HomeMy WebLinkAbout2004-02-23 Regular Meeting• ~
• . .
MINUTES OF REGULAR MEETING
OF THE LA PORTE CITY COUNCIL
February 23, 2004
1. CALL TO ORDER
The meeting was called to order by Mayor Norman Malone at 6:00 p.m.
Members of City Council Present: Councilmembers Chuck Engelken, Howard Ebow, Charlie Young, Barry
Beasley, Mike Mosteit, Peter Griffiths, Norman Malone, and Bruce Meismer
Members of Council Absent: James Warren
Members of City Executive Staff and Citv Employees Present: City Manager Debra Feazelle, Assistant City
Manager John Joerns, Assistant City Manager Cynthia Alexander, Assistant City Attorney John Armstrong,
Interim Planning Director Nick Finan, City Secretary Martha Gillett, Public Works Director Steve Gillett,
Assistant Parks and Recreation Director James Eastep, Parks and Recreation Director Stephen Barr,
Purchasing Manager Susan Kelley, Fire Chief Mike Boaze, Assistant Fire Chief John Dunham, City
Manager's Administrative Assistant Crystal Scott and Police Chief Richard Reff
Others Present: Fred Allen, Lacy Moore, Spero Pomonis, Ricky Turner, Sue Gale Mock Kooken, Linden
Reimer, Carroll Pruitt, H. Carlos Smith, Tommy Moser, Bill Scott, Zendy Ornelas, Whittney Long, Karin
Wright, Andrea Whittington, Ruben F. Hernandez, Chase Light, Daniel K. Robinson, Rodney Lewis, Brandon
Nolen, Casey Cervanez, Veronica Contreras, Lionel Garcia, Anthony Reynolds, Joseph Hernandez, Jack
Sykes, Mike Clausen, Amanda M. Miller, Eddie Hollub, Justin Lundolt, Assanti Anderson, Adrian Anderson,
Carol Christian of the "Houston Chronicle This Week", Charlie Doug Boyle, Nick Barrera and a number of
other citizens and students.
2. Mayor Malone delivered the invocation.
3. Mayor Malone led the Pledge of Allegiance.
4. CONSENT AGENDA
A. Council to consider approval or other action regarding a resolution providing for a voluntary contribution
program through the City's utility billing system to supplement the funding of a BicycleJPedestrian Trail
System, and beautification projects for the City of La Porte.
B. Council to consider approval or other action regarding an ordinance authorizing the City Manager to
execute an agreement with Claunch and Miller, Inc. to provide professional engineering services for
rehabilitation of Lift Station Number 9 in the amount of $39,210.
C. Council to consider approval or other action regarding an ordinance authorizing the City Manager to
execute an agreement with Freese and Nichols, Inc. to provide professional engineering services for a
preliminary engineering report for utilities along Bayshore Drive in the amount of $16,390.
D. Council to consider approval or other action regarding approval of recommendation of Fleet Safety
Emergency Equipment for Patrol Car bids.
E. Council to consider approval or other action of the February 9, 2004 City Council Regular Meeting and
Public Hearing Minutes.
Motion was made by Councilmember Engelken to approve the Consent Agenda as presented. Second by
Councilmember Young. The motion carried.
City Council Regular Meeting - Febr~ 23, 2004 -Page 2 •
Ayes: Engelken, Beasley, Griffiths, Mosteit, Young, Ebow, Meismer and Malone
Nays: None
Abstain: None
5. PETITIONS, REMONSTRANCES, COMMUNICATIONS, AND CITIZENS AND
TAX PAYERS WISHING TO ADDRESS COUNCIL ON ANY ITEM POSTED ON THE
AGENDA
Cazlos Smith of 1003 East D Street, La Porte, Texas 77571, commented that a member of Council has a severe
conflict of interest on the code selection. Mr. Smith suggested that Councilmember Mosteit, in all good
consciousness, absent himself from this Council, Chamber and refrain from voting or discussing the code
selection.
Carroll Pruitt of 5936 Lomita Verde Circle, Austin, Texas 78749, with Pruitt Associates, represents the
International Code Council. The City has an important decision to make tonight. ICC has previously
presented information to you regarding the ICC Codes. As Code Consultant and representing the ICC, he
strongly encourages you to put extreme consideration of the ICC.
Rodney Lewis, PE, 6150 Richmond, Suite 228, Houston, Texas 77057, is a consulting engineer in Houston,
Texas, and practices all over Harris, Chambers and Galveston County, and has for over thirty yeazs. Mr.
Lewis is significantly involved in building codes and strongly recommends that you follow recommendations
of your Committee and adopt the C3 Codes.
Linden Raimer of 21316 Pat O'Brien Road, Covington, Louisiana, 70435, would like to thank Council and
Mayor for having the Committee review and compare both Codes. Mr. Raimer understands there was some
discussion regarding the difference in the costs of the two codes. He recently attended a SARS Conference in
California with the World Plumbing Code Council; one of the items discussed was trap seals. Trap seals were
being lost, this was one of the things that bred the SARS disease in China. It is very important to maintain a
trap seal. Another item in the discussion regarding cost was the air admittance valve, and not having the vent
pipe extend through the roof. Air admittance valves replace vents, one of the reasons the Uniform Plumbing
Code did not allow it is because it only allowed for negative pressure, not positive pressure. Since we
addressed the positive pressure, the one that just addresses negative pressure is the reason they did not allow it
in the Uniform Plumbing Code. There has to be positive pressure to protect the seal from ruining. The
average cost per house per house saved $30 to extend the vent up through the roof. Mr. Raimer realizes that
air admittance valves without the positive portion may have problems later on. Can the constituents be
informed of the consequences of a trap seal without the positive portion? Mr. Raimer reviewed there training
courses, which will be of no chazge. If Council adopts the C3 Codes tonight, Mr. Raimer ensured Council
they do not have to change the structure of the Fire Department.
Tommy Moser of 402 S. Virginia, La Porte, Texas 77571, was selected to be on the Ad Hoc Committee,
meeting for 15 weeks. Part of the process was drawing information and data. The Committee studied, broke
down, reviewed and discussed the costs, and reviewed the complexity of installation and the methods, and they
weighed it all out at the table. The vote was divided and it was not a majority, but you probably never will get
a majority. When the Committee began, Mr. Moser was in favor of the ICC Codes. After they started
reviewing the books, and the actual wording in the books, they determined the C3 Codes aze better for the
citizens. La Porte needs to lead, not follow.
Bill Scott of 1802 Lomax School Road, La Porte, Texas 77571, on August 25, 2003, Mr. Scott showed
Council photos, like these taken six days ago after five days of dry weather. As a refresher, the photos at the
bottom show the Blackwell's nice, dry and shallow ditch, just north of the Scott's,. Mr. Scott also pointed out
Mr. Blackwell's illegal 100' culvert, which the City knows about. The culvert is illegal on three counts; too
small in diameter, 100' length, Blackwell installed it on City property and the City knew about the violations.
Compaze that nice, shallow, dry ditch of the Blackwell's to our ditch, just south of it. These were taken six
days ago. At the top you will see a 2' framing squaze, that ditch is 4' across, filled with water about 9-10"
City Council Regular Meeting - Febr~ 23, 2004 -Page 3 •
deep. This 4'S" gully, the City dug in front of our property, is on the same street, under the same drainage
scenario as the Blackwell's nice shallow ditch with the illegal culvert. This gully stands in water a lot because
the City came back and dug the gully even deeper than it already was; while they did not clean out the City
culvert and ditch, which was at the root of the problem. In fact, they dug their ditch so deep that it was below
the level of the City culvert that it drains into so the water stands. This gully exists because the City took care
of the Blackwell's to the north of us, but they also took care of them to the south by making the entrance to
their feedlot a drainage high point; even though our property is the physical middle of the drainage, the higher
elevation and the logical high point. When they started down south to make Blackwell's the high point, by the
time they got to us, we had a 5' deep ditch. A few months after I brought this injustice to Council, the City
responded by digging the ditch in front of our property even wider. The obvious 2646 questions are: Why did
the City help Bobby Blackwell violate the law? Why did the City dig the ditch wider in front of their property
when they knew it was too wide and too deep already? Justice demands that Mr. Scott get the same justice as
the Blackwell's.
