HomeMy WebLinkAbout2010-021
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RESOLUTION NO. 2010-21
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
PURCHASE OF A POLICE FACILITY DIGITAL SURVEILLANCE CAMERA
SYSTEM SERVER FROM DELL COMPUTERS INC, OF ROUND ROCK, TEXAS.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. After a review of products, pricing, and existing infrastructure, Dell
Computers Inc, of Round Rock, Texas, is the recommended provider for the purchase of a
Police Facility Digital Surveillance Camera System server to be used by the San Bernardino
Police Department as set forth on Dell Quotation #520721404, attached hereto and
incorporated herein as Exhibit "A."
SECTION 2. This purchase is exempt from the formal contract procedures of Section
3,04,010 of the Municipal Code, pursuant to Section 3.04.010(B)(3) of said Code, "Purchases
approved by the Mayor and Common Council",
SECTION 3. That the Mayor and Common Council authorize the purchasing
manager to issue a Purchase Order to Dell Computers Inc, of Round Rock Texas, for the
purchase of a computer server to upgrade the Police Department's Digital Surveillance Camera
System, used that the central headquarters facility as outlined in Dell Computers Inc's quote
number 520721404, dated December 15, 2009, in an amount not to exceed $93,764.49." The
Purchase Order shall read "San Bernardino Digital Surveillance Camera Server".
SECTION 4. The authorization to issue the purchase order referenced in Section 2 of
this resolution is rescinded if the purchase order is not issued within thirty (45) days of the
25 passage of this resolution.
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2010-21
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
PURCHASE OF A POLICE FACILITY DIGITAL SURVEILLANCE CAMERA
2 SYSTEM SERVER FROM DELL COMPUTERS INC, OF ROUND ROCK, TEXAS.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a j ni nT regular meeting thereof, held
6 on the 1st day of February
,2010, by the following vote, to wit:
7 Council Members:
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NAYS
ABSTAIN ABSENT
AYES
~Jd lJ_~
Rachel G, Clark, City Clerk
The foregoing resolution is hereby approved this ~/1.( day of February
,2010,
Pat' k 1, Morris, Mayor
y of San Bernardino
Approved as to
Form:
~
ES F. PENMAN,
ty Attorney
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fiJ e;/ I Ie :/Documents%20and%20 Settings/eckley _ rni/Local%20SettingS/...
2010-21
DELL
QUOTATION
Date: 12/15/099:54:21 AM
QUOTE #:
Customer #:
Contract #:
CustomerAgreement #:
Quote Date:
Customer Name:
520721404
7793861
WN99ABZ
WSCA- B27160
12/15/09
CITY OF SAN BERNARDINO
TOTAL QUOTE AMOUNT: $93,764.49
Product Subtotal: $89,206,10
Tax: $4,558,39
Shipping & Handling: $0.00
Shipping Method: Ground Total Number of System Groups: 6
GROUP: 1 I QUANTITY: 2 SYSTEM PRICE: $10,281.611 GROUP TOTAL: $20,563.22
Base Unit: RBOS 2x Q""ad Core AMD Opteron 2382 75W, 2.6GHz, 1Ghz HyperTransport (224.3055)
Memory: 32GB Memory, 8x4GB, 667Mhz Dual Ranked DIMMs (311-6432)
Video Card: TOE and ISCSI Offload features included with onboardNIC ports (311-8713)
Hard Drive: HD Multi-Select (341-4158)
Operating System: Windows Server 2008, Standard x64, Incl Hyper-V, Inc15 CAls (420-8354)
Mouse: Vizioncore vEssentials (vRangerPro, v FoglightPro vReplicator}90-day evaluation (330-4185)
Mouse; VMware '14.0, ENT PLUS, 2 CPU - 3 Yr Support and Upgrade Subscription Only (421-1056)
Mouse: VMware '14.0, ENT PLUS, 2 CPU, License Only, 3Yr, NFl (421.1057)
NIC: Intel PRO 1000 vr Quad Port (430-2687)
CD-ROM or DVD-ROM Drive: DVD+/-RW, SATA, INTERNAL (313-9091)
CD~ROM or DVD-ROM Drive: SATACable, Optical Drive, R8D5 (330-0211)
Sound Card: PowerEdge R80S Active Bezel (313-5887)
Documentation Diskette: PowerEdge R805 Printed Documentation (310-9976)
Documentation Diskette: Dell Management Console (330-5280)
Feature Internal PERC RAID ControlJer,2 Hard Drives in RAID 1 config (341-5840)
Feature Universal Sliding RapidNersa Rails, includes Cable Management Arm (310-7412)
Service: Mission Critical Package: 4-Hour 7x24 On-Site Service with Emergency Dispatch, 4 Year Extended
(981-6034)
Service: ProSupport for IT: 7x24 HW I SWTech Support and Assistance for Certified IT Staff, 5 Year
(981-6224)
Service: Mission Critical Package: 4-Hour 7x24 On-Site Service with Emergency Dispatch, Initial Year
(985-4530)
Service: Dell Limited Hardware Warranty Plus On Site Service Extended Year (989-0858)
Service: Dell Limited Hardware Warranty Plus On Site Service Initial Year (989-0877)
Service: MISSION CRITICAL PACKAGE: Enhanced Services, 5 Year (989-0937)
Service: Thank you choosing Dell ProSupport. For tech support, visit http://support.dell.comlProSupport or
call 1-800-945-33 (989-3439)
Installation: On-Site Installation Declined (900-9997)
Mise: Power Cord, C13 to C14, PDU Style, 12 Amps, 2 meter, Qty 1 (330-3151)
Mise: Power Cord, C13 to C14, PDU Style, 12 Amps. 2 meter, Qty 1 (330-3151)
Misc: 4x Broadcom NetXtreme II 57081GbE Onboard NICs with TOE (430-2713)
146GB 15K RPM Serial-Attach SCSl3Gbps 2.5-in HotPlug Hard Drive (341-8971) _ Quantity 2
10. rd:) E ,[j
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2010-21
GROUP: 2 I QUANTITY: 1 SYSTEM PRICE: $3,791,721 GROUP TOTAL: $3,791,72
Base Unit: R80S 2x Quad Core AMD Opteron 2382 75W, 2.6GHz, 1Ghz HyperTransport (224-3055)
Memory: 4GB Memory, 4x1GB, 667MHz, Single Ranked DIMMs (311-7985)
Video Card: TOE and ISCSI Offload features included with onboardNIC ports (311-8713)
Hard Drive: HO Multi-Select (341-4158)
Operating System: WindO'W$ Server 2008, Standard xS4, Incl HyperN, Incl5 CALs (420~8354)
CD~ROM or OVD-ROM Drive: DVD+/.RW, SATA, INTERNAL (313-9091)
CO-ROM or OVO-ROM Drive: SATACable, Optical Drive, ReDs (330-0211)
Sound Card: PowerEdge ReDS Active Bezel (313-5887)
Documentation Diskette: PowerEdge R80S Printed Documentation (310-9976)
Documentation Diskette: Dell Management Console (330-5280)
Feature Internal PERC RAID Controller,2 Hard Drives in RAID 1 config (341-5840)
Feature Universal Sliding RapidNersa Ralls, includes Cable Management Arm (310-7412)
Service: Mission Critical Package: 4-Hour 7x24 On~Site Service with Emergency Dispatch, 4 Year Extended
(981-6034)
Service: ProSupportfor IT: 7x24 HW I SWTech Support and Assistance for Certified IT Staff, 5 Year
(981-6224)
Service: Mission Critical Package: 4-Hour 7x24 On-Site Service with Emergency Dispatch, Initial Year
(985-4530)
Service: Dell Limited Hardware Warranty Plus On Site Service Extended Year (989.0858)
Service: Dell Limited Hardware Warranty Plus On Site Service Initial Year (989-0877)
Service: MISSION CRITICAL PACKAGE: Enhanced Services, S Year (989-0937)
Service: Thank you choosing Dell ProSupport. For tech support, visit http://support.dell.comlProSupportor
call1-800~945-33 (989-3439)
Installation: On-Site Installation Declined (900-9997)
Misc: Power Cord, C13 to C14, PDU Style, 12 Amps, 2 meter, Qty 1 (330-3151)
Misc: Power Cord, C13 to C14, POU Style, 12 Amps, 2 meter, Qty 1 (330-3151)
Misc: Microsoft SQL Server 2008 Standard,S USER GALs Only,OEM No Media,NFI (420-9789)
Mise: 4x Broadcom Netxtreme II 5708 1GbE Onboard NICs with TOE (430-2713)
146GB 1SK RPM Serial-Attach SCSl3Gbps 2.5.in HotPlug Hard Drive (341-8971) ~ Quantity 2
GROUP: 3 I QUANTITY: 1 SYSTEM PRICE: $39,000,00 I GROUP TOTAL: $39,000,00
Base Unit: Dell EqualLogic PS6000E, Cost Efficient, High Capapcity 7.2K SATA Drives (224-4849)
Processor: 16.0 Terabyte capacity,1SX1TB 7.2K SATA, Dual Controller (341-8768)
Service: Mission Critical Package: 4-Hour 7x24 On-Site Service with Emergency Dispatch, 4 Year Extended
(988-7474)
