
Executive Summary. Contractor shall, upon request by NASPO ValuePoint, provide NASPO ValuePoint with an executive summary that includes but is not limited to a list of states with an active Participating Addendum, states with which Contractor is in negotiations, and any Participating Addendum roll-out or implementation activities and issues. NASPO ValuePoint and Contractor will determine the format and content of the executive summary.
NASPO ValuePoint Cooperative Program Marketing, Training, and Performance Review.
Contractor agrees to work cooperatively with NASPO ValuePoint personnel. Contractor agrees to present plans force
regarding the Master Agreement contract, including the competitive nature of NASPO ValuePoint procurements, the Master agreement and participating addendum process, and the manner in which qualifying entities can participate in the Master Agreement.
Contractor agrees, as Participating Addendums become executed, if requested by ValuePoint personnel to provide plans to launch the program within the Participating Entity. Plans will include time frames to launch the agreement and confirmation that the Con
as available in the Participating Entity.
Contractor agrees, absent anything to the contrary outlined in a Participating Addendum, to consider customer proposed terms and conditions, as deemed important to the customer, for possible inclusion into the customer agreement. Contractor will ensure that their sales force is aware of this contracting option.
Contractor agrees to participate in an annual contract performance review at a location selected by the Lead State and NASPO ValuePoint, which may include a discussion of marketing action plans, target strategies, marketing materials, as well as Contractor reporting and timeliness of payment of administration fees.
Contractor acknowledges that the NASPO ValuePoint logos may not be used by Contractor in sales and marketing until a logo use agreement is executed with NASPO ValuePoint.
The Lead State expects to evaluate the utilization of the Master Agreement at the annual performance review.
Lead State may, in its discretion, cancel the Master Agreement pursuant to Paragraph 42 of Exhibit A, or not exercise an option to renew, when Contractor utilization does not warrant further administration of the Master Agreement.
The Lead State may exercise its right to not renew the Master Agreement if contractor fails to record or report revenue for three consecutive quarters, upon 60-calendar day written notice to the Contractor. Cancellation based on nonuse or under-utilization will not occur sooner than two years after award of the Master Agreement. This subsection does not limit the discretionary right of either the Lead State or Contractor to cancel the Master Agreement pursuant to Paragraph 42 of Exhibit A or to terminate for default pursuant to Paragraph 44 of Exhibit A.
Contractor agrees to notify the Lead State and NASPO ValuePoint of any contractual most-favored-customer provisions in any Cooperative Purchasing Agreements that may affect the promotion of this Master Agreements or whose terms provide for adjustments to future rates or pricing based on rates, pricing in, or Orders from this master agreement. Upon request of the Lead State or NASPO ValuePoint, Contractor shall provide a copy of any such provisions. For the purposes of this paragraph, Cooperative Purchasing Agreement shall mean a cooperative #10..
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purchasing program facilitating public procurement solicitations and agreements using a lead agency model. This does not include contracts with any federal agency or any federal contract.
Right to Publish.
Throughout the duration of this Master Agreement, Contractor must secure from the Lead State prior approval for the public release of information that pertains to the potential work or activities covered by the Master Agreement. This limitation does not preclude publication about the award of the Master Agreement or marketing activities consistent with any proposed and accepted marketing plan. The Contractor shall not make any representations of NASPO Val
Agreement without prior written consent. Failure to adhere to this requirement may result in termination of the Master Agreement for cause.
Records Administration and Audit.
The Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Agreement and Orders placed by Purchasing Entities under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees. Contractor shall permit the Lead State, a Participating Entity, a Purchasing Entity, the federal government (including its grant awarding entities and the U.S. Comptroller General), and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and transcribe Contractor's books, documents, papers and records directly pertinent to this Master Agreement or orders placed by a Purchasing Entity under it for the purpose of making audits, examinations, excerpts, and transcriptions.
This right shall survive for a period of six (6) years following termination of this Agreement or final payment for any order placed by a Purchasing Entity against this Agreement, whichever is later, or such longer period as is required hereunder.
Without limiting any other remedy available to any governmental entity, the Contractor shall reimburse the applicable Lead State, Participating Entity, or Purchasing Entity for any overpayments inconsistent with the terms of records.
The rights and obligations herein exist in addition to any quality assurance obligation in the Master Agreement requiring the Contractor to self-audit contract obligations and that permits the Lead State to review compliance with those obligations.
Indemnification
arising from Contracto
and actions arising from breach of contract or warranty. urchasing
Entities, along with their officers and employees.
The indemnification obligations of this section do not apply in the event the claim or cause of action is the result of to bar any legal remedies the Contractor
Intellectual Property Indemnification.
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In the event of any such claim by any third party against the Indemnified Party that Products, Software, Services or Deliverables prepared, produced, or branded by Contractor and delivered pursuant to this Master Agreement infringe or misappropriate that third party's U.S. patent, copyright, trade secret, or other intellectual property rights ("Indemnified Claims"), the Indemnified Party shall promptly notify the Contractor. The and hold harmless the Indemnified Party against any loss, cost, expense, or liability (including legal fees) arising out of such a claim, whether or not such claim is successful against the Indemnified Party.
If Contractor receives prompt notice of such a claim that in the Contractor's opinion is likely to result in an adverse ruling, the Contractor shall at its option (1) obtain a right for the Indemnified Party to continue using such Products, Deliverables, or Software or allow Contractor to continue performing the Services; (2) modify such Products, Software, Services, or Deliverables to make them non-infringing without materially affecting their utility or functionality; (3) replace such Products, Software, Services, or Deliverables with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverables, or Software.
