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Exhibit 10.5
BY AND BETWEEN
COUNTY OF LOS ANGELES
AND
WAREFORCE, INC.
FOR
PERSONAL COMPUTERS, PERIPHERALS, SOFTWARE
AND RELATED SERVICES
September 1, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇
INTERNAL SERVICES DEPARTMENT
AGREEMENT NO. 56881
MASTER AGREEMENT BETWEEN
COUNTY OF LOS ANGELES
AND WAREFORCE, INC.
FOR PERSONAL COMPUTERS, PERIPHERALS, SOFTWARE, AND RELATED SERVICES,
TABLE OF CONTENTS
1.0 PURPOSE
1.1 Priority of Interpretation
1.2 Entire Master Agreement
2.0 DEFINITIONS
2.1 Day(s)
2.2 Eligible Vendor
2.3 Fiscal Year
2.4 Normal Working Hours
2.5 Master Agreement
2.6 Services
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3.0 CHANGE NOTICES AND AMENDMENTS
3.1 Master Agreement Changes
4.0 WORK
4.1 Non-transferable Responsibilities
4.2 Assignment and Subcontracting
4.3 Time is of the Essence
5.0 TERM OF AGREEMENT
5.1 Term
5.2 Termination
5.3 Extension
6.0 METHOD OF PURCHASE, INVOICING AND PAYMENTS
6.1 Purchase Order(s)
6.2 Prices
6.3 Warranty and Product Compliance
6.4 Invoice and Payment Terms
6.5 Product/Equipment Pricing and Maintenance
6.6 Independent CONTRACTOR Status
7.0 INDEMNIFICATION AND INSURANCE
7.0 Indemnification
7.1 Insurance
7.3 Liability Insurance
7.4 Failure to Procure Insurance
8.0 RECORDS, DOCUMENTS AND AUDITS
8.1 Publicity
9.0 EMPLOYMENT ELIGIBILITY VERIFICATION
10.0 CAPTIONS AND PARAGRAPH HEADINGS
11.0 WAIVER
12.0 GOVERNING LAW, JURISDICTION AND VENUE
13.0 SEVERABILITY
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14.0 PROHIBITION OF HIRING
15.0 TERMINATION FOR GRATUITIES
16.0 TERMINATION FOR IMPROPER CONSIDERATION
17.0 TERMINATION FOR INSOLVENCY
18.0 TERMINATION FOR CONVENIENCE
19.0 TERMINATION FOR FAILURE TO OPERATE IN ORDINARY COURSE
20.0 COUNTY AUDIT SETTLEMENTS
21.0 CONFLICT OF INTEREST
22.0 FORCE MAJEURE
23.0 MOST FAVORED PUBLIC ENTITY
24.0 DAMAGE TO COUNTY FACILITIES, BUILDINGS OR ENTITY
25.0 RESTRICTIONS ON LOBBYING
25.1 COUNTY Projects
26.0 NOTICES
27.0 WARRANTY
28.0 VARIATION OF TERMS
29.0 CANCELLATION OF ORDERS
30.0 NON-EXCLUSIVE AGREEMENT
31.0 COMPLIANCE WITH APPLICABLE LAW
32.0 FAIR LABOR STANDARDS
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33.0 NONDISCRIMINATION AND AFFIRMATIVE ACTION
34.0 PARTICIPATING MUNICIPALITIES
35.0 CONSUMPTION REPORTS/ITEM NUMBERS/RESTRICTED PURCHASES
36.0 ORDERING REQUIREMENTS
37.0 SHIPPING INSTRUCTIONS
38.0 LIMITATION OF COUNTY'S OBLIGATION DUE TO NON-APPROPRIATIONS OF FUNDS
AUTHORIZATION OF MASTER AGREEMENT
EXHIBITS
EXHIBIT A - VENDOR'S EEO CERTIFICATION
EXHIBIT B - VENDOR'S PROPOSAL (Not Attached)
EXHIBIT C - COUNTY'S REQUEST FOR PROPOSALS (Not Attached)
MASTER AGREEMENT BETWEEN
COUNTY OF LOS ANGELES
AND WAREFORCE INC
FOR PERSONAL COMPUTERS, PERIPHERALS, SOFTWARE, AND RELATED SERVICES.
1.0 PURPOSE
This Personal Computers, Peripherals, software, and Related Services, Master
Agreement (hereafter "Master Agreement") is made and entered into by and between
the County of Los Angeles (hereafter "COUNTY"), and WAREFORCE, INC. (hereafter
"VENDOR").
WHEREAS, COUNTY and VENDOR agree that VENDOR will offer to provide COUNTY,
COUNTY employees and others as more fully described herein Personal Computers,
Peripherals, Software and Related Services hereafter sometimes referred to as
the ("Product/equipment and Services", and/or "Services", or
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"Product/Equipment").
WHEREAS, VENDOR is in the business of selling and supplying Computer Equipment,
Software and Related Services;
WHEREAS, VENDOR is willing and able to offer, deliver, service and support The
products/equipment it offers to, COUNTY departments/divisions, COUNTY
offices/organizations, COUNTY employees, and any other entities as set forth
herein (hereafter "Customer(s)").
This document together with the exhibits identified in Paragraph 1.1 Priority of
Interpretation), defines the scope of this Agreement.
1.1 Priority of Interpretation
This document without exhibits is referred to as the "Base Agreement". The Base
Agreement. Exhibit A, is attached to and forms a part of this Master Agreement.