Eddie Hollub of 4828 Pine, Pasadena, Texas, Modern Plumbing Company (a non-union shop), would like to
stop some rumors real quick. First of all, the codes are union and non-union, but that shouldn't be the issue. A
good quality code that we all live by is a very fair playing field. The C3 Code has stood up for years, a good
code. If a job fails, it is on him. The code protects him, his company and his family.
Bill White of 10331 Collingswood, La Porte, Texas 77571, has been in the construction business for over 60
years. During that time, the ICC codes always did their job, they are developed to give the minimum amount
and you can always go above it. Mr. White highly recommends that you keep the ICC codes.
6. Council to consider approval or other action regarding an ordinance authorizing the City Manager to execute a
Pipeline Adjustment Agreement with Kinder Morgan Tejas Pipeline, L.P. for $516,321.
Public Works Director Steve Gillett presented summary and recommendation and answered Council's
questions.
Assistant City Attorney read: ORDINANCE 2004-2706 - AN ORDINANCE APPROVING AND
AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND KINDER MORGAN
TEJAS PIPELINE, L.P., TO PROVIDE PIPELINE ADJUSTMENTS FOR THE CANADA ROAD
PROJECT; APPROPRIATING THE SUM NOT TO EXCEED $516,321.00, TO FUND SAID CONTRACT;
MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING
COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE
HEREOF.
Motion was made by Councilmember Engelken to approve Ordinance 2004-2706 as presented by Mr. Gillett.
Second by Councilmember Ebow. The motion carved.
Ayes: Engelken, Beasley, Griffiths, Mosteit, Young, Ebow, Meismer and Malone
Nays: None
Abstain: None
7. Council to consider approval or other action regarding approving a Construction Code Adoption Ordinance.
Ad~ Hoc Committee Chairman Mike Clausen informed Council he had no additional comments since his last
address to Mayor and Council. He informed Mayor and City Council the majority of the Ad Hoc Committee
.recommends the~C3 Codes.
Assistant City Attorney John Armstrong read: ORDINANCE 96-2079-B - AN ORDINANCE ADOPTING
NEW BUILDING CODES BY AMENDING CHAPTER 82 OF THE CODE OF ORDINANCES OF THE
CITY OF LA PORTE; BY AMENDING CHAPTER 82, "BUILDINGS AND BUII,DING REGULATIONS",
ARTICLE II "BUILDING CODES", SECTION 82-31 "ADOPTION'; SECTIONS 82-32
City Council Regular Meeting - Febr~ 23, 2004 -Page 4
AND 82-33 "AMENDMENTS"; CHAPTER 82 "BUILDINGS AND BUII.DING REGULATIONS,"
ARTICLE III "PLUMBING CODE: SECTION 82-66 "ADOPTION" AND SECTION 82-67
"AMENDMENTS"; CHAPTER 82 "BUILDINGS AND BUILDING REGULATIONS," ARTICLE N
"ELECTRICAL CODE" DNISION 5 "STANDARDS", SECTION 82-336 "ADOPTION"; CHAPTER 82
"BUILDINGS AND BUILDING CODE REGULATIONS," ARTICLE V "FUEL GAS CODE" SECTION
82-381 "ADOPTION'; CHAPTER 82 "BUILDINGS AND BUII,DING REGULATIONS," ARTICLE VI
"ENERGY CONSERVATION CODE" ADDING SECTION 82-411 "PURPOSE", SECTION 82-412
"ADOPTION", AND SECTION 82-413 "AMENDMENTS"; CHAPTER 82 "BUII,DINGS AND BUILDING
CODE REGULATIONS", ARTICLE VII "MECHANICAL CODE" SECTION 82-441 "ADOPTION";
PROVIDING A REPEALING CLAUSE; CONTAINING A SAVINGS CLAUSE; FINDING COMPLIANCE
WITH THE OPEN MEETINGS LAW; PROVIDING A SEVERABILTTY CLAUSE; PROVIDING THAT
ANY PERSON VIOLATING THE TERMS OF THIS ORDINANCE SHALL BE DEEMED GUILTY OF A
MISDEMEANOR AND UPON CONVICTION SHALL BE FINED IN A SUM NOT TO EXCEED TWO
THOUSAND DOLLARS; AND PROVIDING AN EFFECTNE DATE HEREOF.
Motion was made bYCouncilmemberBeasfey to approve the committee recommendation to approve the C3
Codes. Second by Councilmember Ebow. There was a tie vote.
Ayes: Mosteit, Ebow, Beasley and Malone
Nays: Griffiths, Engelken, Young and Meismer
Abstain: None
Due to a tie vote, Mayor and Council took a break at 6:40 and reconvened at 6:48.
Assistant City Attorney John Armstrong read: Ord. 96-2079-B- AN ORDINANCE ADOPTING NEW
BUILDING CODES BY AMENDING CHAPTER 82 OF THE CODE OF ORDINANCES OF THE CITY OF
LA PORTS; BY AMENDING CHAPTER 82, "BUILDINGS AND BUILDING REGULATIONS,"
ARTICLE II "BUILDING CODES," SECTION 82-31 "ADOPTION'; SECTIONS 82-32 AND 82-33
"AMENDMENTS" ;CHAPTER 82 "BUILDINGS AND BUII,DING REGULATIONS," ARTICLE III
"PLUMBING CODE" SECTION 82-66 "ADOPTION" AND SECTION 82-67 "AMENDMENTS"'
CHAPTER 82 "BUILDINGS AND BUII,DING REGULATIONS, " ARTICLE N "ELECTRICAL CODE"
DNISION 5 "STANDARDS," SECTION 82-336 "ADOPTING"; CHAPTER 82"BUII,DINGS AND
BUILDING REGULATIONS," ARTICLE V "FUEL GAS CODE" SECTION 82-381 "ADOPTION" AND
SECTION 82-382 "AMENDMENTS"; CHAPTER 82 "BUILDINGS AND BUILDING REGULATIONS,"
ARTICLE VI "ENERGY CONSERVATION CODE" ADDING SECTION 82-411 "PURPOSE," SECTION
82-412 "ADOPTION," AND SECTION 82-413 "AMENDMENTS"' CHAPTER 82 "BUILDINGS AND
BUILDING CODE REGULATIONS," ARTICLE VII "MECHANICAL CODE" SECTION 82-441
"ADOPTION," AND SECTION 82-442 "AMENDMENTS"; PROVIDING A REPEALING CLAUSE;
CONTAINING A SAVINGS CLAUSE; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW;
PROVIDING A SEVERABII,ITY CLAUSE; PROVIDING THAT ANY PERSON VIOLATING THE
TERMS OF THIS ORDINANCE SHALL BE DEEMED GUILTY OF A MISDEMEANOR AND UPON
CONVICTION SHALL BE FINED IN A SUM NOT TO EXCEED TWO THOUSAND DOLLARS; AND
PROVIDING AN EFFECTNE DATE HEREOF.
Motion was made by Councilmember Beasley to approve the committee recommendation to approve the C3
Codes.
Assistant City Attorney John Armstrong informed the Mayor and City Council that on a motion to reconsider,
the motion has to be made by a member of the losing side.
Motion was made by Bruce Meismer to approve the ICC Codes. Second by Peter Griffiths. There was a tie
vote.
City Council Regular Meeting - Febr~ 23, 2004 -Page 5 •
Ayes: Engelken, Griffiths, Young and Meismer
Nays: Beasley, Mosteit, Ebow and Malone
Abstain: None
.Councilmember Meismer stated he would like the record to reflect that the Mayor did not raise his hand when
he signified which way he was intending to vote.
Additionally, Mr. Meismer requested Ms. Gillett show the record to reflect that the question had been asked
and the answer had been given by Assistant City Attorney John Armstrong that according to Roberts Rules of
Order and the City's Council Procedure Ordinance, the Mayor can make or break a tie.
Mayor Malone noted this item would be placed on the next City Council Meeting.
8. Council and Staff received a report regarding the Governor's Challenge, "Fit to be a Texan", the "Texas
Roundup" from Mayor Malone and Assistant Director of Parks and Recreation James Eastep gave direction
regarding Tree City, USA. It was the consensus of Council to move forward with this item.
9. Council and Staff received a report from Public Works Director Steve Gillett regarding repair/replacement of
the street sweeper.
It was the consensus of Mayor and City Council for Mr. Gillett to move forward with the replacement of the
street sweeper.
