San Clemente City Council
December 5, 2023

Printed 11/17/2023
PlanetBids
7 Line Items
Discount Terms No Discount
Item # Item Code Type Item Description UOM QTY Unit Price Line Total Response Comment Section 1 $721,617.3100
Wet/Dry Hydro Excavator as detailed in specs EA $660,433.7000 $660,433.7000 Yes 2 CA sales tax EA $51,183.6100 $51 ,183.61 00 Yes
3 CA Tire Tax EA $0.0000 $0.0000 Yes
4 Delivery Fee EA $10,000.0000 $1 0,000.0000 Yes
5 Other taxes or fees- include details on uploaded document EA $0.0000 $0.0000 Yes City of San Clemente
Wet/Dry Hydro Excavator Truck (Fleet 2023-10-1), bidding on 11/01/2023 12:00 PM (PST)

Printed 11/17/2023
PlanetBids
8 Line Item Subtotals
Section Title
Section 1
Line Total
Grand Total
$721,617.3100
$721 ,617.3100
SOURCEWELL CONTRACT NO. 101221-GPV

PREPARED BY
GapVax, Inc
575 Central Ave.

Johnstown, PA 15902

PREPARED FOR
City of San Clemente
QUOTE ID UPDATED:
23282 07/17/23
QUOTE
9 2023 VHX42 WET/DRY HYDRO EXCAVATOR
QUOTE ID: 23282
August 31, 2023

ALPHA DESCRIPTION NOTES QTY

CHA CHASSIS OPTIONS '--
CHA001 2024 PETERBILT 567 - VHX42 (40K REAR) 1
PACCAR MX-11-445 RATED FOR 445 HP @ 1600 RPM AND 1700 LB-FT @ 900 RPM '-- ALLISON 4500 RDS-P TRANSMISSION '--
279'' WHEELBASE (211'' CA) '--
20,000 LB FRONT AXLE '--
40,000 LB REAR AXLE '--
CAB PAINTED FACTORY WHITE 1
CURRENT CARB EMISSIONS, CALIFORNIA AND NEW JERSEY 1
STOCK CHASSIS ARE SUBJECT TO PRIOR SALE, LIMITED QUANTITY ARE AVAILABLE 1

A DEBRIS BODY OPTIONS '--
STD 7.5 USABLE YARD DEBRIS TANK MADE OF HIGH STRENGTH STEEL STANDARD

STD BOLT-ON CYCLONES AND CYCLONE DUMP CHUTE STANDARD

STD TOP-LOADING MATERIAL BACKED BODY INLET STANDARD

STD FULL-OPENING REAR TAILGATE STANDARD

STD FOUR HYDRAULIC REAR DOOR LOCKS STANDARD

STD DUAL TAILGATE LIFT CYLINDERS STANDARD

STD FRONT MOUNTED HOIST CYLINDER, POWER UP AND DOWN STANDARD A2A DECANT AT BOTTOM OF TAILGATE - 6" BRASS LEVER VALVE 1 A3 LIQUID LEVEL INDICATOR ON TAILGATE 1
A40-VHX42 VHX42 TAILGATE LOCKS VHX42 ONLY REQUIRED
A350JVHX42 UPGRADE THREE BODY CLEANOUT DOORS TO ALUMINUM / STAINLESS STEEL VHX42 ONLY REQUIRED A350Q UPGRADE FLOAT BALL CAGE TO STAINLESS STEEL 1
A350R UPGRADE TAILGATE LL INDICATOR TO SS 1/2" ROD INSIDE TAILGATE 1 A23 ELECTRIC VIBRATOR ON DEBRIS TANK STANDARD
A34-VHX42 VHX42 BOLT-ON SS TAILGATE SPLASH SHIELD VHX42 ONLY REQUIRED A45BB VHX42 ALUMINUM EXTENSION LADDER, THREE 8'' VERTICAL TUBE STORAGE RACK (I308), AND COMBINED DRIVER'S SIDE TUBE AND LADDER STOW RACK VHX42 ONLY 1 A44-VHX42 VHX42 PNEUMATIC ACTUATED TAILGATE PROP VHX42 ONLY REQUIRED

STD PNEUMATIC ACTUATED BODY PROP STANDARD

B WATER TANK OPTIONS '--
STD 750 GALLON WATER TANK MADE OF POLY STANDARD
STD 2'' WATER FILL LINE WITH 3'' Y-STRAINER AND ANTI-SIPHON STANDARD STD 2" WATER TANK DRAIN STANDARD

C VACUUM SYSTEM OPTIONS '--
NOTE: THE GAPVAX HV UNIT MAY EXCEED FEDERAL BRIDGE ALLOWABLE WEIGHTS WHEN LOADED WITH WATER, OR DEBRIS, AND/OR BOTH WATER AND DEBRIS COMBINED. PLEASE CONSULT FACTORY. 10 C300 HIBON 840, 4000 CFM AND 27'' HG STANDARD
STD 14'' LIQUID SHUTOFF STAINLESS STEEL FLOAT BALL STANDARD STD SINGLE MODE WET/DRY FILTRATION WITH (2) BOLT-ON EZ-DECON CYCLONES STANDARD STD BAGHOUSE WITH (21) POLYESTER FILTER BAGS STANDARD

STD NOISE AND VIBRATION DAMPENING MOUNTS STANDARD

STD ULTRA QUIET EXHAUST/INTAKE SILENCERS STANDARD
C320 VULKAN VIBRATION DAMPENER ON BLOWER REQUIRED FOR VHX42 1 C322-VHX42 6'' VACUUM RELIEF VALVE VHX42 ONLY REQUIRED
C330D PESH-1430-SST VHX42 FILTER BAGS X 40'' LONG (LOW RESTRICTION) VHX42 ONLY 1

D HX WATER SYSTEM OPTIONS '--
D301HA 13 GPM / 3,000 PSI GIANT P420HP HYDRAULIC DRIVE VIA AUTO TRANS PTO REQUIRES J303 1 D25B UPGRADE STD REEL TO HEAVY DUTY SPRING RETRACT HOSE REEL WITH 1/2" X 100' HOSE 1

STD CURBSIDE MOUNTING PLATE FOR HX CONTROLS STANDARD
D4-HX+RAV PNEUMATICALLY OPERATED HX WATER PRESSURE RELIEF VALVE REQUIRED D4-HX+RAV UPGRADE HOSE REEL VALVE TO P/N: VAL022790 REMOTE ACTUATED INTEGRATED OPTION D4-HX CONTROL (G2B-MODE 4) REQUIRED
D4-HX+RAV
PNEUMATICALLY OPERATED HX WATER PRESSURE RELIEF VALVE IN LIEU OF 3-WAY AND UPGRADE HOSE REEL VALVE TO P/N: VAL022790 REMOTE ACTUATED INTEGRATED OPTION D4-HX CONTROL (G2B)
REQUIRES D307HA OR D317HA AND
G312A OR G312B 1
D18 AIR PURGE SYSTEM - PUMP, REGULATOR, HOSE REEL 1
D35B 1/2" HX LANCE WITH 6' EXTENSION AND RIPSAW NOZZLE 1

E BOOM OPTIONS '--

STD STANDARD BOOM ELBOW STANDARD
E300A-VHX TUBE IN TUBE BOOM - EXTENDABLE - 16' - 22' REACH FROM CENTER OF TRUCK, INCLUDES VHX TURRET AND DIPPING BOOM ARM 1
E323 3" CLEANOUT DOOR ON BACK OF BOOM CANNON 1
E329 BOOM HYDRAULIC HOSE SUPPORT ARM 1
E326 REMOVABLE PAINTED 14 GA STEEL CATCH BUCKET MOUNTED AT THE END OF THE BOOM VHX42 ONLY 1

G CONTROLS, GAUGES, ACCESSORIES OPTIONS '--
G2B DM430 DISPLAY MOUNTED ON SIDE CONTROL PANEL, SAFETY SYSTEM INCLUDES WATER PUMP ENGAGE SWITCH, REQUIRES G330B 1

WATER LEVEL, LOW WATER SHUT DOWN, WATER PUMP FLOW AND HOURS INCLUDED

ENGINE / PUMP OVER SPEED SHUT DOWN, LOW PTO OIL PRESSURE WARNING INCLUDED

WATER TEMPERATURE SENSOR WITH SHUT DOWN INCLUDED
G14 BODY UP LIGHT & ALARM IN CAB 1
G16 BOOM UP LIGHT & ALARM IN CAB 1
G312B AARCOMM WIRELESS REMOTE WITH BOOM, VACUUM AND WATER FUNCTIONS 1 G312B-ATD ADDITIONAL AARCOMM TRIDENT TRANSMITTER (ONLY ONE CAN BE OPERATIONAL AT A TIME)
REQUIRES OPTION G310B OR
G312B INCLUDED
G321 TAILGATE OPEN INTERLOCK INCLUDES PUSH BUTTON SWITCH AT DUMP CONTROLS 1
G340A 25' GROUNDING CABLE HIGHLY RECOMMENDED 1
G330B-VHX 20'' W X 24'' H STAINLESS CONTROL BOX WITH WINDOW ON CURBSIDE VHX42 ONLY 1

H LIGHTING '--

STD TRUCK-LITE LED STOP, TURN, AND TAIL LIGHTS STANDARD

STD TRUCK-LITE LED RUNNING (MARKER) LIGHTS STANDARD

STD UPGRADE STOP/TAIL/TURN LIGHTS TO LED STANDARD
H0A UPGRADE STOP/TAIL/TURN LIGHT BOX TO POLISHED STAINLESS STEEL STANDARD 11 H2 ONE LED STROBE BEACON LIGHT - REAR (SAE CLASS-1 (SAE J595) COMPLIANT) (WHELEN L10 OR EQUAL) 1 H6C (2) REAR WORK LIGHTS - HIGH INTENSITY HELLA PB1500 LED WORK LIGHTS (PN:

LHT022406) 1
H8C (2) PUMP AREA WORK LIGHTS - HIGH INTENSITY HELLA PB1500 LED WORK LIGHTS (PN:

LHT022406) 1
H9B (2) WORK LIGHTS IN TAILGATE - HELLA LED WORK LIGHTS (PN: LHT022429) 1 H15C WHELEN ION SUPER LED FLASHERS - 8 LIGHT HEADS 1
2 ON EACH SIDE FRONT @ 90 DEGREES, 2 ON EACH SIDE REAR 1 H22 REAR ARROW LIGHT - LOW PROFILE LED ARROW STICK (CLASS-1 (SAE J595)) (WHELEN TAM85 OR EQUAL) 1

I STORAGE OPTIONS '--
I7C-CS 36" TOOL BOX - STAINLESS STEEL, 36" WIDE X 24" HIGH X 24" DEEP, CURBSIDE 1 I66 66'' STAINLESS STEEL OPEN TUBE BASKET WITH MID-SHELF MOUNTED ON DRIVER'S

SIDE FRAME
VHX42 ONLY, TUBES NOT
INCLUDED 1
I14 TRAFFIC CONE HOLDER ON DRIVER'S SIDE INCLUDES CONES 1 I16A WHEEL CHOCK HOLDER (PER SIDE) - DRIVER'S SIDE INCLUDED IN I300 1 I19 25' HOSE RACK 1

J CHASSIS OPTIONS '--

STD INSTALLATION AND INTEGRATION OF BODY ONTO CHASSIS INCLUDED STD INTERGRAL (FORMED) 10-GAUGE STAINLESS STEEL FENDER STANDARD

STD DOT LIGHTING / FENDERS / MUD FLAPS / TAILGATE SAFETY PROP, ICC LIGHTS STANDARD

STD DOUBLE ACTING MAILHOT BODY LIFT CYLINDER STANDARD

STD BODY SAFETY PROP STANDARD
STD 60 GALLON HYDRAULIC OIL TANK STANDARD

STD REAR BUMPER STANDARD

STD TRIANGLE KIT, FIRE EXTINGUISHER, BACKUP ALARM STANDARD J000 MID-SHIP MOUNTED (SPLIT-SHAFT) TRANSFER CASE WITH TOP DISCONNECT REQUIRED J001 MUST BE "OMSI" BRAND TRANSFER CASE 1
J302-VHX42 HEAVY DUTY SUBFRAME VHX42 ONLY REQUIRED
J303 ADD HYDRAULIC OIL COOLER TO CIRCUIT 1
J4B TOW HOOKS - REAR - FRAME MOUNTED - BOLT-ON REQUIRES I300 OR J302 1 J22-VHX42 VHX42 REAR BUMPER / STAINLESS STEEL DUMP APRON WITH STEP VHX42 ONLY REQUIRED

K PAINT OPTIONS '--

STD PAINTED WITH PPG FLEET URETHANE PAINT STANDARD

STD PAINT BODY WHITE STANDARD

STD PAINT FRAME BLACK STANDARD

STD PAINT PARTS AND BOOM BLACK STANDARD

STD FLEET FINISH STANDARD

M MISCELLANEOUS OPTIONS '--
STD STANDARD - 8" TO 6" RINGLOCK REDUCER STANDARD
STD STANDARD - 6" IN-LINE SAFETY VACUUM BREAK TEE STANDARD

STD STANDARD - GAPVAX SAFETY DECALS STANDARD
M3 FILL HOSE 25' X 2 1/2" 1
M29 ONE CAMERA - BACK-UP CAMERA SYSTEM WITH 7" COLOR MONITOR (RV-505A), INCLUDES DVR-916 REAR CAMERA 1
M334 HEAVY DUTY ALUMINUM HX TUBE, 8" X 5' X 0.090" WALL WITH PRESSED IN STEEL ENDS STD 8" RING LOCK 4 M37 HEAVY DUTY ALUMINUM HX TUBE, 8" X 5' X 0.090" WALL WITH PRESSED IN STEEL ENDS AND SOFT TIP END STD 8" R.L. SOFT TIP 1
M35 8" RING LOCK TUBE CLAMP, EACH (P/N: CLA000978) STD 8" RING LOCK 5 12 STD ONE PAPER OPERATOR'S MANUAL STANDARD
M15 ADDITIONAL PAPER OPERATOR'S MANUAL 1
M15-USB OPERATOR'S MANUAL ON USB STICK 1
STD ONSITE FACTORY TRAINING (1 DAY) STANDARD
* CUSTOM OPTIONS --
13 City of San Clemente
Wet/Dry Hydro Excavator Truck (Fleet 2023-10-1), bidding on 11/01/2023 12:00 PM (PST) PlanetBids
Attachment 3
14 Bid Results
Bidder Details
Vendor Name HAAKER EQUIPM ENT COMPANY
Address 2070 N WHITE AVENUE
LA VER NE, Cal iforn ia 97 750
United States
Respondee Matthew Woods
Respondee Title VP Sales & Marketing
Phone 909-598-2706
Email haa ker_admin@h aaker.com
Vendor Type
License#
Bid Detail
Bid Format Electronic
Submitted 7 0/37 /2023 9:47 AM (PST)
Delivery Method eBid / 7 0/37 /2023@ 9:35am
Bid Responsive
Bid Status Submitted
Confirmation# 357 437
Respondee Comment
Truck delivery is estimated for 300-330 Days.

Buyer Comment
Attachments
File Title
SAN CLEMENTE, CITY OF_ HXX 27 WS47X 6x4 _ 7 0-37-
2023.pdf
File Name
SAN CLEMENTE, CITY OF_ HXX 27 WS4 7X 6x4 _ 7 0-3 7 -
2023.pdf
File Type
Upload copy of detailed
quote
Additional informaitonoptional
City of San Clemente
Wet/Dry Hydro Excavator Truck (Fleet 2023-10-1), bidding on 11/01/2023 12:00 PM (PST)

Printed 11/17/2023
PlanetBids
15 Line Items
Discount Terms No Discount
Item # Item Code Type Item Description UOM QTY Unit Price Line Total Response Comment Section 1 $788,703.0600
Wet/Dry Hydro Excavator as detailed in specs EA $731,975.0000 $731,975.0000 Yes 2 CA sales tax EA $56,728.0600 $56,728.0600 Yes
3 CA Tire Tax EA $0.0000 $0.0000 Yes
4 Delivery Fee EA $0.0000 $0.0000 Yes
5 other taxes or fees- include details on uploaded document EA $0.0000 $0.0000 Yes City of San Clemente
Wet/Dry Hydro Excavator Truck (Fleet 2023-10-1), bidding on 11/01/2023 12:00 PM (PST)

Printed 11/17/2023
PlanetBids
16 Line Item Subtotals
Section Title
Section 1
Line Total
Grand Total
$788,703.0600
$788,703.0600
2070 North White Avenue, La Verne, California 91750
(909) 598-2706 ~ Haaker.com

BUDGET QUOTE
October 31, 2023
TO: CITY OF SAN CLEMENTE ATTN: MR. MARK IVERSON
380 AVENIDA PICO BLDG. N (909) 366-1553
SAN CLEMENTE CA 92673 EMAIL: [email protected]
In accordance with your request, we are pleased to submit the following proposal for your consideration and approval.

ONE (1) NEW TRUVAC HXX 27” VACUUM EXCAVATOR
12 Cubic Yard Volumetric Debris Body, 1200 Gallon Water, Dual Stage Fan. Mounted On a Western Star Chassis with Allison Automatic Transmission. Equipped With All Standard and Optional Equipment Listed:

STANDARD EQUIPMENT:
• Sealed Electrical System
• Double Acting Dump Hoist
• 2" Y-Strainer w/25' Fill Hose
• Exten Steel Debris Body
• Electronic Low Water Indicator
• Fixed Pipe Rack R/D
• Flat Rear Door w/Hyd Locks/Lift
• 8" ID Vacuum System
• Multi Flow System
• Handgun Kit 5gpm/10gpm
• 75' Retractable Handgun Reel
• Vacuum Relief
• Electronic Back-Up Alarm
• 3" Water Tank Drain
• 2-1/2" Cam-Lok Water Fill Fittings
• Control Panel Boom Control
• Circuit Breakers
• Tow Hooks -- Rear
• Hydrant Wrench/Tool Package
• Debris Body Deflectors
• S.S. Float Ball Shut Off
• Manual hand pump for boom hydraulic override
• Electronic Low Water Indicator
• Dig Right Technology
• Aluminum Fenders
• Mud Flaps
• Hibon 8702 Blower
• Dual Cyclone Separators
• 1200 Gallon Poly Water Tank
• 8" Inspection Port W/Ladder
• Removable Boom Turret Box
• 6" Rear Door Knife Valve w/Camloc 6:00 position - Standard • Control Cabinet Tool Box - 36w x 24h x 12d
• Water Pump Cabinet Tool Box - 50w x 30h x 30d
• Digging Lance Package
• 3 - Fixed Jet Nozzles
• 4- Vactor Rotator Nozzle
• Grounding cable to tie debris body sub frame and chassis • Mandatory Transfer case Mounting Charge
• Wireless Remote w/Pump Vac-Relief - Hand-held
• Remote Corded Pendant
• Boom Out of Position Indicator/Alarm
• ISO 46 Hydraulic Oil
• Body Out of Position Indicator/Alarm
• Telescopic Boom Elbow Standard
• Hydraulic Tank Shutoff Valves
• 8" Vacuum Tube Package w/8" Dig Tube
• Hydroexcavating Digging Nozzles &Single Jet Spinner
17 HAAKER

EQUIPMENT' COMPANY
OPTIONAL EQUIPMENT:
• 7ft Telescoping Boom 320 deg. with Removable
Turret Box
• Debris Body Load Limit Alarm
• Folding Pipe Rack Curbside
• Folding Pipe Rack Streetside
• Lube Manifold
• Laminated Lube Chart - Included
• Debris Body Vibrator Electric
• Float Ball Screen Perforated Plastic
• Rear Door Splash Shield
• 6" Rear Door Knife Valve w/Camloc 3:00 position
• Camera System Front Rear and Both Sides
• Wheel Chock and Holders - 2 Chocks Stored Each Side
• Air Excavation Package 185 CFM/150 PSI
• Rear Directional Control LED Arrow board
• Waterproof Rechargeable Wireless Handheld LED Spot Light w/12V Charger and Plug
• Rear Mounted LED Beacon Light w/ Limb Guard
• Work light Operators Station
• Work lights (2) Boom
• Work lights (2) Rear Door
• 110 Volt 3000 Watt GFCI Electrical Outlet ???Passenger Side • Door Stripe Material Reflective Tape
• TruVac Logos - Applied
• Toolbox Passenger Side Behind Tandem 18w x 48h x 24d
• Toolbox Driver Side Behind Tandem 18w x 48h x 24d
• Water Tank Toolbox Driver Side 48w x 24h x 12d
• Hydraulic Tool Package
• Factory Training
Unit Price:............................................................................................................... $ 731,975.00 Sales Tax (7.75%)................................................................................................$ 56,728.06 TOTAL PRICE F.O.B, SAN CLEMENTE, CA.: ...................................... $ 788,703.06 THE PROPERTY HEREIN IS GUARANTEED ONLY BY THE MANUFACTURER’S WARRANTY AND SELLER MAKES NO

WARRANTY EXPRESSED OR IMPLIED, OF MERCHANTABILITY OR OTHERWISE, OR OF FITNESS FOR ANY PARTICULAR PURPOSE, WHICH EXTENDS BEYOND THE ABOVE DESCRIPTION OF THE EQUIPMENT.

