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V(F) Approval and Authorization to Waive the City’s Formal Bid Process; and Authorize the Mayor and City Clerk to Execute Agreement with Sprint for the Provisioning and Maintenance of Telecommunications Services and Equipment for the New Fire Station 1 Agenda 04-20-2004 Mayor ��ecenter of Good zip Commissionertem V F S. Scott Vandergrift ...�.2'�.. - Danny Howell, District 1 = T' Scott Anderson, District 2 Acting City Manager Rusty Johnson, District 3 V. Gene Williford Nancy J. Parker, District 4 STAFF REPORT TO: The Honorable Mayor and City Commissioners FROM: Brian Ross, Information Systems Director DATE: April 13, 2004 RE: Telecommunications equipment for Fire Station#1 ISSUE Should the City waive the formal bid process and contract with Sprint to provide telecommunication services for the new fire station#1? BACKGROUND/DISCUSSION The City is currently in a contract from a bid award from RFP#99-002 to Sprint to provide telecommunications services, equipment, and maintenance. With fire station#1 moving away from the City Hall complex,we need to provide additional telecommunications circuits and equipment at the new fire station#1 to connect to the City Hall complex. This service is needed to connect the new building to City Hall so fire staff can access voice mail, City data, Internet, and Orange County which is providing dispatching services. We will be utilizing some of the equipment no longer in use at the old Public Works facility to reduce our phone equipment costs in fire station#1. We will need to expand that system as detailed by contract#04MWCK5WWNP4 for $8,704.07 and$1,813.44 a year in maintenance. The data equipment is detailed in contract #04MWCK5VSMX for $12,754.90 and$383 a month in maintenance. The communications circuits are detailed in contract #04MWCK5XSTAF for $725.60 and$285 a month for each of the two circuits. RECOMMENDATION It is staff's recommendation that the Honorable Mayor and City Commission waive the City's formal bid process and authorize the Mayor and City Clerk to sign and execute any and all documents with Sprint for the provisioning and maintenance of telecommunications services and equipment for the new fire station #1. 04/06/2004 TUE 17:42 FAT 407 2005/007 CONTRACT. _� ' �• if. Service & Equipment Agreement 04MWCK5XSTAF CUSTOMER ADDRESS: BILLING ADDRESS: Name Name City of Ocoee City of Ocoee Sand Address Sew Address 150 N.Lakeshore Drive 150 N.Lakeshore Drive City Statc ZIP City State ZIP Oooee FL 34761 Ocoee FL 34761 5tr Contact Site Contact Phone — Billing Contact Wing Telephone Na Brian Ross (407)9053100 Brian Ross (407)905-3100 This Service&Equipment Agreement("Agreement")dated April 6,2004 between Sprint-Florida Incorporated hereinafter'Sprint" and City of Ocoee("Customer). This Agreement sets forth the terms and conditions for the provision of certain telecommunications services and/or equipment by Sprint to Customer. The contract price will be paid as follows: Total Monthly Recurring Service $285.00 Total Non-Recurring Service 6725,60 tX`Lr4S SkL�.'.E`:.�i'�•''r�:1't�(:l�'��r" "*-_. �`. �-`..:1 ., ,''`� Y. 'n -'� „': -•' .x.. , .��:�k�wwv Deposit for Recurring Service 50.00 •The Purchase Price does NOT include any sales,use,excise,property,or other taxes. Applicable taxes will be added to the Purchase Price and appear on the invoice when it is issued. This provision of Services and/or equipment by Sprint is subject to the terms and conditions set forth in the Attachments attached hereto and incorporated herein. This Agreement may be signed in one or more counterparts,each facsimile copy of which will be deemed an original,and such counterparts,together,will constitute one Agreement This Agreement is binding as of the date Sprint signs this Agreement or places a letter In the US mail to Customer,confirming Sprinrs acceptance of the contract,as signed by Customer.No alterations to this Agreement are valid.unless acknowledged in writing as accepted by both parties. AGREED: Sprint-Florida Incorporated City of Ocoee CoomParlY Customer Name 8y By Printed: Printed: Tek: rete: Date: Date: Address for Notices: Address for Notices: Sales Administration 720 Western Boulevard Tarboro,NC 27886 Sales rep:Marie W.Clark Saks rep phone:(407)6615643 Saks rep tax(407)661-0094 -1- 14- 04/06/2004 TIE 17:42 FAX 407 RI006/007 —=4prlflt ATTACHMENT B coNTRACT# 5XSTAF 04MWCK5XSTAF SERVICE ADDRESS: Nana City of Ocoee sueetAddraea 150 N.Lakeshore Drive GrY state ZIP Ocoee FL 34761 sang Contact Telephone Ne. Brian Ross (407)905-3100 SERVICE: Sprint will provide to Customer those Service(s)identified below at the service address listed above. See Attachment C for additional Service Addresses as applicable. ..s. _. .._...._. _.a. .....,....,...-..ate...... ..ra...__.� ._.._..�.. Digiiink Service(DSO) 36 04/06/2004-04/05/2007 265.00 723.80 111111111111111 'Rates now in effect are subject to change in aecordanco with Tariff changes. Sprint will provide to Customer Digilink Service(DSO)service pursuant to the terms and conditions sat forth in Sprint's Sprint-Florida:Incorporated General Exchange Tariff. TARIFFS.Tariff refers to Company's Tariffs filed with,and approved by,respective federal and/or state regulatory commissions. Tariffs applicable to the Service(s)may be modified from time-to-time.In the event of any inconsistencies or conflicts between this Agreement and the applicable Tariff,the Company's applicable Tariff provision shall apply and take precedence. TERMINATION.In the event Customer gives notice of cancellation or termination.disconnects any portion of Service(s)provided or otherwise breathes this Agreement resulting in the termination of said Services)prior to the end of the Service term or any subsequent renewal thereof,termination liability will apply as calculated and set forth in the Company Tariff governing the Service(s)offered. -2- 04/06/2004 TtE 17:43 FE 407 X007/007 ATTACHMENT C Additional Service Addresses(as appropriate) Point to Point from City Hall 151 North Lakeshore Drive to 850 Hackney Prairie Rd. -3- 04/13/2004 TUE 15:08 FAX 407 ?009/011 _l.Q • CENTURION M SERVICE AGREEMENT Spit• AMENDMENT Original Sprint Centurion Service Agreement# 1007220053 Amendment No. 01 Sales contact Marie W.Clark Effective Date of Amendment 02/21/2004 Expiration Date in original contract 05/20/2005 0 Standard Plan • Extended Plan This Amendment is made to the above-referenced Sprint Centurion Service Agreement(the"Agreement')between City of Ocoee("Customer")and Sprint-Florida Incorporated("Sprint"). The Agreement is amended by adding the equipment listed below to the list of equipment maintained by Sprint under the Sprint Centurion service plan designated above_ Sprint Centurion maintenance services for the equipment added below will begin as of the date this Amendment is signed by both parties. Charges added by this Amendment will be invoiced to Customer in the next billing cycle after installation or the next anniversary date of the Agreement. M;. '. :t��i. .l _ . ;S'.1T;E+ARR,.RES$;==45;,+w,,MlrilYr4, .sgty "r .15fg•toN usiness Name City of Ocoee Business Name City of Ocoee Site Contact Brian Ross Billing Contact Brian Ross Street Address 583 S.Bluford Ave New Fire Department Street Address 150 N.Lakeshore Drive City Ocoee City Ocoee State FL State FL ZIP 34761 ZIP 34761 Phone (407)905-3100 _Phone �r 1 tiLru,.1••�i+�r�'1��y'rrt,}iv,.r's'�'c.riFf=r3fry-��=11y��m:;r�_ri2`�S-hy: ��:. (407)905-3100 4'0� v� .Z7ii- �� I _= Ii � .ji ��1D$s � teas01040 4OptcokayA4_g..Q 0 catalyst 2950 $383.00 1 15 $5,745.00 • Total Amendment Price $5,745.00 The pricing above does not include the purchase or lease price for Sprint-provided equipment. All other terms and conditions in the Agreement,not amended above,will remain in effect. Customer agrees not to disclose the pricing, terms or conditions of the Agreement to any third parties without Sprint's prior written permission. This Amendment is not binding until signed by authorized representatives of both parties. Alterations to this Amendment will not be valid unless accepted in writing by a Sprint officer or authorized designee. CUSTOMER SPRINT BY: BY: Signature Signature Name and Title: Name and Title: Date: Date: AMENDMENT TO SERVICE & EQUIPMENT AGREEMENT THIS AMENDMENT TO SERVICE &EQUIPMENT AGREEMENT (this "Amendment") is made and entered into by and between SPRINT-FLORIDA INCORPORATED, a Florida corporation("Sprint") and the CITY OF OCOEE, a municipal corporation and political subdivision of the State of Florida (the "City"). RECITALS: A. Sprint and the City wish to enter into a Service and Equipment Agreement (the"Agreement") to be executed on even date herewith. B. Sprint and the City wish to amend certain provisions of the Agreement, on the terms and conditions hereinafter provided. IN CONSIDERATION OF the foregoing facts, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Recitals. The above Recitals are true and correct and are incorporated herein by this reference. 2. Amendment to Section 4.1 of the Agreement. The second sentence of Section 4.1(B)(3) shall be amended to read: Unless otherwise limited by applicable law, Customer will defend, indemnify and hold harmless Sprint, together with its officers, agents and employees, against all damages, claims, liabilities or expenses (including reasonable attorneys' fees, court costs, and allocated in-house counsel legal expenses) arising out of or resulting in any way from Customer's failure to obtain the permits, licenses, consents or the like. 3. Amendment to Section 9 of the Agreement. The first sentence of Section 9 shall be amended to read: Unless otherwise limited by applicable law, Customer grants to Sprint a purchase money security interest in the Equipment, together with all replacements,parts, additions, repairs and accessories incorporated into or affixed to the Equipment, and all proceeds for its sale, until all charges (including interest, if any) are paid in full. S 4. Amendment to Section 13.2 of the Agreement. Section 13.2 shall be deleted and replaced with the following: Force Majeure. Neither party will be liable for any failure to perform any part of this Agreement due to federal or state government action, statute, or regulation, strike or other labor trouble, riot or other civil disturbance, sabotage, fire, flood, lightning or electrical storm, terrorist act, environmental hazard, or acts of God, inability to secure the Equipment or necessary ancillary material or supplies, or, without limiting the foregoing, by any other cause, contingency or circumstance within or without the United States not subject to its control which prevents or hinders the party's performance of this Agreement. 5. Ratification. Except as provided herein, the Agreement is unmodified and hereby ratified in every respect. In the event of any conflict between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall control. 6. Counterparts. This Amendment may be executed in any number of counterparts, any one and all of which shall constitute the agreement of the parties and each of which shall be deemed an original. IN WITNESS WHEREOF, Sprint and the City of Ocoee have executed this Amendment as of the date set forth immediately below their respective signatures. SPRINT: SPRINT-FLORIDA INCORPORATED, a Florida corporation By: Print Name: Title: Date: , 2004. 2 CITY: ATTEST: CITY OF OCOEE, FLORIDA By: Jean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON , 200_UNDER LEGALITY this day of , AGENDA ITEM NO. 200_. FOLEY & LARDNER LLP By: City Attorney 3 04/13/2004 TUE 15:05 FAX 407 -11002/017 CON'T'RACT# ` Iv �P1'* Service & Equipment Agreement 04MWCK5VFSMX m CUSTOMER ADDRESS: BILLING ADDRESS: Name Name City of Ocoee City of Ocoee Street Address Street Address 563 S.Bluford Ave New Fire Department 150 N.Lakeshore Drive City State ZIP City State ZIP Ocoee FL 34761 Ocoee FL 34761 Site Contact Site Cauact Phone swung Contact Billing Telephone No, Brian Ross (407)905-3100 Brian Ross ,(407)905-3100 This Service&Equipment Agreement("Agreement")dated March 9,2004 between Sprint-Florida Incorporated hereinafter°Sprint and City of Ocoee("Customer"). This Agreement sets forth the terms and conditions for the provision of certain telecommunications services and/or equipment by Sprint to Customer. The contract price/ywill be paid as follows: •.' ;�rr:l.� .lt.rl.. r.«r.u.,......n.r.uu. v My »,.... .»..». ....�..W.ti...�»....»J.Y f........ .l.....�.w�x.h.«w .r.. ..ir .-......,.1 .....4A1 YiJ Total Equipment and Installation $12,754.90 Down Payment Due $0.00 Amount Due Upon Delivery of Equipment $0.00 Amount Due Upon Customer Acceptance $12,754.90 The Purchase Price does NOT include any sales,use,excise,property,or other taxes. Applicable taxes will be added to the Purchase Price and appear on the invoice when it Is issued. This provision of services and/or equipment by Sprint is subject to the terms and conditions set forth In the Attachments attached - hereto and incorporated herein. This Agreement may be signed In one or.more counterparts,each facsimile copy of which will be deemed an original,and such counterparts,together,will constitute one Agreement This Agreement is binding as of the date Sprint signs this Agreement or places a letter in the US mail to Customer,confirming Sprints acceptance of the contract,as signed by Customer.No alterations to this Agreement are valid,unless acknowledged in writing as accepted by both parties. AGREED: Sprint-Florida Incorporated City of Ocoee Company Customer Name By: Printed. Printed: Tree: Title: Date; Date: Address kr Notices: Address for Notices: Sales Administration 720 Western Boulevard Tarboro,NC 27886 Sales rep:Marie W.Clark Sales rep phone;(407)661-5643 Sales rep fax;(407)6610094 -1 - liblk OCOEE SIGNATURE BLOCK FOR SERVICE & EQUIPMENT AGREEMENT BETWEEN SPRINT AND THE CITY OF OCOEE CITY: ATTEST: CITY OF OCOEE, FLORIDA By: Jean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON , 200_ LEGALITY this day of , UNDER AGENDA ITEM NO. . 200 . FOLEY & LARDNER LLP By: City Attorney OCOEE SIGNATURE BLOCK FOR SERVICE &EQUIPMENT AGREEMENT BETWEEN SPRINT ANTI THF CITY(IF 116 04/13/2004 TUE 15,06 FAX 407 2003/017 _= � rlt ATTACHMENT ACK5VF MX CONTRA04MWK5VFS INSTALLATION ADDRESS: Name City of Ocoee StreelAddress 563 S.Bluford Ave New Fire Department City St to ZIP Ocoee FL 34761 irmlMetion Gentle! Telephone No. C ielomer PO R Brian Ross (407)905-3100 pending Equipment List (111� 111 :it �y '-1.«n' «!y�A /" 36 ;r'I ✓ +I l h' r ir�v�w t y, i I. (( t"�"NIIDrr "k�"X ,' l 4 by r S r. il I,� i,.{,;- W.�,«LiL,II..,,Ja +�ei.,:s7(w�'- 1 Cisco NPM Order 1 Mid performance Dual 10/100 Ethernet Router w/Cisco IOS IP 1 Power Cord 110V 1 Cisco 2600 Ser IOS IP PLUS 1 2-Port Serial WAN Interface Card 1 V.35 Cable,DTE Male to Smart Serial,10 Feet 1 32 to 96 MB DRAM factory upgrade for Cisco 261x/2xXM 1 16 to 32 MB Flash Factory Upgrade for the Cisco 2600XM 1 Catalyst 2950,48.10/100 with 2 GBIC slots,enhanced image 1 Power cord 110V 1 24 port,10/100 Catalyst Switch,Standard Image only 1 Power cord 110V 1 Adtran Smart 16e shelf w/dual AC 3 Adtran TSU V.35 for Smart 16 The provision of equipment by Sprint is subject to the terms and conditions set forth in the Schedule A attached hereto and incorporated herein- -2- 04/13/2004 TUE 15:06 FAX 407 2004/017 yX,r>t]ts SERVICE&EQUIPMENT SCHEDULE A --"1" AGREEMENT TERMS AND CONDITIONS 1. EQUIPMENT. Sprint will sell and Customer will 3.2 Sprint Installed Equipment If Customer fails to purchase the equipment ("Equipment"), consisting of reject the Equipment, in writing, as unserviceable or hardware, software, installation, and if applicable, inconsistent with the contract within seven days after maintenance services and/or manufacturer provided the date of the system cutover, Customer will be including the attached statement of work listed on conclusively presumed to have accepted the installed Attachment A-according to the terms and conditions of equipment If Customer timely rejects the Equipment, this agreement and, any applicable Manufacturer Sprint will have the right to cure any defects in Software License Agreement. Customer assumes the performance or consistency, within a reasonable time, risk of loss or damage to the Equipment or any part taking into account the necessity to procure replacement thereof,from the date of its delivery to the Customer's Equipment or parts, and to correct or modify the address identified on the face of this Agreement. installed Equipment. After installation, Sprint (or 2. PRICE AND PAYMENT TERMS. Customer Sprint's subcontractor, agent,or assignee) will perform agrees to pay the total price according to the payment Sprint's standard testing procedures on the Equipment. terms set out on the face hereof. All payments are due When these tests are successfully completed,Sprint will upon receipt of invoice and are subject to late payment notify Customer that the Equipment is installed and charge of 1-1/2%per month, or the maximum amount operating according to applicable test and performance permitted by law, whichever is greater, on the balance specifications at which time Customer will promptly in arrears for more than(30) days from the date of the execute Sprint's acceptance document. invoice.Customer will pay all sales,use,and privilege 3.3 Drop Ship Equipment. If Customer fails to reject and/or excise taxes and shall reimburse Sprint for the the Equipment within fifteen(15)days from the date of payments if made by Sprint.Telephone number listings, delivery, Customer will be conclusively presumed to access lines or other services are not included in the have accepted the Equipment Equipment may only be price, unless specifically so stated, and are the rejected for errors in order processing or for defects or responsibility of Customer. In the event Customer deficiencies in the Equipment, and only after Customer repudiates, gives notice of cancellation, or otherwise has contacted Sprint and received a Call Tag number breaches this Agreement, before delivery of the with instructions on how to complete the return. Equipment to the installation site, Customer will pay 4. INSTALLATION Sprint as fixed,settled and liquidated damages,and not 4.1 Sprint Installed Equipment. as a penalty,its down payment or 25%of the Purchase A. Customer will give Sprint employees or agents Price,whichever is greater.Purchases where Sprint will reasonable access to premises and facilities where the not be providing installation("Drop Ship")may not be equipment is located or is to be installed,at Customer's cancelled following order placement without prior regular business hours, to allow Sprint to fulfill its written authorization of Sprint or assignment of a return obligations in this agreement. authorization number("Call Tag Number"). Customer's B. During the period of installation and throughout the payment is without right of set-off and shall not be warranty or maintenance period,Customer will: withheld or delayed due to dispute of any nature with (1) Guarantee and warrant that the premises in any other legal entity including affiliates of Seller, which the work is to be performed are completely 3. DELIVERY. free of asbestos(whether encapsulated or exposed), 3.1 Sprint will use commercially reasonable efforts to or other hazardous materials as defined by federal deliver and install the Equipment according to any or state law.If the warranty or guarantee cannot be schedule agreed upon by the parties. However, it is made prior to signing this agreement,Sprint will expressly understood that all stated delivery and/or have the following options in addition to any other installation dates are for approximation purposes only. legal or equitable remedies: 1)void this Under no circumstances will Sprint be liable for agreement,and retain any down payment damages, consequential or otherwise, for delays in previously paid by Customer,2)decline to make delivery or installation. any equipment installations in areas known or suspected of containing asbestos;or 3)unilaterally make an adjustment to the purchase price to reflect any increased costs of performance because of known or suspected asbestos on the premises. -3- 04/13/2004 TUE 15:06 FAX 407 ?005/017 (2) Provide necessary openings and ducts for cable A. Sprint Installed: Unless otherwise noted in writing and conductors in floors and walls, and floor plans in this Agreement or Sprint's statement of work all and/or prints showing the location of the openings data/internetworking Equipment (including routers, and ducts. The floor plan and/or prints will also switches and hubs) sold and installed by Sprint under show the locations and types of Equipment to be this Agreement is warranted against defects in design, installed. material and workmanship under normal and proper (3) Obtain any necessary consents,approvals, use for a period of ninety (90) days from the licenses,and permits for installation of the Acceptance Date. The corresponding warranty for all Equipment on the premises where the Equipment is Other Equipment,identified on Attachment A,will be to be installed during all hours consistent with the one (1) year from the Acceptance Date exclusive of requirements of installation.Customer will defend, any associated software or other software product, indemnify and hold harmless Sprint,together with which shall be warranted for a period of ninety (90) its officers,agents and employees,against all days from the date of installation. Sprint's obligation damages,claims,liabilities or expenses(including under this warranty is limited to the repair or reasonable attorneys'fees,court costs,and allocated replacement of Equipment found to be defective in-house counsel legal expenses)arising out of or according to manufacturer's specifications under resulting in any way from Customer's failure to normal and proper use. obtain the permits,licenses,consents,or the like. B.Drop Ship: Drop Ship Equipment is warranted for (4) Be responsible for and provide or arrange for ninety(90)days from the shipment date for parts only. all ground wire connections to Customer's premises, During the warranty period, Sprint will replace separate electric source,circuits and power with defective parts only on an exchange basis. suitable outlets,as necessary,at its own expense; C.THIS WARRANTY IS IN LIEU OF ANY OTHER suitable space meeting operating environment WARRANTY OBLIGATION OR LIABILITY, requirements;heat,air conditioning,light,and EXPRESS OR IMPLIED, INCLUDING BUT NOT security and other operating environmental LIMITED TO, WARRANTIES OF requirements for the Equipment.The premises must MERCHANTIBILITY OR FITNESS FOR A be dry and free from dust and in the condition as to PARTICULAR PURPOSE. not be injurious to the Equipment or the employees, 5.2 Warranty Services. agents,subcontractors or assignees of Sprint A. Sprint Installed. Sprint will provide warranty C. Customer acknowledges that foreign voltages and service at the installation address, including parts and lightning effects on telephone equipment can be labor required to service the Equipment.The warranty significant during electrical storms. Sprint will not be service does not include replacement parts for lost or liable for any damages to the Equipment or claims stolen parts, or items damaged by negligence, acts of' associated therewith caused by lightening or suspected God, or causes other than ordinary use, nor does it • • to be caused by lightening. include additions to, rearrangements, relocation or D. Customer acknowledges that any change in removal of the Equipment.Any maintenance or service Equipment type or location may change the quoted performed by the Customer or anyone not approved in price.The additional charges will be based on time and writing by Sprint will cause this warranty to become material costs incurred by Sprint. null and void. 4.2 Drop Ship Equipment.Customer will be B. Drop Ship. The Customer will pay the costs of responsible for and provide or arrange for Equipment packing, shipping and insuring defective items installation at Customer's sole liability cost and returned to Sprint. Customer must contact Sprint to expense.Customer understands that failure to perform receive a Call Tag number with specific instructions installation or maintain the premises consistent with prior to shipping the Equipment back to Sprint. Sprint manufacturer's