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HomeMy WebLinkAboutResolution - 2003-R0483 - Wireless Service Agreement - Cingular Wireless - 10_23_2003Resolution No. 2003-RO483 October 23, 2003 Item No. 32 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Wireless Service Agreement and all related documents between the City of Lubbock and Cingular Wireless. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 23rd day of October , 2003. McIYOUgAL, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: �m 6JI, 6-c,� MarqYearwodd, Director, InfoAnation Technology APPROVED AS TO FORM: Linda L. Chamales, Supervising Attorney Office. Practice Section Lc: City Att/Linda/RES-Cingular Wireless Resolution No. 2003-RO483 October 23, 2003 Item No. 32 WIRELESS SERVICE AGREEMENT THIS AGREEMENT is made by and between the City of Lubbock located in Lubbock, Texas (hereinafter referred to as the "City") and Cingular Wireless LLC on behalf of its wireless affiliates ("Cingular Wireless"). WHEREAS, the City has issued a Request for Proposal (RFP# 098-0-2003/RW) for Wireless Services, and; WHEREAS, the City of Lubbock and Cingular Wireless, desire to enter into an agreement with regard to the proposal to provide the Wireless Services solicited by Request for Proposals No. 098-0-2003/RW, and; WHEREAS, the response to the original RFP (Exhibit B) is to be considered an addendum to this contract as if fully copied therein and made a part hereof by reference, except where it conflicts with this contract, wherein this contract shall take precedence, and; WHEREAS, this is not an exclusive contract and other vendors may also provide Wireless Services to the City; NOW THEREFORE, for and in consideration of the mutual promises contained herein, the City and Cingular Wireless agree as follows: INCORPORATION OF RFP# 098-0-2003/RW ("RFP") The parties agree that the terms and conditions of RFP# 098-0-2003/RW and the response thereto, specifically including and but not limited to the terms and conditions of the Master Service Agreement attached as Appendix C to the RFP and Exhibit C to this document, are incorporated herein and made a part hereof. To the extent hat there is a direct conflict between the terms and conditions of this Agreement and the RFP, the terms and conditions of this agreement shall control. ARTICLE 1— FEES AND PAYMENTS A. The City shall pay Cingular Wireless the fees and charges as specified in the RFP Response for wireless services and equipment. B. Attached and incorporated is Exhibit A of this contract that will provide details of monthly rates. C. This contract will be for a minimum of one hundred -fifty (150) wireless phones using Cingular Wireless service during this contract period. The City reserves the right to make changes to these phones as long as the total number of phones in service does not drop below one hundred -fifty (150) for more than thirty days. Wireless Services and Equipment City of Lubbock & Cingular Wireless 20o�S-V_oyB� D. The City is tax exempt and will provide a tax exemption certificate upon request. E. All invoices will be detailed and broken down by phone number. All billing should be in the electronic format during the period of this contract. Billing for the previous month will be sent to the City by the end of the first week of every month. F. Any wireless service, which is added during the term of this contract, will become part of this contract and such service will expire at the end of this contract. G. If the number of wireless phones falls below one hundred -fifty (150) for more than thirty days, the City will be liable for an early termination charge of $200.00 per wireless number. H. The City shall be entitled to support as described in this Agreement and in the RFP Response. Charges for any additional services will be negotiated on a case -by -case basis. I. Wireless charges are calculated in 60-second increments of usage with the rate remaining constant regardless of the time of day or day of week on the pooled plan set forth in Exhibit A. J. All activation and set up charges are waived for new activations. K. The roaming administration fee is waived. L. All equipment must be pre -approved through the Telecommunications Department. The City is not liable for costs of equipment that has not been approved through the Telecommunications Department. M. Equipment purchases should not be a part of the electronic usage billing. N. Invoices should be sent to the Telecommunications Department. O. This is not an exclusive contract. The City reserves the right to contract with other wireless service providers should the City so desire. ARTICLE II - SUPPORT A. Cingular Wireless will supply a toll free number to provide 24 hours x 7 days technical service at no charge. B. In an emergency, Cingular Wireless will provide wireless phones and service for specified time periods at proposed rates without penalty. C. In an emergency, Cingular Wireless will implement emergency procedures as it deems necessary as set forth in the RFP. D. Cingular Wireless will provide loaner phones during repair of wireless equipment. E. Cingular Wireless will re -program wireless sets as necessary without additional costs. F. Cingular Wireless will analyze phone usage and recommend alternative plans as needed. G. Cingular Wireless will provide pick up and delivery when requested and shall be responsible for damage or loss of phone if damage or loss occurs after removal from the City by Cingular. Wireless Services and Equipment City of Lubbock & Cingular Wireless ARTICLE III— TERMINATION AND TERM A. This contract can be terminated if access is not available (i.e. fast busy or no signal) in excess of 20% of the number of times a line is requested. B. This contract will be for a period of two years with an option upon mutual agreement in writing of both parties to renew for two additional one-year periods. ARTICLE IV —ASSIGNMENT This agreement shall not be assignable by either party without the prior written consent of the other party, and any attempted assignment shall be void. No assignment of this Agreement shall be valid until and unless consented to in writing by the consenting party and assumed by the assignee in writing. When duly assigned in accordance with the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the assignee. ARTICLE V - NOTIFICATIONS All notices, approvals, acceptances, and consents required by this Contract shall be in writing and addressed as follows: City of Lubbock ATTN: Telecommunications Coor P.O. Box 2000 Lubbock, Texas 79457 Phone (806) 775-2376 Fax (806) 775-3033 Cingular Wireless ATTN: Area Business Sales Mgr 5109 82"d Street, Suite 4 Lubbock, Texas 79424 Phone (806) 472-2110 Fax (806) 472-2174 ARTICLE VI — ENTIRE AGREEMENT This agreement supersedes all prior proposals, oral or written, all previous negotiations and all other communications or understandings between Cingular Wireless and the City with respect to the subject matter hereof. It is expressly agreed that if the City issues a purchase order or other document for the services provided under this Agreement, such instrument will be deemed for the City's internal use only, and any provisions contained therein shall have no effect whatsoever upon this Agreement. This Agreement sets forth the sole and entire understanding between Cingular Wireless and the City with respect to the subject matter. No amendments to this Agreement, either at the execution or subsequently, shall be binding on Cingular Wireless or the City unless agreed to in writing by both parties. Wireless Services and Equipment City of Lubbock & Cingular Wireless 2003 -- 9-C Z41�3. ARTICLE VII — GOVERNING LAW This Contract shall be governed by, subject to, and construed according to the laws of the State of Texas. ARTICLE VII - APPLICABLE LAW Cingular Wireless agrees to comply with all applicable local, state, and federal laws, regulations, and orders relating to the services, including but not limited to fair and equal opportunity practices and policies. EXECUTED this 23rd day of October , 20 03 CINGULAR WIRELESS: CITY OF LUBB BY: Mac McD ga TITLE: �4�- �ro�' �1c�(L. ATTEST: Rebecca -Garza, City Secret APPROVED AS TO CONTENT: rA 1 — �/!/ �••• . APPROVED AS TO FORM: Linda Chamales Supervising Attorney, Office Practice Wireless Services and Equipment City of Lubbock & Cingular Wireless 4 Resolution No. 2003—RO483 EXBIHIT A: Cingular Wireless Business Shared/Pooled Plan $3,000 per month Includes: • 50,000 total minutes • Texas Statewide Plus Coverage • Additional minutes above 50,000 are $.20 per minute • Roaming rate of $.69 (includes toll) • $5 for each additional end user (excludes 1 st user) • Basic Voice Mail at no extra costs • Detailed Airtime at no extra costs • Call Forwarding at no extra costs • Text Messaging for unlimited messages at no extra costs • Caller ID at no extra costs • Call Waiting at no extra costs • 3-Way Calling at no extra costs • Activation Fees Waived • Accessories: o Wall Charger @ no extra costs o Car Charger @ 40% off retail o Case @ 40% off retail Wireless Services and Equipment City of Lubbock & Cingular Wireless 5 Q-005r V-��3 EXBIHIT B: Wireless Services and Equipment City of Lubbock & Cingular Wireless Resolution No. 2003—RO483 RFP #098-03/RW, Wireless and Cellular Services for the City of Lubbock SUBMIT TO: CITY OF LUBBOCK CITY OF EXAS LUBBOCK., PURCHASING DEPARTMENTift 1625 13TM STREET, RM L04 LUBBOCK, TX 79401-3830 AN EQUAL OPPORTUNITY REQUEST FOR PROPOSAL #098-03/RW CONTACT PERSON: Randy Wood EMPLOYER TEL:806.775.2167 FAX:806.775.2164 http://purchasing.cl.lubbock.tx.us TITLE: SUBMITTAL DEADLINE: Wireless and Cellular Services for the City of Lubbock July 2, 2003, 3:00 PM CST PRE PROPOSAL DATE, TIME AND LOCATION: Any proposals received after the time and date June 17, 2003, 10:00 AM CST, Planning Conference Room 107 listed above, regardless of the mode of delivery, shall be returned unopened. RESPONDENT NAME: IF RETURNING AS A "NO RESPONSE", PLEASE STATE REASON. MAILING ADDRESS: CITY - STATE - ZIP: THE CITY OF LUBBOCK RESERVES THE RIGHT TO ACCEPT OR REJECT ANY AND ALL PROPOSALS IN WHOLE OR IN PART AND WAIVE ANY INFORMALITY IN THE COMPETITIVE PROPOSAL PROCESS. FURTHER, THE CITY RESERVES TELEPHONE N0: THE RIGHT TO ENTER INTO ANY CONTRACT DEEMED TO BE IN THE BEST INTEREST OF THE CITY. IT IS THE INTENT AND PURPOSE OF THE CITY OF LUBBOCK THAT THIS FAX NO: REQUEST PERMITS COMPETITNE PROPOSALS. IT IS THE OFFEROR'S RESPONSIBILITY TO ADVISE THE CITY OF LUBBOCK PURCHASING MANAGER IF ANY LANGUAGE, REQUIREMENTS, ETC., OR ANY COMBINATIONS E-MAIL: THEREOF, INADVERTENTLY RESTRICTS OR LIMITS THE REQUIREMENTS STATED IN THIS RFP TO A SINGLE SOURCE. SUCH NOTIFICATION MUST BE FEDERAL TAX ID N0. OR SOCIAL SECURITY N0. SUBMITTED IN WRITING AND MUST