Notwithstanding the foregoing, Contractor shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Products, Software, Services, or Deliverables that were not performed by, on behalf of, or at the direction of Contractor; (2) the combination, operation, or use of the Products, Software, Services, or Deliverables in connection with a third-party product, software or service (the combination of which causes the claimed infringement); or (3) Contractor's compliance with written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by Indemnified Party. Contractor's duty to indemnify and defend under this Section is contingent upon: (a) Contractor receiving prompt written notice of the third-party claim or action for which Contractor must indemnify Indemnified Party, (b) Contractor having the right to solely control the defense and resolution of such claim or action, unless the law requires approval for a third party to defend the Indemnified Party and such approval is not received, and (c) cooperation with Contractor in defending and resolving such claim or action. This Section states exclusive remedies for any third-party intellectual property claim or action and nothing in this Master Agreement or elsewhere will obligate Contractor to provide any greater indemnity to Indemnified Party.
Limitations of Liability
The Parties agree that neither Contractor nor the indemnified party shall be liable to each other, regardless of the form of action, for consequential, incidental, indirect, or special damages except any claim related to bodily injury or death; an unauthorized release or breach of not public data as set forth more fully in Minn. Ch. 13; or a claim or demand based on patent, copyright, or other intellectual property infringement. 2 times the amount paid by Purchasing Entity to Contractor during the 12 months preceding the date of the dispute concerning any products and services, or $5,000,000, whichever is greater. This limit on liability does not apply to claims for bodily injury or death or for intellectual property infringement.
extend to any combination of the Product with any other product, system or method, unless the Product, system or method is:
specified by the Contractor to work with the Product; or #10..
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reasonably required, in order to use the Product in its intended manner, and the infringement could not have been avoided by substituting another reasonably available product, system or method capable of performing the same function; or
It would be reasonably expected to use the Product in combination with such product, system or method.
License of Pre-Existing Intellectual Property.
Intentionally deleted.
Assignment of Antitrust Rights.
Contractor irrevocably assigns to a Participating Entity who is a state any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws (15 U.S.C. § 1- ons), as now in effect and as may be amended from time to time, in connection with any goods or services provided in that state for the purpose of carrying out the Contractor's obligations under this Master Agreement or Participating Addendum, including, at the Participating Entity's option, the right to control any such litigation on such claim for relief or cause of action.
Debarment.
The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction (contract) by any governmental department or agency. This certification represents a recurring certification made at the time any Order is placed under this Master Agreement. If the Contractor cannot certify this statement, attach a written explanation for review by the Lead State.
Governing Law and Venue.
The construction and effect of the Master Agreement after award shall be governed by the law of the state serving as Lead State. The construction and effect of any Participating Addendum or Order against the Master Venue for any claim, dispute or action concerning the terms of the Master Agreement shall be in the state serving as Lead State. Venue for any claim, dispute, or action concerning any Order placed against the Master Agreement or the effect of a Participating Addendum shall be in the If a claim is brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for (in decreasing order of priority): the Lead State for claims relating to contract performance or administration if the Lead State is a party; a Participating State if a named party; the state where the Participating Entity or Purchasing Entity is located if either is a named party.
Confidentiality, Non-Disclosure, and Injunctive Relief.
Confidentiality. Contractor acknowledges that it and its employees or agents may, in the course of providing a Product under this Master Agreement, be exposed to or acquire information that is confidential to Purchasing Entity ients.
Any and all information of any form that is marked as confidential is or would by its nature be deemed confidential obtained by the other party or its employees or agents (the in the performance of this Master Agreement, including, but not necessarily limited to (1) any information of the originating party
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Any reports or other documents or items (including software) that result from the use of the Confidential Information by the receiving party shall be treated in the same manner as the Confidential Information.
Confidential Information does not include information that (1) is or becomes (other than by disclosure by the receiving party) publicly known; (2) is furnished by the originating party to others without restrictions similar to those imposed by this Master Agreement; (3) is rightfully in the possession without the obligation of nondisclosure prior to the time of its disclosure under this Master Agreement; (4) is obtained from a source other than the originating party without the obligation of confidentiality, (5) is disclosed with the written consent of the originating party or; (6) is independently developed by employees, agents or subcontractors of the receiving party who can be shown to have had no access to the Confidential Information.
Non-Disclosure. The receiving party shall hold Confidential Information in confidence, using at least the industry standard of confidentiality, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than what is necessary to the performance of Orders placed under this Master Agreement.
Each party shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. Contractor shall use commercially reasonable efforts to assist Purchasing Entity in identifying and preventing any unauthorized use or disclosure of any Confidential Information.
Without limiting the generality of the foregoing, the receiving party shall advise the originating party, and the applicable Participating Entity, and the Lead State if the originating party is a Purchasing Entity, and the Lead State if the originating party is a Participating Entity, immediately if the receiving party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Master Agreement, and the receiving party shall at its expense cooperate with advise the originating party in seeking injunctive or other equitable relief in the name of either party against any such person.
Except as directed by the originating party, the receiving party will not at any time during or after the term of this Master Agreement disclose, directly or indirectly, any Confidential Information to any person, except in accordance with this Master Agreement, and that upon termination of this Master Agreement or at the request, the receiving party shall turn over to the originating party all documents, papers, and other matter in possession that embody Confidential Information.
Notwithstanding the foregoing, Contractor may keep one copy of such Confidential Information necessary for quality assurance, audits and evidence of the performance of this Master Agreement, and Purchasing Entity may retain Confidential Information to the extent and for the duration required by applicable law.
Injunctive Relief. Each party acknowledges that breach of this section, including disclosure of any Confidential Information, will cause irreparable injury to originating party that is inadequately compensable in damages. Accordingly, the originating party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Purchasing Entity and are reasonable in scope and content.
Purchasing Entity Law. These provisions shall be applicable only to extent they are not in conflict with the applicable public disclosure laws of any Purchasing Entity.
The rights granted Purchasing Entities and Contractor obligations under this section shall also extend to the data relating to Orders under this Master Agreement that identify the entity/customer, Order dates, line item #10..
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descriptions and volumes, and prices/rates. This provision does not apply to disclosure to the Lead State, a Participating State, or any governmental entity exercising an audit, inspection, or examination pursuant to Paragraph 33 of Exhibit A. To the extent permitted by law, Contractor shall notify the Lead State of the identity of any entity seeking access to the Confidential Information described in this subsection.