specifications may void any warranty will ship replacement part(s) or Equipment back to on the Equipment. Customer if the Equipment is under warranty. If Sprint 5. LIMITED WARRANTY,DISCLAIMERS AND determines that the warranty has expired, Customer REMEDIES. may 1) accept the return of the part or the Equipment 5.1 Warranty Term and Scope. as is; 2) request that the part or the Equipment be repaired at Customer's expense; or 3) request that a replacement part or Equipment be shipped to Customer at Customer's expense. -4- 04/13/2004 TUE 15:07 FAX 407 ?006/017 If Customer requests a site visit by Sprint for repair, 8. FAILURE TO PERFORM_ if Customer does not Customer will be billed for all parts(if out of warranty) pay any amount when due,or otherwise fails to perform and labor associated with the repair. any obligation under this Agreement, Sprint may 5.3 CUSTOMER IS SOLELY RESPONSIBLE FOR exercise, in addition to any other remedies available to ENSURING THE COMPATIBILITY OF ANY Sprint in law or in equity, either of the following EQUIPMENT NOT ACQUIRED FROM SPRINT options: a) declare all unpaid sums immediately due THAT IS ADDED TO OR USED IN CONJUNCTION and payable, and rctain all sums theretofore paid as a WITH THE EQUIPMENT PROVIDED BY SPRINT. setoff against expenses incurred; or b) terminate this THE COMBINATION AND USE OF Agreement, retake possession of the Equipment, and NON-COMPATIBLE EQUIPMENT WILL, AT THE retain all sums theretofore paid as a setoff against OPTION OF SPRINT, VOID ANY REMAINING expenses incurred_ WARRANTY AS TO ANY ITEM OF 9. SECURITY INTEREST. Customer grants Sprint a SPRINT-PROVIDED EQUIPMENT THAT IS purchase money security interest in the Equipment, AFFECTED BY THE NON-COMPATIBLE together with all replacements,parts,additions,repairs EQUIPMENT. and accessories incorporated into or affixed to the 6.INDEMNIFICATION. Unless otherwise limited by Equipment, and all proceeds for its sale, until all applicable law, each party will indemnify and hold the charges(including interest,if any)arc paid in full.The other party,its officers,agents and employees,harmless parties agree that the Equipment will remain personal from and against any claims or causes of action for property,not a part of the land or building,regardless of personal injury or death to persons,or loss or damage to the manner of affixation. property(including but not limited to personal injury or 10. ASSIGNMENT. The rights and obligations of property damage suffered by either Party's own either party will neither be assigned nor delegated employees or agents), which is the result, directly or without the prior written consent of the other party, indirectly, of the indemnifying party's negligence or which consent will not be unreasonably withheld or intentional misconduct. delayed. However, Sprint may assign its rights and 7. LINIITATION OF LIABILITY. obligations, in whole or in part, to any parent, 7.1 NOTWITHSTANDING ANY OTHER subsidiary,affiliate,or successor in interest,provided it PROVISIONS OF THE AGREEMENT, IN NO gives the Customer notice of assignment. EVENT WILL SPRINT BE LIABLE FOR INDIRECT, 11. WAIVER OF BREACH. No waivers, whether INCIDENTAL, OR CONSEQUENTIAL DAMAGES expressed or implied,by either party of any breach by (INCLUDING LOST PROFITS) SUSTAINED OR the other party of any of the covenants, agreements, INCURRED IN CONNECTION WITH SERVICES conditions or duties of this Agreement will operate as a OR EQUIPMENT PROVIDED OR TO BE waiver of any subsequent breach of the same covenants, PROVIDED UNDER THIS AGREEMENT, agreements,conditions or duties. REGARDLESS OF THE FORM OF ACTION, 12. ENTIRE AGREEMENT. This Agreement WHETHER OR NOT THE DAMAGES WERE supersedes all prior or contemporaneous proposals and FORESEEN OR UNFORESEEN. IN NO EVENT negotiations and constitutes the entire agreement WILL SPRINT BE LIABLE FOR DAMAGES,LOSS between Sprint and Customer with respect to the OR EXPENSES OF ANY NATURE WHATSOEVER purchase of the Equipment, No representations or THAT MAY RESULT FROM THE FRAUDULENT statement not expressed herein is binding upon Sprint. OR UNAUTHORIZED USE OF EQUIPMENT, Any modification must be in writing and executed by an SERVICES, OR FACILITIES PURCHASED OR authorized representative of the party against whom ACQUIRED BY CUSTOMER enforcement is sought.Any provision of this Agreement 7.2 Sprint disclaims any liability for loss or damage to which is in conflict with any applicable statute or Customer or any other entity resulting from the regulation will be deemed null and void only to the fraudulent or unauthorized use of the equipment extent that it may conflict, and all other provisions of purchased by parties known or unknown, including this Agreement will remain in full force and effect. employees,agents or associates of Customer.Customer This Agreement is deemed made and governed by the expressly assumes the risk of loss associated with the laws of the state of where the Equipment is located. unauthorized use and acknowledges that it is Customer's obligation to take all reasonable and necessary steps to protect against the loss. Customer assumes the obligation whether or not Sprint has advised Customer of the possibility of the loss,how the loss might occur -5- 04/13/2004 TUE 15:08 FAX 407 . 007/017 or how to prevent against the loss. -6- 04/13/2004 TL-E 15:08 FAX 407 ?008/017 13. MISCELLANEOUS. 13.8 Third Party Beneficiary. This Agreement will not 13.1 Purchase Orders. Any purchase order or terms be construed or interpreted to create any direct,indirect contained in a P.O. or other order document issued by or third party rights or benefits whatsoever in favor of Customer will be deemed to have been issued for its any person or entity of any kind between any persons or own purchasing, accounting, and other record keeping entities other than the Sprint and Customer. purposes only and will not be considered part of this 13.9 Property of Sprint. Customer ack howl-edges that Agreement. If the terms and conditions on any in the case of Sprint installed Equipment,Sprint may purchase order conflict with this Agreement, this install a data collection device and other Sprint Agreement will control, equipment at Customer's location to be used to monitor 13.2. Force Majeure. Sprint will not be liable for any and trouble-shoot defects in the Equipment throughout failure to perform any part of this Agreement due to the warranty and,if applicable,maintenance period. All federal, state, or local government action, statute, such property and equipment will remain the property ordinance or regulation, strike or other labor trouble, of Sprint Customer is purchasing only that Equipment riot or other civil disturbance, sabotage, fire, flood, specifically described on Attachment A hereof. At the lightning or electrical storm,terrorist act,environmental expiration or termination of this Agreement or any hazard, or acts of God, inability to secure the service plan hereunder,Sprint will be entitled to enter Equipment or necessary ancillary material or supplies, Customer's premises to remove all Sprint property and or,without limiting the foregoing,by any other cause, equipment contingency, or circumstance within or without the Unitcd States not subject to its control which prevents or hinders Sprint's performance of this Agreement. 13.3 Notices. Any notice required or permitted to be given under any of the provisions of this Agreement or governing law will be given in writing and either hand delivered or sent by first-class mail,postage prepaid,to the other party at its address on the face of this Agreement 13.4 Attorney's Fees. In the event either party must pursue legal action to compel compliance with the terms of this Agreement,the prevailing party will be entitled to recover from the other party reasonable attorney's fees and costs and allocated in-house counsel legal expenses,as well as any collection costs incurred. 13.5 Credit Check. Customer consents to a search by Sprint of its credit history and financial stability with any credit or reporting company or agency. In the event Sprint determines,in its sole discretion,that Customer fails to meet Sprint credit guidelines,Sprint may require that adequate payment assurances be provided or may terminate the Agreement 13.6 Risk of Loss. Risk of loss of the Equipment will pass from Sprint to Customer upon delivery to the installation site designated on page 1 hereof. 13.7 Title. Title to the Equipment will pass from Sprint to Customer upon Customer's payment of the Total Equipment Purchase Price and any applicable taxes of the Equipment. -7- 04/13/2004 TLE 15:11 FAX 407 ?017/017 • CENTURION°M SERVICE AGREEMENT U 1 L�aYb6 AMENDMENT Original Sprint Centurion Scrvicc Agreement# KC04010021 Amendment No. 01 Sales contact Marie W.Clark Effective Date of Amendment 12/2012004 Expiration Date in original contract 12/20/2005 0 Standard Plan • Extended Plan This Amendment is made to the above-referenced Sprint Centurion Service Agreement(the"Agreement")between City of Ocoee("Customer")and Sprint-Florida Incorporated("Sprint"). The Agreement is amended by adding the equipment listed below to the list of equipment maintained by Sprint under the Sprint Centurion service plan designated above. Sprint Centurion maintenance services for the equipment added below will begin as of the date this Amendment is signed by both parties. Charges added by this Amendment will be invoiced to Customer in the next billing cycle after installation or the next anniversary u�date of the Agreement. r11111i lBi�{l`ti °__"st`T=-.AFK !MpRESW5-k.4X-0,;g0 fil l°mull ``' ` ,-1 z 014K,LINOVARE.SPOri,'I_x-- 't: i to Business Name City of Ocoee Business Name City of Ocoee Site Contact Brian Ross Billing Contact Brian Ross Street Address 563 S.Bluford Ave New Fire Department Street Address 150 N.Lakeshore Drive City Ocoee City Ocoee State FL State FL ZIP 34761 ZIP 34761 Phone (407)905-3100 Phone (407)905-3100 �+.r e r�'t �{ := —_ri}_=f rl :_:y�r. -_r�._:.. f °iif+'Jr�f_ �:. 1 '�'�'a�F�' r — r. R1'I1 • v �� 4 EF- i:` mogriAMPR{C L_hm Q>> nc Q � *r Universal Line Card 8 ports $28.00 1 12 $336.00 Digital Line Card(DLC)16 ports $56.00 1 12 $672.00 Analog Message Waiting Line Card 16 ports $56.00 1 12 $672.00 Oneac On600XA-SNK 1 hour(opt 11-1Cab) $11.12 1 12 $133.44 Total Amendment Price $1,813.44 The pricing above docs not include the purchase or lease price for Sprint-provided equipment All other terms and conditions in the Agreement,not amended above,will remain in effect. Customer agrees not to disclose the pricing, terms or conditions of the Agreement to any third parties without Sprint's prior written permission. This Amendment is not binding until signed by authorized representatives of both parties. Alterations to this Amendment will not be valid unless accepted in writing by a Sprint officer or authorized designee. CUSTOMER SPRINT BY: BY: Signature Signature Name and Title: Name and Title: Date: Date: AMENDMENT TO SERVICE & EQUIPMENT AGREEMENT THIS AMENDMENT TO SERVICE & EQUIPMENT AGREEMENT (this "Amendment") is made and entered into by and between SPRINT-FLORIDA INCORPORATED, a Florida corporation ("Sprint") and the CITY OF OCOEE, a municipal corporation and political subdivision of the State of Florida(the "City"). RECITALS: A. Sprint and the City wish to enter into a Service and Equipment Agreement (the "Agreement") to be executed on even date herewith. B. Sprint and the City wish to amend certain provisions of the Agreement, on the terms and conditions hereinafter provided. IN CONSIDERATION OF the foregoing facts, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Recitals. The above Recitals are true and correct and are incorporated herein by this reference. 2. Amendment to Section 4.1 of the Agreement. The second sentence of Section 4.1(B)(3) shall be amended to read: Unless otherwise limited by applicable law, Customer will defend, indemnify and hold harmless Sprint, together with its officers, agents and employees, against all damages, claims, liabilities or expenses (including reasonable attorneys' fees, court costs, and allocated in-house counsel legal expenses) arising out of or resulting in any way from Customer's failure to obtain the permits, licenses, consents or the like. 3. Amendment to Section 9 of the Agreement. The first sentence of Section 9 shall be amended to read: Unless otherwise limited by applicable law, Customer grants to Sprint a purchase money security interest in the Equipment, together with all replacements, parts, additions, repairs and accessories incorporated into or affixed to the Equipment, and all proceeds for its sale, until all charges (including interest, if any) are paid in full. 4. Amendment to Section 13.2 of the Agreement. Section 13.2 shall be deleted and replaced with the following: Force Majeure. Neither party will be liable for any failure to perform any part of this Agreement due to federal or state government action, statute, or regulation, strike or other labor trouble, riot or other civil disturbance, sabotage, fire, flood, lightning or electrical storm, terrorist act, environmental hazard, or acts of God, inability to secure the Equipment or necessary ancillary material or supplies, or, without limiting the foregoing, by any other cause, contingency or circumstance within or without the United States not subject to its control which prevents or hinders the party's performance of this Agreement. 5. Ratification. Except as provided herein, the Agreement is unmodified and hereby ratified in every respect. In the event of any conflict between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall control. 6. Counterparts. This Amendment may be executed in any number of counterparts, any one and all of which shall constitute the agreement of the parties and each of which shall be deemed an original. IN WITNESS WHEREOF, Sprint and the City of Ocoee have executed this Amendment as of the date set forth immediately below their respective signatures. SPRINT: SPRINT-FLORIDA INCORPORATED,' a Florida corporation By: Print Name: Title: Date: , 2004. 2 • CITY: ATTEST: CITY OF OCOEE, FLORIDA By: Jean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON , 200_UNDER LEGALITY this day of , AGENDA ITEM NO. . 200_. FOLEY & LARDNER LLP By: City Attorney 3 04/13/2004 TUE 15:08 FAX 407 ?010/017 • CONTRACT# _,„ 'pjt® Service & Equipment Agreement 04MWCK5WWNP4 CUSTOMER ADDRESS: BILLING ADDRESS: Name Name City of Ocoee City of Ocoee Street Address Street Address 563 5.Bluford Ave New Fire Department 150 N.Lakeshore Drive City State zIP Gay State LP Ocoee FL 34761 Ocoee FL 34761 Site Contact Site Contact Nona Billing contact airing Telephone No. Brian Ross (407)905-3100 Brian Ross (407)905-3100 This Service&Equipment Agreement("Agreement")dated March 9,2004 between Sprint-Florida Incorporated hereinafter"Sprint" and City of OCOee("Customer"). This Agreement sets forth the terms and conditions for the provision of certain telecommunications services and/or equipment by Sprint to Customer. The contract price will be paid as follows: ...• el, 7 t', t tr linMt m r r"m, -re . � �CS'j .f 1.. a..... ....C�. ! r SW y .�,......... .t....ulr1 4�.suis.-V.YTJ....W.✓.:41�.J::L.>'—..tLl.�..I LA.a...,...1:... �1..,y f..lu'.X Total Equipment and installation $8,704.07 '• Down Payment Due $0.00 Amount Due Upon Delivery of Equipment $0.00 Amount Due Upon Customer Acceptance $8,704.07 •The Purchase Price does NOT include any sales,use,excise,property,or other taxes. Applicable taxes will be added to the Purchase Price and appear on the invoice when it Is issued. This provision of services and/or equipment by Sprint is subject to the terms and conditions set forth in the Attachments attached hereto and incorporated herein. This Agreement may be signed In one or more counterparts,each facsimile copy of which will be deemed an original,and such counterparts,together,will constitute one Agreement.This Agreement is binding as of the date Sprint signs this Agreement or places a letter in the US mail to Customer,confirming Sprint's acceptance of the contract,as signed by Customer.No alterations to this Agreement are valid,unless acknowledged in writing as accepted by both parties. AGREED: Sprint-Florida Incorporated City of Ocoee Company Customer Name By: By: Printed: Printed: Title: Title: Dale: Date: Address for Notices: Address for Notices: Sales Administration 720 Western Boulevard Tarboro,NC 27886 Sales rep:Marie W.Clark Sales rep phone:(407)8815843 Sales rep fax(407)881.0094 -1 - OCOEE SIGNATURE BLOCK FOR SERVICE & EQUIPMENT AGREEMENT BETWEEN SPRINT AND THE CITY OF OCOEE CITY: ATTEST: CITY OF OCOEE, FLORIDA By: Jean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON , 200_ LEGALITY this day of , UNDER AGENDA ITEM NO. . 200 FOLEY & LARDNER LLP By: City Attorney OCOEE SIGNATURE BLOCK FOR SERVICE &EQUIPMENT AGREEMENT BETWEEN SPRINT ANC)THFCITY(W 04/13/2004 TUE 15:09 FAX 407 Z011/017 SpY,int0 ATTACHMENT A CONTRACT# �J 04MWCK5WWNP4 INSTALLATION ADDRESS: Nemo City of Ocoee Seca Address 563 S.Bluford Ave New Fire Department -city state LIP Ocoee FL 34761 InatatlatIon Contact Telcphonc No. Customer PO @ Brian Ross (407)9054100 Pending Equipment List �{�{ {r 8!. �r i i t r r� +rw' i F�,r rar•h. d rY4r,p 1.'.r#,A1 :::Lt,. di, qtr,1i r��ir f`,d't,.l�� rrrr. r ��.��.r'' I4: ,� r�rb : a1:1NQ r...� �.'.oda.1�u^,'ra-.:?',.,.1ir,';b�s: 1 Universal Trunk Card 1 Digital Line Card(DLC) 1 Analog Message Waiting Line Card 1 M2008HF Standard Bus Tel W Dis 1 ONEAC On600XA-SNK 1 hour(opt.11-1 CAB) 1 Power Fail Transfer Unit(5-ports) 30 Patch Cord RJ45(Blue)5' 10 Cable Amped F-X C25X 50' 10 Block 66M1-50(used for 25 TSP-200's) 10 Bracket 89B(Used for 25 TSP-200's) 1 ONEAC Ground Bar 8 ONEAC 6-AP(CO-lines) The provision of equipment by Sprint is subject to the terms and conditions set forth in the Schedule A attached hereto and incorporated herein. -2- • 04/13/2004 1111 15:09 FAX 407 Z012/017 _41.-- �, SERVICE&EQUIPMENT SCHEDULE A 1.11,11-11AGREEMENT TERMS AND CONDITIONS 1. EQUIPMENT. Sprint will sell and Customer will 3.2 Sprint Installed Equipment If Customer fails to purchase the equipment ("Equipment"), consisting of reject the Equipment, in writing, as unserviceable or hardware, software, installation, and if applicable, inconsistent with the contract within seven days after maintenance services and/or manufacturer provided the date of the system cutover, Customer will be including the attached statement of work listed on conclusively presumed to have accepted the installed Attachment A-according to the terms and conditions of equipment. If Customer timely rejects the Equipment, this agreement and, any applicable Manufacturer Sprint will have the right to cure any defects in Software License Agreement. Customer assumes the performance or consistency, within a reasonable time, risk of loss or damage to the Equipment or any part taking into account the necessity to procure replacement thereof, from the date of its delivery to the Customer's Equipment or parts, and to correct or modify the address identified on the face of this Agreement. installed Equipment. After installation, Sprint (or 2. PRICE AND PAYMENT TERMS. Customer Sprint's subcontractor, agent, or assignee) will perform agrees to pay the total price according to the payment Sprint's standard testing procedures on the Equipment terms set out on the face hereof.All payments are due When these tests are successfully completed,Sprint will upon receipt of invoice and are subject to late payment notify Customer that the Equipment is installed and charge of 1-1/2%per month, or the maximum amount operating according to applicable test and performance permitted by law, whichever is greater, on the balance specifications at which time Customer will promptly in arrears for more than(30) days from the date of the execute Sprint's acceptance document. invoice. Customer will pay all sales,use, and privilege 33 Drop Ship Equipment. If Customer fails to reject and/or excise taxes and shall reimburse Sprint for the the Equipment within fifteen(15)days from the date of payments if made by Sprint.Telephone number listings, delivery, Customer will be conclusively presumed to access lines or other services are not included in the have accepted the Equipment. Equipment may only be price, unless specifically so stated, and are the rejected for errors in order processing or for defects or responsibility of Customer. In the event Customer deficiencies in the Equipment, and only after Customer repudiates, gives notice of cancellation, or otherwise has contacted Sprint and received a Call Tag number breaches this Agreement, before delivery of the with instructions on how to complete the return. Equipment to the installation site, Customer will pay 4. INSTALLATION Sprint as fixed, settled and liquidated damages,and not 4.1 Sprint Installed Equipment. as a penalty,its down payment or 25%of the Purchase A. Customer will give Sprint employees or agents Price,whichever is greater.Purchases where Sprint will reasonable access to premises and facilities where the not be providing installation("Drop Ship")may not be equipment is located or is to be installed,at Customer's cancelled following order placement without prior regular business hours, to allow Sprint to fulfill its written authorization of Sprint or assignment of a return obligations in this agreement. authorization number("Call Tag Number"). Customer's B. During the period of installation and throughout the payment is without right of set-off and shall not be warranty or maintenance period,Customer will: withheld or delayed due to dispute of any nature with (1) Guarantee and warrant that the premises in any other legal entity including affiliates of Seller. which the work is to be performed are completely 3. DELIVERY. free of asbestos(whether encapsulated or exposed), 3.1 Sprint will use commercially reasonable efforts to or other hazardous materials as defined by federal deliver and install the Equipment according to any or state law.If the warranty or guarantee cannot be schedule agreed upon by the parties. However, it is made prior to signing this agreement,Sprint will expressly understood that all stated delivery and/or have the following options in addition to any other installation dates are for approximation purposes only. legal or equitable remedies: 1)void this Under no circumstances will Sprint be liable for agreement,and retain any down payment damages, consequential or otherwise, for delays in previously paid by Customer,2)decline to make delivery or installation. any equipment installations in areas known or suspected of containing asbestos;or 3)unilaterally make an adjustment to the purchase price to reflect any increased costs of performance because of known or suspected asbestos on the premises. -3- • 04/13/2004 TIE 15:10 FAX 407 I013/017 (2) Provide necessary openings and ducts for cable A. Sprint Installed: Unless otherwise noted in writing and conductors in floors and walls, and floor plans in this Agreement or Sprint's statement of work all and/or prints showing the location of the openings data/intemetworking Equipment (including routers, and ducts. The floor plan and/or prints will also switches and hubs) sold and installed by Sprint under show the locations and types of Equipment to be this Agreement is warranted against defects in design, installed. material and workmanship under normal and proper (3) Obtain any necessary consents,approvals, use for a period of ninety (90) days from the licenses,and permits for installation of the Acceptance Date. The corresponding warranty for all Equipment on the premises where the Equipment is Other Equipment, identified on Attachment A,will be to be installed during all hours consistent with the one (1) year from the Acceptance Date exclusive of requirements of installation.Customer will defend, any associated software or other software product, indemnify and hold harmless Sprint,together with which shall be warranted for a period of ninety(90) its officers,agents and employees,against all days from the date of installation. Sprint's obligation damages,claims,liabilities or expenses(including under this warranty is limited to the repair or reasonable attorneys'fees,court costs,and allocated replacement of Equipment found to be defective in-house counsel legal expenses)arising out of or according to manufacturer's