and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
A. Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on July 14, 2020 and terminate on July 31, 2025.
B. After the Initial Term, the City reserves the right, at its sole discretion, to extend the term of this Agreement for an additional one-year period ending July 31, 2026. City shall provide Consultant with no less than thirty (30) days prior written notice of its intention to exercise its option to extend the term of this Agreement.
3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
A.
B.
C.
D.
General: The Consultant will provide services to the City as set forth in Exhibit A and as further described pursuant to individual task orders (Exhibit D). Each Task Order will describe the services and deliverables (collectively "Work") the Consultant must provide, the time limit within which the Consultant must complete the Work and the compensation for the Work.
Approved Task Order: The City will not compensate the Consultant for any Work until the City has executed the task order for such Work ("Approved Task Order").
Obligation to Issue: The City has no obligation to issue any Approved Task Orders under this Agreement.
Each Approved Task Order shall be subject to the terms and conditions of this Agreement.
4. WARRANTY
Consultant expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions upon which this Agreement is based. Consultant agrees to promptly replace or correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Consultant. If Consultant fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Consultant for the cost incurred by City.
Agreement with Kastech Solutions, LLC
Rev. 07-01-18
5. QUALIFICATIONS OF CONSULTANT-STANDARD OF CARE
Consultant represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Consultant's representations regarding its skills and knowledge. Consultant shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
6. COMPENSATION AND PAYMENT
Consultant shall be paid in accordance with Exhibit B, Compensation.
7. TERMINATION
A.
B.
C.
Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) days' prior written notice to Consultant.
Termination for Default. If Consultant fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Consultant.
Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Consultant will deliver to City all City information or material that Consultant has in its possession.
8. ASSIGNMENT AND SUBCONTRACTING
City and Consultant bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Consultant shall not hire subconsultants without express written permission from City.
Consultant shall be as fully responsible to City for the acts and omissions of its subconsultants, and of persons either directly or indirectly employed by them, as Consultant is for the acts and omissions of persons directly employed by it.
9. NO THIRD-PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
Agreement with Kastech Solutions, LLC
Rev. 07-01-18 Page 3
10. INDEPENDENT CONSULTANT
Consultant and all person(s) employed by or contracted with Consultant to furnish labor and/or materials under this Agreement are independent Consultants and do not act as agent(s) or employee(s) of City. Consultant has full rights to manage its employees in their performance of Services under this Agreement.
11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Consultant and all other written information submitted to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Consultant which is otherwise known to Consultant or becomes generally known to the related industry shall be deemed confidential.
12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Consultant may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Consultant shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.
13. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Consultant for the purpose of verifying any and all charges made by Consultant in connection with Consultant compensation under this Agreement, including termination of Consultant. Consultant agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Consultant shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.
Consultant shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Consultant Agreement with Kastech Solutions, LLC
Rev. 07-01-18
j
agrees to assist City in meeting City's reporting requirements to the State and other agencies with respect to Consultant's Services hereunder.
14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Consultant agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney's fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Consultant pursuant to this Agreement - including claims of any kind by Consultant's employees or persons contracting with Consultant to perform any portion of the Scope of Services - and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.
B. Consultant's obligation to protect, defend, indemnify, and hold harmless in full City and City's employees, shall specifically extend to any and all employment-related claims of any type brought by employees, Consultants, subconsultants or other agents of Consultant, against City (either alone, or jointly with Consultant), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.
C. To the extent Consultant is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act ("Act") and/or any other similar federal or state law, Consultant warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Consultant's responsibilities under the Act.
15. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Consultant shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
16. WAIVER
Consultant agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City's review, acceptance nor payments for any of the Services required under this Agreement Agreement with Kastech Solutions, LLC
Rev. 07-01-18
shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Kenn Lee, Director of Finance
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected]
And to Consultant addressed as follows:
Kastech Solutions, LLC
Attention: Aaron Canchola
6918 Corporate Drive, Suite A-1
Houston, TX 77036
and by e-mail at [email protected]
The workday the e-mail was sent shall control the date notice was deemed given.
An e-mail transmitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.
18. COMPLIANCE WITH LAWS
Consultant shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to "The Code of the City of Santa Clara, California" ("SCCC"). In particular, Consultant's attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally, Consultant has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).
19. CONFLICTS OF INTEREST
Consultant certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Consultant and that no person associated with Consultant has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Consultant is familiar with the provisions of California Government Code section 87100 and Agreement with Kastech Solutions, LLC
Rev. 07-01-18
~~
following and certifies that it does not know of any facts which would violate these code provisions. Consultant will advise City if a conflict arises.
20. FAIR EMPLOYMENT
Consultant shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
21. NO USE OF CITY NAME OR EMBLEM
Consultant shall not use City's name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
23. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.
Agreement with Kastech Solutions, LLC
Rev. 07-01-18
25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives .
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
"CITY"
City Mana r
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone : (408) 615-2210
Fax: (408) 241-6771
KASTECH SOLUTIONS, LLC
a Texas limited liability company
Dated: 'l ... \ 9 - ·l,o"l.-o
By (Signature~ ... ,c;;.----=-
Name: Aaron Canchola - -----=...___.,.=-----:----
Title: Director of Business Development
Principal Place of 6918 Corporate Drive, Suite A-1
Business Address: Houston, TX 77036
Email Address: aaron@kastechssg .com
Telephone: (281) 724-4566 Ext. 117
Fax: (281) 724-6464
Agreement with Kastech Solutions, LLC
Rev. 07-01-18
"CONSULTANT"
EXHIBIT A
SCOPE OF SERVICES
1. Consultant shall provide as-needed PeopleSoft professional/technical services for various projects in support the City of Santa Clara's ("City") HR and Finance Departments initiatives. Projects may include, but not limited to, the following:
1.1. Evaluate and Automate the following HR/Payroll functions:
1.1.1. Retroactive pay including impacts on:
1.1.1.1. Wages
1.1.1.2. FLSA
1.1.1.3. Out of Class
1.1.1.4. Automation of MOU changes/merit changes
1.1.2. Implement PERS Compensation Limit
1.1.3. Revalidate regular pay of rate
1.1.4. Review pay codes and eliminate or streamline business process to reduce the number of codes
1 .1.5. Research time entry for efficiencies
1.1.6. Evaluate and streamline processes for premium pay
1.2. Additional Items:
1.2.1. Integrate NeoGov into PeopleSoft
1.2.2. Review and enhance Profile management
1.2.3. Evaluate systems in order to implement automation for
1.2.3.1. Electronic timekeeping
1.2.3.2. Vacation cash out
1.2.4. Implement Benefits Administration module
1.2.5. Workflow automation
1.2.6. Proration of management leave (new hires and promotion)
1.2.7. Research potential discrepancies between timesheet leave balance and paycheck leave balances
1.2.8. Leave management workflow
1.2.9. Auditing on all HR/Payroll screens
1.2.10. PeopleSoft patches
1.2.11. Exception based time reporting for management
1 .2.12. Default pay
1.2.13. Mass changes to benefits that are bargained/apply new updated changes
1.2.14. Add termination rows for all benefits and pays when adding termination row on Job Data
1.2.15. Track completion of probation period and other milestones in system Agreement with Kastech Solutions, LLC/Exhibit A - Scope of Services Rev. 07-01-18
2. The City will issue a task order (Exhibit D) to Consultant as services are needed to complete various projects. The task order will describe the services and deliverables the Consultant must provide.
Agreement with Kastech Solutions, LLC/Exhibit A - Scope of Services Rev. 07-01-18
1. MAXIMUM COMPENSATION
EXHIBIT B
COMPENSATION
1.1. The maximum compensation shall be as set forth in each Approved Task Order (Maximum Task Order Compensation). No services will be performed unless both Parties execute an Approved Task Order outlining the services requested and the compensation agreed for such services.
1.2. Consultant shall fully complete all work required by the Approved Task Order for no more than the maximum task order compensation.
1.3. City shall only be liable for charges expressly authorized in the Approved Task Order.
2. INVOICING
2.1. Consultant shall render invoices in accordance with the fees, payment schedule, and other terms and conditions specified applicable Approved Task Order.
2.2. City will pay Consultant within thirty (30) days of City's receipt of an approved invoice.
Agreement with Kastech Solutions, LLC/Exhibit B - Compensation Rev. 07-01-18
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Consultant's indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Consultant shall provide and maintain in full force and effect during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Consultant's insurance. The minimum coverages, provisions and endorsements are as follows:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Consultant; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Consultant to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a "pay on behalf" basis with defense costs payable in addition to policy limits;
b. There shall be no cross-liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
Agreement with Kastech Solutions, LLC/Exhibit C - Insurance Requirements Rev. 07-01-18
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned (if any), non-owned and hired autos.
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Consultant and/or its subconsultants involved in such activities shall provide coverage with a limit of one million dollars ($1,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS' COMPENSATION
1. Workers' Compensation Insurance Policy as required by statute and employer's liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Consultant included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Consultant or any subconsultant under any Workers' Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. PROFESSIONAL LIABILITY
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Consultant. Covered services as designated in the policy must specifically include work performed under this agreement. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim or two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorney's Office.
Agreement with Kastech Solutions, LLC/Exhibit C - Insurance Requirements Rev. 07-01-18
E. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. 2.
Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Consultant's work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85, or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
Primary and non-contributing. Each insurance policy provided by Consultant shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Consultant's insurance.
3. Cancellation.
4. a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten ( 10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non renewal.
Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through E of this Exhibit C, above.
Agreement with Kastech Solutions, LLC/Exhibit C - Insurance Requirements Rev. 07-01-18
~
F. ADDITIONAL INSURANCE RELATED PROVISIONS
Consultant and City agree as follows:
1. Consultant agrees to ensure that subconsultants, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Consultant, provide the same minimum insurance coverage required of Consultant, except as with respect to limits. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Consultant agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subconsultants and others engaged in the project will be submitted to City for review.
2. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Consultant in the event of material noncompliance with the insurance requirements set forth in this Agreement.
G. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Consultant, and each and every subconsultant (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Consultant shall file with the City all certificates and endorsements for the required insurance policies for City's approval as to adequacy of the insurance protection.
H. EVIDENCE OF COMPLIANCE
Consultant or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.
Upon City's request, Consultant shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications Agreement with Kastech Solutions, LLC/Exhibit C - Insurance Requirements Rev. 07-01-18
and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara
P.O. Box 100085 - S2
Duluth, GA 30096
or
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
I. QUALIFYING INSURERS
1 Ebix Way
John's Creek, GA 30097
All of the insurance companies providing insurance for Consultant shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Agreement with Kastech Solutions, LLC/Exhibit C - Insurance Requirements Rev. 07-01-18
1. 2.
3. 4.
5. 6.
Approved Task Order No.:
Consultant's Name:
Project Name:
Project Location:
EXHIBIT D
TASK ORDER FORM
Cover Page
----
The Consultant and the City will implement this Approved Task Order in accordance with the executed Agreement, this cover page and Attachments "A" (Tasks), "B" (Project Staffing), and "C" (Compensation Table), which are incorporated herein by references.
Budget/Fiscal:
--< '•
a. Previously Approved Compensation for Task Orders XX-XX: $ • .-.,,c;;;, b. Maximum Task Order Compensation for this Approved Task Order:
c. Total Approved Compensation for Task Orders (XX-XX) (6.a + 6.b):
7. Department/ Analyst
Approval:
8. Consultant Approval:
9. Department Director
Approval:
Agreement with Kastech Solutions, LLC/Exhibit D - Task Order Form Rev. 07-01-18
--- --,
$ ·-
-_ ·' --,,_ --
$
,---
Date:
Date:
--
Date:
Consultant:
Task Order No.:
ATTACHMENT A: TASKS
The Consultant shall provide the services and deliverables set forth in this Attachment A. The Consultant shall provide all services and deliverables required by this Attachment A to the satisfaction of the City's contract administrator.
General Description of Project for which Consultant will Provide Services:
Task No. 1:
Consultant will complete the tasks below including Consultant attendance at one meeting with City staff.
A. Services:
B. Deliverable:
C. Completion Time: The Consultant must complete the services and deliverables for this task in accordance with whichever one of the following time is marked:
D On or before the following date:
D On or before __ Business Days from
Task No. 2:
Consultant will complete the subtasks outlined below.
A. Services:
B. Deliverable:
C. Completion Time: The Consultant must complete the services and deliverables for this task in accordance with whichever one of the following time is marked:
D On or before the following date:
D On or before __ Business Days from
Agreement with Kastech Solutions, LLC /Exhibit D - Task Order Form Rev. 07-01-18
~
Consultant:
Task Order No.:
ATTACHMENT B: STAFFING
1. City's Contract Manager: The City's contract manager for this Approved Task Order is:
Name: Phone No.:
Department: E-mail:
Address:
2. Consultant's Contract Manager and Other Staffing: Identified below are the following: (a) the Consultant's contract manager for this Approved Task Order, and (b) the Consultant(s) and/or employee(s) of the Consultant who will be principally responsible for providing the services and deliverables. If an individual identified below does not have a current Form 700 on fife with the City Clerk for a separate agreement with the City, and is required to fife a Form 700, the Consultant must submit the required Form 700 in accordance with California Political Reform Act (Government Code Section 81000 et seq.).
Consultant's Contract Manager
Name: Phone No.:
Address: E-mail:
Other Staffing
Name: Assignment:
1. 2.
Agreement with Kastech Solutions, LLC /Exhibit D - Task Order Form Rev. 07-01-18
Required to File Form 700?
Yes
Already
Filed (Date
Filed)
Yes
Need to
File
No
Consultant:
Task Order No.:
3. Subconsultants: Whichever of the following is marked applies to this Approved Task Order:
[rn The Consultant cannot use any subconsultants.
~ The Consultant can use the following subconsultants to assist in providing the required services and deliverables:
Subconsultant's Name
1. 2.
3. Agreement with Kastech Solutions, LLC/Exhibit D - Task Order Form Rev. 07-01-18
Area of Work
Consultant:
Task Order No.:
ATTACHMENT C: COMPENSATION TABLE
The City will compensate the Consultant for providing the services and deliverables set forth in Attachment A in accordance this Compensation Table.
Part 1 - Compensation for Services and Deliverables
Column 1 Column 2 Column 3
Task Nos. Basis of Compensation Invoice Period
from
Attachment A
□
□
1 □ Time & Materials □ Fixed Fee □ Monthly □ Completion of Task(s) □ Completion of Work 2 □ Time & Materials □ Fixed Fee □ Monthly □ Completion of Task(s) □ Completion of Work 3 □ Time & Materials □ Fixed Fee □ Monthly □ Completion of Task(s) □ Completion of Work 4 □ Time & Materials □ Fixed Fee □ Monthly □ Completion ofTask(s) □ Completion of Work Part 2 - Reimbursable Expenses
No expenses are separately reimbursable. The amount(s) D Expenses are separately reimbursable in the maximum amount of:
in Column 4 of Part 1 include(s) payment for all expenses.