Public Information.
This Master Agreement and all related documents are subject to disclosure pursuant to the Lead State information laws.
Cancellation.
Unless otherwise set forth in this Master Agreement, this Master Agreement may be canceled by either party upon 60 days written notice prior to the effective date of the cancellation. Further, any Participating Entity may cancel its participation upon 30 days written notice, unless otherwise stated in the Participating Addendum. Cancellation may be in whole or in part. Any cancellation under this provision shall not affect the rights and obligations attending orders outstanding at the time of cancellation, including any right of a Purchasing Entity to indemnification by the Contractor, rights of payment for Products delivered and accepted, rights attending any warranty or default in performance in association with any Order, and requirements for records administration and audit. Cancellation of the Master Agreement due to Contractor default may be immediate as set forth in Paragraph 44 of Exhibit A.
Force Majeure.
Neither party to this Master Agreement shall be held responsible for delay or default caused by fire, riot, unusually severe weather, other acts of God, or war which are beyond t terminate this Master Agreement after determining such delay or default will reasonably prevent successful performance of the Master Agreement.
Defaults and Remedies.
The occurrence of any of the following events shall be an event of default under this Master Agreement:
Nonperformance of contractual requirements; or
A material breach of this Master Agreement; or
Any certification, representation or warranty by Contractor in response to the RFP or in this Master Agreement that proves to be untrue or materially misleading; or Institution of proceedings under any bankruptcy, insolvency, court-ordered reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within thirty (30) calendar days after the institution or occurrence thereof; or
Any default specified in another section of this Master Agreement.
Upon the occurrence of an event of default, except for material breach, the Lead State shall issue a written notice of default, identifying the nature of the default, and providing a period of 30 calendar days in which Contractor shall have an opportunity to cure the default. The Lead State shall not be required to provide advance written notice or a cure period and may immediately terminate this Master Agreement in whole or in part if the Lead State, in its sole discretion, determines that it is reasonably necessary to preserve public safety or prevent including liquidated damages to the extent provided for under this Master Agreement. The Lead State may immediately terminate this Master Agreement upon material breach of the Master Agreement by Contractor. #10..
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If Contractor is afforded an opportunity to cure and fails to cure the default within the period specified in the written notice of default, Contractor shall be in breach of its obligations under this Master Agreement and the Lead State shall have the right to exercise any or all of the following remedies:
Exercise any remedy provided by law; and
Terminate this Master Agreement and any related contracts or portions thereof; and Impose liquidated damages as provided in this Master Agreement; and Suspend Contractor from being able to respond to future bid solicitations; and Withhold payment until the default is remedied.
Unless otherwise specified in the Participating Addendum, in the event of a default under a Participating Addendum, a Participating Entity shall provide a written notice of default as described in this section and shall have all of the rights and remedies under this paragraph regarding its participation in the Master Agreement, in addition to those set forth in its Participating Addendum. Unless otherwise specified in a Purchase Order, a Purchasing Entity shall provide written notice of default as described in this section and have all of the rights and remedies under this paragraph and any applicable Participating Addendum with respect to an Order placed by the Purchasing Entity.
Nothing in these Master Agreement Terms and Conditions shall be construed to limit the rights and remedies available to a Purchasing Entity under the applicable commercial code.
Waiver of Breach.
Failure of the Lead State, Participating Entity, or Purchasing Entity to declare a default or enforce any rights and remedies shall not operate as a waiver under this Master Agreement or Participating Addendum. Any waiver by the Lead State, Participating Entity, or Purchasing Entity must be in writing. Waiver by the Lead State or Participating Entity of any default, right or remedy under this Master Agreement or Participating Addendum, or by Purchasing Entity with respect to any Purchase Order, or breach of any terms or requirements of this Master Agreement, a Participating Addendum, or Purchase Order shall not be construed or operate as a waiver of any subsequent default or breach of such term or requirement, or of any other term or requirement under this Master Agreement, Participating Addendum, or Purchase Order.
Notices.
If one party is required to give notice to the other under the Master Agreement, such notice shall be in writing and shall be effective upon receipt. Delivery may be by certified United States mail or by hand, in which case a signed receipt shall be obtained. A facsimile or electronic transmission shall constitute sufficient notice, provided the receipt of the transmission is confirmed by the receiving party. Either party must notify the other of a change in address for notification purposes. All notices to the Lead State shall be addressed as follows:
Elizabeth Randa, Acquisition Management Specialist
112 Administration Bldg.
50 Sherburne Avenue
St. Paul, MN 55155
[email protected]
No Waiver of Sovereign Immunity.
In no event shall this Master Agreement, any Participating Addendum or any contract or any Purchase Order issued thereunder, or any act of the Lead State, a Participating Entity, or a Purchasing Entity be a waiver of any form of defense #10..
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or immunity, whether sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any claim or from the jurisdiction of any court.
This section applies to a claim brought against the Participating Entities who are states only to the extent Congress has section is also not a waiver by the state of any form of immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States. #10..
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Exhibit B: Minnesota Terms and Conditions
Change Requests.
The Lead State reserves the right to request, during the term of the Master Agreement, changes to the products offered within the Band(s). Products introduced during the term of the Master Agreement shall go through a formal review process. The process for updating the products offered within a Band is outlined in Paragraph 2 of Exhibit B. The Contractor shall evaluate and recommend products for which agencies have an expressed need. The Lead State shall require the Contractor to provide a summary of its research of those products being recommended for inclusion in the Master Agreement as well as defining how adding the product will enhance the Master Agreement. The Lead State may request that products, other than those recommended, are added to the Master Agreement.
In the event that the Lead State desires to add new products and services that are not included in the original Master Agreement, the Lead State requires that independent manufacturers and resellers cooperate with the already should be demonstrated to the Lead State. The Master Agreement shall be modified via supplement or amendment. The Lead State will negotiate the inclusion of the products and services with the Contractor. No products or services will be added to the Master Agreement without
Product and Service Schedule (PSS).
