2003-246ORDINANCE NO. ~a~
AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF WIRELESS
COMMUNICATION SERVICES AS AWARDED BY THE STATE OF TEXAS BUILDING AND
PROCUREMENT COMMISSION; PROVIDING FOR THE EXPENDITURE OF FUNDS
THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 3063 TO NEXTEL
COMMUNICATIONS IN THE ANNUAL ESTIMATED AMOUNT OF $99,600).
WHEREAS, pursuant to Resolution 92-019, the State Purchasing General Services
Commission has solicited, received and tabulated competitive bids for the purchase of necessary
materials, equipment, supplies or services in accordance with the procedures of state law on behalf of
the City of Denton; and
WHEREAS, the City Manager or a designated employee has reviewed and recommended that
the herein described materials, equipment, supplies or services can be purchased by the City through
the General Services Commission programs at less cost than the City would expend if bidding these
items individually, and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the numbered items in the following numbered file for materials,
equipment, supplies, or services, shown in the "Purchase Orders" listed hereon, and on file in the
office of the Purchasing Agent, are hereby approved:
FILE
NUMBER VENDOR PRICE
3063 Nextel Communications $99,600
SECTION 2. That by the acceptance and approval of the above numbered items set forth in
the attached purchase orders, the City accepts the offer of the persons submitting the bids to the
General Services Commission for such items and agrees to purchase the materials, equipment,
supplies or services in accordance with the terms, conditions, specifications, standards, quantities
and for the specified sums contained in the bid documents and related documents filed with the
General Services Commission, and the purchase orders issued by the City.
SECTION 3. That should the City and persons submitting approved and accepted items set
forth in the attached purchase orders wish to enter into a formal written agreement as a result of the
City's ratification of bids awarded by the General Services Commission, the City Manager or his
designated representative is hereby authorized to execute the written contract which shall be attached
hereto; provided that the written contract is in accordance with the terms, conditions, specifications
and standards contained in the Proposal submitted to the General Services Commission, quantities
and specified sums contained in the City s purchase orders, and related documents herein approved
and accepted.
SECTION 4. That by the acceptance and approval of the above numbered items set forth in
the attached purchase orders, the City Council hereby authorizes the expenditure of funds therefor in
the amount and in accordance with the approved purchase orders or pursuant to a written contract
made pursuant thereto as authorized herein.
SECTION 5. That this ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this day of 2003.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
AP OVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY:
3-ORD-File 3063
DIR-VPC-03-025
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
VOLUME PRICING CONTRACT
NEXTEL OF TEXAS, INC.
This VOLUME PRICING CONTRACT for the acquisition of Nextel products and related services is
entered into between the State of Texas, acting by and through the Department of Information Resources
with its principal place of business at 300 West 15m Street, Suite 1300, Austin, Texas 78701, and Nextel
of Texas, Inc., d/b/a Nextel Communications, on behalf of itself and its affiliates ("Nextel" or "Vendor")
with its principal place of business at 111 Congress Avenue, Franklin Plaza, 7m Floor, Austin, TX 78701.
1. Contract Scope and Term
This Contract sets forth the terms and conditions governing the acquisition of Nextel products and
related services. The products and services available under this Contract are as set forth in
Appendix C and Appendix D to the Contract. Terms used in this document shall have the
meanings set forth below in Section 2, Definitions. This Contract is available for use by all
Customers.
The term of this Contract shall be two (2) years commencing on the last date of approval by the
parties. Prior to expiration of the original term, the parties may renew this Contract, for up to two
(2) optional one-year terms, upon mutual written agreement of the parties. Upon termination of
this Contract, all rights and obligations set forth herein shall survive in accordance with their
terms as to procurements made by Customers prior to such termination.
2. Definitions
Terms used in this Contract shall have the following meanings:
A. DIR - the Department of Information Resources.
B. Customer - any Texas state agency and local government as defined in Section 2054.003,
Texas Government Code (including institutions of higher education as defined in Texas
Education Code, Section 61.003), and those state agencies purchasing from a DIR contract
through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code.
C. Manufacturer - all equipment manufacturers referenced within Appendix C to the Contract.
D. Product - any and all product items referenced in Appendix C to the Contract. E. Services - any value-added service that the Vendor may perform as related to products
available under this Contract and referenced in Appendix C and Appendix D.
F. State Contract Administrator - the individual as appointed by DIR to administer this
Contract on behalf of the State of Texas and the Customers.
G. Vendor Contract Administrator - the individual as appointed by the Vendor to administer
this Contract on behalf of the Vendor.
H. DIR. Administrative Fee - the fee used to defray DIR's cost of negotiating, executing and
administering this Contract.
L Purchase Order - the Customer's fiscal form or format, which is used when making a
purchase (e.g., formal written Purchase Order, Procurement Card, Electronic Purchase Order,
or other authorized instrument).
J. Information Resources Technology (Technologies) - as defined in Texas Government
Code §2054.003.
DIR-VPC-03-025
K Day - shall mean business days, Monday through Friday, except for State and Federal
holidays. If the Contract calls for performance on a day that is not a business day, then
performance is intended to occur on the next business day.
L. State - refers to the State of Texas.
M. Go DIRect Coordinator - refers to the individual appointed by DIR to administer and
collect the Contract reporting data on behalf of the State and the authorized Customers.
N. Vendor - shall mean Nextel.
0. Nextel Partners, Inc. (Partners) - refers to an affiliate of Nextel providing digital wireless
communications services under the Nextel brand name in certain geographic areas of Texas.
3. Entire Agreement and Order of Precedence
This Contract; Appendix A, Standard Clauses for Texas DIR Contracts; Appendix B, HUB Sub-
contracting Plan; Appendix C, Product and Services; Appendix D, Additional Services; Nextel's
response to the ITN-TMP-03-013; and the ITN constitute the entire agreement between the
parties hereto. In the event of a conflict between the documents listed in this paragraph, the
controlling document shall be this Contract, Appendix A, Appendix B, Appendix C, Appendix D,
Vendor's Response to the ITN and the ITN. No statement, promise, condition, understanding,
inducement or representation, oral or written, expressed or implied, which is not contained herein
shall be binding or valid. This Contract shall not be changed, modified or altered in any manner
except by an instrument in writing executed by both parties hereto, with the approval of DIR.
The teams and conditions set forth herein shall govern all transactions by Customers under this
Contract. Customers shall not have the authority to modify the terms of this Contract, except as to
receive better terms or pricing for a particular procurement than those set forth herein. In such
event, Vendor shall famish a copy of such better offerings to DIP, upon request. No additional
term or condition of a purchase order issued by a Customer can weaken a term or condition of
this Contract. In the event of a conflict between a Customer's purchase order and this Contract,
the Contract term shall control.
