4._Sample_Standard_Agreement_and_Exhibits.pdf

STATE OF CALIFORNIA

STANDARD AGREEMENT

STD 213 (Rev 06/03) AGREEMENT NUMBER Request For Proposal 5000000660

REGISTRATION NUMBER

1. This Agreement is entered into between the State Agency and the Contractor named below:

STATE AGENCY'S NAME

California State Teachers’ Retirement System

CONTRACTOR'S NAME

"Insert Contractor's Name"

2. The term of this

Agreement is: "Insert Start Date" through "Insert End Date"

3. The maximum amount $"Numeric Dollar Amount" US Dollars of this Agreement is: "Written Dollar Amount"

4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement.

Exhibit A – Scope of Work # page(s) Exhibit B – Fee Schedule # page(s) Exhibit C – Confidentiality , Non-Disclosure and Acceptable Use Agreement # page(s)

Exhibit D – Contractor Background Investigation Policy # page(s) Exhibit E – Certification of Contractor’s Employee Background Investigation Form # page(s) Exhibit F – Personal History Statement # page(s) Exhibit G – "Insert Contractor's Name" Authorized/Key Personnel # page(s) Exhibit H – Teachers Retirement Board Policy Manual Section 600H # page(s) Exhibit I – Form 600-H Disclosure of Contributions and Gifts # page(s) Exhibit J – Work Authorization # page(s) Exhibit K – Deliverable Expectation Document # page(s) Exhibit L – Deliverable Acceptance Document

# page(s)

Exhibit M – Contractor’s Technical Proposal and RFP 5000000660* Items shown with an Asterisk (*) are hereby incorporated and made part of this agreement if attached hereto.

Pages 2 through 27 attached are hereby incorporated into the Agreement.

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.

CONTRACTOR California State Teachers’ Retirement System Use Only

CONTRACTOR’S NAME (if other than an individual, state whether a corporation, partnership, etc.)

"Insert Contractor's Name" BY (Authorized Signature)

DATE SIGNED(Do not type)

PRINTED NAME AND TITLE OF PERSON SIGNING

ADDRESS APPROVED AS TO FORM

CalSTRS LEGAL COUNSEL

"Insert Contractor's Address"

STATE OF CALIFORNIA

AGENCY NAME

California State Teachers’ Retirement System BY (Authorized Signature)

DATE SIGNED(Do not type)

PRINTED NAME AND TITLE OF PERSON SIGNING Exempt per:

"Lisa Blatnick, Cassandra Lichnock, Jack Ehnes" , "Spell out CAS, COO, CEO"

ADDRESS

100 Waterfront Place West Sacramento, CA 95605

Request For Proposal 5000000660 BusinessDirect Maintenance and Operations

A. INTRODUCTION

The California State Teachers’ Retirement System (CalSTRS) and "Contractor's Name" (Contractor) enter into this Agreement to provide "[Briefly describe services to be provided. If applicable include Exhibit.]"

B. GENERAL RESPONSIBILITIES

1. Contractor

a) Contractor shall

"[Define specific services to be performed. If applicable, include Exhibit.]"

b) "[Define schedule of deliverable and due dates.]"

2. CalSTRS

a) CalSTRS shall provide

"[Define CalSTRS responsibilities. If applicable, include the Exhibit.]"

b) Define schedule of deliverables and due dates "[Define any deliverables. If applicable, include the Exhibit.]"

C. AGREEMENT CONTACTS

1. Contractor

a) Contractor liaison for services shall be "Name, Title, Telephone Number and Email Address."

b) Correspondence may be addressed to "physical address."

2. CalSTRS

a) CalSTRS Business (Agreement) Liaison/Coordinator for services shall be "Name, Title, Telephone Number, Email Address, and Mail Stop."

b) CalSTRS Business (Agreement) Manager for services shall be "Name, Title, Telephone Number, Email Address, and Mail Stop."

c) Correspondence may be addressed to the California State Teachers’ Retirement System, 100 Waterfront Place, Mail Stop (number above), West Sacramento, CA 95605 or P.O.

Box 15275, Sacramento, CA 95851-0275.

d) Any notices to be given shall be in writing and served to CalSTRS either personally or delivered by mail to the address listed above, including:

"Branch Title/Name" "Exec's Name" , Deputy Chief Executive Officer

"MailStop Number"

C. TERM

The term of this Agreement shall be from “Start Date” through “End Date”.

D. FEES

1. The total amount of this Agreement shall not exceed, unless amended in writing and signed by the CalSTRS’ Accounting Officer.