specifications under resulting in any way from Customer's failure to normal and proper use. obtain the permits,licenses,consents,or the like. B.Drop Shin: Drop Ship Equipment is warranted for (4) Be responsible for and provide or arrange for ninety(90)days from the shipment date for parts only. all ground wire connections to Customer's premises, During the warranty period, Sprint will replace separate electric source,circuits and power with defective parts only on an exchange basis. suitable outlets,as necessary,at its own expense; C.THIS WARRANTY IS IN LIEU OF ANY OTHER suitable space meeting operating environment WARRANTY OBLIGATION OR LIABILITY, requirements;heat,air conditioning,light,and EXPRESS OR IMPLI t-I), INCLUDING BUT NOT security and other operating environmental LIMITED TO, WARRANTIES OF requirements for the Equipment.The premises must MERCHANTIBILITY OR FITNESS FOR A be dry and free from dust and in the condition as to PARTICULAR.PURPOSE. not be injurious to the Equipment or the employees, 5.2 Warranty Services. agents,subcontractors or assignees of Sprint. A. Sprint Installed. Sprint will provide warranty C. Customer acknowledges that foreign voltages and service at the installation address, including parts and lightning effects on telephone equipment can be labor required to service the Equipment.The warranty significant during electrical storms. Sprint will not be service does not include replacement parts for lost or liable for any damages to the Equipment or claims stolen parts, or items damaged by negligence, acts of associated therewith caused by lightening or suspected God, or causes other than ordinary use, nor does it to be caused by lightening. include additions to, rearrangements, relocation or D. Customer acknowledges that any change in removal of the Equipment.Any maintenance or service Equipment type or location may change the quoted performed by the Customer or anyone not approved in price.The additional charges will be based on time and writing by Sprint will cause this warranty to become material costs incurred by Sprint. null and void. 4.2 Drop Shin Equipment Customer will be B. Drop Shin. The Customer will pay the costs of responsible for and provide or arrange for Equipment packing, shipping and insuring defective items installation at Customer's sole liability cost and returned to Sprint. Customer must contact Sprint to expense.Customer understands that failure to perform receive a Call Tag number with specific instructions installation or maintain the premises consistent with prior to shipping the Equipment back to Sprint. Sprint manufacturer's specifications may void any warranty will ship replacement part(s) or Equipment back to on the Equipment. Customer if the Equipment is under warranty. If Sprint 5. LIMITED WARRANTY,DISCLAIMERS AND determines that the warranty has expired, Customer REMEDIES. may 1) accept the return of the part or the Equipment 5.1 Warranty Term and Scope. as is; 2) request that the part or the Equipment be repaired at Customer's expense; or 3) request that a replacement part or Equipment be shipped to Customer at Customer's expense. -4- 04/13/2004 TLE 15:10 FAX 407 2014/017 If Customer requests a site visit by Sprint for repair, S. FAILURE TO PERFORM. If Customer does not Customer will be billed for all parts(if out of warranty) pay any amount when due,or otherwise fails to perform and labor associated with thc repair. any obligation under this Agreement, Sprint may 5.3 CUSTOMER IS SOLELY RESPONSIBLE FOR exercise,in addition to any other remedies available to ENSURING THE COMPATIBILITY OF ANY Sprint in law or in equity, either of the following EQUIPMENT NOT ACQUIRED FROM SPRINT options: a) declare all unpaid sums immediately due THAT IS ADDED TO OR USED IN CONJUNCTION and payable, and retain all sums theretofore paid as a WITH THE EQUIPMENT PROVIDED BY SPRINT. setoff against expenses incurred; or b) terminate this THE COMBINATION AND USE OF Agreement, retake possession of the Equipment, and NON-COMPATIBLE EQUIPMENT WILL, AT THE retain all sums theretofore paid as a setoff against OPTION OF SPRINT, VOID ANY REMAINING expenses incurred. WARRANTY AS TO ANY ITEM OF 9. SECURITY INTEREST. Customer grants Sprint a SPRINT-PROVIDED EQUIPMENT THAT IS purchase money security interest in the Equipment, AFFECILll BY THE NON-COMPATIBLE together with all replacements,parts, additions,repairs EQUIPMENT. and accessories incorporated into or affixed to the 6.INDEMNIFICATION. Unless otherwise limited by Equipment, and all proceeds for its sale, until all applicable law,each party will indemnify and hold the charges(including interest, if any) are paid in full.The other party,its officers,agents and employees,harmless parties agree that the Equipment will remain personal from and against any claims or causes of action for property,not a part of the land or building,regardless of personal injury or death to persons,or loss or damage to the manner of affixation. property(including but not limited to personal injury or 10. ASSIGNMENT. The rights and obligations of property damage suffered by either Party's own either party will neither be assigned nor delegated employees or agents), which is the result, directly or without the prior written consent of the other party, indirectly, of the indemnifying party's negligence or which consent will not be unreasonably withheld or intentional misconduct. delayed. However, Sprint may assign its rights and 7. LIMITATION OF LIABILITY. obligations, in whole or in part, to any parent, 7.1 NOTWITHSTANDING ANY OTHER subsidiary,affiliate,or successor in interest,provided it PROVISIONS OF THE AGREEMENT, IN NO gives the Customer notice of assignment EVENT WILL SPRINT BE LIABLE FOR INDIRECT, 11. WAIVER OF BREACH. No waivers, whether INCIDENTAL, OR CONSEQUENTIAL DAMAGES expressed or implied,by either party of any breach by (INCLUDING LOST PROFITS) SUSTAINED OR the other party of any of the covenants, agreements, INCURRED IN. CONNECTION WITH SERVICES conditions or duties of this Agreement will operate as a OR EQUIPMENT PROVIDED OR TO BE waiver of any subsequent breach of the same covenants, PROVIDED UNDER THIS AGREEMENT, agreements,conditions or duties. REGARDLESS OF THE FORM OF ACTION, 12. ENTIRE AGREEMENT. This Agreement WHETHER OR NOT THE DAMAGES WERE supersedes all prior or contemporaneous proposals and FORESEEN OR UNFORESEEN. IN NO EVENT negotiations and constitutes the entire agreement WILL SPRINT BE LIABLE FOR DAMAGES, LOSS between Sprint and Customer with respect to the OR EXPENSES OF ANY NATURE WHATSOEVER purchase of the Equipment. No representations or THAT MAY RESULT FROM THE FRAUDULENT statement not expressed herein is binding upon Sprint OR UNAUTHORIhh1) USE OF EQUIPMENT, Any modification must be in writing and executed by an SERVICES, OR FACILITIES PURCHASED OR authorized representative of the party against whom ACQUIRED BY CUSTOMER enforcement is sought.Any provision of this Agreement 7.2 Sprint disclaims any liability for loss or damage to which is in conflict with any applicable statute or Customer or any other entity resulting from the regulation will be deemed null and void only to the fraudulent or unauthorized use of the equipment extent that it may conflict, and all other provisions of purchased by parties known or unknown, including this Agreement will remain in full force and effect employees,agents or associates of Customer.Customer This Agreement is deemed made and governed by the expressly assumes the risk of loss associated with the laws of the state of where the Equipment is located_ unauthorized use and acknowledges that it is Customer's obligation to take all reasonable and necessary steps to protect against the loss. Customer assumes thc obligation whether or not Sprint has advised Customer of the possibility of the loss,how the loss might occur -5- 04/13/2004 TUE 15:11 FAX 407 ?015/017 or how to prevent against the loss. -6- 04/13/2004 TLE 15:11 FAX 407 Z016/017 13. MISCELLANEOUS. 13.8 Third Party Beneficiary. This Agreement will not 13.1 Purchase Orders. Any purchase order or terms be construed or interpreted to create any direct,indirect contained in a P.O. or other order document issued by or third party rights or benefits whatsoever in favor of Customer will be deemed to have been issued for its any person or entity of any kind between any persons or own purchasing, accounting, and other record keeping entities other than the Sprint and Customer. purposes only and will not be considered part of this 13.9 Property of Sprint. Customer acknowl-edges that Agreement. If the terms and conditions on any in the casc of Sprint installed Equipment,Sprint may purchase order conflict with this Agreement, this install a data collection device and other Sprint Agreement will control. equipment at Customer's location to be used to monitor 13.2. Force Majeure. Sprint will not be liable for any and trouble-shoot defects in the Equipment throughout failure to perform any part of this Agreement due to the wan-anty and,if applicable,maintenance period. All • federal, state, or local government action, statute, such property and equipment will remain the property ordinance or regulation, strike or other labor trouble, of Sprint. Customer is purchasing only that Equipment riot or other civil disturbance, sabotage, fire, flood, specifically described on Attachment A hereof. At the lightning or electrical storm,terrorist act,environmental expiration or termination of this Agreement or any hazard, or acts of God, inability to secure the service plan hereunder,Sprint will be entitled to enter Equipment or necessary ancillary material or supplies, Customer's premises to remove all Sprint property and or, without limiting the foregoing, by any other cause, equipment contingency, or circumstance within or without the United States not subject to its control which prevents or hinders Sprint's performance of this Agreement 13.3 Notices. Any notice required or permitted to be given under any of the provisions of this Agreement or governing law will be given in writing and either hand delivered or sent by first-class mail,postage prepaid,to the other party at its address on the face of this Agreement. 13.4 Attorney's Fees. In the event either party must pursue legal action to compel compliance with the terms of this Agreement, the prevailing party will be entitled to recover from the other party reasonable attorney's fees and costs and allocated in-house counsel legal expenses,as well as any collection costs incurred. 13.5 Credit Check. Customer consents to a search by Sprint of its credit history and financial stability with any credit or reporting company or agency. In the event Sprint determines,in its sole discretion,that Customcr fails to meet Sprint credit guidelines,Sprint may require that adequate payment assurances be provided or may terminate the Agreement. 13.6 Risk of Loss. Risk of loss of the Equipment will pass from Sprint to Customer upon delivery to the installation site designated on page 1 hereof. 13.7 Title. Title to the Equipment will pass from Sprint to Customer upon Customer's payment of the Total Equipment Purchase Price and any applicable taxes of the Equipment. -7- Agenda 04-20-2004 Mayorc, center of Good Li, Commis V G S. Scott Vandergrift t.!�`s- ,,;, Danny Howell, District 1 Scott Anderson, District 2 Acting City Manager RustyJohnson,District 3 , V. Gene Williford Nancy J. Parker, District 4 STAFF REPORT TO: The Honorable Mayor and City Commissioners FROM: Brian Ross, Information Systems Director DATE: April 13, 2004 RE: Wireless services ISSUE Should the City's formal bid process be waived to piggy-back on Orange County's contract with Verizon Wireless for wireless services? BACKGROUND/DISCUSSION ti Currently,the Ocoee PD uses AT&T Wireless CDPD service on their laptops for mobile dispatching and queries. 1J}fortunately, AT&T Wireless is scheduled to stop supporting their CD '-vice this suaNilt Therefore, Ocoee and all other governm- t '-s are looking for a new wireless carrier for their null&computers before the en• • '' e City has looked at products and services owed by Verizon Wireless, Sprint, and A : ireless. Bas on coverages experienced within tho City's response area, staff was pleased with the service offered by Verizon Wireless. This is also the same provider chosen by Orange County which is providing dispatch services for the Ocoee Fire Department. With Verizon upgrading their towers this summer, Ocoee PD will benefit from speeds that are a minimum of 400%faster than our current service from AT&T. This type of"broadband" speed opens up the ability to provide access to more information to users in the field. Staff also plans to expand wireless service beyond the PD to all fire rescue vehicles, fire chiefs, code enforcement officers, and elected officials. Verizon Wireless' service costs $2,000 to setup and $60 a month per laptop for unlimited access. There may also be a$700 monthly charge for frame relay services to provide a more stable connection between the City's network and Verizon's wireless network. RECOMMENDATION Staff respectfully requests the Honorable Mayor and City Commission to authorize the Mayor and City Clerk to sign and execute all documents with Verizon Wireless for providing the City wireless service to its laptops. 31 MyFbndacam FLORIDA DEPARTMENT OF MANAGEMENT SERVICES JEB BUSH WILLIAM S. SIMON Governor Secretary Suite 315 October 2, 2003 MEMORANDUM NO.: (725-000-03-1)-6 TO: User Agency FROM: Director, State Purchasing SUBJECT: Contract No. 725-000-03-1 Title: Cellular and Paging Equipment and Services The following changes have been made to the subject contract: Sprint PCS has been added to State Contract. Any questions or problems in delivery or service that may arise regarding this contract should be directed to Marvin Williams at(850)488-8366, Suncom 278-8366, or e-mail wi l liamAdms.state.fl.us DSP/mw/meb State Purchasing•4050 Esplanade Way,Suite 350, Tallahassee,Florida 32399-0950 TELEPHONE:850-488-8440•Fax:850-488-5498 MyRonda.can FLORIDA DEPARTMENT OF • MANAGEMENT SERVICES JEB BUSH WILLIAM S. SIMON Governor Secretary Suite 315 September 2, 2003 MEMORANDUM NO.: (725-000-03-1)-5 TO: User Agency FROM: Director, State Purchasing SUBJECT: Contract No. 725-000-03-1 Title: Cellular and Paging Equipment and Services The following changes have been made to the subject contract: Termination of Nextel South Corporation has been postponed pending the outcome of Chapter 120 Proceedings. Any questions or problems in delivery or service that may arise regarding this contract should be directed to Marvin Williams at(850)488-8366, Suncom 278-8366,or e-mail William@dms.state.fl.us DSP/mw State Purchasing•4050 Esplanade Way,Suite 350, Tallahassee,Florida 32399-0950 TELEPHONE:850-488-8440•FAX:850-488-5498 .,. MyFbiida.wm FLORIDA DEPARTMENT OF MANAGEMENT SERVICES JEB BUSH WILLIAM S. SIMON Governor Secretary Suite 315 August 19, 2003 MEMORANDUM NO.: (725-000-03-1)-4 TO: User Agency FROM: Director, State Purchasing SUBJECT: Contract No. 725-000-03-1 Title: Cellular and Paging Equipment and Services The following changes have been made to the subject contract: AT&T Wireless has been added to the State Contract. Any questions or problems in delivery or service that may arise regarding this contract should be directed to Marvin Williams at(850)488-8366, Suncom 278-8366,or e-mail WilliamAdms.state.fl.us DSP/mw State Purchasing•4050 Esplanade Way,Suite 350, Tallahassee,Florida 32399-0950 TELEPHONE:850-488-8440•Fax:850-488-5498 mew MyFlorida corn FLORIDA DEPARTMENT OF r5 = MANAGEMENT SERVICES JEB BUSH WILLIAM S. SIMON Governor Secretary Suite 315 August 15,2003 MEMORANDUM NO.: (725-000-03-1)-3 TO: User Agency FROM: Director, State Purchasing SUBJECT: Contract No. 725-000-03-1 Title: Cellular and Paging Equipment and Services The following changes have been made to the subject contract: Please note that the current contract vendor Nextel South Corporation,has been removed from the State Contract. Any questions or problems in delivery or service that may arise regarding this contract should be directed to Marvin Williams at(850)488-8366, Suncom 278-8366, or e-mail William@dms.state.fl.us DSP/mw State Purchasing•4050 Esplanade Way,Suite 350, Tallahassee,Florida 32399-0950 TELEPHONE:850-488-8440•Fax:850-488-5498 zioTir MyHonda.corn • 4 FLORIDA DEPARTMENT OF MANAGEMENT SERVICES JEB BUSH WILLIAM S. SIMON Governor Secretary Suite 315 July 16, 2003 MEMORANDUM NO.: (725-000-03-1)-2 TO: User Agency FROM: Director, State Purchasing SUBJECT: Contract No. 725-000-03-1 Title: Cellular and Paging Equipment and Services This contract has been revised to add Amendment 1 in support of MyFloridaMarketPlace. The amendment can be viewed below. Any questions or problems in delivery or service that may arise regarding this contract should be directed to Marvin Williams at(850)488-8366, Suncom 278-8366,william(a�dms.state.fl.us DSP/mw/meb State Purchasing•4050 Esplanade Way,Suite 350, Tallahassee,Florida 32399-0950 TELEPHONE:850-488-8440•Fax:850-488-5498 MyFbnda.corn FLORIDA DEPARTMENT OF MANAGEMENT SERVICES JEB BUSH WILLIAM S. SIMON Governor Secretary State Term Contract No. 725-000-03-1 Amendment No. 1 THIS AMENDMENT, effective as of the last date signed below, is by and between the State of Florida Department of Management Services (the "Department") and the entity identified below as Contractor (the "Contractor") (collectively, the "Parties"), and amends State Term Contract No. 725-000-03-1 (the"Contract"). WHEREAS the Department is implementing an electronic procurement system, currently known as MyFloridaMarketPlace, (the "System") with the assistance of a third-party agent,Accenture LLP ("Accenture"); and WHEREAS the Department wishes to include the Contractor and the Contract in the System; and WHEREAS the Contractor desires to participate in the System; and WHEREAS the Contract allows modifications in the event an electronic procurement system is implemented. THEREFORE, in consideration of the mutual promises contained below, and other good and valuable consideration receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Registration. The Department shall allow the Contractor, following effective registration with Accenture, to participate in the System. The Contractor shall register in the System within ten (10) business days of the effective date of this Amendment. Contractor shall visit www.myfloridamarketplace.com and follow the appropriate instruction in order to register. 2. Transaction Fee. Effective April 1, 2003, the Contract provision entitled"Surcharge Fee and Summary of Total Sales" is deleted and replaced with the following "Transaction Fee" section. This Transaction Fee is in lieu of, and not in addition to,the surcharge fee authorized by section 287.1345, Florida Statutes (2002). State Purchasing•4050 Esplanade Way,Suite 350, Tallahassee,Florida 32399-0950 TELEPHONE:850-488-8440•Fax:850-488-5498 Transaction Fee The Department has instituted a statewide eProcurement System("System"), with the assistance of a third-party agent, Accenture LLP("Accenture"). All transactions from this Contract shall be deemed a"transaction processed through the eProcurement System"as that term is used in the contract between the Department and Accenture. Pursuant to section 287.057(23), Florida Statutes (2002), a Transaction Fee of one percent(1.0%) of the total dollar amount of each purchase order shall apply to all purchases from this Contract. The fee shall be paid by the Contractor, and shall not be added to purchase orders as a separate item. Because the Transaction Fee will be used, in part, to compensate Accenture for the development, operation, and maintenance of the System, Accenture is an intended third-party beneficiary of this paragraph imposing the Transaction Fee on transactions from this Contract. For payments within the State accounting system(FLAIR or its successor),the Transaction Fee shall,when possible,be automatically deducted from payments to the Contractor. If automatic deduction is not possible, whether within or without the State accounting system, Accenture shall either(1)establish with the Customer an automated process for billing and collecting the Transaction Fee from payments that are made to the Contractor or(2)rely upon the Contractor to self-report and pay the Transaction Fee pursuant to processes that Accenture may establish. By submission of these reports and corresponding Contractor deposits, Contractor is certifying their correctness. All such reports and fee deposits shall be subject to audit by the State. Contractor shall receive a credit for any Transaction Fee paid by the Contractor for the purchase of any item(s) if such item(s)are returned to the Contractor through no fault, act, or omission of the Contractor. Notwithstanding the foregoing,a Transaction Fee is non-refundable when an item is rejected or returned, or declined,due to the Contractor's failure to perform or comply with specifications or requirements of the applicable purchase order or Contract. Contractors shall be responsible for reporting sales and paying Transaction Fees resulting from sales made by authorized resellers. Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees. CONTRACTORS DELINQUENT IN PAYING TRANSACTION FEES MAY BE EXCLUDED FROM BIDDING ON DEPARTMENT CONTRACTS. 3. Electronic Invoicing. Notwithstanding any provision of the Contract,the Contractor shall supply electronic invoices in lieu of paper-based invoices for those transactions processed through the System. Electronic invoices shall be submitted to the Customer through the Ariba Supplier Network(ASN) in one of the following mechanisms—EDI 810, cXML, or web-based invoice entry within the ASN. 4. Catalog Data. Accenture is responsible for converting Contract catalog information into a format supported by the System. To accomplish this conversion,the Contractor shall provide certain information in electronic format directly to Accenture; alternatively,the Contractor may follow the"punchout" solution described in more detail below. Within ten(10) days of written notice from Accenture, Contractor shall provide all information necessary to facilitate electronic purchases from this contract, or shall contact Accenture and begin work on the"punchout" solution described below. Such information may include,but is not limited to, Contractor name, SKU,brand/manufacturer,product name and brief description, unit of measure, and price. Contractor shall provide this information in the format requested by Accenture. No costs or expenses associated with providing this information shall be charged to the Department, Customers, or Accenture. With Contractor's timely assistance,Accenture shall create and maintain web-based placement of the requested contract information. "Punchout"Alternative The Contractor may offer, as an alternative to providing the information discussed above, an online "punchout" solution, in which the Customer accesses the Contractor's website directly from the System, rather than the System maintaining the Contractor's data. This solution must allow the Customer to reach the Contractor's site, browse for contracted items only, and return to the System with a list of items ready to be inserted into a requisition. If Contractor selects this alternative, it must meet the following requirements: • The solution must conform to cXML 1.0 or 1.1 standards. • The solution must conform to the technical specifications and implementation requirements provided by Accenture, and the Contractor must work with Accenture to ensure successful integration of the punchout solution into the System • The solution must have the capability to provide only those products awarded under the contract, and block any non-contract item(s)from being added to the requisition. Warranty For the purposes of this section, the Contractor warrants and represents that it is authorized and empowered to and hereby grants the Department and Accenture the right and license to use, reproduce, transmit, distribute and publicly display within the System the information outlined above. In addition, the Contractor warrants and represents that it is authorized and empowered to and hereby grants the Department and Accenture the right and license to reproduce and display within the System the Contractor's trademarks, system marks, logos, trade dress or other branding designation that identifies the products made available by the Contractor under the Contract. If the Contractor is not the manufacturer, it shall be the Contractor's responsibility to obtain authorization from the manufacturer to comply with the provisions of this section, including securing any intellectual property rights of the manufacturer. If the Contractor is the manufacturer, it shall only authorize dealers, outlets, distributors, value-added resellers, etc. within their network that can comply with the provisions of the Contract. 