10. Council and Staff received a report from Assistant City Manager Cynthia Alexander regarding the TML Task
Force on the impact of school finance reform.
11. ~ Council and Staff received a report from Administrative Assistant to the City Manager Crystal Scott regarding
"Best Managed Cities" award.
The video was shown to Mayor, City Council and citizens present.
12. ADMINISTRATIVE REPORTS
City Manager Debra Feazelle reminded Council and Staff of the 2003 Service Awards Breakfast on Tuesday,
February 24, 2004, at 8:30 a.m. in Council Chambers; the Bay Area Transportation Partnership -Texas
Department of Transportation on Tuesday, February 24, 2004, from 5:30 p.m. unti17:30 p.m. at the Johnson
Space Center; the Chamber of Commerce Casino by the Bay on Friday, February 27, 2004, at 6:30 p.m. at
Sylvan Beach Pavilion; and the Parks and Recreation Mystery Dinner Theater on Friday, March 5, 2004, at
7:00 p.m. at the Evelyn Kennedy Recreation Facility. Additionally, Ms. Feazelle noted not everyone would be
present at the next Council meeting and wanted clarification that the Codes item would be placed on a future
agenda when all of Mayor and City Council, as well as Legal Counsel, would be present. Mayor and City
Council were in agreement.
13. COUNCII. COMMENTS
Councilmembers Engelken, Griffiths, Beasley, Ebow, Malone, Meismer, Young and Mosteit had comments.
proud to live in the City of La Porte, and proud the City earned the title of "The Best Managed City".
14. EXECUTIVE SESSION -PURSUANT TO PROVISION OF THE OPEN MEETINGS LAW,
CHAPTER 551.071 THROUGH 551.076, 551.086, TEXAS GOVERNMENT CODE,
(CONSULTATION WITH ATTORNEY, DELIBERATION REGARDING REAL PROPERTY,
DELIBERATION REGARDING PROSPECTIVE GIFT OR DONATION, PERSONNEL MATTERS,
DELIBERATION REGARDING SECURITY DEVICES, OR EXCLUDING A WITNESS DURING
EXANIINATION OF ANOTHER WITNESS IN AN INVESTIGATION, DELIBERATION
REGARDING ECONOMIC DEVELOPMENT NEGOTIATIONS.
City Council Regular Meeting - Febr~ 23, 2004 -Page 6 •
551.072 - (Land Acquisition) -Meet with City Manager and City Attorney to discuss land acquisition.
551.074 - (Personnel Matter) -City Manager Evaluation
551.086 -(Economic Development) -Meet with City Manager.and City Attorney to discuss economic
development matter.
Council retired to Executive Session at 7:35 p.m.
15. CONSIDERATIONS AND POSSIBLE ACTION ON ITEMS CONSIDERED IN EXECUTIVE
SESSION
There was no action taken during Executive Session.
16. There being no further business to come before Council, the Regular Meeting was duly adjourned at 9:20 p.m.
Respectfully submitted, ~~/~
G~(i~~~~:~%Gti~
Martha Gillett
City Secretary
Passed and approved on this 8th day of March 2004.
I?,~-her 6 r i -~d~i~ /~wa, ~ n r Pro rt P rn
~' ~~.
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REQUEST FOR CITY COUNCIL AGENDA ITEM
Agenda Date Requested: March 2004
,.
Requested By: Lar Mabe
Department: I
Report: X Resolution: Ordinance:
Exhibits: Project Scope
Exhibits: DIR Contract
Ezhibits•
Appropriation
Source of l±~nds: TECHNOLOGY FUND
Account Number: 23-6066-519-80.23
Amount Budgeted: 530,000
Amount Requested: $30,000
Budgeted Item: (YES) NO
SUMMARY & RECOIVIlI~NDATION
In the past, City staff submitted a Request for Proposal .in order to receive pricing for computer support and
consulting services.
In an effort to minimize staff time and effort on researching services that are comparable, staff is n~uesting
approval to obtain technical consulting :arid. project management services from the State of Texas Department of
Information Resources (D1R). The City will utilize an interlocal agreement with the State of Texas approved by
City Council on July 12, 1994.
Project management and consulting services will be used for the City's migration from Windows NT Server
platform to Windows 2003 Server platform.
Staff intends on using services that are available from SBC in accordance w/contract # DIR-BUSOP-011 between
the State of Texas, Dept of Information Resources and SBC Communications (SBC).
Staff Recommendation:
Action Required by Council:
Approve utilization of interlocal agreement and expenditure of computer funds to State of Texas Department of
Information Resources.
ADDrOVed for Ci Council A ends
~'~
Debra B. Fazealle City Manager Date .
• •
Migration Pro)ect Scope
Phase I: Pro)ect Planning
SBC will provide initial on-site support for two weeks to work with the City of La Porte to investigate the
business needs, current operating environment, existing processes and procedures, and existing network
and information infrastructure configurations and capabilities to formulate a set of realistic and
incremental network and systems tasks. The results of this analysis and planning will allow SBC and City
of'La Porte to identify business objectives and design a technology solution and project plan aligned with
those requirements. As time permits, SBC will review with the City of La Porte at a high level the following
items:
Planning Approach
• Review organizational structure
• Review and identify Information Security policies required for the design
• Identify and document'current network infrastructure, including auxiliary services (DNS,
DHCP, and WINS)
• Identify enterprise operating systems accessed by client computers
• Review server and workstation configurations including applications, services, and naming
standards
• Print Architecture
• Review wide- and local- area network infrastructures
• Identify messaging infrastructures, naming conventions, and future messaging requirements
• Identify operating system administration model
• Identity network and enterprise operating system security model
• Identify desktop policies and features
• Identify and document hardware requirements
Design Approach
• Conduct whiteboard design strategy sessions to include but limited to:
o Forest Architecture
o Domain Structure
o OU Model
o Security and Group Policies
o Active Directory Site Design
o Administration Model
o provide options for design
• Conduction Upgrade /Migration Planning sessions to include but not limited to:
o NT Domains '
o Users, Groups, SIDS, Permissions
o Desktop Profiles .
o Email: Mailbox data, Public Folder, and Calendar information
• Develop Template for Design Documentation
• Create high-level Project Plan to include:
o Planning, Design, Implementation Tasks
Phase II Mlgrotlon Asslstanco
SBC will provide on-site support to the City of La Porte for one week during the migration /Upgrade
process. As time permits, SBC will work with the City of La Porte during the pilot/migration on the
following areas:
• Assist in deployment of core Windows 2003 servers (DC, GC, DNS, WINS, Exchange 2003, and FSMO
role servers)
• Pilot the upgrade /migration from Windows NT Account Domains and Exchange 5.5 to Active Directory
• Perform Risk Analysis of pilot users
• Provide technical supportftroubleshoot support during core deployment
• Collect and analyze pilot results, adjust and finalize deployment procedures
• Document results of Pilot
• Update Project Plan for to include plan and schedule for implementing Active Directory to all City of La
Porte's locations
•
Phase III nalning end Opolratlons SuppoK
SBC will provide an additional week of on-site support to the City of LaPorte to assist with the development of
procedures for operating and maintaining a healthy Directory Service in City of La Porte's environment.
As time permits, the following areas will be covered:
• Recommendations of in-house tools and potential third party products such as BMC, Quest Software, and
NetIQ to monitor and manage Windows 2003 servers
• Provide standard procedures to backup and restore all types of Windows 2003 servers utilizing City of La
Porte' current backup and recovery toolset
• Training support engineers for Windows 2003 management and features
• Training support engineers for F~cchange 2003 features and administrative support
DIR Contract Number: DIR-BUSOP-011
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
VOLUME PRICING CONTRACT
SBC Communications, Inc.
This VOLUME PRICING CONTRACT for the acquisition of Cisco products and related services is
entered into between the State of Texas, acting by and through the Department of Information Resources
with its principal place of business at 300 West 15'~ Street, Suite 1300, Austin, Texas 78701, and SBC
Communications, Inc. (SBC), with its principal place of business at 712 East Huntland Drive., Room 329,
Austin, Texas 78752.
1. Contract Scope~and Term
This Contact sets forth the terms and conditions governing the acquisition of Cisco products and
related services. Terms used in this document shall have the meanings set forth below in Section
2, Definitions. This Contact is available for use by all Customers.
