South Pasadena City Council
July 19, 2023

158696.1

PROFESSIONAL SERVICES AGREEMENT

FOR CONSULTANT SERVICES
(City of South Pasadena [ Studio Spectrum, Inc.)

1. IDENTIFICATION
This PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into by and between the City of South Pasadena, a California municipal corporation (“City”), and STUDIO SPECTRUM, INC. (“Consultant”).

2. RECITALS

2.1. City has determined that it requires the following professional services from a consultant: Video Production, Web Streaming and Archiving Services

2.2. Consultant represents that it is fully qualified to perform such professional services by virtue of its experience and the training, education and expertise of its principals and employees. Consultant further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement.

2.3. Consultant represents that it has no known relationships with third parties, City Council members, or employees of City which would (1) present a conflict of interest with the rendering of services under this Agreement under Government Code Section 1090, the Political Reform Act (Government Code Section 81000 et seq.), or other applicable law, (2) prevent Consultant from performing the terms of this Agreement, or (3) present a significant opportunity for the disclosure of confidential information.

NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, City and Consultant agree as follows:

3. DEFINITIONS

3.1. “Scope of Services”: Such professional services as are set forth in Exhibit A.

3.2. “Agreement Administrator”: The Agreement Administrator for this project is Lucy Demirjian, Management Services Director. The Agreement Administrator shall be the principal point of contact at the City for this project. All services under this Agreement shall be performed at the request of the Agreement Administrator. The Agreement Administrator will establish the timetable for completion of services and any interim milestones. City reserves the right to change this designation upon written notice to Consultant

3.3. “Approved Fee Schedule”: Consultant’s compensation rates are set forth in the fee schedule attached hereto as Exhibit B and incorporated herein by this reference. This DocuSign Envelope ID: 1CBF56ED-E12A-4F4C-9BDB-4BEFBF282FC6 13 - 37
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fee schedule shall remain in effect for the duration of this Agreement unless modified in writing by mutual agreement of the parties.

3.4. “Maximum Amount”: The highest total compensation and costs payable to Consultant by City under this Agreement. The Maximum Amount under this Agreement is fiftythree thousand, eight hundred and eighty dollars ($53,880) for fiscal year 2021/22;

3.5. “Commencement Date”: July 1, 2021

3.6. “Termination Date”: June 30, 2024, unless extended at option of the City Manager for an additional two years at the same rate.

4. TERM
The term of this Agreement shall commence at 12:00 a.m. on the Commencement Date and shall expire at 11:59 p.m. on the Termination Date unless extended by written agreement of the parties or terminated earlier under Section 18 (“Termination”) below, with an option to extend the term for an additional two fiscal years. Consultant may request extensions of time to perform the services required hereunder. Such extensions shall be effective if authorized in advance by City in writing and incorporated in written amendments to this Agreement.

5. CONSULTANT’S DUTIES

5.1. Services. Consultant shall perform the services identified in the Scope of Services. City shall have the right to request, in writing, changes in the Scope of Services. Any such changes mutually agreed upon by the parties, and any corresponding increase or decrease in compensation, shall be incorporated by written amendment to this Agreement.

5.2. Coordination with City. In performing services under this Agreement, Consultant shall coordinate all contact with City through its Agreement Administrator.

5.3. Budgetary Notification. Consultant shall notify the Agreement Administrator, in writing, when fees and expenses incurred under this Agreement have reached eighty percent (80%) of the Maximum Amount. Consultant shall concurrently inform the Agreement Administrator, in writing, of Consultant’s estimate of total expenditures required to complete its current assignments before proceeding, when the remaining work on such assignments would exceed the Maximum Amount.

5.4. Business License. Consultant shall obtain and maintain in force a City business license for the duration of this Agreement.

5.5. Professional Standards. Consultant shall perform all work to the standards of Consultant’s profession and in a manner reasonably satisfactory to City. Consultant shall keep itself fully informed of and in compliance with all local, state, and federal DocuSign Envelope ID: 1CBF56ED-E12A-4F4C-9BDB-4BEFBF282FC6 13 - 38
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laws, rules, and regulations in any manner affecting the performance of this Agreement, including all Cal/OSHA requirements, the conflict of interest provisions of Government Code § 1090 and the Political Reform Act (Government Code § 81000 et seq.).

5.6. Avoid Conflicts. During the term of this Agreement, Consultant shall not perform any work for another person or entity for whom Consultant was not working at the Commencement Date if such work would present a conflict interfering with performance under this Agreement. However, City may consent in writing to Consultant’s performance of such work.

5.7. Appropriate Personnel. Consultant has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Chief City Clerk shall be Consultant’s project administrator and shall have direct responsibility for management of Consultant’s performance under this Agreement. No change shall be made in Consultant’s project administrator without City’s prior written consent.

5.8. Substitution of Personnel. Any persons named in the proposal or Scope of Services constitutes a promise to the City that those persons will perform and coordinate their respective services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. If City and Consultant cannot agree as to the substitution of key personnel, City may terminate this Agreement for cause.

5.9. Permits and Approvals. Consultant shall obtain, at its sole cost and expense, all permits and regulatory approvals necessary for Consultant’s performance of this Agreement. This includes, but shall not be limited to, professional licenses, encroachment permits and building and safety permits and inspections.

5.10. Notification of Organizational Changes. Consultant shall notify the Agreement Administrator, in writing, of any change in name, ownership or control of Consultant’s firm or of any subcontractor. Change of ownership or control of Consultant’s firm may require an amendment to this Agreement.

5.11. Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars, all such documents and this Agreement shall DocuSign Envelope ID: 1CBF56ED-E12A-4F4C-9BDB-4BEFBF282FC6 13 - 39
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be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.

6. SUBCONTRACTING

6.1. General Prohibition. This Agreement covers professional services of a specific and unique nature. Except as otherwise provided herein, Consultant shall not assign or transfer its interest in this Agreement or subcontract any services to be performed without amending this Agreement.

6.2. Consultant Responsible. Consultant shall be responsible to City for all services to be performed under this Agreement.

6.3. Identification in Fee Schedule. All subcontractors shall be specifically listed and their billing rates identified in the Approved Fee Schedule, Exhibit B. Any changes must be approved by the Agreement Administrator in writing as an amendment to this Agreement.

6.4. Compensation for Subcontractors. City shall pay Consultant for work performed by its subcontractors, if any, only at Consultant’s actual cost plus an approved mark-up as set forth in the Approved Fee Schedule, Exhibit B. Consultant shall be liable and accountable for any and all payments, compensation, and federal and state taxes to all subcontractors performing services under this Agreement. City shall not be liable for any payment, compensation, or federal and state taxes for any subcontractors.

7. COMPENSATION

7.1. General. City agrees to compensate Consultant for the services provided under this Agreement, and Consultant agrees to accept payment in accordance with the Fee Schedule in full satisfaction for such services. Compensation shall not exceed the Maximum Amount. Consultant shall not be reimbursed for any expenses unless provided for in this Agreement or authorized in writing by City in advance.

7.2. Invoices. Consultant shall submit to City an invoice, on a monthly basis or as otherwise agreed to by the Agreement Administrator, for services performed pursuant to this Agreement. Each invoice shall identify the Maximum Amount, the services rendered during the billing period, the amount due for the invoice, and the total amount previously invoiced. All labor charges shall be itemized by employee name and classification/position with the firm, the corresponding hourly rate, the hours worked, a description of each labor charge, and the total amount due for labor charges.

7.3. Taxes. City shall not withhold applicable taxes or other payroll deductions from payments made to Consultant except as otherwise required by law. Consultant shall be solely responsible for calculating, withholding, and paying all taxes.

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7.4. Disputes. The parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts contained in an invoice submitted by Consultant.

7.5. Additional Work. Consultant shall not be reimbursed for any expenses incurred for work performed outside the Scope of Services unless prior written approval is given by the City through a fully executed written amendment. Consultant shall not undertake any such work without prior written approval of the City.

7.6. City Satisfaction as Precondition to Payment. Notwithstanding any other terms of this Agreement, no payments shall be made to Consultant until City is satisfied that the services are satisfactory.

7.7. Right to Withhold Payments. If Consultant fails to provide a deposit or promptly satisfy an indemnity obligation described in Section 11, City shall have the right to withhold payments under this Agreement to offset that amount.

8. PREVAILING WAGES
Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Consultant shall defend, indemnify, and hold the City, tis elected officials, officers, employees, and agents free and harmless form any claim or liability arising out of any failure or alleged failure of Consultant to comply with the Prevailing Wage Laws.

9. OWNERSHIP OF WRITTEN PRODUCTS
All reports, documents or other written material (“written products” herein) developed by Consultant in the performance of this Agreement shall be and remain the property of City without restriction or limitation upon its use or dissemination by City except as provided by law. Consultant may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by Consultant.

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10. RELATIONSHIP OF PARTIES

10.1. General. Consultant is, and shall at all times remain as to City, a wholly independent contractor.

10.2. No Agent Authority. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not represent that it is, or that any of its agents or employees are, in any manner employees of City.

10.3. Independent Contractor Status. Under no circumstances shall Consultant or its employees look to the City as an employer. Consultant shall not be entitled to any benefits. City makes no representation as to the effect of this independent contractor relationship on Consultant’s previously earned California Public Employees Retirement System (“CalPERS”) retirement benefits, if any, and Consultant specifically assumes the responsibility for making such a determination. Consultant shall be responsible for all reports and obligations including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation, and other applicable federal and state taxes.

10.4. Indemnification of CalPERS Determination. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for CalPERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.

11. INDEMNIFICATION

11.1 Definitions. For purposes of this Section 11, “Consultant” shall include Consultant, its officers, employees, servants, agents, or subcontractors, or anyone directly or indirectly employed by either Consultant or its subcontractors, in the performance of this Agreement. “City” shall include City, its officers, agents, employees and volunteers.

11.2 Consultant to Indemnify City. To the fullest extent permitted by law, Consultant shall indemnify, hold harmless, and defend City from and against any and all claims, losses, costs or expenses for any personal injury or property damage arising out of or in connection with Consultant’s alleged negligence, recklessness or willful misconduct or other wrongful acts, errors or omissions of Consultant or failure to comply with any provision in this Agreement.

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11.3 Scope of Indemnity. Personal injury shall include injury or damage due to death or injury to any person, whether physical, emotional, consequential or otherwise, Property damage shall include injury to any personal or real property. Consultant shall not be required to indemnify City for such loss or damage as is caused by the sole active negligence or willful misconduct of the City.

11.4 Attorneys Fees. Such costs and expenses shall include reasonable attorneys’ fees for counsel of City’s choice, expert fees and all other costs and fees of litigation.

Consultant shall not be entitled to any refund of attorneys’ fees, defense costs or expenses in the event that it is adjudicated to have been non-negligent.

11.5 Defense Deposit. The City may request a deposit for defense costs from Consultant with respect to a claim. If the City requests a defense deposit, Consultant shall provide it within 15 days of the request.

11.6 Waiver of Statutory Immunity. The obligations of Consultant under this Section 11 are not limited by the provisions of any workers’ compensation act or similar act.

Consultant expressly waives its statutory immunity under such statutes or laws as to City.

11.7 Indemnification by Subcontractors. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor or any other person or entity involved in the performance of this Agreement on Consultant’s behalf.

11.8 Insurance Not a Substitute. City does not waive any indemnity rights by accepting any insurance policy or certificate required pursuant to this Agreement. Consultant’s indemnification obligations apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.

12. INSURANCE

12.1. Insurance Required. Consultant shall maintain insurance as described in this section and shall require all of its subcontractors, consultants, and other agents to do the same.

Approval of the insurance by the City shall not relieve or decrease any liability of Consultant Any requirement for insurance to be maintained after completion of the work shall survive this Agreement.

12.2. Documentation of Insurance. City will not execute this agreement until it has received a complete set of all required documentation of insurance coverage. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. Consultant shall file with City:
 Certificate of Insurance, indicating companies acceptable to City, with a Best's Rating of no less than A:VII showing. The Certificate of Insurance must include the following reference: [Cablecast Operations]
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 Documentation of Best’s rating acceptable to the City.  Original endorsements effecting coverage for all policies required by this Agreement.
 Complete, certified copies of all required insurance policies, including endorsements affecting the coverage.

12.3. Coverage Amounts. Insurance coverage shall be at least in the following minimum amounts:
 Professional Liability Insurance: $1,000,000 per occurrence, $2,000,000 aggregate
 General Liability:
 General Aggregate: $2,000,000
 Products Comp/Op Aggregate $2,000,000
 Personal & Advertising Injury $1,000,000
 Each Occurrence $1,000,000
 Fire Damage (any one fire) $ 50,000
 Medical Expense (any 1 person) $ 5,000
 Workers' Compensation:
 Workers' Compensation Statutory Limits
 EL Each Accident $1,000,000
 EL Disease - Policy Limit $1,000,000
 EL Disease - Each Employee $1,000,000
 Automobile Liability
 Any vehicle, combined single limit $1,000,000
Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements or limits shall be available to the additional insured.

Furthermore, the requirements for coverage and limits shall be the greater of (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured

12.4. General Liability Insurance. Commercial General Liability Insurance shall be no less broad than ISO form CG 00 01. Coverage must be on a standard Occurrence form.

Claims-Made, modified, limited or restricted Occurrence forms are not acceptable.

12.5. Worker’s Compensation Insurance. Consultant is aware of the provisions of Section 3700 of the Labor Code which requires every employer to carry Workers' Compensation (or to undertake equivalent self-insurance), and Consultant will comply with such provisions before commencing the performance of the work of this DocuSign Envelope ID: 1CBF56ED-E12A-4F4C-9BDB-4BEFBF282FC6 13 - 44
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Agreement. If such insurance is underwritten by any agency other than the State Compensation Fund, such agency shall be a company authorized to do business in the State of California.

12.6. Automobile Liability Insurance. Covered vehicles shall include owned if any, nonowned, and hired automobiles and, trucks.

12.7. Professional Liability Insurance or Errors & Omissions Coverage. The deductible or self-insured retention may not exceed $50,000. If the insurance is on a Claims-Made basis, the retroactive date shall be no later than the commencement of the work.

Coverage shall be continued for two years after the completion of the work by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the work under this Agreement.

12.8. Claims-Made Policies. If any of the required policies provide coverage on a claimsmade basis the Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. Claims-Made Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.

12.9. Additional Insured Endorsements. The City, its City Council, Commissions, officers, and employees of South Pasadena must be endorsed as an additional insured for each policy required herein, other than Professional Errors and Omissions and Worker’s Compensation, for liability arising out of ongoing and completed operations by or on behalf of the Consultant. Consultant’s insurance policies shall be primary as respects any claims related to or as the result of the Consultant’s work. Any insurance, pooled coverage or self-insurance maintained by the City, its elected or appointed officials, directors, officers, agents, employees, volunteers, or consultants shall be noncontributory. All endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf. General liability coverage can be provided using an endorsement to the Consultant’s insurance at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10 and CG 20 37.

12.10. Failure to Maintain Coverage. In the event any policy is canceled prior to the completion of the project and the Consultant does not furnish a new certificate of insurance prior to cancellation, City has the right, but not the duty, to obtain the required insurance and deduct the premium(s) from any amounts due the Consultant under this Agreement. Failure of the Consultant to maintain the insurance required by this Agreement, or to comply with any of the requirements of this section, shall constitute a material breach of this Agreement.

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12.11. Notices. Contractor shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; (3) or the deductible or self-insured retention is increased. Consultant shall provide no less than 30 days’ notice of any cancellation or material change to policies required by this Agreement. Consultant shall provide proof that cancelled or expired policies of insurance have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks prior to the expiration of the coverages. The name and address for Additional Insured Endorsements, Certificates of Insurance and Notices of Cancellation is: City of South Pasadena, Attn: City Clerk’s Division, South Pasadena, CA 91030.

12.12. Consultant’s Insurance Primary. The insurance provided by Consultant, including all endorsements, shall be primary to any coverage available to City. Any insurance or self-insurance maintained by City and/or its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.

12.13. Waiver of Subrogation. Consultant hereby waives all rights of subrogation against the City. Consultant shall additionally waive such rights either by endorsement to each policy or provide proof of such waiver in the policy itself.

12.14. Report of Claims to City. Consultant shall report to the City, in addition to the Consultant’s insurer, any and all insurance claims submitted to Consultant's insurer in connection with the services under this Agreement.

12.15. Premium Payments and Deductibles. Consultant must disclose all deductables and self-insured retention amounts to the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within retention amounts. Ultimately, City must approve all such amounts prior to execution of this Agreement.

City has no obligation to pay any premiums, assessments, or deductibles under any policy required in this Agreement. Consultant shall be responsible for all premiums and deductibles in all of Consultant’s insurance policies. The amount of deductibles for insurance coverage required herein are subject to City’s approval.

12.16. Duty to Defend and Indemnify. Consultant’s duties to defend and indemnify City under this Agreement shall not be limited by the foregoing insurance requirements and shall survive the expiration of this Agreement.

13. MUTUAL COOPERATION

13.1. City Cooperation in Performance. City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably available for the proper performance of Consultant’s services under this Agreement.

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13.2. Consultant Cooperation in Defense of Claims. If any claim or action is brought against City relating to Consultant’s performance in connection with this Agreement, Consultant shall render any reasonable assistance that City may require in the defense of that claim or action.

14. NOTICES
Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile or overnight courier service during Consultant’s and City’s regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).

If to City
Lucy Demirjian
Management Services Director
City of South Pasadena
Management Services Department
1414 Mission Street
South Pasadena, CA 91030
Telephone: (626) 403-7230
Facsimile: (626) 403-7211
If to Consultant
John Buckowski
Studio Spectrum, Inc.
1056 N. Lake Street
Burbank, CA 91502
Telephone: (818) 843-1610
With courtesy copy to:

Andrew Jared, Esq.

South Pasadena City Attorney
Colantuono, Highsmith & Whatley, PC
790 E. Colorado, Suite 850
Pasadena, CA 91101
Los Angeles, CA 90071-3137
Telephone: (213) 542-5700
Facsimile: (213) 542-5710
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15. SURVIVING COVENANTS
The parties agree that the covenants contained in paragraph 5.11 (Records), paragraph

10.4 (Indemnification of CalPERS Determination), Section 11 (Indemnity), paragraph

12.8 (Claims-Made Policies), paragraph 13.2 (Consultant Cooperation in Defense of Claims), and paragraph 18.1 (Confidentiality) of this Agreement shall survive the expiration or termination of this Agreement, subject to the provisions and limitations of this Agreement and all otherwise applicable statutes of limitations and repose.

16. TERMINATION

16.1. City Termination. City may terminate this Agreement for any reason on five calendar days’ written notice to Consultant. Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of termination. All City data, documents, objects, materials or other tangible things shall be returned to City upon the termination or expiration of this Agreement.

16.2. Consultant Termination. Consultant may terminate this Agreement for a material breach of this Agreement upon 30 days’ notice.

16.3. Compensation Following Termination. Upon termination, Consultant shall be paid based on the work satisfactorily performed at the time of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement. The City shall have the benefit of such work as may have been completed up to the time of such termination.

16.4. Remedies. City retains any and all available legal and equitable remedies for Consultant’s breach of this Agreement.

17. INTERPRETATION OF AGREEMENT

17.1. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.

17.2. Integration of Exhibits. All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. This instrument contains the entire Agreement between City and Consultant with respect to the transactions contemplated herein. No other prior oral or written agreements are binding upon the parties. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed on by City and Consultant.

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17.3. Headings. The headings and captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to this Agreement. Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the language of the section or paragraph shall control and govern in the construction of this Agreement.

17.4. Pronouns. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein in which the context requires such substitution(s).

17.5. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to the extent necessary to, cure such invalidity or unenforceability, and shall be enforceable in its amended form. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.

17.6. No Presumption Against Drafter. Each party had an opportunity to consult with an attorney in reviewing and drafting this agreement. Any uncertainty or ambiguity shall not be construed for or against any party based on attribution of drafting to any party.

18. GENERAL PROVISIONS

18.1. Confidentiality. All data, documents, discussion, or other information developed or received by Consultant for performance of this Agreement are deemed confidential and Consultant shall not disclose it without prior written consent by City. City shall grant such consent if disclosure is legally required. All City data shall be returned to City upon the termination or expiration of this Agreement.

18.2. Conflicts of Interest. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subcontractor to file, a Statement of Economic Interest with the City’s Filing Officer if required under state law in the performance of the services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

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18.3. Non-assignment. Consultant shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without City’s prior written consent, and any attempt to do so shall be void and of no effect. City shall not be obligated or liable under this Agreement to any party other than Consultant.

18.4. Binding on Successors. This Agreement shall be binding on the successors and assigns of the parties.

18.5. No Third-Party Beneficiaries. Except as expressly stated herein, there is no intended third-party beneficiary of any right or obligation assumed by the parties.

18.6. Time of the Essence. Time is of the essence for each and every provision of this Agreement.

18.7. Non-Discrimination. Consultant shall not discriminate against any employee or applicant for employment because of race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer-related), marital status, ancestry, or sexual orientation. Employment actions to which this provision applies shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; or in terms, conditions or privileges of employment, and selection for training. Consultant agrees to post in conspicuous places, available to employees and applicants for employment, the provisions of this nondiscrimination clause.

18.8. Waiver. No provision, covenant, or condition of this Agreement shall be deemed to have been waived by City or Consultant unless in writing signed by one authorized to bind the party asserted to have consented to the waiver. The waiver by City or Consultant of any breach of any provision, covenant, or condition of this Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other provision, covenant, or condition.

18.9. Excused Failure to Perform. Consultant shall not be liable for any failure to perform if Consultant presents acceptable evidence, in City’s sole judgment that such failure was due to causes beyond the control and without the fault or negligence of Consultant.

18.10. Remedies Non-Exclusive. Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance from the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers or remedies.

DocuSign Envelope ID: 1CBF56ED-E12A-4F4C-9BDB-4BEFBF282FC6 13 - 50
Professional Services Agreement – Consultant Services

158696.1

18.11. Attorneys’ Fees. If legal action shall be necessary to enforce any term, covenant or condition contained in this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs expended in the action.

18.12. Venue. The venue for any litigation shall be Los Angeles County, California and Consultant hereby consents to jurisdiction in Los Angeles County for purposes of resolving any dispute or enforcing any obligation arising under this Agreement.

TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. “City”
City of South Pasadena
By:________________________________
Signature
Printed:_____________________________
Title:_______________________________
Date:______________________
“Consultant”
Studio Spectrum, Inc.

By:________________________________
Signature
Printed:_____________________________
Title:_______________________________
Date:______________________
Attest:

By:__________________________________
Christina Muñoz, Deputy City Clerk
Date:________________________
Approved as to form:

By:__________________________________
Andrew Jared, City Attorney
Date:________________________
DocuSign Envelope ID: 1CBF56ED-E12A-4F4C-9BDB-4BEFBF282FC6 President
John Buckowski
2/17/2022
2/17/2022
City Manager
Arminé Chaparyan
2/28/2022
2/28/2022
13 - 51
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~~~~
Professional Services Agreement – Consultant Services

158696.1

EXHIBIT A

SCOPE OF WORK
Cablecast Operations
The contractor must effectively operate, or be trained to effectively operate, City-owned equipment located in the cablecast operations room.

1. Operate cablecast of, and video record, City Council and Planning Commission regular meetings, gavel-to-gavel, including no more than 60 minutes of pre-production programming.

2. Operate cablecast of, and video record, City Council and Planning Commission special meetings, gavel-to-gavel, including no more than 60 minutes pre-production programming, at the City’s discretion.

3. Operate cablecast of, and video record, of events and special programming as requested by City staff.

4. Perform pre-meeting tune-up and testing of the audio and video broadcasting systems.

5. Perform necessary editing, including content assembly and character generation.

6. Monitor, integrate, and manage audio/visual presentations.

7. Analyze and troubleshoot system problems that may arise during a broadcast.

Video Web Streaming and Archiving
The contractor must provide all necessary hardware and software components that will provide encoding, streaming, and archiving functionality to allow public users access to live and archived videos. In addition, the contractor must provide the following required features:

1. Hosted capacity for storage of at least six months of archived videos.

2. Hosted streaming capabilities to support a minimum of 100 concurrent users (and a demonstrable method of growth).

3. Indexing and archiving of videos requiring minimal or no engagement by City staff.

4. User-side software that integrates completely with Microsoft Internet Explorer.

5. Service must support cross-platform devices (Android/iOS devices).

6. The quality for web streamed video and archived video should be capable of near-HD quality.

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Professional Services Agreement – Consultant Services

158696.1

EXHIBIT B

APPROVED FEE SCHEDULE
Description of Services
Estimated
No. of Hrs.

Per Year
Retroactive to
July 1, 2021
Approval of
Contract
through June
30, 2024*
Annual
Estimate
Cablecast of regular and special
City Council and Planning
Commission meetings.
(includes offsite Special
Events: Single camera crew,
including production equipment
and post production editing.)
200 $150/hr $165 $33,000
System upgrades and regular
maintenance of equipment 52 $150/hr $165 $8,580
Description of Services Estimated
meetings
Price Per Video
Retroactive to
July 1, 2021
Price Per Video
Approval of
Contract
through June
30, 2024*
Annual Estimate
Video Web Streaming and
Archiving of City Council
meetings (with indexing).
24 $375 $395 $9,480
Video Web Streaming and
Archiving of Planning
Commission meetings (no
indexing).
12 $225 $235 $2,420
*Option to extend for 2 years through June 30, 2026.

DocuSign Envelope ID: 1CBF56ED-E12A-4F4C-9BDB-4BEFBF282FC6 13 - 53
ATTACHMENT 2
1st Amendment to the Professional Services
Agreement for Consultant Services with
Studio Spectrum, Inc.
13 - 54

FIRST AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES THIS AMENDMENT (“Amendment”) is made on this 7th day of June, 2023, by and between the CITY OF SOUTH PASADENA (“CITY”) and STUDIO SPECTRUM, INC. (“CONSULTANT’).

RECITALS
WHEREAS, on February 16, 2022, the CITY and CONSULTANT entered into an Agreement for PROFESSIONAL SERVICES (“Agreement”) for CONSULTANT to provide video production, web streaming and archiving services for the City; and WHEREAS, the original Agreement was in the amount of $53,880 for fiscal year 2021-22, for the Scope of Services; and,
WHEREAS, the original “Agreement Administrator” for this project was Lucy Demirjian, Management Services Director; and,
WHEREAS, the City desires to execute the First Amendment to revise the maximum amount not to exceed $86,000 per fiscal year over the term of the contract; and,

NOW THEREFORE, THE CITY AND THE CONSULTANT AGREE AS
FOLLOWS:

1. That Section 3.2 “Agreement Administrator” of the Agreement is hereby amended to read as follows:
“Agreement Administrator”: The Agreement Administrator for this project is Luis Frausto, Management Services Director. The Agreement Administrator shall be the principal point of contact at the City for this project. All services under this Agreement shall be performed at the request of the Agreement Administrator. The Agreement Administrator will establish the timetable for completion of services and any interim milestones. City reserves the right to change this designation upon written notice to Consultant.”