5. Additional Modifications. The Department reserves the right to further revise the collection and reporting requirements in conjunction with alterations to the System. 6. Conflict. In the event any of the terms herein conflict with the terms of the Contract, the terms of this Amendment shall control. All other terms of the Contract remain in full force and effect. Contractor waives and releases any and all claims for additional compensation arising out of or relating to this Amendment. 7. Warranty of Authority. Each person signing this Amendment warrants that he or she is duly authorized to do so and to bind the respective party. SO AGREED: CONTRACTOR Contractor Name Address By: Date Its: STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT SERVICES By: Date Approved as to form and legality by the Department General Counsel's Office: Date Suite 315 'ry`, • April 1, 2003 MEMORANDUM NO.: (725-000-03-1)-1 FLORIDA DEPARTMENT TO: User Agency OF MANAGEMENT FROM: Director, State Purchasing SERVICES SUBJECT: Contract No. 725-000-03-1 Title: Cellular and Paging Equipment and Services JEB BUSH The following changes have been made to the subject contract: Governor Verizon Wireless has been added to the State Contract. SIMONE MARSTILLER Any questions or problems in delivery or service that may arise regarding Interim Secretary this contract should be directed to Marvin Williams at(850)488-8366, Suncom 278-8366,william@dms.state.fl.us DSP/mw/meb MyFlorida.com TM State Purchasing 4050 Esplanade Way Suite 350 Tallahassee,Florida 32399-0950 Telephone: 850-488-8440 Fax: 850-488-5498 Internet: www.MyFlorida.com 1:4" Suite 315 •4E , '• CERTIFICATION OF CONTRACT TITLE: Cellular and Paging Equipment and Services FLORIDA DEPARTMENT CONTRACT NO.: 725-000-03-1 OF MANAGEMENT ITN NO.: 61-725-000-W SERVICES EFFECTIVE: See Contract Paragraph 1.03, Term, and 2.36, Effective Date SUPERSEDES: 725-330-98-1 JEB BUSH CONTRACTORS: Arch Wireless(A) Governor AT&T Wireless (A) Cingular Wireless (A) CYNTHIA A. HENDERSON Gray FI Holding DBA Graylink(A) Secretary Liberty Communications (A) Metrocall Wireless(A) Network Services(A) Nextel South Corporation(A) Sprint PCS (A) MyFlorida.com Verizon Wireless(A) (Rev 2 Oct 03) A. AUTHORITY-Upon affirmative action taken by the State of Florida Department of Management Services, a contract has been executed between the State of Florida and the designated contractors. B. EFFECT-This contract was entered into to provide economies in the purchase of Cellular and Paging Equipment and Services by all State of Florida agencies and institutions. Therefore, in compliance with State Purchasing Section 287.042, Florida Statutes, all purchases of these commodities 4050 Esplanade Way shall be made under the terms,prices, and conditions of this contract Suite 350 Tallahassee, Florida and with the suppliers specified. 32399-0950 C. ORDERING INSTRUCTIONS -All purchase orders shall be issued Telephone: in accordance with the attached ordering instructions. Purchaser 850-488-8440 shall order at the prices indicated, exclusive of all Federal, State and local taxes. All contract purchase orders shall show the State Fax: 850-488-5498 Internet: www.MyFlorida.com Purchasing contract number,product number, quantity,description of item, with unit prices extended and purchase order totaled. (This requirement may be waived when purchase is made by a blanket purchase order.) D. CONTRACTOR PERFORMANCE-Agencies shall report any vendor failure to perform according to the requirements of this contract on Complaint to Vendor, form PUR 7017. Should the vendor fail to correct the problem within a prescribed period of time,then form PUR 7029, Request for Assistance, is to be filed with this office. E. SPECIAL AND GENERAL CONDITIONS - Special and general conditions are enclosed for your information. Any restrictions accepted from the supplier are noted on the ordering instructions. The vendor rates published in the contracts are ceiling rates, and to the extent practicable, agencies should negotiate lower rates depending on the complexity and duration of a proposed project. F. CONTRACT APPRAISAL FORM- State Contract Appraisal, form PUR 7073 should be used to provide your input and recommendations for improvements in the contract to State Purchasing for receipt no later than 90 days prior to the expiration date of this contract. } Authorized Signature (date) MW/mlb Attachments CONTRACT ADMINISTRATOR FOR ANY QUESTIONS, SUGGESTIONS,OR CONTRACT SUPPLIER PROBLEMS WHICH MAY ARISE SHALL BE BROUGHT TO THE ATTENTION OF: MARVIN WILLIAMS PHONE: (850)488-8366 SUNCOM 278-8366 E-MAIL: williamna,dms.state.fl.us 1.0 Instructions to Bidders Contents 1.01 Definitions 1.02 General Instruction 1.03 Terms and Conditions 1.04 Who May Bid 1.05 Ordering Instructions 1.06 Basis for Award 1.07 Questions/Contract Specialist 1.08 Conflict of Interest 1.09 Convicted Vendors 1.10 Discriminatory Vendors 1.11 Bidder's Representation and Authorization 1.12 Performance Qualifications 1.13 Execution of Bid 1.14 Submittal of Bid 1.15 Bid Tabulation 1.16 Special Accommodation 1.17 Firm Bids 1.18 Clarifications/Revisions 1.19 Contract Formation 1.20 Notice of Award 1.21 Contract Overlap 1.22 Purchasing Card Program 1.23 Public Records 1.24 Protests 1.01 Definitions: See the general conditions for definitions of"bid," "Contract," "Contractor," "Customer," "Department," "product," "purchase order," and "State," which terms are material to these instructions. 1.02 General Instruction: The bidder shall read all of the solicitation documents and comply with all specified requirements. 1.03 Terms and Conditions: All bids are subject to the terms of the following sections of these solicitation documents, which, in case of conflict, shall have the order of precedence listed: technical specifications; instructions to bidders; and general conditions. These terms and conditions supersede the "general conditions" contained in the Bidder Acknowledgement form (PUR 7027 Rev. 6/1/98), which is included in section 4.0 of these solicitation documents. The Department objects to and shall not consider any additional terms or conditions submitted by a bidder, including any appearing in documents attached as part of a bidder's response. In signing and submitting its bid, a bidder agrees that any additional terms or conditions,whether submitted intentionally or inadvertently, shall have no force or effect. Failure to comply with terms and 14 conditions, including those specifying information that must be submitted with a bid, shall be grounds for rejecting a bid. 1.04 Who May Bid: Manufacturers and Certified Dealers for specified Cellular and Paging Equipment and Services and pager services are invited to respond to this solicitation. By submitting a bid, each bidder certifies that it satisfies the following criteria, in addition to any other specified in the solicitation documents. Full-service office with business hours of 8:00 A.M. E.S.T. to 5:00 P.M. E.S.T. weekdays (minimum) and with staff capable of handling inquiries and orders on-location during those business hours (including lunch hour). In furtherance of the One Florida Initiative, bidders are encouraged to seek the participation of woman- and minority-owned business enterprises (WMBE). Information on the One Florida Initiative and WMBEs is available from the Office at Supplier Diversity at http://osd.dms.state.fl.us. Please identify each WMBE that will participate in the Contract and the nature of the participation. 1.05 Ordering Instructions: On the Ordering Instructions form included in section 4.0 of these solicitation documents, bidders shall identify those dealers or resellers that will accept orders and complete deliveries and certify that they are authorized to do so. 1.06 Basis for Award: The Department intends to make awards to one or more of the responsive highest scoring bidders, for Pager Services and Cellular Services. EACH BIDDER SHALL SUBMIT WITH ITS BID BOTH A HARD COPY AND AN ELECTRONIC COPY OF THE LIST THE BIDDER USES AS THE BENCHMARK LIST AGAINST WHICH TO MEAURE OFFERED PRICE SAVINGS. This Benchmark List must be composed of list prices generally available to the citizens of the state of Florida. To be responsive,bidders must offer a minimum twenty-five percent(25%) discount to their published benchmark price list on a statewide basis. Bids will be scored as follows, with price being the controlling criterion. Price will be based upon the lowest total net discounted price for a given category. The lowest bidder will receive the maximum number of points(100), and others will be awarded points according to this formula: (N/ X) * C=Z,where N= lowest price bid X=bidder's price C =total number of points(100) Z=points awarded A maximum of ten bonus points will be awarded as follows. A bidder may receive points on more than one basis,but the total shall not exceed ten points. 10 points — Bidder is a Florida-certified WMBE. (submit copy of certification from the Florida Office of Supplier Diversity(http://osd.dms.state.fl.us/)). 15 4 points — Bidder is incorporated in, or has its principal place of business in, Florida (submit proof from the Florida Secretary of State, Division of Corporations, or certification from company officer). 2 points — Bidder is a WMBE certified by another state of the federal government (submit copy of certification from the other state or the federal government). A bidder shall submit with its bid conclusive proof that it qualifies for bonus points. FAILURE TO INCLUDE THIS INFORMATION WITH THE BID SHALL PRECLUDE AN AWARD OF BONUS POINTS. Bidder may bid options and accessories for specified basic units only. The bidder must receive an award for the specified basic unit in order to receive an award for options and accessories. The Department reserves the right to accept or reject any individual item(s) offered as options and accessories. Bidders are solely responsible for submitting the appropriate forms with their bid. To assist bidders, a bid preparation checklist is included in section 4.0 of these solicitation documents. To avoid submitting unnecessary paper, the bidder is not required to submit the Technical Specifications, Section 2.0,with their bid. The Department reserves the right to reject pricing that is greater than pricing offered to other potential Customers(e.g., city, county,university, or federal contracts). The Department reserves the right to accept or reject any and all bids, or separable portions, and to waive any minor irregularity, technicality, or omission if the Department determines that doing so will serve the State's best interest. 1.07 Questions/Contract Specialist: Bidders shall address any question regarding this solicitation to the person who is identified on the cover sheet of this solicitation package. Do not contact Customers directly. Questions shall be in writing, shall reference the ITB number and the bid opening date, and shall be RECEIVED NO LATER THAN October 30, 2002, and shall be answered in writing on or before November 5, 2002. The Department shall post amendments to the solicitation documents on the Florida Vendor Bid System at www.myflorida.com under the posted solicitation number (click on Business and then Doing Business with the State; under Everything for Vendors and Customers, click Vendor Bid System (VBS) and then Search Advertisements. In the Agency drop-down menu, select Department of Management Services, then click Initiate Search). Each bidder is responsible for monitoring this site for new or changing information. The Department shall not be bound by any verbal information or by any written information that is not either contained within the solicitation documents or formally noticed and issued by the Department. 1.08 Conflict of Interest: This solicitation is subject to chapter 112 of the Florida Statutes. Bidders shall disclose with their bid the name of any officer, director, employee or other agent who is also an employee of the State. Bidders shall also disclose the name of any State 16 employee who owns, directly or indirectly, an interest of five percent (5%) or more in the bidder or its affiliates. 1.09 Convicted Vendors: A person or affiliate placed on the convicted vendor list following a conviction for a public entity crime is prohibited from doing any of the following for a period of 36 months from the date of being placed on the convicted vendor list: submitting a bid on a contract to provide any goods or services to a public entity; submitting a bid on a contract with a public entity for the construction or repair of a public building or public work; submitting bids on leases of real property to a public entity; being awarded or performing work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and transacting business with any public entity in excess of the Category Two threshold amount ($25,000) provided in section 287.017 of the Florida Statutes. 1.10 Discriminatory Vendors: An entity or affiliate placed on the discriminatory vendor list pursuant to section 287.134 of the Florida Statutes may not submit a bid on a contract to provide any goods or services to a public entity; may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, sub-contractor, or consultant under a contract with any public entity; and may not transact business with any public entity. 1.11 Bidder's Representation and Authorization: In submitting a bid, each bidder understands,represents, and acknowledges the following(if the bidder cannot so certify to any of following, the bidder shall submit with its bid a written explanation of why it cannot do so). • The bidder is not currently under suspension or debarment by the State or any other governmental authority. • To the best of the knowledge of the person signing the bid, the bidder, its affiliates, subsidiaries, directors, officers, and employee are not currently under investigation by any governmental authority and have not in the last ten (10) years been convicted or found liable for any act prohibited by law in any jurisdiction, involving conspiracy or collusion with respect to bidding on any public contract. • To the best of the knowledge of the person signing the bid, the bidder has no delinquent obligations to the State, including a claim by the State for liquidated damages under any other contract. • The bid is made in good faith and not pursuant to any agreement or discussion with, or inducement from, any firm or person to submit a complementary or other noncompetitive bid. • The bid prices and amounts have been arrived at independently and without consultation, communication, or agreement with any other bidder or potential bidder; neither the prices nor amounts, actual or approximate, have been disclosed to any bidder or potential bidder, and they will not be disclosed before bid opening. 17 • The bidder has fully informed the Department in writing of all convictions of the firm, its affiliates (as defined in section 287.133(1)(a) of the Florida Statutes), and all directors, officers, and employees of the firm and its affiliates for violation of state or federal antitrust laws with respect to a public contract for violation of any state or federal law involving fraud, bribery, collusion, conspiracy or material misrepresentation with respect to a public contract. This includes disclosure of the names of current employees who were convicted of contract crimes while in the employ of another company. • Neither the bidder nor any person associated with it in the capacity of owner, partner, director, officer, principal, investigator, project director, manager, auditor, or position involving the administration of federal funds: o Has within the preceding three years been convicted of or had a civil judgment rendered against them or is presently indicted for or otherwise criminally or civilly charged for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a federal, state, or local government transaction or public contract; violation of federal or state antitrust statutes; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; or o Has within a three-year period preceding this certification had one or more federal, state, or local government contracts terminated for cause or default. • The product offered by the bidder will conform to the specifications without exception. • The bidder has read and understands the Contract terms and conditions, and the bid is made in conformance with those terms and conditions. • If an award is made to the bidder, the bidder agrees that it intends to be legally bound to the Contract that is formed with the State. • The bidder has made a diligent inquiry of its employees and agents responsible for preparing, approving,or submitting the bid, and has been advised by each of them that he or she has not participated in any communication, consultation, discussion, agreement, collusion, act or other conduct inconsistent with any of the statements and representations made in the bid. • The bidder shall indemnify, defend, and hold harmless the Department and its employees against any cost, damage, or expense that may be incurred or be caused by any error in the bidder's preparation of its bid. • All information provided by, and representations made by, the bidder are material and important and will be relied upon by the State in awarding the Contract. Any misstatement shall be treated as fraudulent concealment from the State of the true facts relating to submission of the bid. A misrepresentation shall be punishable under law, including, but not limited to, Chapter 817 of the Florida Statutes. 18 1.12 Performance Qualifications: The Department reserves the right to investigate or inspect at any time whether the product, qualifications, or facilities offered by bidder meet the Contract requirements. Bidder shall at all times during the Contract term remain responsive and responsible. Bidder must be prepared, if requested by the Department, to present evidence of experience, ability, and financial standing, as well as a statement as to plant, machinery, and capacity of the bidder for the production, distribution, and servicing of the product bid. If the Department determines that the conditions of the solicitation documents are not complied with, or that the product proposed to be furnished does not meet the specified requirements, or that the qualifications, financial standing, or facilities are not satisfactory, or that performance is untimely, the Department may reject the bid or terminate the Contract. Bidder may be disqualified from receiving awards if bidder, or anyone in bidder's employment, has previously failed to perform satisfactorily in connection with public bidding or contracts. This paragraph shall not mean or imply that it is obligatory upon the Department to make an investigation either before or after award of the Contract, but should the Department elect to do so, bidder is not relieved from fulfilling all Contract requirements. 1.13 Execution of Bid: Each bid shall be in the form included with these solicitation documents and manually signed by an authorized representative of the bidder. Bids shall be typed or printed in permanent ink. Any correction or alteration shall be in ink and initialed. The bidder's name shall appear on each page of the bid in the space noted. Each bid shall include the Bidder Acknowledgement form(PUR 7027 Rev. 6/1/98), but the "General Conditions" of that form are superseded by the terms of and conditions of these solicitation documents. Each bid shall include a copy of the Contract form, signed by a person authorized to bind the Company. Bidders may bid fewer than all of the product categories and sub-categories outlined in the Technical Specifications and noted on the bid tables included in section 4.0 of these solicitation documents. A bidder may return only those bid tables containing categories it is bidding, but shall identify in a cover letter exactly which pages it is submitting. Bidders are solely responsible for submitting the appropriate forms with their bid. 1.14 Submittal of Bid: Submit the original bid and one copy in a sealed envelope. DO NOT INCLUDE MORE THAN ONE BID PER ENVELOPE. EACH BIDDER SHALL SUBMIT BOTH A HARD COPY AND AN ELECTRONIC COPY OF THE BID WITH ITS RESPONSE. The face of the envelope shall indicate State Purchasing's address, the bid number, and date and time of the bid opening. Bids not submitted on the forms included with these solicitation documents shall be rejected. Each bidder is responsible for ensuring that its bid is delivered at the proper time and to the proper place. The Department shall not consider late bids. BIDS MUST BE RECEIVED AT STATE PURCHASING, 4050 ESPLANADE WAY, ROOM 380G, TALLAHASSEE, FLORIDA, AT OR BEFORE 2:00 P.M. ON November 13,2002. 1.15 Bid Tabulation: Bid Tabulation and Notice of Intended Award: Bids shall be opened on the date specified on the Bidder Acknowledgement form (PUR 7027 Rev. 6/1/98), or as amended, and thereafter tabulated. Prices will not be read, pursuant to section 119.07(m) of the Florida Statutes. Based on the bid tabulation, on the date specified on the Bidder 19 Acknowledgement form, the Department shall electronically post a notice of intended award at http://fcn.state.fl.us/owa vbs/owa/vbs www.main menu. If the notice of award is delayed, in lieu of posting the notice the Department shall post a notice of the delay and a revised date for posting the notice of intended award. Any person who is adversely affected by the decision shall file with the Department a notice of protest within 72 hours after the posting of the notice of intended award (see Instructions in Paragraph 1.24 for more information on protests). The Department shall not provide bid tabulations by telephone. 1.16 Special Accommodation: Any person requiring a special accommodation at State Purchasing because of a disability should call State Purchasing at(850) 488-8440 at least five (5) workdays prior to the bid opening. If you are hearing or speech impaired, please contact State Purchasing by using the Florida Relay Service at(800) 955-8771 (TDD). 1.17 Firm Bids: The Department may make award within sixty (60) days after the date of bid opening, during which period bids shall remain firm and shall not be withdrawn. If award is not made within sixty (60) days, a bid shall remain firm until either the Department awards the Contract or the Department receives from the bidder written notice that the bid is withdrawn. Any bid that expresses a shorter duration may, in the Department's sole discretion, be accepted or rejected. 1.18 Clarifications/Revisions: Before award, the Department reserves the right to seek clarifications, to request bid revisions, and to request any information deemed necessary for proper evaluation of bids from all bidders deemed eligible for Contract award. Failure to provide requested information may result in rejection of the bid. 1.19 Contract Formation: No contract shall be formed between bidder and the Department until the Department signs the Contract. The Department shall not be liable for any costs incurred by a bidder in preparing or producing its bid or for any work performed before the Contract is effective. 1.20 Notice of Award: The Department shall issue a notice of award, if any, to successful bidders, who shall be responsible for reproducing and distributing copies of the notice and Contract documents to all of the dealers or resellers identified in the bid as authorized to accept purchase orders and complete deliveries and to all authorized service centers. 1.21 Contract Overlap: Bidders shall identify any products covered by this solicitation that they are currently authorized to furnish under any other contract with the Department. By entering into the Contract, a Contractor authorizes the State to eliminate duplication between agreements in the manner the State deems to be in its best interest. 