request for proposal #50134 security system services
TRANSCRIPT
Request for Proposal
#50134
Security System Services
January 21, 2020
CALIFORNIA STATE LOTTERY 700 North 10th Street
Sacramento, California 95811-0393
calottery
TABLE OF CONTENTS I. GENERAL INFORMATION ............................................................................. 1
Purpose .......................................................................................................... 1
Background ................................................................................................... 1
Minimum Bidder Qualifications ................................................................... 3
Issuing Office and Bidder-Initiated Contact ................................................ 4
Projected Timetable ...................................................................................... 5
Verbal Communication ................................................................................. 5
Examination of All Requirements ................................................................ 5
Amendments to the RFP ............................................................................... 6
Written Questions ......................................................................................... 6
Written Intent to Bid ...................................................................................... 6
Property of the Lottery.................................................................................. 6
Proposals are Public Records ..................................................................... 7
Acceptance Period ........................................................................................ 7
Conditions of Submission ............................................................................ 7
Nonmaterial Deviation .................................................................................. 7
Rejection of Proposals ................................................................................. 7
Contract Execution ....................................................................................... 8
Hiring of Lottery Personnel .......................................................................... 8
Governing Law and Regulations ................................................................. 8
II. PROPOSAL REQUIREMENTS ....................................................................... 8 Mandatory Submittals ................................................................................... 9
Rated Submittals ......................................................................................... 10
III. PROPOSAL EVALUATION AND AWARD .................................................... 11 C. Price Assessment ....................................................................................... 12
D. Best Value Analysis .................................................................................... 12
E. Right to Cancel ............................................................................................ 13
IV. PROPOSAL PACKAGING AND DELIVERY ................................................. 13 A. Packaging .................................................................................................... 13
B. Delivery ........................................................................................................ 14
EXHIBIT A – SCOPE OF WORK .................................................................................. 15
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1. General Scope ............................................................................................. 15
2. Core Services .............................................................................................. 16
3. Equipment .................................................................................................... 20
4. New Installations and Modifications ......................................................... 21
5. Hourly Rate Services .................................................................................. 22
EXHIBIT B – CALIFORNIA LOTTERY OFFICES ......................................................... 24 EXHIBIT C – CALIFORNIA LOTTERY EQUIPMENT LIST ........................................... 26 EXHIBIT D – DRAFT CONTRACT TERMS AND CONDITIONS .................................. 30 1. GENERAL PROVISIONS ............................................................................. 30
2. RELATIONSHIP AND AUTHORITY ............................................................. 31
3. OBLIGATIONS OF THE PARTIES ............................................................... 31
4. GENERAL WARRANTIES AND REPRESENTATIONS ............................... 33
5. FISCAL PROVISIONS .................................................................................. 33
6. LOSS PREVENTION .................................................................................... 36
7. CONTRACT OVERSIGHT ............................................................................ 38
8. EXPIRATION OR TERMINATION OF CONTRACT ...................................... 40
9. MISCELLANEOUS PROVISIONS ................................................................ 43
10. CALIFORNIA LOTTERY INFORMATION SECURITY STANDARDS ........... 47
11. INTELLECTUAL PROPERTY ...................................................................... 53
12. LIQUIDATED DAMAGES ............................................................................. 58
ATTACHMENT 1 – PRICE SHEET ............................................................................... 62 ATTACHMENT 1 – PRICE SHEET ............................................................................... 63
RFP #50134 1 January 21, 2020
I. GENERAL INFORMATION
Purpose
The California State Lottery (Lottery) is inviting proposals from qualified vendors to provide comprehensive security system services in connection with the operation and maintenance of the Lottery’s physical security systems and equipment, including but not limited to performance of preventive and remedial system maintenance, new installations, emergency repairs, emergency remote monitoring upon request, and equipment modifications, on a statewide basis. Due to the Lottery’s large infrastructure and recently increased quantity of security devices managed throughout the state, two full-time embedded technicians will also be required at Lottery Headquarters in Sacramento.
The Lottery intends to award a four-year contract, with an option to extend for two years under the same terms and conditions at the Lottery’s sole discretion.
Background
The California State Lottery Act requires the Lottery to act to promote and ensure the integrity, security, honesty, and fairness in the operation and administration of the Lottery. (See Government Code sections 8880.24, 8880.35, and 8880.38). Lottery facilities are secured with the installation, maintenance, and 24-hour operation of a comprehensive security system centralized at Lottery Headquarters and integrates with the Lottery’s nine District Offices, its Operational Recovery Site, and the Lottery’s Northern and Southern Distribution Centers.
The Lottery currently contracts with Stanley Convergent Security Solutions, Inc. for the maintenance and technical support of all physical security systems, including access control, intrusion alarm, visitor management and video surveillance systems.
The following diagram provides an overview of the current system:
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RFP #50134 2 January 21, 2020
NOC Warehouse
SOC Warehouse
CSL Security Site Map High Level Diagram
Offsite Monitoring
/
CA Lottery HQ
t
Lottery Vendor
Disaster Recovery Site
District Offices (9)
RFP #50134 3 January 21, 2020
Minimum Bidder Qualifications
This Request for Proposal (RFP) is open to all Bidders that, at the time of proposal submission, meet the following minimum Bidder qualifications.
1. Bidder is an authorized Honeywell security dealer;
2. Bidder is a Honeywell security systems certified maintenance and installation services provider; Honeywell platinum level is preferred but gold level is acceptable. (Service levels are established by Honeywell).
3. Bidder has a minimum of five continuous years of experience working with like sized customers providing security system maintenance, installations, and repair services on security systems of comparable complexity and size as those used by the Lottery;
4. Bidder has an office within 100 miles of Lottery Headquarters, located at 700 North 10th Street Sacramento, CA 95811;
5. Bidder has offices throughout the state of California;
6. Bidder has a C7 - Low Voltage Systems Contractor’s license or a C10 - Electrical Contractor’s license;
7. Bidder has the capacity to dispatch a certified, fully trained, and equipped technician to any California Lottery location listed in Exhibit B, within four hours of the Lottery making the request, and provide emergency security system services to the requested location;
8. Bidder is a legal business entity and legally qualified to do business in California; and
9. Bidder can meet all requirements as set forth in Section II, Proposal Requirements and provide all required services included in Exhibit A, Scope of Work.
The following diagram provides an overview of the Lottery’s security infrastructure:
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RFP #50134 4 January 21, 2020
Issuing Office and Bidder-Initiated Contact
This RFP is issued by the Lottery’s Contract Development Services office. The issuing office is the sole point of contact regarding this RFP. All notices or questions pertaining to this RFP must be directed to:
California State Lottery Contract Development Services Attention: Laura Lee Rogers 700 North 10th Street Sacramento, California 95811 Phone: (916) 822-8063 TDD: (800) 345-4275 Email: [email protected]
No contact regarding this RFP will be allowed between Bidders or potential Bidders and members of the Lottery Evaluation Team, Lottery Commissioners, or Lottery staff after issuance of the RFP with the exception of the Lottery
CSL HQ
MP·NVR1 MP·NVR2 MP-NVR3 MP·NVR4 MP·NVR5
CSL Security
Rad ionics Receiver
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Biometric
Read er Multiple
Workstations Barionet
POE ~~ L_}-J Bosch Pane r s
Mu It iple Cam era' s
SDC and NDC Warehouse
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MP-NVR Work stations MP-NVR
Multiple Camera' s
Disaster Rec:overy
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POE Multiple Camera' s
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District Office's
Mult iple Workstations
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Legend
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Camera Feeds
Honeywell Architecure
• PW = ProWatch • MP= MaxPro • NVR = Network Video Recording • POE = Power Over Ethernet • CSL Network=
• Barionet = Al phone {Intercom System)
RFP #50134 5 January 21, 2020
contact person named above. Any such contact may disqualify a Bidder or potential Bidder from further consideration. Requests for clarification will be allowed, provided such requests are made through the above contact.
Projected Timetable
The following projected timetable is subject to change and is provided for informational and planning purposes only. The Lottery may change these dates without amending this RFP.
• RFP Issued: January 21, 2020
• Intents to Bid/Written Questions Due: February 4, 2010, 5:00 pm PT
• Responses to Written Questions: As Needed
• Proposals Due: February 25, 2020, 3:00 pm PT
• Identify Apparent Successful Bidder: March 2020
• Commission Approval to Award Contract: March 2020
• Projected Contract Effective Date: May 1, 2020
Verbal Communication
Any verbal communication with a Lottery employee concerning this RFP is not binding on the Lottery and will in no way alter a specification, term, or condition of this RFP or of any resulting contract.
Examination of All Requirements
Bidders are strongly encouraged to examine this document thoroughly and become familiar with the RFP’s requirements, including but not limited to those set forth in Exhibit A, Scope of Work, and Exhibit D, Draft Contract Terms and Conditions. Bidders’ proposals must be based solely on the information and materials contained in the RFP and any amendments thereto and on other written communications regarding the RFP that are issued by the Lottery contact person named above. Bidders must disregard all other information, including draft material, newspaper advertisements or articles, and verbal representations.
If a Bidder discovers an error in this RFP but fails to notify the Lottery of that error, the Bidder submits a proposal at its own risk. If awarded the Contract, the Bidder will not be entitled to additional compensation or time due to the error or its subsequent correction.
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RFP #50134 6 January 21, 2020
The Lottery may, in its sole discretion, refuse to accept a proposal if it fails to furnish all required information or follow the format specified in this RFP.
Amendments to the RFP
The Lottery may cancel or amend this RFP at any time. Notice of amendment or cancellation will be sent to Bidders that submitted a written Intent to Bid if the amendment or cancellation occurs prior to proposal submission, and to Bidders that submitted a proposal if the amendment or cancellation occurs after proposal submission.
Written Questions
Questions regarding the content of this RFP must be submitted in writing via email or U.S. mail to the Lottery contact person specified above by the due date and time specified in the Projected Timetable. It is the Bidder’s sole responsibility to verify receipt of submitted questions. The Lottery may, in its sole discretion, respond to written questions received after the specified due date and time. Questions and responses will be provided to firms that submitted a written Intent to Bid and will also be posted on the Lottery’s website at https://www.calottery.com/vendor-opportunities.
Written Intent to Bid
Interested Bidders must submit an Intent to Bid in writing via email or U.S. mail to the Lottery contact person by the date and time specified in the Projected Timetable in order to receive direct communications from the Lottery about this RFP.
The written Intent to Bid must include the Bidder’s contact person’s name, email address, mailing address, telephone number, and fax number (if applicable).
If a written Intent to Bid is not sent, a proposal may still be submitted. However, RFP notices and amendments issued by the Lottery will only be sent directly to Bidders with a written Intent to Bid on file. After the proposal due date, only Bidders that have submitted proposal packages in accordance with section II, Proposal Requirements, and section IV, Proposal Packaging and Delivery, to the Lottery contact person specified in section I.D. will receive direct RFP communication and notices.
All interested parties may access such notices and amendments on the Lottery’s website at https://www.calottery.com/vendor-opportunities.
Property of the Lottery
All proposals become the property of the Lottery upon receipt and will not be returned to Bidders.
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RFP #50134 7 January 21, 2020
Proposals are Public Records
Pursuant to the California Public Records Act, California Government Code §§ 6250 et seq., all data, materials, information, and documents submitted to the Lottery by a Bidder may be incorporated into a publicly-available contract and may otherwise be subject to disclosure upon request by competitors and members of the public after the apparent successful Bidder has been announced. The Lottery will process all Public Records Act requests in accordance with the laws of the State of California. A Bidder’s labeling of any proposal materials as “confidential” or otherwise exempt from disclosure is not binding on the Lottery, and the Lottery will not be liable to the Bidder or to any other person or entity for disclosing information as required by law.
Acceptance Period
As a condition of submission, each Bidder’s proposal constitutes an unconditional offer to the Lottery and is irrevocable for 180 days from the date submissions are due.
Conditions of Submission
Proposals to the RFP and any subsequent presentations must be submitted with the most favorable terms the Bidder can offer. Bidders will be allowed to withdraw their proposals only when a written request for withdrawal is received by the Lottery prior to the deadline for final bid submission. Requests for bid withdrawal must be filed in the same manner as proposals. After the submission deadline, Bidders cannot replace, change, or modify their proposals in any way except as specified in this RFP or a subsequent amendment to this RFP.
Nonmaterial Deviation
The Lottery may waive any deviation in a proposal that the Lottery determines to be nonmaterial. The Lottery’s waiver of a nonmaterial deviation in no way modifies the RFP’s requirements or excuses Bidders from full compliance with the Contract’s requirements.
Rejection of Proposals
The Lottery reserves the right to reject any or all proposals to this RFP. The Lottery may reject any proposal that is conditional, contains additions not called for, is incomplete, contains erasures or irregularities of any kind, or contains material deviations. Any provisions of this RFP that are defined as requirements will be considered mandatory. In the interest of promoting competition, the Lottery may allow a Bidder to correct an inaccuracy in its proposal. If all Bidders fail to meet one or more of the mandatory requirements, the Lottery reserves the right to continue evaluation of the proposals and to
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RFP #50134 8 January 21, 2020
select the proposal that most closely meets the requirements specified in this RFP.
Contract Execution
The Lottery Director or designee will make the final determination of contract award, subject to California Lottery Commission approval if applicable. In making this determination, the Lottery Director or designee may be assisted by an Evaluation Committee.
The Lottery, in its sole discretion, may treat failure or refusal by the intended contract awardee to begin performance within ten state working days of contract execution as repudiation of the contract. The Lottery may then either (1) select another proposal which conforms to the requirements of this RFP and represents, in the Lottery’s sole discretion, the best value; or (2) reject all proposals. The Lottery may also seek compensation for any damages associated with repudiation of the contract.
The Lottery reserves the right to cancel all elements of this solicitation or rescind the announced award at any time before execution of the contract. Issuance of this RFP does not constitute a commitment by the Lottery to award a contract.
Hiring of Lottery Personnel
At all times during the proposal evaluation period and continuing through contract award or rejection of all proposals, Bidders are prohibited from officially or unofficially making any employment offer or proposing any business arrangement whatsoever to any Lottery employee involved in the evaluation of proposals. A Bidder making such an offer or proposition will be disqualified from further consideration.