The term of this Contract shall be two (2) years commencing on September 1, 2003. Prior to
expiration of the original term, the parties may renew this contract, upon approval of DIIt, for up
to two (2) optional one-year terms. Upon termination of this Contract, all rights and obligations
set forth herein shall survive in accordance with their terms as to procurements made by
Customers prior to such termination.
2. Definitions
Terms used in this Contact shall have the following meanings:
A. DIR -the Department of.Information Resources.
B. Castomer -any Texas state agency and local government as defined in Section 2054.003,
Texas Government Code (including institutions of higher education as defined in Texas
Education Code, Section 61.003), and those state agencies purchasing from a DIR contract
through an Interagency Agreement, as authorized by Chapter 771, Texas Goverment Code.
C. Reseller -SBC Communications, Inc. The distributor, dealer, or value-added Reseller
designated by DIR who is the distribution source for the Products included under this
Contract.
D. Product -any Information Resources Technology item included under this Contract.
Product may include any pre-loaded sof3ware necessary for operation.
E. Services -any value-added servicet,that the Reseller may perform as related, to products
available under this Contract.
F. State Contract Adnnistrator. - the individual as appointed by DIR to administer this
Contact on behalf of the State of Texas and the Customers.
G. Reseller Contract Administrator -the individual as appointed by the Reseller to administer
this Contact on behalf of the Resellers.
H. Adminfstrative Fee -the 'fee used to defray DIR's cost of negotiating, executing and
administering this contract.
I. Purchase Order -the Customer's fiscal form or format, which is used when malting a
purchase (e.g., formal written Purchase Order, Procurement Card, Electonic Purchase Order,
or other authorized instrument).
J. Information Resources Technology (Technoiogles) - as defined in Texas Government
Code §2054.003.
•
DIR Contract Number: DIR-BUSOP-011
K. Day Shall mean business days, Monday through Friday, except for State and Federal
holidays. If the Contract calls for performance on a day that is not a business day, then
performance is intended to occur on the next business day.
L. State -refers to the State of Texas.
M. Go DIRect Coordinator -refers to the individual appointed by DIR to administer and
collect the Contract reporting data on behalf of the State and the authorized Customers.
3. Entire Agreement and Order of Precedence
This Contract; Appendix A, Standazd Clauses for Texas DIR Contracts; Appendix B, HUB
Subcontracting Plan; Appendix C, Pricing Index; and Appendix D, Texas Marketplace Posting,
D1R-TMP-03-029, constitute the entire agreement between the parties hereto. In the event of a
conflict between the documents listed in this paragraph, the controlling document shall be this
Contract, then Appendix A, then Appendix B, then Appendix C, and finally Appendix D. No
statement, promise, condition, understanding, inducement or representation, oral or written,
expressed or implied, which is not contained herein shall be binding or valid. This Contract shall
not be changed, modified or altered in any manner except by an instrument in writing executed by
both parties hereto, with the approval of DIR.
The terms and conditions set forth herein shall govern all transactions by Customers under this
Contract. Customers shall not have the authority to modify the terms of this Contract, except as to
receive better terms or pricing for a particulaz procurement than those set forth herein. In such
event, Reseller shall furnish a copy of such better offerings to DIR upon request. No additional
term or condition of a purchase order issued by a Customer can weaken a term or' condition of
this Contract. In the event of a conflict between a Customer's Purchase Order and this Contract,
the Contract term shall control.
4. Product and Service Offerings
Products available under. this Contract are set forth as any Information Resources Technology
item listed within Appendix C, Pricing Index and Product Offering. Services include any value=
added service that the Reseller may perform as related to products available under this Contract.
A. Products
Reseller will maintain a product list including pricing, product descriptions, ;and product
specifications for all products offered under this Contract. The product list may be updated at
any time during the term of this Contract to incorporate product model changes or product
upgrades, addition of new products, and removal of obsolete or discontinued products.
B. Services
Reseller will maintain a list including pricing and descriptions for all services offered under
this Contract. The services list may be updated at any time during the term of this Contract to
incorporate changes to the service offering.
5. Contract Administration
DIR and the Reseller will each provide a Contract administrator to support this Contract.
Information regarding the Contract administrators will be posted on the Internet web site
designated for this Contract.
A. State Contract Administrator
DIR shall provide a Contract administrator whose duties shall include but not be limited to: i)
supporting the marketing and management of this Contract, ii) advising DIR of Reseller's
performance under the terms and conditions of this Contract, and iii) periodic verification of
product pricing and monthly reports submitted by the Reseller.
2
•
DIR Contract Number: DIR-BUSOP-011
B. Reseller Contract Administrator
Reseller shall provide a dedicated Contract administrator whose duties shall include but not
be limited to: i) supporting the marketing and management of this Contract, ;ii) facilitating
dispute resolution between the Reseller and a Customer, and iii) advising DIR of Reseller's
performance under the terms and conditions of this Contract. DIR reserves the right to require
a change in Reseller's then-current contract administrator if the assigned administrator is not,
in the opinion of DIR, adequately serving the needs of the State.
6. Geographic Coverage
Reseller shall provide service, sales and support resources to serve Customers at multiple
geographic purchasing locations throughout the State of Texas.
7. Pricing
If Reseller offers and makes sales of products and services at a higher rate of discount, based on a
quantity of one, from that specified in this Contract, to an eligible DIR Customer, other entity or
consortia authorized by Texas law to sell products and services available under this Contract to
eligible DIR Customers, then the available discount levels in this Contract shall automatically be
adjusted to that higher discount rate. Vendor may respond to any Request for Offer (RFO) from
an eligible DIR Customer that maybe posted on the Electronic State Business Daily of the Texas
Marketplace. Vendor shall first inform the eligible Customer. of its ability to procure through this
contract prior to submitting a response to the Customer's RFO.
A. Customer Discount
Based on a quantity of one (1), the Customer discount from the Reseller for all Products and
Services will be a percentage off the Manufacturer's Suggested Retail Price (MSRP), as listed
and set forth in Appendix C, Pricing Index. Customer may negotiate more advantageous
pricing for lazge volume purchases with the Reseller.
DIR intends to enter into an agreement with Cisco Systems, Inc. for statewide discounts.
Reseller hereby agrees, upon completion of the agreement between Cisco and DIR, to
renegotiate the pricing structure granted to the Customer under this.Contract.
B. DIR Administrative fee
The DIR administrative fee specified in Section 10, Reporting and Administrative Fees, shall
be included in the Customer Discount set forth herein. The administrative fee shall not be
broken out as a separate line item when pricing or invoice is provided to Customer.
C. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling fees.
Shipments will be F.O.B. Customer's destination. No additional fees shall be chazged to the
Customer for j standard shipping and handling. If the Customer requests expedited delivery,
Customer will~be responsible for any charges for expedited delivery.
D. Tax-Exempt
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt from the
assessment of State sales, use and excise taxes. Further, Customers under this Contract are
exempt from Federal Excise Taxes, 26 USC Secs. 4253(1) and (j).
E. Changes to Prices
Reseller may change the price of any product or service at any time, based upon changes to
the Manufacturer's Suggested Retail Price, but discount levels shall remain consistent with
a •
DIR Contract Number: DIR BUSOP-011
the discount levels specified within Appendix C, Pricing Index. Price decreases shall take
effect automatically during this Contract tens and Reseller shall pass all price decreases on to
the Customer.
Reseller may make product model changes and add new products or product upgrades at any
time and the pricing for the same shall incorporate comparable price discount levels as
specified within Appendix C, Froduct and Pricing Index.
8. Order Processing and Payments ~~ ~~ ~ ~~ ~~
All Customer purchase orders 1 be placed directly with the Reseller and shall reference
Contract Number DIR- .Accurate purchase orders shall be effective and binding
upon Reseller when placed in the mail or electronically transmitted prior to the termination of this
Contract period.
Invoices shall be submitted by the Reseller directly to the Customer and shall be issued by the
Reseller in compliance with Chapter 2251, Texas Government Code. All payments for products
and/or services purchased under this Contract and any provision of acceptance of such products
and/or services shall be made to the Reseller by the Customer.
Invoices must be timely and accurate. Each invoice must match Customer's order and include any
written changes that may apply, as it relates to products, prices and quantities. Invoices must
include the Customer's Purchase Order number or other pertinent information for verification of
receipt of the order by the Customer.