2. That Section 3.4 “Maximum Amount” of the Agreement is hereby amended to read as follows:

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“Maximum Amount”: The highest total compensation and cost payable to CONSULTANT by CITY under this agreement. The Maximum Amount under this Agreement is Eighty Six Thousand Dollars ($86,000) annually.

3. That Section 3.7 “Annual” is hereby added to read as follows:
“Annual”: The term shall “annual” shall be defined as a fiscal year beginning July 1 to June 30 of any given year.

4. That Section 14 “Notices” is hereby amended to read as follows:
“If to City
Luis Frausto
Management Services Director
City of South Pasadena
Management Services Department
1414 Mission Street
South Pasadena, CA 91030
Telephone: (626) 403-7230
Facsimile: (626) 403-7211”

5. All other terms, conditions, and provisions of the Agreement to the extent not modified by this Amendment, shall remain in full force and effect. “City”
City of South Pasadena
By:________________________________
Signature
Printed: Arminé Chaparyan
Title: City Manager
Date:______________________
“Consultant”
Studio Spectrum, Inc.

By:______________________________
Signature
Printed: John Buckowski
Title: President
Date:______________________
DocuSign Envelope ID: E64DC300-6C42-4DE1-B7DE-0135F86571F7 6/1/2023
13 - 56
r-:DocuSigned by:
~~~

Attest:

By:__________________________
Mark Perez, Deputy City Clerk
Date:________________________
Approved as to form:

By:___________________________
Andrew L. Jared, City Attorney
Date:________________________
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ATTACHMENT 4
2nd Amendment to the Professional
Services Agreement for Consultant Services
with Studio Spectrum, Inc.
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SECOND AMENDMENT TO

PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES THIS SECOND AMENDMENT (“Second Amendment”) is made and entered into on this 19th day of July, 2023, and is to the Professional Services Agreement dated February 16, 2022 by and between the CITY OF SOUTH PASADENA (“CITY”) and STUDIO SPECTRUM, INC. (“CONSULTANT’).

RECITALS
WHEREAS, on February 16, 2022, the CITY and CONSULTANT entered into an Agreement for Professional Services for CONSULTANT to provide video production, web streaming and archiving services for the City; and
WHEREAS, on June 7, 2023, the City executed the First Amendment to amend the maximum compensation to a not to exceed amount of $86,000 per each fiscal year over the term of the contract. The Agreement and First Amendment shall collectively be referred as the “Agreement;”and,
WHEREAS, the City now desires to amend the Agreement to revise the maximum compensation amount to a not to exceed $90,000 beginning with Fiscal Year 2022-2023 through the remaining term of the Agreement and any extensions, thereof.

NOW THEREFORE, THE CITY AND THE CONSULTANT AGREE AS
FOLLOWS:

Section 1. Section 3.4 “Maximum Amount” of the Agreement is hereby amended to read as follows:
“Maximum Amount”: The highest total compensation and cost payable to CONSULTANT by CITY under this agreement. The Maximum Amount under this Agreement is Ninety Thousand Dollars ($90,000) annually beginning with Fiscal Year 2022-2023.

Section 2. All other terms, conditions, and provisions of the Agreement to the extent not modified by this Amendment, shall remain in full force and effect. 13 - 61

“City”
City of South Pasadena
By:________________________________
Signature
Printed: Arminé Chaparyan
Title: City Manager
Date:______________________
“Consultant”
Studio Spectrum, Inc.

By:______________________________
Signature
Printed: John Buckowski
Title: President
Date:______________________
Attest:

By:__________________________
Mark Perez, Deputy City Clerk
Date:________________________
Approved as to form:

By:___________________________
Roxanne Diaz, City Attorney
Date:________________________
13 - 62
City Council
Agenda Report
DATE: July 19, 2023
FROM: Armine Chaparyan, City Manager �� --fir' /tv
PREPARED BY: Luis Frausto, Management Services Director Alma Medina, Senior Management Analyst
ITEM NO.

SUBJECT: Adopt a Resolution Approving a Purchase Order with Dell Marketing, LP., in the Amount Not-To-Exceed of $75,000 for the First Phase of the Three-Year Workstation Replacement
Program, Utilizing the NASPO ValuePoint Cooperative
Purchasing Program
Recommendation
It is recommended that the City Council adopt a resolution approving a purchase order with Dell Marketing, LP. in the amount not to exceed $75,000, authorizing the use of the NASPO ValuePoint Cooperative Purchasing Program for the purchase and authorizing the City Manager to effectuate the purchase.

Executive Summary
As part of the Fiscal Year 2023-2024 budget, the City Council authorized funding for the first phase of the City's technology replacement program. The City has historically purchased hardware technology (i.e. computers) from a third-party (the City's IT consultant Acorn Technology), who would then order from Dell. To increase efficiencies, and reduce reliance on a third-party intermediary, Management Services recommends the approval to purchase technology hardware directly from Dell as part of our computer replacement program using the NASPO Value Point Cooperative Purchasing Program.

Many department computers and city hardware have exceeded useful life and must be replaced to be more efficient in performing normal functions.

Background
The Management Services Department is responsible for operating, maintaining, and improving the City's information technology (IT) infrastructure. One of the department's priority efforts is to update the aged technology used citywide for daily operations. City workstations and other technological hardware have reached end of life and require replacement.

Many department computer workstations and other hardware have exceeded their useful life and will soon become inefficient in performing normal functions. Over time, these resources wear, age, and/or become obsolete, causing performance degradation, 14 14 - 1
Dell Hardware Replacements
July 19, 2023

excessive support and repair activity, and loss of reliability. This results in a loss of productivity for staff and increased labor and equipment costs to maintain the environment at an acceptable level. A majority of the City's desktop computers and laptops need to be updated and replaced. Relying on repairs may not be an option as parts may be discontinued and unavailable. Employees rely heavily on their computers for their daily functions, and slow computers will hinder service delivery efficiency.

Moreover, new software requirements will not be compatible with aging computers.

Staff recommends a three-year, cost-effective equipment upgrade and replacement program to manage these impacts. With a phased approach, the cost of the workstation replacements is spread across three fiscal years, thus lessening the financial burden on the City in Fiscal Year 2024.

During Fiscal Year 2022-2023, the department replaced some high-priority workstations that were completely end-of-life and/or no longer operational. As these items were replaced, the City standardized monitors, laptops, and docking stations to be used by City staff. Staff worked with the City’s IT consultant to create a three-year replacement program to phase out all end-of-life technology within the next three fiscal years, to minimize the fiscal impact. As such, funds were included in the Fiscal Year 2024 budget for the first year of the replacement program.

After the replacement program is completed, workstation technologies will be replaced every four years, dependent on the product’s serviceability. By implementing a technology replacement program, the City will be able to utilize the most up to date technologies and therefore continue providing services to the community without interruption. The dependability of technology is crucial to the delivery of services by the City.

Analysis
The City historically has purchased Dell computers through the City’s IT consultant, Acorn Technologies. Staff, however, is recommending that the City purchase technology hardware directly from Dell using the National Association of State Procurement Officials’ (NASPO) Value Point Cooperative Purchasing Program.

NASPO has established a cooperative purchasing consortium (Value Point) consisting of state purchasing officials throughout the United States. who solicit and award competitive bids on behalf of the consortium. These awards typically provide the deepest discounts available, due to the pooled requirements of the member agencies.

On April 1, 2017, the State of Minnesota entered into a Cooperative Master Purchasing Agreement with Dell entitled the NASPO ValuePoint (MNWNC-108). In order to extend these discounts to its local government agencies (cities and counties), the State of California joined under the California Participating Addendum No. 7-15-70-34-003, which extends the same pricing and terms as the NASPO ValuePoint contract. The cooperative purchase agreement sets discounted pricing for the procurement of Dell technology, including desktops, laptops, servers, and monitors.
14 - 2
Dell Hardware Replacements
July 19, 2023

Section 2.99-29(19) of the South Pasadena Municipal Code and the City's Purchasing Policy allows the City to engage in cooperative procurement whereby the City uses another public agency’s competitive bidding process as its own to purchase goods it needs. In this case, the City will use the pricing and terms set forth in the NASPO ValuePoint contract. This procurement tool has been used effectively by local agencies for several years.

The NASPO agreement and its amendments are included as Attachment 1. The most recent amendment extends the agreement to July 31, 2023, which we anticipate will be extended. Pursuant to the City’s Purchasing Policy, City Council approval is required for cooperative purchases that exceed $30,000. If approved, the proposed Resolution will authorize the City Manager to facilitate the purchases from Dell in the amount not to exceed of $75,000.

Over the past several years, the City has engaged Dell for computer-related purchases for daily operations, which has been facilitated by the City’s IT consultant, Acorn Technologies. If the recommended action is approved, staff will be able to work directly with Dell for the procurement of technology.

Alternatives
City Council may also consider the following alternatives to this recommendation or any others they may discuss as a part of this report:

1. Maintain status quo and not replace existing end-of-life workstations and related equipment; or

2. Direct staff to release a request for proposal for other technology vendors; or

3. Direct staff to continue to procure items from Dell, via Acorn Technologies.

Fiscal Impact
Funds in the amount of $75,000, were included in the Fiscal Year 2024 budget, to fund citywide technology hardware replacements, including monitors, laptops, and desktops.

This is the first year, in a three-year replacement program. Funding for this program in future fiscal years will be requested as part of the normal budget process.

Key Performance Indicators and Strategic Plan
This item aligns with Strategic Plan priority 6d, to improve technology and the Department’s key performance indicator for FY 2024 of implementing the first year of a three-year replacement cycle for technology hardware.

Attachments:

1. NASPO Agreement and Amendments

2. Proposed Resolution
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ATTACHMENT 1
NASPO Agreement and Amendments
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PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

1. Scope: The State of Minnesota, Department of Administration, Materials Management Division publicly conducted a Request for Proposal on behalf of the State of Minnesota and the National Association of State Procurement Officials Cooperative Procurement Program (NASPO ValuePoint) resulting in Master Agreement number MNWNC-108. The Master Agreement led by the State of Minnesota along with a multi-state sourcing team, was created for use by state agencies and other entities that are authorized by that state’s statutes to utilize cooperative agreements, upon written approval of the State’s chief procurement official.

The Master Agreement for computer equipment (desktops, laptops, tablets, servers, and storage, and ruggedized devices, including related peripherals & services) identifies the product bands awarded to the Contractor.

This Participating Addendum (Addendum) is made and entered into as of the Effective Date by and between the State of Florida (Participating State) and Dell Marketing, L.P. (Contractor). This Addendum allows for purchase of computer equipment from the Master Agreement. This Addendum shall not diminish, change, or impact the rights of the Lead State with regard to the Lead State’s contractual relationship with the Contractor under the terms of the Master Agreement.

2. Participation: Use of specific NASPO ValuePoint cooperative agreements by eligible users authorized by a Participating State’s statutes are subject to the prior approval of the respective State Chief Procurement Officer. Issues of interpretation and eligibility for participation are solely within the authority of the State Chief Procurement Officer.

3. Order of Precedence:

In the event of a conflict, the following documents shall have priority in the order set forth below:
a. This Participating Addendum
b. Exhibit 2, PUR 1000
c. Exhibit 1, Minnesota NASPO ValuePoint Master Agreement No. MNWNC-108.

4. Participating State Modifications or Additions to Master Agreement:

A. Upon execution of this Addendum, all eligible users may purchase products and services under contract using the Florida alternate contract source number 43211500-WSCA-15-ACS. 14 - 7

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

Eligible users acknowledge and agree to be bound by the terms and conditions of the Master Agreement except as otherwise specified in this Addendum.

1. The following are modifications to the Master Agreement:
a. PUR 1000 Form:, General Contract Conditions, is attached hereto and incorporated herein as Exhibit 2.
b. Discriminatory Vendors. A vendor placed on the discriminatory vendor list pursuant to section 287.134 of the Florida Statutes may not be awarded or perform work as a contractor, supplier, sub-contractor, or consultant under a contract with any public entity; or transact business with any public entity.
c. Effective Date: This Addendum shall become effective on the last date signed below and is coterminous with Exhibit 1, unless terminated earlier by the Participating State. d. Vendor Registration and Transaction Fees: In order to complete any transaction between an eligible user and the Contractor, the Contractor must be registered with the Department of State, Division of Corporations (www.sunbiz.org) and in MyFloridaMarketPlace. Section 287.042(1)(h), Florida Statutes, and Rule 60A-1.031, Florida Administrative Code, is hereby incorporated by reference. All transactions are subject to a transaction fee pursuant to the rule.
e. Purchases: In order to procure products and services hereunder, eligible users shall issue purchase orders or use a purchasing card which shall reference Florida alternate contract source number 43211500-WSCA-15-ACS. Eligible users are responsible for reviewing the terms and conditions of this Addendum including all Exhibits. f. Compliance with Laws: The Contractor shall comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of federal, State, and local agencies having jurisdiction and authority. By way of non-exhaustive example, Chapter 287 of the Florida Statutes and Rule 60A-1 of the Florida Administrative Code govern this Addendum. By way of further non-exhaustive example, the Contractor shall comply with section 274A of the Immigration and Nationalization Act, the Americans with Disabilities Act, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran's status. Violation of any laws, rules, codes, 14 - 8

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

ordinances, or licensing requirements shall be grounds for termination or nonrenewal of this Addendum.
g. Additional Eligible User Terms: If any additional ordinance, rule, or other local governmental authority requires additional contract language before an eligible user can make a purchase under this Addendum, the eligible user is responsible for entering a separate agreement with the Contractor and capturing that additional contract language therein.
h. Provisions of section 287.058, Florida Statutes: The provisions of section 287.058(1)(a)- (c) and (g), Florida Statutes, are hereby incorporated by reference. i. Public Records: The Contractor shall allow public access to all documents, papers, letters, or other material made or received by the Contractor in conjunction with this Addendum, unless the records are exempt from section 24(a) of Article I of the State Constitution or subsection 119.07(1), Florida Statutes. The Participating State may unilaterally terminate this Addendum if the Contractor refuses to allow public access as required in this section. If, under this Addendum, the Contractor is providing services and is acting on behalf of the public agency as provided under subsection 119.011(2), Florida Statutes, the Contractor must:
(1) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. (2) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.
(4) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the Contractor upon termination of this Addendum and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to public agency in a format that is compatible with the information technology systems of the public agency 14 - 9

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

j. The State of Florida’s performance and obligation to pay under this Addendum is contingent upon an annual appropriation by the Legislature. The vendor shall comply with section 11.062, Florida Statutes and section 216.347, Florida Statutes, prohibiting use of funds to lobby the Legislature, Judicial, or state agencies.

B. Contract Document: This Addendum and its Exhibits set forth the entire agreement between the parties with respect to the subject matter of the contract.

C. Intellectual Property: The parties do not anticipate that any intellectual property will be developed as a result of this Addendum. However, any intellectual property developed as a result of this Addendum will belong to and be the sole property of the Participating State. This provision will survive the termination or expiration of the contract.

D. Employment Eligibility Verification: Pursuant to State of Florida Executive Orders Nos.: 11-02 and 11-116, Contractor is required to utilize the U.S. Department of Homeland Security's EVerify system to verify the employment of all new employees hired by the Contractor during the contract term. Also, Contractor shall require resellers/partners performing work or providing services under this Addendum to utilize the E-Verify system to verify employment of all new employees hired by the reseller/partner during the Addendum term.

E. Price List/Preferred Price: The Contractor’s price list will be the same as the WSCA-NASPO price list, and the Department will post a link on the Department’s website to the price list posted on the WSCA-NASPO website. Contractors are encouraged to provide special pricing and/or tiered discount rates applicable to State of Florida Eligible Users wherever possible. Paragraph 4(b) of the PUR1000 is not applicable.

F. Scrutinized Company List: In executing this Addendum, Contractor certifies that it is not listed on either the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to section 215.473, Florida Statutes. Pursuant to subsection 287.135(5), Florida Statutes, Contractor agrees the Participating State may immediately terminate this Addendum for cause if the Contractor is found to have submitted a false certification or if Contractor is placed on the Scrutinized 14 - 10

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List during the term of the Addendum.

G. Orders: Any Order placed by eligible users for a product and/or service available from the Master Agreement shall be deemed to be a sale under and governed by the prices and other terms and conditions of the Master Agreement and this Addendum.

1. The Contractor agrees to meet the following requirements:
a. Provide appropriate contact information for eligible users to use for product and/or service inquiries and purchases, as well as, the most up-to-date product/service offering the Contractor is authorized to provide in accordance with the Master Agreement; and b. If orders are to be sent to resellers/partners for fulfillment then the Contractor is responsible for providing and updating this list of authorized resellers/partners for use to the Participating State/Entity.

2. Contractor must be able to accept purchase orders via fax, e-mail, or cXML as identified in H.1 below.

H. Electronic Invoicing: The Contractor shall supply electronic invoices in lieu of paper-based invoices for those transactions processed through the MyFloridaMarketPlace (MFMP) within ninety (90) days from Addendum effective date. Electronic invoices shall be submitted to the agency through the Ariba Network (AN) in one of three mechanisms as listed below:

1. cXML (commerce eXtensible Markup Language)
This standard establishes the data contents required for invoicing via cXML within the context of an electronic environment. This transaction set can be used for invoicing via the AN for catalog and non-catalog goods and services. The cXML format is the Ariba preferred method for e-Invoicing.

2. EDI (Electronic Data Interchange)
This standard establishes the data contents of the Invoice Transaction Set (810) for use within the context of an Electronic Data Interchange (EDI) environment. This transaction set can be used for invoicing via the AN for catalog and non-catalog goods and services. 14 - 11

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

3. PO Flip via AN
The online process allows Contractors to submit invoices via the AN for catalog and noncatalog goods and services. Contractors have the ability to create an invoice directly from their Inbox in their AN account by simply "flipping" the PO into an invoice. This option does not require any special software or technical capabilities.

For the purposes of this section, the Contractor warrants and represents that it is authorized and empowered to and hereby grants the State and the third party provider of MFMP, a state contractor, the right and license to use, reproduce, transmit, distribute, and publicly display within the system the information outlined above. In addition, the Contractor warrants and represents that it is authorized and empowered to and hereby grants the State and the third party provider the right and license to reproduce and display within the system the Contractor's trademarks, system marks, logos, trade dress, or other branding designation that identifies the products made available by the Contractor under the contract.

The Contractor will work with the MFMP management team to obtain specific requirements for the electronic invoicing if needed.

I. Contract Quarterly Reports: The Contractor shall submit a Quarterly Report in the required format electronically to the Participating State/Entity within 30 days of the end of the quarter.

The Participating State/Entity reserves the right to require the Contractor to provide additional reports within 30 days written notice. Failure to provide the Quarterly Report or other reports requested by the Participating State/Entity may result in the Contractor being found in default and may result in termination of this Addendum.

Sales will be reviewed on a quarterly basis. Should no sales be recorded in two consecutive contract quarters, the Participating State/Entity may terminate this Addendum.

J. Business Review Meetings: The Participating State/Entity reserves the right to schedule business review meetings as frequently as necessary. The Participating State/Entity will provide the format for the Contractor's agenda. Prior to the meeting, the Contractor shall submit the completed agenda to the Participating State/Entity for review and acceptance. The Contractor 14 - 12

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

shall address the agenda items and any of the Participating State/Entity's additional concerns at the meeting. Failure to comply with this section may result in the Contractor being found in default and Addendum termination.

K. Commitment to Diversity in Government Contracting: The State of Florida is committed to supporting its diverse business industry and population through ensuring participation by minority-, women-, wartime-, and service-disabled veteran business enterprises in the economic life of the State. The State of Florida Mentor Protégé Program connects minority-, women-, wartime-, and service-disabled veteran business enterprises with private corporations for business development mentoring. We strongly encourage firms doing business with the State of Florida to consider this initiative. For more information on the Mentor Protégé Program, please contact the Office of Supplier Diversity at (850) 487-0915 or [email protected].

Upon request, the Contractor shall report to the Office of Supplier Diversity spend with certified and other minority business enterprises. These reports will include the period covered, the name, minority code and Federal Employer Identification Number of each minority vendor utilized during the period. Commodities and services provided by the minority business enterprise, and the amount paid to each minority vendor on behalf of each purchasing agency ordering under the terms of this Addendum.

L. Resellers/Partners: The Contractor may use resellers/partners in order to provide computer equipment and services. All resellers/partners shall be the direct responsibility of the Contractor. The Contractor is responsible for all liability, terms and conditions within Master Agreement and this Addendum. The Contractors resellers/partners’ participation will be in accordance with the terms and conditions set forth in the aforementioned Master Agreement and this Addendum. If a reseller/partner is authorized to conduct business on behalf of the Contractor and the reseller/partner is to receive compensation from the Contractor for its services, then any dispute between the Contractor and the reseller/partner shall be resolved between the Contractor and the reseller/partner. The State of Florida is not a party to any agreement entered into between the Contractor and its resellers/partners. The Contractor shall be responsible to report all contract sales (and pay any associated MFMP transaction fees), 14 - 13

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

including those of any such resellers/partners and shall ensure that all such resellers/partners meet the following requirements:
• Have an ACTIVE Registration with the Florida Department of State, Division of Corporations (www.sunbiz.org)
• Registered in the MFMP Vendor Information Portal
(https://vendor.myfloridamarketplace.com)
• Not be on the State of Florida’s Convicted, Suspended, or Discriminatory lists http://www.dms.myflorida.com/business_operations/State_purchasing/vendor_informatio n/convicted_suspended_discriminatory_complaints_vendor_lists • Have a copy of e-Verify Status on file
• Have a current W-9 filed with the Florida Department of Financial Services (https://flvendor.myfloridacfo.com)
M. Primary Contacts: The primary government contact individuals for this Addendum are as follows (or their named successors):

Contractor
Name Diane Wigington
Address Dell Marketing, L.P.

One Dell Way, Mailstop 8707, Round Rock, TX 78682
Telephone 512-728-4805
E-mail [email protected]
Participating Entity
Name Jerilyn Bailey
Address Florida Department of Management Services
4050 Esplanade Way, Suite 360, Tallahassee, FL 32399-0950 Telephone 850-921-4072
E-mail [email protected]
14 - 14
14 - 15
Participating State:

Florida I'\
By:

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, LP.

And
The State of Florida
Dell Contract Code WN08AGW
Alternate Contract Source No. 43211500-WSCA-15-ACS
Contractor:

Dell Marketing LP
By: tA--- (~0t,w \. - . . • , . . . '~~,>+
Name: Name: _V (??I\ fb;tX Lauren D. Newberry
Title: Title:

Contracts Consultant
Date: 1-J --,r Date: 8/14/2015
Director of State Purchasing and
Chief Pro t Officer

Please email fully executed PDF copy of this document to [email protected] to support documentation of participation and posting in appropriate data bases.

PARTICIPATING ADDENDUM
to the
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Administered by the State of Minnesota
Master Agreement No: MNWNC-108
Dell Marketing, L.P.

And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS

N. Warrant of Authority: Each person signing this Addendum warrants that he or she is duly authorized to do so and to bind the respective party.

7. Terms. The Participating State is agreeing to the terms of the Master Agreement only to the extent the terms are not in conflict with applicable law.

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

Participating State:

Florida
Contractor:
{Insert Vendor Name Here}
By: By:

Name: Name:

Title: Title:

Date: Date:

Florida’s Chief Procurement Officer:

By:

Name:

Roz Ingram
Title:

Director of State Purchasing and
Chief Procurement Officer
Date:

Please email fully executed PDF copy of this document to [email protected] to support documentation of participation and posting in appropriate data bases. 14 - 16
______________________________________________________________________________ PUR 1000 (10/06) Page 1 of 14 60A-1.002, F.A.C.

State of Florida
PUR 1000
General Contract Conditions
Contents

1. Definitions.

2. Purchase Orders.

3. Product Version.

4. Price Changes Applicable only to Term Contracts.

5. Additional Quantities.

6. Packaging.

7. Inspection at Contractor’s Site.

8. Safety Standards.

9. Americans with Disabilities Act.

10. Literature.

11. Transportation and Delivery.

12. Installation.

13. Risk of Loss.

14. Transaction Fee.

15. Invoicing and Payment.

16. Taxes.

17. Governmental Restrictions.

18. Lobbying and Integrity.

19. Indemnification.

20. Limitation of Liability.

21. Suspension of Work.

22. Termination for Convenience.

23. Termination for Cause.

24. Force Majeure, Notice of Delay, and No Damages for Delay.

25. Changes.

26. Renewal.

27. Purchase Order Duration.

28. Advertising.

29. Assignment.

30. Antitrust Assignment

31. Dispute Resolution.

32. Employees, Subcontractors, and Agents.

33. Security and Confidentiality.

34. Contractor Employees, Subcontractors, and Other Agents.

35. Insurance Requirements.

36. Warranty of Authority.

37. Warranty of Ability to Perform.

38. Notices.

39. Leases and Installment Purchases.

40. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE). 14 - 17
______________________________________________________________________________ PUR 1000 (10/06) Page 2 of 14 60A-1.002, F.A.C.

41. Products Available from the Blind or Other Handicapped.

42. Modification of Terms.

43. Cooperative Purchasing.

44. Waiver.

45. Annual Appropriations.

46. Execution in Counterparts.

47. Severability.

1. Definitions. The definitions contained in s. 60A-1.001, F.A.C. shall apply to this agreement.

The following additional terms are also defined:
(a) “Contract” means the legally enforceable agreement that results from a successful solicitation. The parties to the Contract will be the Customer and Contractor. (b) “Customer” means the State agency or other entity identified in a contract as the party to receive commodities or contractual services pursuant to a contract or that orders commodities or contractual services via purchase order or other contractual instrument from the Contractor under the Contract. The “Customer” may also be the “Buyer” as defined in the PUR 1001 if it meets the definition of both terms. (c) “Product” means any deliverable under the Contract, which may include commodities, services, technology or software.
(d) “Purchase order” means the form or format a Customer uses to make a purchase under the Contract (e.g., a formal written purchase order, electronic purchase order, procurement card, contract or other authorized means).