BE RECEIVED BY THE PURCHASING MANAGER NO LATER THAN FIVE (5) BUSINESS DAYS PRIOR TO THE ABOVE SUBMITTAL DEADLINE. THE OFFEROR HEREBY ACKNOWLEDGES RECEIPT OF AND AGREES ITS PROPOSAL IS BASED ON THE FOLLOWING ADDENDA: #9 #2 #3 #4 #5 (Please Initial) The City of Lubbock Charter states that no officer or employee of the City can benefit from any contract, job, work or service for the municipality or be interested in the sale to the City of any supplies, equipment, material or articles purchased. Will any officer or employee of the City, or member of their immediate family, benefit from the award of this proposal to the above firm? YES NO IN COMPLIANCE WITH THIS SOLICITATION, THE UNDERSIGNED OFFEROR HAVING EXAMINED THE REQUEST FOR PROPOSAL, AND BEING FAMILIAR WITH THE CONDITIONS TO BE MET, HEREBY SUBMITS THE FOLLOWING. AN INDIVIDUAL AUTHORIZED TO BIND THE COMPANY MUST SIGN THE FOLLOWING SECTION. FAILURE TO EXECUTE THIS PORTION MAY RESULT IN PROPOSAL REJECTION. By my signature I certify that this offer is made without prior understanding, agreement, or connection with any corporation, firm, business entity, or person submitting an offer for the same materials, supplies, equipment, or service(s), and is in all respects fair and without collusion or fraud. I further agree that if the offer is accepted, the offeror wit( convey, sett, assign, or transfer to the City of Lubbock all right, title, and interest in and to at t causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Texas for price fixing relating to the particular commodity(s) or service (s) purchased or acquired by the City of Lubbock. At the City's discretion, such assignment shall be made and become effective at the time the City tenders final payment to the vendor. Authorized Signature Print/Type Name Title Date THIS FORM MUST BE COMPLETED AND RETURNED WITH YOUR RESPONSE. 098-03/RW RFPSVC.doc RFP #098-03/RW, Wireless and Cellular Services for the City of Lubbock Wireless and Cellular Services for the City of Lubbock CITY OF LUBBOCK, TEXAS RFP #098-03/RW The City of Lubbock appreciates your time and effort in preparing your proposal. All offerors should familiarize themselves with the following INSTRUCTIONS TO OFFERORS and GENERAL REQUIREMENTS: 1. INSTRUCTIONS TO OFFERORS PROPOSAL DELIVERY, TIME Bt DATE 1.1 The City of Lubbock will receive written and seated competitive proposals for Wireless and Cellular Services for the City of Lubbock until 3:00 p.m. CST, July 2, 2003 at 3:00 PM if date/time stamped on or before 3:00 PM at the office listed below. Any proposal received after the date and hour specified wilt be rejected and returned unopened to the offeror. Each proposal and supporting documentation must be in a sealed envelope or container plainly labeled in the lower left-hand comer: "RFP #098-03/RW, Wireless and Cellular Services for the City of Lubbock " and the closing date and time. Offerors must also include their company name and address on the outside of the envelope or container. Proposals must be addressed to: Victor Kilman, Purchasing Manager City of Lubbock 1625 13th Street, Room L-04 Lubbock, Texas 79401 1.2 Offerors are responsible for making certain proposals and proposed contracts are delivered to the Purchasing Department. Mailing of a proposal does not ensure that the proposal will be delivered on time or delivered at all. If offeror does not hand deliver proposal, we suggest that he/she use some sort of delivery service that provides a receipt. The City of Lubbock assumes no responsibility for errant delivery of proposals, including those relegated to a courier agent who fails to deliver in accordance with the time and receiving point specified. 1.3 Proposals will be accepted in person, by United States Mail, by United Parcel Service, or by private courier service. No proposals will be accepted by oral communication, telephone, electronic mail, telegraphic transmission, or telefacsimile transmission. THE CITY WILL NOT ACCEPT FAX PROPOSALS. 1.4 Proposals may be withdrawn prior to the above scheduled time set for closing. Alteration made before RFP closing must be initiated by offeror guaranteeing authenticity. 1.5 The City of Lubbock reserves the right to postpone the date and time for accepting proposals through an addendum. 2 PRE -PROPOSAL MEETING 2.1 For the purpose of familiarizing offerors with the requirements, answering questions, and issuing addenda as needed for the clarification of the Request for Proposal (RFP) documents, a ore -proposal meeting will be held at 10:00 AM on June 17. 2003, at 1625 13th Street, Municipal Building, Planning Conference Room 107, Lubbock. Texas. All persons attending. the conference will be asked to identify themselves and the prospective offeror they represent. 098-03RWRFPSVC.doc 2 �_'W3 - iZ04�3 RFP H098-03/RW. Wireless and Cellular Services for the City of Lubbock 2.2 It is the offeror's responsibility to attend the pre -proposal meeting though the meeting is not mandatory. The City will not be responsible for providing information discussed at the pre -proposal meeting to offerors who do not attend the pre -proposal meeting. 2.3 The City of Lubbock does not discriminate against person with disabilities. City of Lubbock pre -proposal meetings are available to all persons regardless of disability. If you would like information made available in a more accessible format or if you desire assistance, please contact the City of Lubbock ADA Coordinator, 1625 13th Street, (806)775-2018 at least forty-eight (48) hours in advance of the conference. CLARIFICATION OF REQUIREMENTS 3.1 It is the intent and purpose of the City of Lubbock that this request permits competitive proposals. It is the offeror's responsibility to advise the City of Lubbock Purchasing Manager if any language, requirements, etc., or any combinations thereof, inadvertently restricts or limits the requirements stated in this RFP to a single source. Such notification must be submitted in writing and must be received by the City of Lubbock Purchasing Office no later than five (5) business days prior to the proposal closing date. A review of such notifications will be made. 3.2 ALL: REQUESTS FOR''AD1. .1ITIONAL INFORMATION OR CLARIFICATION CONCERNING THIS REQUEST FOR PROPOSAL :(RFP) MUST BE SUBMITTED IN WRITING NO LATER THAN FiVE (5) BUSINESS DAYS PRIOR TO THE.: PROPOSAL CLOSING: DATE AND ADDRESSED TO:, Randy Wood, Buyer City of Lubbock 1625 131' Street Lubbock, Texas 79401 Fax: (806) 775-2164 Email: rwood@mail.ci.lubbock.tx.us 4 ADDENDA Et MODIFICATIONS 4.1 Any changes, additions, or clarifications to the RFP are made by amendments (addenda). 4.2 Any offeror in doubt as to the true meaning of any part of the RFP or other documents may request an interpretation thereof from the Purchasing Department. At the request of the offeror, or in the event the Purchasing Department deems the interpretation to be substantive, the interpretation will be made by written addendum issued by the Purchasing Department. Such addendum issued by the Purchasing Department will be sent to all offerors receiving the original Request for Proposal (RFP) and will become part of the proposal package having the same binding effect as provisions of the original RFP. No verbal explanations or interpretations will be binding. In order to have a request for interpretation considered, the request must be submitted in writing and must be received by the City of Lubbock Purchasing Department no later than five (5) days prior to the proposal closing date. 4.3 All addenda, amendments, and interpretations of this solicitation shall be in writing. Any amendment or interpretation that is not in writing shall not legally bind the City of Lubbock. Only information supplied by the City in writing or in this RFP should be used in preparing proposal responses. All contacts that an offeror may have had before or after receipt of this RFP with any individuals, employees, or representatives of the City and any information that may have been read in any news media or seen or heard in any communication facility regarding this RFP should be disregarded in preparing responses. 098-03/RWRFPSVC.doc 3 RFP #098-03/RW. Wireless and Cellular Services for the City of Lubbock 4.4 The City does not assume responsibility for the receipt of any addendum sent to offerors. EXAMINATION OF DOCUMENTS AND REQUIREMENTS 5.1 Each offeror shall carefully examine all RFP documents and thoroughly familiarize itself with all requirements prior to submitting a proposal to ensure that the proposal meets the intent of this RFP. 5.2 Before submitting a proposal, each offeror shall be responsible for making all investigations and examinations that are necessary to ascertain conditions and requirements affecting the requirements of this RFP. Failure to make such investigations and examinations shall not relieve the offeror from obligation to comply, in every detail, with all provisions and requirements of the Request for Proposal. 6 PROPOSAL COPIES 6.1 OFFEROR'S MUST SUBMIT THE ORIGINAL AND THREE COPIES OF THE SEALED PROPOSAL TO THE PURCHASING DEPARTMENT PRIOR TO RESPONSE DUE DATE/TIME. FAILURE TO SUBMIT THE ADDITIONAL COPIES MAY RESULT IN THE PROPOSAL BEING DECLARED UNRESPONSIVE TO SPECIFICATION AND MAY NOT BE FURTHER EVALUATED. 6.2 All proposals, responses, inquiries, or correspondence relating to or in reference to this RFP, and all electronic media, reports, charts, and other documentation submitted by offerors shall become the property of the City of Lubbock when received. 7 PROPOSAL PREPARATION COSTS 7.1 Issuance of this RFP does not commit the City of Lubbock, in any way, to pay any costs incurred in the preparation and submission of a proposal. 7.2 The issuance of this RFP does not obligate the City of Lubbock to enter into contract for any services or equipment. 7.3 ALL costs related to the preparation and submission of a proposal shalt be paid by the proposer. 8 TRADE SECRETS, CONFIDENTIAL INFORMATION AND THE TEXAS PUBLIC INFORMATION ACT 8.1 If you consider any portion of your proposal to be privileged or confidential by statute or judicial decision, including trade secrets and commercial or financial information, clearly identify those portions. 8.2 Proposals will be opened in a manner that avoids disclosure of the contents to competing offerors and keeps the proposals secret during negotiations. All proposals are open for public inspection after the contract is awarded, but trade secrets and confidential information in the proposals are not open for inspection. 