HomeMy WebLinkAbout25K - AGMT - WIRELESS SRVS AND EQUIPMENTREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
NOVEMBER 19, 2012
TITLE
AGREEMENT WITH AT&T MOBILITY
NATIONAL ACCOUNTS LLC FOR
WIRELESS SERVICES AND
EQUIPMENT
CITY MANAGER ?y
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on 15` Reading
? Ordinance on 2nd Reading
? Implementing Resolution
? Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize continued payment for wireless services and equipment provided pursuant to the
Participating Addendum with AT&T Mobility National Accounts LLC (formerly known as New
Cingular Wireless National Accounts LLC) under a master agreement with the Western States
Contracting Alliance (WSCA) through October 31, 2016, and an extension through October 31,
2019, in an amount not to exceed $110,000 per year.
DISCUSSION
The Police Department currently employs wireless data communications from AT&T Mobility to
support Global Positioning System (GPS) location services which provide Police dispatch with
critical data on unit location. This is an officer safety tool and aids the productivity of
patrol/policing activities. Other City Agencies including Parks and Recreation employ wireless
data communications to improve the delivery of services to the community.
To provide wireless data communications, the City utilizes services from AT&T Mobility National
Accounts LLC (formerly known as New Cingular Wireless National Accounts LLC) under an
agreement through the Western States Contracting Alliance (WSCA). This agreement was
competed and negotiated on October 10, 2006. AT&T and WSCA have extended the term of the
Master Agreement through October 31, 2016. Participating Agencies may extend their service
contracts pursuant to the extension of the Master Agreement. This agreement with AT&T Mobility
National Accounts LLC provides extremely competitive pricing with protections on future price
increases. The City may terminate at any time, without penalty, with 30 days notice. It is
anticipated that the current term will be further extended through October 31, 2019. If the master
25K-1
Agreement with AT&T Mobility National Accounts LLC
November 19, 2012
Page 2
agreement is extended, staff recommends that the term of the City's participating addendum be
extended as well.
FISCAL IMPACT
Funds are budgeted and are available in the FY10-11 Communication Services account for
contractual services (account no. 10210140-62010).
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
Exhibit 1: Master Service Agreement, RFP Contract #197
Exhibit 2: Participating Addendum, A-2007-053
Exhibit 3: Contract for Services of Independent Contractor,
RFP/Contract #1523
25K-2
For Purchasing Use Only:
RFP/CONTRACT k 1907
MASTER SERVICE AGREEMENT
A Contract between the Western States Contracting Alliance
Acting by and through the State of Nevada
and -
AT&T MOBH.ITY NATIONAL. ACCOUNTS LLC
RECITALS
Whereas, pursuant to Nevada Revised Statute (NRS) 277.100, NRS 277.110, NRS 333.162(1)(d),
and NRS 333.480 the Chief of the Purchasing Division of Nevada is authorized to enter into cooperative
group-contracting consortium;
Whereas, WS CA issued Request for Proposal #1907 for Wireless Voice Service, Wireless
Broadband Service, Accessories and Equipment, dated February 3, 2011, as amended, which is attached
hereto and incorporated herein as Attachment BB (the "Solicitation");
Whereas, Contractor submitted its Response to the Solicitation, which is attached hereto and
incorporated herein as Attachment CC (the "Response");
Whereas, on or about May 24, 2011, and in connection with the Solicitation, WSCA gave notice of
its intent to award contracts to certain entities including Contractor (the "Notice of Intent to Award");
Whereas, WSCA and Contractor intend to enter into a contract in connection with the Solicitation
and the Notice of Intent to Award that operates to both (a) set forth terms and conditions applicable
between WSCA and/or the Lead State, and Contractor with respect to the overall procurement; and (b) set
forth the primary, first-in-precedence terms and conditions applicable between Contractor and Participating
Entities participating in the Contract.
In consideration of the above premises, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties mutually agree as follows:
1. REQUIRED APPROVAL. The Master Service Agreement (aka the "Contract") shall not
become effective until and unless approved by the WSCA Directors.
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Exhibit 1
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2. DEFINITIONS.
2.1 "Contract" and "Master Service Agreement" mean this document, entitled "Master
Service Agreement," including, without limitation, Contractor's Special Terms and Conditions, as may be
amended by the Lead State, and Contractor, together with other incorporated documents as more fully
described in §5 herein.
2.2 "Contractor" means the vendor entity that, along with WSCA, is a party to the Contract
and that performs services and/or provides goods for WSCA under the Contract.
2.3 "Fiscal Year" is the Lead State's fiscal year, which is the period beginning July I and
ending June 30 of the following year.
2.4 "Participant" and/or "Participating State" means a state or other authorized entity that
(a) has executed a Participating Addendum; or (b) has signed (and not revoked) an Intent to Contract at the
time of the award of this Contract.
2.5 "Participating Addendum" and/or "PA" mean an agreement between Contractor and a
Participant, in form and substance substantially similar to Exhibit 1 to the Special Terms and Conditions,
through which such Participant participates in the Contract.
2.6 "Participating Entity" and/or "Buyer" mean a Participant, Participating State or other
entity properly authorized by a Participant to purchase services and products under the Contract, or that
otherwise participates in the Contract through the corresponding Participating Addendum.
2.7 "Special Terms and Conditions" means Contractor's additional terms and conditions,
unique to Contractor with respect to its corresponding services and products, which are attached hereto and
incorporated herein as Attachment AA.
2.8 "State" and/or "Lead State" means the State of Nevada and its state agencies, officers,
employees and immune contractors as defined in NRS 41.0307, and for purposes of this Contract, the
Lead State is acting on behalf of WSCA with the authority to enter into, and amend the Contract.
2.9 "Sub-PA" means a document executed by a Participating Entity participating in an
existing PA pursuant to which separate terms and conditions applicable only to that Participating Entity
and other authorized entities.
2.10 "Total Wireless Spend" means, with respect to the WSCA Administration Fee, the total
amount of the charges set forth on the invoices sent by Contractor to Participating Entities under the
Contract, less taxes and surcharges.
2.11 "WSCA" means the Western States Contracting Alliance, a cooperative group-contracting
consortium for state government departments, institutions, agencies and political subdivisions (i.e.,'
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colleges, school districts, counties, cities, etc.,) for the states of Alaska, Arizona, California, Colorado,
Hawai'i, Idaho, Minnesota, Montana, Nevada, New Mexico, Oregon, South Dakota, Utah, Washington and
Wyoming.
3. CONTRACT TERM. The Contract shall be effective from $4 ar 4 (9/ ;;IV j? to
October 31, 2016, (subject to the WSCA Directors' approval), unless sooner terminated by either Party as
specified in paragraph 21 herein. Each Participating Addendum executed in connection with the Contract
shall be effective from its corresponding effective date through the end of the Contract's term, unless
otherwise specified in that Participating Addendum. Notwithstanding the foregoing, Contractor and the
Lead State acknowledge and agree that Contractor may enter into a Participating Addendum with any
Participant hereunder on or after this Contract's "effective from "date upon approval of the Lead State.
Any such Participating Addendum so executed will be subject to the terms and conditions of this Contract.
4. CANCELLATION; NOTICE. The Contract may be canceled by either the Lead. State or
Contractor upon written notice sixty (60) days prior to the effective date of the cancellation. Cancellation
of the Contract due to Contractor's default may be immediate. Further, any Participant may cancel its
Participating Addendum upon thirty (30) days written notice to Contractor, unless otherwise limited or
stated in the Participating Addendum. Any cancellation under this provision (a) may be in whole or in part;
and (b) shall not effect the rights and obligations attending orders outstanding at the time of cancellation,
including any right of any Participating Entity to indemnification by the Contractor, rights of payment for
goods/services delivered and accepted, and rights attending any warranty or default in performance in
association with any order.
5. INCORPORATED DOCUMENTS; ORDER OF PRECEDENCE. The Contract consists of
this document, entitled "Master Service Agreement," together with the following incorporated documents;
Contractor's Special Terms and Conditions, the Solicitation, and the Response. The document entitled
Master Service Agreement together with the Contractor's Special Terms and Conditions are intended by
the Parties to be the primary Participating Entity-facing contractual document in connection with the
Solicitation. To participate in the Contract, each Participating Entity must do so pursuant to a Participating
Addendum. In the event of any conflict between the terms and conditions of any of the documents
comprising or related to the Contract, the following order of precedence will control:
1. The applicable Participating Addendum and/or Sub-PA;
2. The Master Service Agreement;
3. Contractor's Special Terms and Conditions (Attachment AA);
4. The Solicitation (Attachment BB);
5. The Response (Attachment CC);
6. Any individual order placed on the Contract by a Participating Entity
Notwithstanding the foregoing, Contractor and WSCA expressly acknowledge and agree that the terms and
conditions unique to the states of Arizona, Montana, Oregon, and Utah, which were included under
Attachment K of the Solicitation, were for informational purposes only and are NOT incorporated into the
Contract by inclusion in the Solicitation.
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25K-5
The parties acknowledge and agree that each Participating Addendum executed in accordance herewith
incorporates the terms and conditions of the Contract, and that the corresponding Participating Entities will
be bound to the terms and conditions of that Participating Addendum and the Contract.
Neither the Special Terms and Condition, nor any purchase order(s) issued under the Contract shall
contradict or supersede any terms and conditions in the Contract without written evidence of mutual assent
to such change(s) between Contractor and the Lead State.
6. [OMITTED]
7. ASSENT. The parties agree that the terms and conditions listed on incorporated attachments of
this Contract are also specifically a part of this Contract and are limited only by their respective order of
precedence and any limitations specified.
[OMITTED]
9. [OMITTED]
10. [OMITTED]
11. CONSIDERATION. The parties agree that Contractor will provide the services and products
specified in, and in accordance with the Contract. Contracted prices represent ceiling prices for the
supplies and services offered. Contractor shall report to the Lead State any price reduction or discount, or
other more favorable terms offered to any Participating Entity and the Contractor agrees to negotiate in
good faith to re-establish ceiling prices or other more favorable terms and conditions applicable to future
orders. Bid prices must remain firm for the full term of the Contract. In the case of error in the extension
of prices in the bid, the unit prices will govern. WSCA does not guarantee to purchase any amount under
this Contract. Estimated quantities in the Solicitation are for bidding purposes only and are not to be
construed as a guarantee to purchase any amount. If Contractor has quoted a cash discount based upon
early payment; discounts offered for less than thirty (30) days have not been considered in making the
award. WSCA is not liable for any costs incurred by the bidder in proposal preparation.
12. PAYMENT. Payment is normally made within thirty (30) days following the date the entire
order is delivered or the date a correct invoice is received, whichever is later. After forty-five, (45) days the
Contractor may assess overdue account charges up to a maximum rate of one (1) percent per month on the
outstanding balance. Payments will be remitted by mail. Payments may be made via a Participating State's
"Purchasing Card."
13. TAXES.
13.1 Payable By Participating Entities. Prices shall be exclusive of state sales and federal
excise taxes. Participating Entities may be required to show proof of any tax exemptions. Where a
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Participating Entity is not exempt from sales taxes on sales within its state, such Participating Entity will be
liable for such taxes, and Contractor shall add the sales taxes on the billing invoice as a separate entry.
13.2 Payable by Contractor. Contractor will be responsible to pay all taxes, assessments,
fees, premiums, permits, and licenses required by law for it to pay. The Lead State's applicable real
property and personal property taxes are the responsibility of Contractor in accordance with NRS 361.157
and NRS 361.159. Contractor agrees to be responsible for payment of any such applicable government
obligations not paid by its subcontractors during performance of this Contract. The Lead State may set-off
against consideration due any delinquent government obligation owed the Lead State in accordance with
NRS 353C.190.
14. FINANCIAL OBLIGATIONS OF PARTICIPATING ENTITIES. Participating Entities'
financial obligations are limited to such entities having available funds. Participants incur no financial
obligations on behalf of political subdivisions. Unless otherwise specified in the Solicitation, the resulting
award(s) will be permissive.
15. ORDER NUMBERS. To the extent described in the Response, Contract order-and purchase
order numbers shall be clearly shown on all acknowledgments, shipping labels, packing slips, invoices, and
on all correspondence.
16. _WSCA ADMINISTRATION FEE; REPORTS. The Contractor will pay WSCA an
Administration Fee of 1/10'' of 1% (one-tenth of one percent) of the Total Wireless Spend, pursuant to the
schedule of payments set forth in the Solicitation and Attachment G thereto. The Contractor shall submit
quarterly reports to the WSCA Contract Administrator in accordance with the requisites of Attachment G
to the RFP.
17. DELIVERY. The prices bid shall be the delivered price to any Participating Entity. All
deliveries shall be F.O.B. destination with all transportation and handling charges paid by the Contractor.
Responsibility and liability for loss or damage shall remain with the Contractor until final inspection and
acceptance, when responsibility shall pass to the Participating Entity except as to latent defects, fraud and
Contractor's warranty obligations.
18. HAZARDOUS CHEMICAL INFORMATION. The Contractor will provide one set of the
appropriate material safety data sheet(s) and container label(s) upon delivery of a hazardous material to any
Participating Entity. All safety data sheets and labels will be in accordance with each Participating State's
requirements.
19. INSPECTIONS. Goods furnished under the Contract shall be subject to inspection and test by
the Participating Entity at times and places determined by the Participating Entity. If the Participating
Entity finds goods furnished to be incomplete or in non-compliance with the Contract, the Participating
Entity may reject the goods and require Contractor to either correct them without charge or deliver them at
a reduced price which is equitable under the circumstances. If Contractor is unable or refuses to correct
such goods within a time deemed reasonable by the Participating Entity, the Participating Entity may cancel
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the order in whole or in part. Nothing in this paragraph shall adversely affect the Participating Entity's
rights including the rights and remedies associated with revocation of acceptance under the Uniform
Commercial Code.