Governing Law and Regulations
The Lottery’s governing law and regulations, including the California State Lottery Act and the Lottery’s procedures for procurement of goods and services, are available on the Lottery’s website https://www.calottery.com/about-us under Lottery Regulations (DOC). It is each Bidder’s responsibility to be familiar with these laws and regulations.
II. PROPOSAL REQUIREMENTS
Proposals submitted in response to this RFP must comply with the requirements of this section. Failure to complete and submit the information listed in this section in the specified format may result in rejection of the Bidder’s proposal.
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RFP #50134 9 January 21, 2020
Bidders must provide as much information as necessary in their proposal for the Lottery to award a contract. At a minimum, proposals must be fully responsive to the specific requirements stated in this RFP. Bidders must identify any requirements of this RFP they cannot satisfy.
Mandatory Submittals
Bidders must not alter the Lottery’s mandatory submittal forms. Any change made to the forms, including but not limited to exceptions, deletions, and additions, may be the basis for disqualification of a Bidder’s proposal. The required forms can be located at https://www.calottery.com/vendor-opportunities or by clicking on the hyperlink below.
Bidders must complete and submit the following as detailed below:
1. Price Sheet: Bidders must complete and submit Attachment 1, Price Sheet, in their proposal package.
2. Introduction Letter: Bidders must submit an Introduction letter in their proposal package (Section II.B.1, below, describes the information that Bidders must include in this document.)
3. Contractors Honeywell Certification: Bidders must submit a copy of their current Honeywell Certification in their proposal package.
4. Bidder Certification: Bidders must complete and submit the Certification form in their proposal package.
5. Disabled Veteran Business Enterprise Participation (DVBE) – If applicable: If applicable, Bidders must complete and submit the Disabled Veteran Business Enterprise Participation form in their proposal package.
6. Small and Microbusiness Participation (SMP) – If applicable: If applicable, Bidders must complete and submit the Small and Microbusiness Participation forms in their proposal package. Based upon the nature of the goods and services to be utilized under this solicitation (as outlined in the Scope of Work, Exhibit A), the Lottery has set a Small and Microbusiness Participation goal of 25% for utilization of small or microbusiness subcontractors under the contract resulting from this RFP.
7. Confidential General Contractor Disclosure: Bidders must complete and submit the Confidential General Contractor Disclosure forms in their proposal package. Bidders are required to disclose certain information pursuant to California Government Code section 8880.57. Any individual or entity in a Bidder’s organizational chain and any of the Bidder’s subcontractors may also be required to disclose similar information. The Lottery may refuse to enter a contract based on the results of these disclosures, as provided in California Government Code section 8880.57.
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RFP #50134 10 January 21, 2020
In order to ensure integrity, security, and honesty in its operation, the Lottery will conduct a thorough background check of the Bidders. This may include fingerprinting and review of financial information. The Lottery may disqualify any Bidder if its related entities or their directors, officers, employees, or owners refuse to participate. The successful Bidder will be required to notify the Lottery of the identity of potential subcontractors and may be required to periodically update other disclosure requirements during the term of the contract. Bidders must not submit their Confidential General Contractor Disclosure on flash drive.
The disclosures provided in these forms will be considered confidential.
Evaluation Criteria for Mandatory Submittals: Pass/Fail
Rated Submittals
The Lottery Evaluation Team will review and evaluate the submittals using the evaluation criteria stated below for the Rated Submittals and will rate using the Rating and Definition chart shown in section III.B.
1. Introduction Letter: Bidders must submit an Introduction Letter indicating that they are responding to the RFP and that all the RFP requirements have been met. This letter must be limited to a maximum of five pages, single-sided, and be signed by a representative identified in the Certification as legally authorized to contractually bind the Bidder.
The Introduction Letter must include a written narrative, explaining why the Bidder is qualified to provide the services, including a detailed description of its resources, capabilities, and expertise. At a minimum, the narrative must include a brief history of the organization; office locations and their functions; number of years in business; organizational structure; number of employees and types of positions; a list of clients, within the last five years, that are similar in size to the Lottery (or larger) with security systems of comparable size and complexity (or greater); and a brief description of Bidder’s relevant experiences in servicing similar clients.
Evaluation Criteria for Introduction Letter
Depth and breadth of organizational qualifications and experience.
2. Contractor’s Honeywell Certification: Bidders must provide a copy of their current Contractor’s Certification from Honeywell (Platinum or Gold Level, as established by Honeywell).
Evaluation Criteria for Honeywell Certification
Level of Honeywell Certification. (Platinum = Exceeds; Gold = Meets.)
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RFP #50134 11 January 21, 2020
III. PROPOSAL EVALUATION AND AWARD
The Lottery will conduct a fair and impartial evaluation of proposals received in response to this RFP. The complete evaluation process is comprised of four phases: Mandatory Submittal Review, Rated Submittal Evaluation, Price Assessment, and Best Value Analysis. Proposals will be reviewed by the Lottery evaluation team in accordance with the criteria and ratings indicated in this RFP. The Lottery may request clarification from Bidders during any phase of the evaluation process.
A. Mandatory Submittals Review (Pass/Fail)
The documents required in Section II.A, Mandatory Submittals, and listed below must be submitted before further consideration of a Bidder’s proposal:
1. Price Sheet 2. Introduction Letter 3. Contractor’s Honeywell Certification 4. Bidder Certification 5. Disabled Veteran Business Enterprise Participation (if applicable) 6. Small and Microbusiness Participation (if applicable) 7. Confidential General Contractor Disclosure
Proposals meeting the Mandatory Submittals requirements will advance to the Rated Submittal Evaluation.
B. Rated Submittal Evaluation
The information requested in Section II.B, Rated Submittals, and listed herein will be rated in accordance with the Rating and Definition chart shown below:
1. Introduction Letter 2. Contractor’s Honeywell Certification
The specific criteria used in evaluating each of the rated sections are provided in section II.B, Rated Submittals.
Rating and Definition
Exceeds: Proposal exceeds performance or capability requirements; proposal has one or more strengths that will benefit the Lottery.
Meets: Meets specified minimum performance or capability requirements necessary for acceptable contract performance.
RFP #50134 12 January 21, 2020
Does Not Meet: Fails to meet specified minimum performance or capability requirements. Proposals with an unacceptable rating are not awardable.
Bidders that receive an overall rating of “Meets” or higher in the Rated Submittal Evaluation will advance to the Price Assessment.
C. Price Assessment
The Lottery will assess each qualified Bidder’s Price Sheet to determine its responsiveness to the RFP’s requirements and its overall value to the Lottery. As part of this assessment, the Lottery will also compare price sheets from each of the qualified Bidders.
Where applicable, the DVBE and SMP preferences will be applied during Price Assessment. The preference(s) are used only for comparison of bids and will not alter the actual bid amounts.
D. Best Value Analysis
Unless this procurement is cancelled or withdrawn, a contract will be awarded to the Bidder that meets the requirements of this RFP and submits the best value proposal, as determined by Lottery. The best value proposal will be the proposal that provides maximum benefits to the Lottery in the areas of experience, meaningful and actionable information, performance, security, and price. The proposal with the lowest price may not be selected if a higher-priced proposal provides greater overall benefits to the Lottery.
As part of the best value evaluation process, the Lottery may award a contract based on the proposals submitted or establish a competitive range and hold discussions with each Bidder in the competitive range. The competitive range will be comprised of the most highly rated proposals, consistent with the need for an efficient competition. If discussions are conducted, each Bidder will be given the opportunity to revise its proposal only in those specific areas identified by the Lottery. Discussions may include bargaining. Bargaining includes persuasion, alteration of assumptions and positions, and give-and-take, and may apply to price, technical requirements, type of contract, or other terms of a proposed contract.
The Lottery may discuss with each Bidder in the competitive range the weaknesses, deficiencies, and other areas of concern in its proposal, such as price, technical approach, and other terms that, if altered, may materially enhance the proposal’s potential for award. The scope and extent of discussions are matters solely within the Lottery’s discretion.
RFP #50134 13 January 21, 2020
E. Right to Cancel
The Lottery reserves the right to cancel any and all elements of the procurement or rescind an announced award at any time up to and including execution of the actual contract with the apparent successful Bidder.
IV. Proposal Packaging and Delivery
A. Packaging
RFP forms that require a signature must be provided by a person who is authorized to contractually bind the Bidder and identified on the Bidder Certification form.
Bidders must clearly identify their original bid proposal as “Original Copy” and provide original signatures. RFP forms that require a signature must be signed in ink (in any color other than black.)
All requested documents must be structured and submitted in the same order and with the same lettering/numbering format as presented in this RFP. All requested documents must be submitted in a loose-leaf binder, on 81/2” by 11” paper, single or double-sided (with the exception of the Introduction Letter, which must be single-sided), using at least 12-point Arial font, consecutively numbered, and with sections clearly marked or labeled.
In addition, proposals and requested documents must be submitted on flash drives. Bidder’s proposals on the flash drive must be a mirror image of the hard copy submission following the same format, with the same heading(s), numbering, and bullet point format for all sections and subsections of the RFP.
Proposals must be submitted in sealed packages(s) addressed as stated below and clearly identify the Bidder making the submission.
Package 1 will contain one original and two copies of:
Bidder Certification.
Small and Micro Business Program forms (if applicable).
Disabled Veteran Enterprise Program Incentive forms, Subcontractor or Bidder (if applicable).
Introduction Letter
Copy of Bidders Honeywell Certification.
One flash drive, containing a copy of the above listed documents.
RFP #50134 14 January 21, 2020
Package 2 will contain one original and two copies of:
Attachment 1, Price Sheet
One flash drive, containing a copy of the above listed document.
Package 3 will contain one original and one copy of:
General Contractor Disclosure Form
Please ensure the package containing the disclosure forms are marked “Confidential” on the outside of package and sealed securely.
B. Delivery
All proposals must be RECEIVED no later than February 14, 2020, 3:00 pm PST. Fax or electronic transmissions will not be accepted. Mail or deliver all proposals to the following address, marked as follows:
California State Lottery Contract Development Services Attention: Laura Lee Rogers 700 North 10th Street Sacramento, CA 95811 Proposal to RFP #50134 DO NOT OPEN IN MAILROOM
Postmark date will not constitute timely delivery. Bid proposal packages received after the above date and time will not be considered. Bidders are solely responsible for ensuring timely receipt of their bid proposals.
EXHIBIT A
RFP #50134 15 January 21, 2020
EXHIBIT A – SCOPE OF WORK
1. General Scope
The Contractor will provide comprehensive security system services in connection with the operation and maintenance of the California State Lottery’s (Lottery) physical security systems and equipment, including but not limited to preventive and remedial maintenance, technical support, system testing, monitoring (as-needed), emergency services, and the procurement, upgrade, installation, and modification of equipment, statewide.
The Contractor must be a Honeywell certified provider of maintenance and installation services for all of the security systems and equipment utilized by the Lottery. Contractors must be certified to work with the systems outlined below, in items a through g. Contractors must provide proof of certification to the Lottery upon request by the Lottery Contract Manager.
The following Lottery security systems software and equipment will be serviced by the Contractor for the Lottery’s Headquarters facility, Southern Distribution Center, Northern Distribution Center, Operational Recovery site, and nine remote District Offices (as identified in Exhibit B – California Lottery Offices):
a. Honeywell Pro-Watch Software Suite (Pro-Watch) (installed on Dell servers and Personal Computers) and its associated software applications and components (including communications devices, controllers, client workstations, alarm panels, access control panels, electrified locking hardware, PIRs, alarm contacts, printers, and wiring);
b. Honeywell MAXPRO VMS (MAXPRO) and its related components (video servers, digital storage, monitors, video streamers, cameras, lenses, digital video records (NVR), power supplies, pan and tilt units, housings, mountings, and wiring);
c. Radionics/Bosh Redundant Alarm System and backup Telular Alarm Transmission System and its related components (digital communicators, programmers, siren/strobe devices, receivers, printers, and transmitters);
d. Security Information Systems Alarm Center alarm monitoring and dispatch module graphical user interface for Radionics/Bosh Redundant Alarm System, with all related software application suites and components;
e. Honeywell LobbyWorks visitor management system and its associated software applications and components, clients, and peripherals (including signature pads, cameras, scanners, etc.);
f. Identity One BioManager Professional biometric access control management system and its associated software applications including MorphoAccess and components, clients, and peripherals (including fingerprint scanners); and
EXHIBIT A
RFP #50134 16 January 21, 2020
g. Any other system(s), equipment, or enhancements the Lottery may utilize including security systems back-up and redundancy equipment, servers, and software.
Exhibit C, California Lottery Equipment List, identifies the security hardware/software that is currently utilized by the Lottery and included in this Contract. The Lottery reserves the right to add/delete/change equipment to be serviced under this Contract, for the life of the Contract via written notification to the Contractor. The Contractor shall accept these changes upon receipt and agrees that a contract amendment will not be required to incorporate these modifications into the Contract.
2. Core Services
The Contractor will provide preventative and remedial maintenance, technical support, system testing, and other services as set forth herein at a fixed cost per month. These services will be referred to as Core Services, and the cost for these services are included in the Core Services Rate listed in Attachment 1, Price Sheet. Contractor will not be entitled to any additional compensation for these services, except as specifically noted herein.
a. Preventative Maintenance
The Contractor will provide Lottery backgrounded, fully trained and certified technicians, equipped with the appropriate tools including a lift if needed, parts, test equipment, manuals, etc. necessary to perform the maintenance tasks described herein.
Quarterly maintenance will be performed at all Lottery locations, and must include, but not be limited to, the physical testing, cleaning and inspection of the systems and associated security components, client workstations, storage servers, access control units, printers, camera equipment and monitors. All equipment must be cleaned and checked according to the manufacturer’s published recommendations. Security systems must be backed-up on a redundant system stored at the Lottery’s Operational Recovery site. Database backup occurs daily on a 24-hour schedule. Testing must also include the physical testing of batteries, operating sensor equipped and alarmed doors/turnstiles and verifying all the appropriate alarms are generated, the locking hardware locks and relocks properly, the hinges and framing are intact and functional, the Passive Infrared Sensors (PIR) and glass break devices provide an appropriate detection pattern, the printers are properly adjusted, and all related system programming is correct. The image quality of the video recordings and storage servers must be inspected and maintained at a minimum resolution of three megapixels (or, for any cameras that do not support this requirement, the best resolution available). Cameras must be cleaned and reviewed for clarity, contrast, focus and field of view and adjusted as necessary. Pan and tilt mechanisms must be tested for full functionality. Monitors must be checked for burn-in, contrast, brightness, and focus.