Creating the Product and Service Schedule (PSS). Contractor will use the attached sample PSS to create and maintain a complete listing of all products and services offered under the Master Agreement. The PSS must conform to the contracted minimum discounts. Contractor may create and maintain a separate PSS for a Participating Entity based on the requirements and restrictions of the Participating Entity.
Contractors are encouraged to provide remote learning bundles for K-12 Education. These bundles can be included in the response to the PSS.
Maintaining the PSS.
In General. Throughout the term of the Master Agreement, on a quarterly basis, Contractor may update the PSS to make model changes, add new products or services, or remove obsolete or discontinued products or services. Any updates to the PSS must conform to the Master Agreement requirements, including the scope of the Master Agreement and contracted minimum discounts.
Process. Contractor must provide notification to the Lead State of any changes to their PSS using the attached Action Request Form (ARF).
a)
manufactured products, or remove discontinued or obsolete products or services, and Contractor does not b)
PSS. If the proposed third-party manufacturer holds a NASPO Master Agreement for Computer Equipment, Contractor must obtain written authorization from that manufacturer. Contractor must have the Lead c) Contractor must maintain a historic record of all past PSSs on their dedicated NASPO ValuePoint website.
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d) Pursuant to the audit provisions of the Master Agreement, upon the request of NASPO ValuePoint, the Lead State, or a Participating Entity, Contractor must provide an historic version of any Baseline Price List.
Purchase Orders.
There will be no minimum order requirements or charges to process an individual purchase order. The Participating Addendum number and the PO number must appear on all documents (e.g., invoices, packing slips, etc.). The Ordering Risk of Loss or Damage.
The Purchasing Entity is relieved of all risks of loss or damage to the goods or equipment during periods of transportation, and installation by the Contractor and in the possession of the Contractor or their authorized agent.
Payment Card Industry Data Security Standard and Cardholder Information Security.
Contractor assures all of its Network Components, Applications, Servers, and Subcontractors (if any) comply with the ecurity appliances;
rvers.
or telephone number.
Subcontractors (if any) must be responsible for the security of all Cardholder Data in its possession; and will only use Cardholder Data for assisting cardholders in completing a transaction, providing fraud control services, or for other uses specifically required by law. Contractor must have a business continuity program which conforms to PCIDSS to protect Cardholder Data in the event of a major disruption in its operations or in the event of any other disaster or system failure which may occur to operations; will continue to safeguard Cardholder Data in the event this Agreement terminates or expires; and ensure that a representative or agent of the payment card industry and a representative or agent of the Purchasing Entity shall be provided with full cooperation and access to conduct a thorough security review to validate compliance with PCIDSS.
Foreign Outsourcing of Work.
Upon request, the Contractor is required to provide information regarding the location of where services, data storage, and location of data processing under the Master Agreement will be performed.
State Audits (Minn. Stat. § 16C.05, subd. 5).
The books, records, documents, and accounting procedures and practices of the Contractor or other party, that are relevant to the Master Agreement or transaction are subject to examination by the contracting agency and either the tate Auditor as appropriate for a minimum of six years after the end of the Master Agreement or transaction. The Lead State reserves the right to authorize delegate(s) to audit this Master Agreement and transactions.
Certification of Nondiscrimination (in accordance with Minn. Stat. § 16C.053).
If the value of this Contract, including all extensions, is $50,000 or more, Contractor certifies it does not engage in and has no present plans to engage in discrimination against Israel, or against persons or entities doing business in Israel, when making decisions related to the operation of the contractor's business. For purposes of this section, "discrimination" includes but is not limited to engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel, when such actions are taken in a manner that in any way discriminates on the basis of nationality or national origin and is not based on a valid business reason.
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Human Rights/Affirmative Action.
The Lead State requires affirmative action compliance by its Contractors in accordance with Minn. Stat. § 363A.36 and Minn. R. 5000.3400 to 5000.3600.
Covered Contracts and Contractors. If the Contract exceeds $100,000 and the Contractor employed more than 40 full-time employees on a single working day during the previous 12 months in Minnesota or in the state where it has its principal place of business, then the Contractor must comply with the requirements of Minn. Stat. § 363A.36 and Minn. R. 5000.3400-5000.3600.
Minn. R. 5000.3400-5000.3600 implement Minn. Stat. § 363A.36. These rules include, but are not limited to, criteria for contents, approval, and implementation of affirmative action plans; procedures for issuing certificates of sanctions, and notice and hearing; annual compliance reports; procedures for compliance review; and contract consequences for noncompliance. The specific criteria for approval or rejection of an affirmative action plan are contained in various provisions of Minn. R. 5000.3400 5000.3600 including, but not limited to, parts 5000.3420- 5000.3500 and parts 5000.3552 5000.3559.
Disabled Workers. Minn. R. 5000.3550 provides the Contractor must comply with the following affirmative action requirements for disabled workers.
AFFIRMATIVE ACTION FOR DISABLED WORKERS
(a) The Contractor must not discriminate against any employee or applicant for employment because of physical or mental disability in regard to any position for which the employee or applicant for employment is qualified. The Contractor agrees to take affirmative action to employ, advance in employment, and otherwise treat qualified disabled persons without discrimination based upon their physical or mental disability in all employment practices such as the following: employment, upgrading, demotion or transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. (b) The Contractor agrees to comply with the rules and relevant orders of the Minnesota Department of Human Rights issued pursuant to the Minnesota Human Rights Act. (c)
noncompliance may be taken in accordance with Minn. Stat. § 363A.36 and the rules and relevant orders of the Minnesota Department of Human Rights issued pursuant to the Minnesota Human Rights Act.
(d) The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by the commissioner of the Minnesota Department of Human
action to employ and advance in employment qualified disabled employees and applicants for employment, and the rights of applicants and employees. (e) The Contractor must notify each labor union or representative of workers with which it has a collective bargaining agreement or other contract understanding, that the Contractor is bound by the terms of Minn. Stat. § 363A.36 of the Minnesota Human Rights Act and is committed to take affirmative action to employ and advance in employment physically and mentally disabled persons. failure to implement its affirmative action plan or make a good faith effort to do so include, but are not limited to, suspension or revocation of a certificate of compliance by #10..