Service: ProSupportfor IT: 7x24 HW I SWTech Support and Assistance for Certified IT Staff, 5 Year
(988-7584)
Service: Thank you choosing Dell ProSupport. For tech support, visit http://support.delLcomlProSupportor
call 1-800~94S.33 (989-3439)
Service: Mission Critical Package: 4-Hour 7x24 On-Site Service with Emergency Dispatch, initial Year
(993-4920)
Service: Dell Hardware Limited Warranty Extended Year (993-9918)
Service: Dell Hardware Limited Warranty Initial Year (993-9927)
Service: MISSION CRITICAL PACKAGE: Enhanced Services, 5 Year (993-9997)
Service: EqualLogic Advanced Software Warranty and Service,7x24 Access,S Year (994-0328)
Installation: PS array Customer Self Install Support Service (990-0658)
GROUP: 4 I QUANTITY: 2 SYSTEM PRICE: $2,223,511 GROUP TOTAL: $4,447,02
Base Unit: PowerConnect 6248, 48 GbE PortManaged Switch, 10GbE and Stacking Capable (222-6714)
Service: Dell Hardware Warranty InitialYR (985-6027)
Service: Dell Hardware Warranty, Extended Year(s) (985-6038)
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2010-21
Service: Mission Critical Package: 4-Hour 7x24 On-Site Service with Emergency Dispatch, 4 Year Extended
(986-3994)
Service: ProSupportfor IT: 7x24 HWf SWTech Support and Assistance for Certified IT Staff, 5 Year
(9864184)
Service: Thank you choosing Dell ProSupport. For tech support, visit http://support.dell.comlProSupportor
call 1-800-945-33 (929-3439)
Service: Mission Critical Package: 4-Hour 7x24 On-Site Service with Emergency Dispatch, Initial Year
(990-5020)
Service: MISSION CRITICAL PACKAGE: Enhanced Services,S Vear (991-8357)
Installation: On-Site Installation Declined (950-8997)
GROUP: 5 I QUANTITY: 1 SYSTEM PRICE: $2,113,921 GROUP TOTAL: $2,113,92
Base Unit: Dell 4220 42U Rack with Doors and Side Panels, Ground Ship NOT for At< 1 HI (2244934)
Keyboard: 1U KMM Console with Touchpad Keyboard and 17 LCD, Rapid Rails (310-9961)
Video Memory: PDU,24A,208V,(4)C19,0u/1U,with L6-30P 3.7m attached input cord (330-6418) _ Quantity 2
Service: Basic: Business Hours (5X10) Next Business Day On Site Hardware Warranty Repair 4 Vear
Extended (987.9524)
Service: Basic: Business Hours (SX10) Next Business Day On Site Hardware Warranty Repair Initial Year
(992-S090)
Service: Dell Hardware Limited Warranty Extended Year (993-4108)
Service: Dell Hardware limited Warranty Initial Year (993-4117)
Installation: On-Site Installation Declined (900-9997)
GROUP: 6 1 QUANTITY: 1 SYSTEM PRICE: $3.954,271 GROUP TOTAL: $3,954.27
Base Unit: 16 Port KeyboardMdeolMouse Digital Switch, 21610512 PowerEdge (222-1659)
Mouse: 1 x use Server Interface Pod includes CATS cable (310-5679) _ Quantity 16
Service: Dell Hardware Warranty, Initial Year 1985-7929)
Service: Dell Hardware Warranty, Extended Year(s) (985-7939)
Service: Mission Critical Package: 4-Hour 7x24 On-Sitt! Service with Emergency Dispatch, 4 Year Extended
(986-4294)
Service: ProS up port for IT: 7x24 HWI SWTech Support and Assistance for Certified IT Staff, 5 Year
(986-4484)
Service: Thank you choosing Dell ProSupport. For tech support, visit http://support.dell.comlProSupportor
call 1-800-945~33 (989-3439)
Service: Mission Critical Package: 4-Hour 7x24 On.Site Service with Emergency Dispatch,"lnitial Year
{990-5470)
Service: MISSION CRITICAL PACKAGE: Enhanced Services, S Year (991-8487)
Installation: On-Site Installation Declined (900-9997)
SOFTWARE & ACCESSORIES
Product Quantity Unit Price Total
SQL Svr Standard Edtn 2008 Sngl 1 Proc 0 228-08649 (A1757943) 2 $3,742.78 $7,485.56
SOL Svr Standard Edtn 2008 5ngl MVL 0 228-08720 ESDWLD only {A1758072) 1 $585.40 $585.40
vCenter Standard for vSphere . 1 license (A2977748) 1 $4,187.41 $4,187.41
vCenter Standard for vSphere. 3yr Platinum SNS. 24x7 support and subscription (A2977740) 1 $3,077.58 $3,077.58
Number of S & A Items: 4 S&A Total Amount: $15,335,95
SALES REP: I Loic Scales
PHONE: 1 512-728-6356
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PAGE 4 OF 4
INTENTIONALL Y
OMMITTED
PER
DIANE ROTH
CITY ATTORNEY'S
OFFICE
2010-21
GSP[).401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCAl
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L,P,(B27160)
GENERAL PROVISIONS
1. DEFINITIONS: Unless otherwise specified in the Statement of Work the
following terms shall be given the meaning shown, unless context
requires otherwise.
"Acceptance Tests" means those tests performed during
the Peliormance Period which are intended to determine
compliance of Equipment and Software with the
specifications and all other Attachments incorporated herein
by reference and to determine the reliability of the
Equipment.
"Application Program" means a computer program which
is intended to be executed for the purpose of performing
useful work for the user of the information being processed.
Application programs are developed or otherwise acquired
by the user of the Hardware/Software system, but they may
be supplied by the Contractor.
"Attachment" means a mechanical, electrical, or electronic
interconnection to the Contractor-supplied Machine or
System of Equipment, manufactured by other than the
original Equipment manufacturer, that is not connected by
the Contractor.
"Business entity" means any individual, business, partnership,
joint venture, corporation, S-corporation, limited liability
corporation, limited liability partnership, sole proprietorship, joint
stock company, consortium, or other private legal entity
recognized by statute.
"Buyer" means the State's authorized contracting official.
"Commercial Software" means Software developed or
regularly used that: (i) has been sold, leased, or licensed to the
general public; (ii) has been offered for sale, lease, or license to
the general public: (iii) has not been offered, sold, leased, or
licensed to the public but will be available for commercial sale,
lease, or license in time to satisfy the delivery requirements of
this Contract; or (iv) satisfies a criterion expressed in (i), (ii), or
(iii) above and would require only minor modifications to meet the
requirements of this Contract.
"Contract" means this Contract or agreement (including
any purchase order), by whatever name known or in
whatever format used.
"Custom Software" means Software that does not meet
the definition of Commercial Software.
"Contractor" means the Business Entity with whom the
State enters into this Contract. Contractor shall be
synonymous with "supplier", "vendor" or other similar term.
"Data Processing Subsystem" means a complement of
Contractor-furnished individual Machines, including the
necessary controlling elements (or the functional equivalent)
and Operating Software, if any, which are acquired to
operate as an integrated group, and which are
interconnected entirely by Contractor-supplied power and/or
signal cables: e.g., direct access controller and drives, a
cluster of terminals with their controller, etc.
"Data Processing System (System)" means the total
complement of Contractor-furnished Machines, including one
or more central processors (or instruction processors) and
Operating Software, which are acquired to operate as an
integrated group.
"Deliverables" means Goods, Software, Information
Technology, telecommunications technology, and other items
(e.g. reports) to be delivered pursuant to this Contract,
including any such items furnished incident to the provision
of services.
"Designated CPU(s)" means for each product, if applicable,
the central processing unit of the computers or the server
unit, including any associated peripheral units. If no
specific "Designated CPU(sr are specified on the Contract,
the term shall mean any and all CPUs located at the site
Revision 8110/2009 (GSPD-4011T based on Aprl/12, 2007)
specified therein.