EXHIBIT A
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Upon completion of the maintenance service, the Contractor is responsible for completing a detailed report of the maintenance performed on a Lottery approved template provided for the Contractor’s use and emailing a copy of said report to the Lottery Contract Manager within one business day from the date the preventive maintenance service was completed.
b. Technical Support
The Contractor will assign sufficient technical support (minimum of two support technicians) to coordinate all aspects of the Contract and will disseminate the support technicians’ contact information to all Contractor and Lottery personnel as appropriate. At least one support technician will be onsite at the Lottery headquarters during normal business hours Monday through Friday, 8 a.m. to 5 p.m., excluding state holidays. Work hours will be subject to approval by the Lottery Contract Manager. The Contractor will be responsible for providing ongoing training to the Lottery as requested to ensure that Lottery staff are able to properly access, utilize, and administer all security systems.
The support technicians must meet with Lottery staff on-site at no additional charge, as needed or by request, to discuss contract compliance and performance. The Contractor must also provide the following personnel (or the equivalent within Contractor’s organization) upon request to the designated Lottery location within the time period specified:
1. A supervisor within one hour;
2. A branch manager within two hours; and
3. A regional manager within four hours.
c. System Testing
The Lottery Contract Manager will assist the Contractor with any requested system testing and the installation of system spare components to ensure proper functionality. The spare components will then become part of the Lottery equipment inventory and will be added on the equipment list.
The Lottery will provide end-point protection, perform vulnerability scanning, and use the Ivanti patching tool to maintain a secure network infrastructure. The Contractor is responsible for the maintenance of devices by installing necessary tested security patches, providing up-to-date anti-virus software, and performing firmware updates and vulnerability remediation. The Contractor will ensure all vulnerabilities and misconfigurations are remediated in accordance with the Lottery’s Vulnerability Analysis and Remediation Standard. A copy of this standard is available upon request.
EXHIBIT A
RFP #50134 18 January 21, 2020
d. Emergency Off-Site Monitoring, Dispatch and Response Services
Contractor must have a central monitoring center in place, capable of monitoring all Lottery sites upon request from the Lottery Contract Manager, 24 hours-per-day, 7 days-a-week, 365 days-a-year, including holidays. In the event of an emergency (defined as any event that would cause the Lottery to be without monitoring, dispatch, or response services), the Lottery may ask contractor to provide these services on a temporary basis. If requested by the Lottery Contract Manager, the Contractor will immediately take all sites off of “Test Mode”, monitor all sites, respond to alarms as needed, dispatch law enforcement as appropriate and notify Lottery representatives as instructed by the Lottery Contract Manager of any events requiring response or dispatch of law enforcement to any Lottery site. Once the primary services are restored, the Contractor will return all sites to “Test Mode” immediately upon request from the Lottery Contract Manager. The Contractor will not remove any Lottery site from “Test Mode” unless specifically instructed to do so by the Lottery Contract Manager or his/her designee.
e. Online Account Management Services
The Contractor will provide the Lottery with access to a secured support portal that will allow the Lottery Contract Manager or designee to manage security services for Lottery sites as a group or by individual location, process security reports and schedule maintenance and repairs through the online secure application service.
f. Emergency Four Hour Response
The Contractor must provide the Lottery with emergency telephone numbers and respond within four hours to any designated Lottery location within the State of California to any critical system or equipment failure, as defined by the Lottery. The responding technician must have successfully completed a Lottery background, be fully trained, be certified to repair the problem, and be equipped with the appropriate tools, parts, test equipment, and manuals necessary to diagnose and remedy the failure or malfunction.
The emergency four-hour response requirement is in effect 24 hours-per-day, 7 days-a-week, including holidays. The four-hour time requirement begins from the time the Lottery Contract Manager or designee initiates the call to the Contractor and continues until a service technician meeting the requirements of this Contract arrives at the designated location and begins servicing the location. Only the Lottery Contract Manager or designee may authorize service calls.
All labor, overtime, travel costs, and miscellaneous expenses incurred and expended on such an emergency call must be provided by the Contractor at no additional charge to the Lottery as part of the Core Services. If an emergency call does not reveal any defect or failure in the system or equipment, or reveals a problem caused by vandalism or misuse of the equipment by someone other than
EXHIBIT A
RFP #50134 19 January 21, 2020
the Contractor, compensation will be made to the Contractor at the standard hourly labor rate stated in this Contract.
Equipment that cannot be repaired at the time of the service call must be immediately reported to the Lottery Contract Manager or designee. The Contractor is required to acquire the resources and complete repairs to all critical equipment within 48 hours from the time the Lottery initiates the emergency service call.
Failure to meet the four-hour time requirement can result in penalties being assessed on the Contractor as outlined in Exhibit D, Draft Contract Terms and Conditions, Section 12.j.(2).
Upon completion of every service call, the Contractor is responsible for completing a detailed report of the service performed and email a copy of said report to the Lottery Contract Manager within one business day.
g. Next Business Day Response
The Contractor will respond to any designated Lottery location within the State of California by the close of business the next business day for service requests of a non-critical nature. The Contract Manager or designee will be responsible for determining if a service request is of a non-critical nature. Business days and hours are defined as Monday through Friday, 8:00 a.m. to 5:00 p.m., excluding state holidays. The responding technician must have successfully completed a Lottery background, be fully trained, be certified to repair the problem, and be equipped with the appropriate tools, including a lift if needed, parts, test equipment, and manuals necessary to diagnose and remedy the failure or malfunction.
The next business day response requirement begins from the time the Lottery Contract Manager or designee initiates the call to the Contractor and continues until a service technician meeting the requirements of this Contract arrives at the designated location and begins servicing the location. Only the Lottery Contract Manager or designee may authorize service calls.
All labor, overtime, travel costs, and miscellaneous expenses incurred and expended on such call must be provided by the Contractor at no additional charge as part of the Core Services. If the call does not reveal any defect or failure in the system or equipment, or reveals a problem caused by vandalism or misuse of the equipment by someone other than the Contractor, compensation will be made to the Contractor at the standard hourly labor rate stated in this Contract.
Equipment that cannot be repaired at the time of the service call must be immediately reported to the Lottery Contract Manager or designee. The Contractor is required to acquire the resources and complete repairs to all non-critical equipment within two weeks from the time the Lottery initiates the service call.
EXHIBIT A
RFP #50134 20 January 21, 2020
Failure to meet the Next Business Day Response requirement can result in penalties being assessed on the Contractor as outlined in Exhibit D, Contract Terms and Conditions, Section 12.j.(4).
Upon completion of every service call, the Contractor is responsible for completing a detailed report of the service performed and email a copy of said report to the Lottery Contract Manager within one business day.
h. Additional Duties
The Contractor must perform any manufacturer recommended updates, patches, modifications, etc. to software and hardware incorporated in the Lottery’s security systems.
Contractor will be responsible for integrating Pro-Watch with MAXPRO, to maximize the utility of these systems and ensure that they properly communicate with one another. Contractor with also provide training for appropriate Lottery staff in the operation of these features. Such training will be coordinated through the Lottery Contract Manager.
The Contractor will maintain a current and complete inventory of all Contractor managed devices. The Contractor is responsible for providing a complete inventory list, including device names, descriptions, and IP addresses, to the Lottery Contract Manager on an annual basis. This list must also be provided by the Contractor at any time upon request from the Lottery Contract Manager.
3. Equipment
The Contractor will be responsible for purchasing essential parts for replacement of non-functioning equipment, except for servers, storage devices, and client stations. The servers, storage devices and client stations will be purchased by the Lottery’s Information Technology Services Division (ITSD) and provided for installation by the Contractor when upgrades are needed. All equipment purchased by the Contractor will be obtained from a reputable manufacturer of fire and security equipment (or their authorized reseller). The new equipment must provide the same or greater functionality and be compatible with existing equipment. The Contractor will maintain a spare parts inventory of all tested spares (i.e., parts that have been installed in the system and proven to function), consisting of components critical to the functioning of the system.
The Contractor will maintain all physical security components with system administrative software to operate the Pro-Watch and MAXPRO software programs and deploy patches, firmware updates and software upgrades. The Contractor will partner with the Lottery to upgrade all devices prior to the manufacturers recommended end of life date.
EXHIBIT A
RFP #50134 21 January 21, 2020
The Contractor will provide encrypted security devices that conform with Lottery’s Information Security Program Policy and the supporting documentation in the Lottery’s Information Security Program Manual.
If the necessary equipment, parts, or supplies are not available in the Lottery spare parts inventory or if equipment requires manufacturer repair, the Contractor may find it necessary to purchase needed items or send the equipment out for repair. Prior approval from the Lottery Contract Manager or designee is required before any purchases or equipment repairs can be made under this Contract.
All equipment, parts, supplies, repairs, etc. must be purchased through the Contractor at cost, plus markup as quoted in Attachment 1, Price Sheet under Equipment Mark-up. The Lottery reserves the right to review manufacturers' invoices at any time, upon request from the Lottery Contract Manager or designee, to determine actual cost paid by the Contractor. The Lottery will then pay the Contractor the actual invoice amount, plus stated markup and applicable sales tax.
All equipment and parts purchased must be guaranteed against defect in material and workmanship for a period of one year from the date installed in the system. Warranty service must be provided by a factory trained and certified service technician.
4. New Installations and Modifications
The Contractor may be requested to install new equipment and/or relocate or modify existing equipment. The Contractor will provide Lottery backgrounded, fully trained and certified technicians, equipped with the appropriate tools, including a lift if needed, parts, test equipment, manuals, etc. necessary to perform new installations and modifications. The Contractor must provide a written proposal or an estimate of time and materials costs to the Lottery Contract Manager and obtain approval prior to performance of any work. All labor costs for new installations, modifications, or any other services not covered under Core Services must be billed according to Standard Hourly Labor Rates, as described in Attachment 1, Price Sheet. Written proposals or time and materials estimates must include the following information and services:
a. Detailed scope of work to be performed, including reference to point identification numbers from existing drawings and specific detail drawing to be used for installation/modification from the applicable Lottery Security Detail Package;
b. Diagram of installation;
c. Equipment list with quantity and cost of parts;
d. Labor hours, total labor cost and expenses (if applicable);
e. Schedule of work to be performed, including the completion date;
EXHIBIT A
RFP #50134 22 January 21, 2020
f. Subcontractor work, if any, to be utilized, i.e., electrical runs, patching, painting, glazing, cabinetry work, etc. The Lottery reserves the right to utilize Lottery staff and/or directly subcontract this work;
g. Schedule and provide administrator and user training plan and training (if applicable); and
h. Increases to Core Services costs (if applicable).
Monthly cost for required services may be increased with the new installation of major equipment that requires preventive maintenance, as determined by the Lottery Contract Manager, provided that like equipment has not been removed from the Lottery security systems in the current or preceding year. If like equipment has been removed in the current or preceding year; no increase in the monthly cost for required services will be allowed. Monthly costs will not be adjusted for the addition/removal of other equipment such as card sensors, PIR, cameras, etc., which are frequently subject to change.
Administrator and user training on newly installed equipment or software on the client workstations must be provided by the Contractor at no additional costs to the Lottery.
The Contractor must make a good faith effort to meet the scheduled completion date. Any deviation from the completion date for a job must be immediately reported to the Lottery Contract Manager. An extension may be granted for reasons beyond the Contractor's control; however, scheduling conflicts or emergencies with other clients do not constitute valid reasons for requesting an extension.
During any installation, modification, or equipment removal job, the area must be left in a clean and finished state. The Lottery Contract Manager or designee will inspect all work in progress and upon completion, to confirm that work is performed according to established documentation. Upon completion of any work, Contractor must update engineered drawings accordingly and detail drawings completed and inserted into the security manuals and applicable Lottery Security Detail Packages, at no additional costs to the Lottery.
5. Hourly Rate Services
a. Standard/Premium Hourly Rates
Where hourly rates apply, the Contractor will be compensated for all labor hours at the Standard Hourly Rate listed in this Contract under Attachment 1, Price Sheet, unless the Lottery specifically requests the Contractor to perform work outside of normal business hours, in which case the Contractor will be compensated at the Premium Hourly Rate listed in Attachment 1. The standard and premium hourly labor rates include compensation for all expenses (travel time, mileage, per Diem, airfare, car rental, etc.) incurred by the Contractor in the performance of the job.
EXHIBIT A
RFP #50134 23 January 21, 2020
b. Reimbursable Travel Expenses
Notwithstanding section a (above), travel expenses may be reimbursed by the Lottery if the Lottery has specifically requested Contractor personnel to travel to a location outside their normal service area to perform work (e.g., a service technician assigned to Lottery Headquarters in Sacramento is dispatched to Los Angeles, at Lottery request, to assist with a particularly sensitive installation). Where these conditions apply, actual travel expenses that are pre-approved by the Lottery may be fully or partially reimbursed pursuant to Exhibit D, Section 9.11.
c. Invoicing
If work is to be performed under a written proposal at a fixed cost, the Contractor may invoice the Lottery based on the percentage of work completed. If work is to be performed on a time and materials basis, the Contractor must inform the Lottery Contract Manager or designee upon arrival at the job site and submit a Service Report for signature by the Lottery Contract Manager, with hours worked and materials used, at the conclusion of each day's work. Travel time to and from the job site and lunch breaks will not be billable to the Lottery. In addition, if the Contractor reports to the job site and is not Lottery backgrounded, fully trained to perform the work, and equipped with the appropriate tools, parts, test equipment, manuals, etc. necessary to perform the work, it will not be considered a valid service call and the time will not be billable to the Lottery. A signed Service Report is required as substantiating documentation for payment of an invoice for any work performed on a time and materials basis. Contractor will not be entitled to payment unless the invoices have been received by the Lottery within 90 days of completion of the work.