2. Fees shall be distributed in accordance with Exhibit B, Fee Schedule.

E. BUDGET DETAIL AND PAYMENT PROVISIONS

1. Invoicing and Payment

a) For services satisfactorily rendered, and upon receipt and approval of the invoices, CalSTRS agrees to compensate the Contractor for actual expenditures incurred in accordance with the rates specified herein, which is attached hereto and made a part of this Agreement.

b) Invoices shall be submitted not more frequently than in monthly arrears to the following options:

1. Facilities Mail & Imaging Services, E-mail address

2. FMIS- CorporateImagingServices@CalSTRS.com; or CalSTRS Vendor Portal: https://partners.calstrs.com:4343/irj/portal; or

3. Hard copy, mailed to:

CalSTRS, P.O. Box 15275, MS 24, Sacramento, CA 95851-0275

c) Invoice(s) must include: 1) CalSTRS Agreement Number; 2) Contractor’s name, address and telephone number; 3) itemized description of services including detailed cost and date(s) of services; 4) fiscal year in which services were rendered; and 5) total amount of invoice in US dollars.

2. Budget Contingency Clause

a) It is mutually agreed that if the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no further force and effect. In this event, CalSTRS shall have no liability to pay any funds whatsoever to Contractor or to furnish any other considerations under this Agreement and Contractor shall not be obligated to perform any provisions of this Agreement.

b) If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, CalSTRS shall have the option to either cancel this Agreement with no liability occurring to CalSTRS, or offer an Agreement amendment to Contractor to reflect the reduced amount.

3. Prompt Payment Clause

Payment will be made in accordance with, and within the time specified in, Government Code Chapter 4.5, commencing with Section 927.

F. PRICE DECLINE (Applicable to Third Party Contractors) mailto:FMIS-%09CorporateImagingServices@CalSTRS.com https://partners.calstrs.com:4343/irj/portal

Should a price decline be announced by the manufacturer after contract award, but prior to a third party contractor taking title to the Equipment, and should the third party contractor be the recipient of this manufacturer’s price decline, it shall be passed on in total to CalSTRS by the third party contractor. Any interest, finance, or other charges based on the contract price will be recomputed using the original bid rates and the differences will be passed to CalSTRS in total.

G. GENERAL TERMS AND CONDITIONS

1. Timeliness

Time is of the essence in this Agreement.

2. Approval

This Agreement is of no force or effect until signed by both parties. Contractor may not commence performance until approval has been obtained.

3. Personnel

a) Contractor personnel shall perform certain CalSTRS approved duties on the premises of CalSTRS, during CalSTRS’ regular work days and normal work hours, except as may be specifically agreed to otherwise by CalSTRS.

b) CalSTRS reserves the right in its reasonable discretion to disapprove the continuing assignment of Contractor personnel provided to CalSTRS under this Agreement. If CalSTRS exercises this right, and Contractor cannot promptly replace the disapproved personnel, the parties agree to proceed with an equitable adjustment in schedule or other terms that may be affected thereby.

c) The Contractor will make every effort consistent with sound business practices to honor the specific request of CalSTRS with regard to assignment of employees; however the Contractor reserves the sole right to determine the assignment of employees. If a Contractor employee is unable to perform due to illness, resignation, or other factors beyond the Contractor’s control, the Contractor will make every reasonable effort to provide suitable substitute personnel.

d) In recognition of the fact that Contractor personnel providing services under this Agreement may perform similar services from time to time for others, this Agreement shall not prevent Contractor from performing such similar services or restrict Contractor from using the personnel provided to CalSTRS under this Agreement, providing that such use does not conflict with the performance of services under this Agreement.

4. Responsibilities

a) CalSTRS shall provide normal office working facilities reasonably necessary for Contractor performance under this Agreement for certain duties. Any special requirements (e.g., reprographic service, computer time, key data entry, etc.) shall be identified in the Statement of Work.

b) CalSTRS will provide such additional assistance and services as is specifically set forth in Exhibit A, Statement of Work.

c) The Contractor will not be responsible for any delay, cost increase, or other consequences to the extent that it is caused by CalSTRS’ failure to fulfill responsibilities set forth herein. In the event of any claim for equitable adjustment to price, schedule, or both, the parties will negotiate in good faith regarding execution of an Agreement amendment.

Should the Contractor determine that a delay exists or is probable due to a failure of CalSTRS, the Contractor will promptly notify CalSTRS in writing.

d) Contractor shall use CalSTRS facilities in a reasonable manner, minimizing interference with CalSTRS’ and CalSTRS’ contractors’ operations. With respect to Contractor’s use of CalSTRS facilities, Contractor shall comply with all reasonable policies and procedures applicable to the performance of the services provided in this Agreement.

Contractor shall maintain the CalSTRS facilities in good condition (normal wear and tear excepted) and not commit or permit waste or damage to such CalSTRS facilities.

e) Contractor shall not permit any other person to use CalSTRS facilities, other than Contractor Subcontractors specifically approved in writing with respect to access and use without CalSTRS’ prior written approval.

f) Subject to the terms of this Agreement, Contractor shall be responsible for any damage to CalSTRS facilities resulting from the abuse, misuse, or neglect by Contractor, Contractor personnel and subcontractor

g) Contractor shall repair damages and be liable for the cost of such repairs, or if CalSTRS repairs such damages, Contractor shall compensate CalSTRS for the reasonable cost of such repairs.