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the commissioner, refusal by the commissioner to approve subsequent plans, and termination of all or part of the Contract by the commissioner or the State.
Certification. The Contractor hereby certifies that it is in compliance with the requirements of Minn. Stat. § 363A.36, subd. 1 and Minn. R. 5000.3400-5000.3600 and is aware of the consequences for noncompliance. It is agreed between the parties that Minn. Stat. 363.36 and Minn. R. 5000.3400 to 5000.3600 are incorporated into any contract between these parties based upon this specification or any modification of it. A copy of Minn. Stat. § 363A.36 and Minn. R. 5000.3400 to 5000.3600 are available upon request from the contracting agency.
Equal Pay Certification.
If required by Minn. Stat. §363A.44, the Contractor must have a current Equal Pay Certificate prior to Contract execution. If Contractor's Equal Pay Certificate expires during the term of this Contract, Contractor must promptly reapply for an Equal Pay Certificate with the Minnesota Department of Human Rights and notify the State's Authorized Representative once the Contractor has received the renewed Equal Pay Certificate. If Contractor claims to be exempt, the Lead State may require Contractor to verify its exempt status.
Americans with Disabilities Act (ADA).
Products provided under the Master Agreement must comply with the requirements of the Americans with Disabilities Agreement must state when a product is not in compliance. If any descriptive marketing materials are silent as to these requirements, the Contractor agrees that the customer can assume the product meets or exceeds the ADA requirements.
Nonvisual Access Standards.
Pursuant to Minn. Stat. § 16C.145, the Contractor shall comply with the following nonvisual technology access standards:
That the effective interactive control and use of the technology, including the operating system applications programs, prompts, and format of the data presented, are readily achievable by nonvisual means; That the nonvisual access technology must be compatible with information technology used by other individuals with whom the blind or visually impaired individual must interact; That nonvisual access technology must be integrated into networks used to share communications among employees, program participants, and the public; and
That the nonvisual access technology must have the capability of providing equivalent access by nonvisual means to telecommunications or other interconnected network services used by persons who are not blind or visually impaired.
These standards do not require the installation of software or peripheral devices used for nonvisual access when the information technology is being used by individuals who are not blind or visually impaired.
Accessibility Standards.
Contractor acknowledges and is fully aware that the Lead State (Executive branch state agencies) has developed IT Accessibility Standard effective September 1, 2010. The standard entails, in part, the Web Content Accessibility Guidelines (WCAG) and Section 508 which can be viewed at: https://mn.gov/mnit/government/policies/accessibility/. The Standards apply to web sites, software applications, electronic reports and output documentation, training delivered in electronic formats (including, but not limited to, documents, videos, and webinars), among others. As upgrades are made to the software, products, or subscriptions available through this Contract, the Contractor agrees to #10..
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develop functionality which supports accessibility. If any issues arise due to nonconformance with the above-mentioned accessibility Standards, the Contractor agrees to provide alternative solutions upon request at no additional charge to the State.
When updates or upgrades are made to the products or services available through this Contract, the Contractor agrees documentation, upon request, must be provided to the Lead State in advance of the change, occurring within an agreed upon timeframe sufficient for the state to review the changes and either approve them or request a remediation plan from the Contractor. Contractor warrants that its Products comply with the above-mentioned accessibility Standards and agrees to indemnify, defend, and hold harmless the Lead State against any claims related to non-compliance of -mentioned accessibility Standards. If agreed-upon updates fail to improve the contract cancellation or for the Lead State to consider the Contractor in default.
Conflict Minerals.
Contractor agrees to provide information upon request regarding adherence to the Conflict Minerals section of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Section 1502).
See: http://beta.congress.gov/111/bills/hr4173/111hr4173enr.pdf#page=838 http://www.sec.gov/news/press/2012/2012-163.htm
Hazardous Substances.
To the extent that the goods to be supplied by the Contractor contain or may create hazardous substances, harmful physical agents or infectious agents as set forth in applicable state and federal laws and regulations, the Contractor must provide Material Safety Data Sheets regarding those substances. A copy must be included with each delivery.
Copyrighted Material Waiver.
The Lead State reserves the right to use, reproduce and publish proposals in any manner necessary for State agencies and local units of government to access the responses, including but not limited to photocopying, State Intranet/Internet postings, broadcast faxing, and direct mailing. In the event that the response contains copyrighted or trademarked ma
publish the information, regardless of whether the responder is the manufacturer or reseller of the products listed in the materials. By signing its response, the responder certifies that it has obtained all necessary approvals for the reproduction and distribution of the contents of its response and agrees to indemnify, protect, save and hold the Lead State, its representatives and employees harmless from any and all claims arising from the violation of this section and agrees to pay all legal fees incurred by the Lead State in the defense of any such action.
Publicity.
the quality or effectiveness of the
Assistant Director or designee of Office of State Procurement. Representations include any publicity, including but not limited to advertisements, notices, press releases, reports, signs, and similar public notices.
Performance While Dispute is Pending.
Notwithstanding the existence of a dispute, the parties shall continue without delay to carry out all of their responsibilities under the Master Agreement that are not affected by the dispute. If a party fails to continue without delay to perform its responsibilities under the Master Agreement, in the accomplishment of all undisputed work, any additional cost incurred by the other parties as a result of such failure to proceed shall be borne by the responsible party.
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Organizational Conflicts of Interest.
An organizational conflict of interest exists when, because of existing or planned activities or because of relationships with other persons:
the Contractor is unable or potentially unable to render impartial assistance or advice to the State; the Contrac
the Contractor has an unfair competitive advantage.