2. Purchase Orders. In contracts where commodities or services are ordered by the Customer via purchase order, Contractor shall not deliver or furnish products until a Customer transmits a purchase order. All purchase orders shall bear the Contract or solicitation number, shall be placed by the Customer directly with the Contractor, and shall be deemed to incorporate by reference the Contract and solicitation terms and conditions. Any discrepancy between the Contract terms and the terms stated on the Contractor’s order form, confirmation, or acknowledgement shall be resolved in favor of terms most favorable to the Customer. A purchase order for services within the ambit of section 287.058(1) of the Florida Statutes shall be deemed to incorporate by reference the requirements of subparagraphs (a) through (f) thereof. Customers shall designate a contract manager and a contract administrator as required by subsections 287.057(15) and (16) of the Florida Statutes.

3. Product Version. Purchase orders shall be deemed to reference a manufacturer’s most recently release model or version of the product at the time of the order, unless the Customer specifically requests in writing an earlier model or version and the contractor is willing to provide such model or version.
14 - 18
______________________________________________________________________________ PUR 1000 (10/06) Page 3 of 14 60A-1.002, F.A.C.

4. Price Changes Applicable only to Term Contracts. If this is a term contract for commodities or services, the following provisions apply. (a) Quantity Discounts. Contractors are urged to offer additional discounts for one time delivery of large single orders. Customers should seek to negotiate additional price concessions on quantity purchases of any products offered under the Contract. State Customers shall document their files accordingly.
(b) Best Pricing Offer. During the Contract term, if the Customer becomes aware of better pricing offered by the Contractor for substantially the same or a smaller quantity of a product outside the Contract, but upon the same or similar terms of the Contract, then at the discretion of the Customer the price under the Contract shall be immediately reduced to the lower price.
(c) Sales Promotions. In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, a Contractor may conduct sales promotions involving price reductions for a specified lesser period. A Contractor shall submit to the Contract Specialist documentation identifying the proposed (1) starting and ending dates of the promotion, (2) products involved, and (3) promotional prices compared to thenauthorized prices. Promotional prices shall be available to all Customers. Upon approval, the Contractor shall provide conspicuous notice of the promotion. (d) Trade-In. Customers may trade-in equipment when making purchases from the Contract.

A trade-in shall be negotiated between the Customer and the Contractor. Customers are obligated to actively seek current fair market value when trading equipment, and to keep accurate records of the process. For State agencies, it may be necessary to provide documentation to the Department of Financial Services and to the agency property custodian pursuant to Chapter 273, F.S.
(e) Equitable Adjustment. The Customer may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor’s control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss.

5. Additional Quantities. For a period not exceeding ninety (90) days from the date of solicitation award, the Customer reserves the right to acquire additional quantities up to the amount shown on the solicitation but not to exceed the threshold for Category Two at the prices submitted in the response to the solicitation.

6. Packaging. Tangible product shall be securely and properly packed for shipment, storage, and stocking in appropriate, clearly labeled, shipping containers and according to accepted 14 - 19
______________________________________________________________________________ PUR 1000 (10/06) Page 4 of 14 60A-1.002, F.A.C.
commercial practice, without extra charge for packing materials, cases, or other types of containers. All containers and packaging shall become and remain Customer’s property.

7. Inspection at Contractor’s Site. The Customer reserves the right to inspect, at any reasonable time with prior notice, the equipment or product or plant or other facilities of a Contractor to assess conformity with Contract requirements and to determine whether they are adequate and suitable for proper and effective Contract performance.

8. Safety Standards. All manufactured items and fabricated assemblies subject to operation under pressure, operation by connection to an electric source, or operation involving connection to a manufactured, natural, or LP gas source shall be constructed and approved in a manner acceptable to the appropriate State inspector. Acceptability customarily requires, at a minimum, identification marking of the appropriate safety standard organization, where such approvals of listings have been established for the type of device offered and furnished, for example: the American Society of Mechanical Engineers for pressure vessels; the Underwriters Laboratories and/or National Electrical Manufacturers’ Association for electrically operated assemblies; and the American Gas Association for gas-operated assemblies. In addition, all items furnished shall meet all applicable requirements of the Occupational Safety and Health Act and state and federal requirements relating to clean air and water pollution.

9. Americans with Disabilities Act. Contractors should identify any products that may be used or adapted for use by visually, hearing, or other physically impaired individuals.

10. Literature. Upon request, the Contractor shall furnish literature reasonably related to the product offered, for example, user manuals, price schedules, catalogs, descriptive brochures, etc.

11. Transportation and Delivery. Prices shall include all charges for packing, handling, freight, distribution, and inside delivery. Transportation of goods shall be FOB Destination to any point within thirty (30) days after the Customer places an Order. A Contractor, within five (5) days after receiving a purchase order, shall notify the Customer of any potential delivery delays. Evidence of inability or intentional delays shall be cause for Contract cancellation and Contractor suspension.

12. Installation. Where installation is required, Contractor shall be responsible for placing and installing the product in the required locations at no additional charge, unless otherwise designated on the Contract or purchase order. Contractor’s authorized product and price list shall clearly and separately identify any additional installation charges. All materials used in the installation shall be of good quality and shall be free of defects that would diminish the appearance of the product or render it structurally or operationally unsound. Installation includes the furnishing of any equipment, rigging, and materials required to install or replace the product in the proper location. Contractor shall protect the site from damage and shall repair damages or injury caused during installation by Contractor or its employees or agents.

If any alteration, dismantling, excavation, etc., is required to achieve installation, the Contractor shall promptly restore the structure or site to its original condition. Contractor 14 - 20
______________________________________________________________________________ PUR 1000 (10/06) Page 5 of 14 60A-1.002, F.A.C.
shall perform installation work so as to cause the least inconvenience and interference with Customers and with proper consideration of others on site. Upon completion of the installation, the location and surrounding area of work shall be left clean and in a neat and unobstructed condition, with everything in satisfactory repair and order.

13. Risk of Loss. Matters of inspection and acceptance are addressed in s. 215.422, F.S. Until acceptance, risk of loss or damage shall remain with the Contractor. The Contractor shall be responsible for filing, processing, and collecting all damage claims. To assist the Contractor with damage claims, the Customer shall: record any evidence of visible damage on all copies of the delivering carrier’s Bill of Lading; report damages to the carrier and the Contractor; and provide the Contractor with a copy of the carrier’s Bill of Lading and damage inspection report. When a Customer rejects a product, Contractor shall remove it from the premises within ten days after notification or rejection. Upon rejection notification, the risk of loss of rejected or non-conforming product shall remain with the Contractor. Rejected product not removed by the Contractor within ten days shall be deemed abandoned by the Contractor, and the Customer shall have the right to dispose of it as its own property. Contractor shall reimburse the Customer for costs and expenses incurred in storing or effecting removal or disposition of rejected product.

14. Transaction Fee. The State of Florida has instituted MyFloridaMarketPlace, a statewide eProcurement System (“System”). Pursuant to section 287.057(23), Florida Statutes (2002), all payments shall be assessed a Transaction Fee of one percent (1.0%), which the Contractor shall pay to the State, unless exempt pursuant to 60A-1.032, F.A.C.

For payments within the State accounting system (FLAIR or its successor), the Transaction Fee shall, when possible, be automatically deducted from payments to the Contractor. If automatic deduction is not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A-1.031(2), F.A.C. By submission of these reports and corresponding payments, Contractor certifies their correctness. All such reports and payments shall be subject to audit by the State or its designee.

Contractor shall receive a credit for any Transaction Fee paid by the Contractor for the purchase of any item(s) if such item(s) are returned to the Contractor through no fault, act, or omission of the Contractor. Notwithstanding the foregoing, a Transaction Fee is nonrefundable when an item is rejected or returned, or declined, due to the Contractor’s failure to perform or comply with specifications or requirements of the agreement.

Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees. CONTRACTORS DELINQUENT IN PAYING TRANSACTION

FEES MAY BE SUBJECT TO BEING REMOVED FROM THE DEPARTMENT OF MANAGEMENT SERVICES’ VENDOR LIST AS PROVIDED IN RULE 60A-1.006, F.A.C.

15. Invoicing and Payment. Invoices shall contain the Contract number, purchase order number if applicable, and the appropriate vendor identification number. The State may require any 14 - 21
______________________________________________________________________________ PUR 1000 (10/06) Page 6 of 14 60A-1.002, F.A.C.
other information from the Contractor that the State deems necessary to verify any purchase order placed under the Contract.

At the State's option, Contractors may be required to invoice electronically pursuant to guidelines of the Department of Management Services. Current guidelines require that Contractor supply electronic invoices in lieu of paper-based invoices for those transactions processed through the system. Electronic invoices shall be submitted to the Customer through the Ariba Supplier Network (ASN) in one of the following mechanisms – EDI 810, cXML, or web-based invoice entry within the ASN.

Payment shall be made in accordance with sections 215.422 and 287.0585 of the Florida Statutes, which govern time limits for payment of invoices. Invoices that must be returned to a Contractor due to preparation errors will result in a delay in payment. Contractors may call (850) 413-7269 Monday through Friday to inquire about the status of payments by State Agencies. The Customer is responsible for all payments under the Contract. A Customer’s failure to pay, or delay in payment, shall not constitute a breach of the Contract and shall not relieve the Contractor of its obligations to the Department or to other Customers.

16. Taxes. The State does not pay Federal excise or sales taxes on direct purchases of tangible personal property. The State will not pay for any personal property taxes levied on the Contractor or for any taxes levied on employees’ wages. Any exceptions to this paragraph shall be explicitly noted by the Customer in the special contract conditions section of the solicitation or in the Contract or purchase order.

17. Governmental Restrictions. If the Contractor believes that any governmental restrictions have been imposed that require alteration of the material, quality, workmanship or performance of the products offered under the Contract, the Contractor shall immediately notify the Customer in writing, indicating the specific restriction. The Customer reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Customer.

18. Lobbying and Integrity. Customers shall ensure compliance with Section 11.062, FS and Section 216.347, FS.The Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee’s decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For purposes of clause (2), “gratuity” means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. Upon request of the Customer’s Inspector General, or other authorized State official, the Contractor shall provide any type of information the Inspector General deems relevant to the Contractor’s integrity or responsibility. Such information may include, but shall not be limited to, the Contractor’s business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor shall retain such records for the longer of (1) three years after the expiration of the 14 - 22
______________________________________________________________________________ PUR 1000 (10/06) Page 7 of 14 60A-1.002, F.A.C.

Contract or (2) the period required by the General Records Schedules maintained by the Florida Department of State (available at: http://dos.myflorida.com/library-archives/recordsmanagement/general-records-schedules/). The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor’s compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor. Such costs shall include, but shall not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for any costs of investigations that do not result in the Contractor’s suspension or debarment.

19. Indemnification. The Contractor shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the State and Customers, and their officers, agents, and employees, from suits, actions, damages, and costs of every name and description, including attorneys’ fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by Contractor, its agents, employees, partners, or subcontractors, provided, however, that the Contractor shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the State or a Customer.

Further, the Contractor shall fully indemnify, defend, and hold harmless the State and Customers from any suits, actions, damages, and costs of every name and description, including attorneys’ fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right, provided, however, that the foregoing obligation shall not apply to a Customer’s misuse or modification of Contractor’s products or a Customer’s operation or use of Contractor’s products in a manner not contemplated by the Contract or the purchase order. If any product is the subject of an infringement suit, or in the Contractor’s opinion is likely to become the subject of such a suit, the Contractor may at its sole expense procure for the Customer the right to continue using the product or to modify it to become non-infringing. If the Contractor is not reasonably able to modify or otherwise secure the Customer the right to continue using the product, the Contractor shall remove the product and refund the Customer the amounts paid in excess of a reasonable rental for past use. The customer shall not be liable for any royalties.

The Contractor’s obligations under the preceding two paragraphs with respect to any legal action are contingent upon the State or Customer giving the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor’s sole expense, and (3) assistance in defending the action at Contractor’s sole expense. The Contractor shall not be liable for any cost, expense, or compromise incurred or made by the State or Customer in any legal action without the Contractor’s prior written consent, which shall not be unreasonably withheld.

20. Limitation of Liability. For all claims against the Contractor under any contract or purchase order, and regardless of the basis on which the claim is made, the Contractor’s liability under a contract or purchase order for direct damages shall be limited to the greater of $100,000, the dollar amount of the contract or purchase order, or two times the charges rendered by the 14 - 23
______________________________________________________________________________ PUR 1000 (10/06) Page 8 of 14 60A-1.002, F.A.C.

Contractor under the purchase order. This limitation shall not apply to claims arising under the Indemnity paragraph contain in this agreement.

Unless otherwise specifically enumerated in the Contract or in the purchase order, no party shall be liable to another for special, indirect, punitive, or consequential damages, including lost data or records (unless the contract or purchase order requires the Contractor to back-up data or records), even if the party has been advised that such damages are possible. No party shall be liable for lost profits, lost revenue, or lost institutional operating savings. The State and Customer may, in addition to other remedies available to them at law or equity and upon notice to the Contractor, retain such monies from amounts due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of the Contractor or its affiliates to the State against any payments due the Contractor under any contract with the State.

21. Suspension of Work. The Customer may in its sole discretion suspend any or all activities under the Contract or purchase order, at any time, when in the best interests of the State to do so. The Customer shall provide the Contractor written notice outlining the particulars of suspension. Examples of the reason for suspension include, but are not limited to, budgetary constraints, declaration of emergency, or other such circumstances. After receiving a suspension notice, the Contractor shall comply with the notice and shall not accept any purchase orders. Within ninety days, or any longer period agreed to by the Contractor, the Customer shall either (1) issue a notice authorizing resumption of work, at which time activity shall resume, or (2) terminate the Contract or purchase order. Suspension of work shall not entitle the Contractor to any additional compensation.

22. Termination for Convenience. The Customer, by written notice to the Contractor, may terminate the Contract in whole or in part when the Customer determines in its sole discretion that it is in the State’s interest to do so. The Contractor shall not furnish any product after it receives the notice of termination, except as necessary to complete the continued portion of the Contract, if any. The Contractor shall not be entitled to recover any cancellation charges or lost profits.

23. Termination for Cause. The Customer may terminate the Contract if the Contractor fails to (1) deliver the product within the time specified in the Contract or any extension, (2) maintain adequate progress, thus endangering performance of the Contract, (3) honor any term of the Contract, or (4) abide by any statutory, regulatory, or licensing requirement. Rule 60A-1.006(3), F.A.C., governs the procedure and consequences of default. The Contractor shall continue work on any work not terminated. Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from events completely beyond the control, and without the fault or negligence, of the Contractor. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is completely beyond the control of both the Contractor and the subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted products were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule. If, after termination, it is determined that 14 - 24
______________________________________________________________________________ PUR 1000 (10/06) Page 9 of 14 60A-1.002, F.A.C.
the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Customer. The rights and remedies of the Customer in this clause are in addition to any other rights and remedies provided by law or under the Contract.

24. Force Majeure, Notice of Delay, and No Damages for Delay. The Contractor shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of the Contractor or its employees or agents contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly beyond the Contractor’s control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to the Contractor. In case of any delay the Contractor believes is excusable, the Contractor shall notify the Customer in writing of the delay or potential delay and describe the cause of the delay either (1) within ten (10) days after the cause that creates or will create the delay first arose, if the Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is not reasonably foreseeable, within five (5) days after the date the Contractor first had reason to believe that a delay could result. THE FOREGOING SHALL CONSTITUTE THE CONTRACTOR’S SOLE REMEDY OR EXCUSE WITH RESPECT TO DELAY.

Providing notice in strict accordance with this paragraph is a condition precedent to such remedy. No claim for damages, other than for an extension of time, shall be asserted against the Customer. The Contractor shall not be entitled to an increase in the Contract price or payment of any kind from the Customer for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever.

If performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the causes have ceased to exist the Contractor shall perform at no increased cost, unless the Customer determines, in its sole discretion, that the delay will significantly impair the value of the Contract to the State or to Customers, in which case the Customer may (1) accept allocated performance or deliveries from the Contractor, provided that the Contractor grants preferential treatment to Customers with respect to products subjected to allocation, or (2) purchase from other sources (without recourse to and by the Contractor for the related costs and expenses) to replace all or part of the products that are the subject of the delay, which purchases may be deducted from the Contract quantity, or (3) terminate the Contract in whole or in part.

25. Changes. The Customer may unilaterally require, by written order, changes altering, adding to, or deducting from the Contract specifications, provided that such changes are within the general scope of the Contract. The Customer may make an equitable adjustment in the Contract price or delivery date if the change affects the cost or time of performance. Such equitable adjustments require the written consent of the Contractor, which shall not be unreasonably withheld. If unusual quantity requirements arise, the Customer may solicit separate bids to satisfy them.

26. Renewal. Upon mutual agreement, the Customer and the Contractor may renew the Contract, in whole or in part, for a period that may not exceed 3 years or the term of the contract, whichever period is longer. Any renewal shall specify the renewal price, as set forth in the 14 - 25
______________________________________________________________________________ PUR 1000 (10/06) Page 10 of 14 60A-1.002, F.A.C.
solicitation response. The renewal must be in writing and signed by both parties, and is contingent upon satisfactory performance evaluations and subject to availability of funds.

27. Purchase Order Duration. Purchase orders issued pursuant to a state term or agency contract must be received by the Contractor no later than close of business on the last day of the contract’s term to be considered timely. The Contractor is obliged to fill those orders in accordance with the contract’s terms and conditions. Purchase orders received by the contractor after close of business on the last day of the state term or agency contract’s term shall be considered void.

Purchase orders for a one-time delivery of commodities or performance of contractual services shall be valid through the performance by the Contractor, and all terms and conditions of the state term or agency contract shall apply to the single delivery/performance, and shall survive the termination of the Contract.

Contractors are required to accept purchase orders specifying delivery schedules exceeding the contracted schedule even when such extended delivery will occur after expiration of the state term or agency contract. For example, if a state term contract calls for delivery 30 days after receipt of order (ARO), and an order specifies delivery will occur both in excess of 30 days ARO and after expiration of the state term contract, the Contractor will accept the order.

However, if the Contractor expressly and in writing notifies the ordering office within ten (10) calendar days of receipt of the purchase order that Contractor will not accept the extended delivery terms beyond the expiration of the state term contract, then the purchase order will either be amended in writing by the ordering entity within ten (10) calendar days of receipt of the contractor’s notice to reflect the state term contract delivery schedule, or it shall be considered withdrawn.

The duration of purchase orders for recurring deliveries of commodities or performance of services shall not exceed the expiration of the state term or agency contract by more than twelve months. However, if an extended pricing plan offered in the state term or agency contract is selected by the ordering entity, the contract terms on pricing plans and renewals shall govern the maximum duration of purchase orders reflecting such pricing plans and renewals.

Timely purchase orders shall be valid through their specified term and performance by the Contractor, and all terms and conditions of the state term or agency contract shall apply to the recurring delivery/performance as provided herein, and shall survive the termination of the Contract.

Ordering offices shall not renew a purchase order issued pursuant to a state term or agency contract if the underlying contract expires prior to the effective date of the renewal.

28. Advertising. Subject to Chapter 119, Florida Statutes, the Contractor shall not publicly disseminate any information concerning the Contract without prior written approval from the Customer, including, but not limited to mentioning the Contract in a press release or other promotional material, identifying the Customer or the State as a reference, or otherwise 14 - 26
______________________________________________________________________________ PUR 1000 (10/06) Page 11 of 14 60A-1.002, F.A.C.
linking the Contractor’s name and either a description of the Contract or the name of the State or the Customer in any material published, either in print or electronically, to any entity that is not a party to Contract, except potential or actual authorized distributors, dealers, resellers, or service representative.

29. Assignment. The Contractor shall not sell, assign or transfer any of its rights, duties or obligations under the Contract, or under any purchase order issued pursuant to the Contract, without the prior written consent of the Customer. In the event of any assignment, the Contractor remains secondarily liable for performance of the contract, unless the Customer expressly waives such secondary liability. The Customer may assign the Contract with prior written notice to Contractor of its intent to do so.

30. Antitrust Assignment. The Contractor and the State of Florida recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the State of Florida. Therefore, the contractor hereby assigns to the State of Florida any and all claims for such overcharges as to goods, materials or services purchased in connection with the Contract.

31. Dispute Resolution. Any dispute concerning performance of the Contract shall be decided by the Customer's designated contract manager, who shall reduce the decision to writing and serve a copy on the Contractor. The decision shall be final and conclusive unless within twenty one (21) days from the date of receipt, the Contractor files with the Customer a petition for administrative hearing. The Customer’s decision on the petition shall be final, subject to the Contractor’s right to review pursuant to Chapter 120 of the Florida Statutes.

Exhaustion of administrative remedies is an absolute condition precedent to the Contractor's ability to pursue any other form of dispute resolution; provided, however, that the parties may employ the alternative dispute resolution procedures outlined in Chapter 120.

Without limiting the foregoing, the exclusive venue of any legal or equitable action that arises out of or relates to the Contract shall be the appropriate state court in Leon County, Florida; in any such action, Florida law shall apply and the parties waive any right to jury trial.

32. Employees, Subcontractors, and Agents. All Contractor employees, subcontractors, or agents performing work under the Contract shall be properly trained technicians who meet or exceed any specified training qualifications. Upon request, Contractor shall furnish a copy of technical certification or other proof of qualification. All employees, subcontractors, or agents performing work under the Contract must comply with all security and administrative requirements of the Customer and shall comply with all controlling laws and regulations relevant to the services they are providing under the Contract. The State may conduct, and the Contractor shall cooperate in, a security background check or otherwise assess any employee, subcontractor, or agent furnished by the Contractor. The State may refuse access to, or require replacement of, any personnel for cause, including, but not limited to, technical or training qualifications, quality of work, change in security status, or non-compliance with a Customer’s security or other requirements. Such approval shall not relieve the Contractor of its obligation to perform all work in compliance with the Contract. The State may reject 14 - 27
______________________________________________________________________________ PUR 1000 (10/06) Page 12 of 14 60A-1.002, F.A.C.
and bar from any facility for cause any of the Contractor’s employees, subcontractors, or agents.

33. Security and Confidentiality. The Contractor shall comply fully with all security procedures of the United States, State of Florida and Customer in performance of the Contract. The Contractor shall not divulge to third parties any confidential information obtained by the Contractor or its agents, distributors, resellers, subcontractors, officers or employees in the course of performing Contract work, including, but not limited to, security procedures, business operations information, or commercial proprietary information in the possession of the State or Customer. The Contractor shall not be required to keep confidential information or material that is publicly available through no fault of the Contractor, material that the Contractor developed independently without relying on the State’s or Customer’s confidential information, or material that is otherwise obtainable under State law as a public record. To insure confidentiality, the Contractor shall take appropriate steps as to its personnel, agents, and subcontractors. The warranties of this paragraph shall survive the Contract.

34. Contractor Employees, Subcontractors, and Other Agents. The Customer and the State shall take all actions necessary to ensure that Contractor's employees, subcontractors and other agents are not employees of the State of Florida. Such actions include, but are not limited to, ensuring that Contractor's employees, subcontractors, and other agents receive benefits and necessary insurance (health, workers' compensations, and unemployment) from an employer other than the State of Florida.

35. Insurance Requirements. During the Contract term, the Contractor at its sole expense shall provide commercial insurance of such a type and with such terms and limits as may be reasonably associated with the Contract. Providing and maintaining adequate insurance coverage is a material obligation of the Contractor. Upon request, the Contractor shall provide certificate of insurance. The limits of coverage under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor’s liability and obligations under the Contract.