Partners provide Vendor Services in some geographic areas within the State. The Parties
acknowledge and agree that Partners shall assume all of Vendor's obligations under this
Agreement in addition to any obligations set forth in a Customer's Purchase Order where
Customer executes a Purchase Order within Partner; territories.
4. Product and Service Offerings
Products available under this Contract include any hrfomration Resource Technology item as set
forth in Appendix C. Services include the services Vendor offers as set forth in Appendix C and
Appendix D.
A. Products
Vendor will maintain a product list including pricing, product descriptions, and product
specifications for all products offered under this Contract. The product list may be updated at
any time during the term of this Contract to incorporate product model changes or product
upgrades, addition of new products, and removal of obsolete or discontinued products that are
within the scope of this Contract.
B. Services
Available services are set forth in Appendix C and Appendix D. Vendor will maintain a list
including pricing and descriptions for all services offered within the scope of this Contract.
The services list may be updated at any time during the term of this Contract to incorporate
changes to the service offering so long as such changes are within the scope of the Contract.
2
DIR-VPC-03-025
C. Data Services.
This Contract does not provide for data services, other than the limited services listed within
Appendix D to this Contract.
5. Contract Administration
DD2 and the Vendor will each provide a Contract administrator to support this Contract.
Information regarding the Contract administrators will be posted on the Internet web site
designated for this Contract.
A. State Contract Administrator
DIR shall provide a Contract administrator whose duties shall include but not be limited to: i)
supporting the marketing and management of this Contract, ii) advising DIR of Vendor's and
Partners performance under the terms and conditions of this Contract, and iii) periodic
verification of product and services pricing and monthly reports submitted by Vendor.
B. Vendor Contract Administrator
Vendor shall provide a dedicated Contract administrator whose duties shall include but not be
limited to: i) supporting the marketing and management of this Contract, ii) facilitating
dispute resolution between Vendor and a Customer or Partners and a Customer, and iii)
advising DIR of its performance and performance by Partners under the terms and conditions
of this Contract. DIR reserves the right to require a change in Vendor's then-current contract
administrator if the assigned administrator is not, in the opinion of DIR, adequately serving
the needs of the State.
6. Pricing
The price to the Customer under this Contract will be established by the Vendor and shall be the
lowest price offered by Vendor to any Texas governmental entity for the same Product or
Services. Any violation of this provision may result in this Contract being terminated.
A. Customer Discount
Based on a quantity of one (1), the Customer discount from the Vendor for products and
services will be as set forth in Appendix C. Customer may negotiate more advantageous
pricing for large volume purchases with Vendor.
B. DIR Administrative fee
The DIR administrative fee specified in Section 10, Reporting and Administrative Fees, shall
be included in the Customer Discount set forth herein. The administrative fee shall not be
broken out as a separate line item when pricing or invoice is provided to Customer.
C. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling fees.
Shipments will be F.O.B. Customers destination. No additional fees shall be charged to the
Customer for standard shipping and handling. If the Customer requests expedited delivery,
Customer will be responsible for any charges for expedited delivery.
D. Discounts, Taxes and Telecommunications Fees
1) The discount rates set forth in this Agreement are intended as minimums for the term of
the Agreement and may not be changed to be less except by Amendment to the
DIR-VPC-03-025
Agreement; provided however, that nothing herein prevents Vendor from offering a
higher discount to a Customer because of a large order.
2) The only applicable FCC authorized fees, surcharges and assessments in effect as of the
date of this Agreement are the Federal Universal Service Fund charge, and the Telephone
Relay Service charge. These fees may appear on billings to Customers. No other FCC or
PUC authorized fee, surcharge or assessment may be imposed during the term of this
Agreement, without the prior amendment to authorize such imposition under the
Agreement. Vendor acknowledges that certain Customers, that are political subdivisions,
are exempt from the imposition and collection of certain Texas telecommunications fees,
including the Texas Universal Service Fund Charge and Texas Infrastructure Fund
assessment. In addition, state agency-Customers have additional exemptions from Texas
fees, including the 911 emergency service fee, 911 equalization surcharge, poison control
surcharge, and late charges imposed under Section 55.010, Utilities Code. Vendor agrees
to not bill for any items for which a Customer has an exemption and to promptly correct
any incorrect billings that occur.
3) During the term of this Agreement, if any new tax, fee, surcharge or assessment
("Payment") is imposed on charges for Vendor's Services, such Payment shall require an
Amendment in order to be effective against the State of Texas and Customers, unless
Payment is required by law. If a Payment is required by law, Nextel will impose such
Payment on the State without execution of an Amendment. However, the State shall
have the right to cancel the Contract pursuant to Appendix A, Section 25 of this
Agreement. .
4) Vendor acknowledges that Customers are exempt from state sales, use and excise taxes,
Section 151.309, Texas Tax Code, and Federal Excise Tax, 26 USC Sections 4253 (i) and
6). Vendor further acknowledges that State agency- Customers are exempt from the
assessment and collection of sales taxes imposed by political subdivisions. See Sections
321.208 (municipalities) and 323.207 (counties), Texas Tax Code. Customers shall issue
a tax exemption certificate with each Purchase Order.
E. Changes to Prices
Vendor may change the price of any product or services at any time, based upon changes to
the Vendor's National Promotion Price for products (handsets and accessories) or service
plans, but discount levels shall remain consistent with the discount levels specified in
Appendix C. Price decreases shall take effect automatically during this Contract tens and
Vendor shall pass all price decreases on to the Customer.
Within the scope of the products and services authorized to be purchased through this
Contract, Vendor may make product model changes and add new products or service plans at
any time and the pricing for the same shall incorporate comparable price discount levels as
specified in Appendix C.
7. Order Processing and Payments
All Customer purchase orders will be placed directly with the Vendor or Partners and should
reference the DIR Contract number. Accurate purchase orders shall be effective and binding upon
Vendor or Partner when accepted by Vendor or Partners prior to the termination of this Contract
period.
4
DIR-VPC-03-025
Invoices shall be submitted by the Vendor or Partner directly to the Customer and shall be issued
by the Vendor in compliance with Chapter 2251, Texas Government Code. All payments for
products and/or services purchased under this Contract and any provision of acceptance of such
products and/or services shall be made to the Vendor by the Customer.
Invoices must be timely and accurate. Each invoice must match Customer's order and include any
written changes that may apply, as it relates to products, prices and quantities. Invoices must
include the Customer's purchase order number or other pertinent information for verification of
receipt of the order by the Customer.
Customer(s) shall comply with Chapter 2251, Texas Government Code, in making payments to
Vendor or Partner. Payment under this Contract shall not foreclose the right to recover wrongful
payments.