Customer(s) shall comply with Chapter 2251, Texas Government Code, in making payments to
Reseller. Payment under this contract shall not foreclose the right to recover wrongful payments.
9. Internet Access to Contract and Pricing Information
Access by Customers to Contract terms and pricing information shall be made available and
posted on the Internet. To that end, upon sixty (60) days from execution of the Contract, Reseller
will be required to host the complete Contract product and service offerings, including pricing, at
Reseller's Internet site. Internet access to this information will be provided including all
subsequent changes to the product and services offerings and pricing during the term of this
Contract at no cost to DIIt, the State, and Customers.
A. Accurate and Timely Contract Information
Reseller warrants and represents that Contract and related information will be accurately and
completely posted, maintained and displayed in an objective and timely manner which
. renders it clearly distinguishable from other, non-Contract offerings at Reseller's web site.
Reseller shall indemnify DIR, the State, and Customers for damages resulting from errors or
inaccuracies in such information, or from any failure to maintain or timely post Contract
information in accordance with this paragraph.
B. Price Data Retentlon and Compliance Checks
Periodic Compliance Checks of the information posted for this Contract on Reseller's web
site will be conducted by DIIL Upon request by DIR, Reseller shall provide verifiable
documentation that pricing listed upon this site is uniform with the Customer Discount as
stated within Appendix C, Product and Pricing Index.
C. Web Site Changes
Reseller hereby consents to a link from the DIR web site to Reseller's web site in order to
facilitate access to Contract information. The establishment of the link is provided solely for
4
4 •
DIR Contract Number: DIR-BUSOP-011
convenience in carrying out the business operations of the State. DIR reserves the right to
terminate or remove a link at any time, in its sole discretion, without advance notice, or to
deny a future request for a link. DIR will provide Reseller with subsequent .notice of link
termination or removal. Reseller shall provide DlR with timely written notice of any change
in URL or other information needed to access the site and/or maintain the link
D. Use of Access Data Prohibited
If Reseller stores, collects or maintains data electronically as a condition of accessing State
Contract information, such data shall only be used internally by Reseller for the purpose of
implementing or marketing the State Contract, and shall not be disseminated to third parties
or used for other marketing purposes. This Contract constitutes a public document under the
laws of the State and Reseller shall not restrict access to the Contract terms and conditions
including pricing, i.e., through use of restrictive technology or passwords.
E. Responsibility for Content
Reseller is solely responsible for administration, content, intellectual property rights, and all
materials at Reseller's web site. Reseller is solely responsible for its actions anal those of its
agents, employees, . or subcontractors, and agrees that neither Reseller nor any of the
foregoing has any authority to act or speak on behalf of DIR or the State. DIR requires
Reseller to list all information on the web site, such as: company name, address, contact
information, phone and fax number, email address, State Vendor ID number, 'and other
applicable information as deemed necessary by DIR. Information consistent with the terms of
this Contract about payment, shipping, returns, delivery terms and special pricing shall be
available. DIR also reserves the right to require a change of listed content if, in the opinion
of DIR, it does not adequately represent this Contract.
F. On-line Price Contignrator
Reseller may be required to make available an on-line configurator at its Contract web site.
Directions and assistance in using the configurator and web site in general must be available
at entry. This configurator must enable Customers to: (i) view the options available for the
type of product or service requested, (ii) search and find products or services offered under
this Contract, and (iii) calculate complete acquisition costs. Customers shall have the option
of printing their "shopping cart" choices. For those users who are positioned to use it,
Reseller shall make available an option for on-line secure ordering.
10. Reporting and Administrative Fees
Reseller shall be responsible for reporting all products and services purchased under this
Contract. The failure to file the monthly reports, subeontract reports, and pay the administrative
fees on a timely basis will constitute grounds for suspension or termination of the :contract for
cause. If Reseller submits three (3) consecutive monthly reports incorrectly, DIR reserves the
right to suspend or terminate this contract for cause. Reseller's liability for any breach of this
section is limited to the amount of administrative fees owed to DIR by Reseller.
D]R shall have the right to verify required reports and to take any actions necessary to enforce its
rights under this section, including but not limited to, compliance checks of Reseller's applicable
Contract books.
A. Detailed Monthly Report
Reseller shall electronically provide DIR with a detailed monthly report in ,the fom~at
required by DIR showing the dollar volume of any and all sales under this Contract for the
previous month period. Reports shall be submitted to the DIR Go DlRect Coordinator.
Reports are due on the fifteenth (15'x) day of the close of the previous month period. The
• •
DIR Contract Number: DIR BUSOP-011
monthly report shall include the Reseller's company name, each Customer name, order date,
ship date, description, part numbers, quantity, unit price, extended price, Customer Purchase
Order number, contact name, Customer's complete billing address, and other information as
required by DIR. Each line item sale must contain all information listed above or the report
will be rejected and returned to the Reseller for convection.
B. Historiacally Underutilized Business Subcontract Reports
Reseller shall electronically provide each Customer with their relevant Historically
Underutilized Business Subcontracting Report, pursuant to this Contract, as required by
Chapter 2161, Texas Government Code. Reports shall~also be submitted to DIR.
Reports shall be due quarterly in compliance with the following schedule, or as requested by
each ordering Customer:
September -November: due by December 5~'
December -February: due by March 5's
March -May: due June 5"'
June -August: due September 5th
C. DIR Administrative Fee
An administrative fee shall be paid by Reseller to DIR to defray the DIR costs of negotiating,
executing, and administering this Contract. All prices quoted to Customers shall include the
administrative fee. DIR reserves the right to change this fee upwards or downwards during
the term of this Contract, upon written notice to Reseller. Any change in the administrative
fee shall be incorporated in the price to the Customer.
Reseller will pay DIR, on the fifteenth (15`~ day of the close of the previous month period, a
one percent (1%) administrative fee based on the dollar value of all sales to Customers
pursuant to this Contract. Payment will be calculated for all sales, net of returns and credits.
For example, the administrative fee for sales totaling $100,000 shall be $1,000.
11. Notices
All notices, demands, designations, certificates, requests, offers, consents, approvals and other
instruments given pursuant to this Contract shall be in writing and shall be validly given on i) the
date of delivery if delivered by email, facsimile transmission, mailed by registered or certified
mail, or hand delivered, or (ii) three business days after being mailed via United States Postal
Service. The parties may from time to time, specify any address in. the United States as its address
for purpose of notices under this Contract by giving fifteen (15) days written notice. to the other
P~3'•
If sent to the State:
Patrick W. Hogan
Department of Information Resources
300 W. 15m St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-4700
Fax: (512) 475-4759
Email: patrick.hoganC~dir.state.tx.us
If sent to the Reseller:
William F. Penak
SBC Communications, Inc.
712 East Huntland Dr., Room 230
Austin, Texas 78752
512 421 5055
512 870 4056
bill.penak@sbc.com
6
a •
DIR Contract Number: DIR-BUSOP-011
12. Captions
The captions contained in tliis Contract are intended for convenience and reference purposes only
and shall in no way be deemed to define or limit any provision thereof.
13. Choice of Law
The law of the State of Texas shall govern the construction and interpretation of .this Contract.
Nothing herein shall be construed to waive the state's sovereign immunity.
IN WITNESS WHEREOF, the parties hereby execute. their mutual agreement to the terms of this
Contract. This agreement shall be executed and shall be a binding Contract between the parties.
SBC Communications, Inc.
Authorized By: • ~" `
Name• James N. Shelc~ren
Title: Regional Vice Presi~nt- Sales
Date: October 2$, 2003
The State of Texas, acting by and through the
Department of Information Resources
Authorized ~ ~~
s
Name: Patrick W. Hogan
Title: Director of Business Ouerations
Date: ~ u l Z~ I o~
Legal:
~ a`2
APPENDIX A
STANDARD CLAUSES
STATE OF TEXAS, DIR CONTRACTS
Appendix A
TABLE OF CONTENTS
GENERAI.