NOTE: Price is good until 60 Days . Cost increases due to the addition of Government mandated safety or environmental devices incurred after the date of this proposal will be charged to you at our cost. Proof of such costs, if any, will be documented.

TAXES: SALES TAX applicable at time of delivery will be shown on our invoice. FEDERAL EXCISE TAXES, if applicable, will require payment unless a properly executed Exemption Certificate is submitted.

DELIVERY: TBD TERMS: Net 30
We appreciate the opportunity to present this proposal and look forward to being of further and continued service.

HAAKER EQUIPMENT COMPANY ACCEPTED BY:

BY: Chuy Vallejo DATE:

JOSE “CHUY” VALLEJO
Parts/Service/Outside Sales Mgr.
18 910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING

CITY OF SAN CLEMENTE
Meeting Date: December 5, 2023 Agenda Item: 7V
Department: Information Technology
Prepared By Brian Brower, IT Manager
Subject:
..titl e
CONSIDERATION OF RESOLUTION NO. 23-147 AWARDING BID IT-039 FOR THE PURCHASE OF PURE STORAGE FLASH ARRAY SYSTEM TO EPLUS TECHNOLOGY, INC.

AND AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT IN AN AMOUNT NOT ..body TO EXCEED $183,062 FOR A THREE-YEAR TERM
Fiscal Impact:

The total amount of the purchase and three years of ongoing maintenance and support is not to exceed 183,061.83. This amount is within the FY 2023-24 Adopted Budget in the Information Technology Fund account #063-241-43454-000-00000.

Summary:

The City Council identified the implementation of a new enterprise data storage system as a high priority item in the 2023 Information Technology Strategic Plan Update. Staff has prepared, for consideration by the City Council, the purchase of the Pure Storage Flash Array System (Pure Storage), which will support that priority. If purchased, the Pure Storage solution will update the City’s infrastructure with modern equipment, providing a secure and reliable platform for the operation of City’s data and technology systems.

Following a competitive bidding process, ePlus Technology, Inc. (with a principal place of business in Herndon, Virginia) was the lowest responsive and responsible bidder. Before the City Council is consideration of Resolution No. 23- , awarding Bid IT-039 to ePlus Technology, Inc. for the purchase of Pure Storage in an amount not to exceed $183,062, which includes the equipment and software purchase, staff training, technical service, maintenance and support for a three-year term.

Background:

A centralized data storage system (sometimes referred to as a Storage Area Network, or SAN) is an essential component of the City’s information technology infrastructure. This system is the foundation for the operation of City servers, enterprise applications, and data. The existing SAN has operated effectively for over 5 years. However, due to growing data storage requirements and approaching end of vendor support for current equipment, the existing SAN is no longer capable of meeting the City’s needs. Staff recommends replacing the current storage system with a modern system to increase storage capacity, performance, reliability, maintenance efficiency, and security.
1 Meeting Date: December 5, 2023 Agenda Item: 7V

CITY OF SAN CLEMENTE
On November 9, 2023, the City published a Notice Inviting Bids for purchase of a Pure Storage Flash Array. Two bids were received and opened on November 20, 2023. No bids were received from local vendors and staff is unaware of any local vendors who could have responded. EPlus Technology, Inc. provided the lowest responsible and responsive bid, in the amount of $183,061.83, which includes the purchase of equipment, software, training, and technical maintenance and support services for a three-year period. While vCloud Tech, Inc. initially submitted a bid, it later withdrew the bid citing a mistake; additionally, staff had determined that the vCloud Tech, Inc. bid was non-responsive.

Bid Summary:
ePlus Technology, Inc. $183,061.83
vCloud Tech, Inc. $180,217.18 (Non-Responsive; Withdrawn) Benefits of implementing the Pure Storage Flash Array include the following:
 Performance and Reliability: All-flash storage technology provides superior performance and reliability, as well as reduced energy consumption and datacenter cooling needs.  Simplified Data Management: The Pure Storage solution is noted for a highly rated customer experience, ease of use, and reduced administrative complexity.  Storage Capacity: Advanced compression technologies provide greater effective storage capacities.
 Premium Support: Pure Storage provides 24/7/365 technical support to facilitate rapid problem identification/resolution, proactive health-monitoring, and next business day delivery on parts and labor (as a minimum).
 Long Term Solution: The company’s evergreen platform includes seamless controller upgrades after three years at no additional cost, which will extend the useful life of the system.
 Resiliency: The proposed system incorporates data protection and recovery mechanisms to minimize downtime and data loss for critical applications in the event of cyber-attack or other system failure.

Implementation of a new data storage system was identified as a high priority item in the 2023 Information Technology Strategic Plan Update, and purchasing Pure Storage supports the 2022- 2023 City Council Strategic Priorities by updating infrastructure that represents the best available technology and maintains a best-in-class approach to technology.

Council Options:
 Adopt Resolution No. 23-147, awarding Bid IT-039 for the Pure Storage Flash Array Data Storage System to ePlus Technology, Inc. and authorizing the City Manager to execute an agreement for the purchase in an amount not to exceed $183,061.83 for a three-year term.  Modify and adopt Resolution No. 23-147.
 Continue the item with direction to provide additional information.  Do not award the contract or implement the proposed data storage system. 2 Meeting Date: December 5, 2023 Agenda Item: 7V

CITY OF SAN CLEMENTE
Environmental Review/Analysis
The proposed action is not a “project” under the California Environmental Quality Act Guidelines Sections 15378. (14 CCR § 15378.)
Recommended Actions:

Staff Recommendation ..recommendation
Adopt Resolution No. 23-147, which would:

1. Award Bid IT-039 to ePlus Technology, Inc.

2. Authorize the City Manager to execute an agreement for the purchase of the Pure Storage Flash Array system with ePlus Technology, Inc. under substantially the same terms and conditions of NASPO Valuepoint Master Agreement 23020 in an amount not to exceed $183,061.83, for the equipment and software purchase, training, technical service, maintenance, and support for a three-year term.

3. Authorize City staff to accept the Pure Storage End User Agreement. ..end
Attachment:

1. Resolution No. 23-147

2. NASPO Valuepoint Master Agreement 23020 with Pure Storage

3. Pure Storage End User Agreement
Notification:

None.
3 ATTACHMENT 1
4860-5047-5367 v1
RESOLUTION NO. 23-147

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SAN CLEMENTE, CALIFORNIA, AWARDING BID IT-039

FOR THE PURCHASE OF THE PURE STORAGE FLASH
ARRAY SYSTEM TO EPLUS TECHNOLOGY, INC. AND

AUTHORIZING THE CITY MANAGER TO ENTER INTO AN

AGREEMENT THEREFOR IN AN AMOUNT NOT TO
EXCEED $183,062 FOR A THREE-YEAR TERM
WHEREAS, the City wishes to provide a secure and reliable platform for the City’s data and technology systems and implementing the Pure Storage Flash Array is the best way to do that; and
WHEREAS, the City has conducted formal competitive bidding for the purchase of the Pure Storage Flash Array; and
WHEREAS, November 20, 2023, the City received two bids ranging from $180,217.18 to $183,061.83 for the Pure Storage Flash Array system; and WHEREAS, the bid submitted by vCloud Tech, Inc. in the amount of $180,217.18 was non-responsive and was withdrawn by vCloud Tech, Inc.; and WHEREAS, ePlus Technology, Inc. was the lowest responsive and responsible bidder with a bid in the amount of $183,061.83.

NOW, THEREFORE, the City Council of the City of San Clemente does hereby find, determine and resolve as follows:

SECTION 1. That the above recitations are true and correct and incorporated herein.

SECTION 2. That Bid IT-039 for the Pure Storage Flash Array is awarded to ePlus Technology, Inc.

SECTION 3. That the City Manager is authorized to execute the purchase of the Pure Storage Flash Array System from ePlus Technology, Inc. under terms and conditions substantially similar to NASPO ValuePoint Master Agreement 23020, or on terms and conditions more favorable to the City, in an amount not to exceed $183,061.83, which includes the equipment and software purchase, training, service, maintenance, and support for a three year term.

SECTION 4. That City staff is authorized to accept the Pure Storage End User Agreement.

SECTION 5. That the City Clerk shall certify to the passage and adoption of this 4 Resolution No. 23-147 Page 2
4860-5047-5367 v1
resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this _____ day of December, 2023.
_______________________
Mayor of the City of
San Clemente, California
ATTEST:
__________________________
CITY CLERK of the City of
San Clemente, California
5 Resolution No. 23-147 Page 3
4860-5047-5367 v1

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 23-147 was adopted at a regular meeting of the City Council of the City of San Clemente held on _______ day of December 2023, by the following vote:

AYES:

NOES:

ABSENT:
_______________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
_________________________
Elizabeth A. Mitchell, City Attorney
6 Amendment No. 1 to NASPO Master Agreement 23020 Page 1 of 1 AMENDMENT NO. 1 TO NASPO MASTER AGREEMENT 23020
THIS AMENDMENT is by and between the State of Minnesota, acting through its Commissioner of Administration (“State”), and Pure Storage, Inc., 650 Castro Street, Suite 260, Mountain View, CA 94041 (“Contractor”).

WHEREAS, the State has an agreement with the Contractor identified as NASPO Master Agreement 23020, July 1, 2023, through June 30, 2025 (“Master Agreement”), to provide Computer Equipment, Peripherals, & Related Services; and WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the Commissioner of Administration, or delegate pursuant to Minn.

Stat. § 16C.03, subd. 16, the authority to amend contracts; and WHEREAS, the terms of the Master Agreement allow the State to amend the Master Agreement as specified herein, upon the mutual agreement of the Office of State Procurement and the Contractor in a fully executed amendment to the Master Agreement.

NOW, THEREFORE, it is agreed by the parties to amend the Master Agreement as follows:

1. That the Contractor’s business address is amended from 650 Castro Street, Suite 260, Mountain View, CA 94041, to 2555 Augustine Drive, Santa Clara, CA 95054.

This Amendment is effective beginning upon the date that the final required signatures are obtained, and shall remain in effect through contract expiration, or until the Master Agreement is canceled, whichever occurs first.

Except as herein amended, the provisions of the Master Agreement between the parties hereto are expressly reaffirmed and remain in full force and effect.

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound thereby.

1. PURE STORAGE
The Contractor certifies that the appropriate person(s) have executed this Amendment on behalf of the Contractor as required by applicable articles, bylaws, resolutions, or ordinances.

By:

Signature
Printed Name
Title:

Date:

2. OFFICE OF STATE PROCUREMENT
In accordance with Minn. Stat. § 16C.03, subd. 3.

By:

Signature
Printed Name
Title:

Date:

3. COMMISSIONER OF ADMINISTRATION
Or delegated representative.

By:

Signature
Printed Name
Title:

Date:









  


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ATTACHMENT 2
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NASPO ValuePoint Master Agreement No.: 23020
This Contract is between the State of Minnesota, acting through its Commissioner of Administration (“Lead State”) and Pure Storage, Inc., whose designated business address is 650 Castro Street, Suite 260, Mountain View, CA 94041 (“Contractor”). State and Contractor may be referred to jointly as “Parties.” Recitals

1. The State of Minnesota, Department of Administration, Office of State Procurement, on behalf of the State of Minnesota and NASPO ValuePoint Cooperative Procurement Program (“NASPO ValuePoint”) issued a solicitation to establish Minnesota NASPO ValuePoint Master Agreement(s) (“Contract”) with qualified manufacturers for 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. 







 


 

8 NASPO
ValuePoint™
MINN8SOTA

1. a.
b.

C.

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 accordance with the commercially reasonable standards of care, skill, and diligence in Contractor’s industry, trade, 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 3, Servers and Storage
Configuration Dollar Limits
The following configuration limits apply to the Master Agreement. Participating Entities may define their configuration limits in their Participating Addendum. The Participating Entity’s Chief Procurement Official may increase or decrease 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 modifications to the Entity’s Product and Service Schedule.

Software
Software is restricted to operating systems and commercial off-the-shelf (COTS) software and is subject to equipment configuration limits.

Any software purchased must be related to the procurement of equipment. 







 


 

9 2.
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1. 2.

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 below.

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-by-case basis, if approved by the State’s Chief Procurement Officer. EPEAT Bronze requirement does not currently apply to storage.

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








 


 

10 b.

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1. 2.

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1. 2.

1. 2.

1. 2.

3. 4.

112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
E-mail: [email protected]
Phone: 651.201.3122
Contractor’s Authorized Representative. The Contractor's Authorized Representative is Kim Bradbury, Sr.

Director, Public Sector Contracts.

Kim Bradbury, Sr. Director, Public Sector Contracts
Pure Storage, Inc.
650 Castro Street, Suite 260
Mountain View, CA 94041
Email: [email protected]
Phone: (301) 717-9969
If the Contractor’s Authorized Representative changes at any time during this Contract, the Contractor must 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
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.

Entire Agreement
This Contract and any written addenda thereto constitute the entire agreement of the parties to the Master Agreement. 







 


 

11 b.

7. 8.

9. 10.

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:

A Participating Entity’s Participating Addendum (“PA”); 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 Master Agreement only if the Master Agreement expressly identifies that reference. URL’s must be explicitly referenced to be incorporated into the Master Agreement. URL’s contained within the URL’s that are 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 material obligation on an ordering entity, or materially diminish an ordering entity’s ability to use the product or service.

A written Master Agreement (which may include the contents of the RFP and selected portions of Contractor’s response incorporated therein by reference) will constitute the entire agreement of the parties to the Master Agreement. No other terms and conditions shall apply, including terms and conditions listed in the Contractor’s 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 direct contractual relationship with NASPO ValuePoint related to Contractor’s obligations to NASPO ValuePoint 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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2. a.
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3.

_____ as a Service (_aaS) refers to any good provided in a subscription-based model that is defined in the industry as “_____ as a Service”. Examples are “Software as a Service”, “Infrastructure as a Service”, and “Storage as a Service”, and shall follow the NIST definitions of those services. ____ as a Service are permitted only when they meet the restrictions found in the Contract Section, 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 on the Green Electronics Council’s website at www.greenelectronicscouncil.org. Products are classified as Bronze, 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.








 


 

14 C.
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I.
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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 responder’s proposal unless all responders are unable to meet the mandatory requirement. The terms “must” and “shall” 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 means the software “glue” that helps programs and databases (which may be on different computers) work together. The most basic function of middleware is to enable communication between different pieces of software.

NASPO ValuePoint is a division of the National Association of State Procurement Officials (“NASPO”), a 501(c)(3) 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. 







 


 

15 0.
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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 and conditions of the Contractor’s Master Agreement. A Partner may include, but is not limited to, an agent, 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 







 


 

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in the Contract Section, Paragraph 5.a. “Software” applies to all parts of software and documentation, including new releases, updates, 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 means the Contractor’s process for accepting the return of equipment or other products at the end of the product’s life.

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 supplement a Contractor’s own product line, and are not intended to represent more than a third of any Contractor’s total sales under this Master Agreement.

Upgrade means the replacement of existing software, hardware, or hardware component with a newer version.

Warranty means the Manufacturer’s general warranty tied to the product at the time of purchase.

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 original contract period for 36 additional months at the Lead State’s discretion and by mutual agreement and upon 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, 







 


 

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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.

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 Participating Entities (including cooperatives) authorized by individual state’s statutes to use state contracts are 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.

Resale. “Resale” means any payment in exchange for transfer of tangible goods, software, or assignment of the 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 







 


 

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associated with inventory transactions with other governmental or nonprofit entities and consistent with a Purchasing Entity’s laws and regulations. Any sale or transfer permitted by this subsection must be consistent with 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 notify the Lead State of changes in the Contractor’s key administrative personnel managing the 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 Contractor’s proposal. Such approval shall not be unreasonably withheld.

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 evaluated in the Contractor’s proposal.

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 the Lead State’s discretion.

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.

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 







 


 

19 6.

7. 8.

9. 10.

11. 12.

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 among companies having a Master Agreement on an “as needed” basis. This procedure may also be used when requirements are aggregated or other firm commitments may be made to achieve reductions in pricing. This procedure may be modified in Participating Addenda and adapted to the Purchasing Entity’s rules and policies. The 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.

Contractor is expected to become familiar with the Purchasing Entities’ rules, policies, and procedures 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;
The place and requested time of delivery;
A billing address;








 


 

20 13.

14. 15.

16. a.
b.

C.
d.
e.
f.

1. 2.

3.

The name, phone number, and address of the Purchasing Entity representative; The price per hour or other pricing elements consistent with this Master Agreement and the contractor’s 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 purchasing agent within the Purchasing Entity’s purchasing 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 “not to exceed” price for the expedited shipping on the 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 Contractor’s until final inspection and acceptance when responsibility shall pass to the Purchasing Entity except as to latent defects, fraud and Contractor’s 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.

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.








 


 

21 g.
h.
i.

17. 18.
a.
b.

4. 5.

6. 7.

8.

All products must be delivered in the manufacturer’s standard package. Costs shall include all packing and crating charges. Cases shall be of durable construction, good condition, properly labeled and suitable in every respect for storage and handling of contents. Each shipment shall be marked with the Purchasing Entity’s Purchase 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.

Contractor shall provide right of access to the Lead State, or to any other authorized agent or official of the Lead State or other Participating or Purchasing Entity, at reasonable times, in order to monitor and evaluate performance, compliance, and quality assurance requirements under this Master Agreement. Upon delivery, the Purchasing Entity shall have 30 days to inspect. 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.

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.

The warranty period shall begin upon Acceptance. 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. This clause shall not be applicable, if acceptance testing and corresponding terms have been mutually agreed to by both parties in writing.

Acceptance Testing may be explicitly set out in a Master Agreement to ensure conformance to an explicit standard of performance. Acceptance Testing means the process set forth in the Master Agreement for ascertaining that the Product meets the standard of performance prior to Acceptance by the Purchasing Entity. If Acceptance Testing is prescribed, this subsection applies to applicable Products purchased under this Master Agreement, including any additional, replacement, or substitute Product(s) and any Product(s) which are modified by or with the written approval of Contractor after Acceptance by the Purchasing Entity. The Acceptance Testing period shall be thirty (30) calendar days or other time period identified in this Master Agreement or the Participating Addendum, 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. Contractor shall pay all costs related to the preparation and shipping of 







 


 

22 C.
19 .
a.
b.

C.
d.
e.

Product returned pursuant to the section. No Product shall be deemed Accepted and no charges shall be paid until the standard of performance is met. The warranty period shall begin upon Acceptance.

Title of Product.

Upon Acceptance by the Purchasing Entity, Contractor shall convey to Purchasing Entity title to the Product free and clear of all liens, encumbrances, or other security interests. Transfer of title to the Product shall include a license to use any Embedded Software in the Product, as follows:

To the extent that the Software sold under the Master Agreement is Commercial Off-the-Shelf Software, such Software is licensed, not sold, to the Purchasing Entity. The Contractor and its licensors reserve and retain all rights not expressly granted to the Purchasing Entity. No right, title or interest to any trademark, service mark, logo or trade name of Contractor or its licensors is granted to the Purchasing Entity. Licenses to such Software is provided in accordance with the terms of the manufacturer’s written End User License Agreement tied to the product at the time of purchase unless otherwise negotiated between Purchasing Entity and the Contractor or the Licensor in a duly executed contract.

Contractor will perform services for the Purchasing Entity, subject to the following section pursuant to a fully executed Statement of Work entered into between the Purchasing Entity and the Contractor.

The Contractor grants the Purchasing Entity a perpetual, non-exclusive, royalty free the license in Contractor’s pre-existing intellectual property that is contained in the products, materials, equipment or services, excluding software, that are purchased through this Master Agreement.

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 Addendum, and to the extent the terms are not in conflict with the Participating Entities’ applicable laws. In the 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.

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. 







 


 

23 20.
a.
b.

C.
d.

21. 22.

23.

Payments will be remitted by mail or electronically. Payments may be made via a State or political subdivision “Purchasing Card” with no additional charge.

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 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, transfer, subcontract or sublet rights, or delegate responsibilities under this Master Agreement, in whole or in part, without the prior written approval of the Lead State.

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 licensed to conduct business in the Lead State and in each Participating Entity’s state and having a rating of A-, Class VII or better, in the most recently published edition of A.M. Best’s Insurance Reports. Failure to buy and maintain the required insurance may result in this Master Agreement’s termination or, at a Participating Entity’s 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:








 


 

24 24.

25. 26.

27. a.
b.

28. a.
b.

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 shall provide notice to a Participating Entity within five (5) business days after Contractor is first aware of expiration, cancellation or nonrenewal of such policy or is first aware that cancellation is threatened or expiration, nonrenewal or expiration otherwise may occur.

Prior to commencement of performance, Contractor shall provide to the Participating Entity a certificate of insurance showing the Contractor’s general liability insurance policy or other documentary evidence acceptable to the Lead State that (1) names the Participating Entity as an additional insured, (2) provides that written notice of cancellation shall be delivered in accordance with the policy provisions, and (3) provides that the Contractor’s liability insurance policy shall be primary, with any liability insurance of any Participating Entity as secondary and noncontributory. Unless otherwise agreed in any Participating Addendum, other state Participating Entities’ rights and Contractor’s obligations are the same as those specified in the first sentence of this subsection except the endorsement is provided to the applicable state.