8.3 The City of Lubbock will honor your notations of trade secrets and confidential information and decline to release such information initially, but please note that the final determination of whether a particular portion of your proposal is in fact a trade secret or commercial or financial information that may be withheld from public inspection will be made by the Texas Attorney General or a court of competent jurisdiction. In the event a public information request is received for a portion of your proposal that you have marked as being confidential information, you will be notified of such request and you will be required to justify your legal position in writing to the Texas Attorney General pursuant to Section 552.305 of the Government Code. In the event that it is determined by opinion or order of the Texas Attorney General or a court of competent jurisdiction that such information is in fact not privileged and confidential under Section 552.110 of the Government Code and Section 252.049 of the 098-03/RWRFPSVC.doc 4 RFP #098-03/RW. Wiretess and Cettular services for the City of Lubbock Local Government Code, then such information will be made available to the requester. 8.4 Marking your entire proposal CONFIDENTIAL/PROPRIETARY is not in conformance with the Texas Open Records Act. 9 DISADVANTAGED BUSINESS ENTERPRISE (DBE) REQUIREMENTS 9.1 The City of Lubbock hereby notifies all offerors that in regard to any contract entered into pursuant to this RFP, Disadvantaged Business Enterprises (DBE's) will be afforded equal opportunities to submit proposals and will not be discriminated against on the grounds of race, color, sex, disability, or national origin in consideration of an award. 9.2 A DBE is defined as a small business concern which is at least 51% owned and controlled by one or more socially and economically disadvantaged individuals, or in the case of any publicly owned business, at least 51% of the stock of which is owned by one ore more socially and economically disadvantaged individuals. Socially and economically disadvantaged include Women, Black Americans, Hispanic Americans, Native Americans, Asian -Pacific Americans, and Asian -Indian Americans. 10 CONFLICT OF INTEREST 10.1 The Offeror shall not offer or accept gifts or anything of value nor enter into any business arrangement with any employee, official or agent of the City of Lubbock. 10.2 By signing their proposal, the offeror certifies and represents to the City the offeror has not offered, conferred or agreed to confer any pecuniary benefit or other thing of value for the receipt of special treatment, advantage, information, recipient's decision, opinion, recommendation, vote or any other exercise of discretion concerning this RFP. 11 ANTI -LOBBYING PROVISION 11.1 DURING THE PERIOD BETWEEN PROPOSAL SUBMISSION DATE AND THE CONTRACT AWARD, PROPOSERS, INCLUDING THEIR AGENTS AND REPRESENTATIVES, SHALL NOT DIRECTLY DISCUSS OR PROMOTE THEIR PROPOSAL WITH ANY MEMBER OF THE LUBBOCK CITY COUNCILOR CITY STAFF EXCEPT IN THE COURSE OF CITY -SPONSORED INQUIRIES, BRIEFINGS, INTERVIEWS, OR PRESENTATIONS, UNLESS REQUESTED BY THE CITY. 11.2 This provision is not meant to preclude offerors from discussing other matters with City Council members or City staff. This policy is intended to create a level playing field for all potential offerors, assure that contract decisions are made in public, and to protect the integrity of the RFP process. Violation of this provision may result in rejection of the offeror's proposal. 12 AUTHORIZATION TO BIND SUBMITTER OF PROPOSAL Proposals must show vendor name and address of offeror. The original proposal must be manually signed by an officer of the company having the authority to bind the submitter to its provisions. Person signing proposal must show title or AUTHORITY TO BIND THEIR FIRM IN A CONTRACT. Failure to manually sign proposal will disqualify it. 13 ABOUT THIS DOCUMENT This document is a Request for Proposal. It differs from an invitation to Bid in that the City of Lubbock is seeking a solution, as described in the following General Requirements section, not a bid/quotation meeting firm specifications for the lowest price. As such, the lowest price proposed will not guarantee an award recommendation. Seated proposals will be evaluated based upon criteria formulated around the most important features of a product or service, of which quality, testing, references, availability or capability, may be overriding factors, and 098-03/RW RFPSVC.doc Jr 2Q3- W4�S RFP #098-03/RW, Wireless and Cellular Services for the City of Lubbock price may not be determinative in the issuance of a contract or award. The proposal evaluation criteria should be viewed as standards that measure how well an offeror's approach meets the desired requirements and needs of the City of Lubbock. Those criteria that will be used and considered in evaluation for award are set forth in this document. The City will thoroughly review all proposals received. The City will also utilize its best judgment when determining whether to schedule a pre -proposal conference (before proposals are accepted), or meetings with offerors (after receipt of all proposals). A Purchase Order/Contract will be awarded to a qualified offeror submitting the best proposal. The City reserves the right to select, and subsequently recommend for an award, the proposed service which best meets its required needs, quality levels, and budget constraints. 14 EVALUATION PROCESS 14.1 All proposals will be evaluated by an evaluation committee and may include senior management representatives, a financial officer, and/or an independent consultant. 14.2 Respondents to this RFP may be required to submit additional information that the City may deem necessary to further evaluate the offeror's qualifications. 14.3 The committee will evaluate and numerically score each proposal in accordance with the evaluation criteria included in the Request for Proposal. 14.4 The committee will arrive at a short list of the top respondents and these short-listed respondents may be scheduled for a structured oral presentation and interview. Such presentations wilt be at no cost to the City of Lubbock. At the end of the oral presentation and interview, the evaluation of the short-listed respondents will be completed. The oral interview may be recorded and/or videotaped. 15 SELECTION 15.1 Selection shall be based on the responsible offeror whose proposal is determined to be the most advantageous to the City of Lubbock considering the relative importance of evaluation factors included in this RFP. 15.2 NO INDIVIDUAL OF ANY USING DEPARTMENT HAS THE AUTHORITY TO LEGALLY AND/OR FINANCIALLY COMMIT THE CITY TO ANY CONTRACT, AGREEMENT OR PURCHASE ORDER FOR GOODS OR SERVICES, UNLESS SPECIFICALLY SANCTIONED BY THE REQUIREMENTS OF THIS REQUEST FOR PROPOSAL. 16 EQUAL EMPLOYMENT OPPORTUNITY Offeror agrees that it will not discriminate in hiring, promotion, treatment, or other terms and conditions of employment based on race, sex, national origin, age, disability, or in any way violative of Title VII of 1964 Civil Rights Act and amendments, except as permitted by said laws. 17 NONAPPROPRiATION All funds for payment by the City under this contract are subject to the availability of an annual appropriation for this purpose by the City. In the event of non -appropriation of funds by the City Council of the City of Lubbock for the goods or services provided under the contract, the City witl terminate the contract, without termination charge or other liability, on the last day of the then -current fiscal year or when the appropriation made for the then - current year for the goods or services covered by this contract is spent, whichever event occurs first. If at any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted by the Setter on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this contract beyond the date of termination. 098-03/RWRFPSVC.doc 6 2003 - tzc.x 3 RFP #098.03/RW, Wireless and Cellular Services for the City of Lubbock 18 PROTEST 18.1 All protests regarding the RFP process must be submitted in writing to the City Purchasing Manager within five (5) business days following the opening of proposals. This includes all protests relating to advertising of notices, deadlines, proposal opening, and all other related procedures under the Local Government Code, as well as any protest relating to alleged improprieties with the RFP process. This limitation does not include protests relating to staff recommendations as to award of contract. Protests relating to staff recommendations may be directed to the City Council by contacting the Executive Assistant to the City Council. All staff recommendations will be made available for public review prior to consideration by the City Council as allowed by law. 18.2 FAILURE TO PROTEST WITHIN THE TIME ALLOTTED SHALL CONSTITUTE A WAIVER OF ANY PROTEST. 09"3/RWRFPSVC.doc 7 2Oa�-U44 RFP #098-03/RW, Wireless and Cellular Services for the City of Lubbock VENDOR REFERENCES Please list three (3) references of current customers who can verify the quality of service your company provides. The City prefers customers of similar size and scope of work to this RFP. THIS FORM MUST BE RETURNED WITH YOUR PROPOSAL REFERENCE ONE Government/Company Name: Address: Contact Person and Title: Phone: Fax: Contract Period: Scope of Work: REFERENCE TWO Government/Company Name: Address: Contact Person and Title: Phone: Fax: Contract Period: Scope of Work: REFERENCETHREE` Government/Company Name: Address: Contact Person and Title: Phone: Fax: Contract Period: Scope of Work: 098-03/RWRFPsvc.doc 8 �2003- Qo4$3 RFP #098-03/RW. Wireless and Cellular Services for the City of Lubbock HIGH TECHNOLOGY RFP FOR CELLULAR PHONE SERVICES INTRODUCTION AND OVERVIEW The City of Lubbock is issuing a Request for Proposal (RFP) under the guidelines of a High -Technology RFP, and the award of the contract shall be made to the responsible vendor whose proposal is determined to be the best evaluated offer resulting from negotiation, taking into consideration the relative importance of price, qualifications, experience, references, local support and service, and other evaluation factors set forth in the request for proposal. Receipt of any proposal shall under no circumstance obligate the City of Lubbock to accept the best price offering. The Contract Agreement awarded under this RFP will grant to the successful respondent rights for cellular phone services for the City of Lubbock, Texas for a period of one year with two one-year options to renew. CURRENT ENVIRONMENT The City of Lubbock currently uses Cingular and Western Wireless (Celt One) for its cellular phone service at a per minute rate. The City of Lubbock has approximately 455 Cellular Phones in service, incurs an average of $13,600.00 per month in charges and uses approximately xxxx minutes per month. Based on the results of the RFP and need, the number of cellular phones needed may change. SCOPE These specifications encompass the requirements for Vendor response via seated proposals for Cellular Phone services. The responder to this Request for Proposals shall be wholly responsible to ensure that the services offered shall meet the City of Lubbock's requirements. VENDOR RESPONSIBILITIES The Vendor shall bear the following responsibilities: 1. Vendor shall be responsible for a complete, turnkey, installation of cellular services for the City of Lubbock without any interruption in service. 