20. INSPECTION & AUDIT.
20.1 WSCA's Rights. The inspection and audit provisions of this §20.1 run to the benefit of
WSCA, not to Participating Entities.
a. . Books and Records. Contractor will maintain, or supervise the maintenance of all
records necessary to properly account for the payments made to the Contractor for costs authorized by the
Contract. Contractor agrees to keep and maintain under generally accepted accounting principles (GAAP)
full, true and complete records, contracts, books, and documents as are necessary to fully disclose to
WSCA, the Lead State or United States Government, or their authorized representatives, upon audits or re-
views, sufficient information to determine compliance with all state and federal regulations and statutes.
b. Inspection & Audit. Contractor agrees that the relevant books, records (written,
electronic, computer related or otherwise), including, without limitation, relevant accounting procedures
and practices of Contractor or its subcontractors, financial statements and supporting documentation, and
documentation related to the work product shall be subject, at any reasonable time, to inspection,
examination, review, audit, and copying at any office or location of Contractor where such records may be
found, with or without notice by WSCA; the United States Government; the State Auditor or its contracted
examiners, the Department of Administration, Budget Division, the Nevada State Attorney General's Office
or its Fraud Control Units, the State Legislative Auditor, and with regard to any federal funding, the
relevant federal agency, the Comptroller General, the General Accounting Office, the Office of the
Inspector General, or any of their authorized representatives. All subcontracts shall reflect requirements of
this paragraph.
C. Period of Retention. All books, records, reports, and statements relevant to this
Contract must be retained a minimum four (4) years after the Contract terminates or or until all audits
initiated within the four (4) years have been completed, whichever is later, and for five (5) years if any
federal funds are used in the Contract. The retention period runs from the date of payment for the relevant
goods or services by the State, or from the date of termination of the Contract, whichever is later.
Retention time shall be extended when an audit is scheduled or in progress for a period reasonably
necessary to complete an audit and/or to complete any administrative and judicial litigation which may
ensue.
20.2 Participating Entities' Rights. Contractor will provide each Participating Entity with
reasonable access to Contractor's books and records related to the corresponding Participating Entity's
payments and participation in the Contract.
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21. DEFAULT; REMEDIES.
21.1. WSCA's Rights Upon Default. Any of the following events shall constitute cause for
WSCA to declare Contractor in default of the Contract: (1) nonperformance of contractual requirements
under the Contract; and/or (2) a material breach of any term or condition of the Contract. In order to
declare Contractor in default, WSCA shall issue a written notice of default providing a period in which
Contractor shall have a reasonable opportunity to cure the default(s). Time allowed for cure shall not
diminish or eliminate Contractor's liability for damages otherwise available under the Contract. If the
default remains after Contractor has been provided the opportunity to cure, WSCA may do one or more of
the following: (1) exercise any remedy provided by law; (2) terminate the Contract or portions thereof,
and/or (3) suspend Contractor from receiving future bid solicitations.
21.2 Participating Entity's Rights Upon Default. Any of the following events shall
constitute cause for a Participating Entity to declare Contractor in default of the corresponding Participating
Addendum or Sub-PA: (1) non-performance of contractual requirements; and/or (2) Contractor's material
breach of any term or condition of the Participating Addendum or Sub-PA. In order to declare Contractor
in default, a Participating Entity shall issue a written notice of default providing a period in which
Contractor shall have a reasonable opportunity to cure the default(s). Time allowed for cure shall not
diminish or eliminate Contractor's liability for damages otherwise available under the Participating
Addendum. If the default remains after Contractor has been provided the opportunity to cure, the
Participating Entity may do one or more of the following: (1) exercise any remedy provided by law;
(2) terminate the Participating Addendum, Sub-PA, or portions thereof.
21.3 No Cross Termination. Notwithstanding the foregoing, in the event of a default by
Contractor hereunder, then (a) an individual Participating Entity may not terminate the Contract but,
instead, may only terminate its own PA; (b) WSCA may not terminate an individual Participating
Addendum or Sub-PA, except as a consequence of its termination of the Contract; and (c) a Participating
Entity that is not (i) concurrently the Participant or Participating State under the corresponding Participating
Addendum, or (ii) a party to a valid Sub-Participation Addendum, may not terminate the corresponding
Participating Addendum or Sub-PA and, instead may only terminate any outstanding, unfilled purchase
orders made in connection with the corresponding Participating Addendum or Sub-PA.
21.4 Post-Termination Issues. In the event of termination of the Contract or a Participating
Addendum for any reason, the parties agree that the provisions of this paragraph survive termination:
a. The parties shall account for and properly present to each other all claims for
fees and expenses and pay those which are undisputed and otherwise not subject to set off under the.
Contract. Neither party may withhold performance of winding up provisions solely based on
nonpayment of fees or expenses accrued up to the time of termination;
b. Contractor shall satisfactorily complete work in progress at the agreed rate (or
a pro rata basis if necessary) if so requested by WSCA or a Participating Entity;
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C. Contractor shall execute any documents and take any actions necessary to
effectuate an assignment of this contract if so requested by WSCA;
d. Contractor shall preserve, protect and promptly deliver into WSCA's
possession all of WSCA's proprietary information in accordance with paragraph (31).
22. REMEDIES NON-EXCLUSIVE. Except as otherwise provided for by law or this Contract, the
rights and remedies of the parties shall not be exclusive and are in addition to any other rights and remedies
provided by law or equity, including, without limitation, actual damages, and to a prevailing party reason-
able attorneys'. fees and costs. It is specifically agreed that reasonable attorneys' fees shall include without
limitation $125 per hour for attorneys employed by the Lead State. The Lead State may set off
consideration against any unpaid obligation of Contractor to Lead State in accordance with NRS 353C.190,
or the applicable Participating Addendum. A Participating Entity's right of set-off shall be in accordance
with the law of the Participating Entity's state, and the provisions of the applicable Participating
Addendum.
23. LIMITED LIABILITY. The Lead State will not waive and intends to assert available NRS
chapter 41 liability limitations in all cases. Contract liability of Contractor, WSCA, the Lead State, and/or
any and all Participating Entities shall not be subject to punitive damages. In no event shall Contractor be
liable for inability of users to access 911 or E911 service. In no event shall either Contractor, WSCA, the
Lead State and/or any and all Participating Entities be liable for any indirect, special, consequential or
incidental damages, however caused, which are incurred by the other party and which arise out of any act or
failure to act relating to this agreement, even if such party has been advised of the claim or potential claim
or the possibility of such damages, and in no event shall either party be liable to the other party for punitive
damages.
24. FORCE MAJEURE. Neither party to this Contract shall be deemed to be in violation of this
Contract if it is prevented from performing any of its obligations hereunder due to strikes, failure of public
transportation, civil or military authority, act of public enemy, accidents, fires, explosions, or acts of God,
including, without limitation, earthquakes, floods, winds, or storms. In such an event the intervening cause
must not be through the fault of the party asserting such an excuse, and the excused party is obligated to
promptly perform in accordance with the terms of the Contract after the intervening cause ceases. WSCA
may terminate this Contract after determining such delay or default will reasonably prevent successful
performance of the Contract.
25. INDEMNIFICATION.
25.1 Contractor's Obligations to WSCA. To the fullest extent permitted by law, Contractor
shall indemnify, hold harmless and defend, not excluding the Lead State's right to participate, the Lead
State and/or WSCA from and against all liability, claims, actions, damages, losses, and expenses, includ-
ing, without limitation, reasonable attorneys' fees and costs, arising out of any alleged negligent or willful
acts or omissions of Contractor, its officers, employees and agents.
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25.2 Contractor's Obligations to Participating Entities. The Contractor shall release,
protect, indemnify and hold Participating Entities and their officers, agencies, employees, harmless from
and against any damage, cost or liability, including reasonable attorney's fees for any or all injuries to
persons, property or claims for money damages arising from acts or'omissions of the contractor, his
employees or subcontractors or volunteers.
25.3 Exception. Contractor will not be liable for damages that are the result of negligence or
willful misconduct by WSCA, the Participating Entities, and/or their respective employees, officers and
agencies.
26. INSURANCE SCHEDULE. Unless expressly waived in writing by the Lead State or
Participating States, Contractor, as an independent contractor and not an employee of the Lead State or
Participating States, must carry policies of insurance in amounts specified in this Insurance Schedule and/or
any Insurance Schedule agreed by Contractor and a Participating State via a participating addendum, and
pay all taxes and fees incident hereunto. The Lead State and Participating States shall have no liability
except as specifically provided in the Contract. The Contractor shall not commence work before:
1) Contractor has provided the required evidence of insurance to the Lead State.
The Lead State's approval of any changes to insurance coverage during the course of performance shall
constitute an ongoing condition subsequent this Contract. Any failure of the Lead State to timely
approve shall not constitute a waiver of the condition.
Insurance Coverage: The Contractor shall, at the Contractor's sole expense, procure, maintain and
keep in force for the duration of the Contract the following insurance conforming to the minimum
requirements specified below. Unless specifically stated herein or otherwise agreed to by the Lead State,
the required insurance shall be in effect prior to the commencement of work by the Contractor and shall
continue in force as appropriate until the latter of.
1. Final acceptance by the Lead State of the completion of this Contract; or
2. Such time as the insurance is no longer required by the Lead State under the terms of this Contract.
Any insurance or self-insurance available to the Lead State shall be excess of and non-contributing with
any insurance required from Contractor. Contractor's required insurance policies shall apply on a
primary basis. Until such time as the insurance is no longer required by the Lead State, Contractor shall
provide the Lead State with renewal or replacement evidence of insurance no less than thirty (30) days
before the expiration or replacement of the required insurance. If at any time during the period when
insurance is required by the Contract, an insurer or surety shall fail to comply with the requirements of this
Contract, as soon as Contractor has knowledge of any such failure, Contractor shall immediately notify the
State and immediately replace such insurance or bond with an insurer meeting the requirements.
Contractor agrees that the following insurance coverages and policy limits shall also apply to, and operate
for the benefit of, each Participating Entity that participates in this Contract pursuant to a Participating
Entity.
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Workers' Compensation and Em to er's Liability Insurance
Contractor shall provide proo o worker's compensation insurance.
2) Employer's Liability insurance with a minimum limit of $500,000 each employee per
accident for bodily injury by accident or disease.
Commercial General Liability Insurance
1) Minimum Limits required:
$25,000,000.00 General Aggregate
$25,000,000.00 Products & Completed Operations Aggregate
$5,000,000.00 Personal and Advertising Injury
$5,000,000.00 Each Occurrence
2) Coverage shall be on an occurrence basis and shall be at least as broad as ISO form CG 00 01 (or a substitute form
providing equivalent coverage); and shall cover liability arising from premises, operations, independent contractors,
completed operations, personal injury, products, civil lawsuits, Title VII actions and liability assumed under an
insured contract (including the tort liability of another assumed in a business contract).
Business Automobile Liability Insurance
1) Minimum Limit required: $Waived Each Occurrence for bodily injury and property damage.
Coverage shall be for "any auto" (including owned, non-owned and hired vehicles).
The policy shall be written on ISO form CA 00 01 or a substitute providing equivalent liability
coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage.
Professional Liability Insurance
Minimum Limit require : $ Waived Each Claim
2) Retroactive date: Prior to commencement of the performance of the Contract
3) Discovery period: Three (3) years after termination date of Contract.
4) A certified copy of this policy may be required.
Umbrella or Excess Liability Insurance
1) May be used to achieve the above minimum liability limits.
2) Shall be endorsed to state it is "As Broad as Primary Policy"
Commercial Crime Insurance
Minimum Limit required: $Waived Per Loss for Employee Dishonesty
This insurance shall be underwritten on a blanket form amending the definition of "employee" to
include all employees of the Vendor regardless of position or category.
General Requirements:
b. Waiver of Subrogation: Each liability insurance policy shall provide for a waiver of subrogation as
to additional insureds.
c. Cross-Liability: All required liability policies shall provide cross-liability coverage as would be
achieve under the standard ISO separation of insureds clause.
d. Deductibles and Self-Insured Retentions: Any deductible or self-insured retention shall be at the
sole risk of the Contractor.
e. Policy Cancellation: Except for ten (10) days notice for non-payment of premium, each insurance
policy shall be endorsed to state that; without thirty (30) days prior written notice to the Lead State,
the policy shall not be canceled or non-renewed, and shall provide that notices required by this
paragraph shall be sent by mail to the address identified on page 1 of the Contract.
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f. Approved Insurer: Each insurance policy shall be:
1) Issued by insurance companies authorized to do business in the Lead State and Participating States or eligible
surplus lines insurers acceptable to the Lead State and Participating States and having agents upon whom service of
process may be made, and
2) Currently rated by A.M. Best as "A-VII" or better.
Evidence of Insurance:
Prior to the start of any Work, Contractor must provide the following documents to the Lead State:
1) Certificate of Insurance: The Acord 25 Certificate of Insurance form or a form substantially similar
must be submitted to the State to evidence the insurance policies and coverages required of Contractor.
2) Schedule of Underlying Insurance Policies: If Umbrella or Excess policy is evidenced to comply
with minimum limits, a copy of the Underlyer Schedule from the Umbrella or Excess insurance policy
may be required.