During the term of this Master Agreement, the Lead State and Participating Entities may request Contractor provide evidence of coverage that meets the requirements of this Section. Failure to provide evidence of coverage may, at the sole option of the Lead State, or any Participating Entity, result in this Master Agreement’s termination or the termination of any Participating Addendum.

Coverage and limits shall not limit Contractor’s liability and obligations under this Master Agreement, any 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 







 


 

25 1.

2. C.
d.
e.
f.

29. a.
b.

C.

30. a.

invoiced to Participating Entity or Purchasing Entity employees for personal use if such use is permitted by this Master Agreement and the applicable Participating Addendum (“Sales Data”). Timely and complete reporting of 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. “Summary Sales Data” is Sales Data reported as cumulative totals by state. Contractor 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.

Detailed Sales Data. “Detailed Sales Data” is Sales Data that includes for each Order all information required by the Solicitation or by NASPO ValuePoint, including customer information, Order information, and line-item details.

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. Upon request by NASPO ValuePoint, Contractor shall provide to NASPO ValuePoint tables of customer and Product information and specific attributes thereof for the purpose of standardizing and analyzing reported Sales Data (“Crosswalks”). Customer Crosswalks must include a list of existing and potential Purchasing Entities and identify for each the appropriate customer type as defined by NASPO ValuePoint. Product Crosswalks must include Contractor’s part number or SKU for each Product in Offeror’s catalog and identify for each the appropriate Master Agreement category (and subcategory, if applicable), manufacturer part number, product description, eight-digit UNSPSC Class Level commodity code, and (if applicable) EPEAT value and Energy Star rating.

Crosswalk requirements and fields may be updated by NASPO ValuePoint with reasonable notice to Contractor and without amendment to this Master Agreement. Contractor shall work in good faith with NASPO ValuePoint to keep Crosswalks updated as Contractor’s customer lists and product catalog change.

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 to NASPO ValuePoint for the education of Contractor’s contract administrator(s) and sales/marketing workforce 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 Contractor’s website has been updated to properly reflect the contract offer as available in the Participating Entity.








 


 

26 b.

C.
d.
e.

31. a.
b.

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 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 ValuePoint’s opinion or position as to the quality or effectiveness of the services that are the subject of this Master 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 by the Purchasing Entity’s state statutes, to assure compliance with the terms hereof or to evaluate performance hereunder.








 


 

27 C.
d.
e.
f.
g.

32. 33.
a.

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 the Master Agreement or Orders or underpayment of fees found as a result of the examination of the Contractor’s 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
General Indemnity. Contractor shall indemnify, defend (to the extent permitted by a state’s Attorney General), and hold harmless an Indemnified Party from any claims or causes of action, including attorney’s fees, to the extent arising from Contractor’s intentional, willful, or negligent acts or omissions; actions that give rise to strict liability; and actions arising from breach of contract or warranty. “Indemnified Party” means NASPO, NASPO ValuePoint, the Lead State, Participating Entities, and Purchasing 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 the Indemnified Party’s sole negligence. This clause will not be construed to bar any legal remedies the Contractor may have for the Indemnified Party’s failure to fulfill its obligation under this Contract.

Intellectual Property Indemnification. Notwithstanding Paragraph 34.a of Exhibit A, the Contractor shall indemnify; defend, to the extent permitted by the Attorney General; and hold harmless the Purchasing Entity, at the Contractor’s expense, from any action or claim brought against the Purchasing Entity to the extent that it is based on a claim that all or part of the works or documents infringe upon the intellectual property rights of others. The Contractor will be responsible for payment of any and all such claims, demands, obligations, liabilities, costs, and damages, including but not limited to, attorney fees.

If such a claim or action arises, or in the Contractor’s or the Purchasing Entity’s opinion is likely to arise, the Contractor must, at the Purchasing Entity’s discretion, either procure for the Purchasing Entity the right or license to use the intellectual property rights at issue or replace or modify the allegedly infringing works or documents as necessary and appropriate to obviate the infringement claim. This remedy of the Purchasing Entity will be in addition to and not exclusive of other remedies provided by law.

Notwithstanding the foregoing, Contractor will not be liable under this section to the extent the infringement was caused by: 1) Contractor modification of the infringing material where such modification is made specifically for the Purchasing Entity, and where the Purchasing Entity has set forth the specific manner in which the modifications shall be made, as opposed to where the Purchasing Entity has requested modifications and given Contractor discretion over how to implement said modifications; 2) Purchasing Entity modification of the infringing material where such modification is not made under the direction of Contractor; 3) Use of the Deliverables or the System in a manner not contemplated by this Contract or as otherwise authorized by the Contractor in writing; 4) use of the Deliverables or the System in combination, operation, or use with other products in a manner other than as contemplated by the Contract or otherwise authorized by the Contractor in writing.

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 







 


 

28 b.

C.

34. a.
b.

1. 2.

35. a.

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.

Contractor’s liability is limited to the greater of (i) the aggregate annual value amount of all fees paid to the Contractor by the Purchasing Entity under this Master Agreement; and (ii) $5,000,000. This limit on liability does not apply to claims for bodily injury or death or for intellectual property infringement.

Contractor’s obligations under this section shall not extend to any combination of the Product with any other product, system or method, unless the Product, system or method is:
provided by the Contractor or the Contractor’s subsidiaries or affiliates; specified by the Contractor to work with the Product; or 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.

Contractor grants to the Purchasing Entity a nonexclusive, perpetual, royalty-free, irrevocable, license to use, publish, translate, reproduce, transfer with any sale of tangible media or Product, perform, display, and dispose of the Intellectual Property, and its derivatives, used or delivered under this Master Agreement, but not created under it (“Preexisting Intellectual Property”). The Contractor shall be responsible for ensuring that this license is consistent with any third party rights in the Pre-existing Intellectual Property.

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. § 1-15 or a Participating Entity’s state antitrust provisions), 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 Agreement shall be governed by and construed in accordance with the laws of the Participating Entity’s or Purchasing Entity’s State.








 


 

29 b.

C.

36. 37.

38. 39 .
a.

1. 2.

3. 4.

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 Purchasing Entity’s State.

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 or Purchasing Entity’s clients. Any and all information of any form that is marked as confidential or would by its nature be deemed confidential obtained by Contractor or its employees or agents in the performance of this Master Agreement, including, but not necessarily limited to (1) any Purchasing Entity’s records, (2) personnel records, and (3) information concerning individuals, is confidential information of Purchasing Entity (“Confidential Information”).

Any reports or other documents or items (including software) that result from the use of the Confidential Information by Contractor 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 Contractor) publicly known; (2) is furnished by Purchasing Entity to others without restrictions similar to those imposed by this Master Agreement; (3) is rightfully in Contractor’s 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 Purchasing Entity without the obligation of confidentiality, (5) is disclosed with the written consent of Purchasing Entity or; (6) is independently developed by employees, agents or subcontractors of Contractor who can be shown to have had no access to the Confidential Information.

Non-Disclosure. Contractor 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.

Contractor 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, Contractor shall advise Purchasing Entity, applicable Participating Entity, and the Lead State immediately if Contractor 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 Contractor shall at its expense cooperate with Purchasing Entity in seeking injunctive or other equitable relief in the name of Purchasing Entity or Contractor against any such person. Except as directed by Purchasing Entity, Contractor 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 Purchasing Entity’s request, Contractor shall turn over to Purchasing Entity all documents, papers, and other matter in Contractor's 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.

Injunctive Relief. Contractor acknowledges that breach of this section, including disclosure of any Confidential Information, will cause irreparable injury to Purchasing Entity that is inadequately compensable in damages.

Accordingly, Purchasing Entity 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 







 


 

30 b.

C.

40. a.
b.

C.

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 cooperative’s Confidential Information, defined to include Participating Addenda, as well as Orders or transaction data relating to Orders under this Master Agreement that identify the entity/customer, Order dates, line item 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’s public 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 that party’s reasonable control. The Lead State may 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. 







 


 

31 d.
e.

41. 42.

43. 44.
a.

1. 2.

3. 4.

5.

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 immediate public crisis. Time allowed for cure shall not diminish or eliminate Contractor’s liability for damages, 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.

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 Suspend Contractor’s performance; 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:








 


 

32 45.

46. b.

C.
d.

1. 2.

3. 4.

5. 6.

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 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 appropriately abrogated the state’s sovereign immunity and is not consent by the state to be sued in federal court. This 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.









 


 

33 47.

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 established Contractor in order to meet the Lead State’s requirements. Evidence of the need to add products or services 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 the Lead State’s prior approval.

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) The Lead State does not need to approve Contractor’s request to make model changes, add their own manufactured products, or remove discontinued or obsolete products or services, and Contractor does not need the Lead State’s approval prior to posting an updated PSS. b) The Lead State must approve Contractor’s request to add new third party manufacturers to Contractor’s 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 State’s approval prior to posting the updated PSS.
c) Contractor must maintain a historic record of all past PSSs on their dedicated NASPO ValuePoint website.








 


 

34 1.

2. a.
b.

1. 2.

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 Entity’s purchase order constitutes a binding contract.

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 Payment Card Industry Data Security Standard (“PCIDSS”). “Network Components” shall include, but are not limited to, Contractor’s firewalls, switches, routers, wireless access points, network appliances, and other security appliances; “Applications” shall include, but are not limited to, all purchased and custom external (web) applications. “Servers” shall include, but are not limited to, all of Contractor’s web, database, authentication, DNS, mail, proxy, and NTP servers. “Cardholder Data” shall mean any personally identifiable data associated with a cardholder, including, by way of example and without limitation, a cardholder’s account number, expiration date, name, address, social security number, 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 of Contractor’s operations, systems, records, procedures, rules, and practices in the event of a security intrusion in order 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 Lead State’s Legislative Auditor or State 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.








 


 

35 3.

4. 5.

6. 7.

8.

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 compliance and criteria for determining a contractor’s compliance status; procedures for addressing deficiencies, 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) In the event of the Contractor’s noncompliance with the requirements of this clause, actions for 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 Rights. Such notices must state the Contractor’s obligation under the law to take affirmative 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.

Consequences. The consequences of a Contractor’s 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 







 


 

36 9.
a.
b.

C.
d.

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 Act (ADA). The Contractor’s catalog and other marketing materials utilized to offer products under the Master 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 







 


 

37 e.

10. 11.

12. a.
b.

C.
d.

13.

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 to document how the changes will impact or improve the product’s or service’s accessibility and usability. This 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 Contractor’s Product with the above-mentioned accessibility Standards. If agreed-upon updates fail to improve the product or service’s accessibility or usability as planned, the failure to comply with this requirement may be cause for 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 materials, it is the responder’s responsibility to obtain permission for the Lead State to reproduce and 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 Contractor shall make no representations of the State’s opinion or position as to the quality or effectiveness of the products or services that are the subject of the Master Agreement without the prior written consent of the State’s 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.








 


 

38 14.

15. 16.

17. 18.

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 Contractor’s objectivity in performing the work is or might be otherwise impaired; or 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 disclosure in writing shall be made to the Assistant Director of the Lead State’s Department of Administration’s Office of 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 subcontracts for work to be performed, and the terms “Contract,” “Contractor,” “Master Agreement”, “Master Agreement Administrator” and “Contract Administrator” modified appropriately to preserve the State’s rights.

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. 







 


 

39 19.
a.
b.

C.

20. a.

1. 2.

3. 4.

5.

The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled, “Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion – Lower Tier Covered Transaction,” without modification, in all 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 







 


 

40 6.

7. 8.

9. b.

1. 2.

21.

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.








 


 

41 22.

23.

Exhibit C: Requirements
Contractor Verification.

Contractor must be a manufacturer of a Product in the Band(s) it is awarded a Master Agreement. “Re-branding” a 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 the Master Agreement the Lead State reserves the right to terminate the Contractor’s Master Agreement.

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.

Contractor must develop and maintain a URL to a web site specific to the awarded Master Agreement. Contractor’s Master Agreement website must offer twenty-four (24) hours per day, seven (7) days per week availability, except for regularly scheduled maintenance times. The website must be separate from the Contractor’s commercially available (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 Requirements:
• 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 of the Contract Section.
• Contact information for order placement, service concerns (warranty and maintenance), problem reporting, and billing concerns
• Sales representatives for participating entities
Desirable Requirements:
• Purchase order tracking
• Links to environmental certification, including but not limited to take-back/recycling programs, EPEAT, Energy Star, etc.
• 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.








 


 

42 1.

2. 3.
a.
b.

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:
• A letter from the Green Electronics Council (GEC) on GEC’s letterhead confirming that the verification process is underway; or
• A copy of Contractor’s GEC contract, Conformity Assurance Board (CAB) contract, and a letter from Contractor’s 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.

Third-Party Products are intended to enhance or supplement a Contractor’s own product line, and are not intended to represent more than a third of Contractor’s total 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 selecting 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 







 


 

43 4.

5. 6.

7. 8.

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. 







 


 

44

Exhibit D: Pricing Schedule
Attached and incorporated into this Master Agreement as Exhibit D is the Price Schedule. 







 


 

45 Exhibit D: Price Schedule
NASPO ValuePoint Computer Equipment (2023-2028)

CONTROL SET
Master Agreement: 23020
Contractor Name: Pure Storage, Inc.

Awarded Bands:

Band 1: Personal Computing Devices (Windows)
Band 2: Personal Computing Devices (Non-Windows)
x Band 3: Servers and Storage
Band Category Code Category Description Discount off
Baseline List
3 3B Band 3 - Minimum Discount 38.0%
3 3T Band 3 - Third Party Product Minimum Discount 38.0% S All Services 6.0%








 


 

46 Exhibit D: Price Schedule Discount Structure
Master Agreement: 23020
Contractor Name: Pure Storage, Inc.

Baseline Price List: Posted on Contractor's dedicated NASPO ValuePoint website Band 3: Servers and Storage
Band Category Code Category Description Discount off
Baseline List
3 3B Band 3 - Minimum Discount 38.00%
3 3T Band 3 - Third Party Product Minimum Discount 38.00% 







 


 

47 Exhibit D: Price Schedule Volume-Based Discounts
Master Agreement: 23020
Contractor Name: Pure Storage, Inc.

All Awarded Bands

1. Per Transaction Multiple Unit Discount(s)
Min $ Single Transaction Max $ Single Transaction Per Transaction Multiple Unit Discount (off Baseline)
$200,000.00 $399,999.99 6.0%
$400,000.00 $599,999.99 14.0%
$600,000.00 $799,999.99 20.0%
$800,000.00 no max 22.0%

2. Cumulative Discount(s)
Threshold Discount Level
$15,000,000.00 1.0%
$30,000,000.00 1.5%
$45,000,000.00 2.0%
$60,000,000.00 2.5%

3. Other Discount(s)
Additional discount(s) available.

N/A
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.

Applicable to hardware products only








 


 

48 Exhibit D: Price Schedule Services
Master Agreement: 23020
Contractor Name: Pure Storage, Inc.

Travel for Services will be negotiated with each Participating Entity in the Participating Addendum.

All Awarded Bands
Category Code Description of Service Percent Discount
S3 All Services 6.0%
Each Purchasing Entity will determine if and how services will be offered in the Participating Addendum. 







 


 

49 Exhibit D: Price Schedule Lease Rates
Master Agreement: 23020
Contractor Name: Pure Storage, Inc.

All Awarded Bands
Optional: Lease Rates
N/A








 


 

50 Exhibit D: Price Schedule Prompt Payment Discount
Master Agreement: 23020
Contractor Name: Pure Storage, Inc.
in 30
in 15, Net 30
in 10, Net 30
X Net 30
All Awarded Bands
Other (specify):








 


 

51 -

END USER AGREEMENT
IMPORTANT: Please read this End User Agreement (“Agreement”) before installing or using any Products or services that you or the entity that you represent (“End User” or “Customer”) obtain from Pure Storage, Inc. (“Pure”) or from any third party authorized by Pure to resell the Products and services. By installing or using the Products or services, you represent and warrant that you have the authority to bind End User and agree that End User is bound by this Agreement with Pure, unless a separate written agreement is in effect that specifically governs the subject matter of your purchase.

1. UNIVERSAL END USER TERMS (APPLICABLE TO ALL PRODUCTS AND SERVICES).

1.1 Purchases Made Via Pure’s Authorized Resellers. Except for Pay-As-You-Go Software Licenses (as described in the Portworx Terms), all other Products and services are purchased via a Pure authorized reseller. All pricing, payment, and delivery terms (including risk of loss) for all Products and services are set forth in the order between End User and the applicable Pure authorized reseller.

1.2 Pure’s Retained Rights. Except for title to the underlying hardware for hardware purchases (as described in Section 2 herein) or Evergreen //Flex (as describe in Section 3.3 herein), Pure and its suppliers exclusively retain all right, title and interest, in all other intellectual property rights, including patent, trademark, trade name and copyright, whether registered or not registered, in and to the Products and related documentation, and any modifications, improvements, enhancements, customizations, updates, or derivative works thereof. Pure and its suppliers reserve all rights not expressly granted herein, and no other license or other implied rights of any kind are granted or conveyed. In the event that items of software code provided with the Products are subject to “open source” or “free software” licenses, nothing herein limits End User’s rights under, or grants rights that supersede, the applicable license therefore. End User grants to Pure a perpetual, irrevocable, worldwide, sublicenseable, fully paid-up and royalty-free right to modify and use any Feedback in any manner, provided that Feedback is anonymized and does not identify End User.

1.3 Product Restrictions. End User shall not directly or indirectly (a) reproduce, modify, distribute, assign, disclose or make available any portion of the Products (or any related documentation) to any third party (except as otherwise authorized herein); (b) rent, lease or sublicense the Products; (c) reverse engineer, decompile, or disassemble any portion of the Products, or otherwise attempt to decrypt, extract or derive source code for, or any algorithms or data structures embodied within, any portion of the Products (except to the extent the foregoing restriction is expressly prohibited by applicable law); (d) use the Products to develop a similar product or service; (e) transfer or copy the software to, or use the software on, any other product or device, including any second-hand or gray market hardware that End User has not purchased from Pure or a Pure authorized reseller; or (f) publish or disclose to any third party any technical features, performance or benchmark tests, or comparative or competitive analyses relating to the ATTACHMENT 3
52 (' PURESTORAGE.

Products, except for internal use by the End User or as may be authorized by Pure in writing. End User will remain fully and primarily responsible to Pure for compliance with this Agreement if End User permits any third party to access the Products or services. Any future release, update, or other addition to functionality of the Products made available by Pure to End User shall be subject to this Agreement, unless Pure expressly states otherwise. End User shall preserve and shall not remove, obscure or alter any copyright labels required by law or other proprietary notices in the Products or related documentation.

1.4 Data Privacy. If End User provides personal data to Pure, the parties will ensure that such personal data is disclosed and handled in accordance with all applicable data protection laws and the confidentiality provisions set forth in this Agreement. End User acknowledges and agrees that Pure does not host or have read or write access to the End User data stored on the Products.

End User is solely responsible for data (including personal data) managed or stored using the Products and for compliance with all applicable data privacy laws related thereto, and where required by applicable law, additional terms and conditions may apply. To the extent Pure receives personal data from End User, the Pure Privacy Statement shall apply to Pure’s management and usage of such data.

1.5 Products, Services, and Subscriptions in the Data Center. End User acknowledges and agrees that it is exclusively responsible for placement and use of all Products and services in a secure network environment with security access controls and processes consistent with then-current data center and network security policies and procedures. Notwithstanding anything to the contrary contained herein, it is expressly understood by the parties that Pure does not host or have read or write access to the End User data stored on the Products.

1.6 Product Diagnostic Reporting. End User acknowledges that the Products store certain diagnostic information about the routine operations of the Product, including performance, capacity usage, data reduction ratios, configuration data, and hardware faults (“Pure1® Reports”) and, when enabled by End User, periodically transmit these Pure1 Reports to Pure and authorized End User partners. End User understands and agrees that End User data stored on the Products is not accessed, transmitted or provided to Pure or any third party as part of the Pure1 Reports. Pure retains all rights, title, and interest in the Pure1 Reports. End User agrees that the collection and transmission of such Pure1 Reports is necessary to facilitate any subscription services and certain support services under an Evergreen subscription.

2. HARDWARE PRODUCTS. (APPLICABLE TO CAPITAL PURCHASES OF PURE

HARDWARE WITH A PERPETUAL LICENSE TO ANY EMBEDDED OPERATING SOFTWARE). Purchases of Pure’s hardware Products are covered by Pure’s Hardware Products Terms of Use.

3. EVERGREEN SUBSCRIPTIONS.

3.1 EVERGREEN //FOREVER (Applicable To Hardware And Software-Only Products). At its option, and subject to regional availability, End User may purchase an Evergreen Forever 53 (\ PURESTORAGE"
Subscription providing the generally available Product maintenance and technical support in accordance with the Pure Storage Customer Support Guide during the term for which End User has purchased such Evergreen subscription. Depending on the Product or level of Evergreen Forever Subscription purchased, certain benefits of the Evergreen Storage Program Description may also apply. Pure may designate support partners and authorized resellers to deliver the Evergreen Forever Subscription in accordance with this Agreement.