8. Customer's Use of Service.
Customers purchasing Services under this Contract are subject to compliance with the terms and
conditions herein regarding the use of Service. Compliance with the use of Service terms and
conditions is the responsibility of the Customer. DIR shall not be responsible for any Customer's
compliance with the Services. If DIR purchases Services for its own use under this Contract, it shall
be responsible for its compliance with the service terms and conditions.
A. Use of Service.
(1) Customer will not use the Service for any unlawful purpose. Customer will not use the
Service in aircraft or motor vehicles in violation of any applicable laws, regulations or local
ordinances. Customer agrees to indemnify, defend, and hold Nextel harmless from any Customer
violations of any statutes, ordinances, laws, rules or regulations of any local, state, or federal
public authority.
(2) If applicable, Nextel Wireless Web Services, consisting of certain applications such as email,
data, information and other wireless Internet services (the "Applications") are part of the Services
that can be obtained through Nextel. Certain Applications offered by Nextel or authorized third
parties may be compatible with the equipment and/or the Service offered by Nextel. Customer
shall acknowledge and agree that there is no guarantee or assurance that the Applications are
compatible, or will continue to be compatible, with Nextel's System or any of its Equipment or
Service offerings. Such compatibility or approval from Nextel of compatibility shall not be
construed as an endorsement of a particular Application or a commitment on the part of Nextel
that Application(s) will continue to be compatible with the System, Equipment or Service for any
period of time. Nextel reserves the right, in its sole discretion, to disable or discontinue any
Application for any reason. Use of Nextel Wireless Web Services requires a wireless Internet
compatible phone, and is subject to any storage, memory or other equipment limitation. Only
certain Internet sites may be accessed, and certain Nextel Wireless Web Services may not be
available in all Nextel Service areas.
(3) Customer shall acknowledge and agree that in most cases, the developer of an Application is
responsible for providing Customer with care and Application support. In the event Customer
contacts Nextel for care with a problem concerning the use of an Application, Customer may be
referred to the Application developer's and Nextel shall have no obligation to support such
Application.
DIR-VPC-03-025
(4) If applicable, Nextel is not a publisher of third party content that Customer may from time to
time access through Nextel Wireless Web Services; therefore Nextel is not responsible for the
content provided by such third parties, including but not limited to statements, opinions, graphics,
photos, music, services and other information C' Content'), and accessed by Customer through
Nextel Wireless Web Services. Nextel gives no guarantee or assurance as to the currency,
accuracy, completeness or utility of Content obtained through Nextel Wireless Web Services.
Nextel, Content providers and others have proprietary interests in certain Content. Customer shall
not, nor permit others to, reproduce, broadcast, distribute, sell, publish, commercially exploit or
otherwise disseminate such Content in any manner without the prior written consent of Nextel,
Content providers, or others with proprietary interests in such Content, as applicable.
(5) Nextel reserves the right to interrupt Services if Customer's account (i) appears to have
excessive charges; or (ii) shows any unusual calling patterns. Nextel will attempt to contact
Customer before any such interruption. Such interruption may be done to protect Customer or
Nextel as Nextel determines in its sole discretion. Nextel will make commercially reasonable
efforts to give Customer notice prior to any interruptions of services under this section.
(6) Local dispatch (Direct Connect), cellular calling, Nextel Wireless Web Services and
respective coverage areas for these Services are subject to change at any time at the sole
discretion of Nextel.
(7) Nextel is not responsible for the installation, operation, quality of transmission, or, except as
may be specified elsewhere in this Contract, maintenance of the Equipment. Nextel reserves the
right to change or remove assigned codes and/or numbers when such change is reasonably
necessary in the conduct of its business. Customer does not have any proprietary interest in such
codes or numbers. Federal and state laws make it illegal for third patties to listen in on service;
however, complete privacy cannot be guaranteed.
B. Notice Reeardin¢ Use Of Service For 911 Or Other Emergency Calls
(1) The Service provided hereunder does not interact with 911 and other emergency services in
the same manner as landline telephone service. Depending on the caller's location and the
circumstances of a particular call, the Service provided hereunder may not be able to identify
Customer's telephone number or location to emergency services, and Customer may not always
be connected to the appropriate emergency services provider. Nextel is actively deploying
Enhanced 911 ("E911") service to help public safety authorities locate Nextel subscribers who
make 911 calls. However, wireless E911 is not available in all areas, and even in those areas
where it is implemented, inherent limitations in this advanced wireless technology prevent it from
being 100% reliable. Accordingly, Nextel agrees to provide Customer with E911 service, where
available, and Customer acknowledges that such service is not yet completely available or
reliable.
(2) Nextel may disclose Customer information (e.g., Customer name, address, telephone number,
and location) to governmental and quasi-governmental institutions (e.g., emergency service
providers and law enforcement agencies), where Nextel deems it necessary to respond to an
exigent circumstance.
9. Internet Access to Contract and Pricing Information
Access by Customers to Contract temu; and pricing information shall be made available and
posted on the Internet. To that end, upon sixty (60) days from execution of the Contract, Vendor
DIR-VPC-03-025
will be required to host the complete Contract product and service offerings, including pricing, at
Vendor's Internet site. Internet access to this information will be provided including all
subsequent changes to the product and services offerings and pricing during the term of this
Contract at no cost to DIR, the State, and Customers.
A. Accurate and Timely Contract Information
Vendor warrants and represents that Contract and related information will be accurately and
completely posted, maintained and displayed in an objective and timely manner which renders it
clearly distinguishable from other, non-Contract offerings at Vendor's web site. Nextel will use
commercially reasonable efforts to post, maintain and display the Contract and related
information. However, certain services will be provided by means of Internet communications
that are beyond Nextel's control and as such, Nextel does not warrant, except to the extent
expressly within Nextel's control (a) that the services will be uninterrupted or error free, (b) as to
the results that may be obtained from the use of the services and (c) as to the timeliness,
sequence, accuracy, completeness, reliability or content of any information, service, or
transaction-provided through the services or with respect to any software used to access the site
and services. Further, to the extent allowed by Texas law and constitution, the State and
Customer agree to hold harmless Nextel from all claims or losses of any kind arising out of or
relating to automated transactions.
B. Price Data Retention and Compliance Checks
Periodic Compliance Checks of the information posted for this Contract on Vendor's web site
will be conducted by DIR. Upon request by DIR, Vendor shall provide verifiable
documentation that pricing listed upon this site is uniform with the Customer Discount as
stated in Appendix C and in Appendix D.
C. Web Site Changes
Vendor hereby consents to a link from the DIR web site to Vendor's web site in order to
facilitate access to Contract information. The establishment of the link is provided solely for
convenience in carrying out the business operations of the State. DIR reserves the right to
terminate or remove a link at any time, in its sole discretion, without advance notice, or to
deny a future request for a link DIR will provide Vendor with subsequent notice of link
termination or removal. Vendor shall provide DIR with timely written notice of any change in
URL or other information needed to access the site and/or maintain the link.