Review and Approval: Documents specified above must be submitted for review and approval by the
Lead State prior to the commencement of work by Contractor. Neither approval by the Lead State nor
failure to disapprove the insurance furnished by Contractor shall relieve Contractor of Contractor's full
responsibility to provide the insurance required by this Contract. Compliance with the insurance
requirements of this Contract shall not limit the liability of Contractor or its sub-contractors,
employees or agents to the Lead State or others, and shall be in addition to and not in lieu of any other
remedy available to the Lead State or Participating States under this Contract or otherwise.
Mail all required insurance documents to the Lead State identified on page one of the Contract
27. COMPLIANCE WITH LEGAL OBLIGATIONS. Any and all supplies, services and
equipment bid and furnished shall comply fully with all applicable Federal and State laws and regulations.
Contractor shall procure and maintain for the duration of this Contract any state, county, city or federal
license, authorization, waiver, permit, qualification or certification required by statute, ordinance, law, or
regulation to be held by Contractor to provide the goods or services required by this Contract.
28. WAIVER OF BREACH. Failure to declare a breach or the actual waiver of any particular
breach of the Contract or its material or nonmaterial terms by either party shall not operate as a waiver by
such party of any of its rights or remedies as to any other breach.
29. SEVERABILITY. If any provision of this Contract is declared by a court to be illegal or in
conflict with any law, the validity of the remaining terms and provisions shall not be affected; and the
rights and obligations of the parties shall be construed and enforced as if the Contract did not contain the
particular provision held to be invalid.
30. ASSIGNMENT/DELEGATION. To the extent that any assignment of any right under this
Contract changes the duty of either parry, increases the burden or risk involved, impairs the chances of
obtaining the performance of this Contract, attempts to operate as a novation, or includes a waiver or
abrogation of any defense to payment by State, such offending portion of the assignment shall be void, and
shall be a breach of this Contract. Contractor shall not assign, sell, transfer; subcontract or sublet rights, or
Page 11 of 19
25K-13
delegate responsibilities under this Contract, in whole or in part, without the prior written approval of the
WSCA Contract Administrator, which approval shall not be unreasonably withheld.
31. OWNERSHIP OF PROPRIETARY INFORMATION. Any reports, histories, studies, tests,
manuals, instructions, photographs, negatives, blue prints, plans, maps, data, system designs, computer
code, or any other documents or drawings, prepared or in the course of preparation by Contractor (or its
subcontractors) specifically for WSCA in performance of Contractor's obligations under this Contract
(collectively, the "Specially Prepared Proprietary Information") shall be the exclusive property of WSCA
and all such Specially Prepared Proprietary Information, that has not already been delivered into WS CA's
possession, shall be delivered into WSCA possession by Contractor upon completion, termination, or
cancellation of this Contract. For purposes of this delivery obligation, Contractor shall provide the
Specially Prepared Information to the Lead State. Contractor shall not use, willingly allow, or cause to
have such Specially Prepared Information used for any purpose other than performance of Contractor's
obligations under this Contract without the prior written consent of WSCA. Notwithstanding the
foregoing, unless otherwise specifically stated in the Contract, neither WSCA nor any Participating Entities
shall have any proprietary interest in any reports, histories, studies, tests, manuals, instructions,
photographs, negatives, blue prints, plans, maps, data, system designs, computer code, or any other
documents or drawings, any pre-existing works or materials, or any materials licensed to WSCA (or
otherwise provided for WSCA's use) that are NOT specifically prepared by Contractor for WSCA in
performance of Contractor's obligations under this Contract, whether such materials are subject to patent,
trademark or copyright protection or otherwise.
32. PATENTS, COPYRIGHTS, ETC. The Contractor shall release, indemnify and hold WSCA,
the Lead State, and Participating States and their officers, agents and employees harmless from liability of
any kind or nature, including the Contractor's use of any copyrighted or un-copyrighted composition, secret
process, patented or unpatented invention, article or appliance furnished or used in the performance of this
Contract.
33. PUBLIC RECORDS. Pursuant to NRS 239.010, information or documents received from
Contractor may be open to public inspection and copying. The Lead State will have the duty to disclose
unless a particular record is made confidential by law or a common law balancing of interests. Contractor
may label specific parts of an individual document as a "trade secret" or "confidential" in accordance with
NRS 333.333, provided that Contractor thereby agrees to indemnify and defend the Lead State for honoring
such a designation. The failure to so label any document that is released by the Lead State shall constitute a
complete waiver of any and all claims for damages caused by any release of the records.
The above provision applies to WSCA and the Lead State, and does not inure to the benefit of
Participating Entities. Information or documents produced or received by a Participating Entity in
connection with participation in this Contract shall be subject to the public records laws of the Participating
Entity's state, and the provisions of the applicable Participating Addendum.
34. CONFIDENTIALITY. Contractor shall comply with applicable laws with respect to
confidentiality of all information, in whatever form, produced, prepared, observed or received by
Page 12 of 19
25K-14
Contractor in connection with the Contract. Unless otherwise mandated by court order, or unless otherwise
required by applicable law, Contractor shall keep confidential all information observed or received by
Contractor in connection with the Contract to the extent that such information is made confidential under
the terms of this Contract.
35. NONDISCRIMINATION. Contractor agrees to abide by the provisions of Title VI and Title
VII of the Civil Rights Act of 1964 (42 USC 2000e), which prohibit discrimination against any employee
or applicant for employment, or any applicant or recipient of sei vices, on the basis of race, religion, color,
or national origin; and further agrees to abide by Executive Order No. 11246, as amended, which prohibits
discrimination on basis of sex; 45 CFR 90 which prohibits discrimination on the basis of age, and Section
504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990 which prohibits
discrimination on the basis of disabilities. Contractor further agrees to furnish information and reports to
requesting Participating Entities, upon request, for the purpose of determining compliance with these
statutes. Contractor agrees to comply with each individual Participating State's certification requirements,
if any, as stated in the special terms and conditions. This Contract may be canceled if the Contractor fails
to comply with the provisions of these laws and regulations. Contractor must include this provision in very
subcontract relating to purchases by the States to insure that subcontractors and vendors are bound by this
provision.
36. FEDERAL FUNDING. In the event federal funds are used for payment of all or part of this
Contract:
a. Contractor certifies, by signing this Contract, that neither it nor its principals are
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in this transaction by any federal department or agency. This certification is made pursuant to
the regulations implementing Executive Order 12549, Debarment and Suspension, 28 C.F.R. pt. 67,
§67.510, as published as pt. VII of the May 26, 1988, Federal Register (pp. 19160-19211), and any relevant
program-specific regulations. This provision shall be required of every subcontractor receiving any
payment in whole or in part from federal funds.
b. Contractor and its subcontractors shall comply with all terms, conditions, and
requirements of the Americans with Disabilities Act of 1990 (P.L. 101-136), 42 U.S.C. 12101, as amended,
and regulations adopted thereunder contained in 28 C.F.R. 26.101-36.999, inclusive, and any relevant
program-specific regulations.
C. Contractor and its subcontractors shall comply with the requirements of the Civil
Rights Act of 1964, as amended, the Rehabilitation Act of 1973, P.L. 93-112, as amended, and any relevant
program-specific regulations, and shall not discriminate against any employee or offeror for employment
because of race, national origin, creed, color, sex, religion, age, disability or handicap condition (including
AIDS and AIDS-related conditions.)
Page 13 of 19
25K-15
37. LOBBYING. The parties agree, whether expressly prohibited by federal law, or otherwise, that
no funding associated with this Contract will be used for any purpose associated with or related to lobbying
or influencing or attempting to lobby or influence for any purpose the following!
a. Any federal, state, county or local agency, legislature, commission, counsel or
board;
b. , Any federal, state, county or local legislator, commission member, counsel member,
board member, or other elected official; or
c. Any officer or employee of any federal, state, county or local agency; legislature,
commission, counsel or board.
38. NON-COLLUSION. Contractor certifies that this Contract and the underlying bid, have been
arrived at independently and have been without collusion with, and without any agreement, understanding
or planned common course of action with, any other vendor of materials, supplies, equipment or services
described in the invitation to bid, designed to limit independent bidding or competition.
39. WARRANTIES. Contractor warrants that all services, deliverables, and/or work product under
this Contract shall be completed in a workmanlike manner consistent with standards in the trade,
profession, or industry. Except as specifically set forth above, Contractor makes no representations or
warranties, express or implied, and specifically disclaims any representation or warranty of
merchantability, fitness for a particular purpose, title, non-infringement or any warranty arising by usage
of trade or course of dealing. Further, Contractor makes no representation or warranty that wireless calls
or `other transmissions will be routed or completed without error or interruption (including calls to 911 or
any similar emergency response number), or guarantee regarding network security, the encryption
employed by any service, the integrity of any data that is sent, backed up, stored or subject to load
balancing, or that contractor's security procedures will prevent the loss or alteration of, or improper
access to, a Participating Entity's data and information. Contractor does not authorize anyone to make a
warranty of any kind on its behalf, and Participating Entities should not rely on anyone making such
statements. Contractor is not the manufacturer of equipment purchased by or provided to participating
entities in connection with use of the service.
40. CONFLICT OF INTEREST. Contractor certifies that it has not offered or given any gift or
compensation prohibited by the state laws of any WSCA Participating Entities to any officer or employee
of WSCA or Participating Entities to secure favorable treatment with respect to being awarded this
Contract.
41. INDEPENDENT CONTRACTOR. Contractor shall be an independent contractor, and as such
shall have no authorization, express or implied to bind WSCA or the respective Participating Entities to
any agreements, settlements, liability or understanding whatsoever, and agrees not to perform any acts as
agent for WSCA or the Participating Entities, except as expressly set forth herein.
Page 14 of] 9
25K-16
42. POLITICAL SUBDIVISION PARTICIPATION. Participation under this Contract by
authorized political subdivisions shall be voluntarily determined by the corresponding political subdivision.
Contractor agrees to provide products and services to such political subdivisions based upon the same
terms, conditions and prices set forth in the corresponding Participating Addendum.
43.. PROPER AUTHORITY. The parties hereto represent and warrant that the person executing .
this Contract, a Participating Addendum, and/or order, as applicable, on behalf of the corresponding party
has full power and authority to do so. Contractor acknowledges that as required by statute or regulation the
Contract is effective only after approval by the WSCA Board of Directors and only for the period of time
specified in the Contract. Except as otherwise provided herein, any services performed by Contractor
before this Contract is effective .or after it ceases to be effective are performed at the sole risk of Contractor.
The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participation in this transaction (contract) by
any governmental department or agency.
44. GOVERNING LAW; JURISDICTION.
44.1 Lead State. The parties acknowledge and agree that with respect to Contractor and the
Lead State and/or WSCA, the rights and obligations of the parties hereto shall be governed and construed
in accordance with the laws of the state of Nevada, without giving effect to any principle of conflict-of-law
that would require the application of the law of any other jurisdiction. The parties consent to the exclusive
jurisdiction of the First Judicial District Court, Carson City, Nevada for enforcement of this Contract.
44.2 Participating Entities. The construction and effect of any Participating Addendum or
order against the Contract shall be governed by and construed in accordance with the laws of the
corresponding Participating Entity. Venue for any claim, dispute or action concerning an order placed
against the Contract or the effect of a Participating Addendum shall be in the Participating Entity's State.
45. SIGNATURES IN COUNTERPART. The Contract may be signed in any number of
counterparts, each of which shall be an original, but all of which together shall constitute one in the same
instrument.
46. AMENDMENTS. The terms of this Contract shall not be waived, altered, modified,
supplemented or amended in any manner whatsoever without prior written approval of the WSCA Contract
administrator. Each Participating Entity expressly acknowledge and agree that it will be bound by the
terms and conditions of the Contract and by all existing or future. amendments or modifications thereto, all
of which are incorporated herein by reference, without the necessity of further action or notice by
Contractor or the Lead State. Each Participating Entity hereby consents to and waives notice of any such
amendments and modifications.
47. ENTIRE CONTRACT. This Contract, its integrated attachment(s) and, the Participating
Addenda, as applicable constitute the entire agreement of the parties and such are intended as a complete
Page 15 of 19
25K-17
terms and conditions of the Contract and by all existing or future amendments or modifications thereto, all
of which are incorporated herein by reference, without the necessity of further action or notice by
Contractor or the Lead State. Each Participating Entity hereby consents to and waives notice of any such
amendments and modifications.
47. ENTIRE CONTRACT. This Contract, its integrated attachment(s) and, the Participating
Addenda, as applicable constitute the entire agreement of the parties and such are intended as a complete
and exclusive statement of the promises, representations, negotiations, discussions, and other agreements
that may have been made in connection with the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be signed and intend to be
legally bound thereby.
r"ai 71, z ? ? 47--
Independent Contract is Signature Date Independent's Contractor's Title
Signature
ire C- 10 /- !? 6, ?ta c T.S
Date Title
APPROVED BY WSCA DIRECTORS
Greg Smith, Xdm/inistrator, State of Nevada
On /,?/- /?-Z- On
(Date)
Approved as to form by:
On
/%
Deputy AttorneyDeputy Attorney GI for Attorney General Attorney General
Page 16 of 19
(Date)
(Date)
25K-18
I; SUl2rj?W,!,
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Participating Addendum
FOR THE CITY OF SANTA ANA UNDER THE
WESTERN STATES CONTRACTING ALLIANCE
WIRELESS COMMUNICATION SERVICES AND EQUIPMENT
STATE OF NEVADA MASTER AGREEMENT (RFP 1523)
A-2007-053
Scope: The City of Santa Ana (hereinafter "City") hereby elects to purchase products
and services from New Cingular Wireless National Accounts, LLC, (hereinafter
"Contractor") under the terms and conditions of the State of Nevada Master Agreement -
RFP 1523, hereinafter "Master Agreement", attached hereto and incorporated by
reference.