3.2 EVERGREEN //ONE. (F/K/A Pure As-A-Service; Applicable To The Purchase Of A Service Whereby Pure-Owned Hardware, Software, And Capacity-Management Services Are Delivered On A Consumption Basis). At its option, and subject to regional availability, End User may purchase an Evergreen //One subscription whereby Pure-owned products and services are provided to the End User on a consumption basis pursuant to the Evergreen //One Terms of Use.

3.3 EVERGREEN //FLEX. (Applicable To The Purchase Of A Consumption-Based License To Pure’s Software And Capacity Management Services Delivered On Pure Hardware Owned By The End User). At its option, and subject to regional availability, End User may purchase an Evergreen Flex subscription whereby Pure’s software and capacity management services are provided to the End User on a consumption basis pursuant to the Evergreen //Flex Terms of Use.

4. PROFESSIONAL SERVICES. (APPLICABLE TO PROFESSIONAL SERVICES) End User may purchase Pure-branded professional installation or other professional services pursuant to Pure’s Professional Services Addendum.

5. PORTWORX PRODUCTS. (APPLICABLE TO PORTWORX PRODUCTS ONLY).

Portworx Products are provided pursuant to the Portworx Products Terms of Use.

6. LEGAL MISCELLANEOUS.

6.1 Confidential Information. Pure’s Confidential Information includes all non-public information relating to, or derived from, the Products and services, including technical features, benchmark results, or performance results. Information does not constitute a party’s Confidential Information if (a) already known by Recipient without obligation of confidentiality; (b) independently developed by Recipient without use of Discloser’s Confidential Information; (c) publicly known without breach of this Agreement; or (d) lawfully received from a third party without obligation of confidentiality. Recipient shall: (i) not use or disclose any Confidential Information except as expressly authorized by this Agreement or Discloser; (ii) protect Discloser’s Confidential Information using the same degree of care that it uses with respect to its own Confidential Information of a like nature, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances; and (iii) limit access to Discloser’s Confidential Information to its employees, affiliates, agents, or authorized representatives having a need to know and who are bound by confidentiality obligations no less protective to those contained herein. Recipient shall take prompt and appropriate action to prevent unauthorized use 54 (\ PURESTORAGE"
or disclosure of Discloser’s Confidential Information. Recipient’s obligations under this Section

6.1 survive termination and continue for five (5) years from the date of termination of this Agreement. All tangible materials containing Confidential Information shall remain the property of Discloser. Upon termination, Recipient shall cease any use of Confidential Information. Upon Discloser’s written request, the receiving party shall promptly return (or at Recipient’s option, destroy) all documents and tangible materials containing any portion of, or summarizing, Discloser’s Confidential Information. At Discloser’s request, an authorized representative of Recipient shall provide a certificate attesting to compliance with this section. Recipient shall promptly notify Discloser of any legal, accounting or regulatory order or request requiring the disclosure of any Confidential Information to any third party and permit Discloser (at its own expense) to seek an appropriate protective order.

6.2 Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS

AGREEMENT, PURE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR

STATUTORY, TO THE EXTENT WARRANTIES MAY BE DISCLAIMED UNDER APPLICABLE

LAW, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. PURE DOES NOT WARRANT

AGAINST LOSS OR INACCURACY OF DATA OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY STATED HEREIN, PURE PROVIDES THE PRODUCTS ON AN “AS IS” BASIS. THE PRODUCTS ARE NOT

DESIGNED OR INTENDED FOR USE WHERE FAILURE OF THE PRODUCT COULD

REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE OR PROPERTY DAMAGE. END USER IS RESPONSIBLE FOR ENSURING THAT IT HAS

APPROPRIATE DATA BACK-UP, DATA RECOVERY, AND DISASTER RECOVERY MEASURES IN PLACE.

6.3 Indemnification. Pure will indemnify and defend End User, at Pure’s expense, against any action brought by a third party against End User to the extent that the action is based upon a claim that the Products directly infringe any copyrights, trademarks, or U.S. or European Union patents, or misappropriate any trade secrets, and Pure will pay those costs and damages finally awarded by a court of competent jurisdiction against End User in any such action that are specifically attributable to such claim or those costs and damages agreed to by Pure in a monetary settlement of such action. If End User’s use of the Product is, or in Pure’s opinion is likely to become, enjoined as a result of an infringement claim, Pure will, at its option and expense, either (i) procure the right to continue using the Product; (ii) replace or modify the Product so that it becomes non-infringing and remains functionally equivalent; or (iii) if, despite its commercially reasonable efforts, Pure is unable to do either (i) or (ii), Pure will accept return of the Product, terminate the rights herein, and pay to End User a prorated refund of the money paid to Pure for the purchase of such Product reduced on a straight-line basis over a three-year life.

Notwithstanding the foregoing, Pure will have no obligation with respect to any infringement claim based upon (a) any use of the Product that is not in accordance with this Agreement or the corresponding Product documentation; (b) any use of the Product in combination with other products, equipment, software, or data not supplied by Pure if such infringement would not have arisen but for such combination; (c) the use of any release of the software other than the current 55 (' PURESTORAGE.
and immediately preceding version; or (d) any modification of the Product by any person other than Pure if such infringement would not have arisen but for such modification. This Section 6.3 states Pure’s entire liability, and End User’s sole and exclusive remedy, for infringement claims and actions. The foregoing obligations are subject to End User notifying Pure promptly in writing of such action, giving Pure sole control of the defense thereof and any related settlement negotiations, and cooperating and assisting in such defense at Pure’s reasonable request and expense (including reasonable attorneys’ fees).

6.4 Limitation of Liability. EXCEPT FOR PHYSICAL BODILY INJURY, DEATH, WILLFUL MISCONDUCT, OR ANY INFRINGEMENT OR VIOLATION OF PURE’S INTELLECTUAL

PROPERTY RIGHTS, IN NO OTHER EVENT WILL EITHER PARTY, THEIR PARENTS,

SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS,

SHAREHOLDERS AND EMPLOYEES BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL,

EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR LOST PROFITS, LOST OR

CORRUPTED DATA, OR INTERRUPTION OF BUSINESS ARISING IN CONNECTION WITH

THE USE OF THE PRODUCT OR SERVICES OR IN CONNECTION WITH ANY OTHER CLAIM

ARISING FROM THIS AGREEMENT EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PHYSICAL BODILY INJURY, DEATH, WILLFUL MISCONDUCT,INFRINGEMENT OR VIOLATION OF PURE’S INTELLECTUAL PROPERTY RIGHTS, OR PURE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.3, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTIES’ AGGREGATE LIABILITY

UNDER OR RELATING TO THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES IN AN

AMOUNT NOT TO EXCEED THE AMOUNT PAID BY END USER FOR PRODUCTS OR SERVICES THAT GAVE RISE TO SUCH CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

6.5 Governing Law and Venue. This Agreement is governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles. The parties expressly consent to the personal jurisdiction and venue in the state and federal courts in Santa Clara County, California for any lawsuit filed there arising from or related to this Agreement.

The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

6.6 Relationship. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

6.7 Notices. Except as specifically stated, all notices or other communications required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt. 56 (' PURESTORAGE.

6.8 Compliance with Laws. The parties agree to comply with all applicable laws with regards to the distribution and use of the Products and performance of its obligations under this Agreement, including but not limited to those laws specifically set forth in Section 6.10 herein.

6.9 Severability; Waiver. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement remain enforceable and the invalid or unenforceable provision is deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion is not deemed a waiver of any other provision or of such provision on any other occasion.

6.10 Export. The Products and related technology are subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. End User represents and warrants that (a) it is not on any export control or economic sanctions lists, including those subject to the Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”) and Office of Foreign Asset Control Regulations (“OFAC”), or any other export exclusion list of any other U.S. or non-U.S. governmental agency; (b) it will not export Products or services to (i) destinations requiring a license; (ii) persons or entities requiring a license; or (iii) end user and end uses requiring a license, unless such license has been obtained; and (c) it will comply with the then-current version of such laws and regulations, including but not limited to agreeing not to export, re-export, divert, or transfer, directly or indirectly, any Products or other technology, software or technical data acquired from Pure (i) for use in activities which involve the development, production, use or stockpiling of nuclear activities of any kind, chemical or biological weapons or missiles, unmanned aerial vehicles, or microprocessors for military use, nor use the Products in any facilities which are engaged in activities relating to such weapons or applications, without prior authorization from the U.S. government and prior notification to Pure; (ii) to any entity or country that is subject to U.S. government approval, including, but not limited to, Cuba, Iran, North Korea,, Syria, or the Crimea, Donetsk, or Luhansk regions of Ukraine, unless otherwise authorized by the U.S. government; (iii) to any entity or country that is subject to the selling country’s legal export restrictions, such as a debarred list issued by its government, if any; or (iv) for China military end-use or end-users or Russian military end-use or end-users or other destinations in Russia requiring an export license or other approval, unless otherwise authorized by the U.S. government. End User acknowledges that U.S. federal law and the selling country’s law prohibits the sale, export or re-export diversion or transfer, or other participation in any export transaction involving the Products with individuals or entities listed in the U.S. Commerce Department’s Table of Denial Orders, the U.S. Treasury Department’s list of Specially Designated Nationals, or the U.S. Department of State’s list of individuals debarred from receiving Munitions List items, or other applicable lists, such as the selling country’s entity or denial person/company lists. End User agrees to obligate, by contract or other similar assurances, the parties to whom it may re-export or otherwise transfer Products to comply with all obligations set forth in this Agreement. Upon Pure’s request, End User agrees to provide Pure with applicable end use information.
57 (' PURESTORAGE.

6.11 No Assignment. This Agreement, and End User’s rights and obligations herein, may not be assigned by End User without Pure’s prior written consent, which consent will not be unreasonably withheld, and any attempted assignment in violation of the foregoing will be null and void.

6.12 U.S. Government End Users. The Products and related documentation are “commercial off the shelf items” as defined in FAR 2.101 and their use is subject to the policies set forth in FAR

12.211, FAR 12.212 and FAR 227.7202, as applicable.

6.13 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, pandemic, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, volcanic eruption, material shortages or any other cause that is beyond the reasonable control of the party.

6.14 Termination. The licenses granted in this Agreement, and End User’s rights to use the applicable Product or services terminates immediately if End User materially breaches any provision of this Agreement and, if capable of cure, fails to cure such breach within 30 days from the date of Pure’s written notice to End User. Upon any such termination, any terms, which upon a plain-reading, are intended to survive termination or expiration of this Agreement, shall survive any termination of this Agreement.

6.15 Interpretation. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement. Each party has been given the opportunity to independently review this Agreement with legal counsel and each party has the requisite experience and sophistication to understand, interpret, and agree to the particular language of the provisions. Therefore, in the event of any ambiguity in or dispute regarding the interpretation of this Agreement, the drafting of the language shall not be attributed to either party.

6.16 Entire Agreement; Modification. This Agreement, and all supplementary terms referenced herein, is the entire agreement between the End User and Pure with respect to the subject matter hereof. All supplementary terms referenced in this Agreement are incorporated by this reference into this Agreement. Any varying or additional terms relating to the subject matter hereof in any purchase order, discussion, or other written document will be of no effect. Pure reserves the right to update these Terms from time to time, as noted by the “Last Updated” date below.

7. DEFINITIONS APPLICABLE TO ENTIRE AGREEMENT (ALL PRODUCTS AND SERVICES).

7.1 Agreement: this Pure End User Agreement and any attachments thereto. 58 (' PURESTORAGE.

7.2 Confidential Information: any nonpublic information of Discloser, whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that Recipient knows or should have known is the confidential or proprietary information of Discloser.

7.3 Discloser: a party disclosing Confidential Information.

7.4 Documentation: the standard end-user technical documentation and specifications that Pure provides or makes available with the Products.

7.5 Evaluation License: a limited-use license for evaluation purposes only of software-only Products.

7.6 Evergreen Forever Subscription: an innovation and support subscription for Hardware and software-only Products, which provides End User with additional software and hardware benefits.

7.7 Feedback: any input or feedback to Pure regarding the use, operation, performance, and functionality of the Products and Pre-Release Products, including identifying potential errors and improvements (collectively, “Feedback”).

7.8 Pre-Release Products: any beta or pre-release versions (before general public availability) of any Products.

7.9 Product(s): any Pure-branded hardware, software, subscription services (including any hardware or software components thereof) and any services.

7.10 Recipient: the party receiving Confidential Information from the Discloser.

7.11 System: each individual data storage device.

Last Updated June 1, 2022
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910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING

CITY OF SAN CLEMENTE
Meeting Date: December 5, 2023 Agenda Item: 7W
Department: Finance and Administrative Services
Prepared By Jake Rahn, Financial Services Officer
Subject:
..titl e

LEASE OF MULTI
..body
-FUNCTIONAL COPIER DEVICES FOR ALL CITY OFFICES
Fiscal Impact:

The annual lease cost amounts to approximately $36,150 and is budgeted in Central Services Fund for FY 2023-24.

Summary:

The existing copier lease expired in 2021 and staff is using equipment that has exceeded its useful life and maintenance service obligations from the contractor. Leveraging the National Associations of State Procurement Officials (NASPO) cooperative procurement program allows expedient replacement at competitive pricing.

Background:

Central Services oversees the maintenance and operation of multi-function copier devices citywide and recovers the operating cost of the equipment through inter-departmental charges, based on usage.

For the past 12 years the City has partnered with Cell Business Equipment (CBE), which distributes Sharp and Cannon multi-functional devices and provides equipment maintenance services. The five-year term of the lease expired in 2021 and as a result of lower usage during the pandemic, staff was able to prolong equipment operability with supplemental maintenance contracts provided by CBE. Current equipment has exceeded its useful life and is experiencing more outages and repair activities. Due to the expiration of the service maintenance contract and the service repairs required, the current equipment is in need of immediate replacement.

Discussion:

Leveraging cooperative procurement programs is allowed in the City of San Clemente’s Purchasing Policy 201-2-1 and saves on staff time through simplifying the procurement process.

Staff recommends participation in the State of California NASPO ValuePoint Master Agreement Number 140603 with Sharp Electronics Corporation pricing authorized through July 31, 2024. The cooperative purchase agreement sets discounted pricing for the procurement of print services competitively bid in accordance under California law as reference in the State of California Participating Addendum No. 7-19-70-46-07. The master agreement, which was initially awarded through a competitive bidding process in 2019 by the state of Colorado, has recently entered into its second addendum with the state of California in 2022. The purchasing policy allows for purchases awarded by the state of California within the last 365 days, and the participation of California in the 2022 addendum aligns with the intent and interpretation of the policy. 1 Meeting Date: December 5, 2023 Agenda Item: 7W

CITY OF SAN CLEMENTE
Alternatively, going out to bid in the current high rate of inflation would likely result in higher cost for the city without any cost-saving benefit. Since the most recent purchase of copiers was made seven years ago and the pricing remains unchanged, it is reasonable to assume that the current pricing is still competitive.

CBE, the City’s longtime contractor being awarded the last two consecutive bids is a supplier for the distribution and maintenance of equipment with Sharp Electronics and the City experienced a good working relationship with them in the past. Staff requested CBE evaluate current equipment inventories and CBE made recommendations for direct replacement based on use, volume and capability. Staff evaluated service requirements with departments and adjusted CBE recommendations accordingly. Before acquisition of copiers, staff will make a final determination on equipment and incorporate minor enhancements to ensure all department needs are met.

The quote for new versions of Sharp copiers equivalent to existing equipment is quoted at $36,150 with maintenance services billed at a rate of $.0049 for black and white and $.049 for color prints. This pricing is comparable to the last copier agreement. Copiers will be replaced at City Hall, Community Development, Community Center, Vista Hermosa Sports Park, Maintenance Services, Water, Sewer, Marine Safety, and CASA. Once the new copiers are in place, the hard drives on the old copiers will be erased and the copiers will be disposed of in a safe manner. City Policy No. 201-2-4 requires the City Council to declare the copiers as surplus property before it is disposed of.

Council Options:
 Adopt Resolution No. 23-148 authorizing the City Manager to execute the lease of Sharp copiers in an amount not to exceed $36,150 annually using the NASPO ValuePoint Master Agreement Number 140603 for a sixty (60) month lease term; and declare the existing copiers surplus and authorize disposal as outlined in Policy No. 201-2-4.  Modify and adopt Resolution No. 23-148.
 Continue the Item and direct staff to provide additional information.  Deny the request to adopt Resolution No. 23-148.

Environmental Review/Analysis
This is not a “project” under the California Environmental Quality Act.

Recommended Actions:

Staff Recommendation
..recommendation
Adopt Resolution No. 23-148 authorizing the City Manager to execute the procurement of Sharp copiers in an amount not to exceed $36,150 using the NASPO ValuePoint Master Agreement Number 140603 for a sixty (60) month lease term; and Declare the existing copiers surplus and authorize disposal as outlined in Policy No. 201-2-4.
..end
Attachment:

1. Resolution No. 23-148

2. NASPO ValuePoint Master Agreement Number 140603 and State of California Participating Addendum No 7-19-70-46-07
2 Meeting Date: December 5, 2023 Agenda Item: 7W

CITY OF SAN CLEMENTE

3. Sharp Proposal
Notification:

None.
3 ATTACHMENT 1
4867-3182-8585 v1
RESOLUTION NO. 23-148

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, AUTHORIZING THE CITY

MANAGER TO EXECUTE PARTICIPATION IN THE

NATIONAL ASSOCIATION OF STATE PROCUREMENT

OFFICIALS (NASPO) VALUEPOINT MASTER
AGREEMENT NUMBER 140603 AND DECLARE SURPLUS

OF EXISTING COPIERS
WHEREAS, the City wishes to provide operational functionality to departments for copiers and managed print services; and
WHEREAS, Purchasing Policy 201-2-1 allows participation in cooperative procurement programs; and
WHEREAS, the State of California entered into participating Addendum Number 7- 19-70-46-07 for copiers and managed print services with the NASPO ValuePoint Master Agreement Number 140603; and
WHEREAS, the City wishes to participate in the NASPO ValuePoint Master Agreement Number 140603.

NOW, THEREFORE, the City Council of the City of San Clemente does hereby resolve as follows:

SECTION 1. That the above recitations are true and correct and incorporated herein.

SECTION 2. That the City Council hereby authorizes and directs the City Manager to execute participation in the NASPO Valuepoint Master Agreement Number 140603 for copiers and managed print services for a term of sixty (60) months.

SECTION 3. That the City Council hereby declares the existing copiers surplus and authorize disposal as outlined in Policy No. 201-2-4.

SECTION 4. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this _____ day of June, 2023.

ATTEST:
4 Resolution No. 23-148 Page 2
4867-3182-8585 v1
___________________________ __________________________
City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 23-148 was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of June 2023, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of _________________, ________. __________________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
_________________________
Elizabeth A. Mitchell, City Attorney
5 Attachment 2
6 STATE OF CALIFORNIA
PARTICIPATING ADDENDUM NUMBER 7-19-70-46-07
Copiers and Managed Print Services
Colorado NASPO ValuePoint Master Agreement Number 140603 Sharp Electronics Corporation (Contractor)
This Participating Addendum Number 7-19-70-46-07 is entered into between the state of California, Department of General Services (hereafter referred to as "State" or "DGS") and Sharp Electronics Corporation (hereafter referred to as "Contractor'') under the lead state of Colorado NASPO ValuePoint Master Agreement Number 140603.

1. SCOPE
A. This Participating Addendum covers the purchase of Copiers and Managed Print Services under the Colorado NASPO Value Point Master Agreement. The Colorado NASPO ValuePoint Master Agreement Number 140603 is hereby incorporated by reference. Product/service categories included under this Participating Addendum are identified in Section 5 (Available Products and Services).

B. This Participating Addendum is available for use by California state agencies and local governments. A local government is defined as any city, county, city and county, district, or other local governmental body, school district or corporation empowered to expend public funds. The State Agency Listing (https://www.ca.gov/agenciesall/) provides a comprehensive list of state agencies.

C. Each local government is to make its own determination whether this Participating Addendum and the Colorado NASPO ValuePoint Master Agreement are consistent with its procurement policies and regulations.

2. TERM
A. The term of this Participating Addendum shall begin upon signature approval by the State and will end December 31, 2021, or upon termination by the State, whichever occurs first.

B. Lead State amendments to extend the NASP-O ValuePoint Master Agreement term date are not automatically incorporated into this Participating Addendum.

Extension(s) to the term of this Participating Addendum will be through a written amendment upon mutual agreement between the State and the Contractor.

C. Order placement and execution shall be on or before the expiration of this Participating Addendum. However, delivery of products or completion of services may be after the Participating Addendum expiration date.

7 Participating Addendum 7-19-70-46-07

3. TERMS AND CONDITIONS/INCORPORATION OF DOCUMENTS
A. Terms and conditions listed below are hereby incorporated by reference and made a part of this Participating Addendum as if attached herein and shall apply to the purchase of goods or services made under this Participating Addendum. 1) General Provisions - Information Technology (GSPD-401 IT) effective 9/5/2014. This document can be viewed on the DGS Procurement Division website (https://www.dgs.ca.gov/PD/Resources/Page-Content/ProcurementDivision-Resources-List-Folder/Model-Contract-Language ). 2) Cloud Computing Software as a Service (SaaS) General Provisions effective 6/7/2019. This document can be viewed on the DGS Procurement Division website (https://www.dgs.ca.gov/PD/Resources/Page-Content/ProcurementDivision-Resources-List-Folder/Model-Contract-Language ). 3) Cloud Computing Special Provisions for Software as a Service (SaaS) effective 03/15/18. This document can be viewed on the DGS Procurement Division website (https://www.dgs.ca.gov/PD/Resources/PageContent/Procurement-Division-Resources-List-Folder/Model-ContractLanguage).