1.22 Purchasing Card Program: The State has implemented a purchasing card program through Bank of America, using the Visa network. Contractors will receive payment from the purchasing card in the same manner as other Visa purchases. Accordingly, bidders must presently have the ability to accept Visa or take whatever steps necessary to implement the ability before the start of the Contract term. The State reserves the right to revise this program in conjunction with implementation of an on-line procurement system. 20 1.23 Public Records: Florida law generously defines what constitutes a public record; see, for example, section 119.07 of the Florida Statutes. If a bidder believes that its bid contains information that should not be a public record, the bidder shall clearly segregate and mark that information (for example, stamp each page "Confidential" and place it in an envelope marked "Confidential") and briefly describe in writing the grounds for claiming exemption from the public records law. The Department will not independently evaluate the bidder's claim of exemption. If the Department receives a public records request related to the bid, the Department shall notify the bidder in writing at least seven days before making the information available for review by the requester. The bidder shall be solely responsible for taking whatever action it deems appropriate to legally protect its claim of exemption from the public records law. If the bidder fails to do so, the Department shall make the information available for review. In no event shall the Department or any of its employees or agents be liable for disclosing, or otherwise failing to protect the confidentiality of, information submitted in response to this solicitation. 1.24 Protests: Any protest concerning this solicitation shall be made in accordance with sections 120.57(3) and 287.042(2) of the Florida Statutes and chapter 28-110 of the Florida Administrative Code. It is the Department's intent to ensure that specifications are written to obtain the best value for the State and that specifications are written to ensure competitiveness, fairness, necessity and reasonableness in the solicitation process. Notice of protest of the solicitation documents shall be made within seventy-two hours after receipt of notice of the solicitation. Questions to the Contract Supervisor shall not constitute formal notice. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to file a bond or other security within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. 21 2.0 Technical Specifications Contents 2.01 Notes 2.02 Technical Documentation 2.03 Wireless Fraud 2.04 Accessories and Services 2.05 Testing and Evaluation 2.06 Sampling and Inspection 2.07 Preparation for Delivery 2.08 Billing 2.09 Cellular Telephone Equipment and Service 2.10 Digital Cellular Telephone Service 2.11 Standards 2.12 Technical Documentation,Cellular 2.13 General,Cellular 2.14 Portables(Basic Radio Package) for Cellular 2.15 Approved Equipment,Cellular 2.16 Custom Calling Features 2.17 Cellular Pricing 2.18 Pagers-Equipment and Service 2.19 Applicable Publications and Standards for Pagers 2.20 Pager Hardware 2.21 Approved Equipment,Pagers 2.22 Configuration,Pagers 2.23 Functional Requirements, Pagers 2.24 Paging Service 2.25 Access Method,Pagers 2.26 Number of Pages 2.27 Options and Accessories,Pagers 2.28 Required Service Areas,Pagers 2.29 Pager Pricing 2.01 Notes: Commodities procured under these specifications shall not deviate from those originally contracted for, without approval from the State Purchasing. The State of Florida desires to take advantage of the changes occurring in the ever-evolving cellular industry. Therefore Regulatory and Industry Updates which have occurred subsequent to the first posting of specification 725-330 on 3-67-97, are hereby incorporated. This applies to frequency ranges, number of channels,technical performance and number of features. These specifications shall,until revised or rescinded by the State Purchasing, apply to each future purchase and contract for the commodities described herein. 22 Commodity procurement under these specifications shall not deviate from the same internal configuration for multiple units ordered on a single purchase order. In addition,the vendor shall inform the purchaser(with a copy of such notice to the State Purchasing)of any major functional changes. Contractors will consult with the Department concerning questions of eligibility for use of a state contract. 2.02 Technical Documentation: All products bid must meet or exceed all conditions and specifications of the Invitation to Bid (ITB). When technical documentation is required by this ITB, its purpose is to demonstrate compliance of the product and services proposed with applicable technical requirements of the ITB and to allow a technical evaluation of the product. Failure to provide the required technical documentation with the bid submittal shall make the bidder non-responsive, unless State Purchasing, in its sole discretion and in the best interest of the State, determines the acceptability of the product(s) offered through technical documentation available within State Purchasing as of the date and time of bid opening. Such authority of State Purchasing shall in no way relieve the bidder from the ultimate responsibility to submit the required technical documentation, nor shall any bidder assume that such documentation is otherwise available to State Purchasing. The State shall not be responsible for the accuracy of the technical documentation in its possession. 2.03 Wireless Fraud: The State will not be liable for any wireless fraud. Bidders must provide a detailed plan on how they plan to deal with the fraudulent use of wireless technology, including"cloning." 2.04 Accessories and Services: Accessories and Services offerings will apply only to Contractors winning an award in one or more areas. The Department reserves the right to accept or reject any individual item(s)or all items offered as an Accessory or Service. Bidders are requested to offer a fixed discount on all Accessories and Services. These fixed discounts shall reflect a minimum savings of twenty-five percent (25%) or greater from the Contractor's standard pricing. It is the intent of this contract that by greatly expanding Accessories and Services, all eligible contract users will have a much greater variety of equipment and services from which to choose. Further, Contractors may update their accessories and services offerings as new equipment and/or services become available for which the state discount will apply. The prices and/or discounts bid shall include the monthly cost for the hardware or device, delivery, programming, and setup in the system, service, and repairs and maintenance. 2.05 Testing and Evaluation: Eligible Users,prior to sign-up, shall have the option, at no cost,to obtain at least one set of each type of cellular equipment on a loan basis for the purpose of evaluating cellular services and system coverage for a period of at least sixty(60) working days. 23 2.06 Sampling and Inspection: Upon request, the Contractor shall provide to the State Technology Office a sample, free of all charges, of each contract equipment item (with service) for nondestructive testing during the term of the contract. These samples will be checked for contract compliance and may be kept up to sixty(60) days after receipt and thereafter returned at contractor's expense. Upon completion of the contract compliance check, the State shall notify the Contractor, in writing, of any noted deficiencies. This notification will state what will be required of the Contractor and/or what action will be taken by the State of Florida. Additionally, each awarded vendor must work with the State of Florida Emergency Operations Center, Emergency Support Function Staff (ESF) number 2 communications to provide cell phones and service in response to disasters. Currently, a single vendor provides over 800 phones for such service at no charge to the state. An effort is currently under way to determine how current cell phones and industry infrastructure will allow priority service to emergency responders. All bidders awarded as a result of this process must agree to work toward this goal in conformance to Federal, State and local laws and regulations. 2.07 Preparation for Delivery: Packing: Items shall be packed in containers to insure safe delivery to the destination. Marking: All containers delivered to the purchaser shall bear markings and/or a packing slip on the outside of the container showing: A. Contractor's Name B. Purchase Order Number 2.08 Billing: The Contractor will directly bill Eligible Users for all services. Detailed usage billing is a requirement of this bid. Detailed billing, as a minimum,must include: o number being billed o date o time o number called(outgoing) o call duration The detailed billing must be provided in printed and electronic format, on a monthly basis. In addition to the above,detailed monthly billing must include model numbers, serial or service order numbers, equipment charges,account number,bill number and/or invoice number, bill date,due date,bill remittance address and a summary record. The summary record will include payments applied since the previous bill, adjustments, sub-total of current charges and net amount flue. The electronic file must have search feature capabilities and the file should have print capabilities. A copy of the proposed billing format which complies with the requirements of these Technical Specifications must be submitted as part of the bid package. 24 2.09 Cellular Telephone Equipment and Service: Sections 2.09 through 2.17 of this specification cover Portable cellular radios (cell phones), options, accessories, and service. Cellular Radios covered by this specification are classified as shown below: Commodity Number Description 725-330-650-0100 Portable cellular phones 2.10 Digital Cellular Telephone Service: Digital cellular service must be offered in the bid as a basic service. Dual mode phones (analog and digital) must be also offered either as the basic radio, or under accessories and services, for digital subscribers. In addition, each bidder offering digital service in their bid shall also provide as part of the bid: • a current, published coverage map to indicate the counties, or portions thereof, where they have digital cellular systems operating and providing at least 90%reliability; • the digital protocol being used(e.g. TDMA, CDMA, GSM) and the designation of all applicable TIA/EIA standard(s); and • a listing of which equipment and/or services included in its bid are available with digital cellular service(e.g. text messaging, internet access,paging). Further, any state agency or other eligible user of an awarded cellular contract who has purchased digital equipment and/or service and determines that such equipment and/or service is not satisfactory shall have the option to convert to dual mode or analog equipment and service. In the case of eligible users with existing cellular equipment, subscriptions for cellular service only shall be accepted by the Contractor at the published contract rates. The grade of cellular telephone service provided to contract users with respect to circuit quality, reliability, call completion, and time of access shall be equal to that provided to other commercial subscribers within the cellular system's published service area. Contractors must provide statewide roaming at no cost. The Contractor shall allow antennas and other accessories to be purchased at the contract price at any time, in any quantity,without purchasing cell phones. 2.11 Standards: Bidders will agree to meet or exceed all applicable industry standards as defined by the following standards bodies: American National Standards Institute - ANSI, (http://www.ansi.org/), the International Telecommunications Union - Telecommunications Committee or ITU-T (http://www.itu.int/ITU-Tf), the Electronic Industry Alliance —EIA (http://www.eia.org/) or the Telecommunications Industry Association -TIA (http://www.tiaonline.org/standards/). 2.12 Technical Documentation, Cellular: When bidding alternate equipment or equipment from manufacturers not listed in section 2.15, Approved Equipment, Technical Documentation is required. Such literature shall document that standards and requirements for 25 features(Sections 2.11 through 2.16)have been met or exceeded as applicable. This applies only to the cellular phones and does not apply to antennas, spare batteries,or accessories and services. The specification in section 2.13 establishes the acceptable values. All bidders must be prepared to submit a duplicate set of the technical documentation after posting of the contract awards. The technical documentation shall be in the form of bidder's or manufacturer's printed product literature, engineering drawings, instruction or maintenance manuals, or other published literature. In the event the information requested per the specification is not available as printed or published literature, then the bidder shall furnish a clarification letter with the bid, on the manufacturer's or bidder's letterhead, that supplies the information required to determine specification compliance. Individual specifications and requirements must be addressed; a general statement such as "complies with all requirements" is not acceptable. The clarification letter shall be signed by an engineering manager or an individual with an equivalent title (not sales or marketing). Every specification and requirement of Sections 2.09 through 2.17 must be verifiable from the technical documentation provided with the bid to enable the State to determine the compliance of product proposed with the specifications. 2.13 General,Cellular: All radios proposed shall meet or exceed all conditions and specifications below. The following minimum requirements apply to all cellular phones: A. Frequency Range: Transmit: 824.040-848.970 MHz Receive: 869.040-893.970 MHz B. Number of Channels: 832,per FCC Rules; (transmit/receive pairs) 416 in group A; 416 in group B C. Technical Performance: Per FCC rules and EIA IS-19-B D. Features(minimum): 1. 12-button keypad(0-9, *,#) in handset. 2. 25 number memory, 16 digits (minimum)per number stored. 3. Controls and indicators as required to originate and receive calls and control main battery power on; Call in Progress(In Use), No Service, and roaming-digital service or analog only service. 4. 7 character display with memory recall of all stored digits. Display shall be LED, Fluorescent,or backlit LCD. 5. Call log listing missed calls, dialed calls, and received calls. 6. Auto redial 26 7. Ring silence settings for meetings 8. Volume control 9. An on/off switch 2.14 Portables (Basic Radio Package)for Cellular: A. Configuration: The portable cellular phone shall be a single hand-held unit consisting of a handset/keypad with built-in transceiver, battery, and an antenna. The portable shall be supplied with an AC battery charger and an in vehicle (cigarette lighter)battery charger, B. Battery status or level indicator shall be included in the radio. C. Battery Type: Rechargeable,Ni-Cad,NiMH, or sealed lead-acid. D. Battery Capacity: Per Section 2.04 above. E. Accessory (must be included in equipment listed on website): Spare battery with features specified in Section 3.4.B and 3.4.C, hands free microphone/ear plug and other equipment as available. 2.15 Approved Equipment,Cellular: The following equipment or manufacturers are approved, including private-labeled versions of the same or similar series. Portables / Cell Phones Contractors may offer equipment from these and other manufacturers who comply with the appropriate industry (TIA) standards. • Audiovox • Ericsson • Mitsubishi • Motorola • NEC • Nokia • Oki • Sony • Samsung • Panasonic 2.16 Custom Calling Features: The contractor shall include the following custom calling features in the basic cellular phone service at no additional cost to the purchaser: • Call Forwarding • Call Waiting • Busy/No answer transfer • Three-way calling • Voice Mail w/pager notification 27 • automatic roaming • Caller ID(in digital service areas) • State-wide roaming Call forwarding must include the capability for the cellular phone user to forward unanswered phone calls to a phone number of the user's choice. Call waiting must notify the cellular phone user of an incoming phone call while engaged in a phone conversation,and allow the user the ability to answer the call. Voice mail must allow the cellular phone user the capability of having phone calls answered and messages recorded via an electronic answering device. The contractor shall provide the user the ability to replay recorded messages via the user's cellular phone and landline phone. The voice mail system must have the capability of storing ten (10) messages at any one time. The use of these features shall be at the option of the purchaser. 2.17 Cellular Pricing: Each bidder will complete the Cellular Services, Pricing Worksheet (Worksheet 1). This sheet has four sections as follows: Monthly Service, Usage, Discount, and Cellular Service required features. In the first section,bidders are to record a monthly recurring charge for a single cellular number. In the second section one figure is required for a cost per minute for airtime. This figure is for statewide airtime. In the third section each bidder is to provide a percent discount applied to current and future marketed package rate plans. The final section lists cellular required features, which each bidder must indicate as available statewide. 2.18 Pagers—Equipment and Service: Technical Specifications Sections 2.19 through 2.29 apply exclusively to pager requirements. Paging services may be provided in the following ways: independent high speed one way numeric, one way alpha and numeric, alpha numeric with preset responses referred to as 1.5 way and two way short text messaging. When combined with Cellular phone service paging may be provided as data protocol and advanced voice messaging protocol. Paging Services when combined with cellular service will meet all of the standards and specifications of the cellular services cited in lieu of pager standards. Just as cellular phone service providers may offer paging service,paging providers may offer voice messaging and data streaming services such as Internet access. The bidder will detail on Worksheet 2 B how each service will be provided. Bidders are to provide a detailed explanation as to how their offerings will meet or exceed some or all of the standards listed along with offered equipment and costs. 2.19 Applicable Publications and Standards for Pagers: The following publications and standards shall be a part of this specification. In the event of inconsistencies between this specification and published standards, the requirements of this specification shall take precedence. • Electronic Industries Association Standards 28 o TIA/EIA-603 Land Mobile FM or PM Communications Equipment Measurement and Performance Standards o Application for copies should be addressed to: EIA Engineering Publications Office 2001 Pennsylvania Ave.,NW. Washington, D.C. 20006 • Federal Communications Commission Rules and Regulations At the time of this writing, the State is aware of one standards body for commercially offered pager messaging systems. That is the Personal Communications Industry Association (PCIA) at www.pcia.com. There also exists a specification,known as the Mobitex Interface Specification or MIS, which is available from any operator of a public Mobitex network or from Ericsson directly. Mobitex is an open, non-proprietary system but the specification is copyrighted and is made available under a royalty-free license. Mobitex is described as a single integrated two-way data network with cellular design. The MIS is not in the public domain. PCIA has created the following standards; • Telocator Alphanumeric Protocol(TAP) • Telocator Network Paging Protocol (TNPP) • Telocator Data Protocol(TDP) • Wireless Communications Transfer Protocol (WCTP) • Additionally, Motorola has produced the following set of protocol standards for their messaging systems product group; o FLEX is High-speed, one-way worldwide de facto standard, numeric and alpha (4/7 bit binary, symbolic character, 25 kHz out bound channel at 6250 bps). o REFLEX (TM 25kHz) is two-way messaging and data protocol (can put 50 channels in 50 kHz), two-way short messages (4/7 bit, binary) at operating frequency: out 929-932, 940-941 MHz, In: 896-902 MHz, supports roaming capability,Outbound channel at 25 to 50 kHz, Outbound signaling speed is 1.6, 3.2, or 6 kbps, Inbound channel at 12.5 kHz in 896- 902 MHz. Inbound channel signaling speed 800, 1600, 6400 or 9600 bps. o ReFLEX (TM 50kHz) is two-way messaging and data protocol, two-way short messages (4/7 bit, binary) at operating frequency: out 930-931 MHz, In: 901-902 MHz, supports roaming capability, Outbound channel at 25 to 50 kHz, Outbound signaling speed is up to 25.6 kbps, Inbound channel at 12.5 kHz in 901-902 MHz band. Inbound channel signaling speed 9600 bps, o InFLEXion is advanced voice messaging protocol (supports 7 sub channels with 3 carrier channels), voice paging (with ack-back), operating frequency is 930-931, 940-941 MHz OUT and 896-902 MHz in., supports roaming capability, Outbound channel at 50 kHz, Outbound signaling uses 29 digitally processed compression, Inbound channel at 12.5 kHz in 896-902 MHz band. Inbound channel signaling speed 800, 1600, 6400 or 9600 bps, o The Mobitex specification is described as; Network Architecture — Unicast, Frequencies; Up-Link = 896-902 MHZ, Downlink 935-941 MHZ, Channel Bandwidth; UP/DOWN = 12.5 kHZ, Data Rate up/Down = 8 KBPS, Middleware Providers; Mobix, Nettech, RIM, and Cingular Interactive; Modems manufactured by, Ericsson, CNI, Research in Motion, and Maxon. 2.20 Pager Hardware: Bidders are required to provide a paper copy of all versions of each device with pricing (as Worksheet 2 C) currently offered on their web site to include numeric, alpha-numeric, text messaging, 1.5 way and two way paging. As new products and services are introduced and listed on the bidder web site each will be considered as "Balance-of-line". Products and services must comply with standards noted in the section above. 2.21 Approved Equipment,Pagers: The following equipment is approved including private- labeled versions of the same series. If proposing Approved Equipment, Technical Documentation is not required. Bidders proposing alternate equipment must include Technical Documentation per section. • All Motorola numeric, Alpha Numeric, 1.5 way and 2 way pagers that meet the minimum standards above. • Batteries - A new battery shall be included with the initial issue of a vendor- supplied pager. Replacement of batteries will be the responsibility of the user, except that batteries required for testing, programming, and repair work shall be provided by the vendor and included with the required unit when returned to the user. 2.22 Configuration,Pagers: Numeric and Alphanumeric(text messaging)paging receivers shall operate in the 150-932 MHz frequency range and shall have the following features: • Impact and weather resistant housing. • Internal Antenna. • Both tone producing and vibrating alert devices. • Internal removable battery. • Integral liquid crystal display(LCD) Device. • Belt Clip or Belt Clip Case. 2.23 Functional Requirements,Pagers(minimums): Numeric and Alphanumeric • Reset: A manual or automatic reset control shall be provided to enable reset following reception of display message. • Liquid Crystal Display: The pager shall have a liquid crystal display 30 providing a minimum of two lines of text with at least 20 characters per line. The display must contain a light source to illuminate the display automatically or manually. • Message Length: 20 characters (120 for Alphanumeric) minimum. • Message Format: Numerals 0 to 9 (plus all of the 26 letters of the English alphabet for Alphanumeric). • Memory: 160 characters (600 for Alphanumeric) minimum. • Stored Message Indicator:The paging receiver shall indicate a message is stored in its memory to the user by a visual means. • Low Voltage Indicator: The paging receiver shall warn (audio or visually) the user when its battery voltage falls below minimum operating level. • Type of Call: Individual and Group Call. • Clock: The pager shall contain a 24-hour time clock, which can display the time automatically or manually. • Message Time Stamp: The pager shall time stamp each message. The time stamp will indicate the time a message was received. 