5. Unanticipated Tasks

a) In the event that additional work must be performed which is unanticipated and is not specified in the Statement of Work, but which in the opinion of both parties is necessary to the successful accomplishment of the general scope of work outlined, the procedures outlined in this Section will be employed. Unanticipated tasks are Services or Deliverables that were not included within the parties’ agreement on scope, price and schedule as evidenced by the project documents (i.e., the SOW, the Proposal, the Project Plan and Schedule, the Detailed Design, and the Contractor’s estimates and work papers).

b) For each item of unanticipated work not specified in the Statement of Work, a Work Authorization will be prepared in accordance with the sample attached as CalSTRS Work Authorization, Exhibit J.

c) It is understood and agreed by both parties to this Agreement that all of the terms and conditions of this Agreement shall remain in full force with the inclusion of any such Work Authorization. Such Work Authorization shall in no way constitute an Agreement other than as provided pursuant to this Agreement nor in any way amend or supersede any of the other provisions of this Agreement, except as provided in the Work Authorization.

d) Each Work Authorization shall consist of a detailed statement of the purpose, objective, or goals to be undertaken by the Contractor, the job classification or approximate skill level of the personnel to be made available by the Contractor, an identification of all significant material to be developed by the Contractor and delivered to CalSTRS, an identification of all significant materials to be delivered by CalSTRS to the Contractor, an estimated time schedule for the provisions of these services by the Contractor, completion criteria for the work to be performed, the name or identification of the Contractor personnel to be assigned, the Contractor’s estimated work hours required to accomplish the purpose, objective or goals, the Contractor’s billing rates per work hour, and the Contractor’s estimated total cost or fixed price for the Work Authorization.

e) All Work Authorizations must be in writing prior to beginning work and signed by the Contractor and CalSTRS.

f) CalSTRS has the right to require the Contractor to stop or suspend work on any Statement of Work by providing the Contractor with written notice. If the performance of all or any part of the work is stopped or suspended (1) by an act of the CalSTRS in the administration of this Agreement, or (2) by the CalSTRS’s failure to act within the time specified in this Agreement (or within a reasonable time if not specified), an adjustment shall be made for any increase in the cost of performance of the Statement of Work necessarily caused by stoppage or suspension, and the Statement of Work modified in writing accordingly. No adjustment shall be made under this clause for any stoppage or suspension to the extent that performance would have been so stopped or suspended by the fault or negligence of the Contractor, or for which an equitable adjustment is provided for under any other term or condition of this Agreement or the Statement of Work. A claim under this clause shall not be allowed (i) for any costs incurred more than 20 days before the Contractor shall have notified the CalSTRS in writing of the act or failure to act involved (but this requirement shall not apply as to a claim resulting from a suspension order); and (ii) unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of the stoppage or suspension, but not later than the date of final payment under the Agreement. The parties shall act in good faith and take reasonable steps to mitigate the costs and schedule impacts of any delay or suspension.

g) Personnel resources will not be expended (at a cost to CalSTRS) on task accomplishment in excess of the estimated work hours required or fixed price unless the procedure below is followed:

(i) If, in the performance of the work, the Contractor determines that a Work Authorization to be performed under this Agreement cannot be accomplished with the estimated work hours or fixed price, the Contractor will immediately notify CalSTRS in writing of the Contractor’s estimate of the work hours or fixed price which will be required to complete the Work Authorization in full. Upon receipt of such notification, CalSTRS may:

(a) Authorize the Contractor to expend the estimated additional work hours or service in excess of the original estimate or fixed price necessary to accomplish the Work Authorization, or

(b) Terminate the Work Authorization, or

(c) Alter the scope of the Work Authorization in order to define tasks that can be accomplished within the remaining estimated work hours or fixed price.

(ii) CalSTRS will notify Contractor in writing of its election within fifteen (15) work days after receipt of the Contractor’s notification. If notice of election is given to proceed, the Contractor may expend the estimated additional work hours or services. CalSTRS agrees to reimburse the contractor for such additional work hours or fixed price.

6. Amendment

No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties.

7. Taxes

Unless otherwise required by law, CalSTRS is exempt from Federal excise taxes. CalSTRS will only pay for any state or local sales or use taxes on the services rendered or goods supplied to CalSTRS pursuant to this Agreement.

8. Severability

Should any provision(s) of this Agreement be declared or found to be illegal, unenforceable, ineffective or void, then each party shall be relieved of any obligations arising in such provision(s); the balance of this Agreement, if capable of performance shall remain and continue in full force and effect.

9. Force Majeure

Neither party shall be liable to the other for delay in or failure of performance due to a cause beyond its reasonable control, nor shall any such delay in or failure of performance constitute default, if such delay or failure is caused by “Force Majeure.” Such causes may include, but are not restricted to, Acts of God or of the public enemy, acts of the State in its sovereign capacity, fires, floods, power failure, disabling strikes, epidemics, quarantine restrictions, and freight embargoes. The delay will be excused during the continuance of the delay and the period of performance will be extended as reasonable after the cause of delay is removed. If a delay continues for a period of more than 30 days, either party may terminate an affected SOW upon written notice to the other party and CalSTRS will pay Contractor for all work performed, Deliverables created and expenses incurred through the effective date of termination.