4. ORDER OF PRECEDENCE
A. In the event of any inconsistency between the articles, attachments, or provisions which constitute this agreement, the following descending order of precedence shall apply:
1) California Participating Addendum Number 7-19-70-46-07 2) Colorado NASPO ValuePoint Master Agreement Number 140603 3) Colorado Solicitation RFP-NP-18-001 including all Addendums 4) Contractor's response to the Colorado Solicitation

5. AVAILABLE PRODUCTS AND SERVICES
A. The following product and service offerings from the Colorado NASPO ValuePoint Master Agreement Number 140603 are allowed under this Participating Addendum:
1) Group A - A3 Multifunction Devices
2) Group B - A4 Multifunction Devices
3) Group C - Production Equipment
4) Group D - Single-function Printers
5) Group F - Scanners
6) Managed Print Services may be provided on Groups A, B, C, D and F. If the ordering agency owns the equipment, Managed Print Services may be provided on Group E.

8 Participating Addendum 7-19-70-46-07

6. RESTRICTIONS/DISALLOWED PRODUCTS AND SERVICES
A. The following products or services are prohibited for purchase by state agencies under this Participating Addendum. These restrictions do not apply to local governmental entities.
1) Leasing and Rental Options
2) Products:
a) Remanufactured Equipment
b) Imaging equipment that does not meet or exceed Electronic Product Environmental Assessment Tool (EPEAT) Silver
c) Imaging equipment that is not Energy Star certified
d) Software containing "Clickwrap" Agreements
e) Not Specifically Priced (NSP) items not listed or priced in NVP Price Lists 3) Services:
a) Mail Room Services
b) Network and Data Security
c) Records Management
B. Product and service categories available on mandatory California statewide contracts cannot be purchased from this Participating Addendum by State agencies without an exemption. State agencies are responsible for obtaining an exemption from DGS prior to issuing a purchase order. This restriction is not applicable to local governments.

7. PRICING
Contractor is responsible for maintaining a current Price List of available products and services on the NASPO ValuePoint Copiers and Managed Print Services website.

8. CONTRACTOR SUPPLEMENTAL DOCUMENTS
Pursuant to the terms and conditions incorporated into this Participating Addendum, Contractor Supplemental Documents attached to the Colorado NASPO ValuePoint Master Agreement as Attachment A through Attachment D, shall be negotiated to the mutual agreement of the Contractor and ordering agency and attached to the purchase/contract document.

9. AUTHORIZED RESELLERS
A. Contractor may use State-approved Authorized Resellers under this Participating Addendum for sales and service functions as defined herein. 1) Authorized Resellers must accept purchase orders and accept payment from ordering agencies for products offered under this Participating Addendum.

9 Participating Addendum 7-19-70-46-07
2) Authorized Resellers are responsible for sending a copy of all purchase orders and invoices to the Contractor for compliance with quarterly usage reporting and administrative fee requirements.
3) All purchase documents to Authorized Resellers shall reference the Participating Addendum Number and Contractor Name.

B. Contractor shall be responsible for successful performance and compliance with all requirements in accordance with the terms and conditions under this Participating Addendum, even if work is performed by Authorized Resellers. All State policies, guidelines, and requirements shall apply to Authorized Resellers.

C. Contractor will be the sole point of contact with regard to Participating Addendum contractual matters, reporting, and administrative fee requirements.

D. Subject to the approval of the State, Authorized Resellers may be added on a quarterly basis during the term of the contract. Contractors shall notify the State of any deleted Authorized Resellers or changes to current Authorized Resellers' contact information in writing at any time during the contract term.

E. Contracto·r will be required to submit Authorized Reseller requests, in a format specified by the State, to the State Contract Administrator for approval.

F. State-:-approved Authorized Resellers will be posted on the State's Cal eProcure website.

10. SUBCONTRACTORS
A. Nothing contained in this Agreement or otherwise, shall create any contractual relation between the State and any subcontractors, and no subcontract shall relieve Contractor of its responsibilities and obligations hereunder. Contractor agrees to be as fully responsible to the State for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the Contractor. Contractor's obligation to pay its subcontractors is an independent obligation from the State's obligation to make payments to the Contractor.

B. The Contractor shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted except for subcontractors listed on the Bidder Declaration, GSPD-05-105, provided to ordering agencies at the time an order is quoted.

C. As the prime contractor, Contractor is responsible for reports and fees required by the terms and conditions of the NASPO ValuePoint Master Agreement and State Participating Addendum.

10 Participating Addendum 7-19-70-46-07
D. Any subcontract in excess of $25,000, entered into as a result of this Agreement, shall contain all the provisions stipulated in this Agreement to be applicable to subcontractors.

11. ORDERING AGENCY RESPONSIBILITIES
A. State agency and local government use of this Participating Addendum is optional.

B. State agencies and local governments must follow the ordering procedures outlined within the User Instructions guide, administered by the State Contract Administrator, to execute orders against this Participating Addendum.

12. STATE AGENCY BUY RECYCLED CAMPAIGN (SABRC)
A. State agencies are required to report purchases made within eleven product categories in the California Department of Resources Recycling and Recovery's SABRC per Public Contract Code Sections 12200-12217.

B. Contractor will be required to complete and return a Recycled-Content Certification form (https://www.calrecycle.ca.gov/contracts/forms) upon request by the state agency.

13. DELIVERY
A. Delivery shall occur within 30 days after receipt of order, or as negotiated between ordering agency and contractor and included in the purchase order, or as otherwise stipulated in the NASPO ValuePoint Master Agreement.

B. F.0.8. (Free On Board) Destination

14. INVOICING AND PAYMENT
A. Payment terms for this Participating Addendum are net forty-five (45) days.

Payment will be made in accordance with IT Commodities General Provisions Paragraph 30 (Required Payment Date).

8. Payment will be made in accordance with the provisions of the California Prompt Payment Act, Government code Section 927 et.seq. Unless expressly exempted by statute, the Act requires state agencies to pay properly submitted, undisputed invoices not more than 45 days after (i) the date of acceptance of Deliverables or performance of services; or (ii) receipt of an undisputed invoice, whichever is later.

C. Invoices shall be sent to the address identified in the ordering agency's purchase order. The State Participating Addendum Number and ordering agency Purchase Order Number shall appear on each invoice for all purchases placed under this Participating Addendum.

11 Participating Addendum 7~19-70-46-07
D. Contractor will accept the State of California credit card (CAL-Card} for payment of invoices.

15. USAGE REPORTING
A. Contractor shall submit usage reports on a quarterly basis to the State Contract Administrator for all California entity purchases using the report template attached hereto as Attachment A. The report is due even when there is no • activity.

B. The DGS Contract Administrator reseives the right to modify Attachment A and require Contractor to provide additional order information during the course-of this Agreement.

C. The report shall be an Excel spreadsheet transmitted electronically to the DG§_ Cooperatives mailbox ([email protected]).

D. Any report that does not follow the required format or that excludes information will be deemed incomplete. Contractor will be responsible for submitting, corrected reports within five business days of the date of written· notification from the State.

E. Tax must not be included.in the report, even if it is on the.purchase order ..

F. Reports are due for each quarter as follows:
·: --:·. . . _.·· _.· .·· •. . .-
. .- Due Date ---···.

Reporting Period .. • . ' . ' ' ' - .

January 1 to March 31 April 30
April 1 to June 30 July 31
July 1 to September 30 October 31
October 1 to December 31 January 31
G. Failure to meet reporting requirements and submit the reports on a timely basis shall constitute grounds for suspension of this contract.

H. Time extensions may be approved only if all due reports have been submitted to_- the State.

16. ADMINISTRATIVE FEE
·A. Contractor shall submit a check; payable to the State of California, remitted to the Cooperative Agreement Unit for the calculated amount equal to 1.25% of the sales for the quarterly period.

B. Contractor must include the Participating Addendum Number on the check.

Those checks submitted to the State without the Participating Addendum Number will be returned to Contractor for additional identifying information.

12 Participating Addend um 7-19-70-46-07
C. Administrative fee checks shall be submitted to:

State of California
Department of General Services, Procurement Division
Attention: Cooperative Agreement Program
707 3rd Street, 2nd Floor, MS 2-202
West Sacramento, CA 95605
D. The administrative fee shall not be included as an adjustment to Contractor's NASPO ValuePoint Master Agreement pricing.

E. The administrative fee shall not be invoiced or charged to the ordering agency.

F. Payment of the administrative fee is due irrespective of payment status on orders or service contracts from a purchasing entity.

G. Administrative fee checks are due for each quarter as follows:
·_:_=.• "_- :._ '' '. ·, -_ :··_:··-i Reporting Period.· • . · . Due Date • . ' -- ,·· •. ''.'.. . .· '.· ·, --.

January 1 to March 31 April 30
April 1 to June 30 July 31
July 1 to September 30 October 31
October 1 to December 31 January 31
H. Failure to meet administrative fee requirements and submit fees on a timely basis shall constitute grounds for suspension of this contract.

17. CONTRACT MANAGEMENT
A. The primary Contractor Contract Manager for this Participating Addendum shall be as follows:

Contractor •• Contrac.t~ariager. .. ··; ....
•.
•i > ....... ··
Name: Laurie Williams
Phone: (714) 371-8214
Fax: (800) 445-5805
Email [email protected]
Address: Sharp Electronics Corporation
100 Paragon Drive
Montvale, NJ 07645

13 Participating Addendum 7-19-70-46-07
B. The State Contract Administrator for this Participating Addendum shall be as follows:
. . . '_ ,_ ' .
-C6r1tracfAdrh i'n istrator -· .• -·-
Stat~ .. _, ·-", ,· ·.: ... ,.,.,-. ~:-';•- ~c •, • . ' ' i Name: Yolanda Tutt
Phone: (916) 375-4408
Email [email protected]
Address: State of California
Department of General Services
Procurement Division
707 Third Street, 2nd Floor, MS 2-202
West Sacramento, CA 95605
C. Should the contact information for either party change, the party will provide written notice with updated information no later than ten business days after the change.

18. TERMINATION OF AGREEMENT
The State may terminate this Participating Addendum at any time upon 30 days prior written notice to the Contractor. Upon termination or other expiration of this Participating Addendum, each party will assist the other party in orderly termination of the Participating Addendum and the transfer of all assets, tangible and intangible, as may facilitate the orderly, non-disrupted business continuation of each party.

This provision shall not relieve the Contractor of the obligation to perform under any purchase order or other similar ordering document executed prior to the termination becoming effective.

19. AMENDMENT
No amendment or variation of the terms of this Participating Addendum shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or agreement not incorporated in the Participating Addendum is binding on any of the parties.

20. AGREEMENT
A. This Participating Addendum and the Master Agreement together with its exhibits and/or amendments, set forth the entire agreement between the parties with respect to the subject matter of all previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof.

Terms and conditions inconsistent with, contrary or in addition to the terms and conditions of this Participating Addendum and the Master Agreement, together with its exhibits and/or amendments, shall not be added to or incorporated into this Participating Addendum or the Master Agreement and its exhibits and/or

14 Participating Addend um 7-19-70-46-07
amendments, by any subsequent purchase order or otherwise, and any such attempts to add or incorporate such terms and conditions are hereby rejected.

The terms and conditions of this Participating Addendum and the Master Agreement and its exhibits and/or amendments shall prevail and govern in the case of any such inconsistent or additional terms.

B. By signing below Contractor agrees to offer the same products/and orservices as on the Colorado NASPO ValuePoint Master Agreement Number 140603, at prices equal to or lower than the prices on that contract.

IN WITNESS WHEREOF, the parties have executed this Participating Addendum as of the date of execution by both parties below.

STATE OF CALIFORNIA
Department of General Services
Agency Name
l~c0,i ld-11,0 \ 1 q
Authorized Signature Date Signed
~terho.t\n.e l,;\hl Mf\'\AJ.- i;~rervC~vV
Printed Name/Title of Person Signing
707 Third Street
West Sacramento, CA 95605
Address

CONTRACTOR
Sharp ElectronicsCorporation
Contractor
~
Name
t.:2[1itj1q
Authorized Signature Date Signed
Mike Marusic / President and CEO
Printed Name/Title of Person Signing
100 Paragon Drive
Montvale, NJ 07645
Address

15 ParticipatingAddendum 7-19-7046--07
Attachment A
Sheet 1 of 2
Usage Report:

Contract Number:

Contractor:

Reporting Period:

Report Value:

Administrative Fee:
•••...•• > . . •.· •. •• . >•,: ·> < >. i : .• > .· .·•··· ... ~)l'lariufacti.ire"r • . ) .' > . : Ou~~tityin ' ·•··· Use :-- ~:. iExtE!nded 1nd8x ..

O.d •• •• • A.• , •• N •. • ·.I· Sta. te/Loca. I Pur.·chase,OrderJServ1ce _. 0 d. oat· . C ..ategory .. f >p·.···,· ..rt····. N .. •• b ••. · .• •• ,i·t·.··, ,.·o ., •. ,,·.- _ .. ·ti·_. •.. •.• .... • '._ ·. ·u·,. ·t·.-. t .. _.· ... • ··•·•.·Q' • • ··t·t·.·,.· ·p •. .·iM· s· . Con.tract··- .. ,c·· ....... t.• ••• t ..... • Date I r ermg gency ame Spend • -• •.· Contract Niirri ber • r er, e ••• Greil.Ip •• • ' aco· e· Mum#} .. 'er : • em •. escnp on • . •. M m -0 ' • . u;;in I y . • ncReP ·, . Uri it Price :p~n. rap. C "d·. ; ... Catalog .... - • • .. • •• .. • .., •'• • ',. ·.,o: easure--. _· · •· .. nee• a1 .' ···-version -------------------------------------------------
16 ParticipatingAddendum7-19-7046--07
Attachment A
Sheet2of2
Usage Report (Template Key)
Contract Number:

Contractor:

Column
Number
Column
Name I ·-Nim,? '·' ·T <,sp~tt':

Descri"ption I State Agency or Local I Identify
Government name as ordering
described on !he agency as a
purchase document "State" or
"Local
Government'
entity, as
applicable.

Format I Text Text
Example !Department of General Servlc;e$ State
Example I Department of General Services State
Example I Department of General Servic,es State
;:·.:·.::iierv:1r;e ._,anu:i:u;:t~-:.-:
•• )N~.mb~ri;_::::.:_::

Ordertng agency's
unique purchase order
or service contract
number associated
with i!em(s)
purohased.

Variable Characters
2832820
2832820
2832820
: ·uraer· u-ate:
.. .-·.;_~~~~~~:-'?~I'.~~}~-~~, .. : : t"art·Num0er·. _::: •': .: ... :··:::_: :· .. /_/~ .. ' . ·: :·· ~- ' i: \ <01::~it1aL : •
Date the category/Group for Manufacturer's
ordering each line item unique
agency placed (commodity/ service) identifier forthe
the order. that includes Contractor line item.
respective percent
discount off MSRP.

This identifier should
match !he identifier
provided in the
Contractofs specific
Control Set
Date Vartable Characters Vari.,,le Characmr
4/3012013 5.2.1 ISINK34
4/30/2013 5.3.1 Annual Maintenance
4130/2013 5.3.1 IS330AI + SP10
·/···-l~~--~u~~~r:•p.~.1~,n:<·: :'PJ!easuri(: •• -,~~~')-~lY•" -:LISt· ... nce1M::iKt"· ·_.•·.:;:price• :·i __ ;·_;· .. :,::.",- .::~.:-:: . .-., ·/·/;:.> -.:-:~:'..: .: :::"./.". ~:- :"·. • : ~i : .. -~:. ,:·, ~·: ·t:: .. : ,P~c~Paic:1-j Information about Packaging Quantity An indeperidenlly This is!he Total Price( Price or commodity/service unit purchased for verifiable public price paid for QuantityX catalog purchased. Narrative descriptor each lineltem. price(MSRP) given line item Contract Unit effective dale. should be descriptive (i.e. each, Allretumed available to !he Price); HelpsDGS enough to validate box. dozen, Items are general public. ( ColumnJ x track index consistency with the case, lbs, reported as a ColumnL) pnce Changes Category/ Group ID pallet etc.). negative When pl'O\/ldlng (historical stated in Column E number. For usage reports, this 1i'ameof service information should reference)
contracts, reflect list prices at
identify term in time oforder.
monthS.

Variable Charactsr Variable Number Currency Currency Currency Dale / Vari able Character Character Application Services EA 1 $55.00 $48.95 $48.95 7/19/2012 3-year Maintenanc,;, EA 1 $300 $270.00 $810.00 7/19/2012 I 1-year Maintenance I EA I 1 I $48.00 I $24.96 I $898.56 I 7/19/2012

STATE OF CALIFORNIA
PARTICIPATING ADDENDUM NUMBER 7-19-70-46-07
AMENDMENT 1
Copiers and Managed Print Services
Colorado NASPO ValuePoint Master Agreement Number 140603 Sharp Electronics Corporation (Contractor)

The parties mutually agree to amend Participating Addendum 7-19-70-46-07 as follows:

Section 2. TERM, subparagraph A is revised to read as follows:

A. The term of this Participating Addendum shall begin upon signature approval by the State and will end December 31, 2022, or upon termination by the State, whichever occurs first.

All other terms and conditions of the Participating Addendum shall remain in full force and effect.

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date of execution by both parties below.

STATE OF CALIFORNIA
Department of General Services

CONTRACTOR
Sharp Electronics Corporation
Agency Name Contractor Name
Authorized Signature Date Signed Authorized Signature Date Signed Printed Name/Title of Person Signing Printed Name/Title of Person Signing 707 Third Street
West Sacramento, CA 95605
100 Paragon Drive
Montvale, NJ 07645
Address Address
12/1/21
Mike Marusic
12/14/2021
Stephanne Lim/MAU2 Supervisor
17 ~~----=------- ~7)1/~

STATE OF CALIFORNIA
PARTICIPATING ADDENDUM NUMBER 7-19-70-46-07
AMENDMENT 2
Copiers and Managed Print Services
Colorado NASPO ValuePoint Master Agreement Number 140603 Sharp Electronics Corporation (Contractor)

The parties mutually agree to amend Participating Addendum 7-19-70-46-07 as follows:
1) Agreement is extended from December 31, 2022 to July 31, 2024. Section 2.

TERM, subparagraph A is revised to read as follows:

A. The term of this Participating Addendum shall begin upon signature approval by the State and will end July 31, 2024, or upon termination by the State, whichever occurs first.
2) Section 21. EXECUTIVE ORDER N-6-22 – RUSSIA SANCTIONS is hereby added to read as follows:

21. EXECUTIVE ORDER N-6-22 – RUSSIA SANCTIONS
On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6- 22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State determine Contractor is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this Participating Addendum. The State shall provide Contractor advance written notice of such termination, allowing Contractor at least thirty (30) calendar days to provide a written response. Termination shall be at the sole discretion of the State.

All other terms and conditions of the Participating Addendum shall remain in full force and effect.
18 Participating Addendum 7-19-70-46-07
Amendment 2

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date of execution by both parties below.