The Contractor agrees that if an organizational conflict of interest is discovered after award, an immediate and full disclos
State Procurement that shall include a description of the action the Contractor has taken or proposes to take to avoid or mitigate such conflicts. If an organizational conflict of interest is determined to exist, the Lead State may, at its discretion, cancel the Master Agreement. In the event the Contractor was aware of an organizational conflict of interest prior to the award of the Master Agreement and did not disclose the conflict to the Master Agreement Administrator, the Lead State may terminate the Master Agreement for default. The provisions of this clause shall be included in all Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Certification regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions. Instructions for certification:
By signing and submitting this proposal, the prospective lower tier participant [responder] is providing the certification set out below.
The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the federal government, the department or agency with which this transaction originated may pursue available remedies, including suspension and debarment.
The prospective lower tier participant shall provide immediate written notice to the person to whom this proposal [response] is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.
The terms covered transaction, debarred, suspended, ineligible lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the meaning set out in the Definitions and Coverages section of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.
The prospective lower tier participant agrees by submitting this response that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction [subcontract equal to or exceeding $25,000] with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. #10..
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The prospective lower tier participant further agrees by submitting this proposal that it will include this Lower Tier
covered transactions and in all solicitations for
lower tier covered transactions.
A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the list of parties excluded from federal procurement and nonprocurement programs.
Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal government, the department or agency with which this transaction originated may pursue available remedies, including suspension and debarment.
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions.
The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
Government Data Practices.
The Contractor and the Lead State must comply with the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13, (and where applicable, if the Lead State contracting party is part of the judicial branch, with the Rules of Public Access to Records of the Judicial Branch promulgated by the Minnesota Supreme Court as the same may be amended from time to time) as it applies to all data provided by the Lead State to the Contractor and all data provided to the Lead State by the Contractor. In addition, the Minnesota Government Data Practices Act applies to all data created, collected, received, stored, used, maintained, or disseminated by the Contractor in accordance with the Master Agreement that is private, nonpublic, protected nonpublic, or confidential as defined by the Minnesota Government Data Practices Act, Ch. 13 (and where applicable, that is not accessible to the public under the Rules of Public Access to Records of the Judicial Branch).
In the event the Contractor receives a request to release the data referred to in this article, the Contractor must immediately notify the Lead State. The Lead State will give the Contractor instructions concerning the release of the data to the requesting party before the data is released. The civil remedies of Minn. Stat. § 13.08, apply to the release of the data by either the Contractor or the Lead State.
The Contractor agrees to indemnify, save, and hold the Lead State, its agent and employees, harmless from all claims arising out of, resulting from, or in any manner attributable to any violation of any provision of the Minnesota #10..
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Government Data Practices Act (and where applicable, the Rules of Public Access to Records of the Judicial Branch), including legal fees and disbursements paid or incurred to enforce this provision of the Master Agreement. In the event that the Contractor subcontracts any or all of the work to be performed under the Master Agreement, the Contractor shall retain responsibility under the terms of this article for such work.
Survivability.
Certain rights and duties of the Lead State and Contractor will survive the expiration or cancellation of the RFP and resulting Master Agreement. These rights and duties include but are not limited to paragraphs: Indemnification; Limitations of Liability; State Audits; Government Data Practices; Governing Law and Venue; Publicity; and Administrative Fees.
Severability.
If any provision of the Master Agreement, including items incorporated by reference, is found to be illegal, unenforceable, or void, then both the Lead State and the Contractor shall be relieved of all obligations arising under such provisions. If the remainder of the Master Agreement is capable of performance it shall not be affected by such declaration or finding and shall be fully performed.
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Exhibit C: Requirements
Contractor Verification.
Contractor must be a manufacturer of a Product in - product that is manufactured by another company does not meet this requirement. If the Contractor ceases production, sells or assigns their manufacturing to another vendor, or otherwise no longer manufactures a product during the life of Warranty and Maintenance.
Contractor must ensure warranty service and maintenance for all equipment, including third party products provided.
The Contractor must facilitate the Manufacturer or Publisher warranty and maintenance of third party products furnished through the Master Agreement. The Contractor shall provide the warranty service and maintenance for equipment and all peripherals on the Master Agreement.
Website.
Master Agreement website must offer twenty-four (24) hours per day, seven (7) days per week availability, except for (i.e., public) on-line catalog and ordering systems. No other items or pricing may be shown on the website without written approval from the Lead State
Mandatory Specifications:
Designated Baseline Price List(s) (e.g., MSRP, List, or Education) Product and Service Schedule (PSS)
Product specifications, pricing, and configuration aids for the major product categories proposed that can be used to obtain an on-line quote,
Service options and service agreements available on the contract. Please refer to Paragraph 5.
Contact information for order placement, service concerns (warranty and maintenance), problem reporting, and billing concerns
Sales representatives for participating entities
Links to environmental certification, including but not limited to take-back/recycling programs, EPEAT, Energy Star, etc.
Desirable Specifications:
Purchase order tracking
Information on accessibility and accessible products
Signed Master Agreement
Online ordering capability with the ability to remember multiple ship to locations (if applicable to product) List of approved partners, if applicable
Within 30 calendar days of the notice of intent to award a Master Agreement, Contractor must provide a sample URL of the Master Agreement webpage to the Lead State for review and approval. The Lead State will review and determine acceptability of the website format and data. If the information is determined to be unacceptable or incorrect, the Contractor will have 15 calendar days to provide revisions to the Lead State. After the Lead State approves the website, Contractor may not make material changes to the website without notifying the Lead State through the ARF process and receiving written approval of the changes.
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Environmental Certifications.
Contractor must include environmental or supply chain responsibility certifications and registrations for products sold through this Contract on their website. Contractor must provide these certifications and registrations for specific products to Participating Entities upon request.
EPEAT Registration.
Contractor agrees that applicable products offered that have EPEAT Standards provided under the Master Agreement must have achieved a minimum EPEAT Bronze registration. This requirement does not apply to Band 3.