Exhibits B, and C, referenced below but not attached, are hereby incorporated
herein by reference. Any reference throughout the Base Agreement and each of its
exhibits to the "Master Agreement" shall, unless the context clearly denotes
otherwise, denote the Base Agreement with all exhibits hereby incorporated. In
the event of any conflict or inconsistency in the definition or interpretation
of any word, responsibility, schedule, or the contents or description of any
task, deliverable, service, or other work, or otherwise, between the Base
Agreement and the exhibits, or between exhibits, such conflict or inconsistency
shall be resolved by giving precedence first to the body of this Master
Agreement, and then to the exhibits according to the following priority:
1. EXHIBIT A - VENDOR's EEO Certification
2. EXHIBIT B - VENDOR's Proposal (not attached)
3. EXHIBIT C - COUNTY's Request for Proposals (RFP/not attached)
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1.2 Entire Master Agreement
This Master Agreement incorporates and supersedes all previous agreements,
written and oral, and all prior and contemporaneous communications between the
parties, regarding this subject. COUNTY reserves the right to initiate change to
any provision of this Master Agreement. All such changes shall be accomplished
only by mutually signed Amendments, as provided under this Paragraph 1.2 No
change hereto shall be valid unless in the form of a signed Amendment prepared
and approved pursuant to Subparagraph 3.0 (Change Notices and Amendments).
2.0 DEFINITIONS
The following terms shall have the following meaning and use herein. Capitalized
terms used in this Master Agreement, not defined in this Paragraph 2.0, shall
have the meaning ascribed to them elsewhere in this Master Agreement or in the
exhibits.
2.1 Day(s)
"Day(s)" means calendar day(s) unless otherwise specified.
2.2 Eligible Vendor
"Eligible Vendor" identifies a Vendor whose evidences of insurance, as required
by Paragraph 8.0 (Indemnification and Insurance), have all been received by
Purchasing and Central Services, as set for in Section 27.0 (Notices), and are
valid and in effect at the time of a given Purchase Order solicitation under
this Master Agreement.
2.3 Fiscal Year
"Fiscal year" means the twelve (12) month period beginning July 1st and ending
June 30th.
2.4 Normal Working Hours
"Normal Working Hours" means one of the following work schedules, according to
individual COUNTY department policy, excluding COUNTY holidays:
A. "5/40", which is normally eight (8) hours per day Monday through
Friday ("Working Days "), with starting and ending times
departmentally established;
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B. "9/80", which is a flexibility arranged nine (9) hours on each of
eight Working Days in a given two-week period, plus 8 hours arranged,
per department policy, on the ninth Working Day; or
C. "4/40", which is a flexibly arranged ten (10) hours on each of four
fixed Working Days each week, with starting and ending times
departmentally established.
2.5 Master Agreement
"Master Agreement" means COUNTY's standard agreement entitled "Personal
Computers, Peripherals, Software, And Related Services, Master Agreement," as
specified in Paragraph 1.1, copies of which are separately executed between
COUNTY and individual Qualified Vendors, and which sets forth the terms and
conditions for the provision of Computer Equipment, Software, Supplies And
Services, Master agreement to COUNTY. COUNTY shall execute Master Agreements
with as many vendors as COUNTY deems qualified and appropriate for COUNTY needs.
All Master Agreements shall be undertaken with terms of equal duration as set
forth in Paragraph 5.0 (Term of Agreement). Undertaking this Master Agreement
does not grant any right to compensation to VENDOR, or to vendors in the
aggregate.
2.6 Services
* On-Line
* Toll Free Telephone line
* Facsimile transmissions
* Up to date, easy to access, product information (Technical Specs)
* Dedicated Technical Support (Toll Free Number)
* Printed Catalogs/Pricers (If Requested)
* Prompt On-Site installation and warranty repair of equipment
* Up to date, easy to access, customer specific Electronic Catalog
* Up to date, easy to access, customer specific On-Line capabilities
* Reporting Capabilities
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* E-Mail Capabilities
* E.D.I. Capabilities
* Order Acknowledgment/Order Tracking
(Status-Back Order-Shipping Info, etc.)
Deliveries
* 3 to 5 days (maximum) for In Stock Items
* 5 to 7 days (maximum) for Configured Systems
* Direct deliveries to all facilities
* Desk Top deliveries capabilities
* Will Calls (if needed)
Customized Monthly/Quarterly/Annual Usage Reports
* By User Department or Participating Government Agency
* For all Hardware Purchases
* For all Software Purchases
* For all Services Contracted
* As requested by any User Department or Participating Government Agency
Dedicated Team to Servicing Agreement
* In House Sales (support) Team
* Outside Sales Team
* Technical Support Team (Hardware/Software)
Hardware & Software
* System Configuration
* Warranty tracking
* Asset Management Capabilities
* Copying Capabilities (Software)
* Maintenance and Upgrade Services
Training
* Certified by Software Manufacturers
(Novell - GNE - Microsoft - Lotus - Unix etc.)
* On-Site Training
* Off-Site Training
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3.0 CHANGE NOTICES AND AMENDMENTS
3.1 Master Agreement Changes
3.1.1 For any change which affects the period of performance, payments, or any
term or condition included in this Master Agreement, a negotiated Amendment to
this Master Agreement shall be prepared and executed by COUNTY's Purchasing
Agent and VENDOR's originally executing authorized Officials, or designees.
3.1.2 For any change which does not affect the, period of performance, payments,
or any rights or obligations of this Master Agreement, a Change Notice shall be
prepared and executed by COUNTY's Purchasing Agent and VENDOR.
4.0 WORK
VENDOR shall fully complete and timely deliver, pursuant to standards,
requirements, and schedules either presently incorporated in or to be developed
hereunder, all tasks, deliverables, sub-deliverables, goods, services, and other
work as set forth herein and elsewhere hereunder.
4.1 Non-transferable Responsibilities
No assumption or takeover of any of VENDOR's duties, responsibilities, or
obligations, or performance of same by any entity other than VENDOR, whether
through assignment, subcontract, delegation, merger, buyout, or any other
mechanism, with or without consideration, for any reason whatsoever, may occur
without COUNTY's express prior written approval.