STATE OF CALIFORNIA
Department of General Services

CONTRACTOR
Sharp Electronics Corporation
Agency Name Contractor Name
Authorized Signature Date Signed Authorized Signature Date Signed Julie Matthews, MAU2 Supervisor
Printed Name/Title of Person Signing Printed Name/Title of Person Signing 707 Third Street
West Sacramento, CA 95605
100 Paragon Drive
Montvale, NJ 07645
Address Address
rvo
11/29/2022
19 '-IJIIC.I U'-LUI IVUIIIC
~ ~7}1f~
!Authorized Signai
11/2/2022
Mike Marusic/ President & CEO
Digital Multitasking Proposal
For
By: Chris Farry
CBE OFFICE SOLUTIONS November 21, 2023
Attachment 3
20 OFFICE SOLUTIONS

CBE OFFICE SOLUTIONS
4-A Mason, IRVINE, CA. 92618 • (800) 266-4223 XT.216 • Fax (949) 597-2479 Configurations:

Sharp BP-70C65 Digital Color Copy/Print/Scan System
• 65 Page Per Minute Color Digital Copier
• 55 Page Per Minute Black and White
• Duplexing Single Pass Feeder (300 Sheet), Up to 280 OPM • 10.1” Customizable Color Touch Screen - Programmable, w/ Easy Modes • 2 X 550 Sheet Paper Drawers (up to 11 x 17)
• 2,000 Sheet Letter Tray – Certain Models
• Automatic Duplex
• 100 Sheet Bypass Tray (up to 11 x 17)
• Up to 110 Lb. Cover Stock
• Network Print Controller w/ PCL6, PostScript 3, Standard Wireless Networking, Serverless Print Release, Apple AirPrint, Android Print, Google Cloud Print, MicroSoft Universal Print Native Support
• Multi-layered Security w/ Whitelisting, Integrity Check at Startup, Firmware Attack Prevention and Self Recovery, Single Sign-on, Remote Front Panel • Cloud Connect with Microsoft OneDrive for Business, SharePoint Online, Google Drive, Box and Dropbox
• Network Color Scanning w/ Built in OCR, Convert to PPTX, DOCX, XLSX, Searchable PDF
• Built-in Retractable Keyboard
• 5 GHz WiFi and WPA3 for Fast, Secure Data
• 3,000 Sheet Stapler/Finisher
• 3,000 Sheet Saddle Stitch Finisher – Certain Models
• Post Script 3 for MAC, Adobe Files
• MFP Voice, Powered by Alexa (Optional)
• High Voltage Surge Protector
Sharp BP-70C55 Digital Color Copy/Print/Scan System
• 55 Page Per Minute Color Digital Copier
• 55 Page Per Minute Black and White
• Duplexing Single Pass Feeder (300 Sheet), Up to 280 OPM • 10.1” Customizable Color Touch Screen - Programmable, w/ Easy Modes • 2 X 550 Sheet Paper Drawers (up to 11 x 17)
• 2,000 Sheet Letter Tray – Certain Models
• Automatic Duplex
• 100 Sheet Bypass Tray (up to 11 x 17)
• Up to 110 Lb. Cover Stock
21

CBE OFFICE SOLUTIONS
4-A Mason, IRVINE, CA. 92618 • (800) 266-4223 XT.216 • Fax (949) 597-2479 • Network Print Controller w/ PCL6, PostScript 3, Standard Wireless Networking, Serverless Print Release, Apple AirPrint, Android Print, Google Cloud Print, MicroSoft Universal Print Native Support
• Multi-layered Security w/ Whitelisting, Itegrity Check at Startup, Firmware Attack Prevention and Self Recovery, Single Sign-on, Remote Front Panel • Cloud Connect with Microsoft OneDrive for Business, SharePoint Online, Google Drive, Box and Dropbox
• Network Color Scanning w/ Built in OCR, Convert to PPTX, DOCX, XLSX, Searchable PDF
• Built-in Retractable Keyboard
• 5 GHz WiFi and WPA3 for Fast, Secure Data
• Fax System
• Center Exit Tray/Offset Sorting
• Internal Finisher/Stapler w/ 50 Sheet Staple, Offline Staple, Staple-less stapling – Certain Models
• 1,000 Sheet Saddle Stitch Finisher – One Model
• Post Script 3 for MAC, Adobe Files
• MFP Voice, Powered by Alexa (Optional)
• High Voltage Surge Protector
Sharp BP-70C45 Digital Color Copy/Print/Scan System (Alternative model) • 45 Page Per Minute Color Digital Copier
• 45 Page Per Minute Black and White
• Duplexing Single Pass Feeder (300 Sheet), Up to 280 OPM • 10.1” Customizable Color Touch Screen - Programmable, w/ Easy Modes • 2 X 550 Sheet Paper Drawers (up to 11 x 17)
• 2,000 Sheet Letter Tray – Certain Models
• Automatic Duplex
• 100 Sheet Bypass Tray (up to 11 x 17)
• Up to 110 Lb. Cover Stock
• Network Print Controller w/ PCL6, PostScript 3, Standard Wireless Networking, Serverless Print Release, Apple AirPrint, Android Print, Google Cloud Print, MicroSoft Universal Print Native Support
• Multi-layered Security w/ Whitelisting, Itegrity Check at Startup, Firmware Attack Prevention and Self Recovery, Single Sign-on, Remote Front Panel • Cloud Connect with Microsoft OneDrive for Business, SharePoint Online, Google Drive, Box and Dropbox
• Network Color Scanning w/ Built in OCR, Convert to PPTX, DOCX, XLSX, Searchable PDF
• Built-in Retractable Keyboard
• 5 GHz WiFi and WPA3 for Fast, Secure Data
• Fax System
22

CBE OFFICE SOLUTIONS
4-A Mason, IRVINE, CA. 92618 • (800) 266-4223 XT.216 • Fax (949) 597-2479 • 3,000 Sheet Stapler/Finisher – Certain Models
• 3,000 Sheet Saddle Stitch Finisher – Certain Models
• Internal Finisher/Stapler w/ 50 Sheet Staple, Offline Staple, Staple-less stapling – Certain Models
• Post Script 3 for MAC, Adobe Files
• MFP Voice, Powered by Alexa (Optional)
• High Voltage Surge Protector
Sharp BP-70C35 Digital Color Copy/Print/Scan System (Alternative model) • 35 Page Per Minute Color Digital Copier
• 35 Page Per Minute Black and White
• Duplexing Single Pass Feeder (300 Sheet), Up to 280 OPM • 10.1” Customizable Color Touch Screen - Programmable, w/ Easy Modes • 2 X 550 Sheet Paper Drawers (up to 11 x 17)
• 2,000 Sheet Letter Tray – Certain Models
• Automatic Duplex
• 100 Sheet Bypass Tray (up to 11 x 17)
• Up to 110 Lb. Cover Stock
• Network Print Controller w/ PCL6, PostScript 3, Standard Wireless Networking, Serverless Print Release, Apple AirPrint, Android Print, Google Cloud Print, MicroSoft Universal Print Native Support
• Multi-layered Security w/ Whitelisting, Itegrity Check at Startup, Firmware Attack Prevention and Self Recovery, Single Sign-on, Remote Front Panel • Cloud Connect with Microsoft OneDrive for Business, SharePoint Online, Google Drive, Box and Dropbox
• Network Color Scanning w/ Built in OCR, Convert to PPTX, DOCX, XLSX, Searchable PDF
• Built-in Retractable Keyboard
• 5 GHz WiFi and WPA3 for Fast, Secure Data
• Fax System
• 3,000 Sheet Stapler/Finisher – Certain Models
• 3,000 Sheet Saddle Stitch Finisher – Certain Models
• Internal Finisher/Stapler w/ 50 Sheet Staple, Offline Staple, Staple-less stapling – Certain Models
• Post Script 3 for MAC, Adobe Files
• MFP Voice, Powered by Alexa (Optional)
• High Voltage Surge Protector
Sharp BP 70M55 Digital Imager (Alternative model)
• 55 Page Per Minute Black and White
• Duplexing Single Pass Feeder (300 Sheet), Up to 280 OPM 23

CBE OFFICE SOLUTIONS
4-A Mason, IRVINE, CA. 92618 • (800) 266-4223 XT.216 • Fax (949) 597-2479 • 10.1” Customizable Color Touch Screen
• 2 X 550 Sheet Paper Drawers (up to 11 x 17)
• 2,000 Sheet Letter Tray
• Automatic Duplex
• 100 Sheet Bypass Tray (up to 11 x 17)
• Up to 110 Lb. Cover Stock
• Network Print Controller w/ PCL6
• Network Color Scanning w/ Built in OCR, Convert to PPTX, DOCX, XLSX, Searchable PDF, Multi-feed Scan Detection, Auto Skew Correction • Network Print Controller w/ PCL6, PostScript 3, Standard Wireless Networking, Serverless Print Release, Apple AirPrint, Android Print, Google Cloud Print • Multi-layered Security w/ Whitelisting, Firmware Attack Prevention and Self Recovery, Single Sign-on, Remote Front Panel, BIOS Check at Startup, and more • Cloud Connect with Microsoft OneDrive for Business, SharePoint Online, Google Drive, Box, Microsoft Teams and Dropbox
• Built-in Retractable Keyboard
• 3,000 Sheet Stacking Finisher (65 Sheet Staple), Offline Stapling, Staple-less binding, Multi-position Staple, Offset Sorting
• Paper Pass Unit
• PostScript 3 for MAC, Adobe Files
• Optional MFP Voice, Powered by Amazon Alexa
• High Voltage Surge Protector
Sharp BP 70M45 Digital Imager
• 45 Page Per Minute Black and White
• Duplexing Single Pass Feeder (300 Sheet), Up to 280 OPM • 10.1” Customizable Color Touch Screen
• 2 X 550 Sheet Paper Drawers (up to 11 x 17)
• Cabinet Stand
• Automatic Duplex
• 100 Sheet Bypass Tray (up to 11 x 17)
• Up to 110 Lb. Cover Stock
• Network Print Controller w/ PCL6
• Network Color Scanning w/ Built in OCR, Convert to PPTX, DOCX, XLSX, Searchable PDF, Multi-feed Scan Detection, Auto Skew Correction • Network Print Controller w/ PCL6, PostScript 3, Standard Wireless Networking, Serverless Print Release, Apple AirPrint, Android Print, Google Cloud Print • Multi-layered Security w/ Whitelisting, Firmware Attack Prevention and Self Recovery, Single Sign-on, Remote Front Panel, BIOS Check at Startup, and more • Cloud Connect with Microsoft OneDrive for Business, SharePoint Online, Google Drive, Box, Microsoft Teams and Dropbox
24

CBE OFFICE SOLUTIONS
4-A Mason, IRVINE, CA. 92618 • (800) 266-4223 XT.216 • Fax (949) 597-2479 • Built-in Retractable Keyboard
• Fax System
• PostScript 3 for MAC, Adobe Files
• Optional MFP Voice, Powered by Amazon Alexa
• High Voltage Surge Protector
Sharp BP 70M35 Digital Imager (Alternative model)
• 35 Page Per Minute Black and White
• Duplexing Single Pass Feeder (300 Sheet), Up to 280 OPM • 10.1” Customizable Color Touch Screen
• 2 X 550 Sheet Paper Drawers (up to 11 x 17)
• Cabinet Stand
• Automatic Duplex
• 100 Sheet Bypass Tray (up to 11 x 17)
• Up to 110 Lb. Cover Stock
• Network Print Controller w/ PCL6
• Network Color Scanning w/ Built in OCR, Convert to PPTX, DOCX, XLSX, Searchable PDF, Multi-feed Scan Detection, Auto Skew Correction • Network Print Controller w/ PCL6, PostScript 3, Standard Wireless Networking, Serverless Print Release, Apple AirPrint, Android Print, Google Cloud Print • Multi-layered Security w/ Whitelisting, Firmware Attack Prevention and Self Recovery, Single Sign-on, Remote Front Panel, BIOS Check at Startup, and more • Cloud Connect with Microsoft OneDrive for Business, SharePoint Online, Google Drive, Box, Microsoft Teams and Dropbox
• Built-in Retractable Keyboard
• Fax System
• PostScript 3 for MAC, Adobe Files
• Optional MFP Voice, Powered by Amazon Alexa
• High Voltage Surge Protector
25

CBE OFFICE SOLUTIONS
4-A Mason, IRVINE, CA. 92618 • (800) 266-4223 XT.216 • Fax (949) 597-2479 Proposed Solutions:

Equivalent New Versions:

New Sharp BP-70C65 color copy/print/scan systems (5), New Sharp BP70C55 color copy/print/scan systems (10), Sharp BP-70M45 copy/print/scan systems (2):
-Specs and Configuration listed above.

Lease Plan: $3,011.61 per month, 60 payments. Sales Tax Included in payment.

Includes ALL Service and ALL Supplies (excluding paper & staples). Prints billed at $.0049 for black and white and $.049 for color.

Rates guaranteed for entire term.

Free unlimited scanning.

Free delivery, set-up, networking and training.

Current Sharp machines will be removed and disposed of, as part of the new plan.

Above equipment will be set up with the same accessories as the current Sharp models.

NASPO Contract Pricing. Public Finance Lease.

Pricing Guaranteed thru December 27th, 2023.

Alternative Recommended New Versions:

New Sharp BP-70C65 color copy/print/scan systems (1), New Sharp BP70C55 color copy/print/scan systems (3), New Sharp BP-70C45 color copy/print/scan systems (6), New Sharp BP-70C35 color copy/print/scan systems (5), Sharp BP-70M35 copy/print/scan systems (2), Sharp BP70M55 copy/print/scan system (1):
-Specs and Configuration listed above.

Lease Plan: $2,789.39 per month, 60 payments. Sales Tax Included in payment.

Includes ALL Service and ALL Supplies (excluding paper & staples). Prints billed at $.0049 for black and white and $.049 for color.

Rates guaranteed for entire term.

Free unlimited scanning.
26

CBE OFFICE SOLUTIONS
4-A Mason, IRVINE, CA. 92618 • (800) 266-4223 XT.216 • Fax (949) 597-2479 Free delivery, set-up, networking and training.

Current Sharp machines will be removed and disposed of, as part of the new plan.

Above equipment will be set up with the same accessories as the current Sharp models.

NASPO Contract Pricing. Public Finance Lease.

Pricing Guaranteed thru December 27th, 2023.

New Animal Shelter Equivalent New Model:

Sharp BP-70M45 copy/print/scan system
Lease Plan: $89.23 per month, 60 payments. Sales Tax Included in payment.

Includes ALL Service and ALL Supplies (excluding paper & staples). Prints billed at $.0049 for black and white.

Rates guaranteed for entire term.

Free unlimited scanning.

Free delivery, set-up, networking and training.

Current Sharp machines will be removed and disposed of, as part of the new plan.

Above equipment will be set up with the same accessories as the current Sharp models.

New Animal Shelter Equivalent Model:

Sharp BP-70M36 copy/print/scan system
Lease Plan: $86.63 per month, 60 payments. Sales Tax Included in payment.

Includes ALL Service and ALL Supplies (excluding paper & staples). Prints billed at $.0049 for black and white and $.049 for color.

Rates guaranteed for entire term.

Free unlimited scanning.

Free delivery, set-up, networking and training.

Current Sharp machines will be removed and disposed of, as part of the new plan. 27

CBE OFFICE SOLUTIONS
4-A Mason, IRVINE, CA. 92618 • (800) 266-4223 XT.216 • Fax (949) 597-2479 Above equipment will be set up with the same accessories as the current Sharp models.

See Spreadsheet below for print volumes per machine and department with recommendations.

Excludes extra cabling, if necessary.

Zero Down on new sixty month plan Public Finance Lease.

Customer will own the equipment after making all 60 payments.

28 City of San Clemente - Current Sharp Copier/MFP Fleet, New Fleet Recommendations Model Serial Number Department BW Prints/Month Color Prints/Month Equivalent New Version Recommended VersionMX-5070N 65099258 Finance 12544 1097 BP-70C55 BP-70C55MX-5070N 65099268 HR 1307 3103 BP-70C55 BP-70C45MX-M654N 65003318 City Hall 10398 BP-70C65 BP-70C55MX-6070N 65000878 City Clerk 4166 13843 BP-70C65 BP-70C65MX-6070N 65104838 Code Enforcement 858 2581 BP-70C65 BP-70C35MX-6070N 65105638 Mailroom 1934 2974 BP-70C65 BP-70C45MX-6070N 65108548 1st Floor 3328 7390 BP-70C65 BP-70C55MX-5070N 65099298 Engineering 3748 4539 BP-70C55 BP-70C45MX-M465N 65013368 910 Calle Negocio 2144 BP-70M45 BP-70M35MX-5070N 65099448 Engineering 134 267 BP-70C55 BP-70C35MX-5070N 65099458 Sports Park 2937 2400 BP-70C55 BP-70C45MX-5070N 65100368 Marine Safety 731 655 BP-70C55 BP-70C35MX-5070N 65100908 Utilities-Water 2142 3310 BP-70C55 BP-70C45MX-M465N 65013378 Sewage Treatment 1586 BP-70M45 BP-70M35MX-5070N 65101478 PW Maintenance 1267 1559 BP-70C55 BP-70C35MX-5070N 65099958 HR 275 916 BP-70C55 BP-70C35MX-5070N 65100938 Community Center 4237 3283 BP-70C55 BP-70C45New Lease Pay ment: $3,011.61 2,789.39MX-M465N 65012148 Animal Shelter 3395 BP-70M45 BP-70M36New Lease Pay ment $89.23 $86.63Sales Tax Included in Payments. 29 910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING

CITY OF SAN CLEMENTE
Meeting Date: December 5, 2023 Agenda Item: 7X
Department: Public Works
Prepared By Masako Hennequin, Associate Civil Engineer
Subject:

CONSIDERATION OF A RESOLUTION REJECTING ALL BIDS FOR FY 2024 AS-NEEDED PAVEMENT REPAIRS, CIP PROJECT NO. 24306.
..body
Fiscal Impact:

If would be a nominal costs associated with modifying the scope of the project and issuing the bidding documents for the revised project scope.

Summary:

Before the Council is a resolution rejecting all bids for the FY 2024 As-Needed Pavement Repairs, CIP Project No. 24306. This will allow re-scoping the bid package and bidding the project with a revised and more accurate scope.

Background:

The FY 2023 As-Needed Pavement Repair contract has ended, and a new FY 2024 contract is needed to keep City streets safe and to prevent further damages to the infrastructure. The FY 2024 As-Needed Pavement Repairs, CIP Project No. 24306 includes various asphalt pavement repairs citywide. On September 7, 2023, staff posted a Notice of Inviting Bids for this project on SC Times, and published a bid solicitation on PlanetBids. Five bids were received on October 5, 2023, and the results are presented on the attached Bidder’s Listing (Attachment 2). Bids ranged from $596,466 to $1,246,600.

Upon further review of the project and bidding documents, staff determined that the scope was too broad, did not provide enough focus and clarity on the pavement needs for the City, included work from other trades that should not be included in this project and was outside of budget constraints. The project will be re-scoped to focus on primarily asphalt pavement needs and to more accurately describe the project so that it will be capable of staying within budget and can be more easily and efficiently managed. Curb and gutter, sidewalk, and concrete items will be excluded from this project, re-scoped as well, and brought back to Council under a different asneeded contract for similar reasons.

Council Options:
 Adopt Resolution No. 23-149, rejecting all bids.
 Modify and adopt Resolution No. 23-149.
 Continue the item with direction to provide additional information. 1 Meeting Date: December 5, 2023 Agenda Item: 7X

CITY OF SAN CLEMENTE
 Do not adopt Resolution No. 23-149 and postpone the project.

Environmental Review/Analysis:

Rejection of the bids is not a “project” under the California Environmental Quality Act.

Recommended Actions:

Staff Recommendation
Adopt Resolution No. 23-149, which will:

1. Reject all bids received on October 5, 2023, for the FY 2024 As-Needed Pavement Repairs, CIP Project No. 24306, pursuant to Section 20166 of the Public Contract Code; and

2. Authorize staff to re-scope the bid package and bid the FY 2024 As-Needed Pavement Repairs, CIP Project No. 24306, with a revised project scope. ..end
Attachment:

1. Resolution No. 23-149

2. Bidder’s listing
Notification:

All bidders.
2 Attachment 1
RESOLUTION NO. 23-149

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

SAN CLEMENTE, CALIFORNIA, REJECTING ALL THE
BIDS FOR THE FY 2024 AS-NEEDED PAVEMENT
REPAIRS, CIP PROJECT NO. 24306
WHEREAS, the City conducted formal competitive bidding for the FY 2024 AsNeeded Pavement Repairs, CIP Project No. 24306 (Project); and WHEREAS, on October 5, 2023, the City received 5 bids ranging from $596,466 to $1,246,600 for the Project; and
WHEREAS, upon further analysis, staff determined that the scope was too broad, did not provide enough focus and clarity on the pavement needs for the City, included work from other trades that should not be included in this project and produced bids that exceeded budget constraints; and
WHEREAS, Public Contract Code section 20166 provides that, in its discretion, the legislative body may reject any bids presented and readvertise; and WHEREAS, rejecting all bids, revising the scope of work to focus on asphalt paving needs and to more accurately describe the project so that it will be capable of staying within budget and can be more easily and efficiently managed, and re-bidding the project with a revised scope in early 2024 is in the public’s best interest.

NOW, THEREFORE, the City Council of the City of San Clemente does hereby resolve as follows:

Section 1. That the above recitations are true and correct and incorporated herein.

Section 2. That all bids received on October 5, 2023 for the FY 2024 As-Needed Pavement Repairs, CIP Project No. 24306 are hereby rejected.

Section 3. That staff is authorized to re-scope the bid package and to bid the FY 2024 As-Needed Pavement Repairs, CIP Project No. 24306, with a revised scope.

Section 4. That the City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original resolutions.

PASSED AND ADOPTED this _____ day of December, 2023.

ATTEST:
3 Resolution No. 23-149 Page 2
___________________________ __________________________
City Clerk of the City of Mayor of the City of San
San Clemente, California Clemente, California

STATE OF CALIFORNIA )
COUNTY OF ORANGE ) §

CITY OF SAN CLEMENTE )
I, LAURA CAMPAGNOLO, City Clerk of the City of San Clemente, California, do hereby certify that Resolution No. 23-149 was adopted at a regular meeting of the City Council of the City of San Clemente held on the _______ day of December, 2023, by the following vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this _____ day of December, 2023. __________________________
CITY CLERK of the City of
San Clemente, California
Approved as to form:
___________________________
Elizabeth A. Mitchell, City Attorney
4 i:\cd\engineering\secure\projects\pn 24306 - fy 2024 as-needed pavement repairs\05-bidding\rejected bids 10-5-23\pn24306 bidders listing.docx

BIDDER'S
LISTING BID OPEN TIME: 2:00 PM
BID OPEN DATE: 10-5-2023
PRESENT:

ELECTRONIC BID
MH
Subject: Bid Opening: FY 2024 As-Needed Pavement Repairs (Project No. 24306)
No. of Bids: 5
Company Information Bid Bond City Bidder is
From
1#
Addendums Email Amount
Diamond Construction
YES
La Habra, CA
YES
stely907@
yahoo.co
m
$596,466.00
ONYX Paving
Company, Inc. YES
Anaheim, CA
YES
BIDS@ON

YXPAVING
.NET
$603,000.00
L.C. Paving & Sealing
YES
Escondido, CA
YES
Shawn@lc
paving.co
m
$653,960.00
A&Y Asphalt
Contractors, Inc. YES
Norco, CA
YES
Al@ayco
mpany.co
m
$677,875.00
Hardy & Harper, Inc.