Contractor may propose the addition of a product that has not yet achieved a minimum EPEAT Bronze registration. The Lead State, in its sole discretion may require Contractor to provide the following documentation to support the addition of the proposed product:
cation process is
underway; or
CAB stating that the relevant product has been registered with the CAB and that verification is underway.
The Lead State reserves the right to reject the inclusion of such product, or if approved, require Contractor to remove the product at a later date if the product does not achieve a minimum EPEAT Bronze registration. The Contractor must remove any products that subsequently exit the verification process without achieving EPEAT Bronze or greater from the Master Agreement.
Third-Party Products.
Some products offered may be manufactured by a third party. Contractor, however, must provide or facilitate the warranty service and maintenance for all Third-Party Products on the Master Agreement either directly or pass-through from the manufacturer. Contractor may not offer products manufactured by another Contractor holding a Minnesota NASPO ValuePoint Master Agreement for Computer Equipment without approval from the Lead State. Warranty for third-party products must be provided by the Contractor. Warranty documents for products manufactured by a third party are preferred to be delivered to the Participating Entity with the products. Contractor can only offer Third-Party Products in a Band they have been awarded.
Thirdtal sales under this Master Agreement. The Lead State may limit the sale of Third-Party Products through the Master Agreement during the life of the Master Agreement should Third-Party Product sales be determined to consistently exceed one third of the total sales under this Master Agreement. Such limitation may take the form of any action the Lead State so chooses, up to and including non-renewal or cancellation of the Master Agreement.
Partner Utilization.
If utilizing partners, the Contractor is responsible for the partners providing products and services, as well as warranty service and maintenance for equipment the partner provides. Participating Entities have the option of utilizing partners.
Contractor must provide a Participating Entity a copy of its plan for partner utilization upon request. Contractor must make available a list of approved partners for each Participating Entity. Participating Entities must approve specific Partners as outlined within the relevant Participating Addendum, and only partners approved by the Participating Entity may be deployed. The Participating Entity will define the process to add and remove partners in their Participating Addendum.
2019 National Defense Authorization Act, Section 889(f)(3).
Under the 2019 National Defense Authorization Act, Section 889(f)(3), the US military is prohibited from purchasing video surveillance and telecommunications equipment from certain Chinese-owned technology firms. While US state are #10..
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not subject to this act, there is increasing concern for the security of state data. Contractor certifies for the term of this Master Agreement that it is not subject to laws, rules, or policies potentially requiring disclosure of, or provision of access to, customer data to foreign governments or entities controlled by foreign governments, and that Contractor's Products do not contain, include, or utilize components or services supplied by any entity subject to the same.
Contractor also certifies that its Products do not contain, include, or utilize any covered technology prohibited under Section 889 of the National Defense Authorization Act, as amended. #10..
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Exhibit D: Pricing Schedule
Attached and incorporated into this Master Agreement as Exhibit D is the Price Schedule. #10..
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Exhibit D: Price Schedule
NASPO ValuePoint Computer Equipment (2023-2028)
CONTROL SET
Master Agreement: 23004
Contractor Name: Dell Marketing, LP
Awarded Bands:
x Band 1: Personal Computing Devices (Windows)
x Band 2: Personal Computing Devices (Non-Windows)
x Band 3: Servers and Storage
Band Category Code Category Description Discount off
Baseline List
1 1B Band 1 - Minimum Discount 18.0%
1 1T Band 1 - Third Party Product Minimum Discount 5.5% 2 2B Band 2 - Minimum Discount 18.0%
2 2T Band 2 - Third Party Product Minimum Discount 5.5% 3 3B Band 3 - Minimum Discount 18.0%
3 3T Band 3 - Third Party Product Minimum Discount 5.5% S-1 Standalone Services 4.0%
S-2 Warranty Services 4.0%
S-3 Training and Other Professional Services 4.0%
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Exhibit D: Price Schedule Discount Structure
Master Agreement: 23004
Contractor Name: Dell Marketing, LP
Baseline Price List: Posted on Contractor's dedicated NASPO ValuePoint website Band 1: Personal Computer Equipment (Windows OS)
Band Category Code Category Description Discount off
Baseline List
1 1B Band 1 - Minimum Discount 18.0%
1 1B-1 Desktops - Alienware, Inspiron, Vostro, XPS 0.5% 1 1B-2 Notebooks - Alienware, Inspiron, Vostro, XPS 2.5% 1 1B-3 Projectors/Monitors/Other Electronics 2.5%
1 1B-4 Displays 2.5%
1 1B-5 Imaging 2.5%
1 1B-6 Dell Branded - Printer accessories, parts, and toner 1.5% 1 1B-7 Spare Parts related to Band 1 0.5%
1 1B-8 Customer Kits 15.0%
1 1B-9 Ready to Ship configurations 4.0%
1 1T Band 1 - Third Party Product Minimum Discount 5.5% 1 1T-1 Selected Third Party - Software and Peripherals 0.5% Band 2: Personal Computer Equipment (Non-Windows OS)
Band Category Code Category Description Discount off
Baseline List
2 2B Band 2 - Minimum Discount 18.0%
2 2B-1 Commercial Chromebooks 15.0%
2 2B-2 Consumer Chromebooks 15.0%
2 2B-3 Projectors/Monitors/Other Electronics 2.5%
2 2B-4 Displays 2.5%
2 2B-5 Imaging 2.5%
2 2B-6 Dell Branded - Printer accessories, parts, and toner 1.5% 2 2B-7 Spare Parts related to Band 2 0.5%
2 2B-8 Customer Kits 15.0%
2 2B-9 Ready to Ship configurations 4.0%
2 2T Band 2 - Third Party Product Minimum Discount 5.5% 2 2T-1 Selected Third Party - Software and Peripherals (Non-discountable) 0.5% Band 3: Servers and Storage
Band Category Code Category Description Discount off
Baseline List
3 3B Band 3 - Minimum Discount 18.0%
3 3B-1 Spare Parts related to Band 3 0.5%
3 3B-2 Customer Kits 15.0%
3 3T Band 3 - Third Party Product Minimum Discount 5.5% 3 3T-1 Selected Third Party - Software and Peripherals 0.5% #10..