Part 3 - Subconsultant Costs
Subconsultant costs are not separately compensable. The □ Subconsultant costs are separately compensable in the maximum amount(s) in Column 4 of Part 1 include(s) subconsultant amount of:
costs.
Maximum Task Order Compensation (sum of Parts 1 through 3):
Agreement with Kastech Solutions, LLC/Exhibit D - Task Order Form Rev. 07-01-18
Column 4
Compensation
$
$
$
$
$
$
$
Agreement with Kastech Solutions, LLC - Task Order Form
TASK ORDER FORM
Cover
Page
1. Approved Task Order No.: PUR-001-0
2. Consultant’s Name: Kastech Solutions, LLC
3. Project Name: PeopleSoft FSCM 9.2 Purchasing System Improvements
4. Project Location: City of Santa Clara at 1500 Warburton Avenue, Santa Clara, CA 95050
5. The Consultant and the City will implement this Approved Task Order in accordance with the executed Agreement dated September 1, 2020 between the City of Santa Clara and Kastech Solutions, LLC (Agreement), this cover page and Attachments “A” (Tasks), “B” (Project Staffing), and “C” (Compensation Table), which are hereby incorporated into the Agreement by references.
6. Budget/Fiscal:
a. Maximum Task Order Compensation for this Approved Task Order: $ $55,200 b. Revised Maximum Task Order Compensation for this Approved Task Order $ N/A
7. Department/Analyst
Approval:
Date: __________
8. Consultant Approval: Date: __________
9. Department Director
Approval:
Date: __________
10. City Attorney Approval: Date: __________
11. City Manager Approval: Date: __________
5/21/2024
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7 5/29/2024
5/29/2024
5/29/2024
6/4/2024
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Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
ATTACHMENT A: TASKS
The Consultant shall provide the services and deliverables set forth in this Attachment A. The Consultant shall provide all services and deliverables required by this Attachment A to the satisfaction of the City’s contract administrator.
General Description of Project for which Consultant will Provide Services:
Task No. 1:
Consultant will complete the tasks below including Consultant attendance at one meeting with City staff.
A. Services: Attached behind this Page.
B. Deliverable: Attached behind this page.
C. Completion Time: The Consultant must complete the services and deliverables for this task in accordance with whichever one of the following time is marked:
On or before the following date: December 31, 2024 or sooner On or before ____ Business Days from
_______________________________________.
Task No. 2:
Consultant will complete the subtasks outlined below.
A. Services:
B. Deliverable:
C. C ompletion Time: The Consultant must complete the services and deliverables for this task in accordance with whichever one of the following time is marked:
On or before the following date:
On or before ____ Business Days from
_______________________________________.
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7 ~
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Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
SCOPE OF SERVICES
SECTION 1. COMPREHENSIVE ASSESSMENT
1.1 Contractor shall conduct meetings and discovery sessions to conduct a detailed analysis of the City’s current business structure and provide recommendations for improving the use of PeopleSoft FSCM 9.2 Purchasing (“PeopleSoft Purchasing”).
This includes but is not limited to:
Review integrations with other PeopleSoft applications including:
1.1.1.1 PeopleSoft Asset Management
1.1.1.2 PeopleSoft eProcurement
1.1.1.3 PeopleSoft General Ledger including Commitment Control
1.1.1.4 PeopleSoft Inventory
1.1.1.5 PeopleSoft Payables
1.1.1.6 PeopleSoft Strategic Sourcing
1.1.1.7 PeopleSoft Supplier Contract Management
Review operations of each City department PO processing options.
Review PO approval process/workflow/controls to streamline approvals and enhance efficiency.
Review PO change order process.
Review potential use of the Procurement Card feature to manage P-Card transactions in JPMorgan Chase.
Evaluate existing system functions for optimization or potential process changes.
Assess th e system’s reporting and analytics capabilities to track procurement activities and identify improvement areas.
Evaluate the availability of training documents and resources to help users effectively utilize the Purchasing Module.
1.2 Contractor will use the Contracts Management Requirements Matrix Version
1.0_2024-03-14 shared by the City and review Leckey Consulting’s Recommended Optimization Plan for PeopleSoft Procurement, Contracts Management and Warehouse Inventory Functions Report dated May 26, 2020.
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7
1.1.1 1.1.2
1.1.3 1.1.4
1.1.5 1.1.6
1.1.7 1.1.8
Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
1.3 Contractor shall i dentify the precise requirements for implementing (a) the PeopleSoft Procurement Contracts Module to address prioritized needs, including tracking spend, pricing enforcement, multi -supplier contract grouping, and optimizing procurement processes for efficiency and (b) the PeopleSoft Requisition function.
SECTION 2. PROJECT MANAGEMENT
2.1 Contractor’s Responsibilities
The principal members of the Contractor’s project team are shown below.
In the event that the Contractor’s dedicated project lead is removed from the Project, Contractor will identify a replacement as quickly as possible in order to limit the impact to project deliverables and timelines.
Name Role
Aaron Canchola Account Executive
Jayan Ravindranathan Project Manager
Ron Bolakowski PeopleSoft Functional Consultant
Krishna Gavvagi PeopleSoft Functional Consultant
The Contractor’s Project Manager shall be the primary person communicating with the City and keeping City fully apprised on the status and progress of the project. The Contractor’s Project Manager shall also be responsible for project schedule updates; creation and preparation of progress reports and meeting minutes; adherence to project scheduling; and general project coordination.
In general, the Contractor’s Project Manager has the leadership role in carrying out the scope of work and implementation to s uccessful completion and go-live. The City’s Project Manager is primarily a support role to ensure the City’s requirements are met and project is completed successfully and on schedule.
Contractor’s Project Manager shall submit weekly progress reports to the City’s Project Manager on the project status. Reports shall include a summary of activities undertaken, progress achieved compared to plan, percent of overall work completed, and any other information deemed important.
Contractor shall respond within two (2) business days or sooner as agreed upon between both parties for project-related activities.
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7
2.1.1 2.1.2
2.1.3 2.1.4
2.1.5 Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
2.2 City’s Responsibilities
City shall provide oversight for the entire Project, but Contractor must provide overall project management for all tasks required for this project.
City shall assign a project manager who will work closely with Contractor to facilitate the successful completion of the project. The City’s Project Manager shall maintain project communications with Contractor’s Project Manager.
The City shall make available facilities for Contractor project staff while on-site, including: on- site office space for Contractor project staff, supplies, outside network connection, conference call and meeting facilities including any necessary logistics support for meeting rooms and general administrative support when required.
City will provide Contractor with the names and email addresses of key City personnel Contractor must speak with in order to properly execute the scope of services. While Contractor will drive the scheduling process, City will assist Contractor in coordinating the availability of key City personnel.
City will provide Contractor with assistance in connecting Contractor’s team to necessary VPN and network equipment.
City will provide a project portal for Contractor to store and manage project-related documentation.
City will provide Contractor with access to PeopleSoft and related applications in order to properly execute the scope of services.
2.3 Mutual Responsibilities
City and Contractor shall work together in good faith to agree upon acceptable modalities and templates for communication, reporting, issue management, status updates, and assessment progress monitoring.
City and Contractor Project Managers will jointly coordinate day-to-day execution of the Project Schedule.
City and Contractor Project Managers will collaboratively manage project scope, budgets, issues, risks, communications and Change Orders.
SECTION 3. PROJECT SCHEDULE
3.1 Comprehensive Assessment Project Schedule
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7
2.2.1 2.2.2
2.2.3 2.2.4
2.2.5 2.2.6
2.2.7 2.3.1
2.3.2 2.3.3
Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
Contractor will conduct a comprehensive assessment pursuant to Section 1 of the Scope of Services on a timeline of four weeks. The first two weeks shall be performed on site at the City of Santa Clara and the last two weeks will be remote.
3.1.1.1 During Week 1 of 4, Contractor will conduct a business process review of the City’s current processes.
3.1.1.2 During Week 2 of 4, Contractor will review the City’s system integration and reporting structure.
3.1.1.3 During Week 3 and 4 of 4, Contractor will consolidate the scope detailing the activities required to implement subsequent phases and develop a project schedule for implementation of subsequent phases.
3.1.1.4 The Project Manager, Account Executive, and PeopleSoft Functional Consultant will be on site for 40 hours per week for the first two weeks.
SECTION 4. DELIVERABLE(S):
Contractor shall deliver:
4.1 A report with proposed recommendations to improve the procurement process in PeopleSoft including identification of the required effort to implement such effort.
4.2 A comprehensive list of identified issues categorized by impact on successful implementation of the Procurement Contracts Module and the Requisition function.
4.3 A project plan to implement the PeopleSoft Procurement Contracts module and e- Procurement module, including a revised business process map.
4.4 Two 2-hour presentations of the final report to City-designated personnel, such as members of Finance, IT, or other departments.
SECTION 5. SUBSEQUENT PHASES
The City will issue a separate task order or amend this task order for subsequent work after completion of the assessment.
SECTION 6. CHANGE ORDERS
6.1 Any changes to the Scope of Services, project schedule, or cost of services requires a change order signed by both parties. Contractor shall communicate notification of intended changes in writing to the City’s Project Manager via a
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7
3.1.1 Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
Service Change Request (SCR) form and shall include justification for the change and the impact to the project’s scope, schedule, or cost.
6.2 The City’s Contract Manager will approve or reject the change within five (5) Business Days from the date the City’s Project Manager receives the SCR form.
6.3 If the City does not approve or reject the change request within five (5) Business Days from the receipt of the SCR form and does not communicate a timeframe in which a decision will be made, the requested change will be considered deferred:
The SCR status will be logged, tracked, and managed as a ‘deferred’ request.
Work will proceed without incorporating the requested change into the work plan.
6.4 Where an approval or rejection decision is necessary for the work to proceed , Contractor shall immediately notify the City’s Project Manager.
6.5 Contractor and City shall work in good faith to resolve disputes, including disputes over the classification of work being “in scope” or “out of scope.”
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7
6.3.1 6.3.2
Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
ATTACHMENT B: STAFFING
1. City’s Contract Manager: The City’s contract manager for this Approved Task Order is:
Name: Grace Dougherty Phone No.: 408-615-2039
Department: Finance/Purchasing Division E-mail:
[email protected]
Address: 1500 Warburton Avenue, Santa Clara, CA 95050
2. Consultant’s Contract Manager and Other Staffing: Identified below are the following: (a) the Consultant’s contract manager for this Approved Task Order, and (b) the Consultant(s) and/or employee(s) of the Consultant who will be principally responsible for providing the services and deliverables. If an individual identified below does not have a current Form 700 on file with the City Clerk for a separate agreement with the City, and is required to file a Form 700, the Consultant must submit the required Form 700 in accordance with California Political Reform Act (Government Code Section 81000 et seq.).
Required to File Form 700?
Consultant’s Contract Manager Yes
Already
Filed (Date
Filed)
Yes
Need to
File
No
Name: Phone No.: X (01/09/19)
Address: E-mail:
Other Staffing
Name: Assignment:
1. 2.
[email protected]
Houston, TX – 77036
6918 Corporate Dr, Suite A1,
210 859 3259
Suresh Katamreddy
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7 Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
3. Subconsultants: Whichever of the following is marked applies to this Approved Task Order:
The Consultant cannot use any subconsultants.
The Consultant can use the following subconsultants to assist in providing the required services and deliverables:
Subconsultant’s Name Area of Work
1. 2.
3.
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7 Consultant: Kastech Solutions, LLC
Task Order No.: PUR-001-0
Agreement with Kastech Solutions, LLC - Task Order Form
ATTACHMENT C: COMPENSATION TABLE
The City will compensate the Consultant for providing the services and deliverables set forth in Attachment A in accordance with this Compensation Table.
Part 1 – Compensation for Services and Deliverables
Column 1 Column 2 Column 3 Column 4
Task Nos.
from
Attachment A
Basis of Compensation Invoice Period Compensation
1 Time & Materials Fixed Fee Completion of Task(s) Completion of Deliverables $ 55,200 2 Time & Materials Fixed Fee Completion of Task(s) Completion of Deliverables N/A 3 Time & Materials Fixed Fee Completion of Task(s) Completion of Deliverables N/A 4 Time & Materials Fixed Fee Completion of Task(s) Completion of Work N/A Part 2 – Reimbursable Expenses
No expenses are separately reimbursable. The amount(s) in Column 4 of Part 1 include(s) payment for all expenses.
Expenses are separately reimbursable in the maximum amount of: $0 Part 3 – Subconsultant Costs
Subconsultant costs are not separately compensable. The amount(s) in Column 4 of Part 1 include(s) subconsultant costs.
Subconsultant costs are separately compensable in the maximum amount of:
$0
Maximum Task Order Compensation (sum of Parts 1 through 3): $55,200
DocuSign Envelope ID: 7EDCB390-01DE-446E-B8F9-7AE0DCA1A3C7 □ [8l [8l □
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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
25-1258 Agenda Date: 1/28/2025
REPORT TO CITY COUNCIL
SUBJECT
Action on Award of Purchase Order to STOMMEL, INC., dba LEHR for Panasonic Mobile Data Computers for Police and Fire Vehicles
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
Mobile data computers (MDCs) installed in the City’s police patrol vehicles are a vital piece of equipment for officers, providing officer safety and efficiency in the field. These MDCs enable patrol officers to access critical information relating to their safety, calls for service and contacts, report writing, and data from national, state, and regional law enforcement databases. Industry best practices recommend replacing MDCs every three to five years to maintain reliability and performance.
The current Panasonic MDCs installed in police vehicles have proven reliable with a low failure rate.
However, the current Panasonic MDCs, along with the modems and antennas used by both the Police and Fire Departments, are aging and lack 5G capability. This presents risks such as lack of warranty coverage and increased cost for support and maintenance. Based on these factors, the Information Technology Department (ITD) has recommended replacing the MDCs, modems, keyboards, docks, and antennae.
DISCUSSION
Staff recommends issuing Purchase Orders (POs) to STOMMEL, INC., dba LEHR for the purchase of Panasonic Mobile Data Computers and related peripherals under the authority of City Code Section 2.105.270(c) which states that the City may, without observing formal bidding requirements, “contract with a vendor under a contract awarded using preestablished cooperative purchasing agreements, when such agreement resulted from a competitive bid process that meets or exceeds the City’s competitive bid process.”