"Documentation" means nonproprietary manuals and other
printed materials necessary or useful to the State in its use
or maintenance of the Equipment or Software provided
hereunder. Manuals and other printed materials customized
for the State hereunder constitute Documentation only to
the extent that such materials are described in or required
by the Statement of Work.
"Equipment" is an all-inclusive term which refers either to
individual Machines or to a complete Data Processing
System or subsystem, including its Hardware and Operating
Software (if any).
"Equipment Failure" is a malfunction in the Equipment,
excluding all external factors, which prevents the
accomplishment of the Equipment's intended function(s). If
microcode or Operating Software residing in the Equipment
is necessary for the proper operation of the Equipment, a
failure of such microcode or Operating Software which
prevents the accomplishment of the Equipment's intended
functions shall be deemed to be an Equipment Failure.
"Facility Readiness Date" means the date specified in the
Statement of Work by which the State must have the site
prepared and available for Equipment delivery and
installation.
"Goods" means all types of tangible personal property,
including but not limited to materials, supplies, and
Equipment (including computer and telecommunications
Equipment).
"Hardware" usually refers to computer Equipment and is
contrasted with Software. See also Equipment.
"Installation Date" means the date specified in the
Statement of Work by which the Contractor must have the
ordered Equipment ready (certified) for use by the State.
"Information Technology" includes, but is not limited to,
all electronic technology systems and services, automated
information handling, System design and analysis,
conversion of data, computer programming, information
storage and retrieval, telecommunications which include
voice, video, and data communications, requisite System
controls, simulation, electronic commerce, and all related
interactions between people and Machines.
"Machine" means an individual unit of a Data Processing
System or subsystem, separately identified by a type and/or
model number, comprised of but not limited to mechanical,
electro-mechanical, and electronic parts, microcode, and
special features installed thereon and including any
necessary Software, e.g., central processing unit, memory
module, tape unit, card reader, etc.
"Machine Alteration" means any change to a Contractor-
supplied Machine which is not made by the Contractor, and
which results in the Machine deviating from its physical,
mechanical, electrical, or electronic (including microcode)
design, whether or not additional devices or parts are
employed in making such change.
"Maintenance Diagnostic Routines" means the diagnostic
programs customarily used by the Contractor to test
Equipment for proper functioning and reliability.
"Manufacturing Materials" means parts, tools, dies, jigs,
fixtures, plans, drawings, and information produced or
acquired, or rights acquired, specifically to fulfill obligations
set forth herein.
"Mean Time Between Failure (MTBF)" means the average
expected or observed time between consecutive failures in a
System or component.
"Mean Time to Repair (MTTR)" means the average expected or
observed time required to repair a System or component and
return it to normal operation.
Page 1 of 10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCAl
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L.P.(B27160)
GENERAL PROVISIONS
"Operating Software" means those routines, whether or
not identified as Program Products, that reside in the
Equipment and are required for the Equipment to perform
its intended function(s), and which interface the operator,
other Contractor-supplied programs, and user programs to
the Equipment.
"Operational Use Tlme~ means for performance
measurement purposes, that time during which Equipment is
in actual operation by the State. For maintenance
Operational Use Time purposes, that time during which
Equipment is in actual operation and is not synonymous
with power on time.
"Perfonnance Testing Period" means a period of time
during which the State, by appropriate tests and production
runs, evaluates the performance of newly installed
Equipment and Software prior to its acceptance by the
State.
"Period of Maintenance Coverage" means the period of
time, as selected by the State, during which maintenance
services are provided by the Contractor for a fixed monthly
charge, as opposed to an hourly charge for services
rendered. The Period of Maintenance Coverage consists of
the Principal Period of Maintenance and any additional
hours of coverage per day, andlor increased coverage for
weekends and holidays.
"PreVentive Maintenance" means that maintenance,
performed on a scheduled basis by the Contractor, which is
designed to keep the Equipment in proper operating
condition.
"Principal Period of Maintenance" means any nine
consecutive hours per day (usually between the hours of
7:00 a.m. and 6:00 p.m.) as selected by the State,
including an official meal period not to exceed one hour,
Monday through Friday, excluding holidays observed at the
installation.
"Programming Aids" means Contractor-supplied programs
and routines executable on the Contractor's Equipment
which assists a programmer in the development of
applications including language processors, sorts,
communications modules, data base management systems,
and utility routines, (tape-to--disk routines, disk-to-print
routines, etc.).
"Program Product" means programs, routines, subroutines,
and related items which are proprietary to the Contractor
and which are licensed to the State for its use, usually on
the basis of separately stated charges and appropriate
contractual provisions.
"Remedial Maintenance" means that maintenance
performed by the Contractor which results from Equipment
(including Operating Software) failure, and which is
performed as required, i.e., on an unscheduled basis.
"Site License" means for each product, the term "Site
License" shall mean the license established upon acquisition
of the applicable number of copies of such product and
payment of the applicable license fees as set forth in the
Statement of Work.
"Software" means an all-inclusive term which refers to any
computer programs, routines, or subroutines supplied by the
Contractor, including Operating Software, Programming Aids,
Application Programs, and Program Products.
"Software Failure" means a malfunction in the Contractor-
supplied Software, other than Operating Software, which
prevents the accomplishment of work, even though the
Equipment (including its Operating Software) may still be
capable of operating properly. For Operating Software
failure, see definition of Equipment Failure.
"State" means the government of the State of California,
Revision 8/1012009 (GSPD-401IT based on April 12, 2007)
its employees and authorized representatives, including
without limitation any department, agency, or other unit of
the government of the State of California.
"System" means the complete collection of Hardware,
Software and services as described in this Contract,
integrated and functioning together, and performing in
accordance with this Contract.
"U.S. Intellectual Property Rights" means intellectual property
rights enforceable in the United States of America, including
without limitation rights in trade secrets, copyrights, and U.S.
patents.
2, CONTRACT FORMATION:
a) If this Contract results from a sealed bid offered in response to a
solicitation conducted pursuant to Chapters 2 (commencing with
Section 10290), 3 (commencing with Section 12100), and 3.6
(commencing with Section 12125) of Part 2 of Division 2 of the
Public Contract Code (PCC), then Contractor's bid is a firm offer
to the State which is accepted by the issuance of this Contract
and no further action is required by either party.
b) If this Contract results from a solicitation other than described
in paragraph a), above, Contractor's quotation or proposal is
deemed a firm offer and this Contract document is the State's
acceptance of that offer.
c) If this Contract resulted from a joint bid, it shall be deemed one
indivisible Contract. Each such joint Contractor will be jointly and
severally liable for the performance of the entire Contract. The
State assumes no responsibility or obligation for the division of
orders or purchases among joint Contractors.
3. COMPLETE INTEGRATION: This Contract, induding any documents
incorporated herein by express reference, is intended to be a
complete integration and there are no prior or contemporaneous
different or additional agreements pertaining to the subject matter of
the Contract.
4. SEVERABILITY: The Contractor and the State agree that if any
provision of this Contract is found to be illegal or unenforceable, such
term or provision shall be deemed stricken and the remainder of the
Contract shall remain in full force and effect. Either party having
knowledge of such term or provision shall promptly inform the other of
the presumed non-applicability of such provision.
5. INDEPENDENT CONTRACTOR: Contractor and the agents and
employees of Contractor, in the performance of this Contract, shall act
in an independent capacity and not as officers or employees or agents
of the State.
6. APPLICABLE LAW: This Contract shall be governed by and shall be
interpreted in accordance with the laws of the State of California:
venue of any action brought with regard to this Contract shall be in
Sacramento County, Sacramento, California. The United Nations
Convention on Contracts for the International Sale of Goods shall not
apply to this Contract.
7. COMPLIANCE WITH STATUTES AND REGULATIONS:
a) Contractor warrants and certifies that in the performance
of this Contract, it will comply with all applicable statutes,
rules, regulations and orders of the United States and the
State of California and agrees to indemnify the State
against any loss, cost, damage or liability by reason of the
Contractor's violation of this provision.
b) The State will notify Contractor of any such claim in
writing and tender the defense thereof within a reasonable
time; and
Page 2 of 10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCAl
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L.P,(B27160)
GENERAL PROVISIONS
c) Contractor will have sole control of the defense of any
action on such claim and all negotiations for its sedlement
or compromise; provided that (I) when substantial principles
of government or public law are involved, when litigation
might create precedent affecting future State operations or
liability, or when involvement of the State is otherwise
mandated by Jaw, the Stale may participate in such action
at its own expense with respect to attorneys' fees and
costs (but not liability): (ii) the State will have the right to
approve or disapprove any settlement or compromise, which
approval will not unreasonably be withheld or delayed; and
(iii) the State will reasonably cooperate in the defense and
in any related settlement negotiations.
d) If this Contract is in excess of $500,000, it is subject to
the requirements of the World Trade Organization (Wf0)
Government Procurement Agreement (GPA).
e) To the extent that this contract falls within the scope of
Government Code Section 11135, Contractor hereby agrees
to respond to and resolve any complaint brought to its
attention, regarding accessibility of its products or services.