D. Use of Access Data Prohibited
If Vendor stores, collects or maintains data electronically as a condition of accessing State
Contract information, such data shall only be used internally by Vendor for the purpose of
implementing or marketing the State Contract, and shall not be disseminated to third parties
or used for other marketing purposes. This Contract constitutes a public document under the
laws of the State and Vendor shall not restrict access to the Contract terms and conditions
including pricing, i.e., through use of restrictive technology or passwords.
E. Responsibility for Content
Vendor is solely responsible for administration, content, intellectual property rights, and all
materials at Vendor's web site. Vendor is solely responsible for its actions and those of its
agents, employees, or subcontractors, and agrees that neither Vendor nor any of the foregoing
has any authority to act or speak on behalf of DIR or the State. DIR also reserves the right to
require a change of listed content if, in the opinion of DIR, it does not adequately represent
this Contract.
DIR-VPC-03-025
10. Reporting and Administrative Fees
Vendor shall be responsible for reporting all products and services purchased under this
Contract. The failure to file the monthly reports, subcontract reports, and pay the administrative
fees on a timely basis will constitute grounds for suspension or termination of the Contract for
cause. If Vendor submits three (3) consecutive monthly reports incorrectly, DIR reserves the
right to suspend or terminate this Contract for cause. Vendor's liability for any breach of this
section is limited to the amount of administrative fees owed to DIR by Vendor. DIR
acknowledges that DIR must provide written/electronic notification following each incorrectly
submitted report in order to be permitted to suspend or terminate this Contract for cause.
DIR shall have the right to verify required reports and to take any actions necessary to enforce its
rights under this section, including but not limited to, compliance checks of Vendor's applicable
Contract books. Any third parties acting on behalf or at the direction of DIP to review such
Contract books shall be subject to the prior approval by Nextel and may be required to execute
Nextel's standard Non-Disclosure agreement prior to examining, inspecting, copying or auditing
Nextel's records.
A. Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format required
by DIR showing the dollar volume of any and all sales under this Contract for the previous
month period. Reports shall be submitted to the DIR Go DIRect Coordinator. Reports are
due on the fifteenth (15'h)) day after the close of the previous month period. The monthly
report shall include each Customer name, order date, ship date, description, part numbers,
manufacturer, quantity, unit price, extended price, Customer purchase order number, contact
name, Customer's complete billing address, and other information as required by DIR. Each
line item sale must contain all information listed above or the report will be rejected and
returned to the Vendor for correction.
B. Historically Underutilized Business Subcontract Reports
Vendor shall electronically provide each Customer with their relevant Historically
Underutilized Business Subcontracting Report, pursuant to this Contract, as required by
Chapter 2161, Texas Government Code. Reports shall also be submitted to DIR.
Reports shall be due quarterly in compliance with the following schedule, or as requested by
each ordering Customer:
September - November: due by December 5 h
December - February: due by March 5 h
March - May: due June 5 h
June - August: due September 5th
C. DIR Administrative Fee
An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of negotiating,
executing, and administering this Contract. All prices quoted to Customers shall include the
administrative fee. DIR reserves the right to change this fee upwards or downwards during
the term of this Contract, upon written notice to Vendor. Any change in the administrative fee
shall be incorporated in the price to the Customer.
Vendor will pay DIR, on the fifteenth (15'h) day after the close of the previous month period,
a two percent (2%) DIR administrative fee based on the dollar value of all monthly access
DIR-VPC-03-025
charges to Customers pursuant to this Contract. Payment will be calculated for all sales, net
of returns and credits. For example, the administrative fee for monthly access charges totaling
$100,000 shall be $2,000.
11. Notices
All notices, demands, designations, certificates, requests, offers, consents, approvals and other
instruments given pursuant to this Contract shall be in writing and shall be validly given on i) the
date of delivery if delivered by email, facsimile transmission, mailed by registered or certified
mail, or hand delivered, or (ii) three business days after being mailed via United States Postal
Service. The parties may from time to time, specify any address in the United States as its address
for purpose of notices under this Contract by giving fifteen (15) days written notice to the other
party-
If sent to the State:
Patrick W. Hogan
Department of Information Resources
300 W. 15m St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-4700
Fax: (512) 475-4759
Email: patrickhogan(a).dinstate.tx.us
If sent to the Vendor:
Vice President and Assistant General Counsel
Public Sector,
Attn: Frank Ciavarella
Nextel Communications, Inc.
2001 Edmund Halley Drive, Sm Floor
Reston, VA 20191
Phone: (703) 433 -4000
Fax: (703) 433 -4037
Email: frank.ciavarella@nextel.com
12. Captions
The captions contained in this Contract are intended for convenience and reference purposes only
and shall in no way be deemed to define or limit any provision thereof.
13. Choice of Law
The law of the State of Texas shall govern the construction and interpretation of this Contract.
Nothing herein shall be construed to waive the state's sovereign immunity.
(Balance of this page intentionally left blank)
DIR-VPC-03-025
IN WITNESS WHEREOF, the parties therefore hereby execute their mutual agreement to the terms of
this Contract. This agreement shall be executed and shall be a binding Contract between the parties.
Nextel of Texas, Inc.
Authorized, By:
Name: A IL&n l~e-r
Title: / J'- 1 r&,1 4 Tc[p~e~lll~ D✓
Date: 11.301 'R ooz
The State of Texas, acting by and through the
Department of Information aationn Resources ^
Authorized ~C
Nam
e: Patrick W. Hoean
Title: Director of Business Operations
Date:
Legal:
10
APPENDIX A
STANDARD CLAUSES
STATE OF TEXAS, DIR CONTRACTS
Appendix A
TABLE OF CONTENTS
GENERAL
1. Indemnification Clause
2. Non-Assignment Clause
3. No Quantity Guarantees
4. Confidentiality Clause
5. Vendor Certifications
6. Equal Opportunity Compliance
7. Technology Access Clause
8. Commodity Software
9. Records
10. Ability to Conduct Business in Texas
11. Quotation, Warranty, and Return Policies
12. Invalid Term or Condition
13: Enforcement of Contract and Dispute Resolution
14. Entireties
15. Modiflcation of Contract Terms and/or Amendments
16. DIR Logo
17. Vendor Logo
18. Leasing Provision
19. Site Preparation
20. Training and Trade Show Participation
21. Orientation Meeting
22. Use of Subcontractors
23. Force Majeure
24. Termination for Non-Appropriation
25. Termination for Convenience
26. Termination for Cause
27. Customer Rights Under Termination
28. Vendor Rights Under Termination
29. Survival
30. Handling of Written Complaints
STANDARD CLAUSES FOR TEXAS DIR
CONTRACTS
The parties to the attached Contract, amendment or other
agreement of any kind (hereinafter, "this Contract") agree
to be bound by the following clauses which are hereby
made a part of this Contract.