EXHIBIT B
RFP #50134 24 January 21, 2020
EXHIBIT B – CALIFORNIA LOTTERY OFFICES
Headquarters Facility 700 North 10th Street Sacramento, CA 95811
Operational Recovery Site 7656 Old Auburn Road Citrus Heights, CA 95610
Distribution Center – North 2920 Ramco Street West Sacramento, CA 95691
Distribution Center – South 9109 E. 8th Street Rancho Cucamonga, CA 91730
Sacramento District Office 4106 East Commerce Way Sacramento, CA 95834
East Bay District Office1 2489 Industrial Parkway West Hayward, CA 94545
Richmond District Office 618 South 8th Street Richmond, CA 94804
Fresno District Office 7620 North Del Mar Avenue Fresno, CA 93711
Chatsworth District Office 9710 Topanga Canyon Blvd. Chatsworth, CA 9131
Santa Fe Springs District Office 9807 Bell Ranch Drive Santa Fe Springs, CA 90670
Rancho Cucamonga District Office 11138 Elm Avenue Rancho Cucamonga, CA 91730
Costa Mesa District Office 235 Baker Street East Costa Mesa, CA 92626
San Diego District Office 5656 Ruffin Road San Diego, CA 92123
1 Relocating in 2020 to: Milpitas District Office 900 Hanson Court Milpitas, CA 95305
EXHIBIT C
RFP #50134 26 January 21, 2020
EXHIBIT C – CALIFORNIA LOTTERY EQUIPMENT LIST
Headquarters: Qty: Software: 1 ProWatch Software 1 MaxPro Software 1 IPengine Software 1 MaxProNVR Software 1 Lobbyworks Software 1 Identity One BioManager Professional Biometric Software 1 SIS Software 1 Symantec Antivirus Software 1 Shavlik Software 1 Radionics Software 1 Replistore Software
Printers: 2 Fargo DTC4000 access card printer 1 Fargo DTC4500 access card printer
Servers and Workstations: 1 Dell ProWatch Photo ID Workstation 10 Dell ProWatch/MaxPro Workstations w/Monitors 1 Dell R610 (PW Server) 1 Dell R710 (File Server) 1 Dell R1950 (Anti-Virus Server) 1 Dell R710 (IPengine Server) 1 Dell R610 (MaxPro Server) 7 Dell R410 (MaxProNVR Camera Server) 1 Dell R310 (SIS Server) 1 Dell Radionics (Radionics) 1 Dell R310 (Lobbyworks Server) 6 Dell MD1000 (Clip Storage) 3 Dell MD1200 (Clip Storage)
Security: 5 VonDuprin PS914 Power Booster 5 PW6000 Controller 8 POE PW6K1ICE Controller 95 POE PW6K1R1E Down Stream Boards 15 PW6000 IN/OUT Boards 9 Maxim 33 Altronix Power Supply 1 Radionics 6600 Receiver 1 Radionics Printer 2 Elk-124 Notifier w/4 /speakers/strobes 116 Card Reader Doors & Door Contact 89 Interior Camera, Fixed/Pan/Dome
EXHIBIT C
RFP #50134 27 January 21, 2020
32 Exterior Camera, Fixed/Pan/Tilt 3 MaxPro UlatraKey Plus-HJK7000 11 Panics 6 Door Release 2 Motions 34 FG1625 glassbreak detectors 2 LCD 42"Monitors 2 ComNet USA Rack Fiber Power Supply 28 ComNet CNFE-100 Fiber converters 1 Aiphone AX-084C Central Exchange Unit 1 Aiphone AX-320C Central Exchange Unit 2 Aiphone AX-8MV Station Master 4 Aiphone AX-DM Door Stations 1 Aiphone AX-DV Door Stations
District Offices: 4 Honeywell Star2Access Control Units 22 Honeywell Miro 16/8 18 Altronix Power Supply 11 Co Box Network Terminal Server 9 Radionics 7212 Control Panels 9 Radionics D1255 Keypads 9 Amseco Bell/Boxes 9 Gentex Horn/Strobes 9 Telular TG-7 Cellular Transmitter 208 Honeywell Digital card Reader doors w/Strike, Contact, REX 272 Alarm Monitored Points, Glass Break Sensor, Passive Infrared Detector (PIR) 9 Panic Switch/Sonalert/Strobe 18 Wireless Panic 9 Dell R710 MaxPro Camera Server/Prowatch Client 274 Exterior/Interior Cameras 9 Axis Q7900 network Video Streamer Rack 20 Axis 7224 Blade network Video Streamers 9 Aiphone 1 door audio/video 3 station system 1 DSI Door prop alarm units
Operational Disaster Recovery Center: 1 Honeywell PW6K1ICE POE Access Control Units 1 BPS24-1 Power Supply for Mag Lock 1 Honeywell Digital card reader Doors w/Strike, REX 1 Adenco 6160 Keypad 2 Pelco IM10C10-B1 POE camera 1 Alarm Monitored Point 1 Dell R310 MaxPro Camera Server/Prowatch Client
EXHIBIT C
RFP #50134 28 January 21, 2020
Northern Distribution Center: 1 Dell R610 (PW Redundant Server) 2 Dell R710 MaxPro Camera Server/Prowatch Client 1 Dell Precision Workstation 690 Access and Video Quad Monitor Station 1 Fargo DTC400E access card printer 1 Axis 12 Blade Racks Unit 11 Axis 241Q Blade network Video Streamers 2 R2416UC Altronix rack mount camera power supply 3 Honeywell Star2 Access Control Units 5 Honeywell Miro 16/8 1 Co Box Network Terminal Server 4 Altronix Power Supply 1 Radionics 7412 Control Panel 1 Radionics D1255 Keypad 1 Telular TG-7 Cellular Transmitter 1 Amseco Bell/Box 1 Gentex Horn/Strobe 13 Honeywell Digital card reader Doors w/Strike, Contact 2 Wireless Panic 29 Interior Camera, Fixed/PTZ 12 Exterior Camera, 5-PTZ 85 Alarm Monitored Points, Glass Break Sensor, Passive Infrared Detector (PIR) 1 Aiphone 3 door audio/video 2 station system 9 DSI Door prop alarm units
Southern Distribution Center: 1 Dell MaxProNVR PowerEdge Video Servers 1 Dell PowerEdge MaxPro Server 1 Dell ProWatch/MaxPro Dual monitor Workstation 1 Fargo DTC400E access card printer 1 Axis Q7900 network Video Streamer Rack 3 Axis 7224 Blade network Video Streamers 1 ALTV248 Altronix rack mount camera power supply 4 Honeywell Miro 16/8 2 Co Box Network Terminal Server 4 Altronix Power Supply 2 Radionics 7212 Control Panel 2 Radionics D1255 Keypad 2 Telular TG-7 Cellular Transmitter 1 Amseco Bell/Box 1 Gentex Horn/Strobe 41 Interior Camera, Fixed 20 Exterior Camera, 14-Fixed, 6-PTZ 13 Honeywell Digital card reader doors w/Strike, Contact, REX 69 Alarm Monitored Points, Glass Break Sensor, Passive Infrared Detector (PIR) 1 Aiphone 2 door audio/video system 1 PowerWare 8125-1250 (UPS)
EXHIBIT C
RFP #50134 29 January 21, 2020
2 PowerWare 8125-48EBM (UPS)
Any communication wiring, related power supplies, and miscellaneous parts or devices associated with the listed equipment is also included. Some smaller devices, such as glass break sensors and PIRS, may not be listed here in full, but shall be deemed included within this Exhibit as covered equipment.
The Lottery reserves the right to add/delete/change equipment and office locations to be serviced under this Contract at any time via written notification to the Contractor. The Contractor shall accept these changes upon receipt and agrees that a contract amendment will not be required to incorporate these modifications into the Contract.
EXHIBIT D
RFP #50134 30 January 21, 2020
EXHIBIT D – DRAFT CONTRACT TERMS AND CONDITIONS
1. GENERAL PROVISIONS
1.1. Parties and Authorization
The parties to this contract (Contract) are the California State Lottery (Lottery) and __________ (Contractor). Each party acknowledges that it has read the Contract, understands it, and agrees to be bound by its terms. The person signing this Contract on behalf of the Contractor further warrants that he/she is an agent of the Contractor and is duly authorized to enter this Contract on its behalf.
1.2. Initial Term of Contract
The initial Contract term is for a four-year period with the Lottery’s option to extend for up to 1 two-year period.
1.3. Emergency Extended Service
In the event of an urgent and compelling need, the Contractor agrees to provide up to 12 months of additional emergency extended services at the Lottery’s request, under the same terms and conditions, including pricing, upon expiration of the Contract term and any extensions.
1.4. Transitional Service for Contractor Change
The Lottery may require continuation of the Contract under the same terms and conditions, upon 30 days’ notice, for multiple 90-day periods to facilitate transition to a new contractor. The Contractor agrees to maintain the service in a state of readiness for any such periods after the completion of the Contract.
1.5. Full Force and Effect
This Contract is of no force or effect until it is signed by all parties and all approvals are secured ("execution"). The Contractor operates at its own risk if it commences performance before execution. Each party’s signature hereon constitutes a representation that all necessary approvals have been obtained by that party.
1.6. Amendment
The parties may amend this Contract by mutual written consent. No alteration or variation of the terms of this Contract will be valid or binding unless amended pursuant to this section, and no oral understanding or agreement not incorporated into the Contract is binding on the parties.
EXHIBIT D
RFP #50134 31 January 21, 2020
1.7. Contractor Consideration
As consideration for the compensation paid to the Contractor under this Contract, the Contractor agrees to perform all services and to fulfill all responsibilities as duly authorized by the Lottery and as detailed in Exhibit A, Scope of Work.
2. RELATIONSHIP AND AUTHORITY
2.1. Governing Law
This Contract is governed by and will be interpreted in accordance with California law. The Contractor acknowledges that the California State Lottery Commission (Commission) has the sole authority to exercise all powers necessary to effectuate the Lottery’s purpose, and that the Commission retains all such authority under the Contract, but only to the extent such audits and oversight, in the auditor’s opinion, do not violate applicable professional standards or undermine the integrity of the audit. The Contractor understands and agrees that its performance is subject to Lottery audit and oversight. Subject to these limitations, the Contractor has the power, authority, and discretion to act as may be necessary or desirable to properly, efficiently, fully, and completely perform the Contract.
2.2. Jurisdiction and Venue
The proposal process, the award procedure, and any contract resulting from this solicitation will be governed by and interpreted in accordance with this section. By signing the Contract, the Contractor acknowledges and specifically agrees that the jurisdiction for any action hereunder will be the Superior Court, State of California, and the venue for any action hereunder will be Sacramento County. As consideration for entering into the Contract, the Contractor waives access to any other court that may have concurrent jurisdiction inside or outside of California and also agrees to exhaust all contractual and administrative remedies before instituting litigation relating to the Contract.
3. OBLIGATIONS OF THE PARTIES
3.1. Contract Managers
The parties’ Contract Managers are responsible for ensuring compliance with the terms and conditions of the Contract and, unless otherwise specified in the Contract, will have the authority to act for and bind their respective parties in connection with the Contract. Any change in the Contractor’s Contract Manager is subject to Lottery approval.
3.2. Licenses and Permits
The Contractor must be licensed to do business in California and must obtain, at the Contractor’s expense, all licenses and permits required by law for accomplishing any work required in connection with this Contract. The Contractor
EXHIBIT D
RFP #50134 32 January 21, 2020
must, upon request, provide the Lottery with copies of all required licenses/permits. In the event any licenses or permits expire at any time during the term of this Contract, the Contractor agrees to renew and provide the Lottery, upon request, with copies of the renewed licenses or permits.
3.3. News Releases
The Contractor must not issue news releases or make any statement to the media pertaining to this Contract without the prior written approval of the Lottery, and then only in cooperation with the Lottery.
3.4. Confidentiality of Parties
A. The Contractor must keep confidential all information and materials related to the Contract and/or obtained through the course of work and must not disclose any such information or materials to third parties unless such disclosure is approved in writing by the Lottery, specifically required by court subpoena or order, or applicable professional standards, or otherwise specifically permitted by the Contract.
B. The California Public Records Act requires public disclosure, upon request, of documents that pertain to state business. Exceptions to this requirement are limited. The Lottery may, in its discretion, withhold the Contractor material specifically and conspicuously identified by the Contractor as confidential if the Contractor has provided enough legal justification for doing so. The Lottery is under no obligation to inform the Contractor that a request for information has been made or that documents are being released. However, the Lottery may, in its discretion, allow the Contractor the opportunity to provide the Lottery with further legal justification for withholding specific information. Unless it receives a court order to the contrary, the Lottery retains the right to determine whether an exemption to the Public Records Act applies to the Contractor information being sought. Under no circumstance will the Lottery be liable to the Contractor or to any other person or entity for disclosing any Contractor material, regardless of its designation by the Contractor as trade secret or confidential information.
C. The Contractor uses the services of the Contractor-controlled entities, the Contractor member firms and/or third-party service providers to provide administrative and clerical support to the Contractor. These parties may have access to certain of the Lottery’s information with the understanding that the confidential information will be maintained under information controls providing equivalent protection as the Contractor’s information controls.
EXHIBIT D
RFP #50134 33 January 21, 2020
4. GENERAL WARRANTIES AND REPRESENTATIONS
Contractor warrants and represents the following:
A. Authority
The Contractor is authorized and prepared to enter and fully perform the terms and conditions of the Contract. The Contractor has secured, or will have secured, at its own expense, and will maintain throughout the Contract term, all necessary rights, clearances, permits, governmental approvals, and licenses with respect to all material and elements embodied in, or used in connection with, the performance of the Contract;
B. Compliance with Law
The Contractor will comply with all federal, state, and local laws, ordinances, rules, and regulations applicable to its activities and obligations under the Contract;
C. No Infringement
The goods and services provided do not and will not, to the best of the Contractor’s knowledge, infringe any copyright, trademark, or other third-party owned intellectual property;
D. Performance Standards
All services that the Contractor provides under the Contract will be performed in a prompt, competent manner by properly trained individuals in accordance with applicable professional standards of the Contractor’s industry.
