HomeMy WebLinkAboutContract 31119 CI_ Y SECRETARY
:'ONTRACT NO.
Government Service Agreement
Blackberry Service Agreement
Between
City of Fort Worth
And
Nextel of Texas, Inc.
Contract #N4004122304
THIS AGREEMENT (hereinafter the "Agreement") is made this ?-o-ay of December, 2004 (hereinafter the "Effective
Date")by and between Nextel of Texas, Inc., d/b/a Nextel Communications, a Texas corporation with an office located at
111 Congress Avenue, Franklin Plaza, 7th Floor, Austin, TX 78701, on behalf of itself and its affiliates and subsidiaries
(hereinafter"Nextel") and City of Fort Worth, with an office at 1000 Throckmorton
Fort Worth,TX 76102 (hereinafter"Customer"). Nextel and Customer are sometimes referred to herein individually as a
"Party"or collectively as the"Parties."
WHEREAS, Nextel owns and/or operates systems to provide wireless telecommunications (the "System(s)"), together
with affiliated companies as a nationwide network, in certain geographic areas throughout the United States, and provides
cellular phone ("Phone"), BlackBerryV, radio equipment and all other related equipment or devices used in connection
with Customer's service (collectively, the "Equipment");
WHEREAS,Customer's services may include,but are not limited to, wireless calling, Direct Connects walkie-talkie
services,Nationwide Direct Connect im walkie-talkie services, Group Connects walkie-talkie services, wireless web
services including email services("Nextel Onlineg Services"), mobile messaging services, including two-way messaging
and SMS services("Mobile Messaging"), and other related services and features(collectively, the"Service(s)"); and
WHEREAS, Service is accessible to Customer through the telephone, data,email or messaging code or number(s)or
email address(es) (collectively,the"Number(s)") assigned to Customer's account(s);
NOW THEREFORE,the Parties hereby agree as follows:
1. Equipment and Services. Nextel will provide to delivery dates and any other information required by
Customer the Equipment and Services at the prices this Agreement. Nextel shall accept all Purchase Orders
identified in Nextel's response of February 27