8. CONTRACTOR'S POWER AND AUTHORITY: The Contractor
warrants that it has full power and authority to grant the rights herein
granted and will hold the State harmless from and against any loss,
cost, liability, and expense (including reasonable attorney fees) arising
out of any breach of this warranty. Further, Contractor avers that it
will not enter into any arrangement with any third party which might
abridge any rights of the State under this Contract.
The State will notify Contractor of any such claim in writing
and tender the defense thereof within a reasonable time;
and
Contractor will have sole control of the defense of any
action on such claim and all negotiations for its settlement
or compromise; provided that (i) when substantial principles
of government or public law are involved, when litigation
rnight create precedent affecting future State operations or
liability, or when involvement of the State is otherwise
mandated by law, the State may participate in such action
at its own expense with respect to attorneys' fees and
costs (but not liability); (ii) the State will have the right to
approve or disapprove any settlement or compromise, which
approval will not unreasonably be withheld or delayed; and
(iii) the State will reasonably cooperate in the defense and
in any related settlement negotiations.
9. ASSIGNMENT: This Contract shall not be assignable by the Contractor
in whole or in part without the written consent of the State. For the
purpose of this paragraph, State will not unreasonably prohibit
Contractor from freely assigning its right to payment, provided that
Contractor remains responsible for its obligations hereunder.
10. WAIVER OF RIGHTS: Any action or inaction by the State or the failure
of the State on any occasion, to enforce any right or provision of the
Contract, shall not be construed to be a waiver by the State of its
rights hereunder and shall not prevent the State from enforcing such
provision or right on any Mure occasion. The rights and remedies of
the State herein are cumulative and are in addition to any other rights
or remedies that the State may have at law or in equity.
11. ORDER OF PRECEDENCE: In the event of any inconsistency
between this Participating Addendum and Master Price Agreement,
the following order of precedence shall apply:
Revision 8/1012009 (GSPD-4011T based on Aprl/12, 2007)
a) executed participating addendum(s):
b) the terms and conditions of the Master Price Agreement;
c) exhibits to the Master Price Agreement;
d) the list of products and services contained in the purchase
order;
e) the Request for Information (or similar) document; and
Contractor's Response to the Request for Information (or similar
document).
12. PACKING AND SHIPMENT:
a) All Goods are to be packed in suitable containers for protection in
shipment and storage, and in accordance with applicable
specifications. Each container of a multiple container shipment
shall be identified to:
i) show the number of the container and the total number of
containers in the shipment; and
il) the number of the container in which the packing sheet has
been enclosed.
b) All shipments by Contractor or its subcontractors must include
packing sheets identifying: the State's Contract number; item
number; quantity and unit of measure; part number and
description of the Goods shipped; and appropriate evidence of
inspection, if required. Goods for different Contracts shall be
listed on separate packing sheets.
c) Shipments must be made as specified in this Contract, as it may be
amended, or otherwise directed in writing by the State's
Transportation Management Unit within the Department of
General Services, Procurement Division.
13, TRANSPORTATION COSTS AND OTHER FEES OR EXPENSES:
No charge for delivery, drayage, express, parcel post, packing,
cartage, insurance, license fees, pennits, cost of bonds, or for any
other purpose will be paid by the State unless expressly included and
itemized in the Contract.
a) Contractor must strictly follow Contract requirements regarding
Free on Board (F.O.B.), freight terms and routing instructions.
The State may pennit use of an alternate carrier at no additional
cost to the state with advance written authorization of the Buyer.
b) If "prepay and add" is selected, supporting freight bills are required
when over $50, unless an exact freight charge is approved by
the Transportation Management Unit within the Department of
General Services Procurement Division and a waiver is granted.
c) On "F.O.B. Shipping Point" transactions, should any shipments
under the Contract be received by the State in a damaged
condition and any related freight loss and damage claims filed
against the carrier or carriers be wholly or partially declined by
the carrier or carriers with the inference that damage was the
result of the act of the shipper such as inadequate packaging or
loading or some inherent defect in the Equipment and/or
material, Contractor, on request of the State, shall at Contractor's
own expense assist the State in establishing carrier liability by
supplying evidence that the Equipment and/or material was
properly constructed, manufactured, packaged, and secured to
withstand normal transportation conditions.
14. DELIVERY: Contractor shall strictly adhere to the delivery and
completion schedules specified in this Contract. Time, if stated as a
number of days, shall mean calendar days unless otherwise specified.
The quantities specified herein are the only quantities required. If
Contractor delivers in excess of the quantities specified herein, the
State shall not be required to make any payment for the excess
Deliverables, and may return them to Contractor at Contractor's
expense or utilize any other rights available to the State at law or in
equity.
Page 3 of10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCAI
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L.P.(B27160)
GENERAL PROVISIONS
15. SUBSTITUTIONS: Substitution of Deliverables may not be tendered
INithout advance written consent of the Buyer. Contractor shall not
use any specification in lieu of those contained in the Contract without
written consent of the Buyer.
16. INSPECTION, ACCEPTANCE AND REJECTION:
DELETED
Unless
Contractor in winding down and terminating its
work.
The Contractor will use generally accepted accounting
principles, or accounting principles otherwise agreed to in
writing by the parties, and sound business practices in
determining all costs claimed, agreed to, or determined
under this clause.
17. SAMPLES:
a) Samples of items may be required by the Stale for inspection and
specification testing and must be furnished free of expense to the
State. The samples furnished must be identical in all respects to
the products bid andlor specified in the Contract.
b) Samples, if not destroyed by tests, may, upon request made at the
time the sample is furnished, be returned at Contractor's
expense.
23. TERMINATION FOR DEFAULT:
a) The State may, subject to the clause titled ~Force
Majeure~ and to sub-section d) below, by written notice of
default to the Contractor. terminate this Contract in whole
or in part if the Contractor fails to:
i) Deliver the Deliverables or perform the services
within the time specified in the Contract or any
amendment thereto;
ii) Make progress, so that the lack of progress
endangers performance of this Contract; or
jii) Perform any of the other provisions of this Contract.
b) The State's right to terminate this Contract under sub.
section a) above, may be exercised if the failure constitutes
a material breach of this Contract and if the Contractor
does not cure such failure within the time frame stated in
the State's cure notice, which in no event will be less than
fifteen (15) days, unless the Statement of Work calls for a
shorter period.
c) If the State terminates this Contract in whole or in part
pursuant to this Section, it may acquire, under terms and
in the manner the Buyer considers appropriate, Deliverables
or services similar to those terminated, and the Contractor
will be liable to the State for any excess costs for those
Deliverables and services, including without limitation costs
third party vendors charge for Manufacturing Materials (but
subject to the clause entitled "Limitation of Liability").
However. the Contractor shall continue the work not
terminated.
d) If the Contract is terminated for default, the State may
require the Contractor to transfer title, or in the case of
licensed Software, license, and deliver to the State, as
directed by the Buyer, any:
(i) completed Deliverables,-
(ii) partially completed Deliverables, and,
(iii) subject to---.-provisions of sub-section e) below,
Manufacturing Materials related to the terminated
portion of this Contract. Nothing in this sub-section d)
will be construed to grant the State rights to
Deliverables that it would not have received had this
Contract been fully performed. Upon direction of the
Buyer, the Contractor shaH also protect and preserve
property in its possession in which the State has an
interest.
e) The State shall pay Contract price for completed
Deliverables delivered and accepted. Unless the Statement
of Work calls for different procedures or requires no. charge
delivery of materials, the Contractor and Buyer shall attempt
to agree on the amount of payment for Manufacturing
Materials and other materials delivered and accepted by the
State for the protection and preservation of the
property;provided that where the Contractor has billed the
State for any such materials, no additional charge will apply
Failure to agree will constitute a dispute under the
Disputes clause. The State may withhold from these
amounts any sum !1 determines to be necessary to protect
the State against loss because of outstanding liens or
claims of former lien holders.
f) If, after termination, it is determined by a final ruling in
18, WARRANTY:
DELETED
22. TERMINATION FOR THE CONVENIENCE OF THE STATE:
a) The State may terminate performance of work under this
Contract for its convenience in whole or, from time to time,
in part, if the Department of General Services, Deputy
Director Procurement Division, or designee, determines that
a termination is in the State's interest. The Department of
General Services, Deputy Director, Procurement Division, or
designee, shall terminate by delivering to the Contractor a
Notice of Termination specifying the extent of termination
and the effective date thereof.
b) After receipt of a Notice of Termination, and except as
directed by the State, the Contractor shall immediately
proceed with the following obligations, as applicable,
regardless of any delay in determining or adjusting any
amounts due under this clause. The Contractor shalt:
(i) Stop work as specified in the Notice of Termination.