1. INDEMNIFICATION CLAUSE. (a) Nextel does not
assume and shall have no liability under the Agreement for
(i) failure to deliver the Equipment within a specified time
period; (ii) unavailability or delays in delivery of the
Equipment; (iii) damage caused to the Equipment due
directly or indirectly to causes beyond the control of
Nextel, including, but not limited to acts of God, acts of the
public enemy, acts of the government, acts or failure to net
of Customer, its agents, employees or subcontractors, fires,
floods, epidemics, quarantine restrictions, corrosive
substances in the air or other hazardous environmental
conditions, strikes, freight embargoes, inability to obtain
materials or services, commotion, war, unusually severe
weather conditions or default of Nextel's subcontractors
due to any such causes; or (iv) the use of Nextel Online
Services, including but not limited to the accuracy or utility
of any information acquired from the Internet through
Nextel Online Services; or Internet Services, Content or
Applications whether or not supported by Nextel.
WITHOUT LIMITING THE FOREGOING, THE
VENDOR'S SOLE LIABILITY FOR SERVICE
DISRUPTION, WHETHER CAUSED BY THE
NEGLIGENCE OF THE VENDOR OR OTHERWISE, IS
LIMITED TO A CREDIT ALLOWANCE NOT
EXCEEDING AN AMOUNT EQUAL TO THE
PROPORTIONATE CHARGE TO CUSTOMER FOR
THE PERIOD OF SERVICE DISRUPTION. EXCEPT
AS OTHERWISE SET FORTH IN THE PRECEDING
SENTENCE, IN NO EVENT IS VENDOR LIABLE FOR
ACTUAL, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE, SPECIAL OR OTHER INDIRECT
DAMAGES CAUSED BY ITS NEGLIGENCE OR
OTHERWISE, NOR FOR ECONOMIC LOSS,
PERSONAL INJURIES OR PROPERTY DAMAGES
SUSTAINED BY CUSTOMER OR ANY THIRD
PARTIES ARISING FROM OR RELATING TO
SERVICE DISRUPTION.
(b) Nextel will defend, indemnify and hold harmless
Customer, and its officers, directors and employees (the
"Indemnified Party(ies)") against all reasonable attorney's
fees, costs and expenses of the Indettmified Party and all
liability of the Indemnified Party to third parties arising
from or in connection with any death, bodily injury or
damage to tangible personal or real property caused or
incurred by the physical acts of Nextel's employees or
agents while upon the premises of or controlled by
Customer, except where the death, bodily injury or damage
to tangible personal or real property is directly attributable
to the acts, omissions, or interruptions addressed in
Subsection a above.
(c) Nextel, at its own expense, will indemnify, defend and
hold hamdess the Customer, its employees, representatives,
agents and Affiliates against the full amount of any claim,
suit, action or proceeding, including, without limitation,
reasonable attorney's fees and expenses, reasonable out of
pocket expenses and court costs, that the Customer may
incur as a result of a claim brought by a third party related
to or arising out of any claim that Services infringe in any
manner any copyright, patent, maskwork right, trade secret,
trademark or trade dress right. Nextel may at its option,
conduct the defense in any such third party action arising as
described herein and the Customer agrees to reasonably
cooperate with such defense; provided, however, that
Nextel will keep the Customer informed of and consult
with the Customer in connection with the progress of such
litigation or settlement. Notwithstanding the foregoing, the
Customer may, at its own expense, assist in such defense if
it so chooses, provided that Nextel will have the sole
control over such defense and all negotiations relative to
the settlement of any such claim Nextel may, at its sole
option and expense: (a) procure for the Customer the right
to use the infringing Service as provided herein; (b) replace
the infringing Service with non-infringing, functionally
equivalent Services; or (c) modify the infringing Service so
that it is not infringing. If options (a), (b) or (c) are not
available to Nextel through the use of commercially
reasonable, diligent efforts, Customer will discontinue use
of the Services upon Nextel's request, and Nextel will
cease to provide the infringing Service. If requested by the
Customer good faith, the parties will negotiate to reach a
written agreement on what, if any, monetary damages are
reasonably owed by Nextel to the Customer as a result of
the Customer no longer having use of the Services,
including but not limited to any billing credit then owed to
the Customer. THE FOREGOING PROVISIONS OF THIS
SECTION STATE THE ENTIRE LIABILITY AND
OBLIGATION OF VENDOR AND ANY OF ITS
LICENSORS, AND THE EXCLUSIVE REMEDY OF
THE CUSTOMER, WITH RESPECT TO ANY ACTUAL
OR ALLEGED INFRINGEMENT OF ANY PATENT,
COPYRIGHT, TRADE SECRET, TRADEMARK OR
OTHER INTELLECTUAL PROPERTY RIGHT BY THE
SERVICES OR ANY PART THEREOF.
2. NON-ASSIGNMENT CLAUSE. This Contract shall
be entered into and be binding upon the successors of the
parties. Neither Party may assign this Contract or any rights
hereunder without the prior written consent of the other
Party, which consent shall not be unreasonably withheld,
except that Nextel may assign this Contract to any parent,
subsidiary or affiliate of Nextel upon written notification to
DIR.
3. NO QUANTITY GUARANTEES. This Contract is
not exclusive to the named Vendor. Customers may obtain
Information Resources Technologies from other sources
during the Contract term DIR makes no express or
implied warranties whatsoever that any particular number
of Purchase Orders will be issued or that any particular
quantity or dollar amount of Information Resources
Technologies will be procured through the Contract.
4. CONFIDENTIALITY CLAUSE. Vendor
acknowledges that DUL is a government agency subject to
the Texas Public Information Act. Vendor also
acknowledges that DIR will comply with the Public
Information Act, and with all opinions of the Texas
Attorney General's office concerning this Act.
Under the terms of this Contract, DIR may provide Vendor
with information related to Customers. Vendor shall not
re-sell or otherwise distribute or release to any party in any
manner, Customer information, except as permitted in
Section (8) (B) (2) in the attached Contract.