All insurance policies shall be through insurers authorized or eligible to write policies in Florida.

36. Warranty of Authority. Each person signing the Contract warrants that he or she is duly authorized to do so and to bind the respective party to the Contract.

37. Warranty of Ability to Perform. The Contractor warrants that, to the best of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish the Contractor’s ability to satisfy its Contract obligations. The Contractor warrants that neither it nor any affiliate is currently on the convicted vendor list maintained pursuant to section 287.133 of the Florida Statutes, or on any similar list maintained by any other state or the federal government. The Contractor shall immediately notify the Customer in writing if its ability to perform is compromised in any manner during the term of the Contract.

38. Notices. All notices required under the Contract shall be delivered by certified mail, return receipt requested, by reputable air courier service, or by personal delivery to the agency 14 - 28
______________________________________________________________________________ PUR 1000 (10/06) Page 13 of 14 60A-1.002, F.A.C.
designee identified in the original solicitation, or as otherwise identified by the Customer.

Notices to the Contractor shall be delivered to the person who signs the Contract. Either designated recipient may notify the other, in writing, if someone else is designated to receive notice.

39. Leases and Installment Purchases. Prior approval of the Chief Financial Officer (as defined in Section 17.001, F.S.) is required for State agencies to enter into or to extend any lease or installment-purchase agreement in excess of the Category Two amount established by section 287.017 of the Florida Statutes.

40. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE). Section 946.515(2), F.S. requires the following statement to be included in the solicitation: "It is expressly understood and agreed that any articles which are the subject of, or required to carry out, the Contract shall be purchased from the corporation identified under Chapter 946 of the Florida Statutes (PRIDE) in the same manner and under the same procedures set forth in section 946.515(2) and (4) of the Florida Statutes; and for purposes of the Contract the person, firm, or other business entity carrying out the provisions of the Contract shall be deemed to be substituted for the agency insofar as dealings with such corporation are concerned." Additional information about PRIDE and the products it offers is available at http://www.pridefl.com.

41. Products Available from the Blind or Other Handicapped. Section 413.036(3), F.S. requires the following statement to be included in the solicitation: "It is expressly understood and agreed that any articles that are the subject of, or required to carry out, this contract shall be purchased from a nonprofit agency for the Blind or for the Severely Handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in section 413.036(1) and (2), Florida Statutes; and for purposes of this contract the person, firm, or other business entity carrying out the provisions of this contract shall be deemed to be substituted for the State agency insofar as dealings with such qualified nonprofit agency are concerned." Additional information about the designated nonprofit agency and the products it offers is available at http://www.respectofflorida.org.

42. Modification of Terms. The Contract contains all the terms and conditions agreed upon by the parties, which terms and conditions shall govern all transactions between the Customer and the Contractor. The Contract may only be modified or amended upon mutual written agreement of the Customer and the Contractor. No oral agreements or representations shall be valid or binding upon the Customer or the Contractor. No alteration or modification of the Contract terms, including substitution of product, shall be valid or binding against the Customer. The Contractor may not unilaterally modify the terms of the Contract by affixing additional terms to product upon delivery (e.g., attachment or inclusion of standard preprinted forms, product literature, “shrink wrap” terms accompanying or affixed to a product, whether written or electronic) or by incorporating such terms onto the Contractor’s order or fiscal forms or other documents forwarded by the Contractor for payment. The Customer's acceptance of product or processing of documentation on forms furnished by the Contractor for approval or payment shall not constitute acceptance of the proposed modification to terms and conditions.
14 - 29
______________________________________________________________________________ PUR 1000 (10/06) Page 14 of 14 60A-1.002, F.A.C.

43. Cooperative Purchasing. Pursuant to their own governing laws, and subject to the agreement of the Contractor, other entities may be permitted to make purchases at the terms and conditions contained herein. Non-Customer purchases are independent of the agreement between Customer and Contractor, and Customer shall not be a party to any transaction between the Contractor and any other purchaser.

State agencies wishing to make purchases from this agreement are required to follow the provisions of s. 287.042(16)(a), F.S. This statute requires the Department of Management Services to determine that the requestor's use of the contract is cost-effective and in the best interest of the State.

44. Waiver. The delay or failure by the Customer to exercise or enforce any of its rights under this Contract shall not constitute or be deemed a waiver of the Customer’s right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.

45. Annual Appropriations. The State’s performance and obligation to pay under this contract are contingent upon an annual appropriation by the Legislature.

46. Execution in Counterparts. The Contract may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

47. Severability. If a court deems any provision of the Contract void or unenforceable, that provision shall be enforced only to the extent that it is not in violation of law or is not otherwise unenforceable and all other provisions shall remain in full force and effect. 14 - 30
AMENDMENT NO.: 1 - Renewal

PARTICIPATING ADDENDUM
NASPO ValuePoint Cooperative Procurement Program

COMPUTER EQUIPMENT MASTER AGREEMENT
Master Agreement No: MNWNC-101
Dell Marketing LP
And
The State of Florida
Alternate Contract Source No. 43211500-WSCA-15-ACS
This Amendment (“Amendment”) effective April 1, 2017, to the Computer Equipment, Peripherals, & Services Contract No. 43211500-WSCA-15-ACS (“Contract”), between the State of Florida, Department of Management Services (“Department”) and Dell Marketing LP (“Contractor”) are collectively referred to herein as the “Parties.” All capitalized terms used herein shall have the meaning assigned to them in the Participating Addendum unless otherwise defined herein.

Contract Renewal. The Department hereby executes its renewal option for a three (3) year period pursuant to Section 287.057(13), Florida Statutes. The new contract expiration date is March 31, 2020.

I. Transaction Fees. The State of Florida, through the Department of Management Services, has instituted MyFloridaMarketPlace, a statewide eProcurement system pursuant to section 287.057(22), Florida Statutes. All payments issued by Customers to registered Vendors for purchases of commodities or contractual services will be assessed Transaction Fees as prescribed by rule 60A-1.031, Florida Administrative Code, or as may otherwise be established by law. Vendors must pay the Transaction Fees and agree to automatic deduction of the Transaction Fees, when automatic deduction becomes available. Vendors will submit any monthly reports required pursuant to the rule. All such reports and payments will be subject to audit. Failure to comply with the payment of the Transaction Fees or reporting of transactions will constitute grounds for declaring the Vendor in default and subject the Vendor to exclusion from business with the State of Florida.

II. Public Records. The Participating Addendum is amended to add the following:

If, under this Contract, the Contractor is providing services and is acting on behalf of a public agency as provided by section 119.0701(2)(b), F.S., the Contractor shall:
(a) Keep and maintain public records required by the public agency to perform the service. (b) Upon request from the public agency's custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, F.S., or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the public agency.
(d) Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the contractor transfers all public records to the public agency upon completion of the contract, the contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the contractor 14 - 31

shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency's custodian of public records, in a format that is compatible with the information technology systems of the public agency.

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CONTRACT MANAGER.

III. Annual Appropriation. The Participating Addendum is amended to add the following:

Pursuant to section 287.0582, F.S., if the ACS binds the State or an agency for the purchase of services or tangible personal property for a period in excess of one fiscal year, the State of Florida’s performance and obligation to pay under the ACS is contingent upon an annual appropriation by the Legislature.

IV. Cooperation with the Inspector General. Pursuant to subsection 20.055(5), F.S., Contractor, and any subcontractor to the Contractor, understand and will comply with their duty to cooperate with the Inspector General in any investigation, audit, inspection, review, or hearing. Upon request of the Inspector General or any other authorized State official, the Contractor must provide any type of information the Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may include, but will not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor will retain such records for five years after the expiration of the Contract, or the period required by the General Records Schedules maintained by the Florida Department of State (available at: http://dos.myflorida.com/libraryarchives/records-management/general-records-schedules/), whichever is longer. The Contractor agrees to reimburse the State of Florida for the reasonable costs of investigation incurred by the Inspector General or other authorized State of Florida official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State of Florida which results in the suspension or debarment of the Contractor. Such costs will include, but will not be limited to salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees.

V. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the Contract, the terms of this Amendment shall control.

VI. Warrant of Authority. Each person signing this Amendment warrants that he or she is duly authorized to do so and to bind the respective party.

VII. Effect. Unless otherwise modified by this Amendment, all terms and conditions contained in the Contract shall continue in full force and effect.

Contractor Participating Addendum Contact
Name Katherine Dunay
Address One Dell Way, Mail Stop RR 1-33, Round Rock, Texas 78682 Telephone 512-723-0818
Fax 512-283-9092
E-mail [email protected]
14 - 32
14 - 33
Participating State Contact
Name Jeremy Williams
Address Florida Department of Management Services
4050 Esolanade Wav, Suite 360, Tallahassee, FL 32399-0950 Teleohone 850-414-6740
Fax 850-414~8331
E-mail Jeremv.Williamslmrtms.mvflorida.com
State of Florida, Dell Marketing LP
Department of::::'= Services
By:~~
.

By: Cl), e, S>-~ « \.,.J'°,)_. 1 !!11
Name: Erin Rock
Title: Chief of Staff
Name: C.,..,.,._\(..pS, L. ~~\"9,~~s~..)
Title: ~~i~s MM)B5\'=Yk
Date: 1,? 1, /7 ---------=~---- Date: 3\,\g0\"1 .

AMENDMENT NO.: 2
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services Computer Equipment Peripherals and Services Page 1 of 1 Alternate Contract Source No.: 43211500-WSCA-15-ACS
This Amendment to the Computer Equipment Peripherals and Services 43211500-WSCA-15-ACS (“ACS”) between the State of Florida, Department of Management Services (“Department”), and Dell Marketing LP (“Contractor”), collectively referred to herein as the “Parties,” is effective upon execution by both Parties.

WHEREAS the ACS was entered into by the Parties on August 15, 2015, to continue through March 31, 2017, for the provision of Computer Equipment Peripherals and Services, pursuant to State of Minnesota Master Agreement No. MNWNC-106;
WHEREAS the Contract was subsequently renewed through March 31, 2020; and WHEREAS, the Parties agreed that the ACS may be amended by mutual agreement.

NOW THEREFORE, for the mutual covenants contained herein, the Parties agree as follows:

I. Amendment to the Participating Addendum. The ACS is amended to change the end of the term of the participating addendum to July 31, 2021, unless terminated earlier in accordance with the Special Contract Conditions.

II. Amendment to the Participating Addendum. Section 4.D., Scrutinized Company List, is amended to add the following sentence:

The Participating State may terminate this Addendum for cause if the Contractor is placed on the Scrutinized companies that Boycott Israel List or is engaged in a boycott of Israel.

III. Warranty of Authority. Each person signing this Amendment warrants that he or she is duly authorized to do so and to bind the respective party.

IV. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the ACS, the terms of this Amendment shall control.

V. Effect. Unless otherwise modified by this Amendment, all terms and conditions contained in the ACS, as previously amended, shall continue in full force and effect. [signature page follows]
14 - 34
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
AMENDMENT NO.: 2
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services Computer Equipment Peripherals and Services Page 2 of 1 Alternate Contract Source No.: 43211500-WSCA-15-ACS
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized representatives.

State of Florida:

Department of Management Services
Contractor:

Dell Marketing LP
By: _____________________________ By: _____________________________ Name: Tami Fillyaw Name:

Title: Chief of Staff Title:

Date: Date:
14 - 35
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
Depai 111e111 01

MANAGEMENT

SERVICES
: ' We serve those who serve Florida
AMENDMENT NO.: 2
Alternate Contract Source No.: 43211500-WSGA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized representatives.

State of Florida:

Department of Management Services
By: __________ _
Name:

Title:

Date:

Tami Fillyaw
Chief of Staff
Computer Equipment Peripherals and Services
Contractor:

Dell Marketing LP
Digitally signed by Charlene Wilkinson Charlene_Wilkinson By:
- Date: 2020.03.11 15:01 :29 -04'00'
Name: Charlene L. Wilkinson
Title: Commercial Counsel
Date: 3/11/2020

Alternate Contract Source No.: 43211500-WSCA-15-ACS
DocuSign Envelope ID: C29BE75F-7076-4875-9403-EFD4F8F5555F 3/18/2020 | 1:08 PM EDT
14 - 36
AMENDMENT NO.: 3
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services Computer Equipment Peripherals and Services Page 1 of 6 Alternate Contract Source No.: 43211500-WSCA-15-ACS
This Amendment No. 3 (Amendment) to the Computer Equipment Peripherals and Services contract, contract number 43211500-WSCA-15-ACS (“ACS”) between the State of Florida, Department of Management Services (“Department”), and Dell Marketing L.P. (“Contractor”), collectively referred to herein as the “Parties,” is effective upon execution by both Parties. All capitalized terms used herein have the meaning assigned to them in the Participating Addendum unless otherwise defined herein.

WHEREAS, the ACS was entered into by the Parties on August 15, 2015, to continue through March 31, 2017, for the provision of Computer Equipment Peripherals and Services, pursuant to State of Minnesota Master Agreement No. MNWNC-108;
WHEREAS, the ACS was subsequently renewed through July 31, 2021; and WHEREAS, the Parties agreed that the ACS may be amended by mutual agreement as provided in Section 42, Modification of Terms, of the PUR 1000 incorporated into the ACS.

NOW THEREFORE, for the mutual covenants contained herein, the Parties agree as follows:

I. Amendment to the ACS.
a) The ACS is amended to change the end of the term of the ACS to July 31, 2022, unless terminated earlier in accordance with the ACS.
b) Section 4.A.1. i. and Section II. of Amendment No. 1, Public Records, aredeleted entirelyand replaced with the following:

Public Records
Statutory Notice.

Pursuant to section 119.0701(2)(a), F.S., for contracts for services with a contractor acting on behalf of a public agency, as defined in section 119.011(2), F.S., the following applies:

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE DEPARTMENT’S
CONTRACT MANAGER LISTED IN SECTION 4.3 OF THE SPECIAL
CONTRACT CONDITIONS.

Pursuant to section 119.0701(2)(b), F.S., for contracts for services with a contractor acting on behalf of a public agency as defined in section 119.011(2), F.S., the Contractor shall:
14 - 37
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
AMENDMENT NO.: 3
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services Computer Equipment Peripherals and Services Page 2 of 6 Alternate Contract Source No.: 43211500-WSCA-15-ACS
(a) Keep and maintain public records required by the public agency to perform the service. (b) Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, F.S., or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law for the duration of the Contract term and following the completion of the Contract if the Contractor does not transfer the records to the public agency.
(d) Upon completion of the Contract, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the Contractor transfers all public records to the public agency upon completion of the Contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Contract, the Contractor shall meet all applicable requirements for retaining public records.

All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

The Department may terminate the Contract for refusal by the Contractor to comply with this section by not allowing access to all public records, as defined in Chapter 119, F. S., made or received by the Contractor in conjunction with the Contract unless the records are exempt from s. 24(a) of Art. I of the State Constitution and section 119.071(1), F.S. c) Section 4.D., Employment Eligibility Verification, is deleted in its entirety and replaced with the following:

E-Verify: The Contractor and its subcontractors have an obligation to utilize the U.S.

Department of Homeland Security’s (DHS) E-Verify system for all newly hired employees in
accordance with section 448.095, F.S.. By executing this Contract, the Contractor certifies that it is registered with, and uses, the E-Verify system for all newly hired employees in accordance with section 448.095, F.S. The Contractor must obtain an affidavit from its subcontractors in accordance with paragraph (2)(b) of section 448.095, F.S., and maintain a copy of such affidavit for the duration of the Contract. The Contractor shall provide a copy of its DHS Memorandum of Understanding (MOU) to the Department’s Contract Manager within five (5) days of Contract execution. 14 - 38
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
AMENDMENT NO.: 3
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services Computer Equipment Peripherals and Services Page 3 of 6 Alternate Contract Source No.: 43211500-WSCA-15-ACS
This section serves as notice to the Contractor regarding the requirements of section 448.095, F.S., specifically sub-paragraph (2)(c)1, and the Department’s obligation to terminate the Contract if it has a good faith belief that the Contractor has knowingly violated section 448.09(1), F.S. If terminated for such reason, the Contractor will not be eligible for award of a public contract for at least one (1) year after the date of such termination. The Department will promptly notify the Contractor and order the immediate termination of the contract between the Contractor and a subcontractor performing work on its behalf for this Contract should the Department have a good faith belief that the subcontractor has knowingly violated section 448.09 (1), F.S. d) Section 4.F., Scrutinized Company List, as amended by Amendment No. 2, is deleted in its entirety and replaced with the following:

Scrutinized Company List: The Department may, at its option, terminate the Contract if the Contractor is found to have submitted a false certification as provided under section 287.135(5), F.S., or been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in business operations in Cuba or Syria, or to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel. e) Section IV. of Amendment No. 1, Cooperation with Inspector General, is deleted in its entirety and replaced with the following in 4.O.:

Cooperation with Inspector General and Records Retention.

Pursuant to section 20.055(5), F.S., the Contractor understands and will comply with its duty to cooperate with the Inspector General in any investigation, audit, inspection, review, or hearing. Upon request of the Inspector General or any other authorized State official, the Contractor must provide any information the Inspector General deems relevant. Such information may include, but will not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor will retain such records for the longer of five years after the expiration or termination of the Contract, or the period required by the General Records Schedules maintained by the Florida Department of State, at the Department of State’s Records Management website. The Contractor agrees to reimburse the State of Florida for the reasonable costs of investigation incurred by the Inspector General or other authorized State of Florida official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State of Florida which results in the suspension or debarment of the Contractor. Such costs will include but will not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor agrees to impose the same obligations to cooperate with the Inspector General and retain records on any subcontractors used to provide goods or services under the Contract. 14 - 39
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
AMENDMENT NO.: 3
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services Computer Equipment Peripherals and Services Page 4 of 6 Alternate Contract Source No.: 43211500-WSCA-15-ACS
f) Section 4.P., Document Inspection, is hereby added as follows:

Document Inspection. In accordance with section 216.1366, F.S., the Department is authorized to inspect the: (a) financial records, papers, and documents of the Contractor that are directly related to the performance of the Contract or the expenditure of state funds; and (b) programmatic records, papers, and documents of the Contractor which the Department determines are necessary to monitor the performance of the Contract or to ensure that the terms of the Contract are being met. The Contractor shall provide such records, papers, and documents requested by the Department within 10 Business Days after the request is made
g) Section 4.Q., Conduct of Business, is hereby added as follows:

The Contractor must comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of federal, state, and local agencies having jurisdiction and authority. For example, the Contractor must comply with section 274A of the Immigration and Nationality Act, the Americans with Disabilities Act, Health Insurance Portability and Accountability Act, if applicable, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran’s status. The provisions of subparagraphs 287.058(1)(a)-(c) and (g), F.S., are hereby incorporated by reference.

Nothing contained within this Contract shall be construed to prohibit the Contractor from disclosing information relevant to performance of the Contract or purchase order to members or staff of the Florida Senate or Florida House of Representatives.

Pursuant to section 287.057(26) Florida Statutes, the Contractor shall ensure a representative will be available to team members of the continuing oversight team. h) Section 4.R., Convicted, Discriminatory, Antitrust Violator, and Suspended Vendor Lists, is hereby added as follows:

In accordance with sections 287.133, 287.134, and 287.137, F.S., the Contractor is hereby informed of the provisions of sections 287.133(2)(a), 287.134(2)(a), and 287.137(2)(a), F.S. For purposes of this Contract, a person or affiliate who is on the Convicted Vendor List, the Discriminatory Vendor List, or the Antitrust Violator Vendor List may not perform work as a contractor, supplier, subcontractor, or consultant under the Contract. The Contractor must notify the Department if it or any of its suppliers, subcontractors, or consultants have been placed on the Convicted Vendor List, the Discriminatory Vendor List, or the Antitrust Violator Vendor List during the term of the Contract. 14 - 40
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
AMENDMENT NO.: 3
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services Computer Equipment Peripherals and Services Page 5 of 6 Alternate Contract Source No.: 43211500-WSCA-15-ACS
In accordance with section 287.1351, F.S., a vendor placed on the Suspended Vendor List may not enter into or renew a contract to provide any goods or services to an agency after its placement on the Suspended Vendor List.

A firm or individual placed on the Suspended Vendor List pursuant to section 287.1351, F.S., the Convicted Vendor List pursuant to section 287.133, F.S., the Antitrust Violator Vendor List pursuant to section 287.137, F.S., or the Discriminatory Vendor List pursuant to section 287.134, F.S., is immediately disqualified from Contract eligibility. i) Section 4.S., Performance or Compliance Audits, is hereby added as follows:

The Department may conduct or have conducted performance and/or compliance audits of the Contractor and subcontractors as determined by the Department. The Department may conduct an audit and review all the Contractor’s and subcontractors’ data and records that directly relate to the Contract. To the extent necessary to verify the Contractor’s fees and claims for payment under the Contract, the Contractor’s agreements or contracts with subcontractors, partners, or agents of the Contractor, pertaining to the Contract, may be inspected by the Department upon fifteen (15) calendar days’ notice, during normal working hours and in accordance with the Contractor’s facility access procedures where facility access is required. Release statements from its subcontractors, partners, or agents are not required for the Department or its designee to conduct compliance and performance audits on any of the Contractor’s contracts relating to this Contract. The Inspector General, the State of Florida’s Chief Financial Officer, and the Office of the Auditor General shall also have authority to perform audits and inspections.
j) Section 4.T., Information Technology Standards, is hereby added as follows:

Pursuant to sections 282.0051 and 282.318, F.S., the Department is to establish standards for the implementation and management of information technology resources. Contractor agrees to cooperate with the Department and Customer in furtherance of efforts to comply with the standards, established in Rule Title 60GG, F.A.C., as applicable.

II. Warranty of Authority. Each person signing this Amendment warrants that he or she is duly authorized to do so and to bind the respective party.

III. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the ACS, the terms of this Amendment shall control.

IV. Effect. Unless otherwise modified by this Amendment, all terms and conditions contained in the ACS, as previously amended, shall continue in full force and effect. [Signature Page Follows]
14 - 41
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
AMENDMENT NO.: 3
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services Computer Equipment Peripherals and Services Page 6 of 6 Alternate Contract Source No.: 43211500-WSCA-15-ACS
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized representatives.

State of Florida:

Department of Management Services
Contractor:

Dell Marketing L.P.

By: _____________________________ By: _____________________________ Name: J. Todd Inman Name:

Title: Secretary Title:

Date: Date:
14 - 42
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
14 - 43
DocuSign Envelope ID: 1482B415-D207-4659-9ABC-D9D6C67C21F0 Department of

MANAGEMENT

SERVICES
• We serve those who serve Florida
AMENDMENT NO.: 3
Alternate Contract Source No.: 43211500-WSCA-15-ACS
Alternate Contract Source Name: Computer Equipment Peripherals and Services IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized representatives.

State o
Depa
By: _....,_~..--------- Name:

Title: Secretary
Date: 7 / 2-'\ / °2.CJ'-t
Computer Equipment Peripherals and Services
Contractor:

Dell Marketina 1 .P. Docull,g!iid'!iy:

By: ~ LY- Wffuvl
Nam fflffl)600ffMd
Title: Contract Administrator
Date{ /27 /2021 I 1:43 PM PDT
Alternate Contract Source No.: 43211500-WSCA-15-ACS

CONTRACT AMENDMENT NO.: 4
Contract No.: 43211500-WSCA-15-ACS
Contract Name: Computer Equipment, Peripherals, and Services Rev. 9/7/21
This Contract Amendment to Contract No. 43211500-WSCA-15-ACS is made by the State of Florida, Department of Management Services (“Department”) and Dell Marketing L.P. (“Contractor”), with its principal place of business located at One Dell Way, Mailstop RR1-33 Legal, Roundrock, Texas 86682, collectively referred to herein as the “Parties.” WHEREAS, the Parties entered into Contract No. 43211500-WSCA-15-ACS, on August 15, 2015, for the provision of Computer Equipment, Peripherals, and Services; WHEREAS, the Parties agreed that the ACS may be amended by mutual agreement as provided in Section 42, Modification of Terms, of the PUR 1000 incorporated into the ACS; WHEREAS, the Parties agree to renew the Contract, pursuant to Section 26, Renewal, of the PUR 1000;
WHEREAS, the ACS was subsequently renewed through July 31, 2022; WHEREAS, the State of Minnesota NASPO Master Agreement No. MNWNC-108 term was amended to reflect a new Master Agreement expiration date of February 28, 2023; and WHEREAS the Secretary has reevaluated the Master Agreement and determined that use of the Master Agreement remains cost-effective and the best value to the state.

ACCORDINGLY, and in consideration of the mutual promises contained in the Contract documents, the Parties agree as follows:

I. Contract Renewal. The Contract is renewed for a period of seven (7) months, pursuant to the same terms and conditions except as amended herein, with a new Contract expiration date of February 28, 2023.

II. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the Contract, the terms of this Amendment shall control.

III. Effect. Unless otherwise modified by this Amendment, all terms and conditions contained in the Contract shall continue in full force and effect. This Amendment is effective when signed by both Parties.

IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized representatives.

DocuSign Envelope ID: E67DFE4A-3D08-4D36-8BE7-8281BA1D9219 14 - 44
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
CONTRACT AMENDMENT NO.: 4
Contract No.: 43211500-WSCA-15-ACS
Contract Name: Computer Equipment, Peripherals, and Services Rev. 9/7/21
State of Florida:

Department of Management Services
Contractor:

Dell Marketing L.P.

By: _____________________________ By: _____________________________ Name: J. Todd Inman Name: Carina Clifford
Title: Secretary Title: Contract Administrator
Date: Date:

DocuSign Envelope ID: E67DFE4A-3D08-4D36-8BE7-8281BA1D9219 6/30/2022 | 9:31 AM EDT
14 - 45
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
If DocuSigned by:
~ ~ c~frJ
DocuSign Envelope ID: E67DFE4A-3D08-4D36-8BE7-8281BA1D9219 Department of

MANAGEME

SERVICES
A
► We serve those who serve Florida
CONTRACT AMENDMENT NO.: 4
Contract No.: 43211500-WSCA-15-ACS
Contract Name: Computer Equipment, Peripherals, and Services State of Florida:

Department of Management Services
By:-------------
Name: Pedro Allende
Title: Secretary
Date:

Contractor:

Dell Marketing LP.

Name: Carina Clifford
Title: Contract Administrator
Date:6/30/2022 I 9:31 AM EDT
Rev. 9/7/21
DocuSign Envelope ID: D0A3FD6D-16AB-4C30-9C26-241679BACE11 7/26/2022 | 9:35 AM EDT
14 - 46
►
I DocuSigned by:

L~7C
CONTRACT AMENDMENT NO.: 5
Contract No.: 43211500-WSCA-15-ACS
Contract Name: Computer Equipment, Peripherals, and Services Rev. 11/2/22
This Amendment to the Alternate Contract Source No. 43211500-WSCA-15-ACS Participating Addendum (“Contract”) to the State of Minnesota Master Agreement No. MNWNC-108 (“Master Agreement”) is made by the State of Florida, Department of Management Services (“Department”) and Dell Marketing L.P. ("Contractor"), with its principal place of business located at One Dell Way, Mailstop RR1-33 Legal, Roundrock, Texas 86682, collectively referred to herein as the "Parties.

WHEREAS the Parties entered into the Contract which became effective on September 3, 2015, for the provision of Computer Equipment, Peripherals, and Services; WHEREAS, the Contract was susbequenty amended to expire on February 28, 2023, in correlation with the term of the Master Agreement;
WHEREAS, the Master Agreement term has since been amended to expire on July 31, 2023; WHEREAS, the Parties agreed that the Contract may be amended by mutual agreement as provided in Section 42, Modification of Terms, of the PUR 1000 incorporated into the Contract; and
WHEREAS the Secretary has reevaluated the Master Agreement and determined that use of the Master Agreement remains cost-effective and the best value to the state.

ACCORDINGLY, and in consideration of the mutual promises contained in the Contract documents, the Parties agree as follows:

I. Contract Amendment. The Contract is amended to reflect a new expiration date of July 31, 2023.

II. Conflict. To the extent any of the terms of this Amendment conflict with the terms of the Contract, the terms of this Amendment shall control.

III. Warranty of Authority. Each person signing this Amendment warrants that he or she is duly authorized to do so and to bind the respective party.

IV. Effect. Unless otherwise modified by this Amendment, all terms and conditions contained in the Contract shall continue in full force and effect. This Amendment is effective when signed by both Parties.

DocuSign Envelope ID: 8E74BE0B-37EF-4DB9-B1A2-4C22CB3501CF 14 - 47
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
CONTRACT AMENDMENT NO.: 5
Contract No.: 43211500-WSCA-15-ACS
Contract Name: Computer Equipment, Peripherals, and Services Rev. 11/2/22
IN WITNESS WHEREOF, the Parties have executed this Amendment by their duly authorized representatives.

State of Florida:

Department of Management Services
Contractor:

Dell Marketing, LP
By: _____________________________ By: _____________________________ Name: Pedro Allende Name: Katherine Castillo
Title: Secretary Title: Paralegal Advisor
Date: Date:

DocuSign Envelope ID: 8E74BE0B-37EF-4DB9-B1A2-4C22CB3501CF 2/21/2023 | 1:09 PM EST 2/20/2023 | 3:34 PM EST
14 - 48
Department of

MANAGEMENT

SERVICES
► We serve those who serve Florida
ATTACHMENT 2
Proposed Resolution
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RESOLUTION NO. __

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SOUTH

PASADENA, CALIFORNIA, APPROVING A PURCHASE ORDER WITH
DELL MARKETING, L.P., IN THE AMOUNT NOT TO EXCEED OF
$75,000 FOR THE FIRST PHASE OF THE THREE-YEAR

WORKSTATION REPLACEMENT PROGRAM, UTILIZING THE NASPO

VALUEPOINT COOPERATIVE PURCHASING PROGRAM
WHEREAS, the City requires the use of technology hardware, including computers and related equipment for City operations and routinely replaces computers and related equipment that have reached the end of their useful life; and WHEREAS, the National Association of State Procurement Officials’ (“NASPO”) has established a cooperative purchasing consortium referred to as ValuePoint; and WHEREAS, the State of California participates in the NASPO ValuePoint Cooperative Purchasing Program with Dell Marketing L.P. through California Participating Addendum 7-15-70-34-003 in which state and non-state government entities can use to procure technology hardware, software, and related services; and WHEREAS, the City desires to participate in the cooperative purchasing agreement negotiated by NASPO ValuePoint to purchase laptops, desktop monitors and related peripherals, software and related services from Dell Marketing L.P.; and WHEREAS, Section 2.99-29(19) of the South Pasadena Municipal Code (“Municipal Code”) and the City’s Purchasing Policy allows for the City to engage in cooperative purchasing whereby the City uses another public agency’s competitive bid process as its own to purchase goods that it needs; and WHEREAS, Dell Marketing, L.P. has a valid pricing agreement publicly bid by NASPO ValuePoint referred to as #MNWNC-108, which is a cooperative procurement pursuant to the Municipal Code and which said pricing agreement is on file with the Department of Management Services; and
WHEREAS, Staff anticipates that the total cost of products purchased from Dell Marketing, L.P. will exceed $30,000, and the City’s Purchasing Policy provides that cooperative procurements exceeding $30,000 require City Council approval.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SOUTH

PASADENA, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:

Section 1. The recitals above are true and correct and incorporated herein as if set forth in full.
14 - 51
RESOLUTION NO. XXXX
PAGE 2

Section 2. The City Council hereby authorizes the use of the NASPO ValuePoint Cooperative Purchasing Program described in the Recitals to purchase technology hardware, software, and related services from Dell Marketing, L.P., pursuant to Municipal Code Section 2.99-29(19) and the City’s Purchasing Policy.

Section 3. The City Council approves the purchase of technology hardware, software, and related services from Dell Marketing, L.P., in an amount not to exceed $75,000 (“Purchase”)
Section 4. The City Council authorizes the City Manager, or designee, to effectuate the Purchase, including the issuance of purchase orders to Dell Marketing, L.P., under the terms of the NASPO cooperative purchasing agreement and the California Participating Addendum, and in conformance with this Resolution.

PASSED, APPROVED AND ADOPTED on this 19th day of July 2023.

Jon Primuth, Mayor
ATTEST: APPROVED AS TO FORM:

Mark Perez, Roxanne Diaz,
Deputy City Clerk City Attorney
I HEREBY CERTIFY the foregoing resolution was duly adopted by the City Council of the City of South Pasadena, California, at a regular meeting held on the 19th day of July, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
14 - 52
RESOLUTION NO. XXXX
PAGE 3

Mark Perez,
Deputy City Clerk
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DATE:

City Council
Agenda Report
July 19, 2023
ITEM NO.

FROM: Armine Chaparyan, City Manager 0-tffl ti¥'�
PREPARED BY: Cathy Billings, Library Director
SUBJECT: Approval of a Five-Year Agreement with SirsiDynix for Integrated Library System Software and Services for a Total of $240,255.07, with Options to Extend.

Recommendation
It is recommended that the City Council approve a Master Agreement ("Agreement") with SirsiDynix to license Integrated Library System (ILS) software products and to provide related specialized professional services for an initial term of five (5) years in the amount of $240,255.07.

Executive Summary
The South Pasadena Public Library ("Library") seeks to enter into a new five-year Agreement with current vendor SirsiDynix for the provision of Integrated Library Systemrelated software products and services, with the option of two one-year renewals after the five-year term. The ILS is the technological foundation for library operations and services.

The Agreement will allow the public to continue use of the library applications they are familiar with, and enable staff to continue to improve and customize the ILS for the benefit of library users.

Background
The backbone of modern library services is the complex system of integrated hardware and software known as an ILS. An ILS usually comprises a relational database, software that interacts with that database, and graphical user interfaces for customers and staff.

The ILS must be able to aggregate data from multiple sources, integrate with other thirdparty products, and make it easy for customers to discover and access materials. Cloudbased functionality and the mobile device access points customers expect are also critical. Functions supported by typical ILS software modules include:

1. Acquisitions (for materials ordering, receiving, and budgeting),

2. Cataloging (for classifying and indexing materials),

3. Circulation (for lending materials),

4. OPAC (the online public access catalog, a web-based discovery tool for users),

5. System Administration (the "back end" staff user interface), 15 15 - 1
Approval of Agreement for Integrated Library System Software and Services July 19, 2023

6. Analytics (for extracting data and creating reports).

SirsiDynix has been the Library’s ILS provider since 2001. Sirsi Corp, founded in 1979, and Dynix, founded in 1983, merged in 2005, creating SirsiDynix. It is a privately held company based in Utah that has 4,700 library customers and more than 350 employees.

The Library entered into a seven-year agreement with SirsiDynix in 2010 and a five-year agreement in 2018. The 2018 agreement included the following overdue upgrades:

1. New OPAC/public library catalog interface,

2. Integration of digital collections into the library catalog,

3. Mobile library app,

4. Data analysis and reporting module,

5. Materials acquisition module, and

6. Off-site server hosting and maintenance.

The proposed new five-year Agreement continues all products incorporated in 2018 and adds “Platinum Services”. Platinum Services is a consulting package that includes annual updates to subject headings and author data, annual bibliographic analysis for quality control, and the services of SirsiDynix consultants with expert knowledge of the products licensed by the Library. In addition, year-one of the Agreement includes a one-time cost for an Authority Processing Update that is necessary to enable the subsequent annual updates to subject headings and author data that are part of Platinum Services.

Analysis
SirsiDynix has reliably and successfully met South Pasadena Public Library’s ILS technology needs for 20+ years. Their client support, which includes a responsive help desk and a dedicated Library Relationship Manager, is consistently exceptional. Because of the cost and complexity of changing foundational enterprise technology systems libraries tend to keep existing systems in place, unless they have strong vendor or product dissatisfaction. Staff are very satisfied with SirsiDynix products and services and do not recommend considering alternate ILS vendors at this time.

Entering into the Agreement and continuing the relationship with SirsiDynix will allow customers to continue to use the Library’s mobile app, which has been downloaded 2,799 times, and to keep using the interface they are familiar with to search the library catalog, borrow e-books, and place holds on library materials. Unlimited SIP2 connections for third-party products will enable the library to implement customer-friendly services like self-checkout, which is a key component of the Radio Frequency Identification (RFID) conversion that the Library will undergo in Fiscal Year 2023-2024. The annual updates to authority records included with Platinum Services is a best practice that will improve the quality of bibliographic data, making it easier for customers to find what they are looking for in the catalog. Platinum Services will have an added benefit of helping staff to tackle new projects that take full advantage of SirsiDynix ILS product capabilities, such as developing a catalog interface that is designed specifically for children. 15 - 2
Approval of Agreement for Integrated Library System Software and Services July 19, 2023

Fiscal Impact
Costs for products (software) and services (consulting) covered by the Agreement are described in detail in the attached Quote.

Total cost of Agreement for the five-year term is $240,225.07, with the option to extend for two one-year terms for a total not-to-exceed amount of $345,579.72.

Years 1-5 $240,225.07
Year 6 (optional) $51,924.67
Year 7 (optional) $53,429.98
Year-one Costs:
• Products: $40,510.00. Reflects a 1.5% increase over Fiscal Year 2022-2023 costs. • Services: $4,306.50. Platinum Services package, including small discount. • One-time Expense: $1,935.00. Authority Processing services for 109,000 records.

The Library’s Fiscal Year 2023-2024 Budget includes adequate funds to cover year-one costs in Contract Services, Budget Account 101-8010-8011-8180.

Annual Increase:

Costs for both software products and professional services are subject to a 2.9% increase in each of the subsequent years covered by the Agreement, including the initial five-year term and the two one-year optional terms, as shown in the table below:

Component Year 1 Year 2 Year 3 Year 4 Year 5
SirsiDynix Products $40,510.00 $41,684.79 $42,893.65 $44,137.57 $45,417.56 Platinum Services $4,500.00 $4,630.00 $4,764.00 $4,902.00 $5,044.00 One-time Services $1,935.00 - - - -
Discount ($193.50) - - - -
Total $46,751.50 $46,314.79 $47,657.65 $49,039.57 $50,461.56 Component Optional
Year 6
Optional
Year 7
SirsiDynix Products $46,734.67 $48,089.98
Platinum Services $5,190.00 $5,340.00
One-time Services - -
Discount - -
Total $51,924.67 $53,429.98
15 - 3
Approval of Agreement for Integrated Library System Software and Services July 19, 2023

Key Performance Indicators and Strategic Plan
This item is in line with City Strategic Plan priority no. 6, to Enhance Customer Service through Innovation to More Effectively Respond to Community Priorities. It also aligns with the 2023-2027 South Pasadena Public Library Strategic Plan’s technology-related goals to increase workflow efficiencies and customer self-service options and to improve technology services for the public.

Commission Review and Recommendation
Staff informed the Library Board of Trustees of the intent to enter into a new agreement with SirsiDynix at a regular meeting on June 8, 2023. No action was taken on this operational matter.

Attachments:

1. Quote 114700 – South Pasadena LTA Pricing

2. Master Agreement Between South Pasadena Public Library and SirsiDynix 15 - 4
ATTACHMENT 1
Quote 114700 – South Pasadena LTA Pricing
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Quote for South Pasadena Public Library Quote Number 114700 This Quote is hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer, if any. The above information is a trade secret, proprietary and confidential and is only for use by the library named above and not to be released.

Copyright 2023 Sirsi Corporation - All Rights Reserved

SirsiDynix Technology Center
3300 N. Ashton Boulevard,
Suite 500
Lehi, UT 84043
Phone: 800-288-8020
QUOTE
Quote 114700 for:

South Pasadena Public Library
South Pasadena LTA Pricing
Quote valid until: August 31, 2023
Prepared by: Stacy Betts,
Senior Sales Director, New Account Development
DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 7
i SirsiDynix'
e) SirsiDynix'
Quote for South Pasadena Public Library Quote Number 114700 This Quote is hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer, if any. The above information is a trade secret, proprietary and confidential and is only for use by the library named above and not to be released.

Copyright 2023 Sirsi Corporation - All Rights Reserved

Purchase Details
All prices are in U.S. dollars ($) and are exclusive of taxes unless otherwise noted.

COMPONENT Year 1 Estimated
Year 2
Estimated
Year 3
Estimated
Year 4
Estimated
Year 5
Estimated
Optional
Year 1
Estimated
Optional
Year 2
SirsiDynix Services 1,935 - - - - - -
Platinum Services 4,500 4,630 4,764 4,902 5,044 5,190 5,340 Discount (193.50) - - - - - -
Active Products
Total
40,510.00 41,684.79 42,893.65 44,137.57 45,417.56 46,734.67 48,089.98 Total 46,751.50 46,314.79 47,657.65 49,039.57 50,461.56 51,924.67 53,429.98 Active Products
The products below will continue to be provided and will be incorporated into this agreement with the annual pricing as noted.

Quantity Total Price Component Note

1.00 2,400.00 BLUEcloud Analytics Platform Plus, Annual Subscription

1.00 6,170.00 BLUEcloud Mobile, Annual Subscription

1.00 0.00 BLUEcloud MobileStaff, Annual Subscription

1.00 0.00 Consulting - BLUEcloud Analytics Q and A, Distance, Annual Subscription

1.00 2,370.00 SirsiDynix Enterprise, SaaS Annual Subscription

1.00 0.00 SirsiDynix eRC Connector for OverDrive, Annual Subscription

1.00 1,450.00 SirsiDynix eResource Central Gateway Services, Annual Subscription

1.00 1,270.00 SirsiDynix Symphony SaaS 9xx, Per User

1.00 19,840.00 SirsiDynix Symphony SaaS Core

1.00 1,590.00 SirsiDynix Symphony SaaS Debt Collection Agency Interface

1.00 0.00 SirsiDynix Symphony SaaS Unicode Server Extension

1.00 4,960.00 SirsiDynix Symphony SaaS Universal SIP2

3.00 210.00 SirsiDynix SymphonyWeb SaaS User, Annual Subscription

1.00 250.00 Solus Services for BLUEcloud Mobile App Delivery, Annual DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 8
e) SirsiDynix'
Quote for South Pasadena Public Library Quote Number 114700 This Quote is hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer, if any. The above information is a trade secret, proprietary and confidential and is only for use by the library named above and not to be released.

Copyright 2023 Sirsi Corporation - All Rights Reserved

Subscription
40,510.00 Active Product Total Year 1
Initial Term: Five (5) Years with Two (2) One (1) Year options Initial Term Annual Price Increase Cap for SirsiDynix Products/Services: 2.9% until Term renewal The Initial Term and the Initial Term Annual Price Increase Cap set forth above shall apply to Active Products and new purchased Products/Services.

Customer's usage is subject to limitations that can be found in the Terms and Conditions section at the end of the Quote.

SirsiDynix reserves the right to adjust Initial Term pricing for Third Party/integrated products/services if a Third Party vendor increases pricing for Third Party/integrated products/services.

Any applicable discount shall be applied on final payment. Any and all pre-printed terms and conditions on Customer's Purchase Order(s) submitted to SirsiDynix are hereby rejected and shall be superseded by the current Master Agreement, unless such additional terms are statutorily required of the Customer.

This Purchase Details section may not include pre-existing obligations for ongoing Products not listed in the Quote.

DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 9
e) SirsiDynix'
Quote for South Pasadena Public Library Quote Number 114700 This Quote is hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer, if any. The above information is a trade secret, proprietary and confidential and is only for use by the library named above and not to be released.

Copyright 2023 Sirsi Corporation - All Rights Reserved

Detailed Pricing
All prices are in U.S. dollars ($) and are exclusive of taxes unless otherwise noted.

COMPONENT Qty Total Price
Year 1
SirsiDynix Services 1,935
Data Services:

MARC Authority LITE Processing (per 1,000 titles) PSC-9003 109 1,635 Project Management:

Project Management for all products in this Quote 1 300 Platinum Services 4,500
Discount (193.50)
Discount for Existing Platinum Services Subscription (193.50) Quote Total 6,241.50
DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 10
e) SirsiDynix'
Quote for South Pasadena Public Library Quote Number 114700 This Quote is hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer, if any. The above information is a trade secret, proprietary and confidential and is only for use by the library named above and not to be released.

Copyright 2023 Sirsi Corporation - All Rights Reserved

Component Descriptions
Each description below relates to a quantity of one for the component. There may be more than one in this Quote.

SirsiDynix Services
Data Services
MARC Authority LITE Processing (per 1,000 titles) PSC-9003 SirsiDynix’s Authority Processing LITE Service provides easy access to most of the options in the full Authority Processing Service with limited options and reduced price. This service does not require the completion of workforms and so does not include telephone consultation calls, test runs, or selection of options.

SirsiDynix staff will process a single file of MARC bibliographic records. SirsiDynix will identify matching authority records in SirsiDynix’s copy of the Library of Congress authority file, for each bibliographic heading. SirsiDynix will modify the text in the bibliographic record to match the authority record when the heading used is a SEE reference.

SirsiDynix will also update other text such as expanding abbreviations and correcting subfielding errors and will upgrade obsolete MARC coding. Processing will include name, series, uniform titles, LCSH subject fields, LC Juvenile subject fields, LC genre/form term fields, and GSAFD genre fields. SirsiDynix will provide the matching authority records and the updated bibliographic records.

SirsiDynix will apply updates to heading fields based on RDA rule changes.

SirsiDynix staff will extract records from the library’s Symphony, Horizon, or Dynix system, will load/reload the returned records, and will update or rebuild indexes if the system provides remote connectivity.

Project Management
Project Management includes the services of a Project Manager. The Project Manager is your primary point of contact during the implementation. You will work with your project manager to plan timeframes, schedule resources from the professional services team, and coordinate with other departments at SirsiDynix to deliver products and services outlined in this quote.

Depending on the type of implementation, the Project Manager will do the following:
- Act as your primary SirsiDynix contact during your implementation - Identify customer needs and key tasks to be accomplished by both the customer and SirsiDynix to ensure a successful implementation
- Organize meetings with you and appropriate SirsiDynix staff to kick off your implementation project - Work with SirsiDynix global operations staff to develop, communicate, and manage the overall implementation schedule
- Bring key SirsiDynix staff onto the project to ensure proper resources are available to meet critical milestones of your schedule
- Report to you regularly via phone and email status reports to keep everyone apprised of project progress - Monitor quality control checks at critical intervals in your project - Assist with the transition from Implementation phase to Customer Support Platinum Services
The next level of service. A comprehensive suite of services and extended support to ensure libraries get the same first-class service they offer to communities.

Platinum
10% off ALL qualifying future services purchases
Training
• Unlimited access to online eLearning training courses for 20 users • Web access to customizable electronic training documentation DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 11
e) SirsiDynix'
Quote for South Pasadena Public Library Quote Number 114700 This Quote is hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer, if any. The above information is a trade secret, proprietary and confidential and is only for use by the library named above and not to be released.

Copyright 2023 Sirsi Corporation - All Rights Reserved

• Three distance group training or consulting courses
Best Practices and Custom Consulting
• 6 custom consulting hours: Global database changes, Web Services assistance, Enterprise Customization, Symphony Custom Reports, Horizon SQL assistance, Search Index changes, Database Analysis or integration with Third Party Vendors
• SureSailing quarterly - Regularly scheduled two hour calls with a senior consultant to review best practices, report setup and configuration, system administration, planning for upgrades and enhancements, and answer general questions
• Enterprise Q and A - monthly call with a senior consultant to review Enterprise Customer Service and Support
• Dedicated Phone number
• Weekend and evening upgrade support
• Priority call handling and resolution
Data Enhancement Services
• Annual Authority Processing update (initial Authority Processing required before service can be scheduled)
• Annual Bibliographic Analysis to provide a series of reports on the content of the bibliographic database for quality control
DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 12
e) SirsiDynix'
Quote for South Pasadena Public Library Quote Number 114700 This Quote is hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer, if any. The above information is a trade secret, proprietary and confidential and is only for use by the library named above and not to be released.

Copyright 2023 Sirsi Corporation - All Rights Reserved

Terms and Conditions
Current Contract License Limits:

Up to 500,000 annually circulated items.

Up to 25 Staff Users.

SirsiDynix Professional Services performed by way of remote network access require ssh (Unix/Linux), Remote Desktop (Windows) or unattended Logmein Rescue (Windows) access for the duration of the project. The library may limit connectivity to the SirsiDynix Corporate IP address or implement a Cisco AnyConnect VPN tunnel. Other remote connectivity options may incur additional fees, onsite travel fees or void the ability of SirsiDynix to perform the project. A full description can be found in the Access Requirement for Support Guide on our customer support website.

Customer's data must be provided to SirsiDynix in a format approved by SirsiDynix or additional data conversion/migration charges will apply. De-duping is the Customer's responsibility, unless stated otherwise in writing.

Customer shall not integrate products offered by third parties into Software, Subscriptions or Subscription Software without additional license from SirsiDynix.

SirsiDynix shall have the right to aggregate and retain non-personally identifiable data.

Payment Terms
The term of any quoted products is for no less than the Initial Term and shall automatically renew for the length of the Initial Term. Subsequent years' Maintenance and Subscription fees are to be paid annually in advance.

Following the first year of System operation, Maintenance and Subscription fees will be subject to annual increases.

Unless otherwise specifically stated in writing, products and/or services purchased at promotional prices or with promotional discounts do not qualify for such discounts or limitations on price increases for subsequent years.

SirsiDynix Products and Services
• 100% due upon delivery of the first of any quoted SirsiDynix Products and Services Any reference to license metrics and/or licensed amounts included in this quote shall be applicable only to the Products and/or services mentioned in this quote. This document and any software or professional services associated with this document are hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer. If there is no current agreement between the parties, the terms and conditions of the current SirsiDynix Master Software License and Services Agreement shall be deemed the controlling Agreement between the parties, a copy of which shall be furnished upon Customer's request. Any and all pre-printed terms and conditions on Customer's Purchase Order(s) submitted to SirsiDynix are hereby rejected and shall be superseded by the current Agreement, unless such additional terms are statutorily required of the Customer. In the event of a conflict, the terms, payment terms, discounts, product lists and/or statement of work contained within this document shall take precedence over the current Agreement between the parties. In the event Customer desires or requires updated terms and conditions for the continuing business relationship with SirsiDynix, please contact your regional Sales Representative.

DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 13
e) SirsiDynix'
Quote for South Pasadena Public Library Quote Number 114700 This Quote is hereby fully incorporated into the current Agreement executed between SirsiDynix and Customer, if any. The above information is a trade secret, proprietary and confidential and is only for use by the library named above and not to be released.

Copyright 2023 Sirsi Corporation - All Rights Reserved

Signature(s)
Customer Signature: Sirsi Corporation dba SirsiDynix Signature:

South Pasadena Public Library
dl.signhere.1
By: _______________________________________
(Authorized Signature)
By: _____________________________________
(Authorized Signature)
dl.fullname.1
Name: _____________________________________
(Printed)
Name: __________________________________
(Printed)
dl.title.1
Job Title: ___________________________________ Job Title: ________________________________ dl.datesign.1
Date: ______________________________________ Date: ___________________________________ Billing Address:

South Pasadena Public Library
1100 Oxley Street
South Pasadena
California 91030
United States
DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 Jul-03-2023 | 15:50 MDT
General Counsel/Secretary
Scott Worthington
15 - 14
e) SirsiDynix'
ATTACHMENT 2
Master Agreement Between South Pasadena
Public Library and SirsiDynix
15 - 15

THIS PAGE

INTENTIONALLY

LEFT BLANK
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File: South Pasadena Public Library GC# 331203
Customer Initial and Date: dl.initialhere.1 Confidential

MASTER AGREEMENT

BETWEEN

SOUTH PASADENA PUBLIC LIBRARY

AND SIRSIDYNIX

1. PURPOSE AND SCOPE

1.1 Parties and Effective Date. This Master Agreement (the “Master Agreement) is entered into between Sirsi Corporation dba SirsiDynix (“SirsiDynix”) and the customer identified in the signature block below (“Customer”), with effect on the date of the last signature below (“Effective Date”).

1.2 Purpose. This Master Agreement establishes the general terms and conditions to which the parties have agreed with respect to the provision of Products by SirsiDynix to Customer. Additional terms for the purchase of a specific Product are set forth in the Quote(s). By signing below, the parties acknowledge receipt of and agree to be bound by the terms and conditions of this Master Agreement and the Quote(s) for Products purchased by Customer. All pre-printed or standard terms of any Customer purchase order or other business processing document shall have no effect.

1.3 Incorporation of Quotes. “Quote” means the document(s), regardless of actual name, executed by the parties which is incorporated by reference into the terms of this Master Agreement, and describes order-specific information, such as description of Product ordered, License Metrics, fees, statements of work, exhibits and milestones. At any time after execution of the Master Agreement and the initial Quote, Customer may purchase additional Products or otherwise expand the scope of existing licenses or Subscriptions granted under a Quote, upon SirsiDynix receipt and acceptance of a new Quote specifying the foregoing.

1.4 Incorporation of EULAs. Customer’s use of any Third Party Products licensed hereunder or incorporated in the Products may be subject to, and Customer shall sign and comply with, any applicable EULAs.

1.5 Order of Precedence. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of a Quote, the terms and conditions of the Master Agreement shall control, except where the Quote expressly states the intent to supersede a specific portion of the Master Agreement. To the extent any terms and conditions of this Master Agreement conflict with the terms and conditions of an EULA, the terms and conditions of the EULA shall control.

2. PRODUCTS USE RIGHTS; TITLE

2.1 Generally. Customer’s purchase of Products under this Master Agreement may include from time-to-time Software, Subscriptions, Services, and/or Hardware. The following provisions under this Section 2 apply if relevant to the type of Product purchased pursuant to a Quote.

2.2.1 Software License. Subject to the terms and conditions of this Master Agreement including without limitation the restrictions set forth in Section