2. Vendor shall provide training and appropriate documented instructions to the City of Lubbock for the use of its proposed cellular services. 3. Vendor shall demonstrate, by local references, prior to acceptance of proposal, that the cellular services being proposed to the City of Lubbock will perform as represented in the proposal. (Cellular phones should be available for a trial period during the RFP process to confirm service availability) 4. Vendor shall provide fixed price services for one year with two one-year options to renew. 098-03/RWRFPSVC.doc 9 RFP #098-03/RW. Wireless and Cellular Services for the City of Lubbock 5. Provide a map detailing your coverage area. If the coverage area increases in size for other customers of the Vendor, then the City of Lubbock should have the option to increase its service area. Areas where roaming charges apply shall be clearly indicated. Indicate which cell sites your company owns and which ones are owned by other companies, with which you have coverage agreements. 6. If a government agency in the State of Texas is given a lower rate during the life of this proposal, the lower rate will apply to this proposal. 7. Legal venue for this proposal will be Lubbock County and Choice of Law for this proposal will be Texas. 8. Furnish a map, indicating the location of cellular tower sites that wilt be used to provide the cellular service included in this proposal and their coverage area. RIGHTS OF THE CITY OF LUBBOCK The City of Lubbock reserves the right to award these services on the basis of responses to this RFP or an agreement / proposal with the State of Texas, for cellular services, which ever is deemed solely by the City to be in its best interests. The City of Lubbock reserves the right to negotiate any and all parts of the proposals received, reject any and all proposals, or to accept selected components of any proposal. The City of Lubbock reserves the right to award these services for all existing number of phones, some of the phones or none of the phones, which ever is deemed solely by the City to be in its best interests. If a responding Vendor or their parent company has an agreement or proposal in effect with the State of Texas, indicate what the agreement / proposal is and how it compares to your proposal to the City. SELECTION CRITERIA 20% Quality of references received from business users of the Vendor's Cellular services and financial information provided by the Vendor. 20% Ease of access to cellular services and coverage areas. 20% Adequacy of reporting (invoicing) to enable City to allocate charges by employee, i.e. electronic billing. (Including allowing showing the incoming phone numbers on the bill) 30% Net monthly cost to the City for cellular services. 10% Disaster plan for Cellular services. The successful Vendor(s) must score at least 80% of each of the above evaluation criteria. DETAIL SPECIFICATIONS Vendor shall indicate to what extent the cellular services being proposed meet, exceed or falls short of the stated requirements. This discussion is to follow each specification description. Discussion such as "Meets all specifications" or "See attached specifications" do not qualify as explanations of what the Vendor is proposing. 1. In the event of an incident, such as the Oklahoma City bombing or a weather related disaster, how would you ensure cellular phone service for our Emergency Management Team and Public Safety Group? What would be your response time in activating this plan? 098-03/RWRFPSVC.doo 10 20©3 wog 3 RFP #098-03/RW, Wireless and Cellular Services for the City of Lubbock 2. in the event that a cellular phone is cloned by a hacker and the number is being used by an unauthorized user, how does your company check for this kind of activity and what would the City's liability be? 3. Discuss how charges for cellular phone calls are calculated. The City expects that charges will be calculated on increments of thirty (30) seconds or less, with no minimum. Will the rate be the same for 24 hours per day 7 days a week? If not, discuss other rates and the hours available. 4. Describe how the City will be converted to the proposed cellular services. The City expects that the cutover to these services will be done without interruption of cellular phone services and at no cost to the City. Also in the situation of a mass changeover of a type of phone the City is using (instigated by the cellular vendor) shall not be liable for the expense of the phones or accessories. 5. Explain any other charges, costs, fees, etc., that the City could/wilt incur by using the Vendor's Cellular services. Discuss any minimum charges that will be incurred by the City. 6. Explain how the City's designated long distance vendor will be designated as the long distance carrier for the proposed cellular phone service. Is there a set amount of long distance free with each phone? Please explain. 7. Indicate the location of your service facility and ability to provide parts and equipment. Also, indicate the hours of operation? Explain the procedure if a phone is stolen on the weekends or after hours. 8. Describe how the Vendor ensures that Cellular phone services will always be available to the City including during severe weather conditions. The City expects the Vendor to have these services available at all times the local telephone service is available. 9. Describe how invoices will be detailed so as to indicate all calls placed from or received by a telephone, including number, City and State of number, date, time of call and cost of call. Describe how the electronic billing will be handled and the formats available for the invoice. Describe what media bitting will be provided in. Provide samples of invoices that show the above requirements. 10. Discuss how the City will resolve invoicing problems or receipt of late monthly bills. Where is the person located with whom the City will discuss problems? Who will this person be? 11. Discuss who will provide service to the City and what the response time will be for delivery of new or replacement phones or additional accessories. 12. List all local businesses to which you provide similar cellular services that have 100 or more cellular phones. Indicate name of business, number of cellular phones, person to contact and their telephone number. 13. In the event of a major problem, provide an escalation list of personnel that can be contacted. List name, title, location and contact phone number. 14. Are there any special programs for which the City would be eligible? 15. Describe any special features or services available with the phones utilized by your company that the City of Lubbock could utilize: 2-way radio calling, family plan calling, picture taking, pooled minutes, etc. These components will be reviewed feasibility for certain City of Lubbock work groups. ON-03/RWRFPSVC.doc 11 !ZOO 6- i I-43 RFP #098-03/RW, Wireless and Cellular Services for the City of Lubbock 16. Explain the process when a phone is being utilized by the City of Lubbock gets discontinued by the vendor especially how it relates to accessories for the phone, parts for the phone and replacement phones. GENERAL CONDITIONS 1. The Cellular phone services proposed must meet Federal, State and PUC requirements. The Vendor shalt be responsible for including all items required by these regulations even though these items may not be requested in these specifications. 2. Any omissions from these specifications shall not relieve the Vendor from the responsibility of furnishing the necessary information and costs required. 3. Vendor shall include five (5) copies of their Proposal, including illustrative and technical data covering the proposed services. Also include a sample contract and warranty description, if applicable. 4. Vendor shalt include the financial information for the Vendor and the Vendor's parent company, if any. PROPOSAL FORMAT Prefacing the proposal, the respondent shall provide an Executive Summary of three (3) pages or less, which gives in brief, concise terms, a summation of the proposal. Include descriptions of primary and alternative configurations. The proposal itself shall be organized in the following format and informational sequence: Letter Of Transmittal 1. Statement of Services to be Provided 2. Signed Request or Proposal 3. Respondent Information 4. Technical and Performance Response 5. Installation and Operational Plan 6. Financial Offer The letter of transmittal should be physically signed by an officer of the firm and include the following: • Name, address, and identification number (SSN or FEIN) of the respondent. • Name, title and telephone number of the individual authorized to commit the respondent, if different from above. • Name, title and telephone number of the individual to be contracted regarding the content of the RFP proposal, if different from above. • City and state of respondent's corporate headquarters, if different from above. 