5. VENDOR CERTIFICATIONS.
Vendor certifies (i) it has not given, offered to give, and
does not intend to give at any time hereafter any economic
opportunity, future employment, gift, loan, gratuity, special
discount, trip, favor, or service to a public servant in
connection with this Contract; (ii) it is not currently
delinquent in the payment of any franchise tax owed the
State of Texas and is not ineligible to receive payment
under §231.006 of the Texas Family Code and
acknowledges this Contract may be terminated and
payment withheld if this certification is inaccurate; (iii)
neither it, nor anyone acting for it, has violated the antitrust
laws of the United States or the State of Texas, nor
communicated directly or indirectly to any competitor or
any other person engaged in such line of business for the
purpose of obtaining an unfair price advantage; (iv) it has
not received payment from DIE or any of its employees for
participating in the preparation of this Contract; (v) it is
not ineligible to receive this Contract under § 2155.004,
Texas Government Code; (vi) it is in compliance with
§618.003, Texas Government Code; (vii) it will comply
with §2155.444 and §2155.4441, Texas Government Code,
in fulfilling the terms of this Contract; and (viii) to the best
of the Vendor's knowledge and belief, there are no suits or
proceedings pending or threatened against or affecting the
Vendor, which if determined adversely to the Vendor will
have a material adverse effect on the ability of the Vendor
to fulfill its obligations under this Contract
6. EQUAL OPPORTUNITY COMPLIANCE.
Vendor agrees to abide by all applicable laws, regulations,
and executive orders pertaining to equal employment
opportunity, including federal laws and the laws of the
State in which its primary place of business is located. In
accordance with such laws, regulations, and executive
orders, the Vendor agrees that no person in the United
States shall, on the grounds of race, color, religion, national
origin, sex, age, veteran status or handicap, be excluded
from employment with or participation in, be denied the
benefits of, or be otherwise subjected to discrimination
under any program or activity performed by Vendor under
this Contract. If Vendor is found to be not in compliance
with these requirements during the term of this Contract,
Vendor agrees to take appropriate steps to correct these
deficiencies. Upon request, Vendor will furnish information
regarding its nondiscriminatory hiring and promotion
policies, as well as specific information on the composition
of its principals and staff, including the identification of
minorities and women in management or other positions
with discretionary or decision-making authority.
7. TECHNOLOGY ACCESS CLAUSE. AS
REQUIRED BY 62157.005. TEXAS GOVERNMENT
_CODE. (Aoolicable to State Aaencv Purchases Only)
Vendor expressly acknowledges and agrees that State funds
may not be expended in connection with the purchase of an
automated information system unless that system meets
certain statutory requirements relating to accessibility by
persons with visual impairments. Accordingly, the Vendor
represents and warrants to DEL and each Customer
purchasing products under this Contract that the technology
provided hereunder is capable, either by virtue of features
included within the technology or because it is readily
adaptable by use with other technology of (i) providing
equivalent access for effective use by both visual and non-
visual means; (ii) presenting information, including
prompts used for interactive communications, in formats
intended for non-visual use; and (iii) being integrated into
networks for obtaining, retrieving, and disseminating
information used by individuals who are not blind or
visually impaired. For the purposes of this section, the
phrase "equivalent access means a substantially similar
ability to communicate with or make use of the technology,
either directly by features incorporated within the
technology or by other reasonable means such as assistive
devices or services which would constitute reasonable
accommodations under the Americans with Disabilities Act
or similar state or federal laws. Examples, of methods by
which equivalent access may be provided include, but are
not limited to, keyboard alternatives to mouse commands
and other means of navigating graphical display and
customizable display appearance.
8. COMMODITY SOFTWARE. Texas Government
Code, §2157.068 requires State agencies to buy commodity
software in accordance with contracts developed by D1R,
unless the agency obtains a waiver from DBL. Vendor shall
agree to coordinate all agency commodity software sales
made pursuant to this Contract through existing DER
contracts, if available. Vendor represents it will not license
through a signed or unsigned license agreement, volume
licensing agreement or an order confirmation, the
commodity software to state agencies unless the agency is
able to provide a DIR granted waiver that the agency is
able to purchase the commodity software outside the DIR
Commodity Software contracts. The operating system
software and institutions of higher education are not bound
to this Code.
9. RECORDS. The Vendor shall maintain adequate
records to establish compliance with this Contract until the
later of a period of four years after termination of this
Contract or following acceptance of final payment under
the Contract Such records shall include identification of
the procuring Customer, documentation of the Customer's
ordering date, Customer Purchase Order number, order date
of product or service, ship date or service delivery date, full
invoice address, unit price, extended price, invoice
number, record of procuring Customer payment and/or
balance due, the calculations supporting. each
administrative fee owed DIR under this Contract,
Historically Underutilized Businesses Subcontracting
reports, and such other documentation as DIR may request.
Vendor shall grant access to all paper and electronic
records, books, documents, accounting procedures,
practices and any other items relevant to the performance
of this Contract to DR the auditors designated by DIR,
including auditors of the State Auditor' Office and of the
United States, and such other persons or entities designated
by DIR for the purposes of inspecting, auditing and/or
copying such books and records Copies and printouts
requested by DIR shall be provided by Vendor without
charge. DIR shall provide Vendor ten (10) business days'
notice prior to inspecting, auditing, and/or copying
Vendor's records. Vendor's records, whether paper or
electronic, shall be made available during regular office
hours. Vendor personnel familiar with the Vendor's books
and records shall be available to DIR staff and designees as
needed. Vendor shall provide adequate office space to DIR
staff during the performance of a compliance check Any
third parties acting on behalf or at the direction of DIR
shall be subject to the prior approval by Nextel and may be
required to execute Nextel's standard Non-Disclosure
agreement prior to examining, inspecting, copying or
auditing Nextel's records.
If any inspection or compliance check performed hereunder
reveals an aggregate overcharge to a Customer of .5% or
greater, or an aggregate underpayment to DIR of its
administrative fee of .5% or greater, then the cost of such
compliance check or inspection, including, but not limited
to, the salary and associated overhead of DIR staff
performing the compliance check or inspection, shall be
reimbursed to DIR within thirty (30) days from receipt of
an invoice from DIR reflecting the cost of the compliance
check or inspection.
For procuring State Agencies whose payments are
processed by the Texas Comptroller of Public Accounts,
the volume of payments made to Vendor through the Texas
Comptroller of Public Accounts and the administrative fee
based thereon shall be presumed correct unless Vendor can
demonstrate to DIR's satisfaction that Vendor's calculation
of DIR's administrative fee is correct.
10. ABILITY TO CONDUCT BUSINESS IN TEXAS
The Vendor is an entity authorized and validly existing
under the laws of its state of organization, and is authorized
to do business in the State of Texas. The Vendor is a
"Qualified Information Systems Vendor" as defined in
§2157.001, Texas Government Code. All products and
services offered to Customers under this Contract are listed
in Vendor's catalogue on file with the Texas Building and
Procurement Commission.
11. QUOTATIONS. WARRANTY. AND RETURN
POLICIES. Vendor will adhere to their then-currently
published policies concerning quotations, warranties, and
return policies. Warranty end return policies for Customers
will not be more restrictive or more costly than those
warranty and return policies maintained by Vendor for
other similarly situated Customers for like products or
services.