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Exhibit D: Price Schedule Volume-Based Discounts
Master Agreement: 23004
Contractor Name: Dell Marketing, LP
Bands 1 & 2
1. Per Transaction Multiple Unit Discount(s)
Min $ Single Transaction Max $ Single Transaction Per Transaction Multiple Unit Discount
$100,000.00 $199,999.99 1.0%
$200,000.00 $399,999.99 2.0%
$400,000.00 $599,999.99 4.0%
$600,000.00 $999,999.99 6.0%
$1,000,000.00 No Maximum 8.0%
2. Cumulative Discount(s)
Threshold Discount Level
Up to 2B 0.0%
$2B to $4B 1.0%
$4B to $6B 2.0%
$6B to $8B 3.0%
$8B to $10B 4.0%
Greater than $10B 5.0%
3. Other Discount(s)
Band 3
1. Per Transaction Multiple Unit Discount(s)
Min $ Single Transaction Max $ Single Transaction Per Transaction Multiple Unit Discount
$250,000.00 $499,999.99 1.0%
$500,000.00 $999,999.99 2.0%
$1,000,000.00 $1,499,999.99 4.0%
$1,500,000.00 $1,999,999.99 6.0%
$2,000,000.00 No Maximum 8.0%
none
Contractor provides a contractual volume discount program as follows based on dollars in a single purchase order or combination of purchase orders submitted at one time by a Purchasing Entity, or multiple entities conducting a cooperative purchase.
Contractor provides a cumulative volume discount as follows based on dollars resulting from the cumulative purchases by all purchases made by Purchasing Entities for the duration of the Master Agreement.
Note: Cumulative Discount does not apply to Category Exceptions, 3rd party products, services, and special promotional offers
Note: Per Transaction Multiple Unit Discount does not apply to Category Exceptions, 3rd party products, services, and special promotional offers
Note: Per Transaction Multiple Unit Discount does not apply to Category Exceptions, 3rd party products, services, and special promotional offers.
Contractor provides a contractual volume discount program as follows based on dollars in a single purchase order or combination of purchase orders submitted at one time by a Purchasing Entity, or multiple entities conducting a cooperative purchase.
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Exhibit D: Price Schedule Volume-Based Discounts
2. Cumulative Discount(s)
Column1 Discount Level
Up to 2B 0.0%
$2B to $4B 1.0%
$4B to $6B 2.0%
$6B to $8B 3.0%
$8B to $10B 4.0%
Greater than $10B 5.0%
3. Other Discount(s)
Additional discount(s) available.
Contractor provides a cumulative volume discount as follows based on dollars resulting from the cumulative purchases by all purchases made by Purchasing Entities for the duration of the Master Agreement. none
Note: Cumulative Discount does not apply to Category Exceptions, 3rd party products, services, and special promotional offers.
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Exhibit D: Price Schedule Services
Master Agreement: 23004
Contractor Name: Dell Marketing, LP
Travel for Services will be negotiated with each Participating Entity in the Participating Addendum.
All Awarded Bands
Category Code Description of Service Percent Discount
S-1 Standalone Services 4.0%
S-2 Warranty Services 4.0%
S-3 Training and Other Professional Services 4.0%
Each Purchasing Entity will determine if and how services will be offered in the Participating #10..
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Exhibit D: Price Schedule Lease Rates
Master Agreement: 23004
Contractor Name: Dell Marketing, LP
All Awarded Bands
Optional: Lease Rates
Dell Financial Services (DFS’) payment solutions offer flexible end-of term options designed to suit each entity’s unique needs. Payment terms are generally from 24 through 60 months and are tailored to match the essential useful life of the equipment to the payment term. Payments can be billed monthly, quarterly, semi-annually or annually.
DFS payment solution rates are adjusted quarterly in accordance with a formula based on fluctuations in treasury notes. Our rates are a function of several factors including estimates of future residual values, prevailing interest rates, borrowing costs, general and administrative expenses, and solution structure. Once a payment schedule has commenced, the rate remains constant for the term of the schedule. #10..
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Exhibit D: Price Schedule Prompt Payment Discount
Master Agreement: 23004
Contractor Name: Dell Marketing, LP
in 30
in 15, Net 30
in 10, Net 30
X Net 30
All Awarded Bands
Other (specify):
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Exhibit E: Contractor Terms and Conditions
Attached by reference as Exhibit E are the following Contractor document(s):
Software Licenses.
applicable end-user license agreement. Unless different terms have been agreed between the parties, the terms posted on www.dell.com/eula
upon request. Unless expressly otherwise agreed, microcode, firmware or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions, is licensed for use solely on such Equipment.
Dell Return Policy. Customer may return Products to Supplier pursuant to the return policy at www.dell.com/returnspolicy. Equipment Warranty. Unless provided otherwise in a Schedule, additional terms governing the limited warranties for Equipment are found at https://www.dell.com/learn/us/en/uscorp1/terms-of-sale-commercialand-public-sector-warranties?c=us&l=en&s=corp or in the applicable documentation or Product Notice for the specific Equipment.
Product- and Service-Specific Terms. Scope and details of Services and Product-specific terms are specified in the applicable standard service description that is attached to or referred in a Schedule or Quote, or is made available through the then-current Supplier website for product- or service-specific terms, currently located at www.dell.com/offeringspecificterms
of the date of the applicable Quote, shall be deemed incorporated into the Order. Scope and details of customized Professional Services not covered by such a standard description shall be documented in a mutually These Contractor terms and conditions are being provided for informational purposes only. They are intended to be negotiated by Contractor and a Participating Entity as part of a Participating Addendum, or by Contractor and a Purchasing Entity as part of an Order, and shall apply only as agreed to in writing by the parties. Unless such terms are expressly accepted in writing, terms in the following document(s) that derogate the application to a Purchasing Entity of a corresponding term in this Master Agreement or applicable Participating Addendum shall be deemed void. #10..
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