1.5 and 2 Way Pagers: Bidders will provide detail to describe all features and functions of this service and of these devices to include transmit, receipt and response times. • Performance Issues: Bidders are cautioned that the failure to transmit a message in a timely fashion(such as within 1-5 minutes) or the loss of a message will constitute a problem. Such problems must be resolved within reasonable time period. 2.24 Paging Service : Pager Messaging Bidders are asked to offer products and services which will deliver the following types of messaging: • Numeric: Callers shall originate the message by calling a local telephone number(or optional toll-free number) and entering a callback number, which is received and stored in the pager for later recall by the user. • Alphanumeric: Messages are originated as above, except that the contents contain both numbers and text, and are entered into the system through a computer terminal or Alphanumeric Entry Device (AED). • 1.5 Way pagers shall receive alpha/numeric messages and have the ability to transmit preset responses as a reply. • 2 way messaging or interactive messaging: The ability to receive and reply to messages and emails. • Internet website access: The ability to access internet websites and read information provided. 2.25 Access Method,Pagers: Both local and Nationwide access shall be through a toll-free number. Alphanumeric access shall also be provided through a vendor's web page on the Internet, vendor supplied AED, or vendor-supplied software for users' modem-equipped 31 computers/servers. The purchase of such software shall be available for a one-time fee and listed as part of Worksheet 2 C. 2.26 Number of Pates: The paging services offered for the basic one-way numeric and alphanumeric messaging,under any contract resulting from this bid, shall include an unlimited number of pages/month at the bid price. 2.27 Options and Accessories,Pa2ers: Mandatory Options. The following options must be offered by the bidders in order to be eligible for an award. Purchase is at the customer's option. • Group call feature for one-way pagers with access through: o A local number o A toll-free number o Toll-free number access feature for individual pagers (not group): o Individual toll-free number o Toll-free number plus a Personal Identification Number(PIN) o Additional Options -Bidders are requested to provide pricing on the following paging service options and accessories. o Alphanumeric Entry Device for use with alphanumeric pagers at the premises purchased or leased at the user's premises. o Voice Mailbox o Alphanumeric paging operator services o Paging software for customer owned computers or LANs such as MyMail Wireless e-mail software. o PC connectivity and desktop synchronization for two-way pagers. o Equipment accessories (lances/chains,pager cases, etc.) o Broadcast Alert Messaging(Weather and News Information) o Info on demand such as Internet based news and more 2.28 Required Service Areas,Pa2ers: Paging services (numeric and alphanumeric) shall be offered on three(3) levels: Nationwide, statewide and local. Bidders will indicate which areas they will provide services in by providing basic pricing in the blocks provided on Worksheet 2 A,page 2. Statewide service shall include, as a minimum, all of the cities listed below: • Miami/Ft. Lauderdale/Hollywood(group) • Tampa/St. Petersburg(group) • Jacksonville • Orlando • West Palm Beach • Lakeland/Winter Haven(group) • Pensacola • Melbourne/Titusville/Palm Bay(group) • Daytona Beach • Ft. Myers 32 • Sarasota • Tallahassee • Gainesville • Ft. Pierce • Bradenton • Ocala • Ft. Walton Beach • Panama City • Key West/Marathon(group) 2.29 Pager Pricing: The prices and/or discounts bid shall include the monthly cost for the hardware or device, delivery, programming, setup in the system, service, or repairs and maintenance. Lost and/or replacement numeric and alpha numeric pagers will be provided at no cost to the user. 33 3.0 General Conditions Contents 3.01 Definitions 3.02 Eligible Customers 3.03 Requests for Quotes 3.04 Posting and Revision of Authorized Product and Price List 3.05 Product Version 3.06 Quantity Discounts 3.07 Best Pricing Offer 3.08 Sales Promotions 3.09 Trade-In 3.10 Americans With Disabilities Act 3.11 Energy Star Compliant 3.12 Reserved 3.13 Purchase Orders 3.14 Packaging 3.15 Manufacturer's Name and Approved Equivalents 3.16 Inspection at Contractor's Site 3.17 Safety Standards 3.18 Literature 3.19 Transportation and Delivery 3.20 Installation 3.21 Inspection and Acceptance 3.22 Title to Deliverables 3.23 Software License Grant 3.24 Invoicing and Payment 3.25 Taxes 3.26 Customer's Default 3.27 Annual Appropriations 3.28 Surcharge Fee and Summary of Total Sales 3.29 Governmental Restrictions 3.30 Compliance with Laws 3.31 Lobbying and Integrity 3.32 Indemnification 3.33 Performance Bond 3.34 Suspension of Work 3.35 Termination for Convenience 3.36 Termination for Cause 3.37 Force Majeure, Notice of Delay, and No Damages for Delay 3.38 Equitable Adjustment 3.39 Scope Changes 3.40 Renewal 34 3.41 Advertising 3.42 Assignment 3.43 Dispute Resolution 3.44 Employees, Subcontractors, and Agents 3.45 Security and Confidentiality 3.46 Independent Contractor Status of Contractor 3.47 Insurance Requirements 3.48 Service 3.49 Warranty 3.50 Warranty of Authority 3.51 Warranty of Ability to Perform 3.52 Year 2000 Compliance Warranty 3.53 Warranty of No Hardstop/Passive License Monitoring 3.54 Notice 3.55 Leases and Installment Purchases 3.56 Prison Rehabilitative Industries and Diversified Enterprises,Inc. (PRIDE) 3.57 Products Available from the Blind or Other Handicapped 3.58 Modification of Terms 3.59 Waiver 3.60 Execution in Counterparts 3.61 Severability 3.01 Definitions: The term"bid" means the offer extended to the Department in response to this solicitation. The forms to accompany the bid are included in section 4.0 of these solicitation documents. "Contract" means the legally enforceable agreement, if any, which results from this solicitation. The parties to the Contract will be the Department and Contractors. The Contract shall be reduced to writing substantially in the form included in section 4.0 of these solicitation documents. "Contract Specialist" means the State Purchasing employee who is primarily responsible for administration of the Contract. The Contract Specialist is identified in the Instructions to Bidders, and the Department shall conspicuously post contact information on its Internet web page associated with the Contract. The Department may appoint a different Contract Specialist, which shall not constitute an amendment to the Contract, by updating the posted contact information and sending notice to Contractor. Any communication to the Department by Contractors, by State Customer contract managers or contract administrators, or by other Customer purchasing officials, shall be addressed to the Contract Specialist. "Contractor" means a successful bidder, which, along with the Department, will enter into the Contract. The Department anticipates making a multiple award, but for sake of convenience the solicitation documents use the singular form of this term. If a Contractor is a manufacturer, its certified dealers and resellers may also furnish products under the Contract; in choosing to do so, 35 the dealers and resellers agree to honor the Contract and the term "Contractor" shall be deemed to refer to them. Unless awarded the Contract as a direct bidder, however, dealers and resellers are not parties to the Contract, and the Contractor that certifies them shall be responsible for their actions and omissions. "Customer" means the State agencies and other eligible users that will order products directly from the Contractor under the Contract. By ordering products under the Contract, the Customer agrees to its terms. Customers are not, however, parties to the Contract. "Department" means the Florida Department of Management Services. The Department will be a party to the Contract. "State Purchasing," a division within the Department's Support Program, is responsible for administration of this solicitation and will be responsible for day-to- day administration of the Contract. State Purchasing may be reached at 4050 Esplanade Way, Suite 360, Tallahassee, FL 32399-0950, (850) 487-4634, or via links posted at http://www.myflorida.com/myflorida/business/index.html. The Department reserves the right to contract with a third-party service provider to assume responsibility for administration of the Contract. "Product" means any deliverable under the Contract, which may include commodities, services, technology or software. "Purchase order," means the form or format a Customer uses to make a purchase under the Contract (e.g., a formal written purchase order, electronic purchase order, procurement card, or other authorized means). "State"means the State of Florida and its agencies. 3.02 Eligible Customers: Section 287.056 of the Florida Statutes governs agencies' use of the Contract. Customers participating in the Contract do so according to the following terms: (1) non-State Customers assume and bear complete responsibility with regard to performance of any contractual obligation or term; (2)breach of a Contract term by any particular Customer shall not be deemed a breach of the Contract as a whole, which shall remain in full force and effect, and shall not affect the validity of the Contract nor the Contractor's obligations to non-breaching Customers or the Department; (3) the State shall not be liable for any breach by a non-State Customer; (4) each non-State Customer and the Contractor guarantee to save the State and its officers, agents, and employees harmless from liability that may be or is imposed by their failure to perform in accordance with their obligations under the Contract. 3.03 Requests for Quotes: Unlike most products, technology products historically decrease in price over time. Therefore, it is in the Customer's best interest not to set the price for any particular technology product until the date the product is purchased. For all purchases of$2,500 or greater, CUSTOMERS ARE RESPONSIBLE FOR COMPETITIVELY SETTING THE PRICE FOR EACH PARTICULAR ORDER, AND THEY SHALL DO SO BY INITIATING A REQUEST FOR QUOTES ("RFQ"), which is an oral or written request for written pricing or service information from a Contractor for products available under the Contract from that Contractor. Customers shall create and maintain written records of oral and 36 written requests, as well as records of quotes received. Quotes shall be in writing but otherwise informal, and need not be received or posted publicly or at a particular time or place. A Customer shall initiate a sufficient number of requests to obtain a minimum of three quotes, should look for a Contractor willing to beat its own (or a competitor's) currently authorized Contract price, and shall place its purchase order with the Contractor quoting the lowest price, unless the Customer documents in writing that the lowest price quote would not result in best value (for example, lowest price is for refurbished or remanufactured product). 3.04 Posting and Revision of Authorized Product and Price List: Every Contractor shall maintain on the Internet a list of the products it is authorized to sell under the Contract. The list shall clearly indicate the ceiling price for each product, expressed either as a single price or as a percentage savings off the"benchmark"price. On the Ordering Instructions form submitted with the bid, bidders shall note the proposed Universal Resource Locator(URL) for this list. Posting of the list in a form easily accessible to the Department and Customers shall be a condition precedent to Contractor's right to payment under the Contract. The Department, in its sole discretion, may maintain Contractor's authorized list or provide electronic links to it. Regardless of the number of links to the list, Contractor shall ensure that Customers are able to access one, and only one, version of the authorized list. The authorized list shall include, either directly or via electronic link, the following: Contract number; contact person; part or product numbers and descriptions; ordering information; and pricing information. Contractor's initial authorized list shall be substantially identical to the "benchmark" list submitted with the bid and used in making the award, or that portion of it bid by Contractor. Contractor shall not make the list generally available or accept any orders off of it until the Department approves the list. Contractor may thereafter amend the list to reflect product line and price changes, subject to the following restrictions. • For price changes, a Contractor shall only decrease, and shall never increase, the prices offered initially (stated differently, a Contractor may increase, but never decrease, its percentage discount). Posted price reductions shall take effect immediately and be applied to unshipped and subsequent orders. CONTRACTORS ARE FREE TO OFFER GREATER DISCOUNTS FOR INDIVIDUAL TRANSACTIONS, AND CUSTOMERS ARE REQUIRED TO SEEK THEM AND TO EXPLORE WHETHER OTHER CONTRACTORS AUTHORIZED FOR THE PRODUCT CATEGORY OFFER BETTER DISCOUNTS THROUGH THE RFQ PROCESS. • At least two business days before making any changes to the posted authorized list — whether to products, to prices, or otherwise — a Contractor shall notify the Contract Specialist by e-mail of its intent to make a change and describe the proposed change. The Department may, in its sole discretion, prohibit any requested change or direct a Contractor to undo any change already made. In addition,the Department may direct rescission of any purchase order entered into on the basis of an unauthorized product and price list. • Changes to the authorized list or to related information (for example, ordering information) shall not be deemed Contract amendments. 37 • On a quarterly basis,or more frequently if directed in writing by the Contract Specialist, Contractor shall submit written certification of changes made to its authorized list. The certification shall be substantially in the form included in Section 4 of the solicitation documents,"Certification of Changes to Authorized Product and Price List." Failure to submit the form in a timely manner shall constitute grounds for terminating the Contract. Falsification of any information on the form shall subject Contractor to civil liability and criminal prosecution. • The Department reserves the right to revise these restrictions in conjunction with implementation of an on-line procurement system. 3.05 Product Version: Purchase orders shall be deemed to reference a manufacturer's most recently released model or version of the product at the time of the order, unless the Customer specifically requests in writing an earlier model or version and the Contractor is willing to provide such model or version. 3.06 Quantity Discounts: Contractors are urged to offer additional discounts for one time delivery of large single orders of any assortment of items. Customers should seek to negotiate additional price concessions on quantity purchases of any products offered under the Contract. State Customers shall document their files accordingly. 3.07 Best Pricing Offer: During the Contract term, if the Contractor sells substantially the same or a smaller quantity of a product outside the Contract,but upon the same or similar terms of the Contract, at a lower price, then at the discretion of the Department the price under the Contract shall be immediately reduced to the lower price. 3.08 Sales Promotions: In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, a Contractor may conduct sales promotions involving price reductions for a specified lesser period or for a specific Customer group (e.g., K-12, Higher Education, State Customers, etc.). A Contractor shall submit to the Contract Specialist documentation identifying the proposed (1) starting and ending dates of the promotion or (2) specific Customers to which the promotion is addressed and (3) products involved and (4) promotional prices compared to then-authorized prices. Promotional prices shall be available to all Customers. Upon approval, the Contractor shall conspicuously post notice of the promotion with its authorized product list. 3.09 Trade-In: Customers may trade-in equipment when making purchases from the Contract. A trade-in shall be negotiated between the Customer and the Contractor. Customers are obligated to actively seek current fair market value when trading equipment, and to keep accurate records of the process. For State agencies, it may be necessary to provide documentation to the Office of the State Comptroller and to the agency property custodian. 3.10 Americans With Disabilities Act: Contractors should identify any products that may be used or adapted for use by visually,hearing,or other physically impaired individuals. 38 3.11 Energy Star Compliant: The Federal Environmental Protection Agency encourages the manufacture of energy efficient computer hardware, and the State supports this initiative. The Department prefers that all products offered under the Contract be Energy Star compliant and bear the EPA Energy Star Logo. Customers should seek to reduce the total cost of equipment ownership and operation, and they should consider the purchase of Energy Star compliant equipment if it meets their performance needs. 3.12 Reserved 3.13 Purchase Orders: A Contractor shall not deliver or furnish products until a Customer transmits a purchase order. All purchase orders shall bear the Contract number, shall be placed by the Customer directly with the Contractor, and shall be deemed to incorporate by reference the Contract teens and conditions. Any discrepancy between the Contract terms and the terms stated on the Contractor's order form, confirmation, or acknowledgement shall be resolved in favor of terms most favorable to the Customer. A purchase order for services within the ambit of section 287.058(1) of the Florida Statutes shall be deemed to incorporate by reference the requirements of subparagraphs (a) through (f) thereof. Even where not otherwise required, CUSTOMERS ARE ENCOURAGED TO INCLUDE PROVISIONS THAT PROMOTE GOOD CONTRACT MANAGEMENT PRACTICES AND ENABLE THE CUSTOMER AND CONTRACTOR TO MONITOR AND ADJUST PERFORMANCE, for example, provisions clearly defining the scope of the work, provisions dividing the order into objectively measured deliverables,provisions setting forth schedules for completion and(where appropriate) liquidated damages for untimely completion, etc. State Customers shall designate a contract manager and a contract administrator as required by subsections 287.057(14) and (15) of the Florida Statutes. The Department reserves the right to revise this section in conjunction with implementation of an on-line procurement system. 3.14 Packaging: Tangible product shall be securely and properly packed for shipment, storage, and stocking in appropriate, clearly labeled, shipping containers and according to accepted commercial practice, without extra charge for packing materials, cases, or other types of containers. All containers and packaging shall become and remain Customer's property. 3.15 Manufacturer's Name and Approved Equivalents: Unless otherwise specified, any manufacturers' names, trade names, brand names, information and/or catalog numbers listed in a specification are descriptive, not restrictive. With the Department's prior approval, the Contractor may offer any product that meets or exceeds the applicable specifications. The Contractor shall demonstrate comparability, including appropriate catalog materials, literature, specifications, test data, etc. The Department shall determine in its sole discretion whether a product is acceptable as an equivalent. 3.16 Inspection at Contractor's Site: The State reserves the right to inspect, at any reasonable time with prior notice, the equipment or product or plant or other facilities of a Contractor or prospective Contractor (bidder) to assess conformity with Contract requirements and to determine whether they are adequate and suitable for proper and effective Contract performance. 39 3.17 Safety Standards: All manufactured items and fabricated assemblies subject to operation under pressure, operation by connection to an electric source, or operation involving connection to a manufactured, natural, or LP gas source shall be constructed and approved in a manner acceptable to the appropriate State inspector. Acceptability customarily requires, at a minimum, identification marking of the appropriate safety standard organization, where such approvals of listings have been established for the type of device offered and furnished, for example: the American Society of Mechanical Engineers for pressure vessels; the Underwriters Laboratories and/or National Electrical Manufacturers' Association for electrically operated assemblies; and the American Gas Association for gas-operated assemblies. In addition, all items furnished shall meet all applicable requirements of the Occupational Safety and Health Act and state and federal requirements relating to clean air and water pollution. 3.18 Literature: Upon request, the Contractor shall furnish Customers literature reasonably related to the product offered, for example, user manuals, price schedules, catalogs, descriptive brochures, etc. 3.19 Transportation and Delivery: Prices shall include all charges for packing, handling, freight, distribution, and inside delivery. Transportation of goods shall be FOB Destination to any point within thirty(30)days after the Customer places an Order. A Contractor,within five(5)days after receiving a purchase order, shall notify the Customer of any potential delivery delays. Evidence of inability to deliver or intentional delays shall be cause for Contract cancellation and Contractor suspension. 3.20 Installation: Where installation is required, Contractor shall be responsible for placing and installing the product in the required locations at no additional charge, unless otherwise designated on the purchase order. Contractor's authorized product and price list shall clearly and separately identify any additional installation charges. All materials used in the installation shall be of good quality and shall be free of defects that would diminish the appearance of the product or render it structurally or operationally unsound. Installation includes the furnishing of any equipment, rigging, and materials required to install or replace the product in the proper location. Contractor shall protect the site from damage and shall repair damages or injury caused during installation by Contractor or its employees or agents. If any alteration,dismantling,excavation,etc.,is required to achieve installation, the Contractor shall promptly restore the structure or site to its original condition. Contractor shall perform installation work so as to cause the least inconvenience and interference with Customers and with proper consideration of others on site. Upon completion of the installation, the location and surrounding area of work shall be left clean and in a neat and unobstructed condition,with everything in satisfactory repair and order. 