Nextel does not manufacture equipment and offers no
warranty on any equipment beyond the manufacturer's
warranty provided directly from the manufacturer to the
Customer upon receipt of the equipment Descriptions of
service and repair plans are available on Nextel's corporate
website at
hft://www.nextel.com/support/servicerepair/indox.shtn1.
Additionally, given the nature and structure of the network,
Nextel does not warrant the network.
NO WARRANTY (SERVICE): VENDOR MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE TO CUSTOMER IN
CONNECTION WITH ITS USE OF THE SERVICE. THE
CUSTOMER ACKNOWLEDGES THAT SERVICE
DISRUPTIONS WILL OCCUR FROM TIME TO TIME
AND, SUBJECT ONLY TO SECTION 1, AGREES TO
HOLD VENDOR HARMLESS FOR ALL SUCH
DISRUPTIONS.
NO WARRANTY (EQUIPMENT): VENDOR MAKES
NO WARRANTIES OR REPRESENTATIONS OF ANY
KIND, STATUTORY, EXPRESS OR IMPLIED, TO
CUSTOMER OR TO ANY OTHER PURCHASER OF
EQUIPMENT. VENDOR DOES NOT MANUFACTURE
ANY EQUIPMENT. WITHOUT LIMITING THE
FOREGOING, VENDOR SPECIFICALLY MAKES NO
EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT FOR ANY
WARRANTIES THE CUSTOMER RECEIVES FROM
THE EQUIPMENT MANUFACTURER, THE
CUSTOMER HEREBY WAIVES ALL OTHER
WARRANTIES, GUARANTEES, CONDITIONS, OR
LIABILITIES, EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE. IN NO EVENT SHALL.
VENDOR BE LIABLE FOR CONSEQUENTIAL,
SPECIAL, INCIDENTAL OR OTHER INDIRECT
DAMAGES, WHETHER OR NOT OCCASIONED BY
VENDOR NEGLIGENCE AND INCLUDING,
WITHOUT LIMITATION, LIABILITY FOR ANY LOSS
OR DAMAGE RESULTING FROM THE
INTERRUPTION OR FAILURE IN THE OPERATION
OF ANY EQUIPMENT SOLD OR LEASED
HEREUNDER EXCEPT FOR ANY WARRANTIES
EXTENDED BY EQUIPMENT MANUFACTURERS
DIRECTLY TO THE CUSTOMER, THERE ARE NO
WARRANTIES THAT EXTEND BEYOND THE
DESCRIPTION CONTAINED THEREIN. IF THE
EQUIPMENT PROVES DEFECTIVE, UNLESS
OTHERWISE AGREED BY VENDOR, ANY COSTS OF
NECESSARY SERVICING AND REPAIR WILL BE
BORNE BY THE CUSTOMER.
12. INVALID TERM OR CONDITION If any term or
condition of this Contract shall be held invalid or
unenforceable, the remainder of this Contract shall not be
affected and shall be valid and enforceable.
13. ENFORCEMENT OF CONTRACT AND
DISPUTE RESOLUTION. Vendor and DIR agree to the
following (i) a party's failure to require strict performance
of any provision of this Contract shall not waive or
diminish that party's right thereafter to demand strict
compliance with that ar any other provision; (ii) applicable
to State agency purchases only, for disputes not resolved in
the normal course of business, the disputer resolution
process provided for in Chapter 2260, Texas Government
Code, shall be used; (iii) the laws of the State of Texas
shall govern this Contract; (iv) actions or proceedings
arising from this Contract shall be heard in a court of
competent jurisdiction in Travis County, Texas; and (v)
nothing herein shall be construed to waive the State's
sovereign immunity.
14. ENTIRETIES. The Contract supercedes all prior
agreements, representations or promises, whether oral or
written, made by the parties regarding the subject matter of
this Contract.
15. MODIFICATION OF CONTRACT TERMS
AND/OR AMENDMENTS. The terns and conditions set
forth in the Contract shall govern all transactions by
Customers under this Contract. The Contract may only be
modified or amended upon mutual agreement of DD2 and
Vendor. Additional Customer terms and conditions, which
do not conflict with the Contract, may be added by a
Purchase Order and given effect For individual Purchase
Orders, however, the Vendor may offer Customers more
advantageous pricing and/or payment options than those set
forth in the Contract. In such event, Vendor shall furnish a
copy of such better offerings to DIR upon request.
16. DIR LOGO. Vendor may use the DIR logo in the
promotion of this Contract to Customers with the following
stipulations; (i) the logo may not be modified in any way;
(ii) when displayed, the size of the DD2 logo must be equal
to or smaller than the Vendor logo; (iii) the DIR logo is
only used to communicate the availability of products and
services under this Contract to Customers; and (iv) any
other use of the DIR logo requires prior written permission
from DIR.
17. VENDOR LOGO. DIR may have the non-exclusive
and nontransferable right to use the Vendor's name and
logo in the promotion of this Contract to communicate the
availability of Products under this Contract to Customers,
following prior written Permission from Vendor.
Following such permission, use of the logo may be on the
DIR Web Site or on printed materials. Any use of
Vendor's Logo by DIR must comply with and be solely
related to the purposes of this Contract and any usage
guidelines communicated to DIR from time to time.
Nothing contained in this Contract will give DIR any right,
title, or interest in or to Vendor's trademarks or the
goodwill associated therewith, except for the limited usage
rights expressly provided by Vendor.
18. LEASING PROVISION. The parties to this Contract
may agree to provisions that allow leasing of information
Resources Technologies in addition to purchase sales.
19. SITE PREPARATION. Customer(s) shall prepare
and maintain its site in accordance with written instructions
furnished by Vendor prior to the scheduled delivery date of
any product or service and shall bear the costs associated
with the site preparation.
20. TRAINING AND TRADE SHOW
PARTICIPATION. Vendor may be required to provide
product overview training to DIR at no cost The training
will be held within the Austin, Texas area at times mutually
acceptable to DIR and Vendor.
Vendor understands and agrees that it must participate by
providing a staffed booth display or similar presence at no
less than two (2) We shows or similar functions
sponsored by DIR Business Operations Division each
calendar year at the Vendor's expense. Vendor and all
participating DBt reserves the right to approve or
disapprove of the location of the use of the DHt logo in or
on the Vendor's booth.
21. ORIENTATION MEETING. Upon 60 days from
execution of the Contract, DIR may require the Vendor to
attend an orientation meeting to discuss the Contract
content and procedures. The meeting will he held within
the Austin, Texas area at a date and time mutually
acceptable to DBt and the Vendor. DBI shall bear no cost
in the time and travel of the Vendor for attendance at the
meeting.
22. USE OF SUBCONTRACTORS. Vendor may
subcontract installation, training, warranty, or maintenance
services. However, Vendor shall remain solely responsible
for the performance of its obligations under this Contract. If
Vendor uses any subcontractors, Vendor shall satisfy DIR
that it has complied and maintains compliance with the
DIR HUB Subcontracting Plan.