2. Changes: The following changes shal I be made to the Master Agreement:
Section 3, CONTRACT TERM, is modified as follows: This Agreement is effective
from the date it is fully executed until the expiration, or earlier, termination of the Master
Agreement. Contractor agrees to provide 30 days notice to City of Contractor's intent to
terminate said Master Agreement.
In the event said Master Agreement is terminated prior to the term of this Participating
Addendum, and provided City is incompliance with all terms and conditions of said
Master Agreement, Contractor will, at City's request, continue to provide service and
equipment to City under the terms and conditions stated herein for no less than 180 days
form the date of termination (the "Extension Period") in order to allow City to negotiate a
new contract for wireless service and equipment. During the Extension Period,
Contractor will provide City with the Service Discount applicable at the termination of
the Master Agreement. Both parties will be bound by the terms and conditions of this
Addendum and the Master Agreement during the Extension Period.
Primary Contact: The City of Santa Ana's primary contact for this Participating
Addendum is:
Tom Gergen
Information Services Division
City of Santa Ana
20 Civic Center Plaza (M-12)
Santa Ana, California 92701
Fax: (714) 647-5406
e-mail: tgergenoci.santa-ana.ca.us
This Addendum and the Master Agreement together with its exhibits, set forth the entire
agreement between the parties with respect to the provision of wireless communications services.
Terms and conditions inconsistent with, contrary or in addition to the terms and conditions of this
Addendum and the Master Agreement, together with its exhibits, shall not be added to or
incorporated into this Addendum or the Master Agreement and its exhibits, by any subsequent
purchase order or otherwise, and any such attempts to add or incorporate such terms and
conditions are hereby rejected. The terms and conditions of this Addendum and the Master
Agreement and its exhibits shall prevail and govern in the case of any such inconsistent or
additional terms.
Exhibit 2
25K-19
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date of execution
by both parties below.
ATTEST:
PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City Attorney oo
By::' - e?c v
Laura Sheedy
Assistant City Attorney
ITY OF SANTA ANA
XVID N. REAM
ty Manager
Date:
NEW CINGULAR WIRELESS
NATIONAL ACCOUNTS, LLC
(NAME) CC.c.'1] rYa^
(Title) ?Y'GC,(?? CI C?
Tax ID# 91-2016656
Date: -j
25K-20
For Purchasing Use Only:
RFP/CONTRACT #1523
CONTRACT FOR SERVICES OF INDEPENDENT CONTRACTOR
A Contract Between the State of Nevada
Acting By and Through Its
Various State Agencies
Monitored By: Department of Administration
Purchasing Division
515 E Musser Street, Room 300
Carson City NV 89701
Contact: Teri Smith, Senior Buyer
Phone: (775) 684- 0178 • Fax: (775) 684-0188
Email: tlsmith(a),purchasine.state nv.us
And
New Cingular Wireless National Accounts, LLC
d/b/a Cingular Wireless
11710 Beltsville Dr., Ste 200
Beltsville MA 20705
Contact: Cathleen Pryor, Director, Contracts
Phone: (301) 586-4048 9 Fax: (301) 586-4156
Email: cath-y.Pryor(a)cinsular.com
WHEREAS, NRS 284.173 authorizes elective officers, heads of departments, boards, commissions or institutions to engage,
subject to the approval of the Board of Examiners, services of persons as independent contractors; and
WHEREAS, it is deemed that the service of Contractor is both necessary and in the best interests of the State of Nevada;
NOW, THEREFORE, in consideration of the aforesaid premises, the parties mutually agree as follows:
1. REQUIRED APPROVAL. This Contract shall not become effective until and unless approved by the Nevada State Board of
Examiners.
2. DEFINITIONS. "State" means the State of Nevada and any state agency identified herein, its officers, employees and
immune contractors as defined in NRS §41.0307. "Independent Contractor" means a person or entity that performs services
and/or provides goods for the State under the terms and conditions set forth in this Contract. "Fiscal Year" is defined as the
period beginning July 1 and ending June 30 of the following year.
3. CONTRACT TERM. This Contract shall be effective upon to Board of Examiners' aoaroval (anticipated to be October
10, 2006) to October 9.2010, unless sooner terminated by either party as specified in paragraph (9).
4. NOTICE. Unless otherwise specified, termination shall not be effective until 60 calendar days after a party has served written
notice of default, or without cause upon the other party. All notices or other communications required or permitted to be given
under this Contract shall be in writing and shall be deemed to have been duly given if delivered personally in hand, by telephonic
facsimile with simultaneous regular mail, or mailed certified mail, return receipt requested, postage prepaid on the date posted,
and addressed to the other party at the address specified above.
5. INCORPORATED DOCUMENTS. The parties agree that the scope of work shall be specifically described; this Contract
incorporates the following attachments in descending order of constructive precedence; a Contractor's Attachment shall not
contradict or supersede any State specifications, terms or conditions without written evidence of mutual assent to such change
appearing in this Contract:
ATTACHMENT AA: STATE SOLICITATION (RFP #1523) and AMENDMENTS 1 & 2; SCOPE OF WORK
ATTACHMENT BB: NEGOTIATED ITEMS
ATTACHMENT CC: CONTRACTOR'S RESPONSE
Approved 05108102
Revised 08103 Page 1 of8
Exhibit 3
25K-21
6. CONSIDERATION. The parties agree that Contractor will provide the services specified in paragraph (5) at a cost of Voice
and Data Plans: 20% discount off Monthly Service Charges on plans found at the Program website
(www.cmgular.conr/cda); Equipment: 50% discount off National Contract Reference Price listed at the program website
(www.cinLFular.com/eda) with a limited selection of basic phones at no cost; Accessories: 20% discount with the total
Contract or installments payable: Monthly upon receipt of vendor statement not to exceed $2,000,000.00. The State does not
agree to reimburse Contractor for expenses unless otherwise specified in the incorporated attachments. The contractual
authority, as identified by the not to exceed amount does not obligate the State of Nevada to expend funds or purchase
goods or services up to that amount, the purchase amount will be controlled by the individual using agency's purchase
orders or other authorized means of requisition for services and/or goods as submitted to and accepted by the contractor.
Any intervening end to a biennial appropriation period shall be deemed an automatic renewal (not changing the overall Contract
term) or a termination as the results of legislative appropriation may require.
7. ASSENT. The parties agree that the terms and conditions listed on incorporated attachments of this Contract are also
specifically a part of this Contract and are limited only by their respective order of precedence and any limitations specified.
8. TIMELINESS OF BILLING SUBMISSION. The parties agree that timeliness of billing is of the essence to the contract and
recognize that the State is on a fiscal year. All billings for dates of service prior to July 1 must be submitted to the State no later
that the first Friday in August of the same year. A billing submitted after the first Friday in August, which forces the State to
process the billing as a stale claim pursuant to NRS 353.097, will subject the Contractor to an administrative fee not to exceed
$100.00. The parties hereby agree this is a reasonable estimate of the additional costs to the State of processing the billing as a
stale claim and that this amount will be deducted from the stale claim payment due to the Contractor.
9. INSPECTION & AUDIT.
a. Books and Records. Contractor agrees to keep and maintain under generally accepted accounting principles (GAAP) full,
true and complete records, contracts, books, and documents as are necessary to fully disclose to the State or United States
Government, or their authorized representatives, upon audits or reviews, sufficient information to determine compliance with
all state and federal regulations and statutes.
b. Inspection & Audit. Contractor agrees that the relevant books, records (written, electronic, computer related or otherwise),
including, without limitation, relevant accounting procedures and practices of Contractor or its subcontractors, financial
statements and supporting documentation, and documentation related to the work product shall be subject, at any reasonable
time, to inspection, examination, review, audit, and copying at any office or location of Contractor where such records may be
found, with or without notice by the State Auditor, the relevant state agency or its contracted examiners, the Department of
Administration, Budget Division, the Nevada State Attorney General's Office or its Fraud Control Units, the State Legislative
Auditor, and with regard to any federal funding, the relevant federal agency, the Comptroller General, the General Accounting
Office, the Office of the Inspector General, or any of their authorized representatives. All subcontracts shall reflect re-
quirements of this paragraph.
c. Period of Retention. All books, records, reports, and statements relevant to this Contract must be retained a minimum three
years and for five years if any federal funds are used in the Contract. The retention period runs from the date of payment for
the relevant goods or services by the State, or from the date of termination of the Contract, whichever is later. Retention time
shall be extended when an audit is scheduled or in progress for a period reasonably necessary to complete an audit and/or to
complete any administrative and judicial litigation which may ensue.
10. CONTRACT TERMINATION.
a. Termination Without Cause. Any discretionary or vested right of renewal notwithstanding, this Contract may be
terminated upon written notice by mutual consent of both parties or unilaterally by either party without cause.
b. `State Termination for Nonappropriation. The continuation of this Contract beyond the current biennium is subject to and
contingent upon sufficient funds being appropriated, budgeted, and otherwise made available by the State Legislature and/or
federal sources. The State may terminate this Contract, and Contractor waives any and all claim(s) for damages, effective
immediately upon receipt of written notice (or any date specified therein) if for any reason the Contracting Agency's funding
from State and/or federal sources is not appropriated or is withdrawn, limited, or impaired.
c. Cause Termination for Default or Breach. A default or breach may be declared with or without termination. This Contract
may be terminated by either party upon written notice of default or breach to the other party as follows:
i. If Contractor fails to provide or satisfactorily perform any of the conditions, work, deliverables, goods, or services called
for by this Contract within the time requirements specified in this Contract or within any granted extension of those time
requirements; or
ii. If any state, county, city or federal license, authorization, waiver, permit, qualification or certification required by statute,
ordinance, law, or regulation to be held by Contractor to provide the goods or services required by this Contract is for any
reason denied, revoked, debarred, excluded, terminated, suspended, lapsed, or not renewed; or
Approved 05108102
Revised 08103
Page 2 of &
25K-22
iii. If Contractor becomes insolvent, subject to receivership, or becomes voluntarily or involuntarily subject to the jurisdiction of the
bankruptcy court; or
iv. If the State materially breaches any material duty under this Contract and any such breach impairs Contractor's ability to per-
form; orv.If it is found by the State that any quid pro quo or gratuities in the form of money, services, entertainment, gifts, or
otherwise were offered or given by Contractor, or any agent or representative of Contractor, to any officer or employee of the State of
Nevada with a view toward securing a contract or securing favorable treatment with respect to awarding, extending, amending, or
making any determination with respect to the performing of such contract; or
vi. If it is found by the State that Contractor has failed to disclose any material conflict of interest relative to .the performance of this
Contract.
d. Time to Correct. Termination upon a declared default or breach may be exercised only after service of formal written notice as
specified in paragraph (4), and the subsequent failure of the defaulting party within 15 calendar days of receipt of that notice to provide
evidence, satisfactory to the aggrieved party, showing that the declared default or breach has been corrected.
e. Winding Up Affairs Upon Termination. In the event of termination of this Contract for any reason, the parties agree that the
provisions of this paragraph survive termination:
i. The parties shall account for and properly present to each other all claims for fees and expenses and pay those which are undisputed
and otherwise not subject to set off under this Contract. Neither party may withhold performance of winding up provisions solely
based on nonpayment of fees or expenses accrued up to the time of termination;
iL Contractor shall satisfactorily complete work in progress at the agreed rate (or a pro rata basis if necessary) if so requested by the
Contracting Agency;
iii. Contractor shall execute any documents and take any actions necessary to effectuate an assignment of this Contract if so requested
by the Contracting Agency,
iv. Contractor shall preserve, protect and promptly deliver into State possession all proprietary information in accordance with
paragraph (21).
11. REMEDIES. Except as otherwise provided for by law or this Contract, the rights and remedies of the parties shall not be exclusive
and are in addition to any other rights and remedies provided by law or equity, including, without limitation, actual damages, and to a
prevailing party reasonable attorneys' fees and costs. It is specifically agreed that reasonable attorneys' fees shall include without limitation
$125 per hour for State-employed attorneys. The State may set off consideration against any unpaid obligation of Contractor to any State
agency in accordance with NRS 353C.190.
12. LIIvIITED LIABILITY. The State will not waive and intends to assert available NRS chapter 41 liability limitations in all cases.
Contract liability of both parties shall not be subject to punitive damages. Liquidated damages shall not apply unless otherwise specified in
the incorporated attachments. Damages for any State breach shall never exceed the amount of funds appropriated for payment under this
Contract, but not yet paid to Contractor, for the fiscal year budget in existence at the time of the breach. Damages for any Contractor
breach shall not exceed 150% of the actual amount expended by the State. In no event shall Contractor be liable for losses, damages, or
claims arising out of use or attempted use of 911 or E911 service, nor shall Contractor be liable for inability of users to access 911 or E911
service. Not withstanding any limitation of paragraph 9, in no event shall either party be liable for any indirect, special, consequential or
incidental damages, however caused, which are incurred by the other party and which arise out of any act or failure to act relating to this
agreement, even if such party has been advised of the claim or potential claim or of the possibility of such damages, and in no event shall
either party be liable to the other for punitive damages.
13. FORCE MAJEURE. Neither party shall be deemed to be in violation of this Contract if it is prevented from performing any of its
obligations hereunder due to strikes, failure of public transportation, civil or military authority, act of public enemy, accidents, fires,
explosions, or acts of God, including, without limitation, earthquakes, floods, winds, or storms. In such an event the intervening cause
must not be through the fault of the party asserting such an excuse, and the excused party is obligated to promptly perform in accordance
with the terms of the Contract after the intervening cause ceases.