3.21 Inspection and Acceptance: Inspection and acceptance shall be at destination unless otherwise provided. For Contractor-installed products, the date of acceptance is the date the Customer accepts the product as installed and in good working order, as determined by any appropriate acceptance testing, and the Customer shall certify in writing to the Contractor when the product is accepted(if training or other post-installation services are included in the purchase order, the acceptance shall be conditional). For Customer-installed products, the date of acceptance shall be the delivery date. Until acceptance, risk of loss or damage shall remain with the Contractor. The Contractor shall be responsible for filing, processing, and collecting all 40 damage claims. To assist the Contractor with damage claims, the Customer shall: record any evidence of visible damage on all copies of the delivering carrier's Bill of Lading; report damage to the carrier and the Contractor; and provide the Contractor with a copy of the carrier's Bill of Lading and damage inspection report. When a Customer rejects a product, Contractor shall remove it from the premises within ten days after notification of rejection. Upon rejection notification, the risk of loss of rejected or non-conforming product shall remain with the Contractor. Rejected product not removed by the Contractor within ten days shall be deemed abandoned by the Contractor, and the Customer shall have the right to dispose of it as its own property. Contractor shall reimburse the Customer for costs and expenses incurred in storing or effecting removal or disposition of rejected product. 3.22 Title to Deliverables: For purposes of this section, a"product"is any deliverable furnished under the Contract, including but not limited to (1) components of the hardware environment, (2) printed materials, (3) third-party software, (4) programs and programming modifications, customizations, tools, data, modules, and components, and (5) any tangible or intangible properties embedded therein. A product is "existing" if it is a tangible or intangible licensed product that exists before Contract work begins (the Contractor shall bear the burden of proving that a product existed before work began). A product is "custom" if it is any product, preliminary or final, that is created under the Contract for the Customer by the Contractor or its employees, subcontractors,or agents. For existing hardware products, title to a hardware product shall pass to Customer upon written acceptance. For existing software products, that are normally commercially distributed on a license basis by the Contractor or other independent software proprietary owner (ISPO), whether or not embedded in, delivered, or operating in conjunction with hardware or a custom product, title shall remain with the Contractor or ISPO. Effective upon acceptance, such product shall be licensed to the Customer in accordance with the Contractor or ISPO's standard licensed agreement, provided, however, that the license agreement shall, at a minimum, (1) grant the Customer a non-exclusive license to use, execute, reproduce, display, perform, adapt (unless the Contractor demonstrates to the Customer before execution of a purchase order that adaptation will violate existing agreements or law) and distribute the product to authorized users up to the license capacity identified in the purchase order with all license rights necessary to effect the Customer's stated purpose, and (2) recognize the State as the licensee, where the Customer is part of the State. Where these rights are not otherwise covered by the ISPO's standard license agreement, the Contractor shall obtain these rights at its sole expense. The Customer shall reproduce all copyright notices and any other legend of ownership on any copies authorized under this paragraph. For custom products, effective upon creation the Contractor hereby conveys to the Customer the sole and exclusive rights, title and interest in the product, including all trademark and copyrights, and the Contractor shall take all necessary and appropriate steps to ensure that the products are protected against unauthorized copying, reproduction, or marketing through the Contractor or its employees, subcontractors, or agents; provided, that the Contractor may otherwise use any related or underlying general knowledge, skills, ideas, concepts, techniques and experience developed under the Contract. In the alternative to taking exclusive ownership and title to such products, the Customer may elect, by providing written notice to the Contractor, 41 to take a non-exclusive license to use, execute, reproduce, display, perform, and distribute the product as described in the preceding paragraph. 3.23 Software License Grant: Where product is acquired on a licensed basis, the following terms shall constitute the license grant. Scope: Licensee is granted a non-exclusive license to use, execute, reproduce, display, perform, or merge the product within its business enterprise in the United States up to the maximum licensed capacity identified on the purchase order. The product may be accessed, used, executed, reproduced, displayed, or performed up to the capacity measured by the applicable licensing unit identified on the purchase order (i.e., payroll size, number of employees, CPU, MIPS, MSU, concurrent user, workstation, etc.). Licensee shall have the right to use and distribute modifications and customizations of the product to and for use by any Customers otherwise licensed to use the product, provided that any modifications, however extensive, shall not diminish licensor's proprietary title or interest. This paragraph grants no license, right, or interest in any trademark, trade name,or service mark. Term: The license term shall begin the date the product is accepted. Where a license involves licensee's right to copy a previously licensed and accepted master copy, the term shall begin the date the purchase order is executed. Documentation: Upon request, the Contractor shall deliver to the licensee at the Contractor's expense (1) one master electronic copy and one hard copy of product documentation or (2) one master electronic copy and hard copies of the product documentation by type of license in the following amounts, unless otherwise agreed: for individual/named user, one copy per licensee; for concurrent users, ten copies per site; for processing capacity, ten copies per site. The master electronic copy shall be in either CD-ROM or diskette format and usable without conversion (for example, if a unit has only a 31/2" disk drive, software shall be provided on 3'/2"diskettes). The Contractor hereby grants the Customer a perpetual license right to make, reproduce (including downloading electronic copies), and distribute, either electronically or otherwise, copies of product documentation as necessary to enjoy full use of the product in accordance with the terms of the license. Technical Support and Maintenance: Licensee may elect the technical support and maintenance ("maintenance") set forth in the Contract by giving written notice to the Contractor any time during the Contract term. Maintenance shall include, at a minimum, (1)providing error corrections, patches, updates, revisions, fixes, upgrades, and new releases to licensee, and (2) Help Desk assistance accessible via toll-free or local telephone call or on-line. The Contractor shall maintain the products so as to provide licensee with the ability to use the products in accordance with the product documentation, without significant functional downtime to ongoing operations during the maintenance term. The Customer shall not be required to purchase maintenance for use of the product, and the Customer's license shall not be invalidated for refusal to purchase maintenance. The maintenance term(s) and any renewals are independent of the Contract term. The Customer may discontinue maintenance at the end of any current maintenance term upon notice to the Contractor; provided, the term shall not automatically renew. If the Customer does not initially acquire, or discontinues, maintenance, the Customer 42 may at any later time reinstate maintenance without any penalties or other charges, by paying the Contractor the amount, if any, that would have been due under the Contract for the period that maintenance had lapsed, or for twelve months, whichever is less. Transfers: Licensee's operations may be altered, expanded, or diminished. Licenses may be transferred or combined for use at an alternative or consolidated site not originally specified in the license, including transfers between agencies. Contractor approval is not required for such transfers, but licensee shall give prior written notice to the Contractor. There shall be no additional license or other transfer fees due, provided that (1) the maximum capacity of the consolidated machine is equal to the combined individual license capacity of all licenses running at the consolidated or transferred site (e.g., named users, seats, or MIPS) or (2) if the maximum capacity of the consolidated machine is greater than the individual license capacity being transferred, a logical or physical partition or other means of restricting access will be maintained within the computer system to restrict use and access to the product to that unit of licensed capacity solely dedicated to beneficial use for licensee. If the maximum capacity of the consolidated machine is greater than the combined individual license capacity of all licenses running at the consolidated or transferred site, and a logical or physical partition or other means of restricting use is not available, the fees due the Contractor shall not exceed the fees otherwise payable for a single license for the upgrade capacity. Restricted Use by Third Parties: Outsourcers, facilities management, service bureaus, or other services retained by licensee shall have the right to use the product to maintain licensee's operations, including data processing,provided that(1) licensee gives notice to the Contractor of such third party, site of intended use of the product, and means of access, (2) the third party has executed, or agrees to execute, the product manufacturer's standard nondisclosure or restricted use agreement,which agreement shall be accepted by the Contractor, and(3) the third party shall maintain a logical or physical partition within its computer system to restrict access to the program to that portion solely dedicated to beneficial use for licensee. Licensee shall not be liable for any third party's compliance or noncompliance with the terms of the nondisclosure agreement, nor shall the nondisclosure agreement create or impose any liabilities on the State or the licensee. Any third party with whom a licensee has a relationship for a State function or business activity shall have the temporary right to use product (e.g., Java applets), provided that such use shall be limited to the period during which the third party is using the product for the function or activity. Archival Backup: Licensee may use and copy the product and related documentation in connection with reproducing a reasonable number of copies for archival backup and disaster recovery procedures. Source Code Escrow: If either the product manufacturer/developer or the Contractor offers source code or source code escrow to any other commercial customer, or if either entity seeks bankruptcy protection, then the Contractor shall either (1) provide licensee with source code for the product, (2) place the source code in a third-party escrow arrangement with a designated escrow agent, which shall be identified to the Department, and which shall be directed to release the deposited source code in accordance with a standard escrow agreement acceptable to the Department, or (3) certify to the Department that the product 43 manufacturer/developer has named the State, acting by and through the Department, and the licensee, as named beneficiaries of an established escrow arrangement with its designated escrow agent, which shall be identified to the Department and licensee, and which shall be directed to release the deposited source code in accordance with the terms of escrow. Source code, as well as any corrections or enhancements, shall be updated for each new release of the product in the same manner as provided above and such updated shall be certified in writing to the Department. The Contractor shall identify the escrow agent upon commencement of the Contract term and shall certify annually that the escrow remains in effect in compliance with the terms of this paragraph. The State may release the source code to licensees under the Contract which have licensed product or obtained services, and which may use the copy of the source code to maintain the product. Confidentiality: The product is a trade secret, copyrighted and propriety product. Licensee and its employees shall not disclose or otherwise distribute or reproduce any product to anyone other than as authorized under the Contract. Licensee shall not remove or destroy any of the Contractor's proprietary markings. Restricted Use: Except as expressly authorized by the terms of license, licensee shall not: copy the product; cause or permit reverse compilation or reverse assembly of the product or any portion; or export the product in violation of any U.S. Department of Commerce export administration regulations. Proof of License: The Contractor shall provide to each licensee that places a purchase order either(1) the product developer's certified license confirmation certificates in the name of the licensee or (2) a written confirmation from the proprietary owner accepting the product invoice as a proof of license. The Contractor shall submit a sample certificate, or alternative confirmation,which shall be in a form acceptable to the licensee. Audit of Licensed Usage: The Contractor may periodically audit, no more than annually and at its expense, use of licensed product at any site where a copy resides provided that (1) the Contractor gives licensee at least thirty days written advance notice, (2) the audit is conducted during the licensee's normal business hours, (3) the audit is conducted by a State Inspector General's office or, for non-State licensees, by an independent auditor chosen by mutual agreement of the licensee and Contractor as follows: the Contractor shall recommend a minimum of three auditing/accounting firms, from which the licensee shall select one; in no case shall the Business Software Alliance, Software Publishers Association, or Federation Against Software Theft be recommended by the Contractor or used, directly or indirectly,to conduct audits, (4)the Contractor and licensee shall designate a representative who shall be entitled to participate, who shall mutually agree on audit format, and who shall be entitled to copies of all reports, data, or information obtained from the audit, and (5) if the audit shows that the licensee was not in compliance, the licensee shall purchase additional licenses or capacities necessary to bring it into compliance and shall pay for the unlicensed capacity at the Contract price then in effect or, if none, then at the Contractor's U.S. commercial list price. Once such additional licenses and capacities are purchased, licensee shall be deemed to have been in compliance retroactively, and licensee shall have no further liability of any kind for the unauthorized use of the product. 44 Bankruptcy: The Contract is subject to the terms of section 365(n) of the United States Bankruptcy Code ("Code") if the licensor files a bankruptcy petition. Licensor's failure to perform its continuing obligations shall constitute a material breach of the Contract excusing performance by the licensee. Royalty payments for use of intellectual property shall be separate from and independent of payments for performance of all other obligations under the Contract (e.g., continuing development obligations, maintenance and support obligations, obligations to provide updates, indemnity obligations, etc.). Upon request, the licensor shall furnish licensee any intellectual property, as defined in the Code, and any embodiment of that intellectual property held by the licensor. If licensee must hire third parties to perform support, maintenance, or development tasks previously performed by licensor, the licensee may provide intellectual property to such third parties without violating non-disclosure or exclusivity provisions. 3.24 Invoicing and Payment: Invoices shall contain the Contract number, purchase order number, and the Contractor's SPURS vendor number. The State may require any other information from the Contractor that the State deems necessary to verify any purchase order placed under the Contract. At the Department's option, Contractors may be required to invoice electronically pursuant to Department guidelines. Payment shall be made in accordance with sections 215.422 and 287.0585 of the Florida Statutes, which govern time limits for payment of invoices. Time limits do not begin until the Contractor submits a properly completed invoice. Invoices that must be returned to a Contractor due to preparation errors will result in a delay in payment. Contractors may call (850) 413-7269 Monday through Friday to inquire about the status of payments by State agencies. The Customer is responsible for all payments under the Contract. A Customer's failure to pay, or delay in payment, shall not constitute a breach of the Contract and shall not relieve the Contractor of its obligations to the Department or to other Customers. 3.25 Taxes: The State does not pay Federal excise or sales taxes on direct purchases of tangible personal property. The State will not pay for any personal property taxes levied on the Contractor or for any taxes levied on employees' wages. Purchases by non-State Customers may be subject to taxes, which shall be computed based on the purchase price and added to the invoice submitted to such entity for payment. 3.26 Customer's Default: A Customer's breach of the terms of a particular order shall not be deemed a breach of the Contract. If a Customer fails to make a payment to the Contractor for products delivered or provided, accepted, and properly invoiced, within sixty days after approval for payment, then the Contractor may, upon ten days advance written notice to both the Department and Customer's purchasing official, suspend additional shipments of product or provision of services to that specific Customer until such time as reasonable arrangements have been made and assurances given by the Customer for current and future Contract payments. Notwithstanding the foregoing, the Contractor shall, in writing and at least ten days before declaring a Customer in breach of the terms of a particular order,notify both the Department and Customer's purchasing official of the specific facts, circumstances and grounds upon which the Contractor intends to declare a breach. If the Contractor's basis for declaring a breach is determined, then or later, to be insufficient, then the Contractor's declaration of breach and failure to service the Customer shall constitute a breach of the Contract by the Contractor and the Department or Customer may thereafter seek any remedy available at law or equity. 45 3.27 Annual Appropriations: The State's performance and obligation to pay under the Contract are contingent upon an annual appropriation by the Legislature. 3.28 Surcharge Fee and Summary of Total Sales: Pursuant to section 287.1345 of the Florida Statutes, a surcharge fee of one percent (1.0%) is imposed on Contractor's sales under the Contract. The fee shall be paid by the Contractor and must be included in prices bid and cannot be added as a separate item. After receipt of payment from the Contract purchases, all Contractor surcharge fees shall be payable to the Department no later than 15 days after the end of each quarter. The Contractor shall note "surcharge fee" and the contract number on a check and remit it to: Florida Department of Management Services P.O. Box 5438 Tallahassee,FL 32314-5438 At the end of each calendar quarter,the Contractor shall complete and submit to State Purchasing the Vendor User Fee Report form (PUR 7073C) included in section 4.0 of these solicitation documents. By submission of these reports and corresponding Contractor surcharge deposits, Contractor is certifying their correctness. All such reports and fee deposits shall be subject to audit by the State. Contractors shall be responsible for reporting sales and paying user fees resulting from sales made by authorized resellers. The Department reserves the right to revise collection and reporting requirements in conjunction with implementation of an on-line procurement system. Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding surcharge fees. CONTRACTORS DELINQUENT IN PAYING USER FEES MAY BE EXCLUDED FROM BIDDING ON DEPARTMENT CONTRACTS. 3.29 Governmental Restrictions: If the Contractor believes that any governmental restrictions have been imposed that require alteration of the material, quality, workmanship or performance of the products offered under the Contract, the Contractor shall immediately notify the Department in writing, indicating the specific restriction. The Department reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Department. 3.30 Compliance with Laws: The Contractor shall comply with all laws, rules, codes, ordinances, and licensing requirements that are applicable to the conduct of its business, including those of federal, State, and local agencies having jurisdiction and authority. By way of non-exhaustive example, Chapter 287 of the Florida Statutes and Chapter 60A-1 of the Florida Administrative Code govern the Contract. By way of further non-exhaustive example, the Contractor shall comply with section 247A(e) of the Immigration and Nationalization Act, the Americans with Disabilities Act, and all prohibitions against discrimination on the basis of race, religion, sex, creed, national origin, handicap, marital status, or veteran's status. Violation of such laws shall be grounds for Contract termination. 46 3.31 Lobbying and Integrity: Pursuant to section 216.347 of the Florida Statutes,the Contractor may not expend any State funds for the purpose of lobbying the Legislature, the judicial branch, or a state agency. In addition,the Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly(1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or(2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For purposes of clause(2), "gratuity"means any payment of more than nominal monetary value in the form of cash, travel, entertainment,gifts,meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. Upon request of the Department's Inspector General, or other authorized State official, the Contractor shall provide any type of information the Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may include,but shall not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor shall retain such records for the longer of(1) three years after the expiration of the Contract or(2)the period required by the General Records Schedules maintained by the Florida Department of State(available at: http://dlis.dos.state.fl.us/barm/genschedules/gensched.htm). The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor. Such costs shall include, but shall not be limited to: salaries of investigators,including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for any costs of investigations that do not result in the Contractor's suspension or debarment. 3.32 Indemnification: The Contractor shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the State and Customers,and their officers, agents,and employees, from suits, actions, damages, and costs of every name and description, including attorneys' fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by Contractor, its agents, employees, partners, or subcontractors; provided, however, that the Contractor shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the State or a Customer. Further, the Contractor shall fully indemnify, defend, and hold harmless the State and Customers from any suits, actions, damages, and costs of every name and description, including attorneys' fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right, provided that the State or Customer shall give the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor's sole expense, and (3) assistance in defending the action at Contractor's sole expense. The Contractor shall not be liable for any cost, expense, or compromise incurred or made by the State or Customer in an infringement action without the Contractor's prior written consent, which shall not be unreasonably withheld. If any product is the subject of an infringement suit,or in the Contractor's opinion is likely to become the subject of such a suit, the Contractor may at its sole expense procure for the Customer the right to continue using the 47 product or to modify it to become non-infringing. If the Contractor is not reasonably able to modify or otherwise secure the Customer the right to continue using the product, the Contractor shall remove the product and refund the Customer the amounts paid in excess of a reasonable rental for past use. The Customer shall not be liable for any royalties. Except as specified in the foregoing portions of this section, for all other claims against the Contractor under any individual purchase order, and regardless of the basis on which the claim is made, the Contractor's liability under a purchase order for direct damages shall be the greater of$100,000, the dollar amount of the purchase order, or two times the charges rendered by the Contractor under the purchase order. Unless otherwise specifically enumerated in the Contract or in the purchase order, no party shall be liable to another for special, indirect, or consequential damages, including lost data or records (unless the purchase order requires the Contractor to back-up data or records), even if the party has been advised that such damages are possible. No party shall be liable for lost profits, lost revenue, or lost institutional operating savings. The State and Customer may, in addition to other remedies available to them at law or equity and upon notice to the Contractor, retain such monies from amounts due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of the Contractor or its affiliates to the State against any payments due the Contractor under any contract with the State. 