If any such assumption, takeover, or unauthorized performance does occur without
such prior written approval, this Agreement will become void for failure of its
essential purpose. Such act is therefore a material breach of this Agreement,
upon which COUNTY may pursue any lawful remedy.
4.2 Assignment and Subcontracting
VENDOR shall not assign its rights, delegate its duties or subcontract any
performance of our Agreement
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without the express prior written consent of COUNTY. Any assignment,
delegation or subcontract without such express prior written consent shall
be null and void and shall constitute a material breach of this Agreement,
upon which COUNTY may immediately terminate the Agreement in accordance
with the provisions of paragraph 17.0 (TERMINATION BY DEFAULT).
4.3 Time is of the Essence
Time is of the Essence. If any anticipated or actual delays arise, VENDOR shall
immediately so notify COUNTY. Regardless of notice if deliveries are not made at
the time agreed upon, COUNTY may, at its sole discretion, terminate this
Agreement and proceed pursuant to Paragraph 17.0 (termination BY DEFAULT).
5.0 TERM OF AGREEMENT
5.1 This Agreement is awarded for a period of three (3) years, including a six
(6) month probationary period commencing upon execution by COUNTY'S Purchasing
Agent, or designee, indicated on the signature page.
The six (6) month probationary period shall include the evaluation of the
performance of services rendered within this Agreement, including on-time
delivery of products, testing, implementation, configuration, copying of
software, asset management, technical support, maintenance/upgrade services,
training and electronic ordering/reporting/invoicing/tracking capabilities.
Upon successful completion of the six (6) month probationary period, the period
of this Agreement will continue through the remainder of the three (3) year
term, unless sooner terminated, in whole or in part, as provided herein. This
Agreement may be extended up to a maximum of two (2) additional years beyond the
initial period upon executed approval by both COUNTY'S Purchasing Agent and
VENDOR'S Authorized Official.
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In the event the six (6) month probationary period is not successful, this
agreement will be terminated in its entirety. The County of Los Angeles shall be
sole judge in this decision.
5.2 Termination
This Agreement may be canceled by either party, after the initial 12 months of
the Agreement period, upon sixty (60) days written notice. The COUNTY may
continue to place orders against said Agreement until the effective date of such
cancellation.
5.3 Extension
5.3.1 The COUNTY's Purchasing Agent may exercise the option to extend the Master
Agreement period for two (2) additional twelve (12) month periods as set forth
in Paragraph 3.0 (Change Notices and Amendments), of this Master Agreement.
5.3.2 COUNTY shall notify VENDOR of any determination to extend this Agreement
no less than Thirty (30) days prior to the beginning of the relevant option
year.
6.0 METHOD OF PURCHASE, INVOICING AND PAYMENTS
6.1 Purchase Order(s)
6.1.1 COUNTY shall purchase the items listed herein by issuance of a formal
purchase order. Such purchase order shall contain the terms and conditions
applicable for that purchase. Notwithstanding anything herein to the contrary,
the purchase order, as specifically noted, shall govern and control the
applicable purchase. -Preprinted additional or different terms and conditions on
the purchase order will be of no force or effect.
6.1.2 VENDOR shall not deliver products and/or goods to COUNTY as loaner
equipment or for trial unless and until a "No Charge" purchase order and loan
agreement is received by VENDOR from COUNTY.
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6.2 Prices:
6.2.1 VENDOR agrees for the period of this Agreement that prices for products
covered herein will be based on a Cost Plus arrangement.
6.2.2 Notwithstanding anything herein to the contrary for thirty (30) days from
date of delivery to Customer, should Customer find a lower price, offered in
Southern California, for the same product, payment terms, quantity and delivery
terms and conditions set forth in the applicable purchase order and this
Agreement, VENDOR shall, upon presentation of authentic, (e.g. sales invoice,
advertisement(s) proof of such, immediately refund the difference to Customer.
This paragraph shall not apply to special and/or one-time offers, liquidation
sales and discounted product(s). Further, COUNTY contract VENDORS and
non-authorized resellers where required by the manufacturer, are excluded
6.3 Warranty and Product Compliance
6.3.1 All equipment provided to COUNTY must be new, unused, and be approved by
either U.L., L.A. City Testing Lab, Factory Mutual Corp. or ETL testing labs.
Further, equipment provided to COUNTY shall meet other such standards as the
COUNTY may require.
6.4 INVOICES AND PAYMENT TERMS
6.4.1 In no event shall the COUNTY be liable for any late fees or charges.
6.4.2 Invoices shall bear upon their face the Purchase Order number which
appears in the upper right-hand corner hereof. Invoices must state that they
cover, as the case may be, complete or partial delivery, and must show unit and
unit prices. Invoices will not be paid unless and until the requirements have
been fully met. All transportation and delivery charges must be prepaid in full
to destination.
6.4.3 Unless otherwise set forth on the applicable purchase order, payment terms
are net thirty (30) days from receipt of a
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properly prepared and submitted invoice. In no event shall COUNTY be liable for
any late charges. Invoices shall only be issued after COUNTY'S acceptance of the
goods and/or products. Discounts shall be set forth herein.
6.5 Product/Equipment Pricing and Maintenance
6.5.1 VENDOR will be solely responsible for the maintenance of the Agreement and
will document all additions, deletions, manufacturers' discontinuance of
products/equipment, and all associated variables Including pricing revisions.
Any changes, substitutions, additions, deletions and/or pricing revisions must
be reviewed and approved by the COUNTY and VENDOR in writing prior to any
inclusion to the Agreement.