(ii) Place no further subcontracts for materials, services,
or facilities, except as necessary to complete the
continuing portion of the Contract.
(iii) Terminate all subcontracts to the extent they relate to
the work terminated.
(iv) Settle alt outstanding liabilities and termination
settlement proposals arising from the termination of
subcontracts;-
Unless otherwise set forth in the Statement of Work, if the
Contractor and the State fail to agree on the amount to be
paid because of the termination for convenience, the State
will pay the Contractor the following amounts; provided that
in no event will total payments exceed the amount payable
to the Contractor if the Contract had been fully performed:
The Contract price for Deliverables or services
accepted by the State and not previously paid for,
adjusted for any savings on freight and other charges;
and
The total ot
A) The reasonable costs incurred in the
performance of the work terminated, including
initial costs and preparatory expenses allocable
thereto, but excluding any cost attributable to
Deliverables or services paid or to be paid;
B) The reasonable cost of settling and paying
termination settlement proposals under terminated
subcontracts that are properly chargeable to the
terminated portion of the Contract; and
C) Reasonable storage, transportation,
demobilization, unamortized overhead and capital
costs, and other costs reasonably incurred by the
Revision 8/1012009 (GSPD-401/T based on April 12, 2007)
Page 4 of 10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCAl
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L,P,{B27160)
GENERAL PROVISIONS
accordance with the Disputes Clause that the Contractor
was not in default, the rights and obligations of the parties
shall be the same as if the termination had been issued
for the convenience of the State.
g) The rights and remedies of the State in this clause are
in addition to any other rights and remedies provided by
law or under this Contract, and are subject to the clause
titled ULimitation of Liability.~
24, FORCE MAJEURE
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 causes beyond the control and without the fault or
negligence of the Contractor. Examples of such causes include, but
are not limited to:
a) Acts of God or of the public enemy, and
b) Acts of the federal or State government in either its sovereign or
contractual capacity.
If the failure to perlarrn is caused by the default of a subcontractor at
any tier, and if the cause of the default is beyond the control of both
the Contractar and subcontractor, and without the fault or negligence
af either, the Contractor shall nat be liable for any excess costs for
failure to perlorm.
25. RIGHTS AND REMEDIES OF STATE FOR DEFAULT:
a) In the event any Deliverables furnished or services provided by the
Contractor in the perlarmance of the Contract should fail to
conform to the requirements herein, or to the sample submitted
by the Contractor, the State may reject the same, and it shall
become the duty of the Contractor to reclaim and remove the
item promptly or to correct the perlormance of services, without
expense to the State, and immediately replace all such rejected
items with others conforming to the Contract.
b) In addition to any other rights and remedies the State may have,
the State may require Contractor, at Contractor's expense, to
ship Deliverables via air freight or expedited routing to avoid or
minimize actual or potential delay if the delay is the fault of the
Contractor.
c) In the event of the termination of the Contract, either in whole or in
part, by reason of default or breach by the Contractor, any loss
or damage sustained by the State in procuring any items which
the Contractor agreed to supply shall be borne and paid for by
the Contractor (but subject to the clause entitled ~Limitation of
Liability").
d) The State reserves the right to offset the reasonable cost of all
damages caused to the State against any outstanding invoices
or amounts owed to Contractor or to make a claim against the
Contractor therefore.
26. LIMITATION OF LIABILITY:
a) Contractor's liability for damages to the State for any
cause whatsoever, and regardless of the form of action,
whether in Contract or in tort, shall be limited to two times
the Purchase Price. For purposes of this sub-section a),
"Purchase Price" will mean the aggregate Contract price:
except that, with respect to a Contract under which multiple
purchase orders will be issued (e.g., a Master Agreement
or Multiple Award Schedule contract), "Purchase Price" will
mean the total price of the purchase order for the
Deliverable(s) or service(s) that gave rise to the loss, such
that Contractor will have a separate limitation of liability for
each purchase order.
b) The foregoing limitation of liability shall not apply (i) to
Revision 8/1012009 (GSPD-4011T based on Aprl/12, 2007)
liability under the General Provisions, entitled ~Patent,
Copyright, and Trade Secret Protection" or to any other
liability (including without limitation indemnification
obligations) for infringement of third party intellectual
property rights: (ii) to claims covered by any specific
provision herein calling for liquidated damages; (iii) to
claims arising under provisions herein calling for
indemnification for third party claims against the State for
bodily injury to persons or damage to real or tangible
personal property caused by Contractor's negligence or
willful misconduct; or (iv) to--costs or attorney's fees that
the State becomes entitled to recover as a prevailing party
in-any action.
c) The State's liability for damages for any cause
whatsoever, and regardless of the form of action, whether
in Contract or in tort, shall be limited to the Purchase
Price, as that term is defined in subsection a) above.
Nothing herein shall be construed to waive or limit the
State's sovereign immunity or any other immunity from suit
provided by law.
d) In no event will either the Contractor or the State be
liable for consequential, incidental, indirect, special, or
punitive damages, even if notification has been given as to
the possibility of such damages, except (i) to the extent
that Contractor's liability for such damages is specifically set
forth in the Statement of Work or (ii) to the extent that
Contractor's liability for such damages arises out of sub-
section b)(i), b)(ii). or b)(iv) above.
27. CONTRACTOR'S LIABILITY FOR INJURY TO PERSONS OR
DAMAGE TO PROPERTY:
a) The Contractor shall be liable for damages arising out of injury to
the person and/or damage to the property of the State,
employees of the State, persons designated by the State for
training, or any other person(s) other than agents or employees
of the Contractor, designated by the State for any purpose, prior
to, during, or subsequent to delivery, installation, acceptance,
and use of the Deliverables either at the Contractor's site or at
the State's place of business, provided that the injury or damage
was caused by the fault or negligence of the Contractor.
b) Contractor shalf not be liable for damages arising out of or caused
by an alteration or an Attachment not made or installed by the
Contractor, or for damage to alterations or Attachments that may
result from the normal operation and maintenance of the
Deliverables provided by the Contractor during the Contract.
28. INDEMNIFICATION: Contractor agrees to indemnify, defend and
save harmless the State, its officers, agents and employees
from any and all third party claims, costs (including without
limitation reasonable attorneys" fees), and losses due to the
injury or death of any individual, or the loss or damage to any
real or tangible personal property, resulting from the willful
misconduct or negligent acts or omissions of Contractor or any
of its agents, subcontractors, employees, suppliers, laborers, or
any other person, firm, or corporation furnishing or supplying
work, services, materials, or supplies in connection with the
perlormance of this Contract. Such defense and payment will
be conditional upon the following:
a) The State will notify Contractor of any such claim in writing
and tender the defense thereof within a reasonable time;
and
b) Contractor will have sole control of the defense of any action
on such claim and all negotiations for its settlement or
compromise: provided that (i) when substantial principles of
government or public law are involved, when litigation might
create precedent affecting future State operations or liability,
Page 5 of 10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCAl
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L.P.(B27160)
GENERAL PROVISIONS
or when involvement of the State is otherwise mandated by
law, the State may participate in such action at its own
expense with respect to attorneys' fees and costs (but not
liability); (ii) the State will have the right to approve or
disapprove any settlement or compromise, which approval
will not unreasonably be withheld or delayed; and (Ui) the
State will reasonably cooperate in the defense and in any
related settlement negotiations.
29. INVOICES: Unless otherwise specified, invoices shall be sent to
the address set forth herein. Invoices shall be submitted in triplicate
and shall include the Contract number; release order number (if
applicable); item number; unit price, extended Item price and invoice
total amount. State sales tax and/or use tax shall be itemized
separately and added to each invoice as applicable.
30. REQUIRED PAYMENT DATE: Payment will be made in accordance
with the provisions of the Califomia Prompt Payment Act, Government
Code Section 927 et. seq. Unless expressly exempted by statute, the
Act requires State agencies to pay properly submitted, undisputed
invoices not more than 45 days after (i) the date of acceptance of
Deliverables or performance of services; or (ii) receipt of an
undisputed invoice, whichever is later.