14. INDEMNIFICATION. To the fullest extent permitted by law, Contractor shall indemnify, hold harmless and defend, not excluding the
State's right to participate, the State from and against all liability, claims, actions, damages, losses, and expenses, including, without
limitation, reasonable attorneys' fees and costs, arising out of any alleged negligent or willful acts or omissions of Contractor, its officers,
employees and agents.
15. INDEPENDENT CONTRACTOR. Contractor is associated with the State only for the purposes and to the extent specified in this
Contract, and in respect to performance of the contracted services pursuant to this Contract, Contractor is and shall be an independent
contractor and, subject only to the terms of this Contract, shall have the sole right to supervise, manage, operate, control, and direct perfor-
mance of the details incident to its duties under this Contract. Nothing contained in this Contract shall be deemed or construed to create a
partnership or joint venture, to create relationships of an employer-employee or principal-agent, or to otherwise create any liability for the
State whatsoever with respect to the indebtedness, liabilities, and obligations of Contractor or any other party. Contractor shall be solely
responsible for, and the State shall have no obligation with respect to:, (1) withholding of income taxes, FICA or any other taxes or fees;
(2) industrial insurance coverage; (3) participation in any group insurance plans available to employees of the State; (4) participation or
contributions by either Contractor or the State to the Public Employees Retirement System; (5) accumulation of vacation leave or sick
leave; or (6) unemployment compensation coverage provided by the State. Contractor shall indemnify and hold State harmless from, and
defend State against, any and all
Approved O5108102
Revised 08103 Page 3 of'8
J
25K-23
losses, damages, claims, costs, penalties, liabilities, and expenses arising or incurred because of, incident to, or otherwise with
respect to any such taxes or fees. Neither Contractor nor its employees, agents, or representatives shall be considered employees,
agents, or representatives of the State. The State and Contractor shall evaluate the nature of services and term negotiated in order
to determine "independent contractor" status and shall monitor the work relationship throughout the term of the Contract to
ensure that the independent contractor relationship remains as such. To assist in determining the appropriate status (employee or
independent contractor), Contractor represents as follows:
Contractor's Initials
YES NO
1. Does the Contracting Agency have the right to require control of when, where n
and how the independent contractor is to work?
2. Will the Contracting Agency be providing training to the independent
t
t
?
C
P
con
rac
or U
-
3. Will the Contracting Agency be furnishing the independent contractor with
worker's space, equipment, tools, supplies or travel expenses?
4. Are any of the workers who assist the independent contractor in performance of
his/her duties employees of the State ofNevada?
5. Does the arrangement with the independent contractor contemplate continuing - n
or recurring work (even if the services are seasonal, part-time, or of short
duration)?
6. Will the State of Nevada incur an employment liability if the independent h
?
contractor is terminated for failure to perform? F
-
7. Is the independent contractor restricted from offering his/her services to the
general public while engaged in this work relationship with the State? (?{??
16. INSURANCE SCHEDULE. Unless expressly waived in writing by the State, Contractor, as an independent contractor and
not an employee of the State, must carry policies of insurance in amounts specified in this Insurance Schedule and pay all
taxes and fees incident hereunto. The State shall have no liability except as specifically provided in the Contract. The
Contractor shall not commence work before:
1) Contractor has provided the required evidence of insurance to the Contracting Agency of the State, and
2) The State has approved the insurance policies provided by the Contractor.
Prior approval of the insurance policies by the State shall be a condition precedent to any payment of consideration under
this Contract and the State's approval of any changes to insurance coverage during the course of performance shall constitute
an ongoing condition subsequent this Contract. Any failure of the State to timely approve shall not constitute a waiver of the
condition.
Insurance Coveraee: The Contractor shall, at the Contractor's sole expense, procure, maintain and keep in force for the
duration of the Contract the following insurance conforming to the minimum requirements specified below. Unless
specifically specified herein or otherwise agreed to by the State, the required insurance shall be in effect prior to the
commencement of work by the Contractor and shall continue in force as appropriate until the latter of:
1. Final acceptance by the State of the completion of this Contract; or
2. Such time as the insurance is no longer required by the State under the terms of this Contract.
Any insurance or self-insurance available to the State shall be excess of and non-contributing with any insurance required
from Contractor. Contractor's insurance policies shall apply on a primary basis. Until such time as the insurance is no longer
required by the State, Contractor shall provide the State with renewal or replacement evidence of insurance no less than thirty
(30) days before the expiration or replacement of the required insurance. If at any time during the period when insurance is
required by the Contract, an insurer or surety shall fail to comply with the requirements of this Contract, as soon as Contractor
has knowledge of any such failure, Contractor shall immediately notify the State and immediately replace such insurance or bond
with an insurer meeting the requirements.
Workers' Compensation and Employer's Liability Insurance
1) Contractor shall provide proof of worker's compensation insurance as required of Nevada Revised Statutes
Chapters 616A through 616D inclusive.
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Revised 08103
Page 4 of 8
25K-24
2) Employer's Liability insurance with a minimum limit of $500,000 each employee per accident for bodily injury
by accident or disease.
If this contract is for temporary or leased employees, an Alternate Employer endorsement must be attached to
the Contractor's workers' compensation insurance policy.
3) If the Contractor qualifies as a sole proprietor as defined in NRS Chapter 616A.310, and has elected to not
purchase industrial insurance for himself/herself, the sole proprietor must submit to the contracting State
agency a fully executed "Affidavit of Rejection of Coverage Under NRS 616B627 and NRS 617.210" form.
Commercial General Liability Insurance
1) Minimum Limits required:
$2,000,000.00 General Aggregate
$1,000,000.00 Products & Completed Operations Aggregate
$ Personal and Advertising Injury
$1,000,000.00 Each Occurrence
2) Coverage shall be on an occurrence basis and shall be at least as broad as ISO 1996 form CG 00 01 (or a substitute
form providing equivalent coverage); and shall cover liability arising from premises, operations, independent
contractors, completed operations, personal injury, products, civil lawsuits, Title VII actions and liability assumed
under an insured contract (including the tort liability of another assumed in a business contract).
Business Automobile Liability Insurance
1) Minimum Limit required: $ Waived Each Occurrence for bodily injury and property damage.
2) Coverage shall be for "any auto" (including owned, non-owned and hired vehicles).
The policy shall be written on ISO form CA 00 01 or a substitute providing equivalent liability coverage. If
necessary, the policy shall be endorsed to provide contractual liability coverage.
Professional Liability Insurance
1) Minimum Limit required: $ Waived Each Claim
2) Retroactive date: Prior to commencement of the performance of the contract
3) Discovery period: Three (3) years after termination date of contract.
4) A certified copy of this policy may be required.
Umbrella or Excess Liability Insurance
1) May be used to achieve the above minimum liability limits.
2) Shall be endorsed to state it is "As Broad as Primary Policy"
Commercial Crime Insurance
Minimum Limit required: Waived Per Loss for Employee Dishonesty
This insurance shall be underwritten on a blanket form amending the definition of "employee" to include all employees
of the Vendor regardless of position or category.
Performance Security
Amount required: Waived
1) Security may be in the form of surety bond, Certificate of Deposit or Treasury Note payable to the State of
Nevada, only.
2) The security shall be deposited with the contracting State agency no later than ten (10) working days following
award of the Contract to Contractor.
3) Upon successful Contract completion, the security and all interest earned, if any, shall be returned to the
Contractor.
General. Requirements:
a. Additional Insured: By endorsement to the general liability insurance policy evidenced by Contractor, The State of
Nevada, Department of Administration, its officers, employees and immune contractors as defined in NRS41.0307.
shall be named as additional insured for all liability arising from the Contract.
b. Waiver of Subrogation: Each liability insurance policy shall provide for a waiver of subrogation as to additional
insured.
c. Cross-Liability: All required liability policies shall provide cross-liability coverage as would be achieve under the
standard ISO separation of insured cause.
Approved 05108102
Revised 08103 Page 5 of 8
25K-25
d. Deductibles and Self-Insured Retentions: Insurance maintained by Contractor shall apply on a first dollar basis without
application of a deductible or self-insured retention unless otherwise specifically agreed to by the State. Such approval
shall not relieve Contractor from the obligation to pay any deductible or self-insured retention. Any deductible or self-
insured retention shall not exceed $5,000 per occurrence, unless otherwise approved by the Risk Management
Division.
e. Policy Cancellation: Except for ten days notice for non-payment of premium, each insurance policy shall be endorsed
to state that; without thirty (30) days prior written notice to the State of Nevada, c/o Contracting Agency, the policy
shall not be canceled, non-renewed or coverage and /or limits reduced or materially altered, and shall provide that
notices required by this paragraph shall be sent by certified mailed to the address shown below.
f. Approved Insurer. Each insurance policy shall be:
1) Issued by insurance companies authorized to do business in the State of Nevada or eligible surplus lines insurers
acceptable to the State and having agents in Nevada upon whom service of process may be made, and
2) Currently rated by A.M. Best as "A- VII" or better.
Evidence of Insurance:
Prior to the start of any Work, Contractor must provide the following documents to the contracting State agency:
1) Certificate of Insurance: The Acord 25 Certificate of Insurance form or a form substantially similar must be submitted
to the State to evidence the insurance policies and coverage required of Contractor.
2) Additional Insured Endorsement: An Additional Insured Endorsement (CG20 10 or C20 26) , signed by an authorized
insurance company representative, must be submitted to the State to evidence the endorsement of the State as an additional
insured per General Reouirements. Subsection a above.
3) Schedule of Underlying Insurance Policies: If Umbrella or Excess policy is evidenced to comply with minimum limits,
a copy of the Underlying Schedule from the Umbrella or Excess insurance policy may be required.
Review and Approval: Documents specified above must be submitted for review and approval by the State prior to the
commencement of work by Contractor. Neither approval by the State nor failure to disapprove the insurance famished by
Contractor shall relieve Contractor of Contractor's full responsibility to provide the insurance required by this Contract.
Compliance with the insurance requirements of this Contract shall not limit the liability of Contractor or its sub-
contractors, employees or agents to the State or others, and shall be in addition to and not in lieu of any other remedy
available to the State under this Contract or otherwise. The State reserves the right to request and review a copy of any
required insurance policy or endorsement to assure compliance with these requirements.
Mail all required insurance documents to the Contracting Agency identified on page one of the contract
17. COMPLIANCE WITH LEGAL OBLIGATIONS. Contractor shall procure and maintain for the duration of this Contract
any state, county, city or federal license, authorization, waiver, permit, qualification or certification required by statute,
ordinance, law, or regulation to be held by Contractor to provide the goods or services required by this Contract. Contractor will
be responsible to pay all taxes, assessments, fees, premiums, permits, and licenses required by law. Real property and personal
property taxes are the responsibility of Contractor in accordance with NRS 361.157 and 361.159. Contractor agrees to be
responsible for payment of any such government obligations not paid by its subcontractors during performance of this Contract.
The State may set-off against consideration due any delinquent government obligation in accordance with NRS 353C.190.
18. WAIVER OF BREACH. Failure to declare a breach or the actual waiver of any particular breach of the Contract or its
material or nonmaterial terms by either party shall not operate as a waiver by such party of any of its rights or remedies as to any
other breach.
19. SEVERABILITY. If any provision contained in this Contract is held to be unenforceable by a court of law or equity, this
Contract shall be construed as if such provision did not exist and the nonenforceability of such provision shall not be held to
render any other provision or provisions of this Contract unenforceable.
20. ASSIGNMENT/DELEGATION. This Agreement may not be assigned by either party without the prior written consent of
the other and such consent will not be unreasonably withheld. However, either party may, without the other party's consent,
assign this Agreement to an Affiliate or to any entity that acquires substantially all of the party's business or stock and Cingular
may assign its right to receive payments hereunder. An assignment of Cingular's rights shall not relieve Cingular of it's
obligations to the State. Subject to the foregoing, this Agreement will be binding upon the assignees of the respective parties.
21. STATE OWNERSHIP OF PROPRIETARY INFORMATION. Any reports, histories, studies, tests, manuals, instructions,
photographs, negatives, blue prints, plans, maps, data, system designs, computer code (which is intended to be consideration
under the Contract), or any other documents or drawings, prepared or in the course of preparation by Contractor (or its
Approved 05108102
Revised 08103 Page 6 of 8
25K-26
subcontractors) in performance of its obligations under this Contract shall be the exclusive property of the State and all such
materials shall be delivered into State possession by Contractor upon completion, termination, or cancellation of this Contract
Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than performance of
Contractor's obligations under this Contract without the prior written consent of the State. Notwithstanding the foregoing, the
State shall have no proprietary interest in any materials licensed for use by the State that are subject to patent, trademark or
copyright protection.
22. PUBLIC RECORDS. Pursuant to NRS 239.010, information or documents received from Contractor may be open to public
inspection and copying. The State will have the duty to disclose unless a particular record is made confidential by law or a
common law balancing of interests. Contractor may label specific parts of an individual document as a "trade secret" or
"confidential" in accordance with NRS 333.333, provided that Contractor thereby agrees to indemnify and defend the State for
honoring such a designation. The failure to so label any document that is released by the State shall constitute a complete waiver
of any and all claims for damages caused by any release of the records.