6.5.2 Said notification and approval shall be binding upon the COUNTY and
VENDOR. Upon such approval the Agreement shall be deemed to be amended to
include such changes. All documentation and formal approvals and revised copies
of the effected Agreement page(s) reflecting current release revisions will be
submitted to:
County of Los Angeles Internal Services Department
Purchasing and Central Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Personal Computer Buyer
6.6 Independent CONTRACTOR Status
6.6.1 This Master Agreement is by and between COUNTY and VENDOR and is not
intended, and shall not be construed, to create the relationship of agent,
servant, employee, partnership, joint venture, or association, as between COUNTY
and VENDOR. The employees and agents of one party are not the employees or
agents of the other party for any purpose whatsoever.
6.6.2 VENDOR understands and agrees that all persons performing work pursuant to
this Master Agreement are, for purposes of workers' compensation liability,
solely employees of VENDOR and
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not employees of COUNTY. VENDOR shall be solely liable and responsible for
furnishing any and all workers' compensation benefits to any person as a result
of any injuries arising from or connected with any work performed by or on
behalf of VENDOR hereunder.
6.6.3 The employees and agents of each party, shall, while on the premises of
the other party, comply with all rules and regulations of the premises,
including, but not limited to, security requirements.
7.0 INDEMNIFICATION AND INSURANCE
7.1 Indemnification
VENDOR agrees to indemnify, defend and hold harmless COUNTY, COUNTY Special
Districts, and Participating Government entities and their elected and appointed
officers, employees, and agents, from and against any and all liability and
expense, including defense costs and legal fees, arising from or connected with
claims and lawsuits connected with VENDOR'S operations, goods and/or commodities
or services provided hereunder as well as for damages a or worker' s
compensation benefits relating to VENDOR's and its subcontractors operations and
services, which result from bodily and/or personal injury, death, or property
damage (including physical damage to VENDOR's and its subcontractors' property,
or property in the care, custody, or control of VENDOR and/or its
subcontractors). This indemnity shall include, but not be limited to claims for
or by reason of any actual or alleged infringement of any United States patent
or copyright or any actual or alleged trade secret disclosure.
7.2 Insurance
Without limiting VENDOR's indemnification of COUNTY, and during the term of this
Agreement, VENDOR shall provide and maintain at its own expense the
below-described programs of insurance. Such programs and evidence of insurance
shall be satisfactory to COUNTY and shall be primary to and not contributing
with any other insurance maintained by COUNTY. Certificates or other
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evidence of coverage shall be delivered to:
County of Los Angeles
ISD/Purchasing & Central Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Personal Computer Buyer
Prior to commencing performance under this Agreement, shall specifically
identify this Agreement, and shall contain the express condition that COUNTY is
to be given written notice by certified mail at least thirty (30) days in
advance of any modification or termination of insurance.
7.3 Liability Insurance
7.3.1 Any and all insurance described below shall be endorsed naming the County
of Los Angeles as an additional insured, and shall include:
7.3.2 General liability insurance written on a commercial general liability form
or on a comprehensive general liability form covering the hazards of
premises/operations, products/completed operations, contractual, broad form
property damage, independent contractors, and personal and advertising injury
with a combined single limit of not less than One Million Dollars ($1,000,000)
per occurrence.
A. If written with an annual aggregate limit, the policy limit shall
be three times the above required occurrence limit.
B. If written on a claims made form, the VENDOR shall provide an
extended two (2) year reporting period commencing upon expiration or
termination of this Agreement.
7.3.3 Comprehensive auto liability insurance endorsed for all owned, non-owned
and hired vehicles with a combined single limit of not less than Three Hundred
Thousand Dollars ($300,000) per occurrence.
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7.3.4 A program of workers' compensation insurance in an amount and form to meet
all applicable requirements of the California Labor Code including employer's
liability with a limit no less than One Million Dollars ($1,000,000), covering
all persons performing work on behalf of VENDOR and all risks to such persons
under this Agreement.
7.3.5 Crime Coverage: Insurance in an amount not less than $1,000,000 covering
against loss of money, securities, or other property referred to hereunder which
may result from employee dishonesty, forgery or alteration, theft, disappearance
and destruction, computer fraud, burglary and robbery. Such insurance shall name
COUNTY as loss payee.
7.4 Failure to Procure Insurance
Failure on the part of VENDOR to obtain and maintain all required insurance
coverage is a material breach upon which COUNTY may, in its sole discretion,
immediately suspend VENDOR's performance or terminate this Agreement.
8.0 RECORDS, DOCUMENTS AND AUDITS
VENDOR shall maintain accurate and complete financial records of its activities
and operations relating to this Agreement in accordance with generally accepted
accounting principles. VENDOR shall also maintain accurate and complete
employment and other records relating to its performance of this Agreement.
VENDOR agrees that COUNTY, or its authorized representatives, shall have access
to and the right to examine, audit, excerpt, copy or transcribe any pertinent
transaction, activity, or records relating to this Agreement. All financial
records, timecards and other employment records, and proprietary data and
information, shall be kept and maintained by VENDOR and shall be made available
to COUNTY during the term of this Agreement and for a period of four years
thereafter unless COUNTY's written permission is given to dispose of any such
material prior to such time. All such material shall be maintained by VENDOR at
a location in Los Angeles County, provided that if any such material is located
outside Los Angeles County, then, at COUNTY's
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option, VENDOR shall pay COUNTY for travel, per diem, and other costs incurred
by COUNTY to examine, audit, excerpt, copy or transcribe such material at such
other location.
In the event that an audit is conducted of VENDOR specifically regarding this
Agreement by any Federal or State auditor, or by any auditor or accountant
employed by VENDOR or otherwise, then VENDOR shall file a copy of the audit
report with COUNTY's Auditor-Controller within thirty days (30) of VENDOR's
receipt thereof, unless otherwise provided by applicable Federal or State law or
under this Agreement. COUNTY shall make a reasonable effort to maintain the
confidentiality of such audit report(s).
Failure on the part of VENDOR to comply with the provisions of this Paragraph
10.0 shall constitute a material breach upon which COUNTY may terminate or
suspend this Agreement.