098.031RWRFPSVC.doc 12 Ze0-'� -fig RFP #098-03/RW, Wireless and Cellular services for the City of Lubbock • A statement ensuring validity of the proposal for at least ninety (90) days. • A statement that the respondent understands and will comply with the various clearance procedures required by the City including equal opportunity and tax clearance certification. Business Organizations: State full name and address of your organization and identify parent company if you are a subsidiary. Specify the branch office or subordinate element, which will perform, or assist in performing, work herein. Indicate whether you operate as a corporation, partnership, or individual. Include the State in which incorporated or licensed to operate. System Conceot and Solution: Define in detail your understanding of the problem presented earlier in this request for proposal and your system solution. Provide all details required in addition to those facts you deem necessary to evaluate your proposal. Proiect Management Structure: Provide a general explanation and chart, which specifies project leadership and reporting responsibilities. If use of subcontractors is proposed, identify their placement in the primary management structure, and provide internal management description for each subcontractor. Prior Experience: Describe general relevant corporate experience providing service to organizations similar in size, complexity and type of government. o List at least five (5) customer references, concentrating on organizations with similar environments, preferably within the state. Even more preferable are customer references in the area. o A list of existing city, county, or other public entity users of similar systems provided by the respondent must be included. Please give the client name, contact person, address, telephone number, and number of cell phones of five of your customers. These references must have a minimum of 100 cell phones. Company Name Address Telephone # Contact Person Number of phones Years in Service Personnel: Include names and qualifications of all professional personnel who will be assigned to this project. State the primary work assigned to this person and the percentage of time each person will devote to this work. Identify key persons by names and title. Provide all resumes. Authorized Negotiator: Include name, address and telephone number of person in your organization authorized to negotiate contract terms and render binding decisions on contract matters. Cost Proposal: Complete a cost proposal evaluation matrix for the equipment specified. Be sure to indicate the costs for each device type. Be sure to include discounts, where applicable, and type of payment (monthly, annually, etc.). 098-03/RWRFPSVC.doe 13 2C>03 - 04%-E RFP #D9M3/RW, Wireless and Cellular Services for the City of Lubbock ANY ADDITIONAL COSTS MUST BE CLEARLY INDICATED Exceptions: any exception to this RFP must be explicitly indicated in a section titled "Exceptions." ACCEPTANCE TESTING The successful respondent shall demonstrate a comolete capability to maintain compliance with this proposal specification. SERVICE COSTS Regular Cellular Phone Service: Cost per 30 second or less bitting increment: Option cost for call forwarding: Option cost for call waiting: Option cost for 3-way conference call: Option cost for voice mail: Monthly detailed electronic billing: Roaming Charges: Accessories (car charger, handsfree, case): Other Charges: (Include phone models available and unit costs.) 09"3/RWRFPSVC.doc 14 City of Lubbock PURCHASING DEPARTMENT ROOM L04, MUNICIPAL BUILDING 1625 13T" STREET LUBBOCK, TEXAS 79401 PH: (806) 775-2167 FAX: (806) 775-2164 http://purchasing.ci.lubbock.tx.us RFP #098-0-2003, Addendum #1 ADDENDUM #1 RFP #098-0-2003/RW Wireless and Cellular Services for the City of Lubbock MAILED TO VENDOR: June 18, 2003 OLD CLOSE DATE: July 2, 2003 @ 3:00 P.M. NEW CLOSE DATE: July 8, 2003 @ 3:00 P. M. The following items take precedence over specifications for the above named Request for Proposal (RFP). Where any item called for in the RFP documents is supplemented here, the original requirements, not affected by this addendum, shall remain in effect. 1. Can we get a copy of your last 3 months phone bills that include the usage of each phone? The total usage in minutes for the City for a 3-month period follows: February 111,658 March 108,812 April 113,351 Individual phone detail is available in the Purchasing Department for viewing. 2. How many phones will the City of Lubbock need? As stated in the RFP under the Current Environment section, the City currently has approximately 455 active phones but depending on the results of the RFP and departmental need, the number could fluctuate. 3. How many phones are with Cingular and CellOne? Currently we have about 455 active phones. The monthly bills show a larger number due to the vendors having additional numbers set aside for expansion that are not being used. 4. Is this RFP for voice service only? Yes 5. What are the total amounts of phones you will need for your evaluation? The City of Lubbock needs a minimum of 6 for the trial period to use until the RFP closes but we would prefer 10 to 12 to get them into several areas of the organization. 6. Can the RFP be extended? The Deadline can be extended to July 8 to ensure enough time for response. 098-0-2003/Rwadd 1 2-003-W4U RFP #098-0-2003, Addendum #1 7. Is there a potential that the RFP will be awarded to multiple vendors? Yes. 8. When do you anticipate the RFP be awarded? It is anticipated for the contract to go to City Council on August 6 pending any internal timing issues. 9. Please include six copies and one original when submitting proposals. All requests for additional information or clarification must be submitted in writing and directed to: Questions may be faxed to: or Email to: 098-0-2003/Rwaddl Randy Wood, Buyer City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 (806) 775-2164 rwood@mail.ci.lubbock.tx.us THANK YOU, CITY OF LUBBOCK Randy Wood Buyer PLEASE RETURN ONE COPY OF THIS ADDENDUM WITH YOUR BID. RFP #098-0-2003, Addendum #2 20SAOIA 3 City of Lubbock PURCHASING DEPARTMENT ROOM L04, MUNICIPAL BUILDING 1625 13' STREET LUBBOCK, TEXAS 79401 PH: (806) 775-2167 FAX: (806) 775-2164 http://purchasing.ci.lubbock.tx.us MAILED TO VENDOR: CLOSE DATE: ADDENDUM #2 RFP #098-0-2003/RW Wireless and Cellular Services for the City of Lubbock June 20, 2003 July 8, 2003 @ 3:00 P. M. The following items take precedence over specifications for the above named Request for Proposal (RFP). Where any item called for in the RFP documents is supplemented here, the original requirements, not affected by this addendum, shall remain in effect. What is the break down on how many active Cingular phones and active Cell One phones the City of Lubbock is currently using? The following number of phones is from the latest monthly data available: Cingular - 247 active phones Cell One - 165 active phones 2. The City of Lubbock needs a minimum of 6 phones for the trial period to use until the RFP closes but we would prefer 10 to 12 to get them into several areas of the organization. If a vendor intends to submit these phones for the trial period they need to be turned into the Purchasing department by June 24, 2003 @ 3:00 P.M. Questions may be faxed to: or Email to: 098-0-2003/Rwadd2 Randy Wood, Buyer City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 (806) 775-2164 rwood@mail.ci.lubbock.tx.us THANK YOU, C OF LUBBOCK Randy Woo Buyer PLEASE RETURN ONE COPY OF THIS ADDENDUM WITH YOUR BID. 4 RFP #098-0-2003, Addendum #3 City of Lubbock PURCHASING DEPARTMENT ROOM L04, MUNICIPAL BUILDING 1625 13T" STREET LUBBOCK, TEXAS 79401 PH: (806) 775-2167 FAX: (806) 775-2164 http://purchasing.ci.lubbock.tx.us MAILED TO VENDOR: CLOSE DATE: ADDENDUM #3 RFP #098-0-2003/RW Wireless and Cellular Services for the City of Lubbock June 23, 2003 July 8, 2003 @ 3:00 P. M. The following items take precedence over specifications for the above named Request for Proposal (RFP). Where any item called for in the RFP documents is supplemented here, the original requirements, not affected by this addendum, shall remain in effect. 1. The City of Lubbock needs a minimum of 6 phones for the trial period to use until the RFP closes but we would prefer 10 to 12 to get them into several areas of the organization. The date has been extended for phones to be turned into the Purchasing department until June 26, 2003 @ 3:00 P.M. Questions may be faxed to: or Email to: Randy Wood, Buyer City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 (806) 775-2164 rwood@mail.ci.lubbock.bLus THANK YOU, OF LUBBOCK V . . Ik andy Wood Buyer PLEASE RETURN ONE COPY OF THIS ADDENDUM WITH YOUR BID. i, 098-0-2003/Rwadd3 RFP #098-0-2003, Addendum #4 City of Lubbock PURCHASING DEPARTMENT ROOM L04, MUNICIPAL BUILDING 1625 13TH STREET LUBBOCK, TEXAS 79401 PH: (806) 775-2167 FAX: (806) 775-2164 http://purchasing.ci.lubbock.tx.us MAILED TO VENDOR: CLOSE DATE: ADDENDUM #4 RFP #098-0-2003/RW Wireless and Cellular Services for the City of Lubbock June 25, 2003 July 8, 2003 @ 3:00 P. M. The following items take precedence over specifications for the above named Request for Proposal (RFP). Where any item called for in the RFP documents is supplemented here, the original requirements, not affected by this addendum, shall remain in effect. 1. Exactly how many references is the city requiring and where in the response should we include this information? Please include five references with the proposal. 2. On page 12, it appears that everything listed under "Letter of Transmittal" is to be included *all on pages 12 & 13 *. It is our assumption that the following is what the City is looking for regarding format: > Executive Summary > Signed RFP > Letter of Transmittal: > includes on the bullet points on pages 12 and 13 > Vendor Responsibilities: Responses to 1-8 on pages 9 & 10 > Detail Specifications: Responses to 1-15 on pages 10 & 11 > Service Proposal: Responses to all listed on pages 13 & 14 This will be fine. 3. On Page 13> System Concept and Solution: States. "Define in detail your understanding of the problem presented..." It is unclear as to the existing "problem" other than the City is looking for a new wireless provider and more efficient solution to your needs. Is there another "problem" stated in the RFP that we are not seeing? No, please provide a proposal for Wireless and Cellular Services for the City of Lubbock. 4. Please provide the number of employees with the City of Lubbock? There are 1,860 full-time but currently 2,040 because of summer and part time jobs. 098-0-2003/Rwadd4 9-CLAX� RFP #098-0-2003, Addendum #4 5. Our company has cellular, two-way radio (private one-to-one and group), alphanumeric paging, and wireless web applications all from one phone uc}t, I was hoping to obtain the city's costs relating to two-way radios, both ongoing and incidental, as well as costs for paging, if any. The current RFP is for cellular service and does not include any services for two-way radio or alphanumeric paging. They are both under separate contracts with other vendors. 6. My company would like to arrange interviews with some of the Department heads to see how our wireless web service offers might also streamline and economize the City of Lubbock's workload. There can be no arranged meetings with department heads during the competitive sealed bidding process. Questions may be faxed to: or Email to: Randy Wood, Buyer City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 (806) 775-2164 rwood@mail.ci.lubbock.tx.us THANK YOU, OFLUBBOCK Randy Woo Buyer PLEASE RETURN ONE COPY OF THIS ADDENDUM WITH YOUR BID. 098-0-20031Rwadd4 UB- QL1 L�V'� RFP #098-0-2003, Addendum #5 City of Lubbock PURCHASING DEPARTMENT ROOM L04, MUNICIPAL BUILDING 1625 13TH STREET LUBBOCK, TEXAS 79401 PH: (806) 775-2167 FAX: (806) 775-2164 http://purchasing.ci.lubbock.tx.us MAILED TO VENDOR: CLOSE DATE: ADDENDUM #5 RFP #098-0-2003/RW Wireless and Cellular Services for the City of Lubbock July 1, 2003 July 8, 2003 @ 3:00 P. M. The following items take precedence over specifications for the above named Request for Proposal (RFP). Where any item called for in the RFP documents is supplemented here, the original requirements, not affected by this addendum, shall remain in effect. 