1. Indemnffication Clause
2. Non-Assignment Clause
3. No Qaantity Guarantees
4. Confidentiality Clause
5. Reseller Certifications
6. Equal Opportunity Compliance
7. Technology Access Clause
8. Commodity Software
9. Records and Audit
10. Ability to Conduct Business in Texas
11. Quotation, Warranty, and Return Policies
12. Invalid Term or Condition
13. Enforcement of Contract and Dispute Resolntfon
14. Entireties
15. ModIficatlon of Contract Terms and/or Amendments
16. DIR Logo
17. Reseller Logo
18. Leasing Provision
19. Site Preparation
20. Trade Show Participation
21. Use of Subcontractors
22. Force Majenre
23. Termination for Non-Appropriation
24. Termination for Convenience
25. Termination for Cause
26. Castomer Rights Under Terminatfon
27. Reseller Rights Under Termination
28. Survival
29. Handling of Written Complaints
Appendix A
STANDARD CLAUSES FOR TEXAS DIR
CONTRACTS
The parties to the attached Contract, amendment or other
agreement of any kind (hereinafter, "this Contract") agree
to be bound by the following clauses which are hereby
made a part of this Contract.
3. NO QUANTITY GUARANTEES. 'This Contract is
not exclusive to the named Reseller. Customers may obtain
Information Resources Technologies from other sources
during the Contract term. DIR makes, no express or
implied warranties whatsoever that any particular number
of Purchase Orders will be issued or that any particular
quantity or dollar amount of Information Resources
Technologies will be procured through the Contracx.
1. INDEMNIFICATION CLAUSE. Reseller shall
defend, indemnify and hold harmless the State of Texas, its
officers, agents, and employees from and against all claims,
actions, suits, demands, proceeding, costs, damages and
liabilities, including attorneys fees, arising out of, or
resulting from any acts or omissions of the Reseller or its
agents, employees, subcontractors, or suppliers of
subcontractors in the execution or perfomtance of this
Contract and any Purchase Order(s) issued under this
Contract.
The Reseller shall defend, indemnify and hold hemtless the
State of Texas, its officers, agents and employees, from any
and all claims involving infringement of patents,
copyrights, trade and service marks, and any other
intellectual or intangible property rights in connection with
the use of any product or service supplied by the Reseller.
Reseller agrees to defend against any and all such claims at
Reseller's expense, whether or not such claims become the
subject of litigation. DIR will provide reasonable
assistance in the defense of such claims if so requested by
the Reseller. Reseller agrees to coordinate defense with the
Texas Office of Attorney General, as may be requested by
DIR.
"Developed Works" means any and all deliverables
developed by Avnet for Customer by the performance of
Avaet services, end the delivery of products, as specified in
a Statement of Work Reseller will defend, hold harmless
and indemnify, itcluding attorney's fees, Customer from
claims that that Developed Works (except those Developed
Works developed to mcet the Customer's specifications)
infringe the intellectual property rights of a third party. If
such a claim is or is likely to be made, Resellet will, at its
own expense, with respect to the Developed Works,
exercise the first of the following remedies that is
practicable: (i) obtain for the Customer the right to
continue to use, sell and license them consistent with this
Contract; (ii) modify them so they are non-infringing and in
compliance with this Contract; (iii) replace them with non-
infringing ones that comply with this Contract; or (iv) at the
Customer's request, accept the cancellation of infringing
Products and/or Services and the return of infringing
Developed Works and refund any amount paid.
2. NON-ASSIGNMENT CLAUSE. This Contract shall
be entered into and be binding upon the successors of the
parties. Reseller tray not assign this Contract without the
prior written consent of DIR Any attempt to assign this
Contract without the written consent of DIR is null and
void.
4. CONFIDENTIALITY CLAUSE. Reseller
acknowledges that DIR is a government agency subject to
the Texas Public Information Act. Reseller also
acknowledges that D1R will comply with the Public
Information Act, and with all opinions of the Texas
Attorney General's office concerning this Act.
Under the terms of this Contract, DIR may provide Reseller
with information related to Customers. Reseller shall not
re-sell or otherwise distribute or release to any party in any
manner, Customer information.
5. RESELLER CERTIFICATIONS.
Reseller certifies (i) it has not given, offered to give, and
does not intend to give at any time hereafter any economic
opportunity, future employment, gift, loan, gratuity, special
discount, trip, favor, or service to a public servant in
connection with this Contract; (ii) it is not currently
delinquent in the payment of any franchise tax owed the
State of Texas and is not ineligible to receive payment
under §231.006 of the Texas Family Code and
acknowledges this Contract may be terminated and
payment withheld if this certification is inaccurate; (iii)
neither it, nor anyone acting for it, has violated the antitrust ~~..
laws of the United States or the State ' of Texas, nor
communicated duectly or indirectly to any competitor or
any other person engaged in such line of business for the
purpose of obtaining an unfair price advantage; (iv) it has
not received payment from DIR or any of its employees for
participating in the preparation of this Contract-, (v) it is
not ineligible to receive this Contract under § 2155.004,
Texas Government Code; (vi) it is in compliance with
§618.003, Texas Government Code; (vii) it will comply
with §2155.444 and §2155.4441, Texas Government Code,
in fulfilling the temts of this Contract; and (viii) to the best
of the Reseller's latowledge and belief, there are no suits or
proceedings pending or threatened against or affecting the
Reseller, which if determined adversely to the Reseller will
have a material adverse effect on the ability of the Reseiler
to fulfill its obligations under this Contract.
6. EQUAL OPPORTUNITY COMPLIANCE.
Reseller agrees to abide by all applicable laws, regulations,
and executive order; pertaining to equal employment
opportunity, including federal laws and the laws of the
State in which its primary place of business is located. in
accordance with such laws, regulations, and executive
orders, the Reseller agrees that no person , in the United
States shall, on the grounds of race, color, religion, national
origin,, sex, age, veteran status or handicap, be excluded
from employment with or participation in, be denied the
benefits of, or be otherwise subjected to discrimination
under any program or activity perfoiined by Reseller under
4 ~ •
Appendix A
this Contract. If Reseller is found to be not in compliance
with these requirements during the tens of this Contract,
Reseller agrees to take appropriate steps to correct these
deficieacies. Upon request, Reseller will furnish
information regarding its nondiscriminatory hiring and
promotion policies, as well as specific infomurtion on the
corrrposition of its principals and staff, includutg the
identification of minorities and women in management or
other 'positions with discretionary or decision-making
authority.
7. TECHNOLOGY ACCESS CLAUSE. AS
REQUIRED BY $2157.005. TEXAS GOVERNMENT
CODE. (Aaalicable to Stttte A¢enev Purchases Only)
Reseller expressly acknowledges and agrees that State
funds may not be expended in connection with the purchase
of an automated infom~ation system unless that system
meets certain statutory requirements relating to
accessibility by persons with visual impairments.
Accordingly, the Reseller represents and warrants to DIR
and each Customer purchasing products under this Contract
that the technology provided hereunder is capable, either by
virtue of features included within the technology or because
it is readily adaptable by use with other technology of (i)
providing equivalent access for effective use by both visual
and non-visual means; (ii) presenting infomuttion,
including prompts used for interactive communications, in
fom~ats intended for both visual and non-visual use; and
(iii) being integrated into networks for obtaining,
retrieving, and disseminating infom~ation . used by
individuals who are not blind or visually impaired. For the
purposes of this section, the phrase "equivalent access
means a substantially similar ability to communicate with
or make use of the technology, either directly by features
incorporated within the technology or by other reasonable
means such as assistive devices or services that would
constitute reasonable accommodations under the
Americans with Disabilities Act or similar state or federal
laws. Examples, of methods by which equivalent access
may be provided include, but are not limited to, keyboard
alternatives to mouse commands and other means of
navigating graphical display and customizable display
appearance.
until the later of a period of four years after termination of
this Contract or until full, final and unappealable resolution
of all audits or litigation issues that arise under this
Contract Such records shall include identification of the
procuring Customer, documentation of the Customer's
ordering date, Customer Purchase Order number, order date
of product or service, ship date or service delivery date, full
invoice address, unit price, extended price, ;invoice number,
record of procuring Customer payment and/or balance due,
the calculations supporting each administrative fee owed
DIR under this Contract, Historically', Underutilized
Businesses Subcontracting reports, and such other
documentation as DIR may request.