8.1 Publicity
VENDOR shall not disclose any details in connection with this Agreement to
any person or entity except as may be otherwise provided herein or required by
law. However, in recognizing VENDOR's need to identify its services and related
clients to sustain itself, COUNTY shall not inhibit VENDOR from publishing its
role under this Agreement, with the following conditions:
A. VENDOR shall develop all publicity material in a professional manner.
B. During the term of this Agreement, VENDOR shall neither, authorize
another to, nor publish or disseminate any commercial advertisements,
press releases, feature articles, or other materials using the name of
COUNTY without the prior written consent of COUNTY's Purchasing Agent
COUNTY shall not unreasonably withhold written consent, and approval
by COUNTY may be assumed in the event no adverse comments are received
in writing within two weeks after submittal of written request for
such consent.
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C. VENDOR may, without the prior written consent of COUNTY, indicate in
its proposals and sales materials that it has been awarded this
Agreement with the County of Los Angeles, provided that the
requirements of this Paragraph 8.0 shall apply.
9.0 EMPLOYMENT ELIGIBILITY VERIFICATION
VENDOR warrants that it fully complies with all Federal statutes and regulations
regarding the employment of aliens and others and that all its employees
performing work under this Master Agreement meet the citizenship or alien status
requirements set forth in Federal statutes and regulations. VENDOR shall
indemnify, defend, and hold harmless COUNTY, its officers, participating
government agencies and employees from and against any employer sanctions and
any other liability which may be assessed against VENDOR or COUNTY in connection
with any alleged violation of any Federal statutes or regulations pertaining to
the eligibility for employment of any persons performing work hereunder
10.0 CAPTIONS AND PARAGRAPH HEADINGS
Captions and paragraph headings used in this Master Agreement are for
convenience only and are not a part of this Master Agreement and shall not be
used in construing this Master Agreement.
11.0 WAIVER
No waiver by either party of any breach of any provision of this Master
Agreement shall constitute a waiver of any other breach or of such provision.
Failure of either party to enforce at any time, or from time to time, any
provision of this Master Agreement shall not be construed as a waiver thereof.
The rights and remedies set forth in this Paragraph 13.0 are non-exclusive and
cumulative.
12.0 GOVERNING LAW, JURISDICTION AND VENUE
This Master Agreement shall be governed by, and construed in
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accordance with, the laws of the State of California. VENDOR agrees and consents
to the exclusive jurisdiction of the courts of the State of California for all
purposes regarding this Master Agreement and further agrees and consents that
venue of any action brought hereunder shall be exclusively in the County of Los
Angeles, California.
13.0 SEVERABILITY
If any provision of this Master Agreement or the application thereof to any
person or circumstance is held invalid, the remainder of this Master Agreement
and the application of such provision to other persons or circumstances shall
not be affected, unless the essential purposes of this Master Agreement shall be
materially impaired thereby.
14.0 PROHIBITION OF HIRING
VENDOR and COUNTY agree that, during the term of this Agreement and for a period
of six months following its termination, neither party shall in any way induce
or persuade any employee of one party to become an employee or agent of the
other party. No bar exists to any hiring initiated through a public
announcement.
15.0 TERMINATION FOR GRATUITIES
COUNTY may, by written notice to VENDOR, terminate the right of VENDOR to
proceed under this Master Agreement upon one day's written notice, if it is
found that gratuities in the form of entertainment, gifts, or otherwise were
offered or given by, or any agent or representative of VENDOR, to any officer or
employee of COUNTY with a view toward securing a contract or securing favorable
treatment with respect to the awarding or amending, or the making of any
determinations with respect to the performing, of such contract. In the event of
such termination, COUNTY shall be entitled to pursue the same remedies against
VENDOR as it could pursue in the event of default by VENDOR.
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15.1 TERMINATION FOR IMPROPER CONSIDERATION
COUNTY may, by written notice to CONTRACTOR, immediately terminate the right of
CONTRACTOR to proceed under this Agreement if it is found that consideration, in
any form, was offered or given by CONTRACTOR, either directly or through an
intermediary, to any County officer, employee or agent with the intent of
securing the Agreement or securing favorable treatment with respect to the
award, amendment or extension of the Agreement or the making of any
determinations with respect to the CONTRACTOR's performance pursuant to the
Agreement. In the event of such termination, COUNTY shall be entitled to pursue
the same remedies against CONTRACTOR as it could pursue in the event of default
by the CONTRACTOR.
CONTRACTOR shall immediately report any attempt by a County officer or employee
to solicit such improper consideration. The report shall be made either to the
County manager charged with the supervision of the employee or to the County
Auditor-Controller's Employee Fraud Hotline at (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇.
Among other items, such improper consideration may take the form of cash,
discounts, service, the provision of travel or entertainment, or tangible gifts.
16.0 TERMINATION FOR INSOLVENCY
COUNTY may terminate this Master Agreement forthwith in the event of the
occurrence of any of the following:
A. Insolvency of VENDOR. VENDOR shall be deemed to be insolvent if it has
ceased to pay its debts for at least sixty days in the ordinary course
of business, whether or not a petition has been filed under the
Federal Bankruptcy Code and whether or not VENDOR is insolvent within
the meaning of such laws
B. The filing of a voluntary or involuntary petition regarding VENDOR
under the Federal Bankruptcy Code.
C. The appointment of a Receiver or Trustee for VENDOR.
D. The execution by VENDOR of a general assignment for the benefit of
creditors.
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The rights and remedies of COUNTY provided in this Paragraph 19.0 shall not be
exclusive and are in addition to any other rights and remedies provided by law
or under this Master Agreement.