31. TAXES: Unless otherwise required by law, the State of California is
exempt from Federal excise taxes. The State will only pay for any
State or local sales or use taxes on the services rendered or Goods
supplied to the State pursuant to this Contract.
32. NEWLY MANUFACTURED GOODS:
DELETED.
33. CONTRACT MODIFICATION: No amendment or variation of the
terms of this Contract shall be valid unless made in writing, signed by
the parties and approved as required. No oral understanding or
agreement not incorporated in the Contract is binding on any of the
parties.
34. CONFIDENTIALITY OF DATA: All financial, statistical, personal,
technical and other data and information relating to the State's
operation which are designated confidential by the State and made
available to the Contractor in order to carry out this Contract, or which
become available to the Contractor in carrying out this Contract, shall
be protected by the Contractor from unauthorized use and disclosure
through the observance of the same or more effective procedural
requirements as are applicable to the State. The identification of all
such confidential data and information as well as the State's
procedural requirements for protection of such data and information
from unauthorized use and disclosure shall be provided by the State
in writing to the Contractor. If the methods and procedures employed
by the Contractor for the protection of the Contractor's data and
information are deemed by the State to be adequate for the protection
of the State's confidential information, such methods and procedures
may be used, with the written consent of the State, to carry out the
intent of this paragraph. The Contractor shall not be required under
the provisions of this paragraph to keep confidential any data or
information which is or becomes publicly available, is already rightfully
in the Contractor's possession, is independently developed by the
Contractor outside the scope of this Contract, or is rightfully obtained
from third parties.
35. NEWS RELEASES: Unless otherwise exempted, news releases
pertaining to this Contract shall not be made without prior written
approval of the Department of General Services.
Revision 8/1012009 (GSPD-401IT based on Aprll12, 2007)
36. DOCUMENT AnON
a) The Contractor agrees to provide to the State, at no charge,
a number of all nonproprietary manuals and other printed
materials, as described within the Statement of Work, and
updated versions thereof, which are necessary or useful to
the State in its use of the Equipment or Software provided
hereunder. The Contractor agrees to provide additional
Documentation at prices not in excess of charges made by
the Contractor to its other customers for similar
Documentation.
b) If the Contractor is unable to perform maintenance or the
State desires to perform its own maintenance on Equipment
purchased under this Contract then upon written notice by
the State the Contractor wilt provide at Contractor's then
current rates and fees adequate and reasonable assistance
including relevant Documentation to allow the State to
maintain the Equipment based on Contractor's methodology.
The Contractor agrees that the State may reproduce such
Documentation for its own use in maintaining the
Equipment. If the Contractor is unable to perform
maintenance, the Contractor agrees to license any other
Contractor that the State may have hired to maintain the
Equipment to use the above noted Documentation. The
State agrees to include the Contractor's copyright notice on
any such Documentation reproduced, in accordance with
copyright instructions to be provided by the Contractor.
37. RIGHTS IN WORK PRODUCT:
a) All inventions, discoveries, intellectual property, technical
communications and records originated or prepared by the
Contractor pursuant to this Contract including papers,
reports, charts, computer programs, and other
Documentation or improvements thereto, and including
Contractor's administrative communications and records
relating to this Contract (collectively, the ''Work Producr),
shall be Contractor's exclusive property. The provisions of
this sub-section a) may be revised in a Statement of
Work.
b) Software and other materials developed or otherwise
obtained by or for Contractor or its affiliates independently
of this Contract or applicable purchase order ("Pre-Existing
Materials~) do not constitute Work Product. If Contractor
creates derivative works of Pre-Existing Materials, the
elements of such derivative works created pursuant to this
Contract constitute Work Product, but other elements do
not. Nothing in this Section 37 will be construed to
interfere with Contractor's or its affiliates' ownership of Pre-
Existing Materials.
The State wilt have Government Purpose Rights to the
Work Product as Deliverable or delivered to the State
hereunder. wGovernment Purpose Rights~ are the
unlimited, irrevocable, worldwide, perpetual, royalty-free,
non-exclusive rights and licenses to use, modify, reproduce,
perform, release, display, create derivative works from, and
disclose the Work Product. uGovernment Purpose Rights"
also include the right to release or disclose the Work
Product outside the State for any State government
purpose and to authorize recipients to use, modify,
reproduce, perform, release, display, create derivative works
from, and disclose the Work Product for any State
government purpose. Such recipients of the Work Product
may include, without limitation, State Contractors, California
local governments, the U.S. federal government, and the
State and local governments of other states. "Government
Purpose Rights" do not include any rights to use, modify,
reproduce, perform, release, display, create derivative works
from, or disclose the Work Product for any commercial
Page 6 of 10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCAI
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L.P.(B27160)
GENERAL PROVISIONS
purpose.
The ideas, concepts, know-how, or techniques relating to
data processing, developed during the course of this
Contract by the Contractor or jointly by the Contractor and
the State may be used by either party without obligation
of notice or accounting.
This Contract shall not preclude the Contractor from
developing materials outside this Contract that are
competitive, irrespective of their similarity to materials which
might be delivered to the State pursuant to this Contract.
38. PROTECTION OF PROPRIETARY SOFTWARE AND
OTHER PROPRIETARY DATA
a) State agrees that all malerial appropriately marked or
identified in writing as proprietary, and furnished hereunder
are provided for State's exclusive use for the purposes of
this Contract only. All such proprietary data shall remain
the property of the Contractor. State agrees to take all
reasonable steps to insure that such proprietary data are
not disclosed to others, without prior written consent of the
Contractor, subject to the California Public Records Act.
b) The State will insure, prior to disposing of any media,
that any licensed materials contained thereon have been
erased or otherwise destroyed.
c) The State agrees that it will take appropriate action by
instruction, agreement or otherwise with its employees or
other persons permitted access to licensed software and
other proprietary data to satisfy its obligations under this
Contract with respect to use, copying, modification,
protection and security of proprietary software and other
proprietary data..
39. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY:
a) Contractor will indemnify, defend, and save harmless the
State, its officers, agents, and employees, from any and all
third party claims, costs (including without limitation
reasonable attorneys' fees), and losses for infringement or
violation of any U.S. Intellectual Property Right by any
product or service provided hereunder. With respect to
claims arising from computer Hardware or Software
manufactured by a third party and sold by Contractor as a
reseller, Contractor will pass through to the State such
indemnity rights as it receives from such third party ("Third
Party Obligation") and will cooperate in enforcing them;
provided that if the third party manufacturer fails to honor
the Third Party Obligation, Contractor will provide the State
with indemnity protection equal to that called for by the
Third Party Obligation, but in no event greater than that
called for in the first sentence of this Section 39a). The
provisions of the preceding sentence apply only to third
party computer Hardware or Software sold as a distinct unit
and accepted by the State.
Unless a Third Party Obligation provides otherwise, the
defense and payment obligations set forth in this Seetlon
39a) will be conditional upon the following:
The State will notify Contractor of any such claim in
writing and tender the defense thereof within a
reasonable time; and
Contractor w'ill have sole control of the defense of any
action on such claim and all negotiations for its
settlement or compromise; provided that (i) when
substantial principles of government or public law are
involved, when litigation might create precedent affecting
Mure State operations or liability, or when involvement
RevIsion 8/1012009 (GSPD-401IT based on Aprl112, 2007)
of the State is otherwise mandated by law, the State
may participate in such action at its own expense with
respect to attorneys' fees and costs (but not liability); (ii)
the State will have the right to approve or disapprove
any settlement or compromise, which approval will not
unreasonably be withheld or delayed; and (iii) the State
will reasonably cooperate in the defense and in any
related settlement negotiations.
b) Contractor may be required to furnish a bond to the State
against any and all loss, damage, costs, expenses, claims and
liability for patent, copyright and trade secret infringement.
c) Should the Deliverables or Software, or the operation thereof,
become, or in the Contractor's opinion are likely to become, the
subject of a claim of infringement or violation of a U.S.