5. FISCAL PROVISIONS
5.1. Reduction of Funds
The obligations of the parties under this Contract are subject to the availability of funds appropriated by the Commission.
5.2. Frequency of Payment
The Contractor will be paid upon submission of an invoice, monthly in arrears, upon approval by the Lottery Contract Manager.
5.3. Payment and Invoicing
A. Payment
The Contractor will be paid in accordance with Attachment 1, Price Sheet. Payments will be made within 45 calendar days from date the Lottery receives
EXHIBIT D
RFP #50134 34 January 21, 2020
an invoice, unless the invoice is disputed. All invoices will be paid minus any applicable offsets, taxes or withholds.
If the Lottery determines that an invoice was improperly executed, or that additional evidence of the validity of the invoice is required, the Lottery will notify the Contractor of a disputed invoice within 15 calendar days from receipt of the invoice. Once the invoice is corrected, payments will be made within 45 days from receipt of the corrected invoice.
Where payment has not been issued within 45 calendar days from Lottery’s receipt of an undisputed invoice, interest penalties will accrue as set forth in the California Prompt Payment Act. If the Contractor is a nonprofit organization and the value of the contract is less than $500,000, or if the Contractor is certified with the California Department of General Services as a small business, interest will accrue at a rate of 10% above the U.S. Prime Rate on June 30th of the prior fiscal year. However, if the amount of the penalty is ten dollars or less, the penalty is waived. Nonprofit organizations are ineligible to receive penalty payments if the value of the Contract is $500,000 or more.
For all other businesses, interest penalties will accrue at a rate of 1% above the daily rate for the Pooled Money Investment Account on June 30th of the prior fiscal year but will not exceed a total rate of 15%. Penalties of $100.00 or less are waived, as set forth in the California Prompt Payment Act.
B. Invoicing
The Contractor will submit invoices on a monthly basis by the 15th day of the following month after goods or services have been provided. Invoices must identify the Lottery Contract number and list the services rendered, goods provided, and reimbursements claimed. The Lottery Contract Manager will review each invoice for completeness and accuracy and either approve or dispute it. If the Lottery determines that an invoice was improperly executed, or that additional evidence of the validity of the invoice is required, the Lottery will notify the Contractor of a disputed invoice within 15 calendar days of receipt of the invoice or delivery of goods or services, whichever is later. Unless disputed, payment will be made after goods and services are received.
Invoices of 10 pages or less (including supporting documentation) may be emailed as an attachment to [email protected]. The Contractor must include the Contractor’s name, invoice number, and Contract number in the email subject line.
If the invoice is more than 10 pages, or if the Contractor elects not to submit eligible invoices by email, invoices must be mailed in triplicate to:
EXHIBIT D
RFP #50134 35 January 21, 2020
California State Lottery Accounting Operations 700 North 10th Street MS: 4-3 Sacramento, CA 95811
The Contractor is required to mark "Final Invoice" on the last invoice submitted to the Lottery for payment. The Contractor waives the right to receive any further payments under the Contract if no final invoice is received by the Lottery within 180 days after the Contract is terminated or expires by its own terms. (This provision will not extend the time frame for submission and receipt of invoices for hourly services, which is limited to 90 days as set forth in Exhibit A, Scope of Services.)
5.4. Full Compensation
The compensation to be paid to the Contractor, except as otherwise provided herein, is in consideration for all the Contractor's services and administrative expenses and all applicable taxes, known or unknown.
5.5. Notice of Monies Due
The Lottery will notify the Contractor in writing when and if any monies are due the Lottery. Any monies the Contractor owes the Lottery must be paid to the Lottery within 30 days after the postmark of the notice of the amount due or the amount due will be deducted from compensation otherwise due the Contractor by the Lottery.
5.6. Tax Reporting
The Contractor is notified that Internal Revenue Code section 6041 and California Revenue and Taxation Code section 18646 require the Lottery to report certain payments. No claims for payment will be processed by the Lottery without the necessary information specified therein. The Contractor agrees to abide by these reporting requirements and to provide that information to the Lottery.
5.7. Withholds
A. The Lottery has the right to withhold or delay payments to the Contractor, in whole or in part, if the Contractor fails to perform its material obligations under the Contract.
B. Should the Contractor cure the performance failure giving rise to the withheld or delayed payment, the Lottery will review the matter with the Contractor and determine, within its discretion, whether the Lottery will continue to withhold payment or otherwise offset money due the Contractor.
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6. LOSS PREVENTION
A. The Contractor must acquire and maintain insurance policies, bonds, and securities (Coverage) and indemnify the Lottery as set forth herein. The required Coverage must remain in force throughout the term of the Contract and any extensions thereto, and copies certificates of insurance, must be provided to the Lottery upon request. Proof of Coverage, including certificates of insurance for each required policy, must be provided to the Lottery within ten calendar days after execution of the Contract. In addition, proof of Coverage for renewals must be forwarded to the Lottery within ten calendar days of Coverage expiration. Each insurance policy must be issued by companies that are rated A-minus or better by the AM Best Company or meet the approval of the Lottery. If the Contractor’s Coverage provider cancels any required policy or other Coverage, the Contractor must immediately notify the Lottery and obtain replacement Coverage. Failure to provide and maintain any required Coverage may result in termination of the Contract.
B. The Contractor may not perform services or incur expenses until proof of Coverage, including certificates of insurance for the required policies, are received by the Lottery.
C. The Contractor may request adjustment to Coverage requirements by submitting a request in writing to the Lottery Contract Manager. The Contractor may not adjust Coverage amounts or insurance liability limits below the amounts listed in this Contract without prior written approval of the Lottery.
6.1. Workers’ Compensation
The Contractor must maintain Workers’ Compensation insurance for all its employees who will be engaged in the performance of the Contract pursuant to the requirements of the California Labor Code.
6.2. Commercial General Liability Insurance
The Contractor must maintain Commercial General Liability insurance with limits of at least $1,000,000 for any one person and $2,000,000 for any one occurrence for death or bodily injury, and $1,000,000 for any one occurrence for property damage. The insurance policy must also include coverage for liabilities for premises, operations, products, advertising injury, and subcontractor operations. The policy must include the Lottery, Commission members, and Lottery officers and employees as additional insured, insofar as operations under the Contract are concerned.
6.3. Crime/Employee Dishonesty Insurance
Contractor will maintain Fidelity Bond or Crime/Employee Dishonesty Insurance, with limits of not less than contract’s first year value (as determined by the Lottery), to cover any loss to the Lottery due to any fraudulent or dishonest act by anyone
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providing direct service in performance of contract, including but not limited to, Contractor, its agents, employees or subcontractor(s). The Contractor will name the Lottery as a loss payee, as its interests may appear.
6.4. Financial Security for Lottery
The Contractor must acquire and maintain an initial level of financial security sufficient to satisfy the Lottery in the event of Contractor’s non-performance or partial performance, in an amount equal to the contract’s first year value (as determined by the Lottery). The amount of the security may be reevaluated by the Lottery at any time. Any security amount adjustment will be based on the value of the contract at the time of the adjustment, including any amendments. At the Lottery’s discretion, the security may include, but is not limited to, the following: performance bond, irrevocable letter of credit, deed of trust on Contractor’s real property, assignment of assets to Lottery, or certificate of deposit which secures the Lottery against non-performance by Contractor, its agents, and employees and any subcontractor, its agents, and employees. The Lottery will be able to execute against the acceptable security for any loss of revenue resulting from any material error, breach, violation, or failure to perform under the contract.
6.5. Indemnification
A. Contractor shall indemnify and hold harmless, at Contractor’s expense, the State of California, the Lottery, the Commission, and all Lottery officers and employees and their respective successors, heirs, representatives, administrators and assigns, from and against any and all responsibilities, suits, judgments, awards, costs, damages, claims, demands, actions, losses, settlements, costs, expenses (including attorneys’ fees and expenses), and/or liabilities of every nature threatened or brought against, sustained or incurred by any of them, whether joint, several, or individual (hereafter referred to as “claims”) resulting or arising from or in any way connected with (1) any act or omission of Contractor or any of its officers, employees, subcontractors, or agents, whether negligent, unauthorized, intentional, or otherwise; (2) any infringing use of third-party intellectual property; (3) the inaccuracy or breach of any covenants, representations and warranties made by Contractor as they occur; and (4) the breach of a term or condition of the Contract by Contractor. The provisions of this section shall survive the termination or expiration of the Contract.
B. Contractor shall provide the Lottery Contract Manager with immediate written notice of any action or suit threatened or filed against Contractor that is related in any way to the Contract.
C. The indemnities set forth herein are in addition to, and not in lieu of, any other indemnities provided hereunder or by law.
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7. CONTRACT OVERSIGHT
7.1. Background Investigations and Approval of Contractor Staffing
A. The Lottery may conduct background investigations of the Contractor, its officers, directors, principals, investors, owners, employees, or other associates, and the officers, directors, principals, investors, owners, employees, and other associates of the Contractor's parent entity, affiliates, subsidiaries, and subcontractors at any time during the life of the Contract, at the discretion of the Lottery Director. The Contractor understands and agrees that, in furtherance of the Lottery’s full disclosure requirements, any person associated with the performance of the Contract may be fingerprinted and may be required to complete a Personal History Statement and an Authorization to Release Personal Background Information form.
B. The Contractor may be required to reimburse the Lottery for necessary and reasonable costs incurred by the Lottery in conducting background investigations, including travel, lodging, per diem, document procurement, site inspections, and fingerprinting.
C. The Lottery may disapprove any the Contractor or subcontractor personnel to be assigned to the Lottery Contract for any reason, and all subcontracts must include a provision implementing this right.
D. The Contractor or subcontractor personnel must not be assigned to work on the Lottery Contract if they have ever been convicted of a felony, gambling-related offense, or a crime involving dishonesty.
E. Pursuant to California law, the Lottery may terminate the Contract based on the results of its investigations.
7.2. Contractor Evaluation
The parties’ Contract Managers may meet as often as necessary, upon the Lottery’s request, to review and evaluate progress and performance. Review and evaluation criteria will be established by the Lottery Contract Manager and may include a review of problem areas, future performance, and any other subject relating to completion of tasks under the Contract.
7.3. Disabled Veteran Business Enterprise/Small Business Participation Monitoring
Where applicable, the Lottery will monitor the Contractor’s disabled veteran business enterprise and small business participation. Documentation may be requested from the Contractor at any time.
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7.4. Access to Financial and Accounting Records
The Contractor and its subcontractors must maintain and make available for Lottery inspection all Contract-related financial and accounting records and other documentation pertaining to the fulfillment of Contract obligations in accordance with generally accepted accounting principles. The Contractor must make these records and documents available to the Lottery upon request during the Contract term and for four years after the Contract expires.
7.5. Audit Provisions
A. Records Audit
During the Contract term and for four years thereafter the Contractor must provide all duly authorized representatives of the Lottery with full access to all Contract-related financial records, including access to individuals with knowledge of financial records. All duly authorized representatives of the Lottery may examine, audit, and copy all Contract-related financial records.
B. Right to Audit Contractor's Operations
The Lottery may audit the Contractor’s records, procedures, and operations as they relate to the Lottery. Audits may include both announced and unannounced inspections and on-site audits. Audits may include the inspection of place(s) where duties under the Contract are being performed, review of physical or logical security controls, and review of information concerning any software provided under this Contract. The Lottery's auditors or authorized representatives may conduct the audits.
The Contractor must ensure that any subcontractors providing services under the Contract fully comply with the Lottery’s inspections and on-site audits.
7.6. Dispute Resolution
A. If a dispute arises out of the Contract that remains unresolved after good faith negotiations between the Lottery and the Contractor, the parties will submit the dispute to binding arbitration unless the parties mutually agree to another form of alternative dispute resolution. Notwithstanding any dispute, the Contractor will proceed diligently with performance of the Contract.
B. Arbitration will be conducted under the Commercial Arbitration Rules of the American Arbitration Association. The parties to the arbitration will share equally in the costs of arbitration. Each party will be responsible for its own attorney’s fees and costs. The arbitration must be held in Sacramento County before an arbitrator who is acceptable to both parties. If the parties cannot agree on an arbitrator, one will be appointed after either party petitions the court pursuant to California law. The arbitrator’s decision will be final and binding and
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will be provided in the proper form to be entered as a judgment in a court of competent jurisdiction in Sacramento County.
C. In the event that the parties agree on another form of alternative dispute resolution to address a particular dispute, this section will not be construed to limit the parties’ ability to utilize such a process. Any alternative dispute resolution process that is mutually agreed upon by the parties will be considered final and binding on both parties, and no further process will be permitted.
7.7. Notice of Delay
Whenever the Contractor has knowledge that any actual or potential situation, including but not limited to labor disputes, delays or threatens to delay timely performance of the work under this Contract, the Contractor must immediately provide the Lottery Contract Manager written notice including any relevant information.
8. EXPIRATION OR TERMINATION OF CONTRACT
8.1. Expiration of the Contract
Absent early termination of the Contract as provided in this subsection, the Contract will expire at the end of its term and any applicable extension(s).
8.2. Termination for Default
A. The Lottery may, by written notice of default to the Contractor, terminate the Contract in whole or in part, at the Lottery’s sole discretion, if any of the following occur:
1. The Contractor fails to deliver material products within the time specified in the Contract or any extension;
2. The Contractor fails to make progress, such that it endangers performance of the Contract;
3. The Contractor fails to perform any material provision of the Contract;
4. The Contractor fails to sustain a level of economic viability in its overall operations such that the Lottery can reasonably be assured of the Contractor’s ability to continue to comply with all operational requirements of the Contract, including those provisions relating to loss prevention;
5. A court of competent jurisdiction finds that the Contractor, its principals, or its assigned personnel has failed to adhere to any law, ordinance, rule, regulation or order, where such failure may call into question the security, integrity or competence of the Contractor to serve as a Lottery contractor;
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6. The Contractor fails to communicate with the Lottery on material matters such that performance of the Contract is endangered;
7. The Contractor breaches the Contract’s standard of confidentiality;
8. The Contractor engages in conduct that is likely to create a negative public impression or that creates the appearance of impropriety with respect to the Lottery, the Contractor, or the State of California;
9. The Contractor has knowingly or with reckless disregard for the truth furnished any material statement, representation, warranty, or certification to the Lottery that is false, deceptive, or incomplete.