17.0 TERMINATION FOR DEFAULT
COUNTY may, by written notice to VENDOR, terminate the whole or any part of this
Master Agreement if, in the judgment of COUNTY's Purchasing Agent:
A. VENDOR has materially breached this Master Agreement as elsewhere
provided herein: or
B. VENDOR fails to timely provide and/or satisfactorily perform any task,
deliverable, service, or other work required under this Master
Agreement hereunder; or
C. VENDOR has assigned or delegated its duties or subcontracted any
performance of this Agreement without prior written consent by COUNTY
as elsewhere provided.
VENDOR shall not be liable for any excess costs If its failure to perform under
this Master Agreement, arises from force majeure, i.e., causes beyond the
control and without the fault or negligence of VENDOR. Such causes include, but
are not necessarily limited to: acts of God or of the public enemy, acts of
COUNTY in either its sovereign or contractual capacity, acts of Federal or State
Governments in their sovereign capacities, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, and unusually severe weather; but in
every case, the failure to perform must be beyond the control and without the
fault or negligence of VENDOR. If the failure to perform is caused by the
default of a subcontractor, and if such default arises out of causes beyond the
control of both VENDOR and subcontractor, and without the fault or negligence of
either, VENDOR shall not be liable for any such excess costs for failure to
perform, unless the goods or services to be furnished by the subcontractor were
obtainable from other sources in sufficient time to permit VENDOR to meet the
requirements. As used in this subparagraph the terms "subcontractor" and
"subcontractors" mean
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subcontractor(s) at any tier.
If, after COUNTY has given notice of termination under the provisions of this
Paragraph 17.0, it is determined by COUNTY that VENDOR was not in default under
these provisions, or that the default was excusable under these provisions, the
rights and obligations of the parties shall be the same as if the notice of
termination had been issued pursuant to Paragraph 18.0 (Termination for
Convenience).
The rights and remedies of COUNTY provided in this Paragraph 17.0 are
non-exclusive and cumulative.
18.0 TERMINATION FOR CONVENIENCE
This Master Agreement, may be terminated, when such action is deemed by COUNTY
to be in its best interest. Termination shall be effected by delivery to VENDOR
of a notice of termination specifying the extent to which performance of
Agreement is terminated and the date upon which such termination becomes
effective, which shall be no less than ten (10) days after the notice is sent.
After receipt of a notice of termination, VENDOR shall submit its termination
claim and invoice to COUNTY, in the form and with any certifications as may be
prescribed by COUNTY. Such claim and invoice shall be submitted promptly, but
not, later than three months from the effective date of termination. Upon
failure of VENDOR to submit its termination claim and invoice within the time
allowed, COUNTY may determine on the basis of information available to COUNTY,
the amount, if any, due to VENDOR in respect to the termination, and such
determination shall be final. When such determination is made, COUNTY shall pay
VENDOR the amount so determined.
Vendor shall honor purchase orders accepted on or before the effective date of
termination.
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19.0 TERMINATION FOR FAILURE TO OPERATE IN ORDINARY COURSE
VENDOR'S stability was and/is a primary basis for entering into and continuing
with this Agreement, therefore, COUNTY may terminate this Agreement by thirty
(30) days written notice should vendor fail to continue to do business in the
ordinary course.
20.0 COUNTY AUDIT SETTLEMENTS
If, at any time during or after the term of this Master Agreement,
representatives of COUNTY conduct an audit of VENDOR regarding the work
performed under this Master Agreement, and if such audit finds that COUNTY's
dollar liability for any such work is less than payments made by COUNTY to
VENDOR, then the difference shall be either repaid by VENDOR to COUNTY by cash
payment upon demand or, at the sole option of COUNTY, deducted from any amounts
due to VENDOR from COUNTY. If such audit finds that COUNTY's dollar liability
for such work is more than the payments made by COUNTY to VENDOR, then the
difference shall be paid to VENDOR by COUNTY by cash payment.
21.0 CONFLICT OF INTEREST
No COUNTY employee whose position with COUNTY enables such employee to influence
the award or conduct of this Master Agreement, and no spouse or economic
dependent of such employee, shall be employed in any capacity by VENDOR or have
any other direct or indirect financial interest in this Master Agreement. No
officer or employee of, nor any individual possessing any direct or indirect
financial interest in, VENDOR, may in any way participate in COUNTY's approval,
or ongoing evaluation, of such work, or in any way attempt to influence COUNTY's
approval or ongoing evaluation of such work.
VENDOR shall comply with all conflict of interest laws, ordinances and
regulations now in effect or hereafter to be enacted during the term of this
Master Agreement. VENDOR warrants that it is not now aware of any facts which
create a conflict of interest. If VENDOR hereafter becomes aware of any facts
which might reasonably be expected to create a conflict of interest, it shall
immediately make full written disclosure of such facts to
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COUNTY. Full written disclosure shall include, but is not limited to,
identification of all persons implicated and a complete description of all
relevant circumstances.
22.0 FORCE MAJEURE
Neither party will be liable for delays in performance beyond reasonable
control, including, but not limited to, fire, flood, acts of God or restriction
of civil or military authority.
23.0 MOST FAVORED PUBLIC ENTITY
VENDOR represents that the prices charged to COUNTY in this Agreement do not
exceed existing selling prices to other customers for the same or substantially
similar items or services for comparable quantities under similar terms and
conditions.
If VENDOR's prices decline, or should VENDOR, at any time during the term of
this Master Agreement, provide the same goods or services under similar quantity
and delivery conditions to the State of California or any county, municipality
or district of the State at prices below those set forth in this Master
Agreement, then such lower prices shall be immediately extended to COUNTY.
24.0 DAMAGE TO COUNTY FACILITIES, BUILDINGS OR GROUNDS
VENDOR shall repair, or cause to be repaired, at its own cost, any and all
damage to COUNTY facilities, buildings, or grounds caused by VENDOR or
employees, subcontractors or agents of VENDOR. Such repairs shall be made
immediately after VENDOR has become aware of such damage, but in no event later
than thirty days after the occurrence.