Reseller shall grant access to all paper' and electronic
records, books, documents, accounting procedures,
practices and any other items relevant to the performance
of this Contract to D1R, the auditors designated by D1R,
including auditors of the State Auditor' Office and of the
United States, and such other persons or entities designated
by DIR for the purposes of inspecting, auditing and/or
copying such books and records. Copies and printouts
requested by DIR shall be provided by Reseller without
charge. DIR shall provide Reseller ten (10) business days'
notice prior to inspecting, auditing, and/or copying
Reseller's records. Reseller's records, whether paper or
electronic, shall be made available during regular office
hours. Reseller's personnel familiar with the Reseller's
books and recot+ds shall be available to .DIR staff and
designees as needed. Reseller shall provide'adequate office
space to DIR staff during the performance of a compliance
check or audit.
If any inspection or compliance check performed hereunder
reveals an aggregate overcharge to a Customer of .5% or
greater, or an aggregate underpayment to DIR of its
administrative fee of .5% or greater, then the cost of such
compliance check or inspection, including, but not limited
to, the salary and associated overhead of DIR staff
performing the compliance check or inspection, shall be
reimbursed to DIR within thirty (30) days from receipt of
an invoice from DIR reflecting the cost of the compliance
check or inspection.
8. COMMODITY SOFTWARE. Texas Government
Code, §2157.068 requires State agencies to buy commodity
software in accordance with contracts developed by DIR,
unless the agency obtains a waiver from DIR. Reseller
shall agree to wordinate all agency commodity software
sali;s made pursuant to this Contract through existing DIR
contracts, .if available. Reseller represents it will not
license through a signed or unsigned license agreement,
volume licensing agreement or an order confirmation, the
commodity software to state agencies unless the agency is
able to provide a DIR granted waiver that the agency is
able to purchase the commodity software outside the DIR
Coannodity Software wntracts. The operating system
software and institutions of higher education are not bound
to this Code.
9. RECORDS AND AUDTT. The Reseller shall maintain
adequate records to establish compliance with this Contract
For procuring State Agencies whose payments are
processed by the Texas Comptroller of Public Accounts,
the volume of payments made to the Reseller through the
Texas Comptroller of Public Accounts and the
adminisU~ative fee based thereon shall be presumed correct
unless Reseller can demonstrate to D1R's satisfaction that
Reseller's calculation of D1R's administrative fee is
correct.
Reseller understands that acceptance of'ds under this
Contract acts as acceptance of the authority of the State
Auditor's Office, or any successor agency, • to conduct an
audit or investigation in connection with those funds.
Reseller further agrces to cooperate fully with the State
Auditor's Office or its successor in the conduct of the audit
or investigation, including providing all records requested.
Reseller will ensure that this clause concerning the
authority to audit funds received indirectly by
0 •
Appentiig~ A
subcontractors through Reseller and the requirement to
cooperate is included in any subcontract it awards
pertaining to this Contract. Reseller will reimburse the
State of Texas for all costs associated with enforcing this
provision.
10. ABILITY TO CONDUCT BUSINESS W TEXAS.
The Reseller is an entity authorized and validly existing
under the laws of its state of organization, and is authorized
to do business in the State of Texas. The Reseller is a
"Catalog Information Systems Vendor" as defined in
§2157.001, Texas Government Code. All products and
services offered to Customers under this Contract are listed
in Reseller's catalogue on file with the Texas Building and
Procurement Commission.
11: QUOTATIONS. WARRANTY. AND RETURN
POLICIES. Reseller will adhere to the Manufacturer's
and/or Reseller's then-currently published policies
concerning quotations, warranties, and return policies
related to Products available under this Contract. Warranty
and return policies for Customers will not be more
restrictive or more costly than those warranty and .return
policies maintained by the Manufacturer and/or Reseller for
other similarly situated Customers for like products or
services.
advantageous pricing and/or payment options than those set
forth in the Contract. In such event, Reseller shall famish a
copy of such better offerings to DIR upon request.
16. DIR LOGO. Reseller may use the DUt Go DIRect
logo in the promotion of this Contract to Customers with
the following stipulations; (i) the logo may' not be modified
in any way; (ii) when displayed, the size of the DIR logo
must be equal to or smaller than the Reseller logo; (iii) the
DUt logo is only used to communicate the availability of
products and services under this Contract to Customers;
and (iv) any other use of the DIR logo requires prior
written permission from DIR
17. RESELLER LOGO. DIR may use the Reseller's
name and logo in the promotion of this Contract to
communicate the availability of Products under this
Contract to Customers. Use of the logo may be on the DIR
Web Site or on printed materials. Any use of Reseller's
Logo by DIR must comply with and be solely related to the
purposes of this .Contract and any usage guidelines
communicated to D1R from time to time. Nothing
contained in this Contract will give DUt any right, title, or
interest 'in or to Reseller's trademarks of the goodwill
associated therewith, except for the limited usage rights
expressly provided by Reseller.
12. INVALID TERM OR CONDITION. If any term or
condition of this Contract shall be held invalid or
unenforceable, the remainder of this Contract shall not be
affected and shall be valid and enforceable.
13. .ENFORCEMENT OF CONTRACT AND
DISPUTE RESOLUTION. Reseller and DIR agree to the
following (i) a party's failure to require strict perfomtance
of any provision of this Contract shall not waive or
diminish that party's right thereafter to demand strict
compliance with that or any other provision; (ii) applicable
to State agency purchases only, for disputes not resolved in
the normal course of business, the disputer resolution
process provided for in Chapter 2260, Texas Government
Code, shall be used; (iii) the laws of the State of Texas
shall govern this Contract; (iv) actions or proceedings
arising from this Contract shall be heard in a court of
competent jurisdiction in Travis County, Texas; and (v)
nothing herein shall be construed to waive the State's
sovereign immunity.
14. ENTIRETIES. The Contract supersedes all prior
agreements, representations or promises, whether oral or
written, made by the parties regarding the subject matter of
this Contract.
15. MODIFICATION OF CONTRACT TERMS
AND/OR A_MF.1ynMEN'rS. The terms and conditions set
forth in the Contract shall govern all transactions by
Customers under this Contract. The Contract may only be
modified or amrnded upon mutual agreement of DIR and
Reseller. Additional Customer terms and conditions, which
do not conflict with the contract, may be added by a
Purchase Order and given effect. For individual Purchase
Orders, however, the Reseller may offer Customers trmre
18. LEASING PROVISION. The parties to this Contract
may agree to provisions that allow leasing of Information
Resources Technologies in addition to purchase sales.
19. SITE PREPARATION. Customer(s) shall prepare
and maintain its site in accordance with written instructions
furnished by Reseller prior to the scheduled delivery date
of any product or service and shall bear the costs associated
with the site preparation.
20. TRADE SIiOW PARTICIPATION. Reseller
understands and agrees that it must participate by providing
a staffed booth display or similar presence at no less than
two (2) bade shows or similar functions sponsored by DIR
Business Operations Division each calendar year at the
Reseller's expense. Reseller must display the DIR logo at
all trade shows that potential Customers will attend. DIR
reserves the right to approve or disapprove of the location
of the use of the DIR logo in or on the Reseller's booth.
21. USE OF SUBCONTRACTORS. Reseller may
subcontract installation; training, warranty, or maintenance
services. However, Reseller shall remain solely responsible
for the performance of its obligations under this Contract. If
Reseller uses any subcontractors, Reseller shall satisfy DIR
that it has complied and maintains compliance with the
DIR HUB Subcontracting Plan.
22. FORCE MAJEURE. DIIt, Customer, or Reseller
may be excused from perfornumce under this contract for
any period when performance is prevented as the result of
an act of God, strike, war, civil disturbance, epidemic, or
court order, provided that the party experiencing .the event
of Force Majeure has prudrntly and promptly acted to take
any and all steps that are within the party's control to
a •
Appendix A
ensure performance and to shorten the duration of the event
of Fora Majeure. The party suffering an event of Force
Majeure shall provide notice of the event to the other
parties immediately. Subject to this provision, such non-
performance shall not be deemed a default or a ground for
termination. However, a Custort~r may terminate a
Purchase Older if it is determined by the Customer that
Reseller will not be able ro deliver product or services in a
timely amnrter to meet the business needs of the Cusromer.
person contracting with DIR may direct their written
complaints to the following office:
23. TERMINATION FOR NON-APPROPRIATION.
Customer may terminate Purchase Orders and D1R may
terminate this Contract if funds sufficient to pay obligations
hereunder are not appropriated by the legislative body on
behalf of local governments, or by the Texas legislature on
behalf of state agencies. in the event ofnon-appropriation,
Reseller will be provided ten (10) days written notice of
intent to terminate.