B. The Lottery may exercise its right to terminate the Contract under this subsection if the Lottery Contract Manager notifies the Contractor of the breach and The Contractor does not cure it within the Lottery’s established timeline, which shall be not less than 30 calendar days. In that event, the Lottery may obtain a replacement contractor on an emergency or interim basis to provide the services and/or goods which the Contractor agreed to provide under this Contract. The Lottery will collect from the Contractor the difference between the compensation stated in this Contract and the actual cost to the Lottery of obtaining and utilizing an interim replacement contractor. The Lottery will also collect actual costs, including administrative expenses and re-procurement costs, incurred to process and procure a permanent replacement contractor. The Lottery may collect monies it is due by offsetting the amount from any payments due the Contractor, by perfecting and executing on any security interest provided under the Contract, or by any other available means.
C. The Contractor must protect and preserve property in its possession in which the Lottery has an interest. Where specified, the Lottery will pay the Contract price for any work performed prior to the date of termination. Where payment amount is not specified in the Contract, the Contractor and the Lottery will agree on a reasonable amount of payment for goods, materials, and license rights delivered to, and accepted by, the Lottery. Failure to agree will be a dispute subject to the section herein entitled Dispute Resolution. The Lottery may withhold from any amounts due the Contractor any sum the Lottery determines is necessary to protect the Lottery against loss because of outstanding liens or claims of lien holders.
D. The rights and remedies of the Lottery set forth in this subsection are in addition to any other rights and remedies provided by law or under the Contract.
8.3. Termination Based on Determination of Illegality
The Lottery may terminate the Contract, in whole or in part, and reduce the Contractor’s future compensation under the Contract immediately upon its determination that an activity or operation supported by the Contract is no longer lawful for reasons including, but not limited to, court decision, legislative action,
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administrative decision, or advice of counsel. Upon receipt of notice of termination or reduction based on a finding of illegality, the Contractor will immediately cease performance of such activity or operation and mitigate its damages. The Contractor will submit, within 90 calendar days of the receipt of a notice of termination or reduction pursuant to this subsection, a compensation reduction proposal. If the Contractor and the Lottery fail to agree on the amount of compensation reduction, the Lottery will reduce the compensation as reasonably determined by its calculations.
8.4. Termination for Convenience
The Lottery retains the option to immediately terminate the Contract for the Lottery’s convenience upon advance written notice (Notice of Termination) to the Contractor of no fewer than 30 days. The Notice of Termination shall contain the effective date of termination. On the date of termination set forth in the Notice of Termination, the Contractor will cease performance and mitigate damages. The Contractor will be entitled to compensation, upon submission of invoices and proper proof of claim, for the portion of the Contract that was rendered or provided in conformity with the contract before the effective date of termination. The Lottery may also compensate the Contractor for expenses incurred as a result of binding commitments made in connection with the Contractor’s performance of the Contract, provided that the commitments were incurred prior to receipt of Notice of Termination and only with the written approval of the Lottery Contract Manager. Compensation for such expenses lies within the sole discretion of the Lottery. The Contractor must submit proof of such expenses incurred to the Lottery’s satisfaction.
8.5. Parties' Responsibilities upon Termination and Transfer to New Contractor
Upon termination or expiration of the Contract, the Contractor shall return to the Lottery all original documents and informational materials provided by the Lottery to the Contractor, as well as all completed deliverables, if any. The Contractor may retain a single copy of information in its work papers, to the extent necessary to comply with applicable professional standards. Prior to the termination of this agreement, each party will, to the extent consistent with applicable professional standards, reasonably assist the other in the orderly termination of the Contract and the migration of contract services to a new contractor, provided that nothing herein shall be construed to require the Contractor from disclosing to the successor contractor any information beyond what is specified in the first sentence of this paragraph. Fees associated with any such transition shall not exceed $2,000, and any outstanding invoices shall be paid prior to such transition. Migration efforts will be completed within 60 days after Contract termination.
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9. MISCELLANEOUS PROVISIONS
9.1. Force Majeure
Neither the Contractor nor the Lottery will be liable for any delay in or performance failure under the Contract due to a Force Majeure occurrence, provided that the Contractor uses reasonably diligent efforts to avoid or otherwise minimize the impact of an event of Force Majeure on the Contractor’s performance. Any such delay in or performance failure will not constitute default or give rise to any liability for damages. The existence of a delay or failure will extend the period for performance to the extent determined by the Lottery Contract Manager.
For purposes of this Contract, “Force Majeure” means an act of God or public enemy, earthquake, fire, flood, explosion, epidemic, quarantine restriction, strike, freight embargo or closure of all major access roads to geographic area, action of the elements, governmental interference, rationing or any other cause which is beyond the control of the party affected and which, by the exercise of reasonable diligence, a party is unable to control.
9.2. Waiver of Provisions
No term or provision of this Contract will be deemed waived and no breach excused unless such waiver or consent to the breach is in writing and signed by the signatory to this Contract, or his or her successor, on behalf of the party against whom such waiver or consent is sought to be enforced. No consent by either party to a waiver or a breach by the other, whether express or implied, constitutes consent to, waiver of, or excuse for any other breach or subsequent breach except as expressly provided in the written waiver or consent.
9.3. Order of Precedence
The Contract consists of the following documents. These documents constitute the entire agreement between the parties, and any prior agreements, promises, negotiations, or representations concerning the Contract’s subject matter not expressly set forth in this Contract are of no force or effect. If there are inconsistencies or ambiguities in the Contract, the following documents will be used to interpret the Contract in this order of precedence:
A. This Contract, with all exhibits, attachments, addenda, and other incorporated documents, and all amendments thereto;
B. The Lottery’s RFP #50134, with all exhibits, attachments, addenda, and other incorporated documents, and all amendments thereto;
C. The Contractor’s proposal to RFP #50134 and any clarifications submitted in response to requests made by the Lottery.
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9.4. Notices in General
Any notice, request, demand, consent, waiver, or other item required or permitted under the Contract or under applicable law must be in writing and will be deemed duly given or made only if: (a) it is personally served upon the party intended to receive it, in which case it is effective when delivered; (b) it is sent by certified mail, return receipt requested, postage prepaid, addressed to the receiving party at the address set forth below, in which case it is effective upon receipt at that address by any agent or employee of the receiving party; (c) it is sent by FAX with a copy also sent on the same date by first class mail, postage prepaid, addressed to the party at its address set forth below, in which case it is effective as of the date of mailing; or (d) it is transmitted by email to the Lottery Contract Manager before 5:00 p.m. Pacific Time on a business day, in which case it is effective as of the date the email is sent - if transmitted after 5:00 p.m. Pacific Time or on a non-business day, notice will be effective as of the next business day. A party may change its contact information for purposes of receiving notice only by giving written notice to the other party in the manner set forth herein.
LOTTERY CONTRACTOR Name: California State Lottery Address: 700 North 10th Street Sacramento, CA 95811 Phone #: FAX #: Attention: Email:
9.5. Invalidity in Whole or in Part/Severability
If any provision of this Contract is found to be illegal, invalid, or unenforceable under any applicable rule or law, such invalidity will not affect other provisions which can be given effect without the invalid provision, and the invalid provision will be deemed severable.
9.6. Execution of Counterparts
The parties agree that an executed copy of this Contract has the same force and effect as the original.
9.7. Sections and Subsection Headings
The section and subsection headings contained herein are for convenience of reference only. They will not be used to interpret or define the scope of any provision of the Contract.
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9.8. Assignment
A. The Contractor may not assign any performance of or payment for the Contract or any portion of the Contract without the prior written consent of the Lottery, which may be withheld at the Lottery’s sole discretion. Any attempt by the Contractor to make such assignment without the prior written consent of the Lottery will be void and will constitute a material breach of the Contract.
B. All assignment requests must be submitted in writing to the Lottery Contract Manager.
C. In addition to obtaining the prior written consent of Lottery, any attempt to assign performance of the Contract, or any portion of the Contract, is void unless all of the following conditions have been met: (1) the terms of the Contract are included in the assignment and agreed to by the assignee; (2) the Lottery has reviewed and approved all pertinent disclosure information; and (3) the Lottery has reviewed and approved the final written assignment.
9.9. Subcontracting
A. Upon written approval from the Lottery Contract Manager, the Lottery may agree to allow the Contractor to enter subcontracts. The Contractor must submit a written request to the Lottery’s Contract Manager of its intent to enter into each subcontract. The Contractor’s written request must be received by the Lottery Contract Manager at least fifteen (15) calendar days prior to executing each subcontract. The request must: (1) provide verification that each subcontractor agrees to be bound to Contractor in the same manner as Contractor is bound to the Lottery, (2) include a detailed description of the work to be subcontracted and, (3) a copy of each proposed, written subcontract. The Lottery Contract Manager may approve or disapprove a subcontractor at any time. However, nothing contained in this Contract creates any contractual relationship, third party or otherwise, between the Lottery and any subcontractors. Furthermore, the Contractor agrees to be as fully responsible to the Lottery for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by them as it is for the acts and omissions of persons directly employed by the Contractor.
B. The Contractor must follow the Lottery’s requirements for procuring goods and services if the estimated subcontracted amount is over $100,000. The requirements may be found at www.calottery.com.
C. For each proposed subcontract, the Contractor must submit a written request for approval to the Lottery Contract Manager. The Lottery Contract Manager may disapprove a subcontractor at any time, in which case the subcontractor must immediately be removed from the Contract assignment and all Lottery facilities.
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D. The Contractor's obligation to pay its subcontractors is independent from the Lottery's obligation to make payment to the Contractor. The Lottery will not make direct payment to subcontractors, nor will it be responsible for monies owed by the Contractor to subcontractors.
9.10. Independent Contractor
The Contractor will be an independent contractor of the Lottery. The Contractor will have sole, absolute, and exclusive control of the manner and means of its performance under the terms of this Contract except as expressly set forth herein.
9.11. Travel and Expenses
The Contractor will not be compensated separately by the Lottery for travel time, mileage, meals, or incidentals, except as specifically provided herein.
In that the event the Lottery expressly requests Contractor personnel to travel to a location outside their normal service area to perform work (e.g., a service technician assigned to Lottery Headquarters in Sacramento is dispatched to Los Angeles, at Lottery request, to assist with a particularly sensitive installation), the Lottery may reimburse the Contractor for travel and expenses (including air travel and car rental) at the then-current California Department of Human Resources (CalHR) approved travel rates for excluded employees (available at www.calhr.ca.qov). Travel expense will be reimbursed if, and only if, the costs were pre-approved by the Lottery Contract Manager. Any costs in excess of applicable CalHR travel rates will not be reimbursed.
9.12. Standards of Conduct
The Contractor is responsible for maintaining satisfactory standards of employee competency, conduct, appearance, and integrity. The Contractor is responsible for ensuring that, while on Lottery premises, the Contractor employees do not disturb papers on desks, open desk drawers or cabinets, or use Lottery equipment except as authorized.
9.13. Nonexclusive Rights
The Contractor understands and agrees that the Lottery does not grant the Contractor exclusive rights to provide to Lottery those services listed in the Scope of Work for this Contract. The Lottery reserves the right to acquire any services through another contractor at any time. The Lottery’s good faith exercise of this right will not constitute a breach of the Contract.
9.14. Audit of Contractor Procedures
The Lottery reserves the right to audit any and all Contractor and Lottery-approved subcontractor procedures using Lottery employees, Lottery designees, or other State agencies as provided by law.
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9.15. Warranty
The Contractor will provide a one-year warranty on all hardware and software provided under this contract. The Contractor will be responsible for all maintenance of hardware and software after the warranty expires, at its expense, including parts, and any associated taxes for the life of the contract and any extensions.
9.16. Treatment of State Property
Title to all property furnished by the Lottery will remain with the Lottery. Any property of the Lottery furnished to the Contractor will, unless otherwise provided herein, or approved by the Director, be used only for the performance of this Contract.
The Contractor will be responsible for any loss or damage to property of the Lottery which results from the negligence or willful acts of the Contractor or which results from the failure on the part of the Contractor to maintain and administer that property in accordance with sound management practices. Upon the Contractor becoming aware, while exercising reasonable diligence, of the happening to, loss of, destruction of, or damage to any Lottery property, the Contractor will notify the Lottery and will take all reasonable steps to protect that property from further damage.
The Contractor will surrender to the Lottery all property of the Lottery upon completion, termination, or cancellation of this contract.
All reference to the Contractor under this clause will include any of the Contractor’s employees, agents, or Lottery-approved subcontractors.
10. CALIFORNIA LOTTERY INFORMATION SECURITY STANDARDS
10.1. Information Security
The Contractor acknowledges and agrees that it may, in its performance of the Contract, collect, generate, and/or have access to information and data pertaining to or provided by the Lottery and/or its customers (collectively, “Lottery Data”). The Contractor also acknowledges and agrees that proper information security requires protecting the integrity, availability, and confidentiality of confidential, sensitive, and personal information and the resources used to enter, store, process and communicate such information.
To this end, in performing the Contract, the Contractor must establish and maintain adequate security controls, policies, standards, and procedures to prevent unauthorized access to, and protect the confidentiality, integrity, and availability of, Lottery Data, assets and services.
The Contractor must operate in accordance with California state and federal laws, and all other applicable laws, regulations, and rules, as well as best industry
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practices, related to the protection of information assets and the timely and efficient management of security incidents, including corrective action.
10.2. Data Confidentiality, Integrity, Availability and Management
Lottery Data will be collected and retained by the Contractor only for legitimate business purposes associated with the Contract. All electronic Lottery Data, whether at rest or in transit, must be encrypted with an approved FIPS 140-2 or higher compliant encryption solution. The Contractor’s data handling processes must, throughout the term of the Contract, comply with the Lottery’s Information Security policies and meet or exceed the required level of protection. Copies of the applicable policies will be provided by the Lottery.