If VENDOR fails to make timely repairs, COUNTY may make any necessary repairs.
All costs incurred by COUNTY, as determined by COUNTY for such repairs shall be
repaid by VENDOR by cash payment upon demand or COUNTY may deduct such costs
from any amounts due to VENDOR from COUNTY.
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25.0 RESTRICTIONS ON LOBBYING
25.1 COUNTY Projects
VENDOR, and each COUNTY lobbyist or COUNTY lobbying firm as defined in COUNTY
Code Section 2.160.010 retained by VENDOR, shall fully comply with COUNTY's
Lobbyist Ordinance, COUNTY Code Chapter 2.160. Failure on the part of VENDOR or
any COUNTY lobbyist or COUNTY lobbying firm retained by VENDOR to fully comply
with COUNTY's Lobbyist Ordinance shall constitute a material breach of this
Agreement, upon which COUNTY may immediately terminate or suspend this
Agreement.
26.0 NOTICES
All notices or demands required or permitted to be given or made under this
Agreement shall be in writing and shall be hand-delivered with signed receipt or
mailed by first-class registered or certified mail, postage prepaid, addressed
to the parties at the following addresses:
If to COUNTY: ISD/Purchasing and Central Services
Attn: Personal Computer Buyer
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to VENDOR: WAREFORCE, INC.
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Addressees may be changed upon ten days prior written notice.
27.0 AUTHORIZATION WARRANTY
VENDOR represents and warrants that the person executing this Agreement for
VENDOR is an authorized agent who has actual authority to bind VENDOR to each
and every term, condition and obligation of this Agreement and that all
requirements of VENDOR have been fulfilled to provide such actual authority.
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28.0 VARIATION OF TERMS
The parties hereto agree that the terms and conditions contained herein shall
prevail notwithstanding any variations on any acknowledgments, invoices or such
other documents submitted by VENDOR. Any addendum hereto shall become binding
upon the parties only after signature by authorized representatives of both
parties.
29.0 CANCELLATION OF ORDERS
COUNTY may cancel any purchase order with respect to any Supplies or equipment
ordered without incurring any cancellation charges by giving VENDOR notice of
such cancellation at least ten (10) days prior to the scheduled delivery date
specified in COUNTY's order.
30.0 NON EXCLUSIVITY
This Agreement is non-exclusive and shall not in any way preclude COUNTY from
entering into similar agreements and/or arrangements with other vendors or from
acquiring similar, equal or like goods and/or services from other entities or
sources.
COUNTY makes no representation that it or any governmental entity ill purchase
any minimum quantities or dollar amounts.
31.0 Compliance with Applicable Law
VENDOR shall comply with all applicable Federal, State and local laws, rules,
regulations, and ordinances, and all provisions required thereby to be included
in this Master Agreement are hereby incorporated herein by reference.
VENDOR warrants that the products shipped may be used in a customary manner
without violation of any law, ordinance, rule or regulation of any government or
administrative body. These laws, ordinances, rules or regulations include, but
are not limited to, CAL/OSHA and County Code Title 27 and Ordinance No. 4388
(electrical approval) and are incorporated herein by reference.
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VENDOR shall indemnify and hold harmless COUNTY from and against any and all
liability, damages, costs, and expenses, including, but not limited to, defense
costs and attorneys' fees, arising from or related to any violation on the part
of VENDOR, its employees, agents, or subcontractors of any such laws, rules,
regulations, and ordinances.
32.0 Fair Labor Standards
VENDOR shall comply with all applicable provisions of the Federal Fair Labor
Standards Act (FLSA), and shall indemnify, defend, and hold harmless COUNTY, its
officers, employees, and agents from any and all liability, including, but not
limited to, wages, overtime pay, liquidated damages, penalties, court costs, and
attorneys' fees arising under any wage and hour law, including, but not limited
to, FLSA, for work performed by VENDOR'S employees for which COUNTY may be found
jointly or solely liable.
33.0 Nondiscrimination and Affirmative Action
VENDOR certifies and agrees that all persons employed by it, its affiliates,
subsidiaries or holding companies are and will be treated equally without regard
to or because of race, color, religion, ancestry, national origin, sex, age, or
physical or mental handicap, in compliance with all applicable Federal and State
anti-discrimination laws and regulations. VENDOR shall certify to, and comply
with, the provisions of Exhibit A (VENDOR'S EEO Certification).
VENDOR shall take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to race, color,
religion, ancestry, national origin, sex, age, or physical or mental handicap,
in compliance with all applicable Federal and State anti-discrimination laws and
regulations. Such action shall include, but is not limited to: employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination, rates of pay or other forms of compensation, and selection for
training, including apprenticeship.
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VENDOR certifies and agrees that it will deal with its subcontractors, bidders
or vendors without regard to or because of race, color, religion, ancestry,
national origin, sex, age, or physical or mental handicap.
VENDOR certifies that it is in compliance with all federal, state, and local
laws, including, but not limited to:
A. Title VI, Civil Rights Act of 1964;
B. Section 504, Rehabilitation Act of 1973;
C. Age Discrimination Act of 1975;
D. Title IX, Education Amendments of 1973, as applicable; and
E. Title 43, Part 17, Code of Federal Regulations, Subparts A & B;
and that VENDOR shall subject no person, on the grounds of race, creed, color,
national origin, political affiliation, marital status, sex, age, or handicap,
to discrimination as to any privileges or uses granted by this Agreement or
under any project, program or activity supported by this Agreement.
VENDOR shall allow COUNTY representatives access to its employment records
during regular business hours to verify compliance with the provisions of this
Paragraph 33.0 when so requested by COUNTY.