YES
Lake Forest,
CA YES
mchurnoc
k@hardya
ndharper.
com
$1,246,600.00
ATTACHMENT 2
5 910 Calle Negocio
2nd Floor
San Clemente, California
www.san-clemente.org

AGENDA REPORT

CITY OF SAN CLEMENTE

CITY COUNCIL MEETING

CITY OF SAN CLEMENTE
Meeting Date: December 5, 2023 Agenda Item: 7Y
Department: City Treasurer
Prepared By Charlie Smith, City Treasurer
Subject:
..titl e
A..body DOPTION OF CITY INVESTMENT POLICY
Fiscal Impact:

None.

Summary:

The City’s Investment Policy was adopted on December 20, 2022 and has been reviewed by the Investment Advisory Committee (IAC) in accordance with Section 5.6 of the policy. The policy, with no proposed recommended changes, is submitted to City Council for approval, as is required on an annual basis.

Background:

Government Code Section 53646(a)(2) allows the City Treasurer to annually submit to the City Council and any oversight committee a statement of investment policy, which shall be considered by the City Council at a public meeting. After review of the current Investment Policy, and recommendations from Chandler Asset Management, (the City’s external investment advisory firm), and City Treasurer Charlie Smith, the IAC voted 5-0 to recommend that no further changes be made to the Investment Policy that was adopted on December 20, 2022.

Council Options:
 Adopt Investment Policy Number 201-1, which would be effective beginning December 5, 2023.
 Adopt Investment Policy Number 201-1, with modifications.  Continue the item with direction to provide additional information.

Environmental Review/Analysis
Not a “project” pursuant to the California Environmental Quality Act.

Recommended Actions:

Staff Recommendation ..recommendation
Staff recommends that the City Council adopt Investment Policy Number 201-1, effective December 5, 2023.
..end
1 Meeting Date: December 5, 2023 Agenda Item: 7Y

CITY OF SAN CLEMENTE
Attachment:

Proposed Investment Policy
Notification:

None.
2 Table of Contents
Section Page

1.0 Purpose .................................................................................................................1

2.0 Organizations Affected............................................................................................1

3.0 References ............................................................................................................1

4.0 Policy .....................................................................................................................1

4.1 Scope ........................................................................................................1

4.2 Objective ....................................................................................................2

4.3 Prudence....................................................................................................3

4.4 Delegation of Authority ...............................................................................3

4.5 Ethics and Conflict of Interest ....................................................................4

4.6 Authorized Financial Dealers and Institutions ............................................4

4.7 Authorized and Suitable Investments .........................................................5

4.8 Safekeeping & Collateralization..................................................................8

4.9 Safekeeping & Custody..............................................................................9

4.10 Diversification and Maturity Limitations ...................................................9

4.11 Marking to Market .................................................................................11

4.12 Pools.....................................................................................................11

5.0 Procedure............................................................................................................11

5.1 Internal Control .........................................................................................11

5.2 Performance Standards ............................................................................11

5.3 Competitive Bids .......................................................................................12

5.4 Reporting ..................................................................................................12

5.5 Investment Advisory Committee................................................................12

5.6 Investment Policy Adoption .......................................................................13

5.7 Investment Policy Distribution ...................................................................13

6.0 Definitions ...........................................................................................................13 Management Directive to External Money Manager………………………………… 18 California Government Code....................................................................................20 City of San Clemente-Broker/Dealer Questionnaire...............................................34

INVESTMENT POLICY
Attachment 1
3

POLICY AND PROCEDURE
Subject: Investment Policy Index: Treasurer
Number: 202-1
Effective Date: December 5, 2023 Prepared By: Finance and Administrative Services/City Treasurer
Supersedes:

December 20, 2022
Approved By:

1.0 PURPOSE: The purpose of the City’s Investment Policy is to provide comprehensive guidelines for the responsible management of the City’s funds that are available for investment. These may include, but are not limited to, temporarily idle cash, reserve funds, trust, agency, and capital funds.

2.0 ORGANIZATIONS AFFECTED:

All departments/divisions

3.0 REFERENCES:

3.1 Civil Code Section 2261, et seq.

3.2 Government Code Section 53600, et seq.

3.3 Code of Ethics Policy, Administrative Policy #102-1

4.0 POLICY: It is the policy of the City of San Clemente (“the City”) to invest public funds in a manner which will provide the maximum security of principal consistent with a market rate of return while meeting the cash flow needs of the City and conforming to all applicable State and City statutes governing the investment of public funds, as referenced in section 3.0. Every effort will be made to match investment maturities to cash flow needs.

4.1 SCOPE: This investment policy applies to all financial assets of the City.

These funds are accounted for in the City of San Clemente's Comprehensive Annual Financial Report and include:

4.1.1 FUNDS:

4.1.1.1 General Funds

4.1.1.2 Special Revenue Funds

4.1.1.3 Capital Project Funds

4.1.1.4 Enterprise Funds

4.1.1.5 Internal Services Funds

4.1.1.6 Trust and Agency Funds
4

4.1.1.7 Debt Service Funds

4.1.1.8 Redevelopment Agency Funds

4.1.1.9 Any new fund created by the City Council

4.1.2 BOND PROCEEDS: The investment of bond proceeds will be made in accordance with applicable bond indentures.

4.2 OBJECTIVE: The primary objectives, in priority order, of the City of Clemente’s investment activities shall be:

4.2.1 Safety: Safety of principal is the foremost objective of the City.

Investments of the City shall be undertaken in a manner that seeks to ensure the preservation of capital in the overall portfolio. The objective will be to mitigate credit risk and interest rate risk.

4.2.1.1 Credit Risk: Credit Risk is the risk of loss due to the failure of the security issuer or backer. Credit risk may be mitigated by:

4.2.1.1.1 Limiting investments authorized by this Policy by maturity and credit ratings.

4.2.1.1.2 Pre-qualifying the financial institutions,
broker/dealers, intermediaries, and advisors
with which the City will do business; and

4.2.1.1.3 Diversifying the investment portfolio so that potential losses on portfolio securities will be
minimized.

4.2.2.1 Interest Rate Risk: Interest rate risk is the risk that the market value of securities in the portfolio will fall due to changes in general interest rates. Interest rate risk
may be mitigated by:

4.2.2.1.1 Structuring the investment portfolio so that
securities mature to meet cash requirements for
ongoing operations, thereby avoiding the need
to sell securities on the open market prior to
maturity, and

4.2.2.1.2 By investing operating funds primarily in shorterterm securities.

4.2.2 Liquidity: The City's investment portfolio will remain sufficiently liquid to enable the City to meet all operating requirements which might be reasonably anticipated.

4.2.3 Return on investment: The City's investment portfolio shall be designed with the objective of attaining a market rate of return throughout budgetary and economic cycles, taking into account the 5

City's investment risk constraints and the cash flow characteristics of the portfolio.

4.3 Prudence: Pursuant to California Government Code, Section 53600.3, all persons authorized to make investment decisions on behalf of the City are trustees and therefore fiduciaries subject to the Prudent Investor Standard:
“…all governing bodies of local agencies or persons authorized to make investment decisions on behalf of those local agencies investing public funds pursuant to this chapter are trustees and therefore fiduciaries subject to the prudent investor standard. When investing, reinvesting, purchasing, acquiring, exchanging, selling, or managing public funds, a trustee shall act with care, skill, prudence, and diligence under the circumstances then prevailing, including, but not limited to, the general economic conditions and the anticipated needs of the Agency, that a prudent person acting in a like capacity and familiarity with those matters would use in the conduct of funds of a like character and with like aims, to safeguard the principal and maintain the liquidity needs of the Agency. Within the limitations of this section and considering individual investments as part of an overall strategy, investments may be acquired as authorized by law.”

4.4 Delegation of Authority: The City Council, by adoption of this Investment Policy, delegates investment authority to the City Treasurer. In accordance with Government Code Section 53607, investment authority may be delegated for a one-year period by the City Council. In accordance with Government Code Section 53607, investment authority may be revoked by the City Council before that one year period is over.

4.4.1 External Investment Advisor: The City Treasurer may review and evaluate the services of registered external investment advisors to manage all or a part of the City’s investment portfolio. Investment advisors shall make all investment decisions in accordance with State law and the City’s investment policy. Selection of broker/dealers used by an external investment advisor retained by the City will be at the discretion of the investment advisor, unless the City Council, under advisement of the Investment Advisory Committee determines one or more of the broker/dealers being used to be unsuitable for any reason.

4.4.1.1 Selection of External Investment Advisor: The Investment Advisory Committee shall, after review of external investment advisors qualifications, recommend to the City Council the selection of one or more firms to manage City investments, or recommend the replacement of an existing firm.

4.4.2 The City Treasurer, with approval by the Finance & Administrative Services Director, shall develop and maintain written administrative procedures for the operation of the investment program which are consistent with this Investment Policy. Procedures will include 6 reference to safekeeping, Public Securities Association (PSA) Master Repurchase Agreements, wire transfer agreements, collateral and deposit agreements, banking service contracts, broker/dealer questionnaire and certification, and other investment related activities.

4.4.3 No person may engage in an investment transaction except as provided under terms of this Policy and the procedures established herein.

4.4.4 The City Treasurer with approval by the Finance & Administrative Services Director shall establish a system of controls to regulate the investment activities of subordinate officials.

4.4.5 The Finance & Administrative Services Director or his/her designee, is designated as the acting investment officer of the City when the primary investment officer is unavailable.

4.5 Ethics and Conflicts of Interest: Officers and employees involved in the investment process shall refrain from personal business activity that could conflict with proper execution of the investment program, or which could impair their ability to make impartial investment decisions.

4.5.1 Officers and employees involved in the investment process shall abide by the City’s adopted Code of Ethics policy, which by reference is incorporated into this Policy.

4.6 Authorized Financial Dealers and Institutions: The City Treasurer will maintain a list of qualified financial institutions, as approved by the Investment Advisory Committee, including banks, savings and loans, and broker/ dealers, authorized to provide investment services.

A list will be maintained of approved securities broker/dealers selected by credit worthiness, who maintain an office in the State of California. These may include "primary" dealers or regional dealers that meet the requirements stated in the City’s Broker Dealer Questionnaire and Certification.

All financial institutions and broker/dealers who desire to become qualified bidders for investment transactions must submit an application, including the completion of a Broker/Dealer Questionnaire and Certification, on an annual basis.

4.6.1 Annual Review: An annual review of the financial condition and registrations of qualified investment providers will be conducted by the Finance & Administrative Services Director and the City’s Investment Advisory Committee.

4.6.2 Audited Financial Statement: A current audited financial statement

7 is required to be on file in the City Clerk’s Office for each financial institution and broker/dealer with whom the City does business, including external money managers, banks, custodians of securities and broker/dealers.

4.6.3 Counterparty Risk: Financial institutions with whom the city does business should be well capitalized and credit worthy to minimize Counterparty Risk.

4.7 Authorized and Suitable Investments:

4.7.1 Authorized Investments: In accordance with State law, investments may be made in the following media (California Government Code Section 16429.1, 53600-53609 and 53630- - Exhibit attached): The City seeks to further restrict eligible investments to the guidelines listed below. In the event an apparent discrepancy is found between this Policy and the Government Code, the most restrictive parameters will take precedence. Percentage holding limits and credit rating minimums listed in this section apply at the time the security is purchased.

Any investment currently held at the time the Policy is adopted which does not meet the new Policy guidelines can be held until maturity, and shall be exempt from the new Policy. At the time of the investment’s maturity or liquidation such funds shall be reinvested only as provided in the most current Policy.

4.7.1.1 U.S. Treasury Securities or

4.7.1.2 Federal Agency Securities

4.7.1.1.1 Federal Home Loan Bank (FHLB)

4.7.1.1.2 Federal National Mortgage Association
(FNMA)

4.7.1.1.3 Federal Home Loan Mortgage
Corporation (FHLMC)

4.7.1.1.4 Federal Farm Credit Bank (FFCB)

4.7.1.1.5 Tennessee Valley Authority (TVA)

4.7.1.3 Collateralized or insured Passbook Savings
Accounts & Demand Deposits.

4.7.1.4 Collateralized or insured Certificates of Deposits (or Time Deposits) placed with commercial
banks and/or savings and loan companies.

4.7.1.5 Bankers Acceptances with banks whose short
term obligations are rated A-1/P-1 or higher, or
the equivalent, by at least one nationally
recognized statistical rating organization
(NRSRO). Banks may not be on “negative credit
watch” by any NRSRO. Maturities may not
exceed 180 days.

8 4.7.1.6 Commercial Paper purchases may not exceed
270 days maturity nor represent more than 10%
of the outstanding paper of an issuing
corporation. Investments in any single issuer
shall not exceed 5% of the total portfolio market
issued by institutions whose short term
obligations are rated “A-1/P-1” or higher, or the
equivalent, by at least one NRSRO; and whose
long-term obligations, if any, are rated “A2/A” or
higher by at least one NRSRO. They must be
issued by a corporation organized and operating
within the United States with more than $500
million in total assets; or issued by an issuer
organized within the United States as a special
purpose corporation, trust, or limited liability
company with programwide credit enhancement
including, but not limited to,
overcollateralization, letters of credit, or a surety
bond.

4.7.1.7 Corporate Debentures (including Medium Term
Notes issued by corporations organized and
operating in the U.S.). Investments in any single
issuer, when combined with any investments in
negotiable certificates of deposit, shall not
exceed 3% of the total portfolio market value.

Corporate issues purchased by an investment
advisor hired by the City for their credit
evaluation process must be rated at least in the
“A” category or equivalent by at least one
NRSRO at the time of purchase. Corporate
issues purchased by the Treasurer must be
rated as follows:

4.7.1.7.1 For maturities of three years or less in
the “A2/A” category or higher at time of
purchase.

4.7.1.7.2 For maturities of greater than three years
to five years in the “Aa3/AA-” category or
higher at time of purchase.

4.7.1.8 Repurchase agreements whose underlying
collateral consists of the foregoing, provided a
signed PSA Master Repurchase Agreement is
on file with the counterpart bank or
broker/dealer. Direct investments in Reverse
Repurchase agreements are prohibited.

4.7.1.9 Local Agency Investment Fund (State of
California Pool).

9 4.7.1.10 Money market mutual funds whose portfolio
consists of investments listed in Section 4.7.1.

Money market mutual funds must be AAA rated
by at least 2 of the 3 largest rating agencies.

4.7.1.11 Asset-Backed Securities where the securities
are rated “AA” or higher by a NRSRO. The
maximum legal final maturity may not exceed
five (5) years.

4.7.1.12 Negotiable Certificates of Deposit (NCDs issued by a nationally or state-chartered bank, a
savings association or a federal association (as
defined by Section 5102 of the Financial Code),
a state or federal credit union, or by a federally
licensed or state licensed branch of a foreign
bank). Purchases of eligible NCDs in any single
issuer, when combined with any investments in
corporate debentures, shall not exceed 3% of
the total portfolio market value. NCD issues
purchased in an amount above the FDIC
insured limit must be rated in the “A2/A”
category or higher by at least one NRSRO; or
have short term debt obligations rated “A-1/P-1”
or higher, or the equivalent, by at least one
NRSRO. The maturities of NCDs may not
exceed 5 years, if the amount is within the FDIC
insured limit. When purchased in the City’s
internally managed portfolio the issuer must
have an IDC ranking of “Excellent” or higher at
time of purchase.

4.7.1.13 Orange County Investment Pool (OCIP).

4.7.1.14 Supranational Securities, provided that the
securities are US-dollar denominated senior
unsecured obligations issued or unconditionally
guaranteed by the International Bank for
Reconstruction and Development, International
Finance Corporation, or Inter-American
Development Bank, and are rated in the “AA”
category or higher by a NRSRO. No more than
5% of the portfolio may be invested in a single
issuer.

4.7.2 Bank Savings Accounts and Certificates of Deposit: No funds will be invested in an institution which has at the time the deposit or investment is made, a regulatory capital rating of less than “adequately capitalized.”

10 4.7.3 Prohibited Investment Vehicles and Practices:

4.7.3.1 State law notwithstanding, any investments not
specifically described herein are prohibited, including, but not limited to futures and options.

4.7.3.2 In accordance with Government Code Section
53601.6, investment in inverse floaters, range notes, or mortgage derived interest-only strips is prohibited.

4.7.3.3 Investment in any security not issued or backed by the US government that could result in a zero interest
accrual if held to maturity is prohibited.

4.7.3.4 Trading securities for the sole purpose of speculating on the future direction of interest rates is prohibited.

4.7.3.5 Purchasing or selling securities on margin is prohibited.

4.7.3.6 The use of reverse repurchase agreements, securities lending or any other form of borrowing or leverage is
prohibited.

4.7.3.7 The purchase of foreign currency denominated
securities is prohibited.

4.7.4 Pool Investments: With the exception of Local Agency Investment Fund (LAIF), a thorough investigation of the pool fund is required prior to investing, and on an annual basis. This investigation will address and document the following items:

4.7.4.1 A description of eligible investment securities, and a written statement of investment policy and objectives.

4.7.4.2 A description of interest calculations and how it is distributed, how gains and losses are treated, and the
fees charged

4.7.5 Credit Rating Downgrade: In the event that an issue is later downgraded to a level below the quality required for purchase by this investment policy, the Treasurer will assess the risk exposure to the City and will make a decision regarding course of action and will advise the Investment Advisory Committee accordingly. If a security purchased by an external investment advisor is downgraded below the requirements of this policy, making the security ineligible for additional purchases, any actions taken by the external investment advisor will be communicated to the Treasurer in a timely manner. If a decision is made to retain the security, the credit situation will be monitored and reported to the Investment Advisory Committee.

4.8 Safekeeping & Collateralization:

4.8.1 Repurchase Agreements: Collateral is required for all repurchase agreements. In order to anticipate market changes and provide a

11 level of security for all funds, the collateralization level will be a minimum of 102% of market value of principal and accrued interest.

Collateral will always be held by an independent third party with whom the City has a current custodial agreement. The independent third party custodian must be a major financial institution, with at least $5 billion in assets plus a long term rating of A or better. The third party custodian shall be required to issue a safekeeping receipt to the City listing the specific instrument, rate, maturity and other pertinent information. The right of collateral substitution is granted for repurchase agreements.

Collateral securities shall be equal in quality and may only consist of Those securities listed as authorized investments in sections 4.7.1.1 Through 4.7.1.5.

4.8.2 Certificates of Deposit: Collateral of at least 110% or FDIC insurance is required for Certificates of Deposit.

4.8.3 Passbook Savings and Demand Deposits: Collateral or FDIC Insurance is required for Certificates of Deposit.

4.9 Safekeeping & Custody: All security transactions, including collateral for repurchase agreements, certificates of deposit, demand deposits, and time deposits entered into by the City shall be conducted on a delivery-versuspayment (DVP) basis. Securities will be held by a third party qualified custodian designated by the City and will be evidenced by safekeeping receipts. Certificates of Deposit will be held in the City’s vault.

4.10 Diversification and Maturity Limitations:

4.10.1 Diversification: It is the policy of the City to diversify its investment portfolio. Invested funds shall be diversified to minimize the risk of loss resulting from over concentration of assets in a specific maturity, specific issuer, or specific class of securities. Diversification strategies shall be established and reviewed quarterly by the City Treasurer and Investment Advisory Committee.

4.10.1.1 Portfolio Diversification: The portfolio will maintain diversification by imposing the following limits, at time of purchase, on eligible investments:

U.S. Treasury 100%
U.S. Agency 75%
Collateralized or insured Passbook Savings &
Demand Deposits 30%
Collateralized or insured Certificates of Deposits30%
Negotiable Certificates of Deposits (NCDs) 20%
Bankers Acceptances 30%
Commercial Paper 15%
Corporate Debentures 20%
(including Medium Term Notes and Bank Notes)

12 Repurchase Agreements 30%
Local Agency Investment Fund (LAIF) 50%
(but not to exceed $ 75 million)
Money Market Mutual Funds 20%
Asset-Backed Securities 10%
Supranational Securities 10%
Orange County Investment Pool 10%
No more than 30% of the total portfolio may be invested in any one Federal Agency issuer.

The combined exposure in callable U.S. Agency securities shall not exceed 20% of the total market value of the
portfolio.

The combined investment exposure of any issuer in
Corporate Debentures and Negotiable Certificates of
Deposits (NCDs) shall not exceed 3% of the total portfolio market value. The combined investment exposure in
Corporate Debentures and NCDs in excess of the FDIC
limits, shall not exceed 20% of the total portfolio market value.

No more than 30% of the City’s total investment portfolio will be invested in a single security type or with a single financial institution or pool except:

4.10.1.1.1 US Treasury and Agency securities

4.10.1.1.2 The City may invest up to 60% in LAIF
and OCIP combined, but not to exceed
$ 75 million in LAIF and $15 million
in OCIP.