1. Q: Please clarify the following point: #4 Detail Specifications pg 11 "Also in the situation of a mass changeover of a type of phone the City is using (instigated by the cellular vendor) shall not be liable for the expense of the phones or accessories." Does this mean a change from the current vendor to a new vendor and phone type or if during an awarded contract, the type of phone should change the City would not be liable for any cost at that point? A: The City would not be fiscally responsible for the changeover of the new phone expense at the beginning of the new contract or responsible for the situation of a discontinuance of a type of phone during the contract. This situation speaks to the vendor discontinuing and no longer supporting or keeping parts for the discontinued phone. 2. Q: If in the best financial interest of the City of Lubbock, would there be consideration to committing to a 2 or 3-year contract as opposed to a 1-year term? A: This can be discussed during the contract negotiation. 3. Q: Regarding your $0 MRCL 10 per minute plan with Cingular, it is our understanding that there is a minimum minute commitment level that the City must uphold in order to receive this rate. What is that minimum monthly commitment level? A: There is not a minimum monthly commitment level. 4. Q: The city provided us with the usage for the months of February through April. Can you provide a breakdown of the minute type and by carrier? i.e. Cingular: X in February/Cell One X in February and whether it is Anytime, Nights & Weekends or Mobile to Mobile? 098-0-2003/Rwadd5 z003- P-048"3 RFP #098-0-2003, Addendum #5 A: February Cell One - Peak 48,036 Off Peak 2,116 Weekend 5,598 Cingular - 55,908 (detail not available) March Cell One Peak 51,094 Off Peak 1,811 Weekend 7,220 Cingular - 48,687 (detail not available) April Cell One Peak 53,612 Off Peak 2,374 Weekend 5,068 Cingular - 52,297 (detail not available) Randy Wood, Buyer City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Questions may be faxed to: (806) 775-2164 . or Email to: rwood@mail.ci.lubbock.tx.us THANK YOU, CITY OF LUBBOCK Randy Wo Buyer PLEASE RETURN ONE COPY OF THIS ADDENDUM WITH YOUR BID. 098-0-2003/Rwadd5 2 003 - COL - B EXBIHIT C: Wireless Services and Equipment City of Lubbock & Cingular Wireless Contract No. WIRELESS SERVICES MASTER SERVICE AGREEMENT On this Ex: 23rd day of MONTH, YEAR, Cingular Wireless LLC ("CINGULAR") on behalf of its Affiliates with its principal place of business at 5565 Glenridge Connector, Atlanta, Georgia 30342, and COMPANY NAME ("Company"), a ENTER STATE, SELECT TYPE with its principal place of business at: COMPANY ADDRESS enter into this Wireless Services Master Service Agreement ("Agreement"). In the event of a conflict between this Agreement and any other agreement or letter signed between the parties, this Agreement will prevail unless agreed to otherwise in writing by both parties. 1. EXHIBITS 1.1 If checked and initialed by the COMPANY, the following Exhibits are attached hereto and incorporated herein as if set forth in full: Company Exhibits Initials Included Exhibit B: Voice/Special Special Bid — Additional Terms and Conditions Relating to Service and Equipment and Service and Equipment Pricing Exhibit C: Data — Additional Terms and Conditions Exhibit D: Interactive Messaging Plus — Terms, Conditions and Pricing Exhibit E: Good Software and Equipment — Terms, Conditions and Pricing Exhibit F: RIM Software and Equipment — Terms, Conditions and Pricing Exhibit G: Neomar Software — Terms, Conditions and Pricing Exhibit H: Wireless Knowledge Exhibit I: Cingular Business Online Exhibit J: Consolidated Billing Services Exhibit K: Joint Marketing Efforts Exhibit L: Company Affiliates 2. DEFINITIONS 2.1 Affiliate. Shall mean an entity that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with CINGULAR or COMPANY. Control shall be defined as (i) fifty percent (50%) or more ownership or beneficial interest of income and capital of such entity; (ii) ownership of at least fifty percent (50%) of the voting power of voting equity; or, (iii) the ability to otherwise direct or share management policies of such entity by contract or otherwise. 2.2 Equipment. Shall refer to wireless mobile telephones, accessories, Handhelds, cradles, cables and any other equipment or accessories provided to COMPANY pursuant to this Agreement. Equipment does not include Software. CMSA 042403 Contract No. Z0 O3_ uak3 2.3 Service or Services. The provision of Commercial Mobile Radio Services ("CMRS"), the Handheld Features selected by COMPANY, if any, and any and all other services provided to COMPANY pursuant this Agreement. 2.4 Software. The software, in object code form, that is licensed to COMPANY pursuant to a separate software license agreement. 3. WIRELESS SERVICES 3.1 Services Provided. As requested by COMPANY, CINGULAR shall provide Service, Equipment and Software to COMPANY on the terms and conditions specified herein. Service is generally available to wireless Equipment that is equipped for the Service when within the range of radio base station sites located in the service area. 3.2 Wireless Service Agreements. In lieu of COMPANY requiring its COMPANY billed and guaranteed authorized end users ("Company Accounts") to execute individual wireless service agreements, COMPANY is executing this Agreement which sets forth the terms and conditions of the provision of CINGULAR's Service. End users of non -COMPANY billed and guaranteed lines ("Employee Accounts") will be required to sign an individual wireless service agreement ("WSA") for voice activations and customer service agreements ("CSA") for data activations. COMPANY shall have no liability for Employee Accounts. 3.3 No Resell of Services. COMPANY may not resell Service. Reselling means providing any re -offer of any part or all of the Services to any third party. 3.4 No Right to Wireless Telephone Number or User Name. CINGULAR will assign a wireless telephone number for wireless phones and a user name for Handhelds activated under this Agreement. Neither COMPANY nor its employees have property rights in the assigned wireless telephone numbers and user names and cannot acquire such rights through usage, publication or otherwise. CINGULAR may reassign or change such numbers and user names when, in its sole opinion, it is necessary in the conduct of its business. Unless pursuant to a specific CINGULAR rate plan, only one wireless telephone unit with a unique electronic serial number ("ESN") or one International Mobile Equipment Identifier ("IMEl") at any one time may use any one wireless telephone number. 3.5 Modifications to Service. Cingular reserves the right in its discretion and without notice to COMPANY, from time to time, to make changes in the Service, rules of operation, accessibility periods, subscription identification procedures, type and location of Equipment, allocation and quantity of resources utilized, programming languages, administrative and operational algorithms billing systems and methodology, packet size, character distribution within and among packets and designation of the control center serving an account at any particular address. If any of the foregoing changes substantially and materially affect the Services provided COMPANY, then COMPANY may terminate this Agreement without penalty. 4. RATES AND CHARGES 4.1 Taxes. The price of the Service does not include any taxes, fees, surcharges or assessments that currently are or may be imposed, directly or indirectly, by any governmental authority or agency with respect to the Service, including any roaming taxes on roaming calls. COMPANY shall pay such taxes, fees, surcharges or assessments directly or reimburse CINGULAR for any such taxes that CINGULAR may be required to collect or pay upon the invoicing of such taxes. Charges. Billing cycles may change from time to time. COMPANY is responsible for paying all charges for or resulting from services provided to Company Accounts under this Agreement. Depending on the Services provided, charges may include, without limitation, airtime, gateway events features, character or data usage, deposit(s), the price of any purchased or rented Equipment, Software license fees, shipping and handling, roamer, recurring monthly service, administrative, and late payment charges, network surcharges, optional feature charges, toll, collect call and directory assistance charges, applicable taxes and governmental fees, whether assessed directly upon COMPANY or upon CINGULAR, and any other fee, charges or costs that arise out of this Agreement. Monthly service and certain feature charges are billed one month in advance. Roamer charges may appear on a bill after the bill for the period in which the roaming occurs. If COMPANY's rate plan allows included minutes to be applied to roaming minutes, those minutes will be applied against included minutes in the month in which the roaming calls appear on COMPANY's bill. Airtime and other service charges apply to all calls, including involuntarily terminated calls and unsolicited internet based messages. 2 CMSA 042403 Contract No. 2 003- OLA3 4.3 hanges to Rates, Fees and Other Charges. The percentage discount off the CINGULAR published rates and any fixed rate or pooled plan rate, as set forth in the pricing Exhibits, shall be effective for the term of this Agreement. Subject to the foregoing, CINGULAR may increase, reduce or otherwise change any terms, conditions, rates, fees, expenses, features or charges regarding COMPANY'S service at any time upon thirty (30) days prior written notice. This includes, without limitation, prime or peak hour periods, rate plans and features, billing practices, and all other terms and conditions of Service. CINGULAR will provide COMPANY with notice of such changes (other than changes to governmental fees, proportional charges for governmental mandates, roamer rates or administrative charges) either in COMPANY's monthly bill or separately. COMPANY understands and agrees that State and Federal Universal Service fees and other such governmentally imposed assessments, fees, and surcharges, whether or not assessed directly upon COMPANY, may be increased based upon government or CINGULAR's calculations. Additionally, if rates are regulated by a state regulatory commission, CINGULAR's rates are subject to change in accordance with tariffs on file with the state regulatory 5. TERM 5.1 Initial Term. The term of this Agreement shall commence on the date set forth above and shall continue for a period of two (2) years (the "Initial Term"). Upon expiration of the Initial Term, the term shall be automatically extended on a month -to -month basis under the terms and conditions herein unless one party gives notice to the other of its intention to allow the Agreement to expire within thirty (30) days prior to the expiration of the Initial Term or any renewal period. Company Accounts activated under this Agreement may have service commitments ("Service Commitment") that extend past the term of this Agreement and, therefore, the terms and conditions of this Agreement shall control those accounts until the Service Commitment expires. 