If COUNTY finds that any of the provisions of this Paragraph 33.0 have been
violated, such violation shall constitute a material breach of this Agreement
upon which COUNTY may terminate or suspend this Agreement. While COUNTY reserves
the right to determine independently that the anti-discrimination provisions of
this Agreement have been violated, in addition, a determination by the
California Fair Employment Practices Commission or the Federal Equal Employment
Opportunity Commission that VENDOR has violated State or Federal
anti-discrimination laws or regulations shall constitute a finding by COUNTY
that VENDOR has violated the anti-discrimination provisions of this Agreement.
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The parties agree that in the event VENDOR violates the anti-discrimination
provisions of this Agreement, COUNTY shall, at its, option, be entitled to the
sum of Five Hundred Dollars ($500) for each such violation pursuant to
California Civil Code Section 1671 as liquidated damages in lieu of terminating
or suspending this Agreement.
34.0 Participating Municipalities
At County's sole discretion and option, County may inform other governmental,
excluding federal, entities ("entity") that they may acquire items listed in
this agreement. Such acquisition(s) shall be at the prices stated herein, and
shall be subject to vendor's acceptance.
In no event shall County be considered a dealer, remarketeer, agent or other
representative of vendor. Further, COUNTY is not an agent, partner or
representative of the entity ordering products hereunder, and shall not be
obligated or liable for any order
Vendor and County recognize that from time to time vendor's reasonable
assistance may facilitate and expedite a presentation by the County to any
entity. Such assistance shall be provided, at no cost, by vendor upon the
written request of the County.
Entity purchase orders may, as agreed by County, be submitted by the entity or
by County. In either event, County shall be entitled to an administrative fee
of one percent (1%) of the purchase price, excluding taxes and shipping, for
each such purchase order. Payment of the fee shall be by vendor to County within
thirty (30) days of Vendor's receipt of entity's payment of the purchase order
invoice. Payment to County shall include a statement showing the entity name,
purchase order and date and purchase price. Vendor shall have no claim or right
to all or any portion of the fee.
Payment shall be made out to the County of Los Angeles and delivered to:
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County of Los Angeles
ISD/Purchasing and Central Services
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Manager
Vendor shall, at its expense, maintain an accounting of purchases made by
entities. Such accounting shall be provided, at vendor's expense, to County's
designated location within ten (10) days of County's written request. County
reserves the right to audit any such accounting for a period of four (4) years
from the date County receives the accounting. In the event of such an audit, the
requested materials shall be provided at the location designated by County.
Vendor authorizes County's use of vendor's name, trademarks and vendor provided
materials in County's presentations and promotions regarding the availability of
use of the Agreement. County makes no representation or guarantee as to any
minimum being purchased by County or entities.
COUNTY WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY OBLIGATIONS, INCLUDING, BUT NOT
LIMITED TO PAYMENT, FOR ANY ITEM ORDERED BY ENTITIES.
COUNTY makes no representation or guarantees as to any minimums being purchased
by COUNTY or ENTITIES.
35.0 CONSUMPTION REPORTS/ITEM NUMBERS/RESTRICTED PURCHASES
Each COUNTY department procurement office and participating agency is to be
assigned a customer number to be used in identifying each sale and proper
billing addresses. VENDOR is required to furnish to Purchasing monthly computer
based usage reports of purchases separated by individual COUNTY departments,
and/or delivery locations, and employee purchases, listing quantities of
separate items purchased and total dollars expended. Usage reports listing items
in alphabetical order and descending dollar volume order must also be furnished.
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VENDOR must provide any other usage reports that COUNTY departments or
participating agencies may require for their internal controls.
36.0 ORDERING REQUIREMENTS
VENDOR shall provide the ability for unlimited amount of users to order via
on-line communication with the vendors computer system by COUNTY owned PC/CRT
terminals and printers, or by FAX, telephone, direct mail or walk-in orders.
VENDOR shall design an Input Screen/Order Form to be used on all orders (which
may be supported by normal COUNTY Purchase Order Form). Cost of input form
creation, programming, future changes or modifications, and maintenance shall be
exclusively for VENDOR'S account.
VENDOR shall furnish and deliver annually catalogs and price lists to COUNTY
departments and participating government agencies.
37.0 SHIPPING INSTRUCTIONS:
(F.O.B. Destination) when proprietary equipment (company-owned vehicle) is not
used, please contact County Traffic Management at (▇▇▇) ▇▇▇-▇▇▇▇, 6884 or 6886.
38.0 LIMITATION OF COUNTY'S OBLIGATION DUE TO NON-APPROPRIATION OF FUNDS
County's obligation is payable only and solely from funds appropriated for the
purchase of this Agreement.
All funds for payments after June 30th of the current fiscal subject to County's
legislative appropriation for this purpose. Payments during subsequent fiscal
periods are dependent upon the same action.
In the event this Agreement extends into succeeding fiscal year periods, and if
the governing body appropriating the funds does not allocate sufficient funds
for the next succeeding fiscal year's payments, then the affected services shall
be terminated
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as of June 30th of the then current fiscal year. County shall notify Contractor
in writing of such non-allocation at the earliest possible date.
AUTHORIZATION OF MASTER AGREEMENT
BY AND BETWEEN
COUNTY OF LOS ANGELES AND
WAREFORCE, INC.
FOR
PERSONAL COMPUTERS, PERIPHERALS, SOFTWARE AND RELATED SERVICES
IN WITNESS WHEREOF, the County of Los Angeles has caused this Agreement
subscribed by its Purchasing Agent and VENDOR has caused this Agreement
subscribed in its behalf by its duly authorized officer, this lst day of
September l997.
COUNTY OF LOS ANGELES
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DIRECTOR, INTERNAL SERVICES
DEPARTMENT/PURCHASING AGENT
By /s/P. Price
------------------------------------
Name: P. Price
Title: Senior Deputy Purchasing Agent
--------------------------------
VENDOR
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Title: PRESIDENT
--------------------------------