No more than 5% of the City’s portfolio may be invested in any issuer of securities other than where the issuer is the US Government or its Agencies, or where the security is a Money Market Mutual Fund or Local Agency Investment
Fund (LAIF) or unless otherwise specified in this
investment policy.

4.10.1.2 Maturity Diversification: Every effort
will be made to match investment maturities to
cash flow needs. Matching maturities with cash
flow dates will reduce the need to sell
securities prior to maturity, thus reducing
market risk.

13 4.10.1.2.1 Unless matched to a specific
requirement, no more than 50% of the
investment portfolio may be invested with
maturities greater than 2 years.

4.10.1.2.2 Unless matched to a specific
requirement and approved by the City
Council, no investment may be made
with a maturity greater than 5 years.

4.11 Marking to Market: The City shall mark investments to market on a monthly basis.

4.12 Investment Pools: Prior to entering a pool, a pool questionnaire must be completed and kept on file in the City Treasurer’s office.

5.0 PROCEDURE:

5.1 Internal Control: In conjunction with the City’s independent annual financial audit, a review of actual and documented internal controls of the City’s investment program will be conducted. The review will assure that internal controls are adequate and assure compliance with policies and procedures. The City’s Investment Advisory Committee will be provided with access to a copy of the annual audit within 30 days of publication. The City will email a link to the Investment Advisory Committee so that they can access the financial audit.

5.2 Performance Standards: The investment portfolio will be designed to obtain an average market rate of return, taking into account the City's investment risk constraints (safety), cash flow needs, and maturities of the investments.

5.2.1 Market Rate of Return (Benchmark): The City of San Clemente’s investment strategy is active. The investment portfolio’s return shall be measured using total return.

The investment portfolio shall be designed to attain a total return commensurate with the risk constraints outlined by the City’s Investment Policy. The benchmark for the City’s portfolio are:

5.2.1.1 BofA Merrill Lynch 1-3 Year US Treasury & Agency Index (primary)

5.2.1.2 BofA Merrill Lynch AAA-A Corporate & Government Index (reference)
It is understood that the portfolio’s total return can and will differ from

14 the index through different market cycles as the investment portfolio’s priority is to meet the liquidity needs of the City.

Nevertheless, it is the intent to use this benchmark as a tool with which to measure the relative risk and return of the portfolio.

5.3 Competitive Bids: A minimum of three bids or quotations will be obtained prior to the completion of secondary investment transactions with authorized financial institutions. This does not apply to authorized investment pools or money market mutual funds.

5.4 Reporting: The Finance & Administrative Services Director and City Treasurer are charged with the responsibility of distributing a Quarterly Investment Report on investment activity and returns in the City's Quarterly Financial Report. The report will be provided to the City’s Investment Advisory Committee and City Council within 30 days following the end of the quarter covered by the report. The California Code requires the following components:

5.4.1 Investment type, issuer, date of maturity, par value and dollar amount invested in all securities, and investments and monies held by the City;

5.4.2 A description of the funds, investments and programs; and

5.4.3 A market value as of the date of the report (or the most recent valuation as to assets not valued monthly) and the source of this valuation; and

5.4.4 Monthly transactions for the period; and

5.4.5 A statement of compliance with the investment policy or an explanation for non-compliance; and

5.4.6 A statement of the City’s ability to meet expenditure requirements for six months, and an explanation of why money will not be available if that is the case.

5.5 Investment Advisory Committee: The City Treasurer shall automatically be a member and serve as Chair. The City Council shall appoint two citizen representatives and a Council representative. The City Treasurer shall appoint one industry specialist, who does not need to be a citizen of San Clemente.

5.5.1 Members (Voting):

5.5.1.1 City Treasurer (Chair)

5.5.1.2 Council member representative

5.5.1.3 Two citizen representatives

5.5.1.4 One Industry Specialist
Three (3) voting members will constitute a quorum.

5.5.2 Staff (Non-Voting):

15 5.5.2.1 Finance & Administrative Services Director or designee (Staff)

5.5.3 Role:

5.5.3.1 To review and recommend City investment policies

5.5.3.2 To review the investment portfolio and practices for performance and conformance to adopted policies
and procedures.

5.5.4 Meetings:

6.5.4.1 The Investment Advisory Committee shall meet no less than quarterly.

5.5.5 Reports:

5.5.5.1 A quarterly report shall be submitted to the Committee by the City Treasurer, and be reviewed and approved
by the Investment Advisory Committee.

5.6 Investment Policy Adoption: The City's investment policy shall be adopted by the City Council on an annual basis. The policy shall be reviewed on an annual basis by the City Treasurer, Assistant City Manager/Finance & Administrative Services Director and City’s Investment Advisory Committee and any modifications made thereto must be recommended by the Committee and approved by the City Council.

5.7 Investment Policy Distribution: A copy of the City’s adopted investment policy will be distributed to the Investment Advisory Committee, City Treasurer, Deputy Administration Services Director, brokers, financial auditors, primary bank, and City Attorney. A copy will be posted on the City’s web site and be on file in the City Clerk’s office.

6.0 DEFINITIONS

6.1 ADEQUATELY CAPITALIZED: Capital group assignments are made in accordance with section 327.3(e)(1)(1) of the FDIC’s amended assessment regulation. Not Well Capitalized and Total Risk-Based Capital Ratio equal to or greater than 8 percent, and Tier I Risk-Based Capital Ratio equal to or greater than 4 percent, and Tier I Leverage Capital Ratio equal to or greater than 4 percent.
(See Well Capitalized and Undercapitalized).

6.2 AGENCIES: Federal agency securities.

6.3 ASSET BACKED SECURITIES: Securities supported by pools of installment loans or leases or by pools of revolving lines of credit.

16 6.4 BANKERS' ACCEPTANCE (BA): A draft or bill or exchange accepted by a bank or trust company. The accepting institution guarantees payment of the bill, as well as the issuer.

6.5 BROKER: A broker brings buyers and sellers together for a commission paid by the initiator of the transaction or by both sides; he does not position or take ownership of the security. In the money market, brokers are active in markets in which banks buy and sell money and in inter-dealer markets.

6.6 CERTIFICATE OF DEPOSIT (CD): A time deposit with a specific maturity evidenced by a certificate. Large-denomination CD's are typically negotiable.

6.7 COLLATERAL: Securities, evidence of deposit or other property which a borrower pledges to secure repayment of a loan. Also refers to securities pledged by a bank to secure deposits of public monies.

6.8 COLLATERALIZED MORTGAGE OBLIGATIONS (CMO): Classes of bonds that redistribute the cash flows of mortgage securities (and whole loans) to create securities that have different levels of prepayment risk, as compared to the underlying mortgage securities.

6.9 COMMERCIAL PAPER: An unsecured promissory note with a fixed maturity of no more than 270 days. Commercial paper is normally sold at a discount from face value.

6.10 COMPREHENSIVE ANNUAL FINANCIAL REPORT (CAFR): The official annual report for the City of San Clemente. It includes five combined statements and basic financial statements for each individual fund and account group prepared in conformity with GAAP. It also includes supporting schedules necessary to demonstrate compliance with financerelated legal and contractual provisions, extensive introductory material, and a detailed Statistical Section.

6.11 COUNTERPARTY: One of the counterparts (participants) in a financial transaction.

6.12 COUNTERPARTY RISK: The risk that a counterparty might fail to fulfill its contractual obligations.

6.13 COUPON: (a) The annual rate of interest that a bond's issuer promises to pay the bondholder on the bond's face value. (b) A certificate attached to a bond evidencing interest due on a payment date.

6.14 DEALER: A dealer, as opposed to a broker, acts as a principal in all transactions, buying and selling for his own account.

17 6.15 DELIVERY VERSUS PAYMENT (DVP): There are two methods of delivery of securities: delivery versus payment and delivery versus receipt (also called free). Delivery versus payment is delivery of securities with an exchange of money for the securities with an exchange of a signed receipt for the securities.

6.16 DEPOSITORY: A state or national bank, savings association or federal association, a state or federal credit union, or a federally insured industrial loan company, in the state in which the moneys of a local agency are deposited.

6.17 DIVERSIFICATION: Dividing investment funds among a variety of securities, issuers, and maturities.

6.18 DURATION: A measure of the timing of the cash flows to be received from a security that provides the foundation for a measure of the interest rate sensitivity of a bond. Duration is an elasticity measure and represents the percentage change in price divided by the percentage change in interest rates. A high duration measure indicates that for a given level of movement in interest rates, prices of securities will vary considerably.

6.19 FEDERAL CREDIT AGENCIES: Agencies of the Federal government set up to supply credit to various classes of institutions and individuals, e.g., S&L's, small business firms, students, farmers, farm cooperatives, and exporters.

6.20 FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC) A federal agency that insures bank deposits, currently up to $250,000 per deposit.

6.21 IDC Ranking: IDC Financial Publishing, Inc. compiles financial data on all banks, thrifts and credit unions reporting to the federal government, and publishes a ranking based on 35 key financial ratios.

6.22 LEVERAGE: The amplification in the return earned on funds when an investment is financed partly with borrowed money.

6.23 LIQUIDITY: A liquid asset is one that can be converted easily and rapidly into cash without a substantial loss of value. In the money market, a security is said to be liquid if the spread between bid and asked prices is narrow and reasonable size can be done at those quotes.

6.24 LOCAL AGENCY INVESTMENT FUND (LAIF): The aggregate of all funds from local governments that are placed in the custody of the State Treasurer for investment and reinvestment.

6.25 MARKET RATE OF RETURN: The average yield of the 90 day U.S.

Treasury Bill or such other index that most closely matches the average maturity of the portfolio.

18 6.26 MARKET VALUE: The price at which a security is trading and could presumably be purchased or sold.

6.27 MASTER REPURCHASE AGREEMENT: A written contract covering all future transactions between the parties to repurchase--reverse repurchase agreements that establish each party's rights in the transactions. A master agreement will often specify, among other things, the right of the buyerlender to liquidate the underlying securities in the event of default by the seller-borrower.

6.28 MATURITY: The date upon which the principal or stated value of an investment becomes due and payable.

6.29 MONEY MARKET FUND: Mutual fund that invests solely in money market instruments.

6.30 MORTGAGE PASS-THROUGH SECURITIES: A securitized participation in the interest and principal cash flows from a specified pool of mortgages.

Principal and interest payments made on the mortgages are passed through to the holder of the security.

6.31 MUNICIPAL SECURITIES: Securities issued by state and local agencies to finance capital and operating expenses.

6.32 NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION (NRSRO): is a credit rating agency that issues credit ratings that the U.S.

Securities and Exchange Commission permits other financial firms to use for certain regulatory purposes.

6.33 NEGOTIABLE CERTIFICATE OF DEPOSIT (NCD): A short-term debt instrument that pays interest and is issued by a bank, savings or federal association, state or federal credit union, or state-licensed branch of a foreign bank. Negotiable CDs are traded in a secondary market.

6.34 ORANGE COUNTY INVESTMENT POOL: The OCIP is a pooled fund managed by the Orange County Treasurer pursuant to California Government Code sections 53601 and 53635. It is considered a very safe, liquid investment pool, investing in short term, high quality securities.

6.35 PAR VALUE: the value printed on a security such as a share certificate or bond at the time of issue.

6.36 PORTFOLIO: Collection of securities held by an investor.

6.37 PRIMARY BANK: The bank utilized by the City for it's main banking activities including daily cash and ACH transactions, direct deposit, check processing, trust services, etc.

19 6.38 PRIMARY DEALER: A group of government securities dealers that submit daily reports of market activity and positions and monthly financial statements to the Federal Reserve Bank of New York and are subject to its informal oversight. Primary dealers include Securities and Exchange Commission (SEC) registered securities broker-dealers, banks, and a few unregulated firms.

6.39 QUALIFIED BIDDER: Those broker/dealers that are deemed by the Assistant City Manager or City Treasurer, as applicable, to be qualified to bid on City investments. Specific qualifications of the financial institution or dealer are contained in the City’s Broker/Dealer Questionnaire and Certification.

6.40 RATE OF RETURN: The yield obtainable on a security based on its purchase price or its current market price. This may be the amortized yield to maturity on a bond or the current income return.

6.41 REDEMPTION VALUE: The price at which the issuing company may choose to repurchase a security before its maturity date.

6.42 REPURCHASE AGREEMENT: A purchase of securities by the City pursuant to an agreement by which the seller will repurchase the securities on or before a specified date, and for a specified amount and will deliver the underlying securities to the City by book entry, physical delivery, or a third-party custodial agreement.

6.43 SAFEKEEPING: Storage and protection of a customer’s financial assets, valuables, or documents, provided as a service by an institution serving as agent and, where control is delegated by the customer, also as custodian.

6.44 SURPLUS FUNDS: Those funds that are available for investment and are not anticipated to be needed for City operations for the next six (6) months.

6.45 SUPRANATIONALS: A multi-national organization whereby member states transcend national boundaries or interests to share in the decision-making to promote economic development in member countries.

6.46 TOTAL RETURN: The sum of all investment income plus all changes in the capital value of the portfolio.

6.47 TREASURY BILLS: A non-interest bearing discount security issued by the U.S. Treasury to finance the national debt. Most bills are issued to mature in three months, six months, or one year.

6.48 TREASURY BOND: Long-term U. S. Treasury securities having initial maturities of more than ten years.

20 6.49 TREASURY NOTES: Intermediate term coupon bearing U. S. Treasury securities having initial maturities of from one to ten years.

6.50 UNDERCAPITALIZED: Capital group assignments are made in accordance with section 327.3(e)(1)(1) of the FDIC’s amended assessment regulation.

Neither Well Capitalized nor Adequately Capitalized.

6.51 WELL CAPITALIZED: Capital group assignments are made in accordance with section 327.3(e)(1)(1) of the FDIC’s amended assessment regulation.

Total Risk-Based Capital Ratio equal to or greater than 10 percent, and Tier I Risk-Based Capital Ratio equal to or greater than 6 percent, and Tier I Leverage Capital Ratio equal to or greater than 5 percent.

RE: Client Directive regarding management of the City’s investment portfolio The City of San Clemente entered into a discretionary investment advisory agreement on October 1, 2013 with Chandler Asset Management, an SEC-registered investment advisor, to manage a portion of the City’s portfolio in accordance with its investment objectives and policies.

After consultation with Chandler’s investment team, the City selected the Limited Maturity investment strategy for the portion of the City’s portfolio managed by Chandler. This strategy invests in a well-diversified portfolio of US dollar denominated fixed income securities managed in compliance with the City’s investment policy.

Starting on October 1, 2019, Chandler will make best efforts to maintain the City’s market risk as measured by modified duration within +/- 10% of the duration of the ICE Bank of America Merrill Lynch 0-5 Year US Treasury Index. In addition, starting on October 1, 2019, the Chandler managed portion of the City’s portfolio will use ICE Bank of America Merrill Lynch 0-5 Year US Treasury Index for performance comparisons while utilizing the ICE Bank of America Merrill Lynch 1-3 Year US Treasury and Agency Index for all previous performance comparisons.

Along with selecting a strategy we also discussed additional clarifying items in the City’s investment policy:
• Section 4.10.1.2.1 – Chandler will maintain an allocation of at least 25% to securities that mature less than 2 years. Inclusive of the Chandler portfolio and the City’s internally managed portfolio’s allocation to liquidity vehicles and shorter maturity securities, the entire portfolio will maintain 50% of its securities maturing in less than 2 years.
• Although the investment policy states the benchmark for the City’s entire portfolio is the ICE Bank of America Merrill Lynch 1-3 Year US Treasury and Agency Index, starting October 1, 2019 the Chandler managed portfolio will use the ICE Bank of America Merrill Lynch 0-5 Year US Treasury Index to compare both portfolio performance and characteristics.
• Starting October 1, 2019, the City’s internally managed portfolio will use the ICE Bank of America Merrill Lynch US 1-Year Treasury Bill to compare both portfolio

21 performance and characteristics.

The average duration and maturity of the portfolio is not likely to exceed the ICE Bank of America Merrill Lynch 1-3 Year US Treasury and Agency Index because the City’s internally managed balance includes a high percentage of liquidity vehicles to facilitate the City’s near-term cash flow needs.

The City’s staff will maintain appropriate levels of liquidity utilizing an internally managed short-term portfolio. In addition, Chandler will not purchase securities issued by the Foothill/Eastern Transportation Corridor Agency and San Joaquin Hills Transportation Corridor Agency until further notice.

This directive is in effect as of November 4, 2019 and will remain in effect until it is replaced by a revised directive.

22 Revised on September 22th, 2016

CALIFORNIA GOVERNMENT CODE
23 California Government Code
Sections 16429.1, 53600-53610, 53630
(a) There is in trust in the custody of the Treasurer the Local Agency Investment Fund, which fund is hereby created. The Controller shall maintain a separate account for each governmental unit having deposits in this fund.
(b) Notwithstanding any other law, a local governmental official, with the consent of the governing body of that agency, having money in its treasury not required for immediate needs, may remit the money to the Treasurer for deposit in the Local Agency Investment Fund for the purpose of investment.
(c) Notwithstanding any other law, an officer of any nonprofit corporation whose membership is confined to public agencies or public officials, or an officer of a qualified quasi-governmental agency, with the consent of the governing body of that agency, having money in its treasury not required for immediate needs, may remit the money to the Treasurer for deposit in the Local Agency Investment Fund for the purpose of investment.
(d) Notwithstanding any other law or provision of this section, a local agency, with the approval of its governing body, may deposit in the Local Agency Investment Fund proceeds of the issuance of bonds, notes, certificates of participation, or other evidences of indebtedness of the agency pending expenditure of the proceeds for the authorized purpose of their issuance. In connection with these deposits of proceeds, the Local Agency Investment Fund is authorized to receive and disburse moneys, and to provide information, directly with or to an authorized officer of a trustee or fiscal agent engaged by the local agency, the Local Agency Investment Fund is authorized to hold investments in the name and for the account of that trustee or fiscal agent, and the Controller shall maintain a separate account for each deposit of proceeds. (e) The local governmental unit, the nonprofit corporation, or the quasi-governmental agency has the exclusive determination of the length of time its money will be on deposit with the Treasurer.
(f) The trustee or fiscal agent of the local governmental unit has the exclusive determination of the length of time proceeds from the issuance of bonds will be on deposit with the Treasurer.
(g) The Local Investment Advisory Board shall determine those quasi-governmental agencies which qualify to participate in the Local Agency Investment Fund. (h) The Treasurer may refuse to accept deposits into the fund if, in the judgment of the Treasurer, the deposit would adversely affect the state's portfolio. (i) The Treasurer may invest the money of the fund in securities prescribed in Section 16430. The Treasurer may elect to have the money of the fund invested through the

24 Surplus Money Investment Fund as provided in Article 4 (commencing with Section 16470) of Chapter 3.
(j) Money in the fund shall be invested to achieve the objective of the fund which is to realize the maximum return consistent with safe and prudent treasury management. (k) All instruments of title of all investments of the fund shall remain in the Treasurer's vault or be held in safekeeping under control of the Treasurer in any federal reserve bank, or any branch thereof, or the Federal Home Loan Bank of San Francisco, with any trust company, or the trust department of any state or national bank. (l) Immediately at the conclusion of each calendar quarter, all interest earned and other increment derived from investments shall be distributed by the Controller to the contributing governmental units or trustees or fiscal agents, nonprofit corporations, and quasi-governmental agencies in amounts directly proportionate to the respective amounts deposited in the Local Agency Investment Fund and the length of time the amounts remained therein. An amount equal to the reasonable costs incurred in carrying out the provisions of this section, not to exceed a maximum of 5 percent of the earnings of this fund and not to exceed the amount appropriated in the annual Budget Act for this function, shall be deducted from the earnings prior to distribution. However, if the 13-week Daily Treasury Bill Rate, as published by the United States Department of the Treasury on the last day of the state's fiscal year is below 1 percent, then the above-noted reasonable costs shall not exceed a maximum of 8 percent of the earnings of this fund for the subsequent fiscal year, shall not exceed the amount appropriated in the annual Budget Act for this function, and shall be deducted from the earnings prior to distribution. The amount of the deduction shall be credited as reimbursements to the state agencies, including the Treasurer, the Controller, and the Department of Finance, having incurred costs in carrying out the provisions of this section. (m) The Treasurer shall prepare for distribution a monthly report of investments made during the preceding month.
(n) As used in this section, "local agency," "local governmental unit," and "local governmental official" includes a campus or other unit and an official, respectively, of the California State University who deposits moneys in funds described in Sections 89721, 89722, and 89725 of the Education Code.
53600. As used in this article, "local agency" means county, city, city and county, including a chartered city or county, school district, community college district, public district, county board of education, county superintendent of schools, or any public or municipal corporation.
53600.3. Except as provided in subdivision (a) of Section 27000.3, all governing bodies of local agencies or persons authorized to make investment decisions on behalf of those local agencies investing public funds pursuant to this chapter are trustees and therefore fiduciaries subject to the prudent investor standard. When investing, reinvesting, purchasing, acquiring, exchanging, selling, or managing public funds, a trustee shall act with care, skill, prudence, and diligence under the circumstances then