Upon the occurrence of a Force Majeure Event:

(a) the non-performing party shall immediately notify the other party of the occurrence of the Force Majeure Event, describing the circumstances causing such delay of performance to a reasonable level of detail, and giving an estimate of when performance will recommence; and

(b) the non-performing party shall perform (or recommence performing) its obligations as soon as, and to the extent, possible, including through the use of alternative sources, workarounds, plans and, in the case of Contractor, complying with its obligations, if any, to perform disaster recovery services.

10. Nondiscrimination

During the performance of this Agreement, contractor and its subcontractors, as well as their agents and employees, shall not unlawfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (including health impairments related to or associated with a diagnosis of cancer for which a person has been rehabilitated or cured), age (40 or over), marital status, and use of family and medical care leave pursuant to federal law. Contractors and subcontractors, as well as their agents and employees, shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Contractor and subcontractors, as well as their agents and employees, shall comply with the provisions of the Fair Employment and Housing Act (Government Code, section 12900 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, section 12990 (a-f), set forth in Chapter 5 of Division 4 of

Title 2 of the California Code of Regulations are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Contractor and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.

Contractor shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement.

11. Assignment

This Agreement is not assignable by the Contractor, either in whole or in part, without the consent of CalSTRS in the form of a formal written agreement.

12. Contractor’s Power and Authority

The Contractor warrants that it has full power and authority to enter into this Agreement. .

13. Security and Confidentiality

Contractor, in the course of its duties, may handle investment, financial, accounting, statistical, personal, technical and other data and information relating to CalSTRS and its members. All such information is confidential, and, unless permitted by CalSTRS in writing, Contractor shall not disclose such information, directly or indirectly, or use it in any way, either during the term of the Agreement or any time thereafter, except as required to perform its duties under this Agreement. Any disclosure of information contrary to this provision shall be considered a material breach of this Agreement. Contractor warrants that only those who are authorized and required to such materials will have access to them. Failure to comply with this provision will subject Contractor to liability, including all damages to CalSTRS and third parties. Contractors who may, in the course of their duties, have access to any CalSTRS information and/or assets, must individually sign a CalSTRS Information Security Confidentiality and Non-Disclosure and Acceptable Use Agreement prior to engaging work with CalSTRS.

Contractor shall perform a background investigation on all of Contractor’s employees, subcontractors and agents assigned to perform the services, or any part of the services, pursuant to this Agreement (the “Contractor Personnel”). Contractor’s background investigation shall consist of the components prescribed in CalSTRS’ Contractor Background Investigation Policy (Exhibit D). All Contractor Personnel must successfully complete and pass Contractor’s background investigation prior to providing services to CalSTRS hereunder. Compliance with CalSTRS Contractor Background Investigation Policy must be affirmed with submission of a completed Certification of Contractor’s Employee Background Investigation Form (Exhibit E) for each Contractor Personnel providing services to CalSTRS hereunder. Contractor shall provide CalSTRS (or its designee) with documentation providing evidence of Contractor’s background investigation of Contractor Personnel upon the reasonable request of CalSTRS.

At any time during the Term, CalSTRS may, in its sole discretion, conduct a background investigation of any Contractor Personnel. Contractor and all Contractor Personnel shall reasonably cooperate with CalSTRS’ background investigation. CalSTRS may request, by notice in writing, that Contractor replace any Contractor Personnel for the reasons stated in the notice.

Contractor shall cease using such Contractor Personnel to provide services hereunder within a reasonable period of time, at no additional cost to CalSTRS. If, in its sole discretion, CalSTRS believes that any Contractor Personnel is a threat to the health, safety or security of CalSTRS, including, but not limited to, CalSTRS employees, contractors, agents, data or property, then CalSTRS shall have the right to immediately remove that Contractor Personnel from the provision of services and, notwithstanding the foregoing, CalSTRS shall have the right to restrict such Contractor Personnel’s physical and/or technological access to the premises. The removal of any Contractor Personnel shall not relieve Contractor of its obligations under this Agreement, and Contractor shall be responsible for continuing to meet its obligations set forth in this Agreement.

Contractor’s failure to comply with the requirements of this section shall constitute a material breach of the Agreement and CalSTRS shall be entitled to seek all available remedies under this Agreement, in addition to any other rights available at law or equity.

14. Contractor Employee Relationship

Contractor understands and acknowledges that the personnel provided to CalSTRS under this Agreement are the employees of the Contractor or Independent Contractors who have a contractual relationship with the Contractor. Contractor agrees to indemnify, defend and hold harmless CalSTRS from any and all claims made against it including, but not limited to, claims for salaries, liability for tax withholding, workers’ compensation, disability or miscellaneous employment benefits, whether based on tort, contract or other theories of recovery arising out of injury, disability, or death of Contractors’ employees or Independent Contractors.