23. CONFIDENTIALITY. Contractor shall keep confidential all information, in whatever form, produced, prepared, observed
or received by Contractor to the extent that such information is confidential by law or otherwise required by this Contract
24. FEDERAL FUNDING. In the event federal hinds are used for payment of all or part of this Contract:
a. Contractor certifies, by signing this Contract, that neither it nor its principals are presently debarred, suspended, proposed
for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or
agency. This certification is made pursuant to the regulations implementing Executive Order 12549, Debarment and
Suspension, 28 C.F.R. pt 67, § 67.510, as published as pt VII of the May 26, 1988, Federal Register (pp. 19160-19211), and
any relevant program-specific regulations. This provision shall be required of every subcontractor receiving any payment in
whole or in part from federal funds.
b. Contractor and its subcontractors shall comply with all terms, conditions, and requirements of the Americans with
Disabilities Act of 1990 (P.L. 101-136), 42 U.S.C. 12101, as amended, and regulations adopted thereunder contained in 28
C.F.R. 26.101-36.999, inclusive, and any relevant program-specific regulations.
c. Contractor and its subcontractors shall comply with the requirements of the Civil Rights Act of 1964, as amended, the
Rehabilitation Act of 1973, P.L. 93-112, as amended, and any. relevant program-specific regulations, and shall not
discriminate against any employee or offeror for employment because of race, national origin, creed, color, sex, religion, age,
disability or handicap condition (including AIDS and AIDS-related conditions.)
25. LOBBYING The parties agree, whether expressly prohibited by federal, State or local law, or otherwise, that no funding
associated with this contract will be used for any purpose associated with or related to lobbying or influencing or attempting to
lobby or influence for any purpose the following:
a. Any federal, state, county or local agency, legislature, commission, counsel or board;
b. Any federal, state, county or local legislator, commission member, counsel member, board member, or other elected
official; or
c. Any officer or employee of any federal; state, county or local agency; legislature, commission, counsel or board.
26. WARRANTIES.
a. General Warranty. Contractor warrants that all services, deliverables, and/or work product under this Contract shall be
completed in a workmanlike manner consistent with standards in the trade, profession, or industry.
b. System Compliance. Contractor warrants that any information system application(s) shall not experience abnormally
ending and/or invalid and/or incorrect results from the application(s) in the operating and testing of the business of the State.
This warranty includes, without limitation, century recognition, calculations that accommodate same century and multicentrny
formulas and data values and date data interface values that reflect the century. Pursuant to NRS 41.032 1, the State is immune
from liability due to any failure of any incorrect date being produced, calculated or generated by a computer or other
information system.
27. PROPER AUTHORITY. The parties hereto represent and warrant that the person executing this Contract on behalf of each
party has full power and authority to enter into this Contract. Contractor acknowledges that as required by statute or regulation
this Contract is effective only after approval by the State Board of Examiners and only for the period of time specified in the
Contract. Any services performed by Contractor before this Contract is effective or after it ceases to be effective are performed
at the sole risk of Contractor.
28. GOVERNING LAW: JURISDICTION. This Contract and the rights and obligations of the parties hereto shall be governed
by, and construed according to, the laws of the State of Nevada, without giving effect to any principle of conflict-of-law that
would require the application of the law of any other jurisdiction. The parties consent to the jurisdiction of the First Judicial
District Court, Carson City, Nevada for enforcement of this Contract.
29. ENTIRE CONTRACT AND MODIFICATION. This Contract and its integrated attachment(s) constitute the entire
agreement of the parties and such are intended as a complete and exclusive statement of the promises, representations, nego-
Approved 05/08102
Revised 08103 Page 7 of 8
25K-27
tiations, discussions, and other agreements that may have been made in connection with the subject matter hereof. Unless an
integrated attachment to this Contract specifically displays a mutual intent to amend a particular part of this Contract, general
conflicts in language between any such attachment and this Contract shall be construed consistent with the terms of this Contract.
Unless otherwise expressly authorized by the terms of this Contract, no modification or amendment to this Contract shall be
binding upon the parties unless the same is in writing and signed by the respective parties hereto and approved by the Office of
the Attorney General and the State Board of Examiners.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be signed and intend to be legally bound thereby.
ag
-D l g6c I-o F21 C4V r RAC-TS
Independents Contractor's Title
Administrator. Purchasing Division
Title
APPROVED BY BOARD OF EXAMINERS
Approved as to form by:
E o- A L
Deputy Attorney General for Attorney General
Approved 05108101
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Gn ID-to-*
(Date)
on 7-19-0("
(Date)
Page 8 0f8
25K-28
Signature - Board of Examiners
ATTACHMENT BB
NEGOTIATED ITEMS
Quarterly Reports: In the event contractor fails to submit a completed Quarterly
Administrative Report pursuant to the dates referenced in Attachment F of the RFP,
contractor will be subject to a performance guarantee penalty of one hundred ($100.00)
dollars.
2. Cost Proposal:
o Public Safety Unlimited Data rate plan of $49.99 is exempt from further
discounting.
o Cingular reserves the right to exempt exclusive devices and rate plan offers
from discounting until they become commonly available.
o Promotions vary and cannot be combined with contracted discounts.
o Cingular will only provide Equipment with Service activated. The
Equipment Discount will not apply to upgrade purchases and may not be
combined with any other equipment offer.
Participating Addendums: Participating Addendums to Master Service Agreement No.
10-00115 shall survive the assignment from the Original Lead. State to the Assigned Lead
State, and upon the required approval as specified in paragraph 1, shall be effective
subject to the terms and conditions of the contracts entered into as a result of State of
Nevada RFP 1523. Once the contracts entered into as a result of State of Nevada RFP
1523 become effective, each Participating Entity shall have the option of negotiating a
new participating addendum, or continuing to participate under the existing Participating
Addendum.
4. WSCA Special Terms and Conditions: The WSCA Special Terms and Conditions are
hereby excluded from the State's Solicitation (RFP 1523); Scope of Work. The State will
negotiate the WSCA Special Terms and Conditions on behalf of participating entities and
upon final negotiations will incorporate the Terms and Conditions through an amendment
to the contract. Participating entities may negotiated or include additional terms and
conditions through a Participating Addendum (PA) individually with the contractor.
5. Contractor's Response: Contractor's exceptions.to RFP No. 1523 as enumerated in
Attachment B shall not supplement, contradict or supersede any State specifications, terms
or conditions without written evidence of mutual assent to such change appearing in this
Contract; any exceptions to the State's standard contract listed in the Contractor's
Response to RFP No. 1523 are not a part of this Contract unless otherwise mutually
agreed upon and incorporated in the State's standard contract form as executed by
Cingular. .
Contractor's Initia s
Agency Initials AR
Agency
Attachment DD
Standard Contract Terms and Conditions
Western States Contracting Alliance
Note: Although some of the following terms and conditions are duplicates of the standard State
of Nevada terms and conditions, they are required by the WSCA by-laws.
PARTICIPANTS: Western States Contracting Alliance (herein WSCA) is a cooperative group-
contracting consortium for state government departments, institutions, agencies and political
subdivisions (i.e., colleges, school districts, counties, cities, etc.,) for the states of Alaska, Arizona,
California, Colorado, Hawaii, Idaho, Minnesota,. Montana, Nevada, New Mexico, Oregon, South
Dakota, Utah, Washington and Wyoming. Obligations under this contract are limited to those
Participating States who have signed (and not revoked) an Intent to Contract at the time of award, or
who have executed a Participating Addendum where contemplated by the solicitation. Financial
obligations of Participating States are limited to the orders placed by the departments or other state
agencies and institutions having available funds. Participating States incur no financial obligations
on behalf of political subdivisions. Unless otherwise specified in the solicitation, the resulting
award(s) will be permissive.
QUANTITY ESTIMATES: WSCA does not guarantee to purchase any amount under the contract
to be awarded. Estimated quantities are for bidding purposes only and are not to be construed as a
guarantee to purchase any amount.
SPECIFICATIONS: Any deviation from specifications must be clearly indicated by vendor;
otherwise, it will be considered that the bid is in strict compliance. When BRAND NAMES or
manufacturers' numbers are stated in the specifications they are intended to establish a standard only
and are not restrictive unless the bid states "No substitute". Bids will be considered on other makes,
models or brands having comparable quality, style, workmanship and performance characteristics.
Alternate bids offering lower quality or inferior performance will not be considered.
ACCEPTANCE OR REJECTION OF BIDS: WSCA reserves the right to accept or reject any or
all bids or parts of bids, and to waive informalities therein.
BID SAMPLES: Generally, when required, samples will be specifically requested in the bid
invitation. Samples, when required, are to be furnished free of charge. Except for those samples
destroyed or mutilated in testing, samples will be returned at a vendor's request, transportation
collect.
CASH DISCOUNT TERMS: Vendor may quote a cash discount based upon early payment;
however, discounts offered for less than 30 days will not be considered in making the award. The
date from which discount time is calculated shall be the date a correct invoice is received or receipt
of shipment, whichever is later; except that if testing is performed, the date shall be the date of
acceptance of the merchandise.
25K-30
TAXES: Bid prices shall be exclusive of state sales and federal excise taxes. Where the state
government entities are not exempt from sales taxes on sales within their state, the contractor shall
add the sales taxes on the billing invoice as a separate entry.
MODIFICATION OR WITHDRAWAL OF BIDS: Bids may be modified or withdrawn prior to
the time set for the opening of bids. After the time set for the opening of bids no bid may be
modified or withdrawn.
PATENTS, COPYRIGHTS, ETC.: The Contractor shall release, indemnify and hold the Buyer, its
officers, agents and employees harmless from liability of any kind or nature, including the
Contractor's use of any copyrighted or uncopyrighted composition, secret process, patented or
unpatented invention, article or appliance furnished or used in the performance of this contract.
AWARD: The award will be made to the lowest responsive and responsible vendor meeting
specifications and all bid terms and conditions. Unless stated in the bid requirements or special
terms and conditions, WSCA reserves the right to award items separately or by grouping items, or by
total lot.
NON-COLLUSION: By signing the bid the vendor certifies that the bid submitted, has been
arrived at independently and has been submitted without collusion with, and without any agreement,
understanding or planned common course of action with, any other vendor of materials, supplies,
equipment or services described in the invitation to bid, designed to limit independent bidding or
competition.
CANCELLATION: Unless otherwise stated in the special terms and conditions, any contract
entered into as a result of this bid may be canceled by either party upon 60 days notice, in writing,
prior to the effective date of the cancellation. Further, any Participating State may cancel its
participation upon 30-days written notice, unless otherwise limited or stated in the special terms and
conditions of the solicitation. Cancellation may be in whole or in part. Any cancellation under this
provision shall not effect the rights and obligations attending orders outstanding at the time of
cancellation, including any right of any Purchasing Entity to indemnification by the Contractor,
rights of payment for goods/services delivered and accepted, and rights attending any warranty or
default in performance in association with any order. Cancellation of the contract due to Contractor
default may be immediate.
DEFAULT AND REMEDIES: Any of the following events shall constitute cause for WSCA to
declare Contractor in default of the contract: 1. Nonperformance of contractual requirements; 2. A
material breach of any term or condition of this contract WSCA shall issue a written notice of
default providing a period in which Contractor shall have an opportunity to cure. Time allowed for
cure shall not diminish or eliminate Contractor's liability for liquidated or other damages. If the
default remains, after Contractor has been provided the opportunity to cure, WSCA may do one or
more of the following: 1. Exercise any remedy provided by law; 2. Terminate this contract and any
related contracts or portions thereof; 3. Impose liquidated damages; 4. Suspend contractor from
receiving future bid solicitations.
Attachment DD - Page 2 of 15
25K-31
LAWS AND REGULATIONS: Any and all supplies, services and equipment bid and furnished shall
comply fully with all applicable Federal and State laws and regulations.
CONFLICT OF TERMS: In the event of any conflict between these standard terms and conditions and
any special terms and conditions contained in a Participating Addendum, the special terms and
conditions of such Participating Addendum shall govern. The terms and conditions of the Contract for
Services of Independent Contractor between the State of Nevada and contractor do not apply to
Participating Entities, with the exception of those terms and conditions specific to the administration of
the WSCA wireless contract.
REPORTS: The contractor shall submit quarterly reports to the WSCA Contract Administrator
showing the quantities and dollar volume of purchases by each agency.
HOLD HARMLESS: The contractor shall release, protect, indemnify and hold WSCA and the
respective states and their officers, agencies, employees, harmless from and against any damage, cost or
liability, including reasonable attorney's fees for any or all injuries to persons, property or claims for
money damages arising from acts or omissions of the contractor, his employees or subcontractors or
volunteers. Contractor shall not be liable for damages that are the result of negligence or willful
misconduct by the Participating Entity, its respective agencies, and/or its respective employees.
LIMITED LIABILITY: Contract liability of both contractor and Participating Entity shall not be
subject to punitive damages. In no event shall contractor be liable for inability of users to access 911 or
E911 service. In no event shall either contractor or Participating Entity be liable for any indirect,
special, consequential or incidental damages, however caused, which are incurred by the other party and
which arise out of a any act or failure to act relating to this agreement, even if such party has been
advised of the claim or potential claim or of the possibility of such damages, and in no event shall either
party be liable to the other party for punitive damages.
ORDER NUMBERS: Contract order and purchase order numbers shall be clearly shown on all
acknowledgments, shipping labels, packing slips, invoices, and on all correspondence.
GOVERNING LAW AND VENUE: This procurement shall be governed and the resulting contract(s)
construed in accordance with the laws of Nevada. The construction and effect of any Participating
Addendum or order against the contract(s)shall be governed by and construed in accordance with the
laws of the Purchasing Entity's State. Venue for any claim, dispute or action concerning the
construction and effect of the contract(s) shall be in the Lead State. Venue for any claim, dispute or
action concerning an order placed against the contract(s) or the effect of a Participating Addendum or
shall be in the Purchasing Entity's State.