The Finance Department’s Purchasing Division Manager has determined that the cooperative purchasing agreement with STOMMEL, INC., dba LEHR, established through a competitive Request for Proposals process conducted by NASPO ValuePoint (with the State of Minnesota as the lead public agency), meets or exceeds the City’s competitive bidding process.
As a result, staff is seeking City Council authorization to issue POs to STOMMEL, INC., dba LEHR under NASPO ValuePoint Master Agreement 23019. This agreement is effective from July 19, 2023 to June 30, 2025, with the option to extend for up to an additional 36 months through June 30, 2028.
The Police Department, Fire Department, ITD, and the Public Work’s Fleet Management Division will City of Santa Clara Printed on 1/24/2025Page 1 of 3
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25-1258 Agenda Date: 1/28/2025
coordinate the installation of the new hardware and software. This effort will be synchronized with the installation of the new P25 radios to minimize disruptions to public safety units and reduce the need for Automotive Services Division staff to access the vehicles multiple times.
ENVIRONMENTAL REVIEW
This action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(4) in that it is a fiscal activity that does not involve any commitment to any specific project which may result in a potential significant impact on the environment.
FISCAL IMPACT
The equipment purchase is $661,298, factoring in a 5% contingency of $33,065 and sales tax of $60,311, the purchase totals $754,674. In addition, costs to install and program the hardware and software are estimated at $129,760, bringing the total project costs to $884,434.
On December 12, 2023, the Police Department received City Council approval to allocate $379,136 in Citizen’s Option for Public Safety (COPS) funding for the replacement of the MDCs. As approved as part of the FY 2024/25 and FY 2025/26 Adopted Capital Improvement Program budget, an additional $515,804 was appropriated from the General Fund Capital Projects Reserve for this project, bringing the total available funding to $894,940 for Police Department MDC’s, Police and Fire Department 4G Modems and Antennas. It is anticipated that any savings from the MDC replacement project will be returned to the General Fund Capital Project Reserve.
COORDINATION
This report has been coordinated with the Finance Department, Information Technology Department, as well as the City Attorney’s Office.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the
public information desk at any City of Santa Clara public library.
RECOMMENDATION
1. Authorize the City Manager, or designee, to execute a purchase order with LEHR for Panasonic Toughbooks and Components with a total amount not-to-exceed $754,674, under NASPO ValuePoint Master Agreement 23019, in a final form approved by the City Attorney; and
2. Authorize the City Manager, or designee, to execute purchase orders with LEHR through June 30, 2028, under NASPO ValuePoint Master Agreement 23019, for additional purchases or replacement of MDCs or components as-needed, subject to the appropriation of funds and in a final form approved by the City Attorney.
ATTACHMENT
1. NASPO ValuePoint Master Agreement 23019
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25-1258 Agenda Date: 1/28/2025
Reviewed by: Cory Morgan, Chief of Police
Approved by: Jovan Grogan, City Manager
City of Santa Clara Printed on 1/24/2025Page 3 of 3
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NASPO ValuePoint Master Agreement No.: 23019
This Contract is between the State of Minnesota, acting through its Commissioner of Administration (“Lead State”) and Panasonic Connect North America, Division of Panasonic Corporation of North America, whose designated business address is Two Riverfront Plaza, 9th Floor, Newark, NJ 07102-5490 (“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. That Contractor changed its name from Panasonic Corporation of North America (PNA), doing business as Panasonic System Solutions Company of North America (PSSNA) to Panasonic Connect North America, Division of Panasonic Corporation of North America during negotiations; and
5. 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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C NASPO
Value Point™
MI NH 8SOTA
1. a.
b.
C.
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.
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 1, Personal Computer Devices – Windows Operating Systems Band 2, Personal Computer Devices - Non-Windows Operating Systems
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 CONFI GURATION
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
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
2. a.
b.
C.
3. 4.
5. a.
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.
Software must be pre-loaded or provided as an electronic link with the initial purchase of equipment, except for the exceptions allowed under Paragraph 5.a.4.
Software such as middleware which is not always installed on the equipment, but is related to storage and server equipment (Band 3) purchased, is allowed and may be procured after the initial purchase of equipment.
General Services
Services must be related to the procurement of equipment.
Service limits will be addressed by each State.
Wireless phone and internet service is not allowed.
Managed Print Services are not allowed.
Cloud Services
Cloud Services are restricted to Services that function as operating systems and software needed to support or configure hardware purchased under the scope of the contract and is subject to equipment configuration limits.
Any Cloud Service purchased must be related to the procurement of equipment.
Third-Party Products
Third-Party Products can be offered only in the Bands they have been awarded. All third-party products must meet the definition(s) of the Band(s) in which they are being offered.
Products manufactured by another Contractor holding a Minnesota NASPO ValuePoint Master Agreement for Computer Equipment cannot be offered unless approved by the Lead State.
Additional Product/Services
Hardware and software required to solely support wide area network (WAN) operation and management are not allowed.
Lease/Rentals of equipment may be allowed and will be addressed by each State.
Cellular Phone Equipment is not allowed.
EPEAT Bronze requirement may be waived, on a State case-by-case basis, if approved by the State’s Chief Procurement Officer. EPEAT Bronze requirement does not currently apply to storage.
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C b.
C.
d.
e.
1. 2.
3. 4.
1. 2.
3. 4.
1. 2.
1. 2.
1. 2.
3. 4.
Authorized Representative
Master Agreement Administrator. The Master Agreement Administrator designated by NASPO ValuePoint and the State of Minnesota, Department of Administration is Elizabeth Randa, Acquisition Management Specialist.
Elizabeth Randa, Acquisition Management Specialist
Department of Administration
Office of State Procurement
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
E-mail: [email protected]
Phone: 651.201.3122
Contractor’s Authorized Representative. The Contractor's Authorized Representative is Solomon Surles III, Government Contracts Manager.
Solomon Surles III, Government Contracts Manager
Panasonic Connect North America, Division of Panasonic Corporation of North America Two Riverfront Plaza, 9th Floor
Newark, NJ 07102-5490
Email: [email protected]
Phone: 775.895.2401
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.
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
6. a.
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:
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Richard Elliot
7/19/2023SVP Finance and Business Operations
7/19/2023
Elizabeth M. Randa
Acquisition Management Specialist
IT Acquisitions Supervisor 7/19/2023
Andy Doran
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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_____ 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 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.
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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.
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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, pre- implementation 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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C bb.
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in 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, DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C II.
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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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C b.
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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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
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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;
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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 via standard shipping as follows:
For large or custom builds, shipping is 30-45 days after receipt of order (ARO) For in-stock products, shipping is 3-5 days ARO. If deployment services are required, shipping is 3-5 days after such services are rendered.
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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C g.
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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.
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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C b.
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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 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.
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Payment.
Payment after Acceptance is normally made within 30 days following the date the entire order is delivered or the date a correct invoice is received, whichever is later. After 45 days the Contractor may assess overdue account charges up to a maximum rate of one percent per month on the outstanding balance, unless a different late payment amount is specified in a Participating Addendum, Order, or otherwise prescribed by applicable law.
Payments will be remitted by mail or electronically. Payments may be made via a State or political subdivision “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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
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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:
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 statutory State Workers Compensation or Employers Liability Insurance requirements.
Contractor shall pay premiums on all insurance policies. Should any of the described policies be cancelled before the expiration date thereof or not renewed, Contractor will provide to a Participating Entity notice within five (5) business days.
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 Commercial General 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 one- quarter 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.
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NASPO ValuePoint Reports
Sales Data Reporting. In accordance with this section, Contractor shall report to NASPO ValuePoint all Orders under this Master Agreement for which Contractor has invoiced the ordering entity or individual, including Orders invoiced to Participating Entity or Purchasing Entity employees for personal use if such use is permitted by this Master Agreement and the 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.
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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.
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 Section 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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C b.
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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.
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 third-party claims or causes of action, including reasonable attorney’s fees, to the extent arising from Contractor’s intentional, willful, or grossly 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 third-party 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, reasonable 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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C b.
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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 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, transfer with any sale of tangible media or Product, perform, and display the Intellectual Property, and its derivatives, used or delivered under this Master Agreement, but not created under it (“Pre-existing 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.
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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.
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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
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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 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, restrictions on the movement of people or goods imposed by public health order or by a declared state of emergency, or war, which are beyond that party’s reasonable control. The Lead State may terminate this Master Agreement upon thirty (30) days’ notice to Contractor for an opportunity to remediate or minimize the impact of such event on Contractor’s performance, 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
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Any certification, representation or warranty by Contractor in response to the RFP or in this Master Agreement that proves to be untrue or materially misleading; or Institution of proceedings under any bankruptcy, insolvency, court-ordered reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within thirty (30) calendar days after the institution or occurrence thereof; or
Any default specified in another section of this Master Agreement.
Upon the occurrence of an event of default, except for material breach, the Lead State shall issue a written notice of default, identifying the nature of the default, and providing a period of 30 calendar days in which Contractor shall have an opportunity to cure the default. The Lead State shall not be required to provide advance written notice or a cure period and may immediately terminate this Master Agreement in whole or in part if the Lead State, in its sole discretion, determines that it is reasonably necessary to preserve public safety or prevent 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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
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requirement, or of any other term or requirement under this Master Agreement, Participating Addendum, or Purchase Order.
Notices.
If one party is required to give notice to the other under the Master Agreement, such notice shall be in writing and shall be effective upon receipt. Delivery may be by certified United States mail or by hand, in which case a signed receipt shall be obtained. A facsimile or electronic transmission shall constitute sufficient notice, provided the receipt of the transmission is confirmed by the receiving party. Either party must notify the other of a change in address for notification purposes. All notices to the Lead State shall be addressed as follows:
Elizabeth Randa, Acquisition Management Specialist
112 Administration Bldg.
50 Sherburne Avenue
St. Paul, MN 55155
[email protected]
No Waiver of Sovereign Immunity.
In no event shall this Master Agreement, any Participating Addendum or any contract or any Purchase Order issued thereunder, or any act of the Lead State, a Participating Entity, or a Purchasing Entity be a waiver of any form of defense 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.
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Exhibit B: Minnesota Terms and Conditions
Change Requests.
The Lead State reserves the right to request, during the term of the Master Agreement, changes to the products offered within the Band(s). Products introduced during the term of the Master Agreement shall go through a formal review process. The process for updating the products offered within a Band is outlined in Paragraph 2 of Exhibit B. The Contractor shall evaluate and recommend products for which agencies have an expressed need. The Lead State shall require the Contractor to provide a summary of its research of those products being recommended for inclusion in the Master Agreement as well as defining how adding the product will enhance the Master Agreement. The Lead State may request that products, other than those recommended, are added to the Master Agreement.
In the event that the Lead State desires to add new products and services that are not included in the original Master Agreement, the Lead State requires that independent manufacturers and resellers cooperate with the already 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.
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d) Pursuant to the audit provisions of the Master Agreement, upon the request of NASPO ValuePoint, the Lead State, or a Participating Entity, Contractor must provide an historic version of any Baseline Price List.
Purchase Orders.
There will be no minimum order requirements or charges to process an individual purchase order. The Participating Addendum number and the PO number must appear on all documents (e.g., invoices, packing slips, etc.). The Ordering 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.
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Human Rights/Affirmative Action.
The Lead State requires affirmative action compliance by its Contractors in accordance with Minn. Stat. § 363A.36 and Minn. R. 5000.3400 to 5000.3600.
Covered Contracts and Contractors. If the Contract exceeds $100,000 and the Contractor employed more than 40 full-time employees on a single working day during the previous 12 months in Minnesota or in the state where it has its principal place of business, then the Contractor must comply with the requirements of Minn. Stat. § 363A.36 and Minn. R. 5000.3400-5000.3600.
Minn. R. 5000.3400-5000.3600 implement Minn. Stat. § 363A.36. These rules include, but are not limited to, criteria for contents, approval, and implementation of affirmative action plans; procedures for issuing certificates of 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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
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the commissioner, refusal by the commissioner to approve subsequent plans, and termination of all or part of the Contract by the commissioner or the State.
Certification. The Contractor hereby certifies that it is in compliance with the requirements of Minn. Stat. § 363A.36, subd. 1 and Minn. R. 5000.3400-5000.3600 and is aware of the consequences for noncompliance. It is agreed between the parties that Minn. Stat. 363.36 and Minn. R. 5000.3400 to 5000.3600 are incorporated into any contract between these parties based upon this specification or any modification of it. A copy of Minn. Stat. § 363A.36 and Minn. R. 5000.3400 to 5000.3600 are available upon request from the contracting agency.
Equal Pay Certification.
If required by Minn. Stat. §363A.44, the Contractor must have a current Equal Pay Certificate prior to Contract execution. If Contractor's Equal Pay Certificate expires during the term of this Contract, Contractor must promptly re- apply 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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C e.
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develop functionality which supports accessibility. If any issues arise due to nonconformance with the above-mentioned accessibility Standards, the Contractor agrees to provide alternative solutions upon request at no additional charge to the State.
When updates or upgrades are made to the products or services available through this Contract, the Contractor agrees 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 third-party 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.
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Organizational Conflicts of Interest.
An organizational conflict of interest exists when, because of existing or planned activities or because of relationships with other persons:
the Contractor is unable or potentially unable to render impartial assistance or advice to the State; the 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.
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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 DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
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Government Data Practices Act (and where applicable, the Rules of Public Access to Records of the Judicial Branch), including legal fees and disbursements paid or incurred to enforce this provision of the Master Agreement. In the event that the Contractor subcontracts any or all of the work to be performed under the Master Agreement, the Contractor shall retain responsibility under the terms of this article for such work.
Survivability.
Certain rights and duties of the Lead State and Contractor will survive the expiration or cancellation of the RFP and resulting Master Agreement. These rights and duties include but are not limited to paragraphs: Indemnification; Limitations of Liability; State Audits; Government Data Practices; Governing Law and Venue; Publicity; and Administrative Fees.
Severability.
If any provision of the Master Agreement, including items incorporated by reference, is found to be illegal, unenforceable, or void, then both the Lead State and the Contractor shall be relieved of all obligations arising under such provisions. If the remainder of the Master Agreement is capable of performance it shall not be affected by such declaration or finding and shall be fully performed.
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Exhibit C: Requirements
Contractor Verification.
Contractor must be a manufacturer of a Product in 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 Specifications:
• Designated Baseline Price List(s) (e.g., MSRP, List, or Education) • Product and Service Schedule (PSS)
• Product specifications, pricing, and configuration aids for the major product categories proposed that can be used to obtain an on-line quote,
• Service options and service agreements available on the contract. Please refer to Paragraph 5. • Contact information for order placement, service concerns (warranty and maintenance), problem reporting, and billing concerns
• Sales representatives for participating entities
• Links to environmental certification, including but not limited to take-back/recycling programs, EPEAT, Energy Star, etc.