Upon Contract expiration or termination, or as directed by the Lottery during the term of the Contract, all Lottery Data in the Contractor’s possession must be returned to Lottery or destroyed, at the Lottery’s option. Such data destruction or return must be completed, at Contractor’s cost and expense, within a mutually agreed upon timeframe, but in no case later 90 days after Contract expiration/termination.
10.3. Contractor Responsibilities
Information security must be ensured by the Contractor, as the Contractor may have physical or electronic access to the Lottery’s confidential, sensitive, or personal information. This information may be contained in systems that directly support the Lottery’s business operations. This includes IT hardware and software, and the services associated with the management, operations, maintenance, programming and system administration of computer systems, networks, telecommunications systems, and social media. This also includes access to printed materials and other paper records.
The Contractor and all Contractor personnel must not use or redistribute any Lottery Data processed, stored, or transmitted by the Contractor, except as specified in the Contract or upon written Lottery approval.
10.4. Security Plan
The Contractor must provide, within 10 days after the execution of the Contract, and shall maintain and follow throughout the term of the Contract, a Security Plan that identifies implemented organizational, physical and technical security controls that will properly protect information at a level that is proportionate to the criticality and sensitivity of the information. The Lottery uses the following most current standards and guidelines for identifying the sensitivity, classification, and the recommended security controls necessary to protect the information:
• Federal Information Processing Standards (FIPS) 199
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• National Institute of Standards and Technology (NIST) Special Publication 800-53
• Publications of the IEC / ISO 27001, IEC / ISO 27002
The Contractor’s handling of Lottery Data must be consistent with the foregoing standards and guidelines and with all of the Lottery’s obligations thereunder. After the Contractor has submitted its initial Security Plan, the Contractor will be responsible for submitting updated Security Plans on an annual basis, within 30 days after the anniversary of the Contract start date. The Security Plan must be submitted to the Lottery for approval, identifying the security considerations and controls, and naming a designated Information Security Systems Officer (ISSO) for the operations of the Contractor under the Contract. For the duration of the Contract term, the Lottery may also require the Contractor to update the Security Plan at any time and submit it to the Lottery for approval, if the Lottery determines that a significant change to the deliverables necessitates an update to Contractor’s security controls.
If the Contractor has engaged services from a subcontractor or uses the services of a subsidiary as part of the Contract, it is the Contractors responsibility to ensure that these parties also provide to the Lottery a Security Plan consistent with the Lottery’s Information Security requirements and comply with such plan.
10.5. Security Plan Requirements
The Security Plan must designate Contractor personnel and staffing profiles to ensure that there is a clear “separation of duties” throughout the Contract Term. Separation of duties is the principle of not allowing one person to be responsible for completing or controlling a task, or set of tasks, from beginning to end when the potential for fraud, abuse or other harm exists.
The Security Plan must also demonstrate how the Contractor complies with the concepts of “least privilege” and “need to know;” an individual Contractor or Contractor group must only have access to the systems and information required for their tasks, access must be limited to only the information required to perform their role, and broad system privileges that may put Lottery information at undue risk must not be granted.
Contractor supervisors and management must ensure adherence to the approved Security Plan.
The Security Plan must include, at a minimum, security measures and program safeguards to ensure that the information and systems developed, acquired, operated, maintained, and/or used by the Contractor and Contractor personnel provide the following:
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1. Protection from unauthorized access, alteration, disclosure, misuse of information processed, stored, or transmitted, and misuse of administrative privileges.
2. An organizational continuity of operations plan and disaster recovery processes in the event of a major system failure, breach, or disaster.
3. Appropriate management, administrative, operational, technical, and environmental controls sufficient to provide cost-effective assurance of the information’s confidentiality, integrity, and availability.
4. Hardening and secure configurations of network devices, servers, applications, operating systems, services, and other information technology resources.
5. A malware protection program, operating system patching program, and application patching program for all information systems and resources under their control.
6. A network intrusion detection and prevention program as well as a continuous vulnerability management and remediation program for all information technology resources under their control.
7. A security incident response plan for handling suspected information security incidents and breaches, including incident escalation and corrective actions.
8. A fully implemented information security training and privacy awareness program.
9. Maintenance, monitoring and analysis of access rights, as well as security and audit logs.
10. An independent review of the management, administrative, operational, and technical controls to provide assurance that these controls are in place and are effective.
The Contractor must ensure adherence to the approved Security Plan at all times.
10.6. Physical Security
The Contractor must take appropriate measures, including without limitation those set forth below, to prevent the loss, theft, damage, and misuse of all equipment associated with the Lottery Contract.
The Contractor must take reasonable measures to minimize the possibility of equipment damage or other disruptions to service from any line voltage fluctuation or power loss and to ensure the continued operation of all Lottery systems and operations in the event of a failure of a public electric distribution system providing service to the Contractor.
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The Contractor must safeguard all information systems equipment and data facilities used in the performance of the Contract against fire or water and will maintain and monitor fire and moisture detection systems. Alarms will be monitored on site and by a 3rd party alarm service on a 7-day-per-week, 24-hour-per-day basis. The alarm company will perform regularly scheduled maintenance and testing of all monitoring and alerting equipment.
The Contractor must safeguard all information systems and data center facilities against high temperatures and inappropriate humidity. Temperature and humidity must be maintained within the range specified by the manufacturer.
10.7. Business Continuity and Disaster Recovery Planning
The Contractor must maintain data backup and recovery processes for all critical Lottery Data as defined by the Lottery, according to the specifications provided by the Lottery. The specifications will include, without limitation, the applicable Recovery Time Objectives (RTO) for the Contractor to meet when restoring a service, application, or system. The specifications will also include the applicable Recovery Point Objectives (RPO) that define the amount of information or data loss the Lottery will accept due to service disruptions such as data corruption or system outages. Backed up data or copies of data must be stored securely and geographically separated from the original data. All copies must be verified to be accurate and operational. Restoration systems must be tested at least once per month, and all backup and restoration exceptions must be corrected as soon as possible. Tests and all exceptions will be logged for 30 days and made available to the Lottery for review when requested. Major backup exceptions spanning more than five days, or restoration test failures, must be reported to the Lottery Contract Manager when they occur.
The Contractor must submit a Business Continuity and Disaster Recovery Plan for Lottery approval upon request. The plan must cover a minimum of four topic areas: (1) summarization of strategy for managing disaster situations; (2) distinct management and staff assignment of responsibilities immediately following a disaster and continuing through the period of re-establishment of normal operations; (3) prioritization for the recovery of critical applications; and (4) operational procedures documented in a systematic fashion that will allow recovery to be achieved in a timely and orderly way. The plan must be adapted to suit the Lottery’s needs.
10.8. Information Security Breach
An information security breach is defined as the unauthorized acquisition of information or computerized data that compromises the security, integrity, confidentiality, privacy, or availability of information associated with the Lottery Contract.
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The Contractor must disclose to the Lottery any confirmed or suspected information security breach. The Contractor must notify the Lottery Contract Manager, the Lottery Deputy Director of Security/Law Enforcement (SLED), and the Lottery Information Security Office within two hours after discovery of the confirmed or suspected breach.
To the extent that the information security breach includes or is reasonably believed to include the acquisition of personal information, as defined in California Civil Code section 1798.29, by an unauthorized person, Contractor must notify the Lottery Contract Manager, the Lottery Deputy Director of Security/Law Enforcement (SLED), and the Lottery Information Security Office immediately following discovery.
If the Lottery determines that disclosure of an information security breach is required under section 1798.29, or any other applicable law or regulation, Contractor will diligently assist the Lottery in gathering all necessary information for the Lottery to comply with the disclosure requirements set forth therein. In addition, if the information security breach arises from the negligence or willful misconduct of the Contractor, or its agents, employees, or subcontractors, Contractor will reimburse the Lottery for any costs incurred in connection with the breach; such costs may include, but will not be limited to, the cost of preparing and delivering required notifications and up to 12 months of identity theft prevention and mitigation services for any California residents whose personal information may have been compromised, if the Lottery determines that such notifications and/or services are required by applicable law, consistent with industry standards or otherwise reasonably necessary to safeguard the Lottery’s business standing or reputation.
Information Security Breach Contact Information:
Lottery Contract Manager Name: Email: Phone:
Lottery Deputy Director, Security and Law Enforcement Division Name: Email: Phone:
Lottery Information Security Office Email: [email protected]
10.9. Information Security Audit
The Contractor must keep audit logs of any access or other activities associated with Lottery information. The Lottery has the right to audit the Contractor’s
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information security controls and associated plans and processes to verify compliance with the Contract.
10.10. Rights to Lottery Data
The parties agree that as between them, all rights, including all intellectual property rights, in and to Lottery Data (including but not limited to any information, formulae, algorithms, or other content uploaded, created, collected, provided, transmitted or modified by the Lottery, its employees, agents, or end users, or by the Contractor on behalf of the Lottery, in connection with the Contract) shall remain the exclusive property of the Lottery; Contractor has a limited, non-exclusive license to access and use the Lottery Data as provided to Contractor solely for performing its obligations under the Contract. Nothing herein shall be construed to confer any
license or right to the data, including user tracking and exception data within the system, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to any third party. Unauthorized use of data by Contractor or third parties is prohibited. For the purposes of this requirement, the phrase “unauthorized use” includes the data mining or processing of data stored or transmitted by the Contractor for unrelated commercial purposes, advertising, or advertising-related purposes, or for any other purpose that is not explicitly authorized by the Lottery.
10.11. Data Location
All Lottery Data maintained by the Contractor or its subcontractors, and any Contractor or subcontractor data center where Lottery Data is stored, must be physically located within the continental United States.
10.12. Remote Access
Remote access to Lottery Data from outside the United States is prohibited, unless approved in advance in writing by the Lottery.
11. INTELLECTUAL PROPERTY
11.1. Ownership
The Lottery owns and retains all right, title and interest in and to all deliverables and all other results and proceeds of the services provided hereunder, in all stages of completion, including without limitation any and all graphics, designs, artwork, images, reports, documents, materials, techniques, ideas, concepts, logos, slogans, specifications, user interfaces, data, data templates, database structures and fields, outlines, drafts, derivatives, scripts, know-how, algorithms, software, computer code, routines or subroutines, specifications, plans, notes, drawings, designs, text, audiovisual works, inventions, data, information and other items, expressions, works of authorship or work product of any kind that are authored, produced, created, conceived, collected, developed, discovered or made by the
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Contractor in connection with the Contract or which relate in any manner to the Contract or which result from any work performed by the Contractor for the Lottery, including without limitation any and all copyrights, database rights and other intellectual property rights therein (collectively the “Work Product”). To the maximum extent permitted under applicable law, the Lottery will be deemed to be the "author" of all Work Product and all such Work Product will constitute "works made for hire" under the U.S. Copyright Act (17 U.S.C. §§ 101 et seq.) and any other applicable copyright law. The Contractor hereby waives any and all moral rights or equivalent rights under the laws of any applicable jurisdiction (including without limitation rights of integrity and attribution) in and to the Work Product. To the extent that any Work Product does not constitute a work made for hire, the Contractor hereby irrevocably transfers and assigns to the Lottery all right, title and interest in and to the Work Product, including without limitation all copyrights, patents, trademarks and other intellectual property and proprietary rights therein throughout the world.
11.2. Detail of Rights
The Contractor acknowledges and agrees that without limiting the above, the rights vested in and transferred to the Lottery in and to the Work Product include without limitation the following:
a. Copyright. The Lottery will be the sole owner of the undivided interest in all copyrights and all similar or equivalent rights throughout the world in the Work Product, whether vested, contingent or future, including without limitation all economic rights and the exclusive rights to reproduce, fix, adapt, modify, translate, create derivative works from, manufacture, market, introduce in circulation, publish, make available, distribute, sell license, sublicense, transfer, rent, lease, transmit or provide access electronically, broadcast, display, perform, enter into computer memory, and use the Work Product, all modified and derivative works thereof, all portions and copies thereof in any form.
b. Moral Rights. The Contractor and all employees, persons, contractors and other entities who may have claims of moral rights (or similar or equivalent rights under the laws of any jurisdiction) in any part of the Work Product, have agreed or the Contractor will obtain their agreement that (i) they shall have no objection to publication, use and exploitation of the Work Product as contemplated by this Contract; (ii) they shall remain anonymous authors without attribution or credit, acknowledging that the Lottery or its designees may be designated as author; (iii) the Lottery or its successors, assigns or licensees may make future modifications and adaptations to the Work Product, and may make disclosure and disposal of the Work Product, and any modifications thereof, in the manner that the Lottery or its successors, assigns or licensees see fit; without any right of approval, withdrawal or public renunciation by such persons, and (iv) their remuneration for the Work Product is complete, adequate and reasonable. For any and all such rights in the nature of moral rights or otherwise that are not capable of vesting in or transfer to the
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Lottery under applicable law, then the Contractor waives and agrees never to assert such rights against the Lottery or its successors, assigns or licensees, and to cause its employees and contractors to agree to the foregoing covenants.
c. Patent, Design, Trademark Rights. The Lottery will be the sole owner of all rights in and to any inventions, designs, database rights, and marks embodied in the Work Product or developed in the course of creation of the Work Product, including without limitation, all utility and design patent rights and equivalent rights in and to such inventions and design rights, and all trade and service mark rights, throughout the world.
d. Exclusive Worldwide License. In the event that by operation of law, notwithstanding. The Lottery has the right to audit the Contractor’s execution of any further documents to effectuate the transfer of rights to the Lottery hereunder, the Contractor is deemed to have retained rights in any portion of the Work Product, the Contractor grants to the Lottery, its successors, assigns, and licensees, an exclusive, irrevocable, worldwide, fully-paid, royalty-free license to reproduce, fix, adapt, modify, translate, create derivative works from, manufacture, introduce into circulation, publish, distribute, make available, sell, license, sublicense, transfer, rent, lease, transmit or provide access electronically, broadcast, display, perform, enter into computer memory and use and otherwise exploit the Work Product, all modified and derivative works thereof, all portions and copies thereof in any form, and all inventions, designs and marks embodied therein, throughout the world in all media whether now known or hereafter devised.
e. Rights in Tangible Media. The Lottery will be the sole owner of all tangible and intangible copies, documents, magnetic or optical media, or other materials, chattel or personal property created by or for the Contractor in connection with this Contract. Upon written notice from the Lottery, the Contractor must deliver to the Lottery all embodiments of the Work Product, in electronic and tangible formats as specified by the Lottery, and/or destroy and certify destruction of all copies of the Work Product in the Contractor’s possession or control. The Contractor must maintain the Work Product and other materials of the Lottery in accordance with Lottery’s information security requirements and will certify in writing compliance with such requirements upon request.
f. Applications, Renewals, Further Assignments and Transfers. The rights vested in, assigned to, transferred and/or licensed to the Lottery hereunder include without limitation (a) the exclusive right to make and secure applications and registrations of copyright and other intellectual property rights; (b) the exclusive exercise of such intellectual property rights for the unlimited, entire period of such rights throughout the world; (c) the exclusive right to renewals, reversions, and extensions of such intellectual property rights; (d) the exclusive right to authorize, transfer, license, sublicense, deal in, dispose of and assign others to own or exercise such rights, title and interests; and (e) the exclusive
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right to initiate, pursue, prosecute and settle past, present and future claims of infringements relating to such intellectual property rights. Without limitation, the Contractor acknowledges that all rights of every kind and nature whatsoever in the Work Product may be exploited, assigned and licensed by the Lottery to such third parties as it sees fit, and the Work Product is expressly acknowledged to be specially ordered and commissioned by the Lottery.