DELIVERY: The prices bid shall be the delivered price to any WSCA state agency or political
subdivision. All deliveries shall be F.O.B. destination with all transportation and handling charges paid
by the contractor. Responsibility and liability for loss or damage shall remain the Contractor until final
inspection and acceptance when responsibility shall pass to the Buyer except as to latent defects, fraud
and Contractor's _ warranty obligations. The. minimum shipment amount will be found in the special
terms and conditions. Any order for less than the specified amount is to be shipped with the freight
Attachment DD - Page 3 of 15
25K-32
prepaid and added as a separate item on the invoice. Any portion of an order to be shipped without
transportation charges that is back ordered shall be shipped without charge.
WARRANTY:
a. General Warranty. Contractor warrants that all services, deliverables, and/or work product
under this Contract shall be completed in a workmanlike manner consistent with standards in the trade,
profession, or industry.
b. System Compliance. Contractor warrants that any information system application(s) shall
not experience abnormally ending and/or invalid and/or incorrect results from the application(s) in the
operating and testing of the business of the State. This warranty includes, without limitation, century
recognition, calculations that accommodate same century and multicentury formulas and data values and
date data interface values that reflect the century. Pursuant to NRS 41.0321, the State is immune from
liability due to any failure of any incorrect date being produced, calculated or generated by a computer or
other information system.
AMENDMENTS: The. terms of this contract shall not be waived, altered, modified, supplemented or
amended in any manner whatsoever without prior written approval of the WSCA Contract
Administrator.
ASSIGNMENT/SUBCONTRACT: To the extent that any as of any right under this Contract
changes the duty of either party, increases the burden or risk involved, impairs the chances of obtaining the
performance of this Contract, attempts to operate as a novation, or includes a waiver or abrogation of any
defense to payment by State, such offending portion of the assignment shall be void, and shall be a breach
of this Contract. 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 Contractor may
assign this contract to any parent, subsidiary or affiliate of Contractor or to any purchaser of all or
substantially all its assets upon written notification to Customer.
NONDISCRIMINATION: The vendor agrees to abide by the provisions of Title VI and Title VII of
the Civil Rights Act of 1964 (42 USC 2000e), which prohibit discrimination against any employee or
applicant for employment, or any applicant or recipient of services, on the basis of race, religion, color,
or national origin; and further agrees to abide by Executive Order No. 11246, as amended, which
prohibits discrimination on basis of sex; 45 CPR 90 which prohibits discrimination on the basis of age,
and Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990 which
prohibits discrimination on the basis of disabilities. The vendor further agrees to famish information
and repots to requesting State(s), upon request, for the purpose of determining compliance with these
statutes. Vendor agrees to comply with each individual state's certification requirements, if any, as
stated in the special terms and conditions. This contract may be canceled if the vendor fails to comply
with the provisions of these laws and regulations. The vendor must include this provision in very
subcontract relating to purchases by the States to insure that subcontractors and vendors are bound by
this provision.
SEVERABILITY: If any provision of this contract is declared by a court to be illegal or in conflict
with any law, the validity of the remaining terms and provisions shall not be affected; and the rights and
Attachment DD - Page 4 of 15
25K-33
obligations of the parties shall be construed and enforced as if the contract did not contain the particular
provision held to be invalid.
INSPECTIONS: Goods furnished under this contract shall be subject to inspection and test by the
Buyer at times and places determined by the Buyer. If the Buyer finds goods furnished to be incomplete
or in compliance with bid specifications, the Buyer may reject the goods and require Contractor to either
correct them without charge or deliver them at a reduced price, which is equitable under the
circumstances. If Contractor is unable or refuses to correct such goods within a time deemed reasonable
by the Buyer, the Buyer may cancel the order in whole or in part. Nothing in this paragraph shall
adversely affect the Buyer's rights including the rights and remedies associated- with revocation of
acceptance under the Uniform Commercial Code.
PAYMENT: Payment for completion of a contract is normally made within 30 days following the date
the entire order is delivered or the date a correct invoice is received, whichever is later. After 45 days
the Contractor may assess overdue account charges up to a maximum rate of one percent per month on
the outstanding balance. Payments will be remitted by mail. Payments may be made via a State or
political subdivision "Purchasing Card".
FORCE MAJEURE: Neither party to this contract shall be held responsible for delay or default caused
by fire, riot, acts of God and/or war, which is beyond that party's reasonable control. WSCA may
terminate this contract after determining such delay or default will reasonably prevent successful
performance of the contract.
HAZARDOUS CHEMICAL INFORMATION: The Contractor will provide one set of the
appropriate material safety data sheet(s) and container label(s) upon delivery of a hazardous material to
the user agency. All safety data sheets and labels will be in accordance with each participating state's
requirements.
FIRM PRICE: Unless otherwise stated in the special terms and conditions, for the purpose of award,
offers made in accordance with this solicitation must be good and firm for a period of ninety (90) days
from the date of bid opening. Bid prices must remain firm for the full term of the contract.
EXTENSION OF PRICES: In the case of error in the extension of prices in the bid, the unit prices will
govern.
BID PREPARATION COSTS: WSCA is not liable for any costs incurred by the vendor in proposal
preparation.
CONFLICT OF INTEREST: Contractor certifies that it has not offered or given any gift or
compensation prohibited by the state laws of any WSCA participants to any officer or employee of
WSCA or participating sates to secure favorable treatment with respect to being awarded this contract.
INDEPENDENT CONTRACTOR: Contractor shall be an independent contractor, and as such shall
have no authorization, express or implied to bind WSCA or the respective states to any agreements,
settlements, liability or understanding whatsoever, and agrees not to perform any acts as agent for
WSCA or the states, except as expressly set forth herein.
Attachment DD - Page 5 of 15
25K-34
POLITICAL SUBDIVISION PARTICIPATION: Participation under this contract by political
subdivisions (i.e., colleges, school districts, counties, cites, etc.,) of the WSCA participating states shall
be voluntarily determined by the political subdivision. The contractor agrees to supply the political
subdivisions based upon the same terms, conditions and prices.
DEBARMENT: The CONTRACTOR certifies that neither it nor its principals are presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in
this transaction (contract) by any governmental department or agency. If the CONTRACTOR cannot
certify this statement, attach a written explanation for review by WSCA.
RECORDS ADMINISTRATION: The contractor will maintain, or supervise the maintenance of all
records necessary to properly account for the payments made to the contractor for costs authorized by
this contract. These records will be retained by the contractor for at least four years after the contract
terminates, or until all audits initiated within the four years have been completed, whichever is later.
AUDIT OF. RECORDS: The contractor agrees to allow WSCA, State and Federal auditors, and state
agency staff access to all the records to this contract, for audit and inspection, and monitoring of
services. Such access will be during normal business hours, or by appointment.
PROGRAM DESCRIPTION: Service will be provided by contractor in accordance with the Program
Description and related Attachments, attached hereto as Exhibits "A" through "C". Participating Entities
acknowledge and agree that the Program Description and related Attachments may be modified by
Contractor from time to time with the prior approval of the WSCA Contract Administrator, which shall
not be unreasonably withheld.
Signed By:
1111&la6
New Cingular Wir ess ational Accounts, LLC Date
State of Nevada, ehalf of WSCA
Attachment DD - Page 6 of 15
Y
Date
25K-35
EXHIBIT "A"
PROGRAM DESCRIPTION
1. Service and Service Discount. Contractor, through its Carriers, will provide Service to
authorized Participating Entities and their respective CRUs and IRUs.
1.1 Service Discount. Contractor will provide Participating Entities' CRUs with an MSC Service
Discount of twenty percent (20%). Contractor will provide Participating Entities' IRUs with an MSC Service
Discount of twelve percent (12%); provided, however, that IRUs (a) receiving Service under Participating
Addenda executed on or before December 31, 2006; and (b) that activated Service on or before December
31, 2006, will be provided an MSC Service Discount of fifteen percent (15%). Contractor may restrict certain
Plans or certain other discount programs from qualifying for the Service Discount, and it will advise SNDP
when such restrictions apply.
1.1.1 Restrictions. Contractor will not apply the MSC Service Discount to: (a) other
monthly service charges such as monthly recurring charges for features; and/or (b) any other charges under
the Agreement.
2. Equipment and Accessories. Subject to the restrictions set forth in this §2, Contractor will
provide Participating Entities with an Equipment Discount of 50% off the prices of select Equipment found at
the "Equipment" page found at the Program Website, as may be modified by Contractor from time to time.
Contractor will only provide Equipment with Service activated. The Equipment Discount will not apply to
upgrade purchases and may not be combined with any other equipment offer.
3. Financial Responsibility.
3.1 Participating Entities. Participating Entities must pay for all charges incurred by CRUs
under their corresponding Participation Addendum. Participating Entities are not liable for any charges
incurred by IRUs.
3.2 Contractor. Contractor will pay the applicable WSCA Administration Fees associated with
End Users on Service in connection with the Master Agreement, regardless of whether such End Users are
CRUs or IRUs.
4. Billing Services. Each Participating Entity will receive certain billing analysis tools using WIN
Advantage@ software.
5. Payment and Charges.
5.1 Payment. Participating Entities must pay all Service charges incurred in accordance
with Plans, including, without limitation, charges for airtime, recurring monthly access (or monthly service),
activation, features, voice mail access, voice mail delivery, data usage, text and multi-media messages,
downloadables, alerts, roaming, long distance, directory and operator assistance, Equipment, premium
content, and charges for other goods and services that are charged through Participating Entities' or CRUs'
bill(s). Participating Entities may be billed for multiple types of usage simultaneously. Participating Entities
must also pay Taxes and any license fees, late payment fees, and any Regulatory Cost Recovery
Fee/Regulatory Programs Fee. For any termination (including when a Number is switched to another
carrier), Participating Entity will be responsible for payment of all fees and charges through the end of the
billing cycle in which termination occurs. Payment is due upon receipt of the invoice. Monthly service and
certain other charges for Service using the Cingular Wireless network and related systems are billed in
advance, and there is no proration of such charges if Service is terminated on other than the last day of the
applicable billing cycle. Monthly service and certain other charges for Service using the former AT&T
Attachment DD - Page 7 of 15
25K-36
Wireless network and related acquired systems are billed in arrears. In either case, to the extent
Participating Entity receives invoices for Service combined with a landline phone bill (where available),
Participating Entity will be billed in advance as provided above.
5.1.1 Taxes. Taxes include any applicable sales, public utilities, gross receipts, or
other taxes, surcharges, fees and assessments imposed by governments (regardless of whether they are
imposed on a Participating Entity, CRU, Contractor or a Carrier) including, without limitation, assessments to
defray costs for government programs such as universal connectivity, enhanced 911 service, local number
portability, and number pooling relating to Service, Equipment, goods or services purchased, and/or the
wireless network.
5.1.2 Participating Entities Tax-Exempt Status. Contractor acknowledges that in
certain instances Participating Entities may be tax-exempt. Contractor will accord the proper tax-exempt
status to each Participating Entity that properly establishes such status. Notwithstanding this tax-exempt
status, each Participating Entity must pay any Taxes not covered by its tax-exempt status.
5.1.3 Regulatory Cost Recovery Fee/Regulatory Programs Fee. In addition to
other charges, Contractor may assess a Regulatory Cost Recovery Fee/Regulatory Programs Fee, which is
a monthly charge with respect to each CRU, that is created, assessed and collected by Contractor to help
defray Contractor's costs for compliance with various regulatory requirements which include, but are not
limited to, the capability to provide wireless number portability, number pooling and 911 enhancements in
Cingular Wireless' network. Some of these programs may not yet be available to Participating Entities or
End Users. The Regulatory Cost Recovery Fee/Regulatory Programs Fee is not a tax or government
required charge. Contractor may change the amount of the Regulatory Cost Recovery Fee/Regulatory
Programs Fee without notice.
5.2 Charges.
5.2.1 Generally. Unless otherwise provided in the corresponding Sales Information,
if a selected Plan includes a predetermined allotment of services (for example, a predetermined amount of
airtime, data, megabytes or text messages), any unused allotment of such services from one billing cycle
will not carry over to any other billing cycle. Service may be billed in -a subsequent month due to delayed
reporting between Carriers and will be charged as if used in the month billed. Billing cycle end dates may
change from time to time. When a billing cycle covers less than or more than a full month, Contractor may
make reasonable adjustments and prorations. Service charges may differ by Service Area. Contractor's
additional products and services may incur charges in a different manner than set forth herein, and
Contractor will advise SNDP of any such differences in the corresponding Sales Information.
5.2.2 Voice Service Charges. On all Contractor networks, Voice Service on each
call is billed in full minute increments, with partial minutes of use rounded up to the next full minute.
Contractor will charge 800, 866, 877, 888 and other "toll free" calls at domestic airtime or roaming rates.
Puerto Rico residents will be billed for these calls based on the corresponding Plan, feature(s) and/or
promotion. If an incoming call has been forwarded to another Number, Participating Entities will be charged
for the entire time that Contractor's switch handles the call. Calls that begin in one rate period and end in
another rate period may be billed in their entirety at the rates for the period in which the call began. All
outgoing calls on the Contractor's network for which Contractors systems receive answer supervision or
which have at least thirty (30) seconds of airtime or other measured usage shall incur a minimum of one (1)
minute airtime charge. Answer supervision is generally received when a call is answered; however, answer
supervision may also be generated by voice mail systems, private branch exchanges, and interexchange
switching equipment. Airtime and other measured usage may (a) include time for Contractor to recognize
that only one party has disconnected from the call, time to clear the channels in use, and ring time, and (b)
Attachment DD - Page 8 of 15
25K-37
occur from other uses of our facilities, including by way of example, voice mail deposits and retrievals, and
call transfers.
5.2.3 Wireless Data Service Charges. Wireless Data Service will be calculated
and billed in full kilobyte increments. One kilobyte equals 1024 bytes. One megabyte equals 1024 kilobytes.