Desirable Specifications:
• Purchase order tracking
• Information on accessibility and accessible products
• Signed Master Agreement
• Online ordering capability with the ability to remember multiple ship to locations (if applicable to product) • List of approved partners, if applicable
Within 30 calendar days of the notice of intent to award a Master Agreement, Contractor must provide a sample URL of the Master Agreement webpage to the Lead State for review and approval. The Lead State will review and determine acceptability of the website format and data. If the information is determined to be unacceptable or incorrect, the Contractor will have 15 calendar days to provide revisions to the Lead State. After the Lead State approves the website, Contractor may not make material changes to the website without notifying the Lead State through the ARF process and receiving written approval of the changes.
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Environmental Certifications.
Contractor must include environmental or supply chain responsibility certifications and registrations for products sold through this Contract on their website. Contractor must provide these certifications and registrations for specific products to Participating Entities upon request.
EPEAT Registration.
Contractor agrees that applicable products offered that have EPEAT Standards provided under the Master Agreement must have achieved a minimum EPEAT Bronze registration. This requirement does not apply to Band 3.
Contractor may propose the addition of a product that has not yet achieved a minimum EPEAT Bronze registration. The Lead State, in its sole discretion may require Contractor to provide the following documentation to support the addition of the proposed product:
• 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 utilizing partners.
Contractor must provide a Participating Entity a copy of its plan for partner utilization upon request. Contractor must make available a list of approved partners for each Participating Entity. Participating Entities must approve specific Partners as outlined within the relevant Participating Addendum, and only partners approved by the Participating Entity may be deployed. The Participating Entity will define the process to add and remove partners in their Participating Addendum.
2019 National Defense Authorization Act, Section 889(f)(3).
Under the 2019 National Defense Authorization Act, Section 889(f)(3), the US military is prohibited from purchasing video surveillance and telecommunications equipment from certain Chinese-owned technology firms. While US state are DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
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not subject to this act, there is increasing concern for the security of state data. Contractor certifies for the term of this Master Agreement that it is not subject to laws, rules, or policies potentially requiring disclosure of, or provision of access to, customer data to foreign governments or entities controlled by foreign governments, and that Contractor's Products do not contain, include, or utilize components or services supplied by any entity subject to the same.
Contractor also certifies that its Products do not contain, include, or utilize any covered technology prohibited under Section 889 of the National Defense Authorization Act, as amended.
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C
Exhibit D: Pricing Schedule
Attached and incorporated into this Master Agreement as Exhibit D is the Price Schedule.
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Exhibit D: Price Schedule
NASPO ValuePoint Computer Equipment (2023-2028)
CONTROL SET
Master Agreement: 23019
Contractor Name: Panasonic Connect North America, Division of Panasonic Corporation of North America Awarded Bands:
X Band 1: Personal Computing Devices (Windows)
X Band 2: Personal Computing Devices (Non-Windows)
Band 3: Servers and Storage
Band Category Code Category Description Discount off
Baseline List
1 1B Band 1 - Minimum Discount 0.0%
1 1B-1 Fully Rugged TOUGHBOOK Computer 16.0%
1 1B-2 Semi-Rugged TOUGHBOOK Computer 13.0%
1 1B-3 TOUGHBOOK Tablet 12.0%
1 1B-4 TOUGHBOOK Handheld 9.0%
1 1B-5 Accessory 11.0%
1 1B-6 Peripheral: Professional Video 5.0%
1 1B-7 Peripheral: Professional Audio 10.0%
1 1B-8 Peripheral: Display 22.0%
1 1B-9 Peripheral: Display Accessory 10.0%
1 1B-10 Peripheral: Projector (Large Venue, Installation) 48.0% 1 1B-11 Peripheral: Projector (Portable, Short Throw, Space Player) 38.0% 1 1T Band 1 - Third Party Product Minimum Discount 2.0% 1 1T-1 Absolute Software/Licenses 0.0%
1 1T-2 Agora Peripherals and Related Accessories 11.0%
1 1T-3 Airgain Peripherals and Related Accessories 11.0% 1 1T-4 Brother Peripherals and Related Accessories 11.0% 1 1T-5 CradlePoint Peripherals and Related Accessories 11.0% 1 1T-6 Crossmatch Software/Licenses 0.0%
1 1T-7 Gamber-Johnson Peripherals and Related Accessories 11.0% 1 1T-8 Havis Peripherals and Related Accessories 11.0%
1 1T-9 Ikey Peripherals and Related Accessories 11.0%
1 1T-10 Lind Peripherals and Related Accessories 11.0%
1 1T-11 Nuance Peripherals/Accessories 11.0%
1 1T-12 Nuance Software/Licenses 0.0%
1 1T-13 Panasonic i-Pro Sensing Solution Peripherals and Related Accessori 11.0% 2 2B Band 2 - Minimum Discount 0.0%
2 2B-1 TOUGHBOOK Tablet 12.0%
2 2B-2 TOUGHBOOK Handheld 9.0%
2 2B-3 Accessory 11.0%
2 2B-4 Peripheral: Professional Video 5.0%
2 2B-5 Peripheral: Professional Audio 10.0%
2 2B-6 Peripheral: Display 22.0%
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Exhibit D: Price Schedule
Band Category Code Category Description Discount off
Baseline List
2 2B-7 Peripheral: Display Accessory 10.0%
2 2B-8 Peripheral: Projector (Large Venue, Installation) 48.0% 2 2B-9 Peripheral: Projector (Portable, Short Throw, Space Player) 38.0% 2 2T Band 2 - Third Party Product Minimum Discount 2.0% 2 2T-1 Absolute Software/Licenses 0.0%
2 2T-2 Agora Peripherals and Related Accessories 11.0%
2 2T-3 Airgain Peripherals and Related Accessories 11.0% 2 2T-4 Brother Peripherals and Related Accessories 11.0% 2 2T-5 CradlePoint Peripherals and Related Accessories 11.0% 2 2T-6 Crossmatch Software/Licenses 0.0%
2 2T-7 Gamber-Johnson Peripherals and Related Accessories 11.0% 2 2T-8 Havis Peripherals and Related Accessories 11.0%
2 2T-9 Ikey Peripherals and Related Accessories 11.0%
2 2T-10 Lind Peripherals and Related Accessories 11.0%
2 2T-11 Nuance Peripherals/Accessories 11.0%
2 2T-12 Nuance Software/Licenses 0.0%
2 2T-13 Panasonic i-Pro Sensing Solution Peripherals and Related Accessori 11.0% S Installation 0.0%
S Extended Warranty 0.0%
S Training 0.0%
S Complimentary software 0.0%
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Exhibit D: Price Schedule Discount Structure
Master Agreement: 23019
Contractor Name: Panasonic Connect North America, Division of Panasonic Corporation of North America Baseline Price List: Posted on Contractor's dedicated NASPO ValuePoint website Band 1: Personal Computer Equipment (Windows OS)
Band Category Code Category Description Discount off
Baseline List
1 1B Band 1 - Minimum Discount 0.0%
1 1B-1 Fully Rugged TOUGHBOOK Computer 16.0%
1 1B-2 Semi-Rugged TOUGHBOOK Computer 13.0%
1 1B-3 TOUGHBOOK Tablet 12.0%
1 1B-4 TOUGHBOOK Handheld 9.0%
1 1B-5 Accessory 11.0%
1 1B-6 Peripheral: Professional Video 5.0%
1 1B-7 Peripheral: Professional Audio 10.0%
1 1B-8 Peripheral: Display 22.0%
1 1B-9 Peripheral: Display Accessory 10.0%
1 1B-10 Peripheral: Projector (Large Venue, Installation) 48.0% 1 1B-11 Peripheral: Projector (Portable, Short Throw, Space Player) 38.0% 1 1T Band 1 - Third Party Product Minimum Discount 2.0% 1 1T-1 Absolute Software/Licenses 0.0%
1 1T-2 Agora Peripherals and Related Accessories 11.0%
1 1T-3 Airgain Peripherals and Related Accessories 11.0% 1 1T-4 Brother Peripherals and Related Accessories 11.0% 1 1T-5 CradlePoint Peripherals and Related Accessories 11.0% 1 1T-6 Crossmatch Software/Licenses 0.0%
1 1T-7 Gamber-Johnson Peripherals and Related Accessories 11.0% 1 1T-8 Havis Peripherals and Related Accessories 11.0%
1 1T-9 Ikey Peripherals and Related Accessories 11.0%
1 1T-10 Lind Peripherals and Related Accessories 11.0%
1 1T-11 Nuance Peripherals/Accessories 11.0%
1 1T-12 Nuance Software/Licenses 0.0%
1 1T-13 Panasonic i-Pro Sensing Solution Peripherals and Related Accessorie 11.0% Band 2: Personal Computer Equipment (Non-Windows OS)
Band Category Code Category Description Discount off
Baseline List
2 2B Band 2 - Minimum Discount 0.0%
2 2B-1 TOUGHBOOK Tablet 12.0%
2 2B-2 TOUGHBOOK Handheld 9.0%
2 2B-3 Accessory 11.0%
2 2B-4 Peripheral: Professional Video 5.0%
2 2B-5 Peripheral: Professional Audio 10.0%
2 2B-6 Peripheral: Display 22.0%
2 2B-7 Peripheral: Display Accessory 10.0%
2 2B-8 Peripheral: Projector (Large Venue, Installation) 48.0% 2 2B-9 Peripheral: Projector (Portable, Short Throw, Space Player) 38.0% 2 2T Band 2 - Third Party Product Minimum Discount 2.0% DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Exhibit D: Price Schedule Discount Structure
Band 2: Personal Computer Equipment (Non-Windows OS)
Band Category Code Category Description Discount off
Baseline List
2 2T-1 Absolute Software/Licenses 0.0%
2 2T-2 Agora Peripherals and Related Accessories 11.0%
2 2T-3 Airgain Peripherals and Related Accessories 11.0% 2 2T-4 Brother Peripherals and Related Accessories 11.0% 2 2T-5 CradlePoint Peripherals and Related Accessories 11.0% 2 2T-6 Crossmatch Software/Licenses 0.0%
2 2T-7 Gamber-Johnson Peripherals and Related Accessories 11.0% 2 2T-8 Havis Peripherals and Related Accessories 11.0%
2 2T-9 Ikey Peripherals and Related Accessories 11.0%
2 2T-10 Lind Peripherals and Related Accessories 11.0%
2 2T-11 Nuance Peripherals/Accessories 11.0%
2 2T-12 Nuance Software/Licenses 0.0%
2 2T-13 Panasonic i-Pro Sensing Solution Peripherals and Related Accessorie 11.0% DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Exhibit D: Price Schedule Volume-Based Discounts
Master Agreement: 23019
Contractor Name:
All Awarded Bands
1. Per Transaction Multiple Unit Discount(s)
2. Cumulative Discount(s)
3. Other Discount(s)
Additional discount(s) available.
Panasonic Connect North America, Division of Panasonic Corporation of North America Panasonic offers promotional pricing in which deeper discounts—an additional percentage off contract pricing—are available on specified products based on inventory and sales. Such promotional pricing is offered for a defined period (e.g., quarterly, defined as approximately 3 months).
Panasonic also provides piggyback pricing to local entities within States that have signed a NASPO Participating Addendum.
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.
Panasonic's volume discount applies to fully ruggedized TOUGHBOOK computers and tablets. It is calculated not on purchase price but on the quantity of the same model of TOUGHBOOK equipment purchased by each specific end-user customer per transaction.
An end-user customer purchasing 50 to 99 units of the same TOUGHBOOK model will receive a 2-percent discount off contract pricing.
An end-user customer purchasing 100 units or more will receive a 4-percent discount off contract pricing.
Cumulative discounts are not available at this time; however, in the instance that a State defines standardization of a Panasonic equipment model for use across the State, and multiple State entities or local entities within the State subsequently purchase the equipment model per State standardization, Panasonic may work with the State to provide additional discounts to the end-user purchasers.
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Exhibit D: Price Schedule Services
Master Agreement: 23019
Contractor Name: Panasonic Connect North America, Division of Panasonic Corporation of North America Travel for Services will be negotiated with each Participating Entity in the Participating Addendum.
All Awarded Bands
Category Code Description of Service Percent Discount
S Installation 0.0%
S Extended Warranty 0.0%
S Training 0.0%
S Complimentary software 0.0%
Each Purchasing Entity will determine if and how services will be offered in the Participating Addendum.
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Exhibit D: Price Schedule Lease Rates
Master Agreement: 23019
Contractor Name: Panasonic Connect North America, Division of Panasonic Corporation of North America All Awarded Bands
Optional: Lease Rates
0% Financing
Short-term rental available
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C Exhibit D: Price Schedule Prompt Payment Discount
Master Agreement: 23019
Contractor Name: Panasonic Connect North America, Division of Panasonic Corporation of North America in 30
in 15, Net 30
in 10, Net 30
XN e t 30
X Other (specify): Pansonic sales are indirect, executed through its authorized reseller partners; therefore, prompt payment discounts do not apply to Panasonic. However, reseller partners may individually provide this discount to the end‐user customer.
All Awarded Bands
DocuSign Envelope ID: F95706BF-7282-4AB8-B0D8-6298E823225C City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
25-1019 Agenda Date: 1/28/2025
REPORT TO COUNCIL
SUBJECT
Authorize the City Manager to (1) Issue Purchase Orders to Atlas Copco Rental for the Rental of an Air Compressor at the Donald Von Raesfeld Power Plant and (2) Execute Amendment No. 1 to the Agreement for Services with Gavin D. Yates Doing Business as Northwest Industrial Engine & Compressor Co., to Provide Gas and Air Compressor Preventative Maintenance Services, Both to be Funded by Silicon Valley Power
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
The City of Santa Clara’s Electric Department, Silicon Valley Power (SVP), operates two power plants in Santa Clara, the Donald Von Raesfeld Power Plant (DVR) and the Gianera Generating Station (Gianera), as well as other power generating assets. These facilities rely on air compressors to supply clean, dry air that is essential for controlling critical equipment, including turbines, pumps, and pressure vessels.
At DVR, two air compressors are integral to ensure optimal operation. In August 2023, one of these air compressors failed. To address this urgent issue, staff secured a rental air compressor to maintain operations. SVP is now seeking City Council authorization for actions necessary to maintain operational continuity, including securing services and equipment, until a new air compressor can be procured and installed.