15. License Grant

The license grant for all SAP Products is described in the applicable Software Licensing Agreements.

16. Titles/Section Headings

Titles or headings are not part of this Agreement, are for convenience of reference only, and shall have no effect on the construction or legal effect of this Agreement.

17. Choice of Law

This Agreement and any controversy or claim arising out of or relating to this agreement, or the breach thereof shall be administered, construed, governed and enforced according to the laws of the State of California (without regard to any conflict of laws provisions) to the extent such laws have not been preempted by applicable federal law. Any suit brought hereunder (including any action to compel arbitration or to enforce any award or judgment rendered thereby) shall be brought in the state or federal courts sitting in Sacramento, California, the parties hereby waiving any claim or defense that such forum is not convenient or proper. Each party agrees that any such court shall have in personam jurisdiction over it and consents to service of process in any manner authorized by California law.

18. Waiver of Rights

Any action or inaction by a party or the failure of a party on any occasion, to enforce any right or provision of the Agreement, shall not be construed to be a waiver by such party of its rights hereunder and shall not prevent such party from enforcing such provision or right on any future occasion. The rights and remedies of each party herein are cumulative and are in addition to any other rights or remedies that each party may have at law or in equity.

19. Independent Contractor

Contractor, and the agents and employees of Contractor, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of CalSTRS or the State of California.

20. Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

21. Unenforceable Provision

In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have full force and effect and shall not be affected thereby.

22. Entire Agreement

This Agreement contains all representations and the entire understanding between the parties with respect to the subject matter herein. If applicable, the competitive process as it may have been amended and clarified by CalSTRS prior to the award of this Agreement as well as the Contractor’s proposal/bid shall be considered part of this Agreement. However, in the event a conflict in interpretation arises, the Agreement document shall prevail. Any correspondence, memoranda or agreements shall be replaced in total by this Agreement.

23. Compensation

The consideration to be paid Contractor, as provided herein, shall be as compensation for all of Contractor's expenses incurred in the performance hereof, including travel, per diem, and taxes, unless otherwise expressly so provided.

24. Delivery

Contractor shall strictly adhere to the delivery and completion schedules specified in this Agreement. Time, if stated as a number of days, shall mean calendar days unless otherwise specified. The quantities specified herein are the only quantities required. If Contractor delivers in excess of the quantities specified herein, CalSTRS shall not be required to make any payment for the excess Deliverables, and may return them to Contractor at Contractor’s expense or utilize any other rights available to CalSTRS at law or in equity.

25. Substitutions

Substitution of Deliverables may not be tendered without advance written consent of CalSTRS.

Contractor shall not use any specification in lieu of those contained in the Agreement without written consent of CalSTRS.

26. Inspection, Acceptance, and Rejection

Unless otherwise specified in the Scope of Work:

a) Acceptance criteria for Services and Deliverables shall be set forth in each SOW, or in such other documents that the parties mutually agree in writing, including without limitation, project charters or project governance plans, which shall be incorporated into the SOW by this reference. Upon Contractor’s delivery of Services or Deliverables, CalSTRS must inspect the Services and Deliverables for conformance with specifications. If Contractor has not received written notice from CalSTRS within 7 business days following completion of the Services or delivery of the Deliverables, the applicable Services or Deliverables will be deemed accepted by CalSTRS. All Deliverables may be subject to final inspection, test and acceptance by CalSTRS at destination, notwithstanding any payment or inspection at source.

b) Acceptance by CalSTRS will be final and irreversible, except as it relates to latent defects, fraud, and gross mistakes amounting to fraud. Acceptance shall not be construed to waive any warranty rights that CalSTRS might have at law or by express reservation in this Agreement with respect to any nonconformity.

27. Knowledge Transfer

Where appropriate, Contractor’s obligations under the terms of this Agreement include a “knowledge transfer” to CalSTRS. “Knowledge transfer” is defined as that personal and/or technical knowledge or information which will enable, or enhance the ability of, CalSTRS staff to maintain and operate contracted-for programs, equipment and facilities.

If the Agreement includes the purchase of equipment, “knowledge transfer” shall also include education and training, including all relevant documentation, to enable CalSTRS to maintain the equipment based on Contractor’s methodology. The Contractor agrees that CalSTRS may reproduce such documentation for its own use in maintaining the equipment.

Any additional training or instruction necessary to realize the “knowledge transfer” shall be provided at no additional cost to CalSTRS.