Z4. TERMINATION FOR CONVENIENCE. Either
parry may terminate this Contract, in whole or in part, by
giving the other Party thirty (30) days written notice. A
Customer may terminate a Purchase Order if it is
determined by the Customer that Reseller will not be able
to deliver product or services in a timely manner to meet
the business needs of the Customer.
25. TERMINATION FOR CAUSE. Either DIR or
Reseller may issue a written notice of default to the other
upon the occumrtce of a material breach of any covenant,
warranty or provision of this Contract or a Purchase Order
arising hereunder. The non-defaulting patty shall give the
defaulting party thirty (30) days 8rom receipt of notice to
cure said default If the defaulting party fails to cure said
default within the timefiarne allowed, the non-defaulting
party may, at its option and in addition to any other
remedies it may have available, canal and terminate this
Contract. Customers hereunder have no power to terminate
this Contract for default. Customer's rights are exclusively
based on their Purchase Order.
26. CUSTOMER RIGHTS UNDER TERMINATION.
in the event this Contract expires or. is terminated for any
reason, a Customer shall retain its rights under the Purchase
Order issued with rasped to all products or services
ordered and accepted prior to the effective termination date.
Z7. RESELLER RIGHTS UNDER TERMINATION.
In the event this Contract expires or is terminated for any
reason, a G~rstomer shall pay all amounts due for products
or services ordered prior to the effective temrination date
and ultimately accepted.
28. SURVIVAL. All warranty and/or service agreements
that were entered into between Reseller and a Customer
under the terms and wnditions of this Contract shall
survive the termination of this Contract.
Public Infomtation Office
Department of Information Resources
Attn: Public Information Off cei•
300 W. 15t° Street, Suite 1300
Austin, TX 78701
(512) 475-4700, voice ,
(S 12) 475759, fax
Z9. ~ANDL G OF WRITTEN COMPLAINT'S, In
addition to other remedies contained in this Contract, a
DIR-BUSOP-011
APPENDIX B
HUB SUBCONTRACTING PLAN
Historically UndenuHlized Businesses
Subcontracting Plan (Form 1)
This form Is r wired as rt of the Historicall Underutilized Businesses HUB
eq Pa Y ( )
Subcontracting Plan. Failure to include this form and the applicable forms specified
herein will result in automatic disqualification of your response to the offering
document. ,
Vendor Company Name: SBC Communications Inc.
Vendor Identification Number. .143-052-1790400
Department of Information Resources Offering Document Number: DIR-TMP-03-029
1. The Department of Information Resources has determined that HUB subcontracting
opportunities are probable. Is your company proposing to subcontract any portion 'of this
contract?
()Yes - Complete the following forms:
Determination of Good Faith Effort (Form 2)
Solicitation of HUB Subcontractors (Form 3)
Selected Subcontractors (Form 4)
What percentage of the proposed work is to be performed by your company?
(X) Na - Complete the Statement of Intent (Form 5) '
~~
2. Is your company certified as a HUB by the State of Texas?
()Yes (X) No
I have read and understand the Department of Information Resources' Policy on Utilization of
HUBs. -
James Shels~ren
Authorized Representative Name
Regional O/ice President -Sales
Authorized Represents ' e itle
~.
ed Repn3 five S' nature
July 18, 2003
Date
•
HUB Subcontracting Pian
Statement of Intent (Form 5)
Vendor Company Name: SBC Communications Inc. [VENDOR]
Department of Information Resources Offering Document Number. DIR-TMP-03-029
By completing the following Statement of Intent, the potential vendor HUB Subcontracting Plan
is considered responsive, qualified, and/or valid.
Statement of Intent:
I, James Shelgren, an authorized representative of VENDOR have reviewed
(Vendor Authorized Representative)
the offering document and have determined that the entire work of the contract will be
completed with VENDOR's own employees and resources without subcontracting 'any portion of
the contract.
If, after award of the contract, circumstances necessitate the use of any subcontractors, the
Department of Information Resources will be notified in writing. VENDOR will comply with the
provisions of 1 TAC §111.14(b) relating to developing and submitting a subcontracting plan
before any modifications to the HSP can be considered by the Department of Information
Resources. If VENDOR subcontracts any of the work under the awarded contract without prior
Department of Information Resources authorization and compliance of 1 TAC §1'11.14(b),
VENDOR may be considened in breach of the awarded contract an subject to 'any remedial
actions provided by state iaw and HUB rules, possibly including termination of the contract.
' ~ July 16.2003
end r Authorized Repress tive Signature Date
..~
r
DIR•Si180P-All
AP IX C
I~tDEX
I
DIR-BUSOP-011
SBC Pricing Discounts far Cisco Products and Services
Cisco Hardware Products 40% off of MSRP
SmartNet Services 20% off of MSRP
~ ~
DIR BUSOP-011
APPENDIX D
TEXAS MARKET PLACE POSTING
DIR TMP-03-Q29
ESBD -Procurement Opportur:~ ~ Page 1 of 2
Texas Building And Procurement Commission
Electr~ni~ Stag Business Daily
S d m r r h r o •: u r r uir o f S r •: t e u a a l T r .a u r M u i f r t p l ~ c~
View Newest Postinc,~s
Cisco Products and Services
Agency: DEPARTMENT OF INFORMATION RESOURCES
Open Date: 07/16/03 03:00 PM Agency Requisition Number: DIR-TMP-03-029
Previous Price Paid: N/A
Bid type: 21 Days for bid notice or proposal solicitation package
NIGP Commodity Code(s):
Class-Item: 204 - 64
Class-Item: 208 - 90
Class-Item: 920 - 37
Contact Information:
Contact Name: Cathy Harris
Email: Cathy.Harris o,DIR.State.TX.US
Address: 300 W 15 Ste 1300 Austin, TX 78701
PO Box 13564
Austin, TX 78711-3564
Phone: (512) 463-6256
Faz: (512) 475-4759
NOTE: You will need to download all of the following files below for complete bid
specifications.
Help: Right Click to and choose "save file as" or "save target as" to your computer. More Help
Must be ISV - QISV.txt size: 708 (in bytes) Format: (ASCII Plain Text)
HUB Subcontract -HUB FORMS.doc size: 37888 (in bytes) Format: Word' for
Windows 97
-Bid Package 1 size: 370176 (in bytes) Type: Bid Specification Format: Word for
Windows 97
-Bid Package 2 size: 15872 (in bytes) Type: Bid Specification Format: Excel for
Windows 97
http://esbd.tbpc.state.tx.us/1380/bid show.cfrn7bidid=47932 10/27/2003
ESBD -Procurement Opportui~ ~ Page 2 of 2
Details:
****NOTICE****PLEASE NOTE THAT THERE HAS BEEN A 1VIODIFICATION
TO THIS ITN. PLEASE TAKE THE TIlVIE TO READ BID PACKAGE 1 IN ITS
ENTIRETY. * * * *NOTICE* * * *THE BID OPENING DATE HAS BEEN EXTENDED
THROUGH JULY 16th, 2003, 3:00 p.m. The State of Texas, acting by ands, through the
Department of Information Resources, is seeking to enter into contracts with one or
more Qualified Information Systems Vendors(QISV) to.provide CISCO products and
services as listed within this ITN. The following Invitation to Negotiate (ITN) is for the
purchase of the CISCO product lines. For a vendor to receive an award from this offer,
they must be on the Texas Building and Procurement Commission (TBPC) .Centralized
Master Bidders List (CMBL) and QISV approved. All vendors supplying associated
products lines are encouraged to respond to this ITN. Contracts will be two' (2) year
contracts with options to renew. Comparable manufacturer product lines will not be
accepted. This ITN is limited to new CISCO products. Rebuilt/refurbishedprgducts will
not be considered. Please note: If the potential vendor does not include or does not
submit all required contents requested for this ITN, the potential vendor's response may
be considered non-responsive and maybe rejected.
Upload Date: 2003-06-17 12:23:06 Updated date: 2003-06-27 08:43:51
http://esbd.tbpc.state.tx.us/1380/bid show.cfin?bidid=47932 10/27/2003
• ~
MEETING HANDOUTS