5. Service Commitment for Each Account. COMPANY has agreed to maintain service for a minimum term for each Company Account activated under this Agreement (the "Service Commitment"). The Service Commitment begins on the y Service is activated and expires two (2) years thereafter. In exchange for the Service Commitment, COMPANY has received certain benefits from CINGULAR. COMPANY understands that CINGULAR's damages arising out of a breach will be difficult, if not impossible, to determine. Therefore, if COMPANY terminates service (other than for a default by CINGULAR) or if CINGULAR terminates service for nonpayment or other default before the end of the Service Conine tment, COMPANY agrees to pay CINGULAR, as liquidated damages, and not as a penalty in addition to all other amounts owed, a termination fee in the amount of One Hundred Fifty and no/100 Dollars ($150.00) prorated monthly over the term of the Service Commitment (the "Termination Fee"). AFTER COMPLETION OF THE SERVICE COMMITMENT, SERVICE SHALL AUTOMATICALLY RENEW ON A MONTH -TO -MONTH BASIS UNTIL NOTICE IS GIVEN TO CINGULAR PURSUANT TO THE TERMINATION PROVISION BELOW. No Termination Fee will be charged for a termination of Service with a month -to -month Service Commitment, provided there is no proration of the fixed monthly charge if Service is terminated on other than the last day of COMPANY's billing cycle. 53 Termination by Company. COMPANY may terminate Service to an individual Company Account by notifying CINGULAR. If COMPANY terminates service before the completion of the Service Commitment, other than a month -to - month term, COMPANY shall pay the Termination Fee to CINGULAR for liquidated damages in the amount specified bove. 5.4 Termination by Cingular. CINGULAR may interrupt or terminate service to an individual Company Account without notice if CINGULAR has cause to believe that its Equipment is being used for a fraudulent purpose, or if Service is used in a way that may adversely affect CINGULAR's service or is used in violation of applicable governmental rules or regulations. Additionally, CINGULAR may terminate service to an individual Company Account if less than fifty percent (50%) of such Company Account's usage over three consecutive billing cycles is on Cingular-owned systems. 5.5 Event of Default. If either party commits or permits an Event of Default, then such non -defaulting party may, in addition to all other rights and remedies provided by this Agreement or by law, terminate this Agreement or any COMPANY Account. "Events of Default" shall include, but shall not be limited to: i) failure to perform a material term or condition of this Agreement unless such failure is corrected within thirty (30) days of notice from the non -defaulting party advising the defaulting party in reasonable detail of the failure, ii) a party's failure to pay any sums due and payable hereunder, or for non-payment for any other Services or Equipment furnished in connection with this Agreement or any other agreement between the parties, as and when required and such failure continuing for a period of ten (10) days after notice in reasonable detail from the non -defaulting party advising the defaulting party of the failure to pay, iii) a party's insolvency CMSA 042403 Contract No. ZC)o3 - � 3 or failure to pay debts as they come due, iv) a party becoming subject to any proceeding under the Bankruptcy Act or similar laws, provided that if such proceeding is involuntary, such party shall have ninety (90) days to have such proceeding dismissed before such proceeding becomes an Event of Default. Notwithstanding any termination of this Agreement, the defaulting parry shall be liable and shall immediately pay to the non -defaulting party all amounts due, or which would have become due under this Agreement. If this Agreement is terminated, termination will be made effective at the close date of COMPANY's normal billing cycle. 6. PAYMENT TERMS AND LATE CHARGE 6.1 COMPANY agrees to pay for all charges incurred and billed to Company Accounts. CINGULAR shall invoice COMPANY monthly for all Company Accounts and COMPANY agrees to pay such bills by the due date and at the address shown on the bill. Monthly access and features are billed in advance. Airtime and other charges are billed in arrears. 6.2 Disputed Charges. Disputed charges must be disputed to CINGULAR in writing within sixty (60) days after the date the charge appears on the invoice, or the right to dispute is waived. Notwithstanding COMPANY's dispute, COMPANY shall be required to pay such invoice in full. The parties shall use their best efforts to resolve all disputes within thirty (30) days of submission of the dispute to CINGULAR, and CINGULAR shall promptly refund any amount due upon dispute resolution. 6.3 Late Payment. CINGULAR may, at its option, assess a late fee of one percent (1%) per month on any payment not received within ten (10) days of the due date on the original invoice. The late payment charge is applied to the total unpaid amount carried forward to a subsequent bill. Acceptance of late or partial payments (even if marked "Paid In Full") and/or late payment fees shall not waive any of CINGULAR's rights to collect the full amount due under this Agreement. 6.4 Non-payment. COMPANY remains responsible for paying the monthly service fee if Service is suspended for nonpayment. CINGULAR may require payment by money order, cashier's check or a similarly secure form of payment at its discretion. CINGULAR will charge COMPANY (a) up to Twenty -Five Dollars ($25.00) or (b) if less, the highest amount allowed by law, for any check or other instrument tendered by COMPANY and returned unpaid by a financial institution for any reason. 6.5 Costs of Collection. COMPANY agrees to pay to CINGULAR all collection costs and expenses, including reasonable attorneys' fees and court costs, incurred by CINGULAR in exercising any of its rights and remedies when enforcing any provisions of this Agreement. 7. INFORMATION/CPNI AND COMMERCIAL MESSAGES 7.1 Release of Information. COMPANY hereby authorizes the disclosure of account information to or from other providers of wireless service solely for the provision of Service pursuant to this Agreement. 7.2 CPNI. Under federal law COMPANY has a right and CINGULAR has a duty to protect the confidentiality about the amount, type and destination of your Service usage (such information is referred to in applicable federal regulations as Customer Proprietary Network Information ("CPNI"). COMPANY hereby grants consent to share CPNI with CINGULAR, its affiliates and its contractors, to develop or bring to COMPANY's attention to any products or services. COMPANY's consent is valid until removed by COMPANY and survives the termination of this Agreement. COMPANY may withdraw or limit its consent at any time by notifying CINGULAR in writing at the addresses set forth in the Section entitled Notice herein. COMPANY's withdrawal or limitation of consent does not affect COMPANY's current Service, nor does it serve to modify or waive any other term of this Agreement. 7.3 Commercial Messages. COMPANY authorizes CINGULAR to send messages to COMPANY's Equipment using the Services and to COMPANY's email addresses providing information to COMPANY about the Services and new and upgraded services provided or to be provided by CINGULAR. 7.4 File Security. COMPANY acknowledges that it is possible for third parties to monitor data traffic. If COMPANY desires to secure its transmissions in connection with the Services, COMPANY will procure, at its own cost, encryption software CMSA 042403 Contract No. 2.06_�) - U)44 I or other transmission protection. COMPANY assumes full responsibility for the establishment of appropriate security measures to control access to COMPANY's information. 8. SERVICE INTERRUPTION. Service may be temporarily interrupted, delayed or otherwise limited for a variety of reasons, including but not limited to transmission limitations caused by atmospheric and other conditions, availability of radio frequency channels, system capacity limitations, coordination with other systems, Equipment modifications and repairs, problems associated with the facilities of interconnecting carriers and the negligence of CINGULAR. Gaps in Service occur within the service areas shown on coverage maps; therefore, CINGULAR does not guarantee COMPANY uninterrupted Service. INDEMNIFICATION 9.1 COMPANY. COMPANY shall defend, indemnify, and hold harmless CINGULAR its parents, successors, affiliates and agents from any claims, damages, losses, or expenses (including without limitation attorney fees and costs) incurred by CINGULAR in connection with all claims, suits, judgments, and causes of action (i) for infringement of patents or other proprietary rights arising from combining with or using any device (except Equipment), system or service in connection with CINGULAR facilities (ii) for libel, slander, defamation or infringement of copyright or other proprietary right with respect to material transmitted by COMPANY over the CINGULAR facilities, or (iii) for injury, death or property damage arising out of or in connection with the presence, use or unavailability of the Services (including, but not limited to, vehicular damage and personal injury). This obligation shall survive termination of COMPANY's service with CINGULAR. 9.2 CINGULAR. Except as set forth above, CINGULAR shall defend, indemnify, and hold harmless COMPANY its parents, successors, affiliates and agents from any claims, damages, losses, or expenses (including without limitation attorney fees and costs) incurred by COMPANY in connection with all claims, suits, judgments, and causes of action for infringement of patents or other proprietary rights arising from use of the Services. This obligation shall survive termination of COMPANY's service with CINGULAR. 10. LIMITED WARRANTY 10.1 Disclaimer of Warranties - Service. CINGULAR MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, NON -INFRINGEMENT OR PERFORMANCE WITH REGARD TO THE SERVICES PROVIDED HEREUNDER. 