28. Documentation

a) The Contractor agrees to provide to CalSTRS, at no charge, a number of all nonproprietary manuals and other printed materials, as described in the Statement of Work and updated versions thereof, which are necessary or useful to CalSTRS in its use of the Equipment or Software provided hereunder. The Contractor agrees to provide additional Documentation at prices not in excess of charges made by the Contractor to its other customers for similar Documentation.

b) If the Contractor is unable to perform maintenance or CalSTRS desires to perform its own maintenance on Equipment purchased under this Agreement then upon written notice by CalSTRS the Contractor will provide at Contractor’s then current rates and fees adequate and reasonable assistance including relevant Documentation to allow CalSTRS to maintain the Equipment based on Contractor’s methodology. The Contractor agrees that CalSTRS may reproduce such Documentation for its own use in maintaining the Equipment. If the Contractor is unable to perform maintenance, the Contractor agrees to license any other Contractor that CalSTRS may have hired to maintain the Equipment to use the above noted Documentation. CalSTRS agrees to include the Contractor’s copyright notice on any such Documentation reproduced, in accordance with copyright instructions to be provided by the Contractor.

29. Intellectual Property

Unless the parties agree otherwise in writing, Deliverables developed by Contractor pursuant to this Agreement belong to CalSTRS. This provision does not apply to third party works, products, or materials or to Contractor Materials as defined below. CalSTRS acknowledges that Contractor is in the business of providing information technology consulting services and has accumulated expertise in this field and agrees that Contractor will retain all right, title, and interest in and to all Contractor Materials. “Contractor Materials” means all discoveries, concepts, and ideas, whether or not registrable under patent, copyright, or similar statutes, including, without limitation, patents, copyrights, trademarks, trade secrets, processes, methods, formulae, techniques, tools, solutions, programs, data, and documentation, and related modifications, improvements, and know-how, that Contractor, alone, or jointly with others, its agents or employees, conceives, makes, develops, acquires, or obtains knowledge of at any time before, after, or during the term of this Agreement without breach of Contractor's duty of confidentiality to CalSTRS or the use of any CalSTRS resources. If Contractor Materials are included in any Deliverables, Contractor grants CalSTRS a perpetual, irrevocable, nonexclusive, worldwide, royalty-free license to use, execute, reproduce, display, perform, distribute internally, and prepare for internal use “derivative works” as defined in the Copyright Act, 17 U.S.C. §101, based upon the Contractor Materials, solely in conjunction with the Deliverables.

H. INTERPRETATION AND DEFINITIONS

In this Agreement, unless the contrary intention appears: (a) words suggesting the singular include the plural, and vice versa; (b) words suggesting any gender include all other genders; (c) references to a person or entity include a company, corporation, firm, unincorporated or incorporated association, or statutory authority; (d) headings are for ease of reference only and shall not affect the interpretation of this Agreement; (e) references to any schedule, annex, artifact, agreement or instrument are to that schedule, annex, artifact, agreement or instrument as amended or replaced from time to time; (f) use of the word “including” (and its derivatives such as “includes” or “include”) means including, without limitation; (g) use of the word “day” (and its derivatives such as “daily” and “days”) means a calendar day; (h) a reference to any organizational body is: (1) if that body is replaced by another organization, deemed to refer to that organization; and (2) if that body ceases to exist, deemed to refer to the organization which most nearly or substantially serves the same purposes as that body; (i) references to any statute, enactment, order, regulation or other similar instrument shall be construed as a reference to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument, or as contained in any subsequent enactment thereof; and (j) references to Exhibits are to sections exhibits to this Agreement. No rule of construction will apply in the interpretation of any provision of this Agreement to the disadvantage of one Party on the basis that such Party put forward or drafted such provision.

Unless otherwise specified in the Statement of Work the following terms shall be given the meaning shown, unless context requires otherwise.

1. “Acceptance Tests” means those tests performed during the Performance Period which are intended to determine compliance of Equipment and Software with the specifications and all other Attachments incorporated herein by reference and to determine the reliability of the Equipment and Software in accordance with the applicable SOW.

2. “Application Program” means a computer program which is intended to be executed for the purpose of performing useful work for the user of the information being processed. Application programs are developed or otherwise acquired by the user of the Hardware/Software system, but they may be supplied by the Contractor.

3. “Business entity” means any individual, business, partnership, joint venture, corporation, S-corporation, limited liability corporation, limited liability partnership, sole proprietorship, joint stock company, consortium, or other private legal entity recognized by statute.

4. “Commercial Software” means Software developed or regularly used that: (i) has been sold, leased, or licensed to the general public; (ii) has been offered for sale, lease, or license to the general public; (iii) has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this Agreement; or (iv) satisfies a criterion expressed in (i), (ii), or (iii) above and would require only minor modifications to meet the requirements of this Agreement.

5. “Agreement” means this Agreement or contract (including any purchase order), by whatever name known or in whatever format used.

6. “Custom Software” means Software that does not meet the definition of Commercial Software.

7. “Contractor” means the Business Entity with whom CalSTRS enters into this Agreement.

Contractor shall be synonymous with “supplier”, “vendor” or other similar term.

8. “Deliverables” means Goods, Software, Information Technology, telecommunications technology, project management, change management, and other items and services (e.g. reports) to be delivered pursuant to this Agreement, including any such items furnished incident to the provision of services.