Intellectual Property Right, the State shall permit the Contractor
at its option and expense either to procure for the State the right
to continue using the Deliverables or Software, or to replace or
modify the same so that they become nonMinfringing. If none of
these options can reasonably be taken, or if the use of such
Deliverables or Software by the State shall be prevented by
injunction, the Contractor agrees to take back such Deliverables
or Software and make every reasonable effort to assist the State
in procuring substitute Deliverables or Software. If, in the sole
opinion of the State, the return of such infringing Deliverables or
Software makes the retention of other Deliverables or Software
acquired from the Contractor under this Contract impractical, the
State shall then have the option of terminating such Contracts, or
applicable portions thereof, without penalty or termination
charge. The Contractor agrees to take back such Deliverables or
Software and refund any sums the State has paid Contractor
less any reasonable amount for use or damage.
d) The Contractor shall have no liability to the State under any
provision of this clause with respect to any claim of patent,
copyright or trade secret infringement which is based upon:
(i) The combination or utilization of Deliverables furnished
hereunder with Equipment or devices not made or furnished
by the Contractor; or,
(Ii) The operation of Equipment furnished by the Contractor
under the control of any Operating Software other than, or
in addition to, the current version of ContractorMsupplied
Operating Software; or
(iii) The modification by the State of the Equipment furnished
hereunder or of the Software; or
(iv) The combination or utilization of Software furnished
hereunder with non-contractor supplied Software.
e) Contractor certifies that it has appropriate systems and controls in
place to ensure that State funds will not be used in the
performance of this Contract for the acquisition, operation or
maintenance of computer Software in violation of copyright laws.
40. EXAMINATION AND AUDIT: Contractor agrees that the State, or its
designated representative shall have the right to review and copy any
records and supporting Documentation pertaining to performance of
this Contract. Contractor agrees to maintain such records for possible
audit for a minimum of three (3) years after final payment, unless a
longer period of records retention is stipulated. Contractor agrees to
allow the auditor(s) access to such records during normal business
hours and to allow interviews of any employees or others who might
reasonably have information related to such records. Further,
Contractor agrees to include a similar right of the State to audit
records and interview staff in any subcontract related to performance
of this Contract.
41, D1SPUTES:-
a) The parties shall deal in good faith and attempt to resolve potential
disputes informally. If the dispute persists, Contractor shall
Page 7 of 10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCA)
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L.P,(B27160)
GENERAL PROVISIONS
submit to the Department Director or designee a written demand
for a final decision regarding the disposition of any dispute
between the parties arising under, related to or involving this
Contract, unless the State, on its own initiative, has already
rendered such a final decision. Contractor's written demand
shall be fully supported by factual infannelion, and If such
demand involves a cost adjustment to the Contract, Contractor
shall include with the demand a written statement signed by an
authorized person indicating that the demand is made in good
faith, that the supporting dala are accurate and complete and
that the amount requested accurately reflects the Contract
adjustment for which Contractor believes the State is liable. If the
Contractor is not satisfied with the decision of the Department
Director or designee, the Contractor may appeal the decision to
the Department of General Services, Deputy Director,
Procurement Division. In the event that this Contract is for
Information Technology Goods and/or services, the decision may
be appealed to an Executive Committee of State and Contractor
personnel.
b) Pending the final resolution of any dispute arising under, related to
or involving this Contract, Contractor agrees to diligently proceed
with the performance of this Contract, including the delivery of
Goods or providing of services in accordance with the State's
instructions. Contractor's failure to diligently proceed in
accordance with the State's instructions shall be considered a
material breach of this Contract.
c) Any final decision of the State shall be expressly identified as such,
shall be in writing, and shall be signed by the Department
Director or designee or Deputy Director, Procurement Division if
an appeal was made. If the State fails to render a final decision
within 90 days after receipt of Contractor's demand, it shall be
deemed a final decision adverse to Contractor's contentions.
The State's final decision shall be conclusive and binding
regarding the dispute unless Contractor commences an action in
a court of competent jurisdiction to contest such decision within
90 days following the date of the final decision or one (1) year
following the accrual of the cause of action, whichever is later.
adjustment within 30 days after the end of the period of
work stoppage; provided, that if the State decides the facts
justify the action, the State may receive and act upon a
proposal submitted at any time before final payment under
this Contract.
c) If a Stop Work Order is not canceled and the work covered by the
Stop Work Order is terminated in accordance with the provision
entitled Termination for the Convenience of the State, the State
shall allow reasonable costs resulting from the Stop Work Order
in arriving at the termination settlement.
d) The State shall not be liable to the Contractor for loss of profrts
because of a Stop Work Order issued under this clause.
42. STOP WORK:
a) The State may, at any time, by written Stop Work Order to the
Contractor, require the Contractor to stop all, or any part, of the
work called for by this Contract for a period up to 90 days after
the Stop Work Order is delivered to the Contractor, and for any
further period to which the parties may agree. The Stop Work
Order shall be specifically identified as such and shall indicate it
is issued under this clause. Upon receipt of the Stop Work
Order, the Contractor shall immediately comply with its terms
and take all reasonable steps to minimize the incurrence of costs
allocable to the work covered by the Stop Work Order during the
period of work stoppage. Within a period of 90 days after a Stop
Work Order is delivered to the Contractor, or within any
extension of that period to v.Jhich the parties shall have agreed,
the State shall either:
(i) Cancel the Stop Work Order; or
(ii) Terminate the work. covered by the Stop Work Order as
provided for in the termination for default or the termination
for convenience clause of this Contract.
b) If a Stop Work Order issued under this clause is canceled or the
period of the Stop Work Order or any extension thereof expires,
the Contractor shall resume work. The State shall make an
equitable adjustment in the delivery schedule, the Contract price,
or both, and the Contract shall be modified, in writing,
accordingly, it
(i) The Stop Work Order results in an increase in the time
required for, or in the Contractor's cost properly allocable to
the performance of any part of this Contract; and
(ii) The Contractor asserts its right to an equitable
43. FOLLOW-ON CONTRACTS:
If the Contractor or its affiliates provides Technical
Consulting and Direction (as defined below), the Contractor
and its affiliates:
(i) will not be awarded a subsequent Contract to
supply the service or system, or any significant
component thereof, that is used for or in connection
with any subject of such Technical Consulting and
Direction; and
(ii) will not act as consultant to any person or entity
that does receive a Contract described in sub-section
(i). This prohibition will continue for one (1) year after
termination of this Contract or completion of the
Technical Consulting and Direction, whichever comes
later.
"Technical Consulting and Direction" means services for
which the Contractor received compensation from the State
and includes:
(i) development of or assistance in the development of
work. statements, specifications, solicitations, or
feasibility studies;
(ii) development or design of test requirements;
(iii) evaluation of test data;
(iv) direction of or evaluation of another Contractor;
(v) provision of formal recommendations regarding the
acquisition of Information Technology products or
services; or
(vi) provisions of formal recommendations regarding any
of the above. For purposes of this Section, "affiliates"
are employees, directors, partners, joint venture
participants, parent corporations, subsidiaries, or any
other entity controlled by, controlling, or under common
control with the Contractor. Control exists when an
entity owns or directs more than fifty percent (50%) of
the outstanding shares or securities representing the
right to vote for the election of directors or other
managing authority.
To the extent permissible by law, the Director of the
Department of General Services, or designee, may waive
the restrictions set forth in this Section by written notice to
the Contractor If the Director determines their application
would not be in the State's best interest. Except as
prohibited by law, the restrictions of this Section will not
apply:
to follow-on advice given by vendors of commercial
off-the-shelf products, including Software and Hardware,
on the operation, integration, repair, or maintenance of
such products after sale; or
where the State has entered into a master agreement
for Software or services and the scope of work at the
time of Contract execution expressly calls for future
recommendations among the Contractor's own products.
The restrictions set forth in this Section are in addition to
Revis/on 8/1012009 (GSPD-401IT based on Aprl/12. 2007)
Page 8 of 10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCA>
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L.P,(B27160)
GENERAL PROVISIONS
conflict of interest restrictions imposed on public Contractors
by California law (UConflict Laws"). In the event of any
inconsistency, such Conflict Laws override the provisions of
this Section, even if enacted after execution of this
Contract."
44, PRIORITY HIRING CONSIDERATIONS: If this Contract includes
services in excess of $200,000, the Contractor shall give priority
consideration in filling vacancies in positions funded by the Contract to
qualified recipients of aid under Welfare and Institutions Code Section
11200 in accordance with pee Section 10353.
45. COVENANT AGAINST GRATUITIES: The Contractor warrants that
no gratuities (in the form of entertainment, gifts, or otherwise) were
offered or given by the Contractor, or any agent or representative of
the Contractor, to any officer or employee of the State with a view
toward securing the Contract or securing favorable treatment with
respect to any determinations concerning the performance of the
Contract. For breach or violation of this warranty, the State shall have
the right to terminate the Contract, either in whole or in part, and any
loss or damage sustained by the State in procuring on the open
market any items which Contractor. agreed to supply shall be borne
and paid for by the Contractor. The rights and remedies of the State
provided in this clause shall not be exclusive and are in addition to
any other rights and remedies provided by law or in equity.