10.2 Disclaimer of Warranties — Equipment and Software. EQUIPMENT AND SOFTWARE COMES WITH A SEPARATE WARRANTY. EXCEPT AS MAY BE SET FORTH IN ANY EQUIPMENT OR SOFTWARE WARRANTY, CINGULAR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, SUITABILITY, NONINFRINGMENT, MISAPPROPRIATION OF TRADE SECRETS, OR PERFORMANCE WITH REGARD TO THE SOFTWARE OR EQUIPMENT. 11. LIMITATION OF LIABILITY 11.1 Services and Equipment. CINGULAR's sole liability, if any, for loss or damage arising out of mistakes, omissions, interruptions, errors or any other causes, including the negligence of CINGULAR, shall be limited to the credit for service interruption for each separate period of interruption as described in the Section on Service Interruption. However, in no event shall COMPANY be entitled to credits, if any, in excess of an amount equivalent to charges payable by COMPANY to CINGULAR for Services under this Agreement for the period such failure, delay or nonperformance occur. In no event shall CINGULAR be liable, and COMPANY hereby releases CINGULAR from liability for: (a) any act or omission of any provider of service or facilities other than CINGULAR; (b) mistakes, omissions, interruptions, errors, failures to transmit, delays or defects in the service provided by or through CINGULAR; (c) any damage or injury caused by, or allegedly resulting from, the presence or use of any wireless telephone or service provided by CINGULAR, including, but not limited to, the presence or use thereof in any vehicle or on any property; (d) claims made against COMPANY by third parties; (e) damage caused by any suspension or termination of service by CINGULAR; (f) damages caused by failures or delays in the provision of, or making calls to, 911 or any other emergency service, where such service is available; or, (g) any damage or injury arising from alleged negligence or willful misconduct of any third party, or including, without limitation, any CMSA 042403 Contract No. 2OO S- f.04%3 directory assistance or Internet service provider. COMPANY understands that, for an additional fee, speakerphone equipment is available from numerous sources. This service enables the use of the wireless telephone without holding the receiver, thereby allowing the use of both hands while operating a motor vehicle. Additionally, COMPANY understands that it is not to use the Handheld while operating motor vehicles, in emergency situations or where it is prudent to pay attention to the user's surroundings. 11.2 AS A MATERIAL PART OF THE CONSIDERATION PAID BY COMPANY FOR THE SERVICES, SOFTWARE AND EQUIPMENT PROVIDED BY CINGULAR, BOTH COMPANY AND CINGULAR AGREE THAT NEITHER CINGULAR AND ITS THIRD PARTY SERVICE PROVIDERS (INCLUDING BUT NOT LIMITED TO OPERATOR SERVICES AND LOSS PROTECTION PROVIDERS) OR COMPANY SHALL IN NO EVENT BE LIABLE FOR AND EACH PARTY HEREBY WAIVES ITS RIGHT TO CLAIM ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, BUSINESS OR REVENUES, LOSS OF THE USE OF EQUIPMENT, OR ANY ASSOCIATED PRODUCTS, LOSS OF DATA, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT SERVICES, DOWNTIME COSTS OR CLAIMS OF COMPANY OR COMPANY'S CUSTOMERS FOR SUCH DAMAGES) DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. THE FOREGOING DISCLAIMER SHALL APPLY IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, COMPANY'S INABILITY TO USE THE CINGULAR FACILITIES, THE SERVICES OR EQUIPMENT, OR ANY PART THEREOF, EITHER SEPARATELY OR IN COMBINATION WITH ANY OTHER COMMUNICATIONS FACILITIES OR IN CONNECTION WITH ANY SERVICES, PERFORMED OR NOT PERFORMED BY CINGULAR UNDER THIS AGREEMENT, OR A THIRD PARTY'S UNAUTHORIZED ACCESS TO COMPANY'S DATA TRANSMITTED OVER THE CINGULAR FACILITIES. 11.3 Query Services. COMPANY assumes responsibility for use of all data query functions (collectively, "Query Services") that may, from time to time, be offered by CINGULAR or third parties in connection with the Services. COMPANY acknowledges and agrees that CINGULAR is not a registered broker -dealer and does not endorse or recommend the services of any brokerage company. In the event COMPANY chooses to use Query Services to access information concerning any securities or investment instruments of any kind, COMPANY acknowledges and agree that such information is being requested by COMPANY for informational purposes only and is not intended for trading purposes. COMPANY further acknowledges that publicly accessible information concerning the trading of securities is subject to delay and that price quotations obtained by COMPANY from the Internet via any Query Services may not reflect the actual value of such securities. 11.4 Supplemental Services. COMPANY may from time to time subscribe to services provided by third parties, including but not limited to Operator Services, Loss Protection, messaging, email, email forwarding or other server software based services (collectively the "Supplemental Services"). CINGULAR IS ACTING EITHER AS BILLING AGENT ONLY, OR A PROVIDER OF NETWORK CONNECTIVITY TO THE SUPPLEMENTAL SERVICE. COMPANY ACKNOWLEDGES THAT ACCESS TO SUPPLEMENTAL SERVICES REQUIRES A CONTRACT FOR SUCH SERVICES DIRECTLY BETWEEN COMPANY AND THE THIRD PARTY SERVICE PROVIDER PROVIDING THE SUPPLEMENTAL SERVICE. COMPANY SHOULD DIRECTLY CONTACT THE THIRD PARTY SERVICE PROVIDER CONCERNING ALL ISSUES THAT ARISE OUT OF THE USE OF SUCH SUPPLEMENTAL SERVICES. 11.5 Disclaimer. QUERY SERVICES AND SUPPLEMENTAL SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. CINGULAR HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT WITH RESPECT TO QUERY SERVICES OR SUPPLEMENTAL SERVICES AND ANY INFORMATION RECEIVED BY COMPANY VIA THESE SERVICES, AND CINGULAR SHALL HAVE NO LIABILITY WHATSOEVER TO COMPANY OR ANY THIRD PARTY CLAIMING BY OR THROUGH COMPANY FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY THEREOF. 6 CMSA 042403 Contract No. 2co3- 204�3 12. MISCELLANEOUS PROVISIONS 12.1 FCC Matters. Each party shall be responsible for compliance with Federal Communication Commission rules and with the rules and regulations of any other federal, state or local regulatory agency. Neither CINGULAR nor any of its employees is an agent or representative of the other in Federal Communication Commission matters or otherwise. 12.2Advertising Restraints. COMPANY and CINGULAR agree that neither party without the other respective party's prior written consent will use the name, service marks or trademarks of the other party or any of its Affiliates, or reveal the existence of the Agreement or its terms and conditions, in any advertising, publicity release or sales presentation, except that either party may make any disclosure required by any governmental laws, regulations or court orders. 12.3Independent Purchases. Except as set forth herein, COMPANY is not obligated to purchase a service or Equipment from CINGULAR as a condition of purchasing any other service or product from CINGULAR at the prices or on the terms specified herein. 12ANo Third Party Beneficiary. No entity other than CINGULAR and COMPANY is or shall be entitled to bring any action to enforce any provision of this Agreement. The provisions of this Agreement are solely for the benefit of and shall be enforceable only by CINGULAR and COMPANY and their respective successors and assigns as permitted thereunder. 12.5Governing Law. The laws of the State of Georgia without regard to its choice of law principles shall govern this Agreement. 12.6Authority. The person signing below on behalf of COMPANY and CINGULAR is authorized to sign and bind COMPANY and CINGULAR to this Agreement. 12.7Assignment. This Agreement shall be binding upon the successors of either party hereto but shall not be assigned by either parry without the written consent of both parties, said consent not to be unreasonably withheld or delayed; provided, however, CINGULAR shall have the right to assign this Agreement to any present or future affiliates, subsidiary or parent corporation of CINGULAR, without securing the consent of COMPANY and may grant to any such assignee the same rights and privileges CINGULAR enjoys under this Agreement. 12.8Force Majeure. Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, strike, embargo, government requirement, civil or military authorities, acts of God or by the public enemy, acts of terrorism, acts or omissions of carriers or other causes beyond the reasonable control of such party. 12.9Notices. All communications and notices required by or relating to this Agreement shall be in writing and shall be delivered in one of the following manners: (1) by hand; (2) by overnight delivery service; or (3) by deposit in the mail, postage prepaid, addressed as follows: If Notice to Company: Company: [Type Company Name Here] Attention: [Type Customer Attention Here] Address: [Type Customer Address Here] City, State Zip [Type Customer Address Here] With a copy to: Company: [Type Customer Name Here] Attention: [Type Customer Attention Here] If Notice to Cingular Wireless LLC: Company: Cingular Wireless LLC Attention: Vice President -Business Sales Address: 5565 Glenridge Connector City, State Zip Atlanta, Georgia 30342-4756 With a copy to: Company: Cingular Wireless LLC Attention: General Counsel 7 CMSA 042403 Contract No. Address: [Type Customer Address Here] City, State Zip [Type Customer Address Here] Address: 5565 Glenridge Connector City, State Zip Atlanta, Georgia 30342-4756 12.10 Remedies Nonexclusive. Except where expressly provided, no remedy herein conferred upon either party is intended, nor shall it be construed to be exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. 12.11 Waivers of Default. Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default. 12.12 Survival. The terms and conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both parties hereunder shall so survive the completion of performance, cancellation or termination of this Agreement. 12.13 Severability. If a provision of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather (unless a failure of consideration would result there from) the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of CINGULAR and COMPANY shall be construed and enforced accordingly. 12.14 Entire Agreement. This Agreement, including the exhibits hereto, contain the entire agreement between CINGULAR and COMPANY with respect to the subject matter hereof and supersedes and cancels any prior understandings and agreements between CINGULAR and COMPANY with respect thereto. IN WITNESS WHEREOF the parties hereto have executed the agreement on the day and year first above written and hereby declare that they have read and do understand each and every term, condition and covenant contained in this Agreement. This Agreement shall not be binding until both parties have signed. CINGULAR WIRELESS LLC Enter Company Name (Signature) Printed Name: Title: Date: (Signature) Printed Name: Title: Date: CMSA 042403