Utilizing compression solutions may or may not impact the amount of kilobytes for which a Participating
Entity is billed. Wireless Data Service usage for each billing record will be rounded up to the next kilobyte
and the charge will be rounded up to the nearest cent. Participating Entity is responsible for all Wireless
Data Service usage sent through Contractor's network and associated with Equipment regardless of
whether the Equipment actually receives the information. Network overhead, software update requests, and
resend requests caused by network errors can increase measured kilobytes. If a Participating Entity or a
CRU chooses to connect Equipment to a PC for use as a wireless modem, standard Wireless Data Service
charges will apply in accordance with the corresponding Plan. Wireless Data Service usage is compiled as
often as once per hour or only once every 24 hours. Contractor's system will then create a billing record
representing (a) the Wireless Data Service usage for each data gateway or service accessed (e.g. WAP,
RIM) while on Contractor's network; (b) the usage for each Carrier's domestic network; and (c) the Wireless
Data Service usage for each international network. In some situations billing for Wireless Data Service
usage may be delayed; any delayed usage will create additional billing records for the actual day of the
usage.
6. Plans. Participating Entities may choose from Plans found in the Program Website, as may be
modified by Contractor from time to time. All Plans are subject to their terms and conditions set forth in their
corresponding brochures and related materials, all of which are incorporated into the Master Agreement by
this reference. Each Participating Entity must comply with all of the terms and conditions related to the
Plans. Rates, terms and conditions are subject to change. Any provisions in the terms and conditions
governing the Plans, which, by their terms, are to exist for a specified period of time, will survive any
termination or expiration of the Master Agreement.
7. Resale and Other Prohibited Uses. Participating Entities and their respective End Users are not
permitted to resell, reproduce, retransmit, or disseminate Service or any other program components to third
parties whether directly or indirectly including, without limitation, through machine to machine transmissions.
8. Employee Benefit Program. Participating Entities Employees may participate in the Employee
Benefit Program. All such Employees participating in the Employee Benefit Program will be IRUs under the
Master Agreement. Participating Entities acknowledge and agree that Employees must be validated in
order to participate in the Employee Benefit Program, and that any Employees not so validated will not be
IRUs under the Master Agreement and will not receive corresponding program benefits.
8.1 Employee Benefit Program Activation Processes and Procedures. Each IRU
participating in the Employee Benefit Program: (a) must enter into, and be individually responsible for
complying with a two-year IRU Service Agreement including, without limitation, the corresponding
obligations to comply with all of the terms and conditions of the chosen Plan and to pay all charges incurred
under the IRU Service Agreement; and (b) must follow the activation, validation, migration, upgrade and
related policies, procedures and processes established by Contractor from time to time.
8.2 Employee Benefit Program Features. Under the Employee Benefit Program:
(a) IRUs may choose from select Service Plans available to Participating Entities within each Cingular
Market (provided they qualify for the chosen Plan); (b) IRUs will receive the MSC Service Discount in
accordance with the Program Description; and (c) IRUs will receive the Equipment Discount in accordance
with the Program Description.
8.3 WIN Advantage® Exclusion. IRUs' account information is not included in the WIN
Advantage® software.
Attachment DD - Page 9 of 15
25K-38
8.4 Marketing Assistance. Participating Entities will participate with Contractor in efforts
to obtain eligible Employees' participation in the Employee Benefit Program.
9. Definitions. In addition to terms defined elsewhere, these terms have the following meanings in
the Master Agreement:
9.1 "Carrier" or "Carriers" means a Contractor-related, licensed entity that operates
commercial mobile radio telecommunications systems in the geographic areas covered by the Master
Agreement.
9.2 "Contractor Markets" means a geographic area served by affiliates under common
control with Contractor.
9.3 "CRU" and "Corporate Responsibility User" mean an Employee receiving Service
under a Participating Entity's account.
9.4 "Employees" means Participating Entity's current, validated employees receiving Federal
W-2 or K-1 tax treatment.
9.5 "Equipment" means the wireless receiving and transmitting equipment, SIM (Subscriber
Identity Module) Card or any accessories that Contractor has authorized to be programmed with a Number
or Identifier.
9.6 "Equipment Discount" means a discount on select Equipment found at the Program
Website, as described in this Program Description.
9.7 "End Users" means CRUs and IRUs, collectively.
9.8 "IRU" and "Individual Responsibility User" mean an Employee receiving Service under
an individual account in accordance with the Sponsorship Program.
9.9 "IRU Service Agreement" means a separate two (2) year agreement between an IRU
and Cingular for Service, Equipment and related matters.
9.10 "Master Agreement" means Exhibit "DD" including, without limitation, this Program
Description and all incorporated Exhibits.
9.11 "Monthly Service Charge" means a Plan's monthly wireless access charges (i.e., the set
fee charged monthly for use of a particular Plan).
9.12 "MSC Service Discount" or "Monthly Service Charge Discount" means the Service
Discount applied to an eligible End User's Monthly Service Charge as described in this Program Description.
Unless otherwise specified, the term "Service Discount" found in any Attachments incorporated into this
Master Agreement means the MSC Service Discount with respect to End Users in Contractor Markets.
9.13 "Number" or "Identifier" means any number, IP address, e-mail address or other
identifier provisioned by Carriers, their agents or the Equipment manufacturer to be used with Service.
9.14 "Plan" means a Cingular Wireless calling plan, Service plan or rate plan.
9.15 "Program Website" means <>
Attachment DD - Page 10 of 15
25K-39
9.16 "Service" means commercial mobile radio service, including Voice Service and Wireless
Data Service.
9.17 "Service Discount" means a monthly discount on Service, applied to an End User's
Qualified Charges or Monthly Service Charge as described in this Program Description.
9.18 "Service Revenue" means revenue from Qualified Charges realized by Contractor.
9.19 "Voice Service" means wireless voice telecommunications services.
9.20 "WIN Advantage" means the Wireless Information Navigator AdvantageTM software,
together with all updates and modifications thereto.
9.21 "Wireless Data Service" means wireless data telecommunications services.
Attachment DD - Page 1 I of 15
25K-40
EXHIBIT "B"
WIRELESS INFORMATION NAVIGATOR ADVANTAGETM
1. Definitions. These following capitalized terms will have the meanings set forth below:
1.1 "Documentation" means the user manual(s) and other printed or on-line help materials
accompanying each delivery of the WIN Advantage@ software.
1.2 "Foundation Account Number" means an account number assigned by Contractor to
Customer for billing purposes that include no fewer than 50 Corporate Responsibility Users.
1.3 "Product Support" means a service whereby Contractor shall provide telephonic, technical
product support on the WIN Advantage software for up to three (3) of Customer's registered individuals.
2. License.
2.1 Grant of License. Contractor grants to Customer a non-exclusive, non-transferable license
to use the WIN Advantage software pursuant to the terms and conditions of the Master Agreement (the
"License").
2.2 Authorized Use. Customer may use the WIN Advantage software on up to ten (10)
computer terminals for the sole purpose of using the Reports and Tools.
2.3 Restrictions. Customer will not (a) use the WIN Advantage software on a network;
(b) modify, translate, disassemble, decompile, reverse engineer or in any other way derive any source code
from the WIN Advantage software, nor will it merge the WIN Advantage software with another computer
program; (c) use the WIN Advantage software in the operation of a service bureau; (d) sell, license, publish,
display, distribute, or otherwise transfer the WIN Advantage software or any copy thereof, in whole or in part,
to a third party; nor (e) export the WIN Advantage software outside of the United States, without Contractor's
prior, written consent.
2.4 Compact Discs and Copies. At no charge, Customer will receive one (1) WIN Advantage
compact disc per month for each of its Foundation Account Numbers. Upon Customer's request, Contractor
will provide Customer additional WIN Advantage, compact discs for Customer's current or prior month's
information for $25 each. Customer, solely to enable it to use the WIN Advantage software, may make one
archival copy of the WIN Advantage software as part of its usual software back-up procedures. Customer
will have no other right to copy the WIN Advantage software. Any copies of the WIN Advantage software
made by Customer are the exclusive property of Contractor.
2.5 Ownership. Customer acknowledges and agrees that nothing in the Master Agreement
conveys or provides Customer with an ownership interest in and to the WIN Advantage software, and
Customer agrees to make no claim of ownership in and to the WIN Advantage software.
2.6 Modifications and Reverse Engineering. Customer acknowledges and agrees that only
Contractor will have the right to alter, modify, maintain, enhance or otherwise modify the WIN Advantage
software.
3. Installation and Product Support.
3.1 Initial Installation and Training. Initial installation of the WIN Advantage software and up
to four (4) hours of. initial training on the WIN Advantage software will be provided by Contractor to Customer
at no charge.
Attachment DD - Page 12 of 15
25K-41
3.2 Product Support. Contractor will provide Product Support to Customer at no charge for
three (3) months following completion of the initial installation. After this three-month period expires,
Contractor will provide Customer with Product Support based upon a per call fee.. Customer will pay $90 per
hour for this Product Support, pro rated, with a ten (10) minute minimum charge for each such call placed by
Customer. Contractor reserves the right to change the fee for this time-based Product Support at any time.
4. Tax Verbiage Disclaimer. The complete detail for taxes, fees, and surcharges is not available
on the WIN Advantage software. This detail can be reviewed by requesting a copy of the corresponding
paper invoice.
Attachment DD - Page 13 of 15
25K-42
EXHIBIT "C"
PREMIER
1. Premier. Contractor will provide Customer with access to Premier ("Premier") subject to the terms
and conditions of the Master Agreement, including, without limitation, this Attachment. Customer must be in
compliance with this Master Agreement to be eligible to access Premier.
2. Access to Premier.
2.1 Hyperlink. Customer will create and maintain a hyperlink from its Intranet to Premier (the
"Hyperlink"). The Hyperlink must not result in any framing of Premier. Contractor reserves the right to
approve the Hyperlink, and Customer will provide an actual representation of the Hyperlink including, without
limitation, any text, icons, graphics and design, to Contractor for such approval. Customer may only access
Premier through the Hyperlink, and will not access any information other than Service information through
Premier. Customer will ensure that its employees comply with the provisions of this §2.
2.2 Username and Password. Contractor will coordinate with Customer to establish a unique
usemame and password (the "Password") for accessing and using Premier. Customer may modify its
username and Password at its discretion. Customer is responsible for maintaining the confidentiality of its
Password, and Customer accepts responsibility for all activity that occurs through Premier in connection with
that Password. Contractor may rely on the authority of anyone accessing Customer's Contractor account,
through Premier or otherwise, using Customer's Password.
3. Privacy and Security. Although the law generally prohibits the unauthorized interception of and/or
access to electronic communication, privacy cannot be guaranteed. Customer agrees that Contractor shall
not be liable for any unauthorized interception of and/or access to Premier. Contractor's security features
include secure socket layer (SSL) encryption technology and password restrictions.
4. Modification. Contractor may, at anytime, and in its sole discretion, modify, enhance, discontinue
and/or add to Premier and any and all aspects thereof.
5. Disclaimer of Warranties. PREMIER, AND ANY AND ALL ASPECTS THEREOF (INCLUDING,
WITHOUT LIMITATION, ANY SOFTWARE, TOOLS, GRAPHICS, DESIGNS, LOOK-AND-FEEL,
FEATURES, FORM, FORMAT, INFORMATION AND CONTENT), IS PROVIDED TO CUSTOMER "AS IS."
CINGULAR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING
PREMIER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT. CINGULAR MAKES NO
REPRESENTATIONS OR WARRANTIES THAT PREMIER WILL BE ERROR-FREE, UNINTERRUPTED,
OR FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF
SERVICE ATTACKS. CINGULAR DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY
KIND ON ITS BEHALF, AND CUSTOMER SHOULD NOT RELY ON ANYONE MAKING SUCH
STATEMENTS.
6. Additional Limitation of Liability. Contractor will not be liable for any delays in providing information
on Premier or any failure of such web site. Notwithstanding anything to the contrary in the General Terms
and Conditions, Customer's sole and exclusive remedy for any damages, losses, claims, costs and
expenses arising out of or relating to Premier will be the termination of Customer's access to Premier.
7. Trademarks. Each party understands and acknowledges that the rights to use all service marks,
trademarks, and trade names (collectively, "Marks") of the other party, now owned or hereafter acquired, are
the property of the other party, and each party will not use any of the other party's Marks without the other
Attachment DD - Page 14 of 15
25K-43
party's specific prior written approval. Each party will comply with all rules and procedures (collectively, the
"Rules") pertaining to the other party's Marks prescribed by the other party from time to time. Any use which
any party will make of the other party's Marks will inure to the benefit of the other party. Each party
acknowledges the validity of the other party's Marks, the other party's ownership thereof, and any and all
United States and foreign registrations that have been or may be granted thereon to the other party. Each
party will not, either during or after the term of the Master Agreement, do anything itself, or aid or assist any
other party to do anything which would infringe, violate, damage, dilute, cause a loss of distinctiveness,
harm, or contest the rights of the other party in and to the other party's Marks. Any unauthorized use by one
party of the other party's Marks, or any use by one party not in compliance with the Master Agreement or the
other party's Rules will constitute infringement of the other party's rights and a material breach of the Master
Agreement. Each party acknowledges that it has no rights in or to the other party's Marks except as provided
herein and will not acquire any rights in the other party's Marks as a result of any use of the other party's
Marks. Each party will immediately discontinue use of the other party's Marks upon: (a) any expiration or
termination of the Master Agreement; (b) any termination of Customer's access to Premier; or (c) written
request by the other party. Nothing in the Master Agreement gives Customer the right to use any Marks of
any third party (including, without limitation, any Marks of Equipment manufacturers).
Attachment DD - Page 15 of 15
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