46. NONDISCRIMINATION CLAUSE:
a) During the performance of this Contract, Contractor and its
subcontractors shall not unlawfully discriminate, harass or allow
harassment, against any employee or applicant for employment
because of sex, sexual orientation, race, color, ancest'Y,
religious creed, national origin, disability (including HIV and
AIDS), medical condition (cancer), age, marital status, and denial
of family care leave. Contractor and subcontractors shall insure
that the evaluation and treatment of their employees and
applicants for employment are free from such discrimination and
harassment. Contractor and subcontractors shall comply with the
provisions of the Fair Employment and Housing Act (Government
Code, Section 12990 et seq.) and the applicable regulations
promulgated thereunder (California Code of Regulations, Title 2,
Section 7285.0 et seq.). The applicable regulations of the Fair
Employment and Housing Commission implementing
Government Code Section 12990 (a-f), set forth in Chapter 5 of
Division 4 of Title 2 of the California Code of Regulations are
incorporated into this Contract by reference and made a part
hereof as if set forth in full. Contractor and its subcontractors
shall give written notice of their obligations under this clause to
labor organizations Yv'ith which they have a collective bargaining
or other agreement.
b) The Contractor shall include the nondiscrimination and compliance
provisions of this clause in all subcontracts to perform work
under the Contract.
47, NATIONAL LABOR RELATIONS BOARD CERTIFICATION:
Contractor swears under penalty of pe~u'Y that no more than one
final, unappealable finding of contempt of court by a federal court has
been issued against the Contractor within the immediately preceding
two-year period because of the Contractor's failure to comply with an
order of the National Labor Relations Board. This provision is
required by, and shall be construed in accordance with, PCC Section
10296.
48. ASSIGNMENT OF ANTITRUST ACTIONS: Pursuanlto Government
Code Sections 4552, 4553, and 4554, the following provisions are
incorporated herein:
a) In submitting a bid to the State, the supplier offers and agrees that
Revis/on 8/1012009 (GSPD-401/T based on Aprl/12, 2007)
ifthe bid is accepted, it will assign to the State all rights, title, and
interest in and to all causes of action it may have under Section 4
of the Clayton Act (15 U.S.C. 15) or under the Cartwright Act
(Chapter 2, commencing with Section 16700, of Part 2 of
Division 7 of the Business and Professions Code), arising from
purchases of Goods, material or other items, or services by the
supplier for sale to the State pursuant to the solicitation. Such
assignment shall be made and become effective at the time the
State tenders final payment to the supplier.
b) If the State receives, either through judgment or settlement, a
monetary recove'Y for a cause of action assigned under this
chapter, the assignor shall be entitled to receive reimbursement
for actual legal costs incurred and may, upon demand, recover
from the State any portion of the recovery, including treble
damages, attributable to overcharges that were paid by the
assignor but were not paid by the State as part of the bid price,
less the expenses incurred in obtaining that portion of the
recovery.
c) Upon demand in writing by the assignor, the assignee shall, within
one year from such demand, reassign the cause of action
assigned under this part if the assignor has been or may have
been injured by the violation of raw for which the cause of action
arose and
(i) the assignee has not been injured thereby, or
(Ii) the assignee declines to file a court action for the cause of
action.
49. DRUG-FREE WORKPLACE CERTIFICATION: The Contractor
certifies under penalty of perjury under the laws of the State of
California that the Contractor will comply with the requirements of the
Drug-Free Workplace Act of 1990 (Government Code Section 8350 et
seq.) and will provide a drug-free workplace by taking the following
actions:
a) Publish a statement notifying employees that unlawful manufacture,
distribution, dispensation, possession, or use of. a controlled
substance is prohibited and specifying actions to be taken
against employees for violations, as required by Government
Code Section 8355(a).
b) Establish a Drug-Free Awareness Program as required by
Govemment Code Section 8355(b) to infonn employees about all
of the following:
(i) the dangers of drug abuse in the workplace;
(ii) the person's or organization's policy of maintaining a drug~
free workplace;
(iii) any available counseling, rehabilitation and employee
assistance programs; and,
(iv) penalties that may be imposed upon employees for drug
abuse violations.
c) Provide, as required by Government Code Section 8355(c), that
eve'Y employee who works on the proposed or resulting
Contract:
(i) will receive a copy of the company's drug-free policy
statement; and,
(ii) will agree to abide by the tenns of the company's statement
as a condition of employment on the Contract.
50, FOUR-DIGIT DATE COMPLIANCE: Contractor warrants that
it will provide only Four-Digit Date Compliant (as defined below)
Deliverables and/or services to the State. "Four Digit Date
Complianr Deliverables and services can accurately process,
calculate, compare, and sequence date data, including without
limitation date data arising out of or relating to leap years and
changes in centuries. This warranty and representation is
subject to the warranty terms and conditions of this Contract
and does not limit the generality of warranty obligations set forth
elsewhere herein.
Page 9 of 10
2010-21
GSPD-401IT
WESTERN STATES CONTRACTING ALLIANCE (WSCA)
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES (2009-2014)
DELL MARKETING, L.P,(B27160)
GENERAL PROVISIONS
subdivision (a) of pee Section 10295.1.
51, SWEATFREE CODE OF CONDUCT:
a) Contractor declares under penalty of pe~ury that no equipment,
materials, or supplies furnished to the State pursuant to the
contract have been produced in whole or in part by sweatshop
labor, forced labor, convict labor, indentured labor under penal
sanction, abusive fanns of child labor or exploitation of children
in sweatshop labor, or with the benefit of sweatshop labor, forced
labor, convict labor, indentured labor under penal sanction,
abusive fanns of child labor or exploitation of children in
sweatshop labor. Contractor further declares under penalty of
pe~ury that they adhere to the Sweatfree Gode of Conduct as set
forth on the California Department of Industrial Relations website
located at www.dir.ca.cov and Public Contract Code Section
6108.
b) Contractor agrees to cooperate fully in providing reasonable access
to its records, documents, agents or employees, or premises if
reasonably required by authorized officials of the State, the
Department of Industrial Relations, or the Department of Justice
to determine Contractor's compliance with the requirements
under paragraph (a).
52. RECYCLING: The Contractor shall certify in writing under penalty of
pe~ury, the minimum, if not exact, percentage of post consumer
material as defined in the Public Contract Code Section 12200, in
products, materials, goods, or supplies offered or sold to the State
regardless of whether the product meets the requirements of Section
12209. With respect to printer or duplication cartridges that comply
with the requirements of Section 12156(e), the certification required
by this subdivision shall specify that the cartridges so comply (PCC
12205).
57, EXPATRIATE CORPORATIONS: Contractor hereby declares
that it is not an expatriate corporation or subsidiary of an expatriate
corporation within the meaning of PCC Sections 10286 and 10286.1.
and is eligible to contract with the State.
58, DOMESTIC PARTNERS: For contracts over $100,000 executed
or amended after January 1, 2007, the contractor certifies that the
contractor is in compliance with Public Contract Code section
10295.3.
53. CHILD SUPPORT COMPLIANCE ACT: For any Contract in excess of
$100,000. the Contractor acknowledges in accordance with PCC
Section 7110, that
a) The Contractor recognizes the importance of child and family
support obligations and shall fully comply with all applicable
State and federal laws relating to child and family support
enforcement. including, but not limited to, disclosure of
information and compliance with earnings assignment orders, as
provided in Chapter 8 (commencing with Section 5200) of Part 5
of Division 9 of the Family Code; and
b) The Contractor, to the best of its knowledge is fully complying with
the earnings assignment orders of all employees and is providing
the names of all new employees to the New Hire Registry
maintained by the California Employment Development
Department.
54. AMERICANS WITH DISABILITlES ACT: Contractor assures
the State that Contractor complies with the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq).
55. ELECTRONIC WASTE RECYCLING ACT OF 2003: The Contractor
certifies that it complies with the requirements of the Electronic Waste
Recycling Act of 2003, Chapter 8.5, Part 3 of Division 30,
commencing with Section 42460 of the Public Resources Code,
relating to hazardous and solid waste. Contractor shall maintain
documentation and provide reasonable access to its records and
documents that evidence compliance.
56. USE TAX COLLECTION: In accordance with pec Section
10295.1, Contractor certifies that it complies with the requirements of
Section 7101 of the Revenue and Taxation Code. Contractor further
certifies that it will immediately advise State of any change in its
retailer's seller's permit or certification of registration or applicable
affiliate's seller's permit or certificate of registration as described in
Revision 8/1012009 (GSPD-401IT based on April 12, 2007)
Page 10 of 10