2.7 and Section 2.9 and timely payment of the applicable fees, SirsiDynix hereby grants to Customer a limited, non-exclusive, and non-transferable license to (i) install, run and use the Software identified in the Quote in the Operating Environment solely for Internal Business Purposes, and (ii) use the Documentation in connection with such use of the Software. Customer may not make copies of the Software except a reasonable number of machine-readable copies solely for internal backup or archival purposes. All Intellectual Property rights notices must be reproduced and included on such copies. Customer shall maintain accurate and up-to-date records of the number and location of all copies of the Software and inform SirsiDynix in writing of such upon request. 2.2.2 Unless otherwise set forth in a Quote, the Software shall not be simultaneously loaded and operated on more than one hardware platform, except temporarily during the process of platform migration. 2.2.3 Customer shall use the Third Party Products solely in conjunction with the SirsiDynix Software and Customer shall have no broader rights with respect to the Third Party Products than it has to the SirsiDynix Software. SirsiDynix may add and/or substitute functionally equivalent products for any third party items in the event of product unavailability, end-of-life, or changes to software requirements.

2.3.1 Subscriptions. For Subscriptions purchased by Customer, and subject to the terms and conditions of this Master Agreement including without limitation the restrictions set forth in Sections 2.7 and 2.9 and timely payment of the applicable fees, SirsiDynix grants to Customer the right to access and use the Subscription identified in the Quote solely for Internal Business Purposes and to use the Documentation in connection with such access and use for the Term. SirsiDynix shall use commercially reasonable efforts to make the Subscription Services available 24x7, except for scheduled downtime events, or emergency downtime events, or Internet service provider failures or delays. SirsiDynix will use commercially reasonable efforts to perform scheduled downtime events outside of normal business hours. Customer acknowledges that the Subscription Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. SirsiDynix is not responsible for any delays, delivery failures, or other damage resulting from such problems. 2.3.2 Customer is solely responsible for obtaining and maintaining at its own expense, all equipment that may be needed to access Subscriptions, including without limitation, Internet connections. Customer understands that Subscription communications may traverse an unencrypted public Internet connection and that use of the Internet provides the opportunity for unauthorized third parties to illegally gain access to Customer Data. Accordingly, SirsiDynix does not guaranty the privacy, security or authenticity of any information transmitted over or stored in any system connected to the Internet. Customer shall not encrypt Subscription traffic except as may be available through the SirsiDynix VPN solution. 2.3.3 Customer is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user.

Customer is responsible for all activities that occur under Customer's account. Customer agrees to immediately notify SirsiDynix of any unauthorized use of Customer's account or any other breach of security known to Customer. SirsiDynix shall have no liability for any loss or damage arising from Customer's failure to comply with these requirements. 2.3.4 Customer shall be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data. Customer acknowledges and agrees that SirsiDynix does not monitor or police the content of communications or data of Customer or its users transmitted through the Subscriptions, and that SirsiDynix shall not be responsible for the content of any such communications or transmissions.

Customer shall use the Subscriptions exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer agrees not to post or upload any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses or other contaminating or destructive features; (c) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; (d) constitutes sensitive personal information such as social security numbers, credit card information, or drivers license numbers; or (e) otherwise violates any applicable law. Customer further agrees not to interfere or disrupt networks connected to the Subscriptions, not to interfere with another customer’s use DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 17
8 SirsiDynix"
File: South Pasadena Public Library GC# 331203
Customer Initial and Date: dl.initialhere.1 Confidential

and enjoyment of similar services and to comply with all regulations, policies and procedures of networks connected to the Subscriptions. SirsiDynix may remove any violating content posted or transmitted on or through the Subscriptions, without notice to Customer. SirsiDynix may suspend or terminate any user’s access to the Subscriptions upon notice in the event that SirsiDynix reasonably determines that such user has violated these terms and conditions. 2.3.5 The provision of third party Subscriptions is subject to availability from third party providers and SirsiDynix shall have no liability should such Subscription become unavailable for any reason or is no longer available under reasonable commercial terms. 2.3.6 In the event that Customer is locally hosting Subscription Software, SirsiDynix hereby grants to Customer, subject to the terms and conditions of this Master Agreement including without limitation the restrictions set forth in Section

2.7 and Section 2.9 and timely payment of the applicable fees, a limited, non-exclusive, non-transferable grant of use to locally install and use the Subscription Software solely for Customer’s internal business purposes.

The grant of use for Subscription Software is not a license and remains in effect only while Customer is timely paying its Subscription fees to SirsiDynix. If Customer fails to timely pay Subscription fees, Customer must immediately discontinue use of and certify to SirsiDynix the removal of Subscription Software.

2.4.1 Services. Services are described in the Quote. SirsiDynix shall be responsible for securing, managing, scheduling, coordinating and supervising SirsiDynix personnel, including its subcontractors, in performing any Services. Any change to the scope of Services must be in writing signed by both parties. Once executed by both parties, a change shall become a part of the Quote. 2.4.2 Customer acknowledges and agrees that SirsiDynix performance is dependent upon the timely and effective satisfaction of Customer’s responsibilities hereunder and timely decisions and approvals of Customer in connection with the Services. SirsiDynix shall be entitled to rely on all decisions and approvals of Customer. Customer’s data must be provided to SirsiDynix in a format reasonably approved by SirsiDynix or additional charges will apply. Customer shall be responsible for providing secured access to Customer’s systems to SirsiDynix. SirsiDynix alone shall decide whether such access is sufficient for the performance of Services.

2.5. Software Maintenance. 2.5.1 Subject to Customer’s timely payment of applicable fees, SirsiDynix will provide during the Term Maintenance services for the Software in accordance with the maintenance plan indicated in the Quote, provided however that with respect to Third Party Products, SirsiDynix’s obligation to offer Maintenance is limited to using commercially reasonable efforts to obtain Maintenance from the third party owner of such Software. All licenses in Customer’s possession must be supported under the same maintenance plan. 2.5.2 Updates are provided if and when available, and SirsiDynix is under no obligation to develop any future programs or functionality. 2.5.3 SirsiDynix is under no obligation to provide Maintenance with respect to: (i) a Product that has been altered or modified by anyone other than SirsiDynix or its licensors; (ii) a release for which Maintenance has been discontinued; (iii) a Product used other than in accordance with the Documentation or other than on the Operating Environment; (iv) discrepancies that do not significantly impair or affect the operation of the Product; or (v) any systems or programs not supplied by SirsiDynix. 2.5.4 For the avoidance of doubt, Updates provided under Maintenance services are subsequent minor or maintenance releases to the standard Products, excluding custom development or customizations whether such customizations are performed by SirsiDynix or by Customer or a third party. SirsiDynix reserves the right to charge Client for any reintegration work required to make customizations compatible with future releases. 2.5.5 If ordered, Maintenance must be ordered for all Software and all associated License Metrics licensed by Customer. Customer may not purchase or renew Maintenance for a subset of its licenses only. 2.5.6 If an Error was corrected or is not present in a more current release of the Product, SirsiDynix shall have no obligation to correct such Errors in prior releases of the Software. 2.5.7 Fees for Maintenance Services do not include implementation, training and other Professional Services. 2.5.8 It is Customer’s responsibility to ensure that all appropriate users receive initial training services sufficient to enable Customer to effectively use the Software. Failure to do so could result in additional Maintenance fees if service requests are deemed excessive as a result of insufficient training, at SirsiDynix’s discretion.2.5.9 In the event Customer does not renew Maintenance and subsequently desires to reinstate Maintenance, a reinstatement fee shall be assessed equal to 120% of the aggregate Maintenance fee that would have been payable during the period of lapse.

2.5.10 For Software licenses and Subscription Software, Customer is solely responsible for the installation of Updates and agrees to (i) meet the Update standard set forth in the SirsiDynix Support Policies referenced in the definition of Maintenance and (ii) maintain the Operating Environment. With respect to Subscriptions, SirsiDynix is responsible for the implementation of Updates and shall no longer provide access to any previous release upon the date SirsiDynix migrates to a new Update for production use in SirsiDynix’s hosted environment.

2.6.1 Hardware and Hardware Maintenance. Title to the Hardware identified in the Quote, if any, shall pass to Customer on SirsiDynix’s placement of the Hardware with a common carrier or licensed trucker, which shall constitute delivery to Customer. Thereafter Customer will be responsible for risks of loss or damage, except for loss or damage caused by SirsiDynix in the process of installation. 2.6.2 SirsiDynix does not provide support for Hardware unless Customer purchases any available maintenance associated with such Hardware. Such Hardware maintenance may be provided through a third party and is subject to that third party’s standard terms, conditions and warranties, if any.

2.7 License Metrics. Customer may not use the Products in excess of the License Metrics specified in the Quote. Additional License Metrics and associated Maintenance must be purchased at the pricing in effect at the time the additional License Metrics are added in the event actual usage exceeds the licensed quantity, prorated for the remainder of the then-current Term. The additional License Metrics purchased shall terminate on the same date as the pre-existing Products. Prices are based on License Metrics purchased and not actual usage. The number of License Metrics provided in the initial Quote is a minimum amount that Customer has committed to for the Term and there shall be no fee adjustments or refunds for any decreases in usage.

2.8 Reservation of Rights. All rights not expressly granted in the Master Agreement are reserved by SirsiDynix and its third party providers.

Customer acknowledges that: (i) all Software is licensed and not sold and all Subscriptions and Content are subscribed to and not sold; (ii) Customer acquires only the right to use the Protected Materials. SirsiDynix and its third party providers retain sole and exclusive ownership and all rights, title, and interest in, including Intellectual Property embodied or associated with, the Protected Materials and all copies and derivative works thereof (whether developed by SirsiDynix, Customer or a third party); and (iii) the Protected Materials, including the source and object codes, logic and structure, constitute valuable trade secrets of SirsiDynix and its third party providers.

Customer agrees to secure and protect the Products consistent with the maintenance of SirsiDynix’s and its third party providers’ rights in the Products, as set forth in this Master Agreement.

2.9 Restrictions. Unless specifically permitted or licensed by SirsiDynix, Customer shall not itself, or through any affiliate, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Protected Materials; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Protected Materials, including the license keys, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Protected Materials to any user other than Customer’s employees and independent contractors who have a need to such access and who shall be bound by a nondisclosure agreement with provisions that are at least as restrictive as the terms of this Master Agreement (except the Customer may grant access to public access catalogs to library users, other libraries, and third party entities); (iv) write or develop any derivative works based upon the Protected Materials; (v) modify, adapt, translate or otherwise make any changes to the Protected Materials or any part thereof; (vi) use the Protected Materials to provide processing services to third DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 18
8 SirsiDynix"
File: South Pasadena Public Library GC# 331203
Customer Initial and Date: dl.initialhere.1 Confidential

parties, or otherwise use the same on a ‘service bureau’ basis; (vii) disclose or publish, without SirsiDynix’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Protected Materials; or (viii) otherwise use or copy the Protected Materials except as expressly permitted herein.

2.10 Customer Data. SirsiDynix disclaims ownership of any and all Customer Data, all bibliographic, authority, item, fine, patron, and other data loaded to, created and/or entered into Customer’s database or supplied to SirsiDynix by Customer. Notwithstanding Customer’s ownership of Customer Data, at the end of the Term SirsiDynix shall only be obligated to provide to Customer extractable Customer Data at no additional charge in a supported MARC format. SirsiDynix shall have the right to aggregate and retain non-personally identifiable data.

2.11 License Grant by Customer. Customer grants to SirsiDynix a nonexclusive, royalty-free license, to use equipment, software, Customer Data or other material of Customer solely for the purpose of performing SirsiDynix’s obligations under the Master Agreement.

2.12 Enforcement. Customer shall (i) ensure that all users of the Products comply with the terms and conditions of the Master Agreement, (ii) promptly notify SirsiDynix of any actual or suspected violation thereof and (iii) cooperate with SirsiDynix with respect to investigation and enforcement of the Master Agreement.

3. FINANCIAL TERMS

3.1.1 Fees and Payment Terms. The Customer shall pay the amounts set forth in the Quote. Subject to the provisions of the Quote, and after the initial term and renewal terms, and no new agreement has been executed, EOS may annually increase the fees of Subscription and/or Subscription Software upon 30 days written notice in advance. Interest accrues on past due balances at the higher of 1½% per month or the highest rate allowed by law. If Customer fails to make payments of any amount due under the Master Agreement, SirsiDynix will be entitled to suspend its performance upon ten (10) days written notice to Customer. 3.1.2 Unless expressly provided otherwise, amounts paid or payable for Software, Subscriptions, Subscription Software and Hardware are not contingent upon the performance of any Services.

3.2 Taxes. Customer agrees to pay any sales tax arising out of the Master Agreement, other than those based on SirsiDynix’s net income. If Customer is tax-exempt, Customer agrees to send SirsiDynix a copy of its tax-exempt certificate upon execution of the Master Agreement. Customer agrees to indemnify SirsiDynix from any liability or expense incurred by SirsiDynix as a result of Customer’s failure or delay in paying such sales tax due.

3.3 No Contingencies. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by SirsiDynix regarding future functionality or features.

4. CONFIDENTIALITY

4.1 Non-Disclosure. Each party will protect the other party’s Confidential Information from unauthorized dissemination and use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Neither party will use Confidential Information of the other party for purposes other than those necessary to directly further the purposes of the Master Agreement. Neither party will disclose to third parties Confidential Information without prior written consent of the other party.

4.2 Exceptions. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving party; (ii) was in the receiving party's possession before receipt from the disclosing party; (iii) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; (iv) has been independently developed by one party without reference to any Confidential Information of the other; (v) is information aggregated by SirsiDynix that no longer contains any personally identifiable information; or (vi) is required to be disclosed by law provided the receiving party has promptly notified the disclosing party of such requirement and allowed the disclosing party a reasonable time to oppose such requirement. The parties acknowledge that Customer may be subject to freedom of information legislation and further acknowledges that such legislation may take precedence over the confidentiality provisions of this section as they apply to Customer.

5. PRIVACY
Customer represents and warrants that before providing personally identifiable information to SirsiDynix or its agents, it will comply with any laws applicable to the disclosure of personally identifiable information, including providing notices to or obtaining permission from third parties to allow sharing of their personally identifiable information with SirsiDynix under the Master Agreement. Customer will indemnify SirsiDynix for any breach of this representation and warranty. No personally identifiable information will be disseminated by SirsiDynix to any third parties, except as consented to by Customer or required by law.

6. INDEMNIFICATION

6.1.1 By SirsiDynix. SirsiDynix will defend or settle, at its option and expense, any action, suit or proceeding brought against Customer that the SirsiDynix Software (excluding Content and Third Party Products) infringe a third party’s USA patent, registered copyright, or registered trademark (“Claim”). SirsiDynix will indemnify Customer against all damages and costs finally awarded which are attributable exclusively to such Claim, provided that Customer: (i) promptly gives written notice of the claim to SirsiDynix; (ii) gives SirsiDynix sole control of the defense and settlement of the Claim; (iii) provides SirsiDynix, at SirsiDynix’s expense, with all available information and assistance relating to the Claim and cooperates with SirsiDynix and its counsel; (iv) does not compromise or settle such Claim; and (v) is not in material breach of any agreement with SirsiDynix. 6.1.2 SirsiDynix has no obligation to the extent any Claim results from: (i) Customer having modified the SirsiDynix Software or used a release other than the most current unaltered release of the SirsiDynix Software, if such an infringement would have been avoided by the use of such current unaltered release, (ii) Third Party Products and/or Content, or (iii) the combination, operation or use of the SirsiDynix Software with software or data not provided by SirsiDynix.

6.1.3 If it is adjudicated that the use of the SirsiDynix Software in accordance with the Master Agreement infringes any USA patent, registered copyright, or registered trademark, SirsiDynix shall, at its option: (i) procure for Customer the right to continue using the infringing SirsiDynix Software; (ii) replace or modify the same so it becomes non-infringing; or (iii) Customer will be entitled to an equitable adjustment in the fees paid for the affected SirsiDynix Software. THIS SECTION STATES SIRSIDYNIX’S ENTIRE OBLIGATION TO CUSTOMER AND CUSTOMER’S SOLE REMEDY FOR
ANY CLAIM OF INFRINGEMENT.

6.2 By Customer. To the extent allowed by law, Customer shall defend or settle, at its option and expense, any action, suit or proceeding brought against SirsiDynix by a third party arising out of or in connection with: (i) any claim that Customer Data infringes on the intellectual property rights of a third party; (ii) any claim by a Customer user or (iii) any claim that Customer or a Customer’s user is using the Product in a manner that violates the provisions of the Master Agreement. Customer’s obligations under this section are contingent upon: (a) SirsiDynix providing Customer with prompt written notice of such claim; (b) SirsiDynix providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.

7. WARRANTIES; REMEDIES; DISCLAIMERS

7.1 SirsiDynix Software. SirsiDynix warrants that, for a period of 90 days from the Go Live Date, the SirsiDynix Software, as updated by SirsiDynix and used in accordance with the Documentation and in the Operating Environment, will operate in all material respects in conformity with the Documentation.

If SirsiDynix Software does not perform as warranted, SirsiDynix shall use commercially reasonable efforts to correct Errors. As Customer's exclusive DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 19
8 SirsiDynix"
File: South Pasadena Public Library GC# 331203
Customer Initial and Date: dl.initialhere.1 Confidential

remedy for any claim under this warranty, Customer shall promptly notify SirsiDynix in writing of its claim. Provided that such claim is reasonably determined by SirsiDynix to be SirsiDynix’s responsibility, SirsiDynix shall, within ninety (90) days of its receipt of Customer's written notice; (i) correct such Error; (ii) provide Customer with a plan reasonably acceptable to Customer for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from SirsiDynix, then SirsiDynix or Customer may terminate the affected SirsiDynix Software license and Customer will be entitled to an equitable adjustment in the fees paid for the affected SirsiDynix Software at SirsiDynix’s discretion. The preceding warranty cure shall constitute SirsiDynix’s entire liability and Customer's exclusive remedy for cure of the warranty set forth herein.

7.2 SirsiDynix Subscriptions. SirsiDynix warrants that Subscriptions, as used in accordance with the Documentation, will operate in all material respects in conformity with the Documentation.

7.3 Exclusions. SirsiDynix is not responsible for any claimed breach of any warranty caused by: (i) modifications made to the SirsiDynix Software by anyone other than SirsiDynix; (ii) the combination, operation or use of the SirsiDynix Software with any items that are not part of the Operating Environment; (iii) Customer’s failure to use any new or corrected releases of the SirsiDynix Software made available by SirsiDynix; (iv) SirsiDynix’s adherence to Customer’s specifications or instructions; or (v) Customer deviating from the operating procedures described in the Documentation.

7.4 Third Party Products. SirsiDynix warrants that it is an authorized distributor of the Third Party Product and that with the execution of this Master Agreement and the applicable EULA, Customer will have the right to use such Product in accordance with the terms and conditions of the terms of this Master Agreement and the applicable EULA. SIRSIDYNIX MAKES

NO OTHER WARRANTY WITH RESPECT TO ANY THIRD PARTY
PRODUCTS. CUSTOMER’S SOLE REMEDY WITH RESPECT TO SUCH

THIRD PARTY PRODUCTS SHALL BE PURSUANT TO THE ORIGINAL
LICENSOR’S WARRANTY, IF ANY, TO SIRSIDYNIX, TO THE EXTENT PERMITTED BY THE ORIGINAL LICENSOR. THIRD PARTY PRODUCTS ARE MADE AVAILABLE BY SIRSIDYNIX ON AN "AS IS, AS AVAILABLE" BASIS.

7.5 Hardware. SirsiDynix warrants that it is an authorized distributor of the Hardware. Hardware warranties shall be governed by the manufacturer’s warranty. SIRSIDYNIX MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO HARDWARE OR HARDWARE MAINTENANCE.

CUSTOMER’S SOLE REMEDY WITH RESPECT TO SUCH HARDWARE

OR HARDWARE MAINTENANCE SHALL BE PURSUANT TO THE
MANUFACTURER’S WARRANTY, IF ANY.

7.6 Disclaimers. THE WARRANTIES SET FORTH IN THIS MASTER

AGREEMENT ARE IN LIEU OF, AND SIRSIDYNIX, ITS LICENSORS AND

SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT

PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i)

ANY WARRANTY THAT ANY PRODUCT IS ERROR-FREE OR WILL

OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF

MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT, (iii) ANY WARRANTY THAT CONTENT OR THIRD PARTY PRODUCTS WILL BE ACCURATE, RELIABLE AND ERRORFREE AND (iv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM

STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR
USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION

GIVEN BY SIRSIDYNIX, ITS AFFILIATES, CONTRACTORS OR

EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY
PROVIDED HEREIN. CUSTOMER ACKNOWLEDGES THAT USE OF OR

CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR

UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY

PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES

AND CUSTOMER DATA AND THAT NO FORM OF ENCRYPTION IS
FOOL PROOF. ACCORDINGLY, SIRSIDYNIX CANNOT AND DOES NOT

GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY

INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.

8. EXCLUSION AND LIMITATION OF LIABILITY

8.1 TO THE FULLEST EXTENT PERMITTED BY LAW, SIRSIDYNIX’S

TOTAL LIABILITY (INCLUDING ATTORNEYS FEES AWARDED UNDER

THE MASTER AGREEMENT) TO CUSTOMER FOR ANY CLAIM BY

CUSTOMER OR ANY THIRD PARTIES UNDER THE MASTER
AGREEMENT, EXCLUDING LIABILITY PURSUANT TO SECTION 6
(Indemnification), WILL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE PREVIOUS 12 MONTHS FOR THE PRODUCT WHICH IS
THE SUBJECT MATTER OF THE CLAIM.

8.2 IN NO EVENT WILL SIRSIDYNIX BE LIABLE TO CUSTOMER FOR

ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY PUNITIVE,

TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT

LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME,

GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE),

WHETHER BASED ON BREACH OF CONTRACT, BREACH OF

WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY

OR OTHERWISE, WHETHER OR NOT SIRSIDYNIX HAS PREVIOUSLY
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.3 NO CLAIM ARISING OUT OF THE MASTER AGREEMENT,

REGARDLESS OF FORM, MAY BE BROUGHT BY CUSTOMER MORE
THAN TWO YEARS AFTER THE CAUSE OF ACTION ARISES.

9. TERM AND TERMINATION

9.1 Term of Master Agreement. Subject to Section 10.12 below, the term of this Master Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all Quotes, unless otherwise terminated earlier as provided hereunder.

9.2 Product and Services Term. The respective initial term of Software Maintenance, Hardware Maintenance, Subscriptions, and Subscription Software as applicable, is specified in the Quote (“Initial Term”).

Notwithstanding the Quote, the Initial Term is comprised of a separate five (5) year term with two separate optional extensions thereafter for one (1) year each. After the five-year term and optional years have been exercised and expired, The Initial Term shall renew but only for a 12-month renewal terms at the sole option of Customer with Customer’s consent. Customer’s payment of its annual maintenance invoice at the beginning of each renewal term shall be considered sufficient consent to renew. There are two one (1) year renewal terms. The Initial Term and renewal terms are referred to as the “Term”.

9.3.1 Termination. Either party may terminate the Master Agreement immediately upon written notice if the other party commits a non-remediable material breach of the Master Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within 30 days of being notified in writing of such breach. Where the non-breaching party has a right to terminate the Master Agreement, the non-breaching party may at its discretion terminate the Master Agreement or the applicable Quote. Quotes that are not terminated shall continue in full force and effect under the terms of this Master Agreement 9.3.2 Following termination of the Master Agreement, Customer agrees to certify that it has returned or destroyed all copies of the applicable Product and Confidential Information and acknowledges that its rights to use the same are relinquished.

9.4. Suspension. SirsiDynix will be entitled to suspend any or all performance upon 10 days written notice to Customer in the event Customer is in breach of the Master Agreement. Further, SirsiDynix may suspend Customer’s use of and access to all or a portion of the Subscriptions if, and so long as, in SirsiDynix’s sole judgment, there is a security risk created by Customer that may interfere with the proper continued provision of services or the operation of SirsiDynix’s network or systems. SirsiDynix may impose an additional charge to reinstate service following such suspension.

DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 20
8 SirsiDynix"
File: South Pasadena Public Library GC# 331203
Customer Initial and Date: dl.initialhere.1 Confidential

10. GENERAL PROVISIONS

10.1 Force Majeure. The parties will exercise every reasonable effort to meet their respective obligations hereunder but shall not be liable for delays resulting from force majeure or other causes beyond their reasonable control, including but not limited to power outages or failure of third party service providers. This provision does not relieve Customer of its obligation to make payments then owing.

10.2 Assignment. SirsiDynix may assign the Master Agreement and all of its rights and obligations herein without Customer’s approval to its parent company or other affiliated company, to a successor by operation of law, or by reason of the sale or transfer of all or substantially all of its stock or assets to another entity. Neither party may otherwise assign or transfer the Master Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. Notwithstanding the above, SirsiDynix may fulfill its obligations hereunder through its affiliated companies.

10.3 Cooperation. Customer agrees to provide cooperation, which means assistance, information, equipment, data, a suitable work environment, timely access, and resources reasonably necessary to enable SirsiDynix to perform any and all installation, implementation, and services required to fulfill its obligations hereunder including but not limited to ensuring SirsiDynix has remote access. Failure to grant such cooperation shall allow SirsiDynix to deem the Product purchased by Customer to be fully accepted and delivered. In the event any delay in implementing Products is caused by Customer resulting in SirsiDynix incurring additional expenses, the Customer shall pay to SirsiDynix the amount of such additional expenses.

10.4 Delegation. SirsiDynix may subcontract or delegate any work under any Quote to any third party without Customer’s prior written consent, provided however that SirsiDynix shall remain responsible for the performance of any such subcontractors.

10.5 Notice of U.S. Government Restricted Rights. If the Customer hereunder is the U.S. Government, or if the Software is acquired hereunder on behalf of the US Government with U.S. Government federal funding, notice is hereby given that the Software is commercial computer software and documentation developed exclusively at private expense and is furnished as follows: “U.S. GOVERNMENT RESTRICTED RIGHTS.

Software delivered subject to the FAR 52.227-19. All use, duplication and disclosure of the Software by or on behalf of the U.S. Government shall be subject to this Master Agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software - Restricted Rights (June 1987)”.