9. “Documentation” means nonproprietary manuals and other printed materials necessary or useful to CalSTRS in its use or maintenance of the Equipment or Software provided hereunder. Manuals and other printed materials customized for CalSTRS hereunder constitute Documentation only to the extent that such materials are described in or required by the Statement of Work.

10. “Goods” means all types of tangible personal property, including, but not limited to materials, supplies and Equipment (including computer and telecommunications Equipment).

11. “Hardware” usually refers to computer Equipment and is contrasted with Software. See also Equipment.

12. “Performance Testing Period” means a period of time during which CalSTRS, by appropriate tests and production runs, evaluates the performance of newly installed Equipment and Software prior to its acceptance by CalSTRS as set forth in the applicable SOW.

13. “Period of Maintenance Coverage” means the period of time, as agreed by the parties in each SOW, during which maintenance services provided by the Contractor for a fixed monthly charge, as opposed to an hourly charge for services rendered. The Period of Maintenance Coverage consists of the Principal Period of Maintenance and any additional hours of coverage per day, and/or increased coverage for weekends and holidays as set forth in each SOW.

14. “Programming Aids” means Contractor-supplied programs and routines executable on the Contractor’s Equipment which assists a programmer in the development of applications including language processors, sorts, communications, modules, data base management systems, and utility routines (tape-to-disk routines, disk-to-print routines, etc.)

15. “Software” means an all-inclusive term which refers to any computer programs, routines, or subroutines supplied by the Contractor, including Operating Software, Programming Aids, Application Programs, and Program Products.

16. “Software Failure” means a malfunction in the Contractor-supplied Software, other than Operating Software, which prevents the accomplishment of work, even though the Equipment (including its Operating Software) may still be capable of operating properly. For Operating Software failure, see definition of Equipment Failure.

17. “System” means the complete collection of Hardware, Software and services as described in this Agreement, integrated and functioning together, and performing in accordance with this Agreement.

18. “U.S. Intellectual Property Rights” means intellectual property rights enforceable in the United States of America, including without limitation rights in trade secrets, copyrights, and U.S.

patents.

I. ACCEPTANCE OF SOFTWARE

1. Commercial Software. Acceptance of Commercial Software will be governed by the terms and conditions of the license agreement governing such Software.

2. Custom Software. No payment for Custom software will be due before Acceptance thereof, except to the extent required by progress payment terms in the Statement of Work. Any notice of rejection will explain how the Custom Software Product fails to substantially conform to the functional and performance specifications of this Agreement. Contractor will, upon receipt of such notice, investigate the reported deficiency and exercise reasonable best efforts to remedy it promptly. CalSTRS, in its sole discretion, will have the option to re-perform the acceptance test.

If Contractor is unable to remedy the deficiency within sixty (60) days of notice of rejection, CalSTRS shall have the option of accepting substitute Software, terminating for default the portion of the Agreement that relates to such Custom Software, or terminating this Agreement in its entirety for default.

J. FUTURE RELEASES

Future releases are governed by the applicable Software Licensing Agreement.

K. WARRANTY AND POST-IMPLEMENTATION SUPPORT

1. Unless otherwise specified in the Statement of Work, the warranties in this subsection begin upon delivery of the goods or services in question and end one (1) year thereafter. Contractor warrants that (i) Deliverables and services furnished hereunder will substantially conform to the requirements of this Agreement (including without limitation all descriptions, specifications, and drawings identified in the Statement of Work), and (ii) the Deliverables will be free from material defects in materials and workmanship.

2. Contractor warrants that (i) it will not intentionally insert any harmful code into the Deliverables furnished hereunder, and (ii) it will take commercially reasonable steps to screen the Deliverables at the time of delivery, to indentify and remove harmful code (i.e., computer viruses, worms, trap doors, time bombs, disability code, or any similar malicious mechanism designed to interfere with the intended operation of, or cause damage to, computers, data, or Software) using suitable anti-malware.

3. Unless otherwise specified in the Statement of Work:

a) Contractor does not warrant that any Software provided hereunder is error-free or that it will run without any material interruption.

b) Contractor does not warrant and will have no responsibility for a claim to the extent that it arises directly from (i) a modification made by CalSTRS, unless such modification is approved and directed by Contractor, (ii) use of Software in combination with or on products other than as specified by Contractor, or (iii) misuse by CalSTRS.

4. Where Contractor resells Hardware or Software it purchased from a third party, and such third party offers additional or more advantageous warranties than those set forth herein, Contractor will pass through any such warranties to CalSTRS, to the extent assignable, and will reasonably cooperate in enforcing them. Such warranty pass-through will be supplement to, and not relieve Contractor from, Contractor’s warranty obligations set forth above. All warranties, including special warranties specified elsewhere herein, shall inure to CalSTRS, its successors, assigns, customer agencies, and governmental users of the Deliverables or services.

5. CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,

INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY

AND FITNESS FOR PARTICULAR PURPOSE. Contractor makes no warranties regarding any portion of any deliverable developed by CalSTRS or by any third party, including any third party software, hardware, or other third party products provided by Contractor.