23. FORCE MAJEURE. DIR, Customer, or Vendor may
be excused from performance under this Contract for any
period when performance is prevented as the result of an
act of God, strike, war, civil disturbance, epidemic, or court
order, provided that the party experiencing the event of
Force Majeure has prudently and promptly acted to take
any and all steps that are within the party's control to
ensure performance and to shorten the duration of the event
of Force Majeme. The party suffering an event of Force
Majeure shall provide notice of the event to the other
parties immediately. Subject to this provision, such non-
performance shall not be deemed a default or a ground for
termination. However, a Customer may terminate a
Purchase Order if it is determined by the Customer that
Vendor will not be able to deliver product or services in a
timely manner to meet the business needs of the Customer.
24. TERMINATION FOR NON-APPROPRIATION.
Customer may terminate Purchase Orders and DIR may
terminate this Contract if funds sufficient to pay obligations
hereunder are not appropriated by the legislative body on
behalf of local governments, or by the Texas legislature on
behalf of state agencies. In the event of non-appropriation,
Vendor will be provided ten (10) days written notice of
intent to terminate. Customer will be responsible for fees
and charges incurred for services provided prior to the date
a Purchase Order is terminated for any such lack of
allocable or appropriation of funds.
25. TERMINATION FOR CONVENIENCE. Either
party may terminate this Contract, in whole or in part, by
giving the other party thirty (30) days written notice. A
Customer may terminate a Purchase Order if it is
deterninod by the Customer that Vendor will not be able to
deliver pooduct or services in a timely manner to meet the
business needs of the Customer.
26. TERMINATION FOR CAUSE. Either DIR or
Vendor may issue a written notice of default to the other
upon the occurrence of a material breach of any covenant,
warranty or provision of this Contract or a Purchase Order
arising hereunder. The non-defaulting party shall give the
defaulting party thirty (30) days from receipt of notice to
cure saidl default. If the defaulting party fails to cure said
default within the timeframe allowed, the non-defaulting
party may, at its option end in addition to any other
remedies it may have available, cancel and terminate this
Contract Customers hereunder have no power to terminate
this Contract for default. Customer's rights are exclusively
based on their Purchase Order.
27. CUSTOMER RIGHTS UNDER TERMINATION.
In the event this Contract expires or is terminated for any
reason, a Customer shall retain its rights under die Purchase
Order issued with respect to all products or services
ordered and accepted prior to the effective termination date.
28. VENDOR RIGHTS UNDER TERMINATION. In
the event this Contract expires or is terminated for any
reason, a Customer shall pay all amounts due for products
or services ordered prior to the effective termination date
and ultimately accepted.
29. SURVIVAL. All warranty and/or service agreements
that were entered into between Vendor and a Customer
under the terra and conditions of this Contract shall
survive the termination of this Contract.
30. HANDLING OF WRITTEN COMPLAINTS. In
addition to other remedies contained in this Contract, a
person contracting with DIR may direct their written
complaints to the following office:
Public Information Office
Department of Information Resources
Attn: Matt Kelly
300 W. 15° Street, Suite 1300
Austin, TX 78701
(512) 936.6550, voice
(512) 475-4759, fax
Email: matt.kellv(aldir.state.Mus.
Appendix B
Department of Information Resources
HUB Subcontracting Plan Forms
Historically Underutilized Businesses
Subcontracting Plan (Form 1)
This form Is required as part of the Historically Underutilized Businesses (HUB) Subcontracting
Plan. Failure to include this form and the applicable forms specified herein will result in automatic
disqualification of your response to the offering document.
Vendor Company Name: Nextel of Texas. Inc. d/b/a Nextel Communications
Vendor Identification Number: 74-1650557
Department of Information Resources Offering Document Number: DIR-VPC-03-025
1. The Department of Information Resources has determined that HUB subcontracting opportunities are
probable. Is your company proposing to subcontract any portion of this Contract?
(Xi Yes - Complete the following forms:
Determination of Good Faith Effort (Form 2)
Solicitation of HUB Subcontractors (Form 3)
Selected Subcontractors (Form 4)
What percentage of the proposed work is to be performed by your company? N/A*
No - Complete the Statement of Intent (Form 5)
2. Is your company certified as a HUB by the State of Texas?
( ) Yes (X) No
I have read and understand the Department of Information Resources' Policy on Utilization of HUBS.
Frank Ga
Authorized Representative Name
Director Strategic Business Development
Authorized Representative Title
Authorized Representative Signature
Date
HUB Subcontracting Plan
Determination of Good Faith Effort (Form 2)
Vendor Company Name: Nextel of Texas. Inc. d/b/a Nextel Communications
Department of hnformation Resources Offering Document Number: DIR-VPC-03-025
The potential vendor must make a good faith effort in development of the HUB Subcontracting Plan.
Please provide answers to the questions below and provide necessary documentation to support the
answers. The Department of Information Resources may review the supporting documentation to
determine if a good faith effort was made in accordance with applicable 1 TAC rules and the Contract
specifications. If it is determined that a good faith effort was not made, the vendor response to the
offering document shall be rejected as a material failure to comply with advertised specifications. The
reasons for rejection shall be recorded in the project file.
1. Did your company divide the contract work into reasonable portions in accordance with prudent
industry practices? ( ) Yes ( ) No (7Q N/A
2. Did your company send notices containing adequate information about bonding, insurance, the plans,
the specifcatiops, scope of work, and other requirements of the Contract to three or more qualified
HUBS allowing five working days from receipt of notice for HUBs to participate effectively? ( )
Yes (I) No
3. Did your company advertise the subcontracting opportunities in general circulation, trade association,
and/or other minority/women focused media? ( ) Yes (X) No
4. Did your company assist non-certified HUBs to become certified? (X) Yes ( ) No
5. Did your company negotiate in good faith with qualified HUBs, not rejecting qualified HUBs who
were the best value responsive bidder? Yes No (X) N/A
6. Did your company document reasons for rejection or meet with rejected HUBS to discuss the
rejection? ( ) Yes ( ) No (X) N/A
Due to the Indefinite Delivery, Indefinite Quantity (IDIQ) nature of this Contract, Nextel
cannot currently make informed decisions with regards to identifying specific HUBs to perform
any portion of this Contract. Nertel does, and will continue to, encourage HUB participation as
part of this Contract, and with many other opportunities. Due to the uncertainty surrounding
the locations, scope, and timeframes of utilization of this procurement vehicle, it is not currently
feasible for Nertel to complete Forms 2 - 4 at this time.
APPENDIX D
ADDITIONAL SERVICES
ADDMONAL SERVICES
The following is a list of Supplemental Nextel services covered under this Contract. This list
includes the only data services permitted to be purchased off of this Contract.