10.6 Export. Customer shall comply fully with all relevant export laws and regulations of the United States to ensure that the Software is not exported, directly or indirectly, in violation of United States law.

10.7 Non-solicitation. During the term of this Master Agreement and for a period of one year following its termination, neither party will solicit for employment directly or through other parties, without the other party’s written permission, any individual employed by the other party, provided however that the hiring of individuals responding to general public marketing and recruiting advertisements and events shall not be a violation of this provision; only active, targeted solicitation is prohibited.

10.8 Compliance. During the term of this Master Agreement and for a period of one year following its termination, SirsiDynix shall have the right to verify Customer’s full compliance with the terms and requirements of the Master Agreement. If such verification process reveals any noncompliance by Customer, Customer shall reimburse SirsiDynix for the reasonable costs and expenses of such verification process incurred by SirsiDynix (including but not limited to reasonable attorneys’ fees) , and Customer shall promptly cure any such noncompliance; provided, however, that the obligations under this section do not constitute a waiver of SirsiDynix’s termination rights and do not affect SirsiDynix’s right to payment for Products and interest fees related to usage in excess of the License Metrics.

10.9 Notices. Any notice required or permitted to be sent under the Master Agreement shall be delivered by hand, by overnight courier, by email to SirsiDynix at [email protected], or by email to Customer at any current Customer email address routinely used by SirsiDynix, or by registered mail, return receipt requested, to the address of the parties set forth in the Master Agreement or to such other address of the parties designated in writing in accordance with this subsection.

10.10 Relationship. The Master Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.

10.11 Invalidity. If any provision of the Master Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

10.12 Survival. The following provisions will survive any termination or expiration of the Master Agreement: sections 1, 2.7, 2.8, 2.10, 2.12, 3, 4, 5, 6, 7, 8, 9, and 10.

10.13 No Waiver. Any waiver of the provisions of the Master Agreement or of a party’s rights or remedies under the Master Agreement must be in writing to be effective. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by either of the parties hereto of a breach or of a default under any of the provisions of the Master Agreement shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity. Failure, neglect, or delay by a party to enforce the provisions of the Master Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such party’s rights under the Master Agreement and shall not in any way affect the validity of the whole or any part of the Master Agreement or prejudice such party’s right to take subsequent action.

10.14 Entire Agreement. The Master Agreement constitutes the parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous oral or written communications, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the parties relating to its subject matter as well as any prior contractual agreements between the parties. Notwithstanding the precedence of this Master Agreement, any existing Customer License Metrics shall continue unless new License Metrics are identified in a Quote.

No modification to the Master Agreement will be binding unless in writing and signed by an authorized representative of each party.

10.15 Third Party Beneficiaries. All rights and benefits afforded to SirsiDynix under the Master Agreement shall apply equally to the owner of the Third Party Products with respect to the Third Party Products, and such third party is an intended third party beneficiary of the Master Agreement, with respect to the Third Party Products.

10.16 Governing Law and Venue. The Master Agreement shall be governed by and construed in accordance with the laws of the State of Utah without giving effect to its principles of conflict of laws. Any dispute shall be litigated in the state or federal courts located in Utah to whose exclusive jurisdiction the parties hereby consent. In addition, the Customer hereby waives any objection the customer may have based upon lack of personal jurisdiction, improper venue and/or “forum non conveniens”.

10.17 Application of Laws. The parties agree that this contract is not a contract for the sale of goods; therefore, the Master Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (“UCITA”), or any references to the United National Convention on Contracts for the International Sale of Goods.

10.18 Counterparts. The Master Agreement and each Schedule may be executed in one or more counterparts, each of which shall constitute an enforceable original of the Master Agreement, and that facsimile, electronic DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 15 - 21
8 SirsiDynix"
File: South Pasadena Public Library GC# 331203
Customer Initial and Date: dl.initialhere.1 Confidential

and/or .pdf scanned copies of signatures shall be as effective and binding as original signatures.

10.19 Headings and Drafting. The headings in the Master Agreement shall not be used to construe or interpret the Master Agreement. The Master Agreement shall not be construed in favor of or against a party based on the originator of the document.

10.20 Attorney’s Fees. In the event a party seeks and obtains a remedy in the courts for its rights under this Master Agreement, the prevailing party in such litigation shall be entitled to its reasonable attorney’s fees and cost. ************************************************************

END OF MASTER AGREEMENT
South Pasadena Public Library
1100 Oxley Street
South Pasadena, California 91030
United States
Sirsi Corporation
SirsiDynix Technology Centre
3300 N. Ashton Blvd. – Suite 500
Lehi, UT 84043
Sign: dl.signhere.1 Sign: dl.signhere.2
Print Name: dl.fullname.1 Print Name: dl.fullname.2
Title: dl.title.1 Title: dl.title.2
Date: dl.datesign.1 Date: dl.datesign.2
DocuSign Envelope ID: 61FDF349-857A-42A5-851F-04A1371A4156 Scott Worthington
General Counsel/Secretary
Jul-03-2023 | 15:50 MDT
15 - 22
G DocuSigned by:
~~s~~~~b~
8 SirsiDynix"
File: South Pasadena Public Library GC# 331203
Customer Initial and Date: dl.initialhere.1 Confidential

Exhibit A - DEFINITIONS
“Circulation” means the checkout of a Library Item to a patron, the checkout of a Library Item for the purpose of tracking in-library usage, the renewal of a Library Item, or an action functionally identical to any of the preceding acts.
“Confidential Information” means information of SirsiDynix and/or its licensors includes but is not limited to the terms and conditions (but not the existence) of the Master Agreement, all trade secrets, software, source code, object code, specifications, as well as results of testing and benchmarking of the Software or other services, product roadmap, data and other information of SirsiDynix and its licensors relating to or embodied in the Software or Documentation, including but not limited to information designated as confidential in writing or information which ought to be in good faith considered confidential and proprietary to the disclosing party.

SirsiDynix’s placement of a copyright notice on any portion of any Software will not be construed to mean that such portion has been published and will not derogate from any claim that such portion contains proprietary and confidential information of SirsiDynix. Confidential Information does not include that the Customer uses SirsiDynix Products.
“Content” means any information, data, text, software, music, sound, photographs, graphics, video messages or other material which Customer receives through a Subscription.
“Customer Data” means any electronic data, information or material provided or submitted by Customer (including the Customer’s patrons and users) to SirsiDynix through a Subscription or Services, or which Customer (including the Customer’s patrons and users) enters into the Subscription or Services or has entered on its behalf, or which SirsiDynix is otherwise given access to under the Master Agreement. Customer Data does not include non-personally identifiable information aggregated by SirsiDynix. “Documentation” means the user instructions, release notes, manuals and on-line help files made available by SirsiDynix regarding the use of the applicable Product.
“Effective Date” is defined in section 1.1.
“Error” means a material failure of a Product to conform to its functional specifications described in the Documentation.
“EULA” means the end user license agreement that accompanies the Third Party Product, which governs the use of or access by Customer to the applicable Third Party Product.
“Go Live Date” means the date on which the Products are substantially ready for operational use for normal daily business.
“Hardware” means the physical hardware and equipment manufactured by third party providers and sold to Customers by SirsiDynix. “Intellectual Property” means any and all intellectual property rights, recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patents rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which SirsiDynix has created, acquired or otherwise has rights in, and may, in connection with the performance of obligations hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.
“Internal Business Purposes” means Customer’s internal use but does not include (1) sharing Confidential Information or Intellectual Property with third parties without SirsiDynix written consent or (2) integration of third party products by any means into Software, Subscriptions or Subscription Software without additional SirsiDynix license.
“License Metrics” means limits on Product usage as set forth in the Quote such as Titles, Circulation, Users, students, seats, and reports. “Maintenance” means the technical support and, with respect to Software, the provision of Updates for the level of support services purchased from SirsiDynix, all of which are provided under SirsiDynix’s support policies in effect at the time the Services are provided, which may be modified from time-to-time by SirsiDynix in its sole discretion. A current version of such Support Policies can be found under “SirsiDynix Support Policies” (Document ID 125773) at http://support.sirsidynix.com.
“Operating Environment” means SirsiDynix-recommended hardware, operating system, middleware, database products and other software on which the Software will operate.
“Professional Services” means data conversion, implementation, site planning, configuration, integration and deployment of the Software or Subscriptions, training, project management and other consulting services. “Products” means Software, Subscriptions, Subscription Software, Services and Hardware.
“Protected Materials” means Software and work product provided by SirsiDynix under Services, Subscriptions, Subscription Software and SirsiDynix’s or its licensors’ Intellectual Property and Confidential Information.
“Quote” is defined in Section 1.3.
“Services” means those services provided or arranged by SirsiDynix including but not limited to specific SirsiDynix Products such as (i) Professional Services; and (ii) that part of Maintenance that is technical support, excluding the provision of Updates.
“SirsiDynix Software” means each SirsiDynix-developed and/or SirsiDynix-owned software product in machine-readable object code (not source code), the Documentation for such product, and any Updates thereto.
“Software” means the SirsiDynix Software and Third Party Software. “Subscriptions” means the provision of access by SirsiDynix or its hosting providers to Software and/or Content from a server farm that is comprised of application, data and remote access servers, including associated offline components including but not limited to cloud services and web access to Content.
“Subscription Software” means Subscriptions hosted by Customer.

Customer does not have a license in Subscription Software. “Term” is defined in section 9.2.
“Titles” means the number of unique records for an electronic, virtual, and/or physical item which may be used by a library patron, such as a bibliographic, MARC, visual material, serial or Dublin Core record, created on the Software or Subscription. Multiple items, representing either identical items or volumes in a set, may be included in a single Title. “Third Party Products” means software or content including documentation and updates if any, owned by an entity other than SirsiDynix and provided by SirsiDynix in connection with Products. “Updates” means the error corrections, releases, updates, modifications or enhancements subsequently developed that SirsiDynix makes generally available to its customers as part of Maintenance on a when and if available basis. Updates exclude new products, modules, platform or functionality for which SirsiDynix charges a separate fee.
“Users” means Customer’s employees or agents who have been issued user names and passwords by Customer to use the Products. Each such User shall be one person, and user names and passwords cannot be shared or used by more than one person.

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DATE:

FROM:

City Council
Agenda Report
July 19, 2023
Roxanne Diaz, City Attorney
ITEM NO._
SUBJECT: Approval of the Third Amendment to the Employment Agreemen_t with City Manager Armine Chaparyan
Recommendation
It is recommended that the City Council approve the Third Amendment to the Employment Agreement and authorize the Mayor to sign the amendment.

Executive Summary
Pursuant to the Employment Agreement between the City and City Manager Armine Chaparyan, the City Council conducted its annual performance evaluation of City Manager Chaparyan on June 7, 2023 and June 21, 2023. Following that evaluation, the City Attorney has prepared the Third Amendment to the Employment Agreement as described herein.

Background
On May 5, 2021, the City Council approved the Employment Agreement between the City and Armine Chaparyan to serve as the City Manager for the City of South Pasadena beginning on May 31, 2021. The current Employment Agreement is for a five year term.

The Employment Agreement provided for an initial performance evaluation after the City Manager's first six months in addition to an annual evaluation. Following the initial performance evaluation, the Employment Agreement was amended in February 2022 to increase the City Manager's base salary from $215,000 to $221,450. Thereafter, the annual performance evaluation was held and in July 2022 the City Council approved the Second Amendment to the Employment Agreement, which provided an increase in the base salary from $221,450 to $228,093.50 and extended the original term of the agreement from four years to five years.

Analysis
The Third Amendment to the Employment Agreement ("Third Amendment") follows the City Council's performance evaluation of the City Manager. The Third Amendment would make the following changes to the City Manager's Employment Agreement:
• An increase to the base salary from $228,093.50 to $239,498.18. • Extend the term of the Employment Agreement an additional year to May 16 16 - 1
Third Amendment to the City Manager’s Employment Agreement July 19, 2023

31, 2027.
 Increase the severance allowance from six months to eight months.  Provide for up to two percent (2%) of merit pay of the City Manager’s base salary at the sole discretion of the City Council.

Except for the above, all other provisions of the Employment Agreement remain the same.

Under Section 54953(c)(3) of the Government Code, which was added to the Brown Act by Senate Bill 1436 in 2016, an oral summary report must be made during an open public meeting of a recommendation for a final action on the City’s Manager’s salary, salary schedule, or compensation paid in the form of fringe benefits prior to the City Council taking any such final action. Accordingly, the City Attorney shall provide this summary prior to City Council’s consideration of this matter.

Fiscal Impact
The salary increase of $11,404.68 (annualized) is within the budgeted amount for this position.

Attachment:

Third Amendment to Employment Agreement with City Manager Arminé Chaparyan 16 - 2
ATTACHMENT 1
Third Amendment to Employment Agreement with City Manager Arminé Chaparyan 16 - 3

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1 THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This Third Amendment is made and entered into as of this 19th day of July 2023 and is to the Employment Agreement dated May 5, 2021, as amended, by and between the City of South Pasadena, a municipal corporation (“City”) and Arminé Chaparyan (“Employee”).

RECITALS
A. The City and Employee entered into an employment agreement as of May 5, 2021, which was further amended on February 16, 2022 by the Amended Employment Agreement as well as on July 20, 2022 by the Second Amendment to Employment Agreement. The employment agreement and its amendments shall be referred to collectively as “Employment Agreement.”
B. Pursuant to the Employment Agreement, the City Council conducted and concluded its annual performance evaluation on June 7, 2023 and June 21, 2023.

Following the performance evaluation, the City and Employee now desire to amend the Employment Agreement as set forth herein.

NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the City and Employee agree to as follows:

Section 1. The annual base salary set forth in Paragraph 3.A of the Employment Agreement shall be increased to $239,498.18 effective immediately.

Section 2. Paragraph 2 (Term) of the Employment Agreement shall be amended in its entirety to read as follows:
“2. Term. Employee shall report to work on May 31, 2021 (“Commencement Date”). The term of this Agreement shall be a period of six years, commencing May 31, 2021 and ending, unless extended, on May 31, 2027. The Employee serves at the pleasure of the City Council and nothing herein shall be taken to imply or suggest a guaranteed tenure.”
Section 3. Paragraph 11.C of the Employment Agreement shall be amended in its entirety to read as follows:
“C. Separation Without Cause.

1. In the event Employee is terminated by the City Council during the term of this Agreement where Employee is willing and able to perform the City Manager’s duties under this Agreement, then in that event the City agrees to pay Employee a lump payment equal to eight (8) months’ base salary then in effect as provided in Paragraph

3.A or a lump sum payment equal to the remaining term of the Agreement, whichever is 16 - 5
2 shorter. A decision not to renew the term of the Employee’s Agreement upon the expiration of the term shall not entitle Employee to the severance or continued health insurance benefits described in paragraph 11.C.1 and 11.C.2.

2. In addition, the City shall extend to Employee the right to continue health insurance as may be required by and pursuant to the terms and conditions of the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”). In the event that the City pays an eight (8) months’ severance to Employee pursuant to Paragraph 11.C.1 above, City agrees to pay Employee’s COBRA coverage for eight months, or until Employee either secures full-time employment or obtains other health insurance, whichever of these three events first occur. Employee shall notify the City within five days of securing new full-time employment or insurance.

3. All payments required under Paragraph 11.C.1 and 11.C.2 above are subject to and shall be interpreted to comply with the limitations set forth in Government Code Section 53260.”
Section 4. Paragraph 3 (Compensation) shall be amended to add the following provision as a separate section therein to read as follows:
“E. Merit Pay. Following the completion of Employee’s annual performance evaluation, the City Council may grant the Employee merit pay in a lump-sum amount of up to and including two percent (2%) of the Employee’s base salary. Merit pay, if any, shall be at the City Council’s sole discretion based on the level of completion of the goals and performance objectives defined by the City Council and Employee as described in Paragraph 8 and performance substantially above expectations as determined by the City Council.”
Section 5. Except as specifically amended by this Third Amendment, the remaining provisions of the Employment Agreement shall remain in full force and effect. [signatures on next page]

16 - 6
3 IN WITNESS WHEREOF, the parties have caused this Third Amendment to be signed and executed personally as of the date listed above.

CITY OF SOUTH PASADENA: EMPLOYEE:
_____________________________ ________________________________ Jon Primuth Arminé Chaparyan

MAYOR EMPLOYEE
ATTEST: APPROVED AS TO FORM
____________________________ ________________________________ Mark Perez Roxanne Diaz

DEPUTY CITY CLERK CITY ATTORNEY
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DATE:

City Council
Agenda Report ITEM NO.

FROM:

PREPARED BY:

SUBJECT:

July 19, 2023
Armine Chaparyan, City Manager OW) (l,r' Ii(,,
H. Ted Gerber, Public Works Director
Approve the Memorandum of Agreement with Participating
Agencies Regarding the Administration and Cost Sharing for Implementing the Coordinated Integrated Monitoring Program for the Upper Los Angeles River Watershed Management Area Recommendation
It is recommended that the City Council approve the Memorandum of Agreement with participating agencies regarding the administration and cost sharing for implementing the Coordinated Integrated Monitoring Program for the Upper Los Angeles River (ULAR) Watershed Management Area and authorize the City Manager to execute the agreement.

Executive Summary
The cities of Alhambra, Burbank, Calabasas, Glendale, Hidden Hills, La Canada Flintridge, Los Angeles, Montebello, Monterey Park, Pasadena, Rosemead, San Fernando, San Gabriel, San Marino, South El Monte, South Pasadena, and Temple City, as well as Los Angeles County Flood Control District (LACFCD} and Los Angeles County, formed the Upper Los Angeles River Watershed Management Group (ULAR WMG) to collaborate on a Watershed Management Program (WMP) and the Coordinated Integrated Monitoring Program (CIMP) in accordance with the Los Angeles Regional Water Quality Control Board (Regional Board) issued Municipal Separate Storm Sewer System (MS4) permit.

With the City of Los Angeles serving as the ULAR WMG Lead Agency, the parties are proposing to enter into a second collaborative Memorandum of Agreement (MOA) to further develop the WMP and complete the CIMP in accordance with the MS4 Permit for a portion of the Upper Los Angeles River Watershed Management Area. The total cost of the MOA will be distributed to member agencies on percent of land area. The San Gabriel Valley Council of Governments (SGVCOG) will invoice and collect funds from agencies to execute the terms of the agreement. The MOA shall remain in effect for three (3) years until June 30, 2026. The tasks under the MOA include monitoring services, reporting, contract administration, and watershed program management tasks related to MS4 permit compliance for the ULAR.
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Watershed Management Program MOA with Upper LA River MS4 Permittees July 19, 2023

Background
The Los Angeles Water Board regulates discharges from medium and large municipal separate storm sewer systems (MS4s) through the Regional Phase I MS4 Permit. This permit is issued under the Clean Water Act NPDES Program. MS4 refers to a system of pipes, ditches, or other conveyances owned or operated by a municipality that collects stormwater runoff and discharges into nearby bodies of water.

The National Pollution Discharge Elimination System (NPDES) MS4 Permit No. R4-2012- 0175 was adopted by the Regional Board on November 8, 2012, and the Permit became effective on December 28, 2012. The Permit requires that the LACFCD, the County, and eighty-four (84) cities within the County comply with the prescribed elements of the MS4 Permit. In order to meet compliance, South Pasadena joined the ULAR Watershed Management Area to develop and implement a collaborative Enhanced WMP (EWMP) and CIMP. The Regional Board approved the EWMP on April 20, 2016 and CIMP on November 18, 2018. Member agencies of the ULAR had agreed to perform and coordinate the monitoring services of the CIMP and EWMP tasks, and entered into an initial Memorandum of Agreement in 2018 to complete these requirements.

The MS4 Permit No. R4-2012-0175 was re-adopted in the 2021 Regional Phase I MS4 Permit Order No. R4-2021-0105, which became effective on September 11, 2021, superseding the 2012 MS4 Permit. MS4 Permit Order No. R4-2021-0105 requires Los Angeles County, LACFCD, the 85 cities within the coastal watersheds of Los Angeles County, the Ventura County Watershed Protection District, the County of Ventura, and 10 cities within Ventura County, to comply with its prescribed elements.

Analysis
The Regional MS4 Permit Order No. R4-2021-0105 for Los Angeles County outlines an innovative approach to achieving Permit compliance by developing WMPs. As a note, under the former MS4 Permit Order No. R4-2012-0175, there was a distinction between WMPs and EWMPs. The ULAR EWMP Group, consisting of 17 cities including Los Angeles as the lead coordinating agency, the County of Los Angeles, and the LACFCD, collaboratively developed an EWMP for the Upper Los Angeles River Watershed Management Area. By electing to comply with the optional pathway in the MS4 Permit, the ULAR EWMP Group has created a comprehensive approach to stormwater management for the Los Angeles River watershed.

Covering the largest planning area of all the EWMPs being developed in the LA region, the ULAR EWMP encompasses 485 square miles of watershed and over 50 miles of the mainstream LA River. The EWMP leverages previous water quality planning and compliance efforts while also identifying additional projects to address water quality issues in the Upper LA River. The goal of the EWMP is to use a multi-pollutant approach that maximizes the retention and use of urban runoff as a resource for groundwater recharge and irrigation, while also delivering additional benefits for the communities in the ULAR watershed.
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Watershed Management Program MOA with Upper LA River MS4 Permittees July 19, 2023

The EWMP offers a toolbox of distributed and regional watershed control measures to address applicable stormwater quality regulations. This comprehensive approach to controlling pollutants in stormwater is a significant challenge, and the ULAR EWMP Group has been working on improving stormwater quality for many years by implementing numerous stormwater capture projects across the watershed. The EWMP lays the path forward for implementing additional water quality improvement projects to meet compliance timelines established by state and federal regulations, such as the Total Maximum Daily Load (TMDL) for metals and bacteria in the Los Angeles River watershed.

The purpose of this MOA is to facilitate compliance by the ULAR WMG with the MS4 Permit. The MOA tasks include monitoring services, WMP related tasks, a membership to California Stormwater Quality Association (CASQA), and contract administration. • Monitoring efforts include any and all tasks required to comply with the monitoring requirements established in the MS4 Permit and associated documents, namely the implementation of the ULAR CIMP such as receiving water monitoring, stormwater outfall monitoring, non-stormwater outfall monitoring, urban lakes monitoring, data management, capital, operation, and maintenance activities, purchasing, maintaining, and replacing equipment necessary for monitoring activities, development of the monitoring sections to be included in the Annual Report, and other tasks.
• WMP related tasks include any and all tasks required to comply with the MS4 Permit, as well as other work that is determined to advance the cities’ efforts in complying with the MS4 Permit, such as the requirement to complete annual reporting, including the WMP progress report, report of Waste Discharge, adaptive management, a trash monitoring and reporting plan, WMP Revisions, website management of lastormh2o.org, and other tasks.
• Contracts regarding WMP related tasks will be administered by the SGVCOG utilizing a consultant(s) selected in coordination with the ULAR WMG, unless otherwise determined by the ULAR WMG. The City of Los Angeles will provide subject-matter expertise and project management support to the SGVCOG and its consultants for the purposes of completing this task.
• Contract administration will include any and all tasks associated with administering the MOA, including but not limited to facilitating the development of agreements and subsequent amendments for the ULAR WMG, managing procurements, contracting, and contract administration for consultants and contractors, which could include establishing and managing a bench of technical consultants that could be utilized by any party, distributing invoices and collecting payment from the parties, paying invoices, managing the MOA budget, facilitating the preparation of ULAR WMG administrative procedures by ULAR WMG and ensure compliance with these procedures, among other tasks.
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Watershed Management Program MOA with Upper LA River MS4 Permittees July 19, 2023

• Additional tasks may be identified in the process of complying with the Permit, at which point the ULAR WMG would determine the optimal approach to ensuring that the ULAR WMG remains in compliance with any and all aspects of the MS4 Permit and its associated documents.

Fiscal Impact
The total cost of the three-year MOA for all parties is $5,358,422, of which South Pasadena’s portion is $36,091, which is $12,064 in FY 2023-2024, $10,954 in FY 2024- 2025, and $13,074 in FY 2025-2026. The parties contribute based on their respective percentage land area in the watershed, of which South Pasadena’s component is 0.71%.

The majority of the land area is covered by the City of Los Angeles (the lead agency) at

58.53%, followed by Los Angeles County at 13.25%, Pasadena at 4.78%, Glendale at

6.32%, Burbank at 3.58%, and so forth.

South Pasadena’s three-year cost of $36,091 includes:
• $25,584 for implementing CIMP monitoring services, including labor, laboratory analysis, laboratory data handling, related contract services, equipment, Arroyo Seco non-stormwater outfall monitoring, and administration, as well as a 15% contingency and 2.5% annual escalation allowance.
• $7,110 for WMP related tasks including semi-annual progress reporting, annual reporting, WMP revisions and adaptive management, reporting of waste discharge, a trash monitoring and reporting plan, and program management, as well as a 15% contingency and 2.0% annual escalation allowance. • $1,386 for CASQA membership fees.
• $2,011 for contract management.

Adequate funding for this agreement is available in the FY 2023-2024 adopted budget for implementation of the Enhanced Watershed Management Program (EWMP), with $15,000 identified in the Measure W Safe Clean Water Account No. 239-6010-6011- 8020-000 for this use.

Key Performance Indicators and Strategic Plan
This item is related to routine and State required monitoring and reporting and is not associated with a Key Performance Indicator or Strategic Plan Goal.

Environmental Analysis
This item is related to compliance with the monitoring and reporting requirements established in the State required MS4 Permit and associated documents. Pursuant to California Environmental Quality Act (CEQA) Guidelines Section 15308, Class 8, “Actions by Regulatory Agencies for Protection of the Environment,” this action is exempt from further review under CEQA. The development and implementation of the plan is a requirement of the California State Water Resources Control Board, and is exempt from the CEQA (Public Resources Code §21000 et seq.) because it is an action pursuant to a 17 - 4
Watershed Management Program MOA with Upper LA River MS4 Permittees July 19, 2023

regulatory requirement to assure the protection of the environment. Furthermore, the Plan applies to the City’s and County’s existing stormwater collection system, where there is no expansion of use in this reporting action, and is therefore exempt from the CEQA analysis based on State CEQA Guidelines Section requirements under Section 21084 of the Public Resources Code, in accordance with Article 19, Section 15301, Class (1) "existing facilities."