11.3. Acknowledgments
The Contractor acknowledges and agrees that the Lottery is the exclusive holder of all copyright, trademark, patent, and other intellectual property and proprietary rights in the Work Product worldwide and that the Contractor has no right to and will not directly or indirectly reproduce, fix, adapt, modify, translate, create derivative works from, manufacture, market, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit or provide access electronically, broadcast, perform, display, enter into computer memory, or use or exploit the Work Product, or any portion or copy thereof in any form, or any such rights, or authorize or assign others to do so, or derive any other work from concepts, information or elements of the Work Product, except as explicitly permitted by this Contract. In the event that the Lottery provides the Contractor with technology, software, resource files, tools and other materials with which to prepare the Work Product, the Contractor will safeguard and use such materials only for the purpose of preparing the Work Product and return such materials and all copies thereof at any time upon request of the Lottery.
11.4. Further Assurances
At the Lottery’s expense, but without payment of additional compensation, the Contractor must execute all documents and take all actions necessary or reasonably requested by the Lottery to document, obtain, maintain, perfect, or assign its rights to the Work Product. The Contractor must also cause its employees, agents, and subcontractors to execute such documents and take such actions as described above. If the Contractor fails or refuses to execute any such instruments within ten business days after the Lottery’s request, the Contractor hereby appoints the Lottery as the Contractor's attorney-in-fact (this appointment to be irrevocable and a power coupled with an interest) to act on the Contractor's behalf and to execute such documents. The Contractor will not contest the validity of the Lottery's rights in the Work Product and will cause its employees, agents, and subcontractors to comply with the foregoing. All such Work Product will be deemed to be the confidential, proprietary and trade secret information of the Lottery.
11.5. Third-Party Materials
The Contractor will not disclose to the Lottery or use in its work any trade secrets or confidential information of a third party which the Contractor is not lawfully entitled to disclose or use in such manner. The Contractor will not use any
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equipment, supplies, facilities, computer code, work product, inventions, materials or intellectual property of any other party (the "Third Party Materials") in any Work Product or in the Contractor's performance under this Contract unless: (a) the Contractor has the full right and authority to do so without violating any rights of any third party; (b) the Contractor has obtained all necessary rights to enable the Contractor to perform its obligations under the Contract and grant the rights granted herein and to permit the Lottery to utilize the Third Party Materials as contemplated under this Contract at no additional cost to the Lottery; (c) the Lottery's use of such Third Party Materials will not restrict or impair in any manner its use of the deliverables or the Work Products or subject the Lottery to any obligation or liability; and (d) such Third Party Materials are specifically identified to the Lottery in writing in advance of any use and the Lottery has agreed in writing to such use and approved the written agreement for such Third Party Materials. The Contractor hereby grants to the Lottery a perpetual, irrevocable, sub-licensable, non-exclusive, fully-paid, royalty-free, worldwide license to use, exploit, sell, copy, reproduce, manufacture, distribute, export, publicly display, publicly perform, sublicense, modify, improve, enhance and make derivative works of such Third-Party Materials as incorporated in the Work Product or any derivatives or reuses thereof by the Lottery or its successors, assigns or licensees in all media whether now known or hereafter devised. The Lottery reserves the right to designate particular Third-Party Materials to be licensed on an exclusive basis. For the avoidance of doubt, the Lottery requires that all independent contractors engaged by the Contractor to create the Work Product transfer all rights to their work product and the foregoing will apply solely to the approved use of pre-existing third-party materials as set forth herein.
11.6. Transfers and Consents
The Contractor must secure in writing, in a form satisfactory to the Lottery, all transfers of rights and other consents necessary for the Contractor to make the assignments, licenses and other transfers set forth above. Without limitation, the Contractor will secure written agreements and consents from its employees and contractors that all works created pursuant to this Contract (including the Work Product) fall within the scope of their employment duties or engagement, as applicable, and that all economic rights in such works vest in the Contractor as the employer and are fully transferable, and the Contractor must secure such written transfers of rights and all other required consents from all other persons or entities whose services were, are or will be rendered in connection with the Work Product. Upon request, the Contractor will provide the Lottery with copies of all such contractual documentation and shall include the Lottery as a third-party beneficiary of such agreements or cause such parties to execute a further acknowledgment and assignment for the benefit of the Lottery if requested.
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12. LIQUIDATED DAMAGES
a. It is mutually agreed that:
(1) If the Contractor fails to perform the services and/or provide the goods herein described, damage to the Lottery will result;
(2) Proving such damage would be costly, difficult, and time-consuming;
(3) The damage amounts contained in this Section represent a good faith effort to quantify the range of harm that could reasonably be anticipated at the time of the making of this Contract;
(4) The Lottery may, at its discretion, withhold liquidated damages from payments to the Contractor, or make demand for payment of liquidated damages or for repayment of monies advanced to the Contractor, said payment to be rendered within thirty (30) days of demand date.
b. Nothing in this Section relieves the Contractor from performing all contract requirements, whether listed herein or not, nor is the Lottery’s right to enforce or to seek other remedies from breach of contract or any other duty hereby diminished.
c. This Contract and documents in order of precedence will be used by the Lottery to monitor Contractor performance and will provide the basis for determining liquidated damages.
d. The Contractor must provide all documentation and other information deemed pertinent and necessary by the Lottery for the purpose of determining whether liquidated damages are to be assessed.
e. The base payment period for purposes of this Section is the business week, which is defined as the period starting at 0001 hours Sunday and ending 2400 hours Saturday.
f. Once the Lottery has determined that liquidated damages are to be assessed, the Director or designee must:
(1) Notify the Contractor of the assessment(s). The assessment notice must be sent to the Contractor by certified mail, return receipt requested, or by any other method which provides evidence of receipt. At the Director’s or designee’s discretion, the assessment notice may demand payment of the liquidated damages assessment by the Contractor or demand repayment of monies advanced to the Contractor to satisfy the liquidated damages assessment. If payment is thus directed, the Contractor must pay the assessment within 30 days of receipt of the assessment notice; or
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(2) Determine if the Contractor’s failure to comply with any of the terms and conditions was caused in whole or in part by factors beyond the Contractor’s control. If so determined, the Director or designee may reduce any liquidated damages assessment proportionally. The Director or designee will make this determination on a case-by-case basis.
g. Any liquidated damages assessment may also be collected, at the Director’s discretion, by withholding the funds from payment(s) due to the Contractor after the date of assessment.
h. As determined appropriate by the Director, following are the conditions under which the Contractor may obtain relief from the continued assessment of liquidated damages which have been imposed:
(1) Except as waived by the Director, no liquidated damages imposed on the Contractor will be terminated or suspended until the Contractor issues a written notice of correction to the Director verifying the correction of condition(s) for which liquidated damages were imposed.
(2) The necessary level of documentation to verify the corrections must be determined to be acceptable by the Director, who is the sole judge of the accuracy of any documentation provided.
(3) A Contractor notice of correction will not be effective until the correction is verified.
(4) Unless specified otherwise by the Director, corrections must be sustained for a period of at least 90 days from Lottery acceptance; otherwise, liquidated damages may be re-imposed without a succeeding grace period (in those cases where one is allowed) within which to correct.
(5) Contractor use of resources to correct defects must not be allowed to cause other problems.
(6) The Contractor must certify that each defect so identified is corrected.
i. If any portion of this liquidated damages provision is determined to be unenforceable in one or more of its applications, the portion remains in effect in all applications not determined to be invalid that are severable from the invalid applications. If any portion of this liquidated damages provision is determined to be unenforceable in total, the other portions of this provision will remain in full force and effect.
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j. Conditions and Damages
(1) Condition
The Contractor is required to provide fully trained and certified technicians, equipped with the appropriate tools, parts, test equipment, manuals, etc., necessary to perform preventive maintenance tasks as detailed in Exhibit A, Scope of Work.
Damages
The parties agree that the Lottery will sustain damage if the Contractor fails to provide a fully trained and certified technician to perform preventive maintenance as required at each Lottery location. The parties further agree that it is extremely difficult to quantify the exact monetary damage that the Lottery will sustain if those requirements are not met. With that in mind, the parties agree that a liquidated damages assessment of $1,000.00 for each occurrence is fair and reasonable.
(2) Condition
The Contractor is required to respond to an emergency service call within four hours to any designated Lottery location as detailed in Exhibit A, Scope of Work.
Damages
The parties agree that the Lottery will sustain damage each time the Contractor fails to physically respond as required within four hours to an emergency service call. The parties further agree that it is extremely difficult to quantify the exact monetary damage the Lottery will sustain if those timelines are not met. With that in mind, the parties agree that a liquidated damages assessment of $500.00 for each hour or portion thereof in excess of the 4-hour required response is fair and reasonable.
(3) Condition
The Contractor is required to repair all critical equipment within 48 hours as detailed in Exhibit A, Scope of Work.
Damages
The parties agree that the Lottery will sustain damage if the Contractor fails to repair critical equipment within 48 hours. The parties further agree that it is extremely difficult to quantify the exact monetary damage the Lottery will sustain if those timelines are not met. With that in mind, the parties agree that a liquidated damages assessment of $500.00 for each 24-hour period or portion thereof in excess of the required time is fair and reasonable.
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(4) Condition
The Contractor is required to respond to any designated Lottery location for a non-critical service call by the close of business the next business day as detailed in Exhibit A, Scope of Work.
Damages
The parties agree that the Lottery will sustain damage each time the Contractor fails to physically respond as required by the close of business the next business day. The parties further agree that it is extremely difficult to quantify the exact monetary damage the Lottery will sustain if those timelines are not met. With that in mind, the parties agree that a liquidated damages assessment of $500.00 for each 24-hour period or portion thereof in excess of the required response is fair and reasonable.
(5) Condition
The Contractor is required to repair any non-critical equipment within 14 calendar days as detailed in Exhibit A, Scope of Work.
Damages
The parties agree that the Lottery will sustain damage if the Contractor fails to repair non-critical equipment within 14 calendar days. The parties further agree that it is extremely difficult to quantify the exact monetary damages the Lottery will sustain if those timelines are not met. With that in mind, the parties agree that a liquidated damages assessment of $500.00 for each 24-hour period or portion thereof in excess of the required time is fair and reasonable.
(6) Condition
The Contractor is required to submit a written proposal or time and materials estimate for new installations or modifications with a work schedule and completion date as detailed in Exhibit A, Scope of Work. The Lottery expects the Contractor to meet the scheduled completion date.
Damages
The parties agree that the Lottery will sustain damage each time the Contractor fails to meet the scheduled completion date of any new installations and modifications. The parties further agree that it is extremely difficult to quantify the exact monetary damage the Lottery will sustain if those timelines are not met. With that in mind, the parties agree that a liquidated damages assessment of $500.00 for each 24-hour period or portion thereof in excess of the scheduled completion date is fair and reasonable.
ATTACHMENT 1
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ATTACHMENT 1 – PRICE SHEET
_________________________ Bidder’s Name
Page 1 of 2
The Contractor will provide the Lottery with Security System Services as stated in Exhibit A, Scope of Work as the rates set forth below. These rates will remain fixed for the term of the Contract and any extensions thereto, except as may be adjusted pursuant to Exhibit A, Section 4.h.
Except as noted below, the rates below include all costs associated with the performance of this Contract, including compensation for all administrative overhead/support costs, profits, all applicable taxes, any other direct and indirect costs related to performance of the services specified in Exhibit A, Scope of Work.
Other than reimbursement for certain pre-approved travel costs pursuant to Exhibit A, Section 5.b (where travel is specially requested by the Lottery), equipment procured under Exhibit A, Section 3, and subcontractor services utilized under Exhibit A, Section 4.f, Contractor will not be entitled to any reimbursement or compensation for services provided under this Contract beyond the rates specified below.
1) Core Services Rate: $_____________ per month
2) Standard Hourly Rate: $_____________ per hour
3) Premium Hourly Rate: $_____________ per hour
4) Equipment Mark-up (Not to Exceed 25%)2 _____%
Any changes made to the Price Sheet format, including but not limited to exceptions, deletions, conditions, and additions may be the basis for rejecting a proposal.
2 Equipment Mark-up will apply only to equipment procured by the Contractor on behalf of the Lottery under Exhibit A, Section 3. A proposed Equipment Mark-up in excess of 25% will be deemed non-responsive to this procurement and result in the Bidder’s disqualification.
ATTACHMENT 1
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ATTACHMENT 1 – PRICE SHEET
_________________________ Bidder’s Name
Page 2 of 2
I, ____________________________, certify that I am authorized to sign the Price Sheet, (type or print name) and warrant that the prices set forth are accurate and unconditional. I further certify that these prices constitute an irrevocable offer which the Lottery may, at its option, accept or reject at any time up to 180 days from the date that proposals to this RFP were due.
_________________________________ ___________________ Signature of Authorized Representative Date
________________________________ ________________________________ Printed Name Title