3.33 Performance Bond: Customers may require the Contractor to furnish without additional cost a performance bond or negotiable irrevocable letter of credit or other form of security for the faithful performance of work under the Contract. Such requirement shall be set forth in the purchase order. 3.34 Suspension of Work: The Department may in its sole discretion suspend any or all activities under the Contract, at any time, when in the best interests of the State to do so. The Department shall provide the Contractor written notice outlining the particulars of suspension. Examples of the reason for suspension include, but are not limited to, budgetary constraints, declaration of emergency, or other such circumstances. After receiving a suspension notice, the Contractor shall comply with the notice and shall not accept any purchase orders. Within ninety days, or any longer period agreed to by the Contractor, the Department shall either (1) issue a notice authorizing resumption of work, at which time activity shall resume, or (2) terminate the Contract. Suspension of work shall not entitle the Contractor to any additional compensation. 3.35 Termination for Convenience: The Department, by written notice to the Contractor, may terminate the Contract in whole or in part when the Department determines in its sole discretion that it is in the State's interest to do so. The Contractor shall not furnish any goods or perform any services after it receives the notice of termination, except as necessary to complete the continued portion of the Contract, if any. The Contractor shall not be entitled to recover any cancellation charges or lost profits. 3.36 Termination for Cause: The Department may terminate the Contract if the Contractor fails to (1) deliver the supplies or perform the services within the time specified in the Contract or any extension, (2) maintain adequate progress, thus endangering performance of the Contract, (3) honor any term of the Contract, or (4) abide by any statutory, regulatory, or licensing requirement. Rule 60A-1.006(3), Florida Administrative Code, governs the procedure and 48 consequences of default. The Contractor shall continue work on any work not terminated. Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises from events completely beyond the control, and without the fault or negligence, of the Contractor. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is completely beyond the control of both the Contractor and the subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted services or supplies were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule. If, after termination, it is determined that the Contractor was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Department. The rights and remedies of the Department in this clause are in addition to any other rights and remedies provided by law or under the Contract. 3.37 Force Maieure, Notice of Delay, and No Damages for Delay: The Contractor shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of the Contractor or its employees or agents contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly beyond the Contractor's control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to the Contractor. In case of any delay the Contractor believes is excusable, the Contractor shall notify the Customer in writing of the delay or potential delay and describe the cause of the delay either (1) within ten (10) days after the cause that creates or will create the delay first arose, if the Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is not reasonably foreseeable, within five (5) days after the date the Contractor first had reason to believe that a delay could result. THE FOREGOING SHALL CONSTITUTE THE CONTRACTOR'S SOLE REMEDY OR EXCUSE WITH RESPECT TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy. No claim for damages, other than for an extension of time, shall be asserted against the Customer or the Department. The Contractor shall not be entitled to an increase in the Contract price or payment of any kind from the Customer or Department for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever. If performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the causes have ceased to exist the Contractor shall perform at no increased cost, unless the Department determines, in its sole discretion, that the delay will significantly impair the value of the Contract to the State or to Customers, in which case the Department may (1) accept allocated performance or deliveries from the Contractor, provided that the Contractor grants preferential treatment to Customers with respect to products subjected to allocation, and/or(2)purchase from other sources (without recourse to and by the Contractor for the related costs and expenses) to replace all or part of the products that are the subject of the delay, which purchases may be deducted from the Contract quantity, or(3)terminate the Contract in whole or in part. 3.38 Equitable Adjustment: The Department may, in its sole discretion, make an equitable adjustment in the Contract terms and/or pricing if pricing or availability of supply is affected by 49 extreme and unforeseen volatility in the marketplace,that is,by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss. 3.39 Scope Changes: The Department may unilaterally require, by written order, changes altering, adding to, or deducting from the Contract specifications,provided that such changes are within the general scope of the Contract. The Department may make an equitable adjustment in the Contract price or delivery date if the change affects the cost or time of performance. Such equitable adjustments require the written consent of the Contractor, which shall not be unreasonably withheld. If unusual quantity requirements arise, the Department may solicit separate bids to satisfy them. 3.40 Renewal: Subject to Chapter 287 of the Florida Statutes, and upon mutual agreement, the Department and the Contractor may renew the Contract, in whole or in part. Any renewal shall be in writing and signed by both parties. 3.41 Advertising: The Contractor shall not publicly disseminate any information concerning the Contract without prior written approval from the Department, including, but not limited to mentioning the Contract in a press release or other promotional material, identifying the I Department or the State as a reference, or otherwise linking the Contractor's name and either a description of the Contract or the name of the State, the Department, or any Customer in any material published, either in print or electronically, to any entity that is not a party to Contract, except potential or actual authorized distributors, dealers,resellers, or service representative. 3.42 Assignment: The Contractor shall not sell, assign or transfer any of its rights, duties or obligations under the Contract, or under any purchase order issued pursuant to the Contract, without the prior written consent of the Department;provided,the Contractor assigns to the State any and all claims it has with respect to the Contract under the antitrust laws of the United States and the State. The Department may assign the Contract with prior written notice to Contractor of its intent to do so. 3.43 Dispute Resolution: Any dispute concerning performance of the Contract shall be decided by the Contract Specialist, who shall reduce the decision to writing and serve a copy on the Contractor and, if appropriate, the Customer. The decision of Contract Specialist shall be final and conclusive unless within ten (10) days from the date of receipt, the Contractor files with the Department a petition for administrative hearing. The Department's decision on the petition shall be final, subject to the Contractor's right to review pursuant to Chapter 120 of the Florida Statutes. Without limiting the foregoing, the exclusive venue of any legal or equitable action that arises out of or relates to the Contract shall be the appropriate state court in Leon County, Florida; in any such action, Florida law shall apply, the Contractor waives any right to jury trial that it may have, and the prevailing party shall be awarded reasonable costs incurred, including attorneys' fees and costs on appeal. 50 3.44 Employees, Subcontractors, and Agents: All Contractor employees, subcontractors, or agents performing work under the Contract shall be properly trained technicians who meet or exceed any specified training qualifications. Upon request, Contractor shall furnish a copy of technical certification or other proof of qualification. All employees, subcontractors, or agents performing work under the Contract must comply with all security and administrative requirements of the Customer. The State may conduct, and the Contractor shall cooperate in, a security background check or otherwise assess any employee, subcontractor, or agent furnished by the Contractor. The State may refuse access to, or require replacement of, any personnel for cause, including, but not limited to, technical or training qualifications, quality of work, change in security status, or non-compliance with a Customer's security or other requirements. Such approval shall not relieve the Contractor of its obligation to perform all work in compliance with the Contract. The State may reject and bar from any facility for cause any of the Contractor's employees, subcontractors,or agents. 3.45 Security and Confidentiality: The Contractor shall comply fully with all security procedures of the State and Customer in performance of the Contract. The Contractor shall not divulge to third parties any confidential information obtained by the Contractor or its agents, distributors, resellers, subcontractors, officers or employees in the course of performing Contract work, including, but not limited to, security procedures, business operations information, or commercial proprietary information in the possession of the State or Customer. The Contractor shall not be required to keep confidential information or material that is publicly available through no fault of the Contractor, material that the Contractor developed independently without relying on the State's or Customer's confidential information, or material that is otherwise obtainable under State law as a public record. To insure confidentiality,the Contractor shall take appropriate steps as to its personnel, agents, and subcontractors. The warranties of this paragraph shall survive the Contract. 3.46 Independent Contractor Status of Contractor: The Contractor, together with its agents, distributors,resellers, subcontractors, officers and employees, shall have and always retain under the Contract the legal status of an independent contractor, and in no manner shall they be deemed employees of the State or Customer or deemed to be entitled to any benefits associated with such employment. During the term of the Contract, Contractor shall maintain at its sole expense those benefits to which its employees would otherwise be entitled to by law, including health benefits, and all necessary insurance for its employees, including workers' compensation, disability, and unemployment insurance, and provide Customers with certification of such insurance upon request. The Contractor remains responsible for all applicable federal, state, and local taxes, and all FICA contributions. 3.47 Insurance Requirements: During the Contract term, the Contractor at its sole expense shall provide commercial insurance of such a type and with such terms and limits as may be reasonably associated with the Contract, which, as a minimum, shall be: workers' compensation and employer's liability insurance per Florida statutory limits (currently $100,000 per accident, $100,000 per person, and $500,000 policy aggregate) covering all employees engaged in any Contract work; commercial general liability coverage on an occurrence basis in the minimum amount of $500,000(defense cost shall be in excess of the limit of liability),naming the State as an additional insured; and automobile liability insurance covering all vehicles, owned or otherwise, 51 used in the Contract work, with minimum combined limits of$500,000, including hired and non- owned liability, and $5,000 medical payment. Providing and maintaining adequate insurance coverage is a material obligation of the Contractor and is of the essence of the Contract. Upon request, the Contractor shall provide certificate of insurance. The Contract shall not limit the types of insurance Contractor may desire to obtain or be required to obtain by law. The limits of coverage under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor's liability and obligations under the Contract. All insurance policies shall be through insurers authorized to write policies in Florida. 3.48 Service: If a Customer is unable to obtain service/warranty within the time specified, or if difficulties are encountered in obtaining service from the Contractor's designated service location, the Customer shall notify the individual designated on the Contractor's ordering instruction sheet, who shall then arrange and coordinate service by an alternate service dealer at no additional cost to the Customer. 3.49 Warranty: Contractor warrants that all product furnished under the Contract shall be free of defective material and workmanship, and shall otherwise perform in accordance with required performance criteria, for a period of not less than one(1)year from date of acceptance. Warranty repairs shall be completed within the time specified in any support level requirements. If it is likely that the time for repairs will exceed the specified time, the Contractor shall provide equivalent loaner equipment upon request by the Customer. Loaner equipment shall be provided at no cost, including shipment to the Customer's location and return of loaner equipment to the Contractor. 3.50 Warranty of Authority: Each person signing the Contract warrants that he or she is duly authorized to do so and to bind the respective party to the Contract. 3.51 Warranty of Ability to Perform: The Contractor shall provide the Department, no later than the time the Contractor returns a signed copy of the Contract, with proof of a Certificate of Status from the Secretary of State,Division of Corporations, demonstrating that the Contractor is in good standing and legally authorized to transact business in Florida. Failure to submit this documentation shall be sufficient grounds for withholding payment under the Contract and cause for termination. The Contractor warrants that, to the best of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish the Contractor's ability to satisfy its Contract obligations. The Contractor warrants that neither it nor any affiliate is currently on the convicted vendor list maintained pursuant to section 287.133 of the Florida Statutes, or on any similar list maintained by any other state or the federal government. The Contractor shall immediately notify the Department in writing if its ability to perform is compromised in any manner during the term of the Contract. 3.52 Year 2000 Compliance Warranty: All products furnished under the Contract shall be Year 2000 compliant, that is, able to accurately process date data from, into, and between the twentieth and twenty-first centuries, including leap year calculations. Resellers may provide a "pass through warranty" from the manufacturer/software developer,which meets all the warranty 52 • requirements specified by the State, and which shall include all other warranties provided by the manufacturer or software developer. Reseller shall be responsible for warranty assurance, assistance, enforcement and any other actions or remediation, required to satisfy warranty requirements. 3.53 Warranty of No Hardstop/Passive License Monitoring: Unless a Customer is specifically and conspicuously advised to the contrary in writing at the time of order and before product acceptance, the Contractor hereby warrants and represents that the product and upgrades do not and will not contain any computer code that would disable the product or upgrades or impair in any way operation based on the elapsing of time, exceeding an authorized number of copies, advancement to a particular date or other numeral, or other similar self-destruct mechanisms (sometimes called "time bombs," "time locks," or "drop dead" devices) or that would permit the Contractor to access the product to cause such disablement or impairment (sometimes called a "trap door" device). The Contractor agrees that upon an alleged breach of this provision, the Customer shall not have an adequate remedy at law, including monetary damages, and that the Customer shall be entitled to seek a temporary restraining order, injunction, or other form of equitable relief against the continuance of such breach, in addition to any other remedies to which the Customer shall be entitled. 3.54 Notice: All notices required under the Contract shall be delivered by certified mail, return receipt requested, by reputable air courier service, or by personal delivery. Notices to the Department shall be delivered to the Contract Specialist identified in the Instructions to Bidders. Notices to the Contractor shall be delivered to the person who signs the Contract. Either designated recipient may notify the other, in writing, if someone else is designated to receive notice. 3.55 Leases and Installment Purchases: The State Comptroller's prior approval is required for State agencies to enter into or to extend any lease or installment-purchase agreement in excess of the Category Two amount established by section 287.017 of the Florida Statutes. 3.56 Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE): To the extent that a product is certified by or is available from PRIDE, and has been approved in accordance with section 946.515(2) of the Florida Statutes, it is expressly understood and agreed that any articles which are the subject of, or required to carry out, the Contract shall be purchased from the corporation identified under Chapter 946 of the Florida Statutes (PRIDE) in the same manner and under the same procedures set forth in section 946.515(2) and (4) of the Florida Statutes; and for purposes of the Contract the person, firm, or other business entity carrying out the provisions of the Contract shall be deemed to be substituted for the agency insofar as dealings with such corporation are concerned. This provision is required by section 946.515(6) of the Florida Statutes; additional information about PRIDE and the products it offers is available at http://www.pridefl.com. 3.57 Products Available from the Blind or Other Handicapped: To the extent that a product is included on the procurement list created and distributed pursuant to section 413.035(2), Florida Statutes, it is expressly understood and agreed that any articles that are the subject of, or required to carry out, this contract shall be purchased from a nonprofit agency for the Blind or 53 111. for the Severely Handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in section 413.036(1) and (2), Florida Statutes; and for purposes of this contract the person, firm, or other business entity carrying out the provisions of this contract shall be deemed to be substituted for the State agency insofar as dealings with such qualified nonprofit agency are concerned. This provision is required by section 413.036(3) of the Florida Statutes; additional information about the designated nonprofit agency and the products it offers is available at http://www.respectofflorida.org. 3.58 Modification of Terms: The Contract contains all the terms and conditions agreed upon by the parties, which terms and conditions shall govern all transactions by Customer under the Contract. The Contract may only be modified or amended upon mutual written agreement of the Department and the Contractor. No oral agreements or representations shall be valid or binding upon the Department, a Customer, or the Contractor. For individual purchase orders, however, the Contractor may offer the Customer more advantageous pricing, payment, or other terms and conditions than those set forth in the Contract. In such event, upon request the Contractor shall furnish to the Department a copy of the better offer. The Department shall determine, in its sole discretion, whether the offer, on the whole, is in fact more advantageous. Any offer that is not more advantageous, even if this determination is not made until after acceptance, shall be voidable at the Customer's option, in which case the Contract terms and conditions shall govern. Other than where terms are more advantageous for the Customer than those set forth in the Contract, no alteration or modification of the Contract terms, including substitution of product, shall be valid or binding against the Customer unless authorized by the Department or specified } in the notice of award. The Contractor may not unilaterally modify the terms of the Contract by affixing additional terms to product upon delivery (e.g., attachment or inclusion of standard preprinted forms, product literature, "shrink wrap" terms accompanying or affixed to a product, whether written or electronic) or by incorporating such terms onto the Contractor's order or fiscal forms or other documents forwarded by the Contractor for payment. A Customer's acceptance of product or processing of documentation on forms furnished by the Contractor for approval or payment shall not constitute acceptance of the proposed modification to terms and conditions. 3.59 Waiver: The delay or failure by the Department to exercise or enforce any of its rights under this Contract shall not constitute or be deemed a waiver of the Department's right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. 3.60 Execution in Counterparts: The Contract may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 3.61 Severability: If a court deems any provision of the Contract void or unenforceable, that provision shall be enforced only to the extent that it is not in violation of law or is not otherwise unenforceable, and all other provisions shall remain in full force and effect. 54 Cellular and Paging Equipment and Services 725-000-03-1 Vendor Information TMmm__ Arch Wireless http://www.getword.com AT&T Wireless http://www.attwireless.com/ordering/statefla/924418 Cingular Wireless http://www.cingularsouthwest.com/Florida/ GrayLink Paging http://www.graylink.com/FloridaWebPage/Statepricing.htm Liberty Communications http://www.myfloridapaging.com Metrocall Wireless http://www.metrocall.com/florida Network Services http://www.networkservices.net/florida Nextel South Corporation http://www.nextel.com/phones plans/states/florida/index.shtml Sprint PCS http://www.sprint.com/stategov/florida Verizon Wireless (Cellular) http://www.verizonwireless.com/b2b/stateofflorida Verizon Wireless(Paging) http://www.verizonmessaging.com/StateofFlorida/vwmspricing• ': (Rev 2 Oct 03) 55