DISCUSSION
Authorization to Issue Purchase Orders to Atlas Copco Rental Following the failure of one of the air compressors at DVR in August 2023, SVP has been renting an air compressor from Atlas Copco Rental (Atlas Copco), the original equipment manufacturer (OEM) for DVR’s compressors. Atlas Copco is the sole vendor offering trailer-mounted air compressors for rental. This rented unit is critical to ensuring redundancy for DVR’s instrument air systems and maintaining uninterrupted operations. The current monthly rental cost is $15,000 for this unit.
To date, SVP has spent $195,000 on rental costs which is within the City Manager’s approval authority of $250,000. To allow for sufficient time to complete the solicitation and installation process for a new air compressor, staff requests City Council authorization for the City Manager to issue purchase orders to Atlas Copco in an amount not to exceed $600,000, which includes rental expenses previously incurred ($195,000 through September 2024), projected rental costs for an additional 24 months ($360,000), and additional contingency for potential rent increases or City of Santa Clara Printed on 1/24/2025Page 1 of 3
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25-1019 Agenda Date: 1/28/2025
unanticipated expenses ($45,000). This authorization is anticipated to cover rental expenses through September 30, 2026.
Amendment No. 1 to the Agreement for Services with Gavin D. Yates Doing Business as Northwest Industrial Engine & Compressor Co. (Northwest)
In June 2023, the City entered into an agreement with Gavin D. Yates Doing Business as Northwest Industrial Engine & Compressor Co. (Northwest) for gas and air compressor preventative maintenance services, testing, and repairs. The agreement resulted from a formal Request for Proposal (RFP) conducted pursuant to City Code Section 2.105.140(c) and awarded based on “best value.” The RFP was published on the City’s e-procurement system and viewed by 23 companies.
Three companies demonstrated interest, but only one proposal was received from Northwest.
The agreement with Northwest has a current maximum compensation not to exceed $150,000, which is within the City Manager’s approval authority of $250,000 and has an initial term of five years ending on June 30, 2028, with a one-year option to extend the term through June 30, 2029.
Given the anticipated increased demand for these services primarily associated with aging equipment, staff is now seeking approval to execute Amendment No. 1 to increase the maximum compensation by $850,000, for a revised maximum compensation of $1,000,000. Based on the current spending trajectory, the requested funds will be sufficient for the term of the agreement plus the 1-year option.
The proposed maximum compensation of $1,000,000 under Amendment No. 1 of this agreement is based on past usage of the services and known projects. Future requirements for the services may increase due to unanticipated repairs or regulatory changes. In addition, the solicitation included an optional one-year extension of term.
ENVIRONMENTAL REVIEW
Staff recommends that the City Council determine that the proposed actions are exempt from the California Environmental Quality Act (“CEQA”) pursuant to sections 15301 and 15302 of Title 14 of the California Code of Regulations as the proposed actions involve (1) the operation, maintenance, and repair of existing mechanical equipment; and (2) the replacement of utility equipment with negligible or no expansion of capacity.
FISCAL IMPACT
Sufficient funds are available in the FY 2024/25 Operating Budget in the Electric Utility Operating fund and may be included in capital projects budget where appropriate. Budget for future years will be requested through the biennial process.
COORDINATION
This report has been coordinated with the Finance Department and the City Attorney’s Office.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City City of Santa Clara Printed on 1/24/2025Page 2 of 3
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25-1019 Agenda Date: 1/28/2025
Clerk’s Office at (408) 615-2220, [email protected] <mailto:[email protected]> or at public information desk at any City of Santa Clara public library.
RECOMMENDATION
1. Determine that the proposed actions are exempt from CEQA pursuant to Sections 15301 (Existing Facilities) and 15302 (Replacement or Reconstruction) of Title 14 of the California Code of Regulations;
2. Authorize the City Manager or designee to issue Purchase Orders to Atlas Copco Rental for the rental of an air compressor at the Donald Von Raesfeld Power Plant in an amount not to exceed $600,000, until approximately September 30, 2026, to be funded by Silicon Valley Power;
3. Authorize the City Manager or designee to execute Amendment No. 1 to the Agreement for Services with Gavin D. Yates Doing Business as Northwest Industrial Engine & Compressor Co., for gas and air compressor preventative maintenance for a five-year term ending on June 30, 2028, to increase the maximum compensation of $150,000 by $850,000 for a revised maximum compensation amount of $1,000,000; to be funded by the SVP Operating or Capital Fund as applicable, subject to the review and approval as to form by the City Attorney; and
4. Authorize the City Manager or designee to negotiate and execute further amendments to the agreement with Gavin D. Yates Doing Business as Northwest Industrial Engine & Compressor Co to (a) add or delete services consistent with the scope of services, (b) adjust future rates to account for reasonable changes in labor and material rates, (c) exercise a one-year option to extend the term through June 30, 2029, and (d) increase the compensation by up to $500,000 for a total maximum compensation of $1,500,000 over a six-year period, subject to the appropriation of funds and the review and approval as to form by the City Attorney, to be funded by the SVP Operating or Capital Fund as applicable.
Reviewed by: Manuel Pineda, Chief Electric Utility Officer Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Agreement with Gavin D. Yates doing business as Northwest Industrial Engine & Compressor Co.
2. Proposed Amendment No. 1 with Gavin D. Yates doing business as Northwest Industrial Engine & Compressor Co.
City of Santa Clara Printed on 1/24/2025Page 3 of 3
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BLUE ROUTE SHEET - CITY MANAGER REVIEW/APPROVAL REQUIRED Originating Date Ahcomb
Department (OD): Electric Subrnittetl: 6/14/23 Return To: Hardwick Phone Ext.: 't-""J 3 i OD: FILL OUT SECTIONS #1-#7 (FRONT) AND #1-#4 (BACK) BEFORE ROUTING (1) Document: Northwest Industrial Engine & Compressor Co. -Agreement for Services [NAME OF DOCUMENT AND CONTRACTOR/OTHER PARTY]
(2) Indicate signature authority :
~ Service Agreements with a total taxable value of$250,000 or less (exclusive of taxes and shipping) over a five-year period per Ordinance 2050 (CC Action -August 30, 2022)
□ Miscellaneous Agreements including those that allow the use of the City name; rental agreements for City-owned property; licensing or conditional use agreements; confidentiality agreements; nondisclosure agreements; and partnership, cost sharing, in-kind and service agreements with other public or private entities per Resolution 6603 (CC Action - July 13, 1999)
□ Certificate of Acceptance for Designated Property Interests per Resolution 5600 (CC Action - May 28, 1991) □ Routine Police Agreements including the use of City facilities; off-duty officers; special events; hold harmless and indemnification agreements from third parties ; and releases of liability per Resolution 6000 (CC Action - April 4, 1995) □ Other:
(3) Cost impact: $150,000 -------------------------------------- ( 4) Was this service budgeted for this fiscal year?
~ Yes
(5)
(6)
(7)
(8)
(9)
(10)
□ No. If no, please describe below how the department will fund this unbudgeted service and consult with department's assigned budget analyst to ensure that there is sufficient funding.
Is insurance compliant?
~ Yes, per attached EBIX printout. (Disregard #8)
□ No, this agreement requires Risk Management review. (Complete #8) □ NIA (i.e. Hold Harmless Agreements, Grant Funding, Indemnification language in lieu of insurance, etc.) (Disregard #8) Is Notary needed?
□ Yes (Please tag Notary page)
□ No
Department head originating agreement: M@uet :Pineda
Manuel Pineda p un U 1202316:31 !:!!!J
[SIGNATURE]
RISK MANAGEMENT
Please describe why contract does not require EBIX approval: __ Approved: Date:
CITY ATTORN
~AGER]
G/z_~/D Approved as to form: Date:
(CITY ATTORNEY/AUTHOR1TY COUNSEL]
Ctro J-:).dn \ Assignment Number:
Reviewing Attorney's Initials: DB
CITY CLERK'S OFFICE
Attached: ------'l~ ___ original(s) ______ copy(ies)
✓
J
Transmit the attached original / copy to contractor
Fully executed original on file in City Clerk's Office
Date Processed by Clerk's Office: __ G_._/ _2.._l _,{,_l-_ >_~S_J)=-- - Page I of2
(1)
CITY MANAGER REQUIRED INFORMATION
Scope of Services: [BRIEFLY SUMMARIZE THE SCOPE OF WORK/PURPOSE OF DOCUMENT] greement for Services with Northwest Industrial Engine & Compressor Co. for gas and air compressor preventative maintenance and as needed services. Will need to go to City Council to increase the amount of the Agreement in the ear future. RFP# 21-22-56
(2) Term of Agreement: July I, 2023 - June 30, 2028; one-year option to extend through June 30, 2029. (3)
[START DATE AND END DATE OF THE AGREEMENT/DOCUMENT]
VENDOR SELECTION INFORMATION: (Please reference the Procurement Guide on the City's Intranet Site.) Indicate Procurement Process:
D Sole/Single Source (Please include justification memo with this form) D Purchase from other public agency or utilization of other public agency competitive process (Specify other agency competitive process or pre-negotiated contract, ifapplicable): __ □ Selection Process: Informal Request for Quotes with an estimated total taxable value greater than $15,000 and less than or equal to $100,000 (exclusive of taxes and shipping) over a five-year period, inclusive of any options to extend the agreement during the five-year period.
0 Selection Process: Info1mal Request for Quotes with an estimated total taxable value greater than $100,000 and less than or equal to $250,000 (exclusive of taxes and shipping) over a five-year period, inclusive of any options to extend the agreement during the five-year period.
1:8:l Selection Process : F01mal Request for Proposals (RFP)/Statement of Qualifications (SOQ), or Request for Bids (RFB) with an estimated total taxable value of greater than $250,000 (exclusive of taxes and shipping) over a five year period, inclusive of any options to extend the agreement during the five-year period . □ Other (Specify): __
□ This contract requires prevailing wage compliance and registration with Department of Industrial Relations . If this oox is checked, attach proof of DIR registration .
Vendor Outreach Process: □ Telephone D Email □ Bid Notification System D Other: __ Briefly summarize the number of bids received and the basis for recommending this vendor for contract award:
RFP Award - RFP No. 21-22-56
(4) HISTORY :
Has the department retained the same contractor for similar services in last 5 years? D No. Ifno, no further information required .
IX! Yes. If yes, please complete the following section .
Term of Agreement: July 1, 2022 - June 30, 2023, Purchase Orders Contract Amount: $97,200 -~------ ----- ------- ---------- --- Page2 of2
q I Search
I Insured Name
Northwest Industrial En_gin~ ~n~-Compres J
rn
Northwest Industrial. Engine And
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J-..1..t. Insured
Name:
Account Number:
Address :
Status :
Insured
Northwest Industrial Engine And
Compressor Company "-
S200004564
PO Box 737, Riverbank, CA,
95367
Com12liant with minor/ex12iring_
deficiencies _
[ Business Unit(s) ][ Insured History l[ Print Insured Info j Account Information
Account Number :
Do Not Call:
Address Information
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Insured :
Address 1:
Address 2:
City :
State :
S200004564
Exhibit C1 -
Service
Contract
<$50,000
Northwest
Industrial
Engine And
Compressor
Company
PO Box 737
Riverbank
CA
Address Updated :
Physical Address
I I
.....
Country:
Contract Information
Contract Number:
Contract Start Date:
Contract Effective Date:
Description of Services:
Contact Information
Contact Name:
Phone Number:
Fax Number:
Equipment
Repair
Sandy
Garcia
Contract End Date:
Contract Expiration Date:
Safety Form II:
Misc:
Alt Phone Numbe r:
E-Mail Address: sandy _garcia@nwiec .com
Approval Date:
Rush: Yes
Contract on File: No
Certificate Received: No
Indemnification Agreement: No
Tax Id:
--- -I
! This Account created by c65 on 07/13/2020.
L_ ---- - -·-· - - -- ---
EBIX Insurance No. S200004564
AGREEMENT FOR SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
GAVIN D. YATES
DOING BUSINESS AS
NORTHWEST INDUSTRIAL ENGINE & COMPRESSOR CO.
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation ("City") and Gavin D. Yates, doing business as Northwest Industrial Engine & Compressor Co., a California sole proprietorship ("Contractor"). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties."
RECITALS
A. City desires to secure the services ("Services") more fully described in this Agreement, at Exhibit A, entitled "Scope of Services";
B. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain Services and goods of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the terms and conditions under which such Services will be provided and paid for.
The Parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A - Scope of Services
Exhibit B - Schedule of Fees and Payment Provisions
Exhibit C - Insurance Requirements
Exhibit D - Labor Compliance Exhibit
Agreement with Northwest Industrial Engine & Compressor Co.
Rev. 07-01-18
Exhibit E - Sample Work Authorization Form
This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
A. Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on July 1, 2023, and terminate on June 30, 2028 ("Initial Term").
B. After the Initial Term, City reserves the right, at its sole discretion, to extend the term of this Agreement for one (1) additional year through June 30, 2029 ("Option Periods"). Such extension of term shall be authorized through an Amendment to this Agreement executed by the Parties. The Initial Term and Option Period shall collectively be referred to as "Term".
3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.
4. WARRANTY
In addition to those warranties contained in Exhibit A, Contractor expressly warrants that all Services and materials covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions applicable to this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate or defective Services or materials at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace Services or materials, City may make corrections or replace the Services or materials and charge Contractor for the cost incurred by City.
5. QUALIFICATIONS OF CONTRACTOR -STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor's representations regarding its skills and knowledge. Contractor shall perform such services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of Agreement with Northwest Industrial Engine & Compressor Co.
Rev. 07-01-18
California.
6. COMPENSATION AND PAYMENT
In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "SCHEDULE OF FEES AND PAYMENT PROVISIONS." The maximum compensation of this Agreement is one hundred fifty thousand ($150,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All Services performed or materials provided in excess of the maximum compensation shall be at Contractor's expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.
7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) days' prior written notice to Contractor.
B. Termination for Default. If Contractor fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Contractor.
C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Contractor will deliver to City all City information or material that Contractor has in its possession.
8. ASSIGNMENT AND SUBCONTRACTING
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Contractor shall not hire subcontractors without express written permission from City.
Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it.
9. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
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10. INDEPENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights to manage its employees in their performance of Services under this Agreement.
11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.
12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contractor may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.
13. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the Term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Contractor shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.
Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City's reporting requirements to the State and other Agreement with Northwest Industrial Engine & Compressor Co.
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agencies with respect to Contractor's Services hereunder.
14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney's fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Contractor pursuant to this Agreement - including claims of any kind by Contractor's employees or persons contracting with Contractor to perform any portion of the Services - and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.