Attachment
Memorandum of Agreement
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ATTACHMENT
Proposed Memorandum of Agreement
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MEMORANDUM OF AGREEMENT

BETWEEN THE CITY OF LOS ANGELES, THE CITY OF ALHAMBRA, THE CITY OF

BURBANK, THE CITY OF CALABASAS, THE CITY OF GLENDALE, THE CITY

OF HIDDEN HILLS, THE CITY OF LA CANADA FLINTRIDGE, THE CITY OF

MONTEBELLO, THE CITY OF MONTEREY PARK, THE CITY OF PASADENA, THE

CITY OF ROSEMEAD, THE CITY OF SAN FERNANDO, THE CITY OF SAN

GABRIEL, THE CITY OF SAN MARINO, THE CITY OF SOUTH EL MONTE, THE

CITY OF SOUTH PASADENA, THE CITY OF TEMPLE CITY, LOS ANGELES

COUNTY FLOOD CONTROL DISTRICT, THE COUNTY OF LOS ANGELES, THE

SAN GABRIEL VALLEY COUNCIL OF GOVERNMENTS

REGARDING THE ADMINISTRATION AND COST SHARING FOR IMPLEMENTING

THE COORDINATED INTEGRATED MONITORING PROGRAM (CIMP) AND

WATERSHED MANAGEMENT PROGRAM (WMP) FOR THE UPPER LOS

ANGELES RIVER WATERSHED MANAGEMENT AREA
This Memorandum of Agreement (MOA), including its attachments, exhibits and schedules, is made and entered into as of July 1st, 2023 by and between The SAN GABRIEL VALLEY COUNCIL OF GOVERNMENTS (SGVCOG), a California Joint Powers Authority, THE CITY OF LOS ANGELES (CITY), a municipal corporation, THE CITY OF ALHAMBRA, a municipal corporation, THE CITY OF BURBANK, a municipal corporation, THE CITY OF CALABASAS, a municipal corporation, THE CITY OF GLENDALE, a municipal corporation, THE CITY OF HIDDEN HILLS, a municipal corporation, THE CITY OF LA CANADA FLINTRIDGE, a municipal corporation, THE CITY OF MONTEBELLO, a municipal corporation, THE CITY OF MONTEREY PARK, a municipal corporation, THE CITY OF PASADENA, a municipal corporation, THE CITY OF ROSEMEAD, a municipal corporation, THE CITY OF SAN FERNANDO, a municipal corporation, THE CITY OF SAN GABRIEL, a municipal corporation, THE CITY OF SAN MARINO, a municipal corporation, THE CITY OF SOUTH EL MONTE, a municipal corporation, THE CITY OF SOUTH PASADENA, a municipal corporation, THE CITY OF TEMPLE CITY, a municipal corporation, LOS ANGELES COUNTY FLOOD CONTROL DISTRICT (LACFCD), a body corporate and politic, and the COUNTY OF LOS ANGELES (COUNTY), a political subdivision of the State of California. Collectively, these entities shall be known herein as PARTIES or individually as PARTY.

RECITALS
WHEREAS, the U.S. Environmental Protection Agency (USEPA) and the California Regional Water Quality Control Board, Los Angeles Region (Regional Board) have classified the Greater Los Angeles County Municipal Separate Storm Sewer System 17 - 9

(MS4) as a large MS4 pursuant to 40 Code of Federal Regulations (CFR) section 122.26(b)(4) and a major facility pursuant to 40 CFR section 122.2; and WHEREAS, the Regional Board adopted the 2012 National Pollutant Discharge Elimination System MS4 Permit No. R4-2012-0175 on November 8, 2012, which was readopted in the 2021 Regional Phase I MS4 Permit Order No. R4-2021-0105; and WHEREAS, the 2012 MS4 Permit became effective on December 28, 2012, and required that the LACFCD, the COUNTY, and 84 of the 88 cities within the County comply with its prescribed elements; and
WHEREAS the 2021 MS4 Permit became effective on September 11, 2021, superseding the 2012 MS4 Permit, and requires the COUNTY, LACFCD, 85 cities within the coastal watersheds of Los Angeles County, the Ventura County Watershed Protection District, the County of Ventura, and 10 cities within Ventura County to comply with its prescribed elements; and
WHEREAS, the MS4 Permit identifies the PARTIES as MS4 permittees responsible for compliance with the Permit’s requirements pertaining to the PARTIES’ collective jurisdictional area in the Upper Los Angeles River Watershed Management Area as identified in Exhibit D of this MOA; and
WHEREAS, the CITY and the cities of Alhambra, Burbank, Calabasas, Glendale, Hidden Hills, La Canada Flintridge, Montebello, Monterey Park, Pasadena, Rosemead, San Fernando, San Gabriel, San Marino, South El Monte, South Pasadena, and Temple City and LACFCD and the COUNTY formed the Upper Los Angeles River Watershed Management Group (ULAR WMG) to collaborate on the Watershed Management Program (WMP) and the Coordinated Integrated Monitoring Program (CIMP) in accordance with the MS4 Permit, with the CITY serving as the ULAR WMG Lead Agency; and
WHEREAS, the PARTIES desired to collaborate on the development of a WMP and a CIMP in accordance with the MS4 Permit for a portion of the Upper Los Angeles River Watershed Management Area as identified in Exhibit D of this MOA to comply with all applicable monitoring requirements of the MS4 Permit; and WHEREAS, the first WMP was submitted to the Regional Board by the PARTIES on June 25, 2015 and was approved by the Regional Board on April 20, 2016; and WHEREAS, a revised WMP was submitted to the Regional Board on June 28, 2021 and is pending approval; and
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WHEREAS, the first CIMP was submitted to the Regional Board by the PARTIES on April 30, 2015 and was approved by the Regional Board on August 5, 2015; and WHEREAS, a revised CIMP was submitted to the Regional Board on March 13, 2023 and is pending approval; and
WHEREAS, the PARTIES have agreed to cooperatively share and fully fund the estimated costs of the implementation of the CIMP and WMP; and WHEREAS, the PARTIES agree that each shall assume full and independent responsibility for ensuring its own compliance with the MS4 Permit notwithstanding this MOA; and
WHEREAS, the PARTIES desire to have the SGVCOG: (a) invoice and collect funds from each of the PARTIES to cover the costs of MONITORING SERVICES and WMP-RELATED TASKS and pay the CITY; (b) perform tasks identified in CONTRACT ADMINISTRATION in Exhibit A of this MOA;
NOW, THEREFORE, in consideration of the mutual benefits to be derived by the PARTIES, and of the promises contained in this MOA, the PARTIES agree as follows:

Section 1. Recitals. The recitals set forth above are true and correct and fully incorporated into this MOA.

Section 2. Purpose. The purpose of this MOA is to cooperatively fund the MONITORING SERVICES and WMP-RELATED TASKS, as set forth in Exhibit A of this MOA.

Section 3. Cooperation. The PARTIES shall fully cooperate with one another to attain the purposes of this MOA.

Section 4. Voluntary. The PARTIES have voluntarily entered into this MOA for the implementation of the MONITORING SERVICES and WMP-RELATED TASKS, and to authorize the SGVCOG to administer the cost-sharing.

Section 5. Term. This MOA shall become effective on July 1, 2023 and shall remain in effect for three (3) years up to and including June 30, 2026. The MOA may be extended, through mutual agreement of the PARTIES.

Section 6. Commitment. Once effective, the PARTIES agree to uphold the promises contained in this MOA for the duration of the agreed upon term. The Parties agree that costs, expenses, fees, liabilities, and obligations incurred by the CITY in performing MONITORING SERVICES in accordance with Tables 2-2C(i) of Exhibit B and WMP17 - 11

RELATED TASKS in accordance with Table 3-3B of Exhibit B prior to the execution date of this MOA but after July 1, 2023, shall be cost-shared under this Agreement according to the amounts specified in Exhibit B and shall be included in the first invoice.

Section 7. THE PARTIES AGREE:
a. Monitoring Services. The CITY will perform the MONITORING SERVICES as defined in Exhibit A.
b. WMP-Related tasks. The CITY and the SGVCOG will perform the WMP-RELATED TASKS, as defined in Exhibit A.
c. Reporting. Each PARTY hereto authorizes the CITY to prepare and submit reports to the Regional Board as required by the MS4 Permit. In addition, the CITY will submit to the PARTIES the data used to prepare the reports. This data will be transmitted electronically to all PARTIES and as requested by the Regional Board.

The CITY will provide sufficient time to the PARTIES to review the prepared reports. The CITY shall consider incorporating such comments received and answering a PARTY’s questions to the best of its abilities prior to its submittal to the Regional Board.
d. Contract Administration. The SGVCOG will be responsible for CONTRACT ADMINISTRATION, as defined in Exhibit A.
e. Communication. To the extent the PARTIES have communications related to CONTRACT ADMINISTRATION as defined in Exhibit A, such communications shall be directed to the SGVCOG. Communications concerning MONITORING SERVICES and WMP-RELATED TASKS under this Agreement shall be directed to the ULAR WMG lead agency. Written notice will be provided to the PARTIES should contact information from the SGVCOG and/or the ULAR WMG lead agency change.
f. Contracting. The PARTIES contemplate that other individual NPDES permit holders may wish to participate in the MONITORING SERVICES without being a party to this MOA. In the event that another NPDES permittee wants to participate in the MONITORING SERVICES, the SGVCOG may enter into an individual separate agreement with such individual NPDES permittee. The individual NPDES permittee will not become a party to this MOA but will be responsible for its proportionate share of the costs for those MONITORING SERVICES. If other individual NPDES permit holders’ participation modifies the PARTIES’ proportionate cost share, each PARTIES' proportional payment obligation shall be modified administratively in Exhibit B.
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Section 8. Invoicing and Payment.
a. Invoicing. The SGVCOG will invoice all PARTIES, except the CITY, annually in amounts not exceeding the invoice amounts shown in Table 1 of Exhibit B. The annual invoices will be issued by the SGVCOG to the PARTIES in July of each calendar year for their proportional share of the estimated cost for MONITORING SERVICES and WMP-RELATED TASKS, including SGVCOG's Contact Management Fee, for the fiscal year, as shown in Exhibit B. The first invoice will be issued in July 2023 or upon the execution of this Agreement, whichever is later.

The PARTIES hereby acknowledge and ratify services performed on or after the earlier of July 1st, 2023 or the date of the last signature of the PARTIES that are performed in accordance with the terms and conditions of the MOA. Such services shall be included in the first invoice and reimbursable pursuant to this MOA. The CITY will invoice the SGVCOG for tasks performed, deducting the CITY’s cost portion for such tasks and the CITY’s cost portion for the SGVCOG’s program management fee. The CITY shall provide SGVCOG an accounting of the MONITORING SERVICES, and any WMP-RELATED TASKS completed during each annual payment term consistent with the format as shown in Exhibit E. b. Annual Payment. Each PARTY, excluding the CITY, shall pay the SGVCOG for their invoice within sixty (60) days of receipt of the invoice from the SGVCOG. c. Late Payment Penalty. Any payment that is not received within sixty (60) days following receipt of the invoice from SGVCOG shall be subject to a late payment of 10%. Interest on any late payments shall accrue at the rate of 1% per month for each month a payment is past due.
d. Delinquent Payments. A payment not made within three hundred and sixty-five (365) days after receipt of the invoice from the SGVCOG shall result in the SGVCOG notifying the Regional Board and the PARTIES that the delinquent PARTY is no longer a participating member of the CIMP or WMP. The PARTY shall be deemed to have withdrawn from this MOA and the remaining PARTIES' cost share allocation shall be adjusted in accordance with the cost allocation formula in Table 1 of Exhibit B. Withdrawal shall not relieve a PARTY’s obligation to pay its proportionate share of costs that were due at the time of the deemed withdrawal.
e. Contingency. Each PARTY’s annual invoice will include a contingency of fifteen percent (15%) for MONITORING SERVICES and fifteen percent (15%) for WMPRELATED TASKS, as shown in Exhibit B. Contingency funds will be held by SGVCOG until such time as they are needed. Contingency funds that are used will be applied to each PARTY based on its proportional share. No PARTY will be 17 - 13

obligated to pay for additional expenditures which exceed its contingency amounts without an amendment to this MOA.
i. Monitoring Services Contingency. The CITY shall have access to the MONITORING SERVICES Contingency, for paying for or otherwise implementing the MONITORING SERVICES defined in Exhibit A of this MOA. The CITY shall notify the PARTIES before use of the MONITORING SERVICES Contingency is appropriate or required as soon as practicable but any failure to notify any PARTY or the PARTIES shall not alter, eliminate, or affect the CITY’s right to payment. The CITY will indicate the amount of MONITORING SERVICES Contingency used in its applicable invoice(s) to the SGVCOG for implementation of the MONITORING SERVICES. Should the CITY determine in its reasonable discretion that the MONITORING SERVICES Contingency not be necessary for
MONITORING SERVICES, the PARTIES may administratively shift these funds to be used for WMP-RELATED TASKS and do so using the process defined in Section 9(c).
ii. WMP-Related Tasks Contingency. The PARTIES may utilize WMPRELATED TASKS Contingency to complete projects consistent with the WMP-RELATED TASKS defined in Exhibit A. To utilize WMP-RELATED TASKS Contingency, the ULAR WMG shall discuss the proposed activity and the ULAR WMG will come to a majority consensus, using the process defined in Section 9(c), as to whether to move forward with the use of WMPRELATED TASKS Contingency and the process for implementation. The SGVCOG shall utilize the WMP-RELATED TASKS Contingency to reimburse the entity responsible for administering the approved WMPRELATED TASK funded by the WMP-RELATED TASKS Contingency.

Should the WMP-RELATED TASKS Contingency not be necessary for WMP-RELATED TASKS, the PARTIES may administratively shift these funds to be used for MONITORING SERVICES, using the process defined in Section 9(c).
f. Shifting of Funds. The PARTIES may shift funds collected under this MOA between MONITORING SERVICES and WMP-RELATED TASKS administratively, without an amendment to this MOA, provided that the overall amount does not exceed the total not-to-exceed amount of this MOA or a PARTY’S annual proportional cost, as set forth in Table 1 of Exhibit B, and if approved by a majority consensus, using the process defined in Section 9(c). Should the CITY require a shift in funds between MONITORING SERVICES and WMP-RELATED TASKS in order to implement the MONITORING SERVICES and WMP-RELATED TASKS, it shall notify the SGVCOG before shifting these funds.
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g. Contract Management Fee. The SGVCOG will receive a Contract Management Fee of $100,000 per year for administration of this MOA by the SGVCOG. Each PARTY will be assessed its proportionate share of the annual Contract Management Fee as shown in Table 4 of Exhibit B.
h. Reconciliation of this MOA. At the end of the MOA, the SGVCOG will provide the PARTIES with an accounting of actual expenditures, consistent with the format as shown in Exhibit E, within ninety (90) days. Any unexpended funds held by SGVCOG at the termination of this MOA will be rolled-over to cover expenses in any subsequent MOA. PARTIES may request in writing a refund or credit of any unexpended funds by the SGVCOG, in accordance with the distributed cost formula set forth in Table 1 of Exhibit B.

Section 9. THE PARTIES FURTHER AGREE:
a. Documentation. The PARTIES agree to promptly provide at no cost to the CITY all requested information and documentation in their possession that the CITY, in its discretion, deems to be necessary or helpful for the performance of the MONITORING SERVICES and WMP-RELATED TASKS.
b. Access. During the term of this MOA on an as-needed basis, each PARTY shall allow the CITY or its contractor reasonable access and entry to land, facilities and structures owned, operated, or controlled by the PARTY, which access and entry are necessary or helpful for the CITY or its contractor to perform MONITORING SERVICES and WMP-RELATED TASKS (FACILITIES). The FACILITIES shall include but not be limited to the PARTY's storm drains, channels, catch basins, and similar, provided, however, that prior to entering any of the PARTIES FACILITIES, the CITY or its contractor, as applicable, shall provide seventy-two (72) hours advance written notice of entry to the applicable PARTY, or in the cases where seventy-two (72) hours' advance written notice is not possible, such as in cases of unforeseen wet weather, the CITY or its contractor shall provide written notice to the applicable PARTY as early as reasonably possible. Any PARTY, including LACFCD, agrees to provide the CITY or its contractor a "no-fee" Access Permit to its FACILITIES. This Access Permit does not cover any fees that may be required for Construction Permits for the installation of permanent monitoring equipment. The CITY shall secure any required necessary permits prior to entry.

c. Consensus. The PARTIES agree that consensus in the ULAR WMG will be determined by a two-thirds supermajority (66.66%) voting of the ULAR WMG members based on each PARTY’s percentage land area of the Watershed as shown in Exhibit D. Consensus shall be reached using an email vote of ULAR WMG members. Any PARTY that does not respond to a vote within five business days, shall be considered to support the majority consensus. 17 - 15

d. Participation. Each PARTY shall designate an individual to provide representation at the ULAR WMG that is authorized to provide official input on behalf of the PARTY. Each PARTY shall ensure that a representative attends the ULAR WMG meetings and, if necessary, responds to email communication. e. Additional Activities. The PARTIES agree that additional activities may arise in the course of implementing this MOA, and there may be interest in utilizing funds collected through this MOA or pursuing additional funds, including but not limited to the Safe Clean Water Program, to complete those projects. The ULAR WMG, led by the ULAR WMG Lead Agency, shall discuss and determine additional activities to be completed and the implementation approach to completing those projects. The ULAR WMG will determine which activities to pursue in accordance with the consensus process defined in Section 9(c). Any other PARTY that does not desire to participate in an additional activity can submit a written request to the SGVCOG that they do not desire to be part of the activity. The non-participating PARTY will not be responsible for its proportionate share of funds to complete the additional project, and the cost will be recalculated amongst the remaining PARTIES.

Section 10. Indemnification. Each PARTY shall indemnify, defend, and hold harmless each other PARTY, on a pro rata basis, including its special districts, their member agencies, elected and appointed officers, employees, agents, attorneys, and designated volunteers from and against any and all liability, including, but not limited to, demands, claims, actions, fees, costs, and expenses (including reasonable attorneys and expert witness fees), arising from or connected with this MOA; provided, however, that no PARTY shall indemnify another PARTY for that PARTY’s own negligence or willful misconduct.

Section 11. Termination
a. Noticing. Any PARTY may withdraw from this MOA for any reason, in whole or part, by giving the SGVCOG and the Regional Board thirty (30) days written notice thereof. Withdrawing PARTIES shall remain wholly responsible for their proportional share of the costs of MONITORING SERVICES and WMP-RELATED TASKS for any fiscal year for which the PARTY has not withdrawn. Withdrawing PARTIES shall not be entitled to any refunds. Each PARTY shall also be responsible for the payment of its own fines, penalties or costs incurred as a result of the non-performance of the CIMP and/or WMP. Upon withdrawal by the SGVCOG, the PARTIES shall meet and confer to designate an alternate organization to accept the SGVCOG's responsibilities under this MOA. 17 - 16

b. Default. If a PARTY fails to comply with any of the terms or conditions of this MOA, that PARTY shall forfeit its rights to the work completed through this MOA, but no such forfeiture shall occur unless and until the defaulting PARTY has first been given notice of its default and a reasonable opportunity to cure the alleged default c. Equipment Ownership. Devices such as automatic sampling stations - inclusive of a cabinet, sampling equipment, ancillary devices, power supplies (EQUIPMENT) may be installed to implement the CIMP. Any PARTY voluntarily terminating membership will not be entitled to a refund for the portion of the share paid to acquire and to operate the EQUIPMENT nor for the remaining value of the EQUIPMENT, if any. The operational life of such EQUIPMENT is approximately seven years, and after which it may be obsolete or may require major remodel or replacement of electrical and mechanical components costing equivalent to a purchase of a new EQUIPMENT. The remaining PARTIES agree to own, operate and maintain and or replace the EQUIPMENT.

Section 12. General Provisions
a. Notices. Any notices, bills, invoices, or reports relating to this MOA, and any request, demand, statement, or other communication required or permitted hereunder shall be in writing and shall be delivered to the representatives of the PARTIES at the addresses set forth in Exhibit C attached hereto and incorporated herein by reference. PARTIES shall promptly notify each other of any change of contact information, including personnel changes, provided in Exhibit C. Written notice shall include notice delivered via e-mail or fax. A notice shall be deemed to have been received on (a) the date of delivery, if delivered by hand during regular business hours, or by confirmed facsimile or by e-mail; or (b) on the third (3rd) business day following mailing by registered or certified mail (return receipt requested) to the addresses set forth in Exhibit C.
b. Administration. For the purposes of this MOA, the PARTIES and SGVCOG hereby designate as their respective representatives the persons named in Exhibit C. The designated representatives, or their respective designees, shall administer the terms and conditions of this MOA on behalf of their respective entities. Each of the persons signing below on behalf of a PARTY or the SGVCOG represents and warrants that he or she is authorized to sign this MOA on behalf of such entity. c. Relationship of the Parties. The PARTIES to this MOA are, and shall at all times remain as to each other, wholly independent entities. No PARTY shall have power to incur any debt, obligation, or liability on behalf of any other PARTY unless expressly provided to the contrary by this MOA. No employee, agent, or officer of a PARTY shall be deemed for any purpose whatsoever to be an agent, employee, or officer of another PARTY.
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d. Amendment. The terms and provisions of this MOA may not be amended, modified, or waived, except by an instrument in writing signed by all non-delinquent PARTIES and the SGVCOG. Such amendments may be executed by those individuals listed in Exhibit C or by a person authorized to execute such amendment on behalf of each PARTY.
e. Law to Govern. This MOA is governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. In the event of litigation related to this MOA, venue in the State Superior Court or Federal District Court shall lie exclusively in the County of Los Angeles. f. No Presumption in Drafting. The PARTIES to this MOA agree that the general rule that an MOA is to be interpreted against the PARTY drafting it, or causing it to be prepared shall not apply.
g. Severability. If any provision of this MOA shall be determined by any court to be invalid, illegal, or unenforceable to any extent, then the remainder of this MOA shall not be affected, and this MOA shall be construed as if the invalid, illegal, or unenforceable provision had never been contained in this MOA. h. Entire Agreement. This MOA constitutes the entire agreement of the PARTIES to this MOA with respect to the subject matter hereof.
i. Waiver. Waiver by any PARTY to this MOA of any term, condition, or covenant of this MOA shall not constitute a waiver of any other term, condition, or covenant.

Waiver by any PARTY to this MOA of any breach of the provisions of this MOA shall not constitute a waiver of any other provision, nor a waiver of any subsequent breach or violation of any provision of this MOA.
j. Counterparts. This MOA may be executed in any number of counterparts, which execution may be by electronic means as defined in Civil Code section 1633.2 and each of which shall be an original, but all of which taken together shall constitute but one and the same instrument, provided, however, that such counterparts shall have been delivered to all PARTIES to this MOA.
k. All PARTIES to this MOA have been represented by counsel in the preparation and negotiation of this MOA. Accordingly, this MOA shall be construed according to its fair language.
17 - 18

IN WITNESS WHEREOF, the PARTIES have caused this MOA to be executed by their duly authorized representatives and affixed as of the date of signature of the PARTIES:
17 - 19

COUNTY OF LOS ANGELES
By
Mark Pestrella, Director of Public Works Dated
APPROVED AS TO FORM:

Dawyn R. Harrison
County Counsel
By
Deputy Dated
17 - 20

LOS ANGELES COUNTY FLOOD CONTROL DISTRICT
By
Mark Pestrella, Chief Engineer Dated
APPROVED AS TO FORM:

Dawyn R. Harrison
County Counsel
By
Deputy Dated
17 - 21

CITY OF ALHAMBRA
By ___________________ _________________________
Adele Andrade-Stadler, Mayor Dated
ATTEST:

By _________________________
Lauren Myles
City Clerk

APPROVED AS TO FORM:

By _________________________
Joseph M. Montes, Esq.

City Attorney
17 - 22

CITY OF LOS ANGELES
Dated: ___________________ By: _________________________ Aura Garcia, President
Board of Public Works
ATTEST:

Holly Wolcott
Interim City Clerk
APPROVED AS TO FORM:

Hydee Feldstein Soto
City Attorney
By:

Adena M. Hopenstand
Deputy City Attorney
17 - 23

CITY OF BURBANK
Dated: _________________________
By
Konstantine Anthony, Mayor
ATTEST:
______________________________
Justin Hess, City Manager
APPROVED AS TO FORM:
______________________________
Joseph H. McDougall, City Attorney
17 - 24

CITY OF CALABASAS
Dated: _________________________
By ________________________________
David J. Shapiro, Mayor
ATTEST:
______________________________
Maricela Hernandez, City Clerk
APPROVED AS TO FORM:
______________________________
Matthew T. Summers, City Attorney
17 - 25

THE CITY OF GLENDALE
Dated: _________________________
By ________________________________
Ardy Kassakhian, Mayor
ATTEST:
______________________________
Roubik Golanian, P.E., City Manager
APPROVED AS TO FORM:
______________________________
Michael Garcia, City Attorney
17 - 26

CITY OF HIDDEN HILLS
Dated:

By

Steve Freedland, Mayor
ATTEST:

Deana L. Gonzalez, CMC, City Clerk
APPROVED AS TO FORM:
______________________________
Roxanne M. Diaz, City Attorney
17 - 27

CITY OF LA CANADA FLINTRIDGE
Dated: _________________________
By ________________________________
ATTEST:
______________________________
APPROVED AS TO FORM:
______________________________
Adrian R. Guerra, City Attorney
17 - 28

CITY OF MONTEBELLO
Dated: _________________________
By ________________________________
David Torres, Mayor
ATTEST:
______________________________
Christopher Jimenez, City Clerk
APPROVED AS TO FORM:
______________________________
Arnold Alvarez-Glasman, City Attorney
17 - 29

CITY OF MONTEREY PARK
Dated: _____________________ By:
_____________________________
Ron Bow, City Manager
ATTEST:

By:

Maychelle Yee, City Clerk
APPROVED AS TO FORM:

By:

Karl H. Berger, City Attorney
17 - 30

CITY OF PASADENA
Dated: _________________________
By ________________________________
Miguel Márquez, City Manager
ATTEST:
______________________________
Mark Jomsky, City Clerk
APPROVED AS TO FORM:
______________________________
Debra Wordham, Assistant City Attorney
17 - 31

CITY OF ROSEMEAD
Dated: _________________________
By ________________________________
Ben Kim, City Manager
ATTEST:
______________________________
Gloria Molleda, City Clerk
APPROVED AS TO FORM:
______________________________
Rachel H. Richman, City Attorney
17 - 32

CITY OF SAN FERNANDO
Dated: _________________________
By ________________________________
Celeste T. Rodriguez, Mayor
ATTEST:
______________________________
Julia Fritz, City Clerk
APPROVED AS TO FORM:
______________________________
Richard Padilla, City Attorney
17 - 33

CITY OF SAN GABRIEL
Dated: _________________________
By ________________________________
Mark Lazzaretto, City Manager
ATTEST:
______________________________
Sharon Clark, City Clerk
APPROVED AS TO FORM:
______________________________
Keith Lemieux, City Attorney
17 - 34

CITY OF SAN MARINO
Dated: _________________________
By ________________________________
Steve Talt, Mayor
ATTEST:
______________________________
Mario Rueda, Acting City Manager
APPROVED AS TO FORM:
______________________________
Joseph Montes, City Attorney
17 - 35

CITY OF SOUTH EL MONTE
Dated: _________________________
By ________________________________
Rene Salas, City Manager
ATTEST:
______________________________
Donna G. Shwartz, City Clerk
APPROVED AS TO FORM:
______________________________
Anthony R. Taylor, City Attorney
17 - 36

CITY OF SOUTH PASADENA
Dated: _________________________
By
Arminé Chaparyan, City Manager
ATTEST:
______________________________
Mark Perez, Deputy City Clerk
APPROVED AS TO FORM:
______________________________
Roxanne Diaz, City Attorney
17 - 37

CITY OF THE TEMPLE CITY
Dated: _________________________
By ________________________________
Cynthia Sternquist, Mayor
ATTEST:
______________________________
Peggy Kuo, City Clerk
APPROVED AS TO FORM:
______________________________
Greg Murphy, City Attorney
17 - 38

SAN GABRIEL VALLEY COUNCIL OF GOVERNMENTS
Dated: ___________________ By: _________________________ Marisa Creter, Executive Director

ATTEST:

By: _________________________
APPROVED AS TO FORM:

By: _________________________
David DeBerry
Counsel for the SGVCOG
17 - 39

EXHIBIT A
MOA Scope of Work
The purpose of this MOA is to facilitate compliance by the ULAR WMG with the MS4 Permit. The tasks below outline the broadly-expected work anticipated to comply with the Permit.

MONITORING SERVICES
This includes any and all tasks required to comply with the monitoring requirements established in the MS4 Permit and associated documents. This includes but is not limited to implementation of the ULAR CIMP (Coordinated Integrated Monitoring Program), which includes but is not limited to the following activities:
● Receiving Water Monitoring
● Stormwater Outfall Monitoring
● Non-Stormwater Outfall Monitoring
● Urban Lakes Monitoring
● Data Management
● Capital, Operation, and Maintenance Activities
● Purchasing, maintaining, and replacing equipment (capital costs) necessary for monitoring activities
● Development of the monitoring sections to be included in the Annual Report (e.g. trends analysis, Total Maximum Daily Load (TMDL) attainment, summary of monitoring activities)
● Annual Reconciliation of the MONITORING SERVICES under the MOA. ● This work may include additional activities and requirements based upon the March 2023 CIMP revisions, any other future CIMP revision, and subsequent requirements for the Regional Board.

The City is responsible for completing the MONITORING SERVICES in this MOA, including by utilizing consultant support services.

WMP-RELATED TASKS
This includes any and all tasks required to comply with the MS4 Permit, as well as other work that is determined to advance the cities’ efforts in complying with the MS4 Permit. The ULAR WMG is required to complete the following activities as part of the ULAR Watershed Management Program (WMP). This includes but is not limited to the sub-tasks defined below:
● Annual Reporting (including the WMP Progress Report)
● Report of Waste Discharge (ROWD)
● Adaptive Management
● Trash Monitoring and Reporting Plan (TMRP)
● WMP Revisions
● Website management (lastormh2o.org)
● California Stormwater Quality Association (CASQA) Membership 17 - 40