6. Post-Implementation Support

Provide comprehensive solution support during a fixed Post-Implementation Support period beginning at production go-live and continuing for 12 consecutive months (the Post- Implementation Support Period) in accordance with the SOW.

The Contractor and CalSTRS may negotiate and enter into an agreement for ongoing support and warranty support services past the post implementation support period.

L. AFFIRMATIVE COVENANTS

1. Permits and Licenses

Contractor shall carry out its duties and responsibilities herein in accordance with, be limited in the exercise of its rights by, and observe and comply with, all federal, state, city and county laws, rules or regulations affecting services under this Agreement. Contractor shall procure and keep in full force and effect during the term of this Agreement all permits and licenses necessary to accomplish the work contemplated in this Agreement.

2. Reports and/or Meetings

a) Contractor shall provide oral or written progress reports as requested by CalSTRS to determine if Contractor is performing to expectations or is on schedule, to provide communication of interim findings, and to afford occasions for discussing and resolving problems encountered.

Contractor shall meet with CalSTRS' staff and/or the Board upon request to discuss progress on the Agreement or to present findings, conclusions and recommendations.

3. Audit

a) During and for three years after the term of this Agreement, Contractor shall permit the Bureau of State Audits, CalSTRS, and its authorized representatives, and such consultants and specialists as needed, at all reasonable times during normal business hours to inspect and copy, at the expense of CalSTRS, books and records of Contractor relating to its performance of this Agreement.

b) Contractor shall be subject to examination and audit by the Bureau of State Audits, CalSTRS, and CalSTRS' representatives during the term of this Agreement and for three years after final payment under this Agreement. Any examination or audit shall be confined to those matters connected with the performance of this Agreement, including, but not limited to, the costs of administering this Agreement. Contractor shall cooperate fully with the Bureau of State Audits, CalSTRS, and/or CalSTRS’ authorized representatives in connection with any examination or audit. All adjustments, payments, and/or reimbursements determined to be necessary by any examination or audit shall be made promptly by the appropriate party.

4. Additional Documents

Contractor and CalSTRS agree to execute such additional documents, and perform such further acts, as may be reasonable and necessary to carry out the provisions of this Agreement.

5. Disabled Veteran Business Enterprise (DVBE) Participation Requirements

The California Public Contract Code (PCC) Section 10115 et seq. requires a participation goal of three (3%) percent DVBE for contracts awarded by CalSTRS. This goal applies to the total contract dollars expended by CalSTRS annually.

The Teachers’ Retirement Board has adopted a policy that directs staff to encourage, promote, and facilitate the fullest possible participation by Disabled Veteran Business Enterprise (DVBE) in contracts awarded by CalSTRS. In accordance with this policy, CalSTRS encourages its contractors to seek opportunities, to do business with DVBE firms.

In compliance with the statutory requirements and with respect to the execution of this Agreement:

a) Contractor agrees that, as a Contractor of CalSTRS, it will meet the requirements of the Board's policies regarding the 3% disabled veteran business enterprise (DVBE) participation goal.

b) Contractor, in contracting for goods and services pursuant to this Agreement, shall comply with the Board's objectives and policy regarding DVBE participation.

c) Nothing shall be construed to authorize any contractor to discriminate in the solicitation or acceptance of bids for subcontracting, or for materials or equipment, on the basis of race, color, sex, ethnic origin or ancestry.

d) Contractor agrees to provide CalSTRS or its delegate with any information reasonably necessary to comply with the obligations set forth in the applicable provisions of PCC sections 10115, et seq. Upon reasonable notice, Contractor shall permit CalSTRS or its delegate access to its premises during normal business hours to interview employees and to inspect and copy books, records, accounts, and other materials for the purpose of determining compliance with the applicable provisions of PCC sections 10115, et seq. and Title 2, California Code of Regulations, sections 1896.60, et seq. Contractor agrees to maintain such records for a period of three (3) years after final payment under this Agreement. Contractor further agrees to make this paragraph applicable to all subcontracts entered into hereunder.

6. Reportable Interests

Contractor shall not directly or indirectly receive any benefit from recommendations made to CalSTRS and shall disclose to CalSTRS any personal investment or economic interest of Contractor which may be enhanced by the recommendations made to CalSTRS. Contractor acknowledges that the System is subject to the provisions of the Fair Political Practices laws of California (Government Code section 81000, et seq., and all regulations adopted thereunder, including, but not limited to, Title 2, California Code of Regulations, section 18700) and Contractor shall comply promptly with any requirement thereunder. If required by law, Contractor shall require its Authorized/Key personnel named and all later substitutions therefore to file Statements of Economic Interests in compliance with CalSTRS' Conflict of Interest Code (Title 5, California Code of Regulations, section 22000 et seq.) All such reports shall be filed simultaneously with the Staff.

7. Authorized/Key Personnel

Exhibit G, Contractor’s Authorized/Key Personnel, names certain members (authorized/key individuals who perform scope services under this Agreement) of Contractor's staff who will exercise a significant role under this Agreement.