B. Contractor's obligation to protect, defend, indemnify, and hold harmless in full City and City's employees, shall specifically extend to any and all employment-related claims of any type brought by employees, contractors, subcontractors or other agents of Contractor, against City (either alone, or jointly with Contractor}, regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.
C. To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act ("Act") and/or any other similar federal or state law, Contractor warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor's responsibilities under the Act.
15. INSURANCE REQUIREMENTS
During the Term, and for any time period set forth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
16. WAIVER
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City's review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
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17. NOTICES
All notices to the Parties shall , unless otherwise requested in writing , be sent to City addressed as follows:
City of Santa Clara
Attention: Silicon Valley Power
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at SVPContracts@santaclaraca .gov , and
manager@santaclaraca .gov
And to Contractor addressed as follows:
Northwest Industrial Engine & Compressor Co.
P.O. Box 737
Riverbank , CA 95367
and by e-mail at amanda [email protected]
The workday the e-mail was sent shall control the date notice was deemed given .
An e-mail transmitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.
18. COMPLIANCE WITH LAWS
Contractor shall comply with all applicable laws and regulations of the federal , state and local government , including but not limited to "The Code of the City of Santa Clara , California " ("SCCC"). In particular , Contractor 's attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20) , Business Tax Certificate (SCCC section 3.40 .060) , and Food and Beverage Service Worker Retention (SCCC Chapter 9.60) , as such Chapters or Sections may be amended from time to time or renumbered . Addit ionally Contractor has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299 ).
19. CONFLICT S OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer , employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest , direct or indirect , which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and following , and certifie s that it does not know of any facts which wou ld violate Agreement with Northwest Industrial Engine & Compressor Co.
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these code provisions. Contractor will advise City if a conflict arises.
20. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
21. NO USE OF CITY NAME OR EMBLEM
Contractor shall not use City's name, insignia, or emblem, or distribute any information related to Services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
23. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties.
25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
Agreement with Northwest Industrial Engine & Compressor Co.
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The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
~~
GLEN R. GOGGINS
City Attorney
"CITY"
· Manager
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
GAVIN YATES, DOING BUSINESS AS NORTHWEST INDUSTRIAL ENGINE & COMPRESSOR CO.,
a California sole proprietorship
Dated: &/tq /z3 - ·.
By (Signature): &~
Name: avin Y es ·
Title: Owner
Principal Place of ._
Business Address: P.O. Box 737 Riverbank, CA 95'367
Deon yates@nwiec :com and
Email Address : amanda [email protected]
Telephone : (209) 847-2299
Fax: (209) 847-8800
"CONTRACTOR "
Agreement with Northwest Industrial Engine & Compressor Co.
Rev. 07-0 1-18
EXHIBIT A
SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are gas and air compressor preventative maintenance Services and as needed Services that include (but are not limited to) maintenance, repair, installation and commissioning of new air compressors and their related equipment, in support of the City's Electric Department doing business as Silicon Valley Power ("SVP") as further defined in this exhibit. The terms "City" and "SVP" are used interchangeably throughout this document.
1. GENERAL REQUIREMENTS
1.1. Contractor shall furnish all labor, materials, tools, and equipment necessary to provide gas and air compressor maintenance Services, testing, and repairs, in all locations within the City.
1.2. Contractor shall perform the Services in accordance with generally accepted industry best practices, and all applicable federal, state, or local regulations.
1.3. Contractor shall be responsible for obtaining City permits necessary for the proper execution and completion of the work.
1.4. Any deviations from the requirements described in this Attachment A, whether due to emergencies or any other unforeseen events, must be approved in writing by SVP.
1.5. SVP may participate in or observe any inspection.
2. GAS COMPRESSOR PREVENTATIVE MAINTENANCE SERVICES
2.1. Contractor shall provide for routine compressor maintenance. Tasks may include, but are not limited to:
2.1.1. Level 1 Compressor Preventative Maintenance (PM): Includes removing, inspecting and replacing all compressor suction and discharge valves. Inspect and clean all cylinder valve retainers, seats and ports. Position piston at BDC (back dead center), inspect all cylinder bores, measure piston to cylinder bore clearance using feeler gauges to determine piston rider band life. Next, using micrometer, measure piston rod Outside Diameter O.D. (packing wear area).
Measure crosshead running clearance using feeler gauges. Setup dial indicator and measure compressor piston rod run out readings.
Record all measurements on clearance data sheet. Replace crankcase oil and filters as needed. Reassemble compressor cylinders with new gaskets, O-rings and reconditioned or requalified valves. Torque all critical fasteners to original equipment manufacturer (OEM) specifications. Inspect force feed lubricator system operation Agreement with Northwest Industrial Engine & Compressor Co.
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and rate. Notify customer of any out of tolerance conditions. Normal Intervals of up to10,000 operating hours depending on gas integrity and service.
2.1.2. Level 2 Compressor Preventative Maintenance: Includes all Level 1 PM tasks plus removal of piston and rod assemblies. Perform in-depth inspection of pistons, rings, rider bands, cylinder bores, piston rods, pressure packing cases, oil wiper cases. Inspect the force feed lubricator system - service lubricator box oil, drive coupling, pump(s), divider block(s), in-line filter and related check valves as needed.
Reassemble compressor with new gaskets and new or requalified consumable wear item parts. Set piston spacing 1/3 - 2/3. Torque all critical fasteners to OEM specifications, including all cylinder to distance piece and distance piece to frame bolting. Adjust all cylinder and bottle supports. Record all readings on clearance data sheet.
Notify customer of any out of tolerance conditions. Normal intervals up to 20,000 operating hours depending on gas integrity and service.
2.1.3. Level 3 Compressor Preventative Maintenance: Includes all Level 1 and Level 2 PM tasks plus crankcase inspection and replacement of all Connecting-Rod and Main Bearings, Thrust Bearings, Crosshead Shoes, Crosshead Pins and Pin Bushings. Service and/or replace the force feed lubricator system components - lubricator drive box, drive coupling/chain, pump(s), divider block(s), in-line filter and check valves. Inspect Compressor main drive coupling and re-torque all coupling bolts. Inspect motor to frame shaft alignment using laser alignment tooling.
2.1.4. Reassemble Compressor with new gaskets and new or reconditioned/requalified wear item parts. Torque all critical fasteners to OEM specifications including Frame Base Bolts. Re-measure and record all updated clearance readings on clearance data sheet. Notify customer of any out of tolerance conditions. Normal Intervals up to 50,000 operating hours depending on gas integrity and service.
2.1.5. Contractor shall provide for any required materials to facilitate on-site compressor maintenance including inventory requested by SVP.
3. AIR COMPRESSOR PREVENTATIVE MAINTENANCE SERVICES
3.1. Contractor shall provide routine quarterly, semiannually, and annual maintenance. Tasks may include, but are not limited to:
3.1.1. Take service readings before and after maintenance
3.1.2. Check air filter element(s)
3.1.3. Change air filter element(s)
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3.1.4. Check filter element of gear case breather
3.1.5. Replace filter element, gear case breather
3.1.6. Check cycle of air intake throttle valve
3.1.7. Replace diaphragm of air throttle valve
3.1.8. Replace shaft bushing (air intake valve)
3.1.9. Overhaul air intake valve
3.1.10. Replace blow-off silencer
3.1.11. Verify check valve operation
3.1.12. Check coolers function
3.1.13. Overhaul check valve
3.1.14. Check condition of balance piston diaphragm
3.1.15. Change balance piston diaphragm
3.1.16. Check/clean condensate drain(s)
3.1.17. Grease main drive motor bearings
3.1.18. Clean fan cowl of electric motor
3.1.19. Overhaul main drive motor
3.1.20. Clean cooler block
3.1.21. Check rubber inserts, drive coupling
3.1.22. Replace inserts, drive coupling
3.1.23. Check for air- water- & oil leakage
3.1.24. Check condition of drive gear teeth
3.1.25. Replace LP/HP element
3.1.26. Replace main shaft bearings
3.1.27. Replace rubber buffers
3.1.28. Blast clean cubicle
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3.1.29. Check for loose wiring & connections in cubicle
3.1.30. Check bolt/coupling connections
3.1.31. Clean injector nozzle breather (needle)
3.1.32. Check safety valve switches
3.1.33. Check for presence of water in lube oil
3.1.34. Oil change
3.1.35. Change compressor oil filter
3.1.36. Check condition of air intake chamber
4. AS NEEDED SERVICES
4.1. Contractor shall provide as needed services (As Needed Services) that include the repair and replacement of air compressor parts and consumables.
Such parts and consumables include, but are not limited to:
4.1.1. Compressor(s)
4.1.2. Motors
4.1.3. Bearings
4.1.4. Coolers
4.1.5. Belts
4.1.6. Pumps
4.1.7. Valves
4.1.8. Relief valves
4.1.9. Regulators
4.1.10. Instrumentation
4.1.11. Local gauges
4.1.12. Hoses
4.1.13. Tubing
4.1.14. Piping
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4.1.15. Receivers
4.1.16. Dryers
4.1.17. Oil water separators
4.1.18. Desiccant
4.1.19. Gaskets and seals
4.1.20. Oils
4.1.21. Filters
4.1.22. Contactors
4.1.23. Housings and insulation
4.2. Contractor shall also provide the following As Needed Services:
4.2.1. Rental of a temporary air compressor and air dryer.
4.2.2. Supply of all types of air compressor parts as aforementioned.
4.2.3. Installation and commissioning of new air compressors and their related equipment.
4.2.4. Other miscellaneous air compressor work to support the successful operation of power plants.
4.2.5. Waste removal generated by the contractor, including hazardous waste.
4.2.6. Recycle all material scrap and the value credited to the project.
4.2.7. All maintenance and inspections per the respective air compressor's OEM standards and maintenance manual.
4.2.8. Project management services.
5. PROCESS FOR REQUESTING AND AUTHORIZING SERVICES
5.1. Non-Emergency Work
5.1.1. When the City requires Services, the City shall request a proposal from Contractor ("Work Request"). In its request, the City will provide a description of the Services required, the deadline for response, and any other relevant information.
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5.1.2. Contractor shall prepare and submit a proposal ("Proposal") for each Work Request that includes:
5.1.2.1. The specific Service(s) to be performed. The detail of the Services shall have a level of detail reflective of the Scope, timeline, and cost of the specific Services.
5.1.2.2. Locations where Services will be performed.
5.1.2.3. The project timeline/schedule which shall be approved by SVP. Such schedule shall indicate any activities and/or products or materials that may impact the project timeline, including but not limited to, lead time(s) for material sourcing; shipping and receiving delays; and any other
delays.
5.1.2.4. Estimated cost for the requested Service, including, but not limited to:
5.1.2.4.1. Hours and rates by position and/or service as listed in Exhibit B for both Contractor and
subcontractor personnel if applicable. Indicate
labor subject to prevailing wage requirements;
5.1.2.4.2. Project management costs (if applicable);
5.1.2.4.3. Subcontractors, including subcontractor
California Department of Industrial Relations
(DIR) number;
5.1.2.4.4. Parts and materials;
5.1.2.4.5. Tools and special equipment;
5.1.2.4.6. Rental Equipment (tools, equipment, etc.);
5.1.2.4.7. Reimbursable expenses, in accordance with the limitations set forth in Exhibit B.
5.1.2.4.8. Any additional costs including, but not limited to freight, permits, fees;
5.1.2.4.9. Estimated total amount including sales tax;
5.1.2.4.10.Any drawings, photos or documents required;
and
5.1.2.4.11. Total not to exceed price.
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5.1.2.5. All submitted Proposals shall be in accordance with the rates authorized in Exhibit B of this Agreement and the Proposal shall include sufficient information for the City to determine that rates are in accordance with the
Agreement.
5.1.2.6. Costs for any additional equipment, parts, or services required for completion of the Services as detailed in the Work Request and in Contractor's Proposal but not
reflected in the Contractor's Proposal shall be the sole responsibility of the Contractor and at no cost to the City.
5.1.3. Work Authorization:
5.1.3.1. If the completion of the Services in the Proposal will not exceed the maximum compensation in Section 6 of the
Agreement (Compensation and Payment), additional
Services may be authorized as set forth in this Section.
5.1.3.2. City shall review the Proposal and, if there are no issues or concerns, City will approve the and issue a purchase order (Purchase Order) as authorization for Contractor to begin Services.
5.1.3.3. The Purchase Order shall serve as final authorization and, except in the case of emergency which shall confirm to the conditions of Section 5.2 or where the circumstances in Section 5.1.6.4. apply, Contractor shall not commence
Services until it receives a Purchase Order and notice to proceed from SVP.
5.1.3.4. For Proposals with a total cost exceeding $50,000, a work Authorization ("Work Authorization") shall be issued in substantially the same format as Exhibit E. Each Work
Authorization shall describe the services and deliverables the Contractor must provide, the time limit within which the Contractor must complete the service and deliverables, the system acceptance criteria, warranty provisions, and the compensation for the additional services.
5.1.3.5. Subject to the terms and conditions of this Agreement, Contractor and City will negotiate the specific scope and requirements of each Work Authorization. Upon execution by the Parties, the Work Authorization shall become an
Approved Work Authorization.
5.1.3.6. Each Approved Work Authorization shall have a purchase order ("Purchase Order") attached to it.
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5.1.3.7. For Proposals with a total cost less than $50,000, a signed Work Authorization is not required. The City will issue a Purchase Order authorizing Services and the Purchase
Order will serve as the Approved Work Authorization.
5.1.3.8. Only the Assistant Director of the Electric Utility, Electric Utility Chief Operating Officer, or Chief Electric Utility Officer may, on behalf of the City, execute a Work
Authorization. Purchase Orders are issued by the Finance Department.
5.1.3.9. Except in the case of emergency which shall confirm to the conditions of Section 5.2 or where the circumstances in Section 5.1.6.4 apply, Contractor shall not initiate the additional services and the City will not compensate the Contractor until the City has executed the Work
Authorization for such additional services where applicable ("Approved Work Authorization") and issued a Purchase
Order.
5.1.3.10. If Contractor begins Services or fails to dispute a Purchase Order within three (3) business days, Contractor is
assumed to have accepted the terms of the Purchase
Order.
5.1.3.11. An Approved Work Authorization must be consistent with - and cannot alter - the terms and conditions of this
Agreement. The terms and conditions of this Agreement
shall prevail over any and all terms and conditions
contained in an Approved Work Authorization - even if the Approved Work Authorization expressly states that it is intended to control. Any conflicting terms and conditions in an Approved Work Authorization are invalid and
unenforceable.
5.1.4. Each Approved Work Authorization and Purchase Order shall be incorporated into the Agreement by reference and subject to its terms and conditions and the services contained therein shall be included within the Services.
5.1.5. Proposals are not confidential and will not be treated as confidential even if marked confidential when submitted.
5.1.6. Changes to Work Authorization:
5.1.6.1. Contractor shall notify the City immediately when a situation occurs that may result in a change to the total project cost or specific line items in an Approved Work Agreement with Northwest Industrial Engine & Compressor Co.
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Authorization or Purchase Order. Contractor shall provide the reason for the change specific to each Approved Work Authorization or Purchase Order.
5.1.6.2. If Contractor requires changes to a fixed price Work Authorization, Contractor shall only be permitted to request changes with justification such as additional scope
requested by City or unanticipated field conditions. For such changes, Contractor shall submit justification
demonstrating that changes in cost are associated with
changes in scope. Contractor shall not be entitled to
additional compensation for issues such as errors in
calculation of original pricing, changes in staff, or other changes that are not directly related to changes requested by City.
5.1.6.3. In the event that unanticipated site conditions or other issues result in costs that exceed the approved Proposal or changes to line items in an Approved Work Authorization order in the Purchase Order, Contractor shall submit to the City an updated Proposal for review and approval from the City in advance of performing Services. The City will issue a new or amended Work Authorization (if required pursuant to Section 5.1.3.) or Purchase Order (as applicable) to authorize such additional Services. Each changed Work
Authorization and Purchase Order shall amend the
Services and be incorporated into the Services by
reference.
5.1.6.4. In the event that issues are identified that can be most efficiently and economically resolved while on site,
changes may be approved verbally (in the field), by
telephone, or e-mail by the following authorized individuals:
Assistant Director of the Electric Utility, Electric Utility Chief Operating Officer, or Chief Electric Utility Officer. Such authorization shall be defined as an Interim Work Order.
Contractor shall provide an updated Proposal within two (2) business days so that such changes can be documented in a Work Authorization and/or Purchase Order.
5.2. Emergency Work Orders
5.2.1. An emergency work order ("Emergency Work Order") should be utilized only in instances of a threat to public health or safety, loss of or damage to property, or serious disruption to essential services. An emergency ("Emergency") is defined as an unforeseen event, Agreement with Northwest Industrial Engine & Compressor Co.
Rev. 07-01-18
circumstance, or combination of circumstances that the City reasonably determines to require immediate action.
5.2.2. Emergency Work Orders do not need to be in writing and may only be authorized by the Assistant Director of the Electric Utility, Electric Utility Chief Operating Officer, or Chief Electric Utility Officer. Such verbal authorizations will be confirmed by the City in writing within three (3) business days by a Purchase Order or, where applicable, a Work Authorization and Purchase Order.
5.2.3. When Emergency services are required, Contractor shall send a Proposal to the City for the required services as soon as possible, but no later than three (3) business days after starting Services. The Proposal shall be detailed in accordance with this Section and shall also include any completed Services. The City will issue a Work Authorization (if required pursuant to Section 5.1.3.) and a Purchase Order as soon as reasonably practicable.
6. DISPOSAL OF WASTE AND SCRAPS
6.1. Contractor shall be responsible for disposing of all hazardous material generated during the performance of Services under this agreement.
6.2. Contractor shall recycle all material scraps, and the value credited to the City.
6.3. Contractor shall keep their work site(s) free from all surplus material, waste material, dirt and rubbish caused by Contractor's performance of Services.
6.4. Contractor shall leave the work site in a neat and orderly condition. All clean up work will be done to the satisfaction of the City, and at the sole expense of Contractor.
7. REPORTING AND DOCUMENTATION
7.1. Contractor shall provide regular status updates on Services performed during the term of the agreement. Depending on work activity, status updates may be required daily, weekly, or monthly at the direction of SVP.
7.2. Contractor shall provide weekly cost and schedule updates during each project.
8. E-BUILDER
8.1. Contractor may utilize e-Builder for submission of data and documents throughout the term of this agreement, as requested by the City.
8.1.1. e-Builder is a web-based construction management application hosted bye-Builder, Inc. For certain projects to be defined by the City, Agreement with Northwest Industrial Engine & Compressor Co.
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e-Builder shall be the primary means of project information submission and management or as otherwise agreed upon with the City.
8.1.2. The City will establish the Contractor's access to e-Builder by providing licenses to Contractor's personnel at City's cost. The Contractor's designated users will be required to set up their computers/systems to use e-Builder in accordance to thee-Builder User Training Guider. The City reserves the right to limit the licenses issued to Contractor in the future.
8.1.3. Contractor is required to obtain all necessary training to use the software. The City will provide one classroom training or a web-based seminar. A training session is 1 - 2 hours.
8.1.4. Contractor e-Builder is a web-based environment and therefore it is subject to the inherent speed and connectivity limitations of the Internet. The Contractor is responsible for its own connectivity to the Internet. e-Builder's response time is dependent on the Contractor's equipment, including processor speed, Internet access speed, etc. and current traffic on the Internet. The City will not be liable for any delays associated from the usage of e-Builder including, but not limited to: slow response time, down time periods, connectivity problems, or loss of information. The Contractor shall ensure connectivity to thee-Builder system whether at the home office or job site. Under no circumstances will usage of e-Builder be grounds for a time extension or cost adjustment to the Contract.
8.1.5. Data entered in a collaborative mode (entered with the intent to share as determined by permissions and workflows within the e-Builder system) by the City and the Contractor will be jointly owned.
8.1.6. The Contractor is responsible for managing, tracking, and documenting the work to comply with the requirements of this Agreement. The City's acceptance via automated system notifications or audit logs extends only to the face value of the submitted documentation and does not constitute validation of the Contractor's submitted information.
8.1.7. At the City's sole discretion, project documents may be processed and distributed digitally over the internet or may be required to be presented in hard copy format.
8.1.8. While regular email may still be used for communication, when requested by the City, e-Builder shall be utilized as much as possible in connection with all document and information management required in the performance of projects where City has directed the Agreement with Northwest Industrial Engine & Compressor Co.
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use of e-Builder. Contractor shall be responsible for scanning or otherwise converting to electronic format all project submittals and Contractor correspondence, drawings, sketches, etc., and uploading them to the e-Builder web site and shall be responsible for the validity of its information placed in e-Builder. The Contractor shall utilize the existing forms and processes in e-Builder to the maximum extent possible. If a required form does not exist in e-Builder, the Contractor shall include a form of its own or one provided by the City (if available) as an attachment to a submittal or process. Documents and information to be submitted electronically include, but are not limited to:
8.1.8.1. Correspondence
8.1.8.2. Meeting minutes
8.1.8.3. Submittals and shop drawings
8.1.8.4. Product data, reports, certifications, etc. must be submitted in PDF format. (If a sample is able to be scanned, it is requested a scanned PDF copy is submitted with the
sample.)
8.1.8.5. Requests for Information (RFl's)
8.1.8.6. Change order requests and documentation, including record copies of change orders, proposals, modifications
8.1.8. 7. Pay applications
8.1.8.8. "Official" correspondence (such as letters) including informal correspondence, such as e-mail
8.1.8.9. Pre-Task Plans (PTPs)
8.1.8.10. Daily construction reports and other daily reports including Contractor Quality Control (CQC) reports
8.1.8.11. Quality Control (QC) documentation
8.1.8.12. All official reports, such as commissioning reports
8.1.8.13. Notices and claims
8.1.8.14. Operations and maintenance manuals
8.1.8.15. All close-out documents
8.1.8.16. All testing results
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8.1.9. Archive Copies: When requested by City, Contractor shall keep an archive copy of all digital data created by Contractor, or submitted to Contractor via e- mail, or resident on the e-Builder for the duration of the Project. Such data shall be available to City, authorities with jurisdiction (including funding agencies or representatives) on demand.
8.1.10. Should the City replace e-Builder with a different project management tool, Contractor, and subcontractors, shall be required to utilize the new project management tool selected by the City.
9. SCHEDULE
9.1. For scheduled outages, Contractor shall be available to provide Services within thirty (30) days of request by SVP.
9.2. Remedial measures shall be completed within 24-hours or less in a timely, efficient manner to ensure the power plant equipment is operational as soon as possible.
9.3. Except where otherwise directed by the City, Contractor shall perform the required Services between 7:00 AM - 7:00 PM, Monday through Friday and avoid overtime except when requested and approved by the City.
9.4. If SVP requires Services outside of regular business hours, Contractor shall provide to SVP a Proposal for the required Services (listing labor costs and parts/equipment costs separately). Contractor shall not begin work until SVP has given written approval.
10. STAFFING REQUIREMENTS
10.1. The Contractor shall be solely responsible for selecting, hiring, employing, paying, supervising, training and discharging all personnel necessary for the efficient testing, inspection, maintenance, and repair Services.
10.2. Contractor shall ensure the following employment standards for all employees (including subcontractors) are complied with and enforced throughout the term of the contract.
10.3. Contractor shall employ only competent craftsmen/skilled workers who are well-qualified to perform the job duties for which they are being hired, appropriately trained, licensed to perform the required Services.
10.4. Contractor shall be responsible for understanding and complying with any training and licensing required for the performance of the Services described in this Attachment A, including but not limited to, Department of Transportation (DOT) requirements for commercial driver's license and required drug testing if applicable.
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10.5. Contractor shall ensure that all its employees and agents abide by established local, state and federal safety rules and regulations.
10.6. Contractor's employees and any subcontractors shall supply proper identification when requested by SVP.
10.7. Classification and Duties of Employees: The Contractor shall include the classifications of employee positions and the duties of each position in their proposal. Classifications may include, but are not limited to:
10. 7 .1. Project Manager/General Manager: Responsible for the day-to-day management and supervision of the required Services. On-site responsibilities shall also include, but not be limited to, correcting problems, managing conflicts and complaints, and overseeing work schedules, personnel, and equipment requirements. If the Project Manager/General Manager is off-site or otherwise unable to give direction to Contractor's employees (including subcontractors), the City may give directions to the personnel until the Project Manager/General Manager returns.
10.7.2. Technician/Field Personnel: Performs the required valve inspection, maintenance and repair Services.
10.7.3. Administrative Personnel: Assists in the administration and reporting of the required Services.
10.8. Contractor shall inform SVP immediately of any change in key personnel assigned to this project.
10.8.1. Contractor shall submit the resumes and other qualifications of the proposed replacement employee(s) to SVP for review and approval.
10.8.2. SVP shall not unreasonably withhold approval.
10.9. SVP reserves the right to request the removal of any Contractor employee(s) who does not conduct themselves in a courteous, professional manner, or whose actions endanger the safety of people or property. The Contractor shall promptly respond to requests for replacement personnel.
11. EMPLOYEE TRAINING
11.1. Contractor shall provide training to its employees (including subcontractors) for them to perform their work in a safety manner.
11.2. Contractor's employee training shall be at no cost to SVP.
11.3. Contractor shall ensure that all employees (including subcontractors) who will be involved in the performance of Services understand how to safely inspect, Agreement with Northwest Industrial Engine & Compressor Co.
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maintain, and repair the valves and the systems they are installed in as required for their respective positions.
11.4. Contractor shall review its training procedures annually and shall submit any revisions in writing to SVP.
11.5. Contractor shall provide ongoing training at least once per year. Contractor shall ensure that all assigned employees attend this annual training.
11.6. Contractor shall provide ongoing training such as LOTO, confined space, fall protection or other job-related trainings for starters at least once per year.
Contractor shall ensure that all assigned employees attend this annual training.
11.7. Contractor shall be responsible for understanding and complying with any training and licensing required for the performance of the Services described in this Exhibit B.
12.SAFETY
12.1. Contractor shall comply with all site-specific safety requirements and procedures including but not limited to Lockout/Tagout (LOTO), Confined Space, Fall Protection, Chemical Safety, Hazardous Waste and Personnel Protective Equipment (PPE).
12.2. Contractor, its employees, and any subcontractors shall always act in a safe manner Contractor shall assume full responsibility for the protection and safekeeping of material and tools stored at the site and shall lock all Contractor vehicles when parked and unattended, to prevent unauthorized use. Contractor shall not leave vehicles or equipment unattended with the motor running or the ignition key in place.
12.3. The Contractor shall be responsible for creating a safe work environment for all personnel and City employees as well as for traffic control at the job site.
12.4. Contractor's safety provisions shall be in accordance with all applicable federal, state, county, and local laws, ordinances and codes.
12.5. Contractor shall be responsible for remaining up to date on all applicable federal, state, county, and local laws, ordinances and codes in the event they are amended. Where any amended applicable laws or ordinances are in conflict with the City's requirements, the more stringent requirement(s) shall be followed. The Contractor's failure to be thoroughly familiarized with the safety provisions shall not relieve the Contractor from compliance with the obligations and penalties resulting therefrom.
12.6. Contractor shall provide and maintain an Injury and Illness Prevention Program (IIPP) pursuant to Title 8, Section 3203 of the California Agreement with Northwest Industrial Engine & Compressor Co.
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Administrative Code. The program shall include, but not be limited to, a safety training program instructing Contractor's employees in general safe work practices and shall include specific instructions with regard to hazards unique to the employee's job assignment. A copy of the Contractor's IIPP shall be submitted to the City prior to the execution of an agreement, and be made available on site upon request.
12.7. Contractor shall schedule periodic safety inspections to identify and correct unsafe conditions and work practices. SVP reserves the right to accompany Contractor during these inspections.
12.8. Contractor's employees (including any subcontractors) shall not use or possess alcohol, narcotics, firearms, or drugs of any nature other than medical (for which the Contractor's employee has a current doctor's prescription) on City property and while performing Services for the City.
Employees using prescribed medication will not engage in any work if the medication can potentially impair the employee's ability to perform the work safely.
12.9. Contractor's employees (including any subcontractors) shall utilize appropriate Personal Protective Equipment (PPE) and Fire Resistant (FR) clothing, as required. Contractor shall provide the required PPE and FR clothing at its own expense.
12.10. Contractor shall immediately remove any personnel who is acting in an unsafe or dangerous manner.
12.11. Contractor shall notify the City immediately in event of an injury or property damage that occurs during the performance of the Services described in this Attachment A. Contractor shall investigate the reported injury or damage upon request from SVP, and provide SVP with regular updates until the investigation is resolved. SVP reserves the right to perform its own investigation. Should SVP choose to conduct its own investigation, Contractor shall assist the City as required.
12.12. Contractor and its employees shall watch an SVP safety video once per calendar year prior to the commencement of work or as assigned by SVP.
13. TOOLS AND EQUIPMENT
13.1. Contractor is responsible for identifying all tools and equipment necessary to perform work. SVP will not loan tools or equipment to the Contractor.
13.2. All equipment shall be operated and well-maintained in a satisfactory condition at all times and in compliance with state and federal regulations including, but not limited to, the Occupational Safety and Health Administration (OSHA).
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13.3. SVP may suspend work where they observe that proper tools and equipment are not being used.
13.4. Contractor shall assume full responsibility for the protection and safekeeping of material and tools stored at the site and shall lock all Contractor vehicles when parked and unattended, to prevent unauthorized use. Contractor shall not leave vehicles or equipment unattended with the motor running or the ignition key in place.
13.5. Upon the end of the workday, or suspension of work, Contractor shall remove all equipment and obstructions from any property typically open for use by public traffic. Any incomplete work shall be secured in a manner that does not present a hazard to the City or public.
14. PROFESSIONAL BEHAVIOR
14.1. Contractor shall be responsible for the conduct, demeanor and appearance of its employees while on or about the job site or while acting in the course and scope of employment.
14.2. Contractor's employees shall be neat and clean and shall act in a courteous and professional manner. No employee shall use improper language or act in a loud, offensive, or otherwise improper manner.
14.3. Contractor's employees shall be trained as to the requirements of their positions and the importance of performing their jobs according to the SVP's instructions.
14.4. Contractor's employees shall be all times polite and courteous in their dealings with SVP staff and members of the public, treating them with patience and respect.
14.5. Contractor's employees shall speak clearly and in a professional manner while interacting with members of the public, offering the assistance needed by each person.
14.6. Contractor shall submit any complaints received against it to the City immediately.
15. WORKMANSHIP
15.1. The Contractor shall perform the required Services in an environmentally responsible manner.
15.2. Contractor shall take all necessary precautions to protect SVP, City and private property from damage during the performance of the required Services. Contractor shall be responsible for the repair of any property damaged during the performance of Services. Damage to City property that Agreement with Northwest Industrial Engine & Compressor Co.
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cannot be repaired shall be replaced at the Contractor's sole expense, prior to issuance of payment to the Contractor by SVP. Any expenses incurred by SVP to repair property damage will be deducted from the Contractor's compensation.
15.3. Contractor will make all reasonable efforts to minimize obstructions and inconvenience to private property owners such as, but not limited to, noise associated with testing.
15.4. Contractor shall keep their work site(s) free from all surplus material, waste material, dirt and rubbish caused by Contractor's performance of Services.
15.5. Contractor shall leave the work site in a neat and orderly condition. All clean up work will be done to the satisfaction of the City, and at the sole expense of Contractor.
15.6. Upon the end of the workday, or suspension of work, Contractor shall remove all equipment and obstructions from any property typically open for use by public traffic. Any incomplete work shall be secured in a manner that does not present a hazard to the City or public.
15.7. SVP shall have the right to inspect any work performed by the Contractor and any subcontractors. Should the City determine upon inspection any unsatisfactory or defective work, the Contractor shall immediately correct the work at no additional cost to SVP.
15.8. SVP shall not perform any work for Contractor except in an emergency situation or as determined necessary by the City such as, but not limited to adequately protect the SVP's electrical or other facilities or to restore work area to a safe condition. SVP will be reimbursed for any work done for the Contractor ( deduction from the Contract or invoice to Contractor at the sole discretion of SVP). This will include all costs (direct straight time or overtime wages, all overhead, administration, engineering, vehicle, and equipment costs).
16.WARRANTY
16.1. Manufacturer's warranty shall apply to all parts.
16.2. Parts fabricated by Contractor shall have a warranty equal to or greater than manufacturer's warranty for similar parts.
16.3. Labor shall be warranted for at least twelve (12) months from the date of acceptance.
16.4. Contractor shall correct any deficiencies and/or errors in Contractor's work discovered during the warranty period, at no cost to the City.
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EXHIBIT B
SCHEDULE OF FEES AND PAYMENT PROVISIONS
1. Maximum Compensation
1.1. The maximum amount of compensation to be paid to Contractor under this Agreement shall not exceed the amount specified in Section 6 of the Agreement (Compensation and Payment).
1.2. Any Services or materials requested by the City that exceeds the Maximum Compensation shall require the execution of an amendment to this Agreement before commencement of Services.
1.3. The City does not guarantee a minimum compensation under this Agreement.
2. Rates and Fees
2.1. Services shall be performed at the rates and fees specified in Exhibit B-1 - Hourly Rates and Fees.
2.2. Definitions:
2.2.1. Standard Rate is applicable for the first eight hours of work Monday through Friday during normal business hours.
2.2.2. Overtime Rate is the Standard Rate times one and one-half (1.5).
Overtime Rate is applicable for work performed over eight hours Monday through Friday, work performed before or after normal working hours, and work performed on Saturdays.
2.2.3. Observed holidays are: New Year's Day, Martin Luther King, Jr. Day, Presidents' Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the Friday following Thanksgiving Day, and Christmas Day.
2.2.4. Double Time Rate is the Standard Rate times two (2.0). Double Time Rate is applicable for work performed after twelve hours Monday through Saturday and work performed on Sunday or holidays.
2.3. Unless otherwise noted on the Work Authorization, a four-hour minimum of man hours plus truck fee is required for callouts.
2.4. Rates shall remain fixed for the initial two years of the Agreement. After the initial two years Contractor may request adjustments to the compensation rates no more than annually.
2.4.1. Contractor shall demonstrate to the satisfaction of City that a price increase is warranted.
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2.4.2. Contractor shall notify City ninety (90) days in advance of any proposed rate increase.
2.4.3. City approval or denial of the requested rate adjustment will be provided in writing (e-mail acceptable). Once accepted , such rates shall be incorporated into the agreement by reference .
3. Reimbursable Expenses
1. 2.
3. 4.
5. 6.
3.1. Reimbursable Expenses . Contractor may submit invoices for reimbursement of expenses set forth subject to the following conditions. Any reimbursement to the Contractor is limited to the expenses set forth below in the Reimbursable Expense Schedule .
Reimbursable Expense Schedule Mark Up
The cost of mailing , shipping and/or delivery of any No Markup documents or materials .
The cost of photographing, printing , reproducing and/or No Markup copying any documents or materials.
Charges for outside services and materials (including Not to exceed 10% subcontractor fees, equipment , materials , and facilities not furnished directly by Contractor).
Other reimbursable expenses with prior written approval No Markup from the City
Allowable mileage will be charged at the prevailing IRS rate No Markup per mile .
Unless approved in writing (e-mail acceptable) in advance , No Markup meals, lodging, and related per diem shall not exceed the rates outlined by United States General Services
Administration (GSA) . https ://www .gsa .gov/t ravel-
resou rces . Airfare or rental car, where applicable shall be at economy rates.
3.2. Expenses shall be reimbursable only to the extent that the Contractor submits supporting information (such as receipts or invoices) for reimbursable expenses as well as sufficient documentation to City that the expenses were directly incurred in providing the Services, that such expenses aren 't included in fixed or hourly rates , and (when a Work Authorization is required), such expenses were included in Work Author ization.
3.3. Except in the case of emergency , the City will only reimburse expenses to the extent such expenses are in Proposals submitted pursuant to Section 9 of Exhibit A.
3.4. City shall not reimburse local travel (within Santa Clara County).
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4. Invoicing and Payment
4.1. Contractor shall submit invoices to City monthly, in arrears, for payment for preventative maintenance Services and/or Services performed per task or project for the previous month.
4.1.1. Each invoice shall include the task costs for the previous month.
4.1.2. Each invoice shall provide sufficient detail for City to verify that the rates in Exhibit B are charged.
4.2. City shall review the invoice submitted by Contractor and shall notify Contractor of any discrepancies or deficiencies in said invoice.
4.3. Pre-Payment. City shall not be required to pay a deposit or any other form of pre-payment prior to Contractor beginning of the Services.
4.4. Payment Limited to Satisfactory Services. Contractor is not entitled to any payments until the City concludes that the Services have been satisfactorily completed.
4.5. Disputed Invoices. If the City in good faith disputes any portion of an invoice, the City shall pay the undisputed portion of the invoice and submit written notice to Contractor regarding the disputed amount. The notice shall include documentation supporting the disputed amount.
4.6. Certified Payroll. When applicable, Contractor shall submit all necessary certified payrolls with its request for payment, in accordance with Exhibit D and such submittals are subject to verification by City. In no event shall Services subject to Certified Payroll be invoiced in advance of the Services being performed.
4.7. Payment. If there are no discrepancies or deficiencies in the submitted invoice and Contractor has submitted all required Certified Payroll, City shall process the invoice for payment.
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Rev. 07-01-18
Classification
Foreman
Journeyman
Apprentice
Supervisor
Truck and Tool
Bores cope
Emissions Analyzer
Laser Alignment
EXHIBIT B-1
HOURLY BILLING RATES AND FEES
EFFECTIVE July 1, 2023
Standard Rate Overtime Rate
$145.00/hour $217.50/hour
$140.00/hour $210.00/hour
$111.00/hour $166.50/hour
$155.00/hour $232.50/hour
$25.00/hour $25.00/hour
Double Time Rate
$290.00/hour
$280.00/hour
$222.00/hour
$310.00/hour
$25.00/hour
$250.00 Setup, Standard hourly crew rates apply
$250 Setup
$250 Setup, Standard hourly crew rates apply
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Rev. 07-01-18
EXHIBITC
INSURANCE REQUIREMENTS
Without limiting the Contractor's indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$5,000,000 Each occurrence
$5,000,000 General Aggregate
$5,000,000 Products/Completed Operations Aggregate
$5,000,000 Personal Injury
$5,000,000 Project Aggregate
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a "pay on behalf' basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than five million dollars ($5,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
Agreement with Northwest Industrial Engine & Compressor Co.
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In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of two million dollars ($2,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS' COMPENSATION
1. Workers' Compensation Insurance Policy as required by statute and employer's liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accidenUBodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. POLLUTION LIABILITY
In the event that this contract involves hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors shall provide a Contractor's Pollution Liability Insurance policy with coverage limits not less than two million dollars ($2,000,000) each claim in connection with the Work performed under this Contract. All activities contemplated in this agreement shall be specifically scheduled on the policy as "covered operations." Any deductible must be declared to and approved by City. Such policy shall cover, at a minimum, liability for bodily injury, damage to and loss of use of property, and clean-up costs arising from sudden, accidental and gradual pollution and remediation in connection with the Work under this Agreement. Contractor will use its best efforts to have the City, Council, officers, employees and volunteers added as additional insureds under this policy. The following provisions shall apply:
1. The policy shall provide coverage for the hauling of waste from the project site to the final disposal location, including non-owned disposal sites.
Agreement with Northwest Industrial Engine & Compressor Co.
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2. Products/completed operations coverage shall extend a minimum of three (3) years after project completion.
3. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors.
4. If the insured is using subcontractors the Policy must include work performed "by or on behalf' of the insured.
5. Policy shall contain no language that would invalidate or remove the insurer's duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer.
E. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor's work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85 or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor's insurance.
3. General Aggregate. The general aggregate limits shall apply separately to Contractor's work under this Agreement providing coverage at least as broad as Insurance Services Office (ISO) Endorsement CG 2503, 1985 Edition, or insurer's equivalent (CGL);
4. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten ( 10) days prior to the effective date of such modification or cancellation. In the event of Agreement with Northwest Industrial Engine & Compressor Co.
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non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non renewal.
5. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through E of this Document 00820.
F. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Requirements of specific insurance coverage features described in this Agreement shall not be construed to be a limitation of liability on the part of Contractor or any of its subcontractors, nor to relieve any of them of any liability or responsibility under the Contract Documents, as a matter of law or otherwise. Such requirements are not intended by any Party to be limited to providing coverage for the vicarious liability of the City or to the supervisory role, if any, of City. All insurance coverage provided pursuant to this Agreement in any way relating to City is intended to apply to the full extent of the policies involved.
2. Contractor shall maintain all required insurance policies in full force and effect during entire period of performance of the Services under this Agreement of Contract Documents. Contractor shall also keep such insurance in force during warranty and guarantee periods. At time of making application for extension of time, Contractor shall submit evidence that insurance policies will be in effect during requested additional period of time.
3. City reserves the right, at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Contractor thirty (30) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the City will negotiate in good faith additional compensation proportional to the increased benefit to City.
4. Any type of insurance or any increase of limits of liability not described in this Exhibit which Contractor requires for its own protection or in Agreement with Northwest Industrial Engine & Compressor Co.
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compliance with applicable statutes or regulations, shall be Contractors' responsibility and at its own expense.
5. No liability insurance coverage provided by Contractor to comply with the terms of this Agreement shall prohibit Contractor, or Contractor's employees, or agents, from waiving the right of subrogation prior to a loss.
Contractor waives its right of subrogation against lndemnitees. Any property insurance policies affected by Contractor shall be endorsed to delete the subrogation condition as to indemnitees or shall specifically allow Contractor to waive subrogation prior to a loss. Contractor hereby waives any right of recovery against the indemnitees and agrees to require any subcontractor to do so.
6. Contractor agrees to ensure that subcontractors, and any other party involved with the Services who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
7. Contractor shall cooperate fully with City and Contractor's insurance companies in any safety and accident prevention program and claims handling procedures as established for the performance of Services under this Agreement.
8. All coverage types and limits required under this Agreement are subject to approval, modification and additional requirements by the City, as the need arises. Contractor shall not make any reductions in scope of coverage which may affect City's protection without City's prior written consent.
9. For purposes of applying insurance coverage only, all contracts pertaining to the performance of services will be deemed to be executed when finalized and any activity commences in furtherance of performance under this agreement.
10. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any of the insurance requirements set forth in this Agreement in no way imposes any additional obligations on City nor does it waive any of the City's rights under this Agreement or any other regard.
Agreement with Northwest Industrial Engine & Compressor Co.
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11. Any provision in this Agreement dealing with the insurance coverage provided pursuant to these requirements, is subordinate to and superseded by the requirements contained herein. These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the Parties here to be interpreted as such.
12. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
13. Contractor agrees to obtain and provide to City evidence of Professional Liability insurance for Architects or Engineers if engaged by Contractor to perform any of the Services required under this Agreement. City shall determine the minimum coverage and policy limits required, after consultation with Contractor.
14. The City acknowledges that some insurance requirements contained in this Agreement may be fulfilled by self-insurance on the part of the Contractor. The Contractor's insurance obligations under this Agreement under may be satisfied in whole or in part by adequately funded self insurance retention, but only after approval from the City Attorney's Office upon satisfactory evidence of financial capacity.
15. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
G. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City's approval as to adequacy of the insurance protection.
H. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its Agreement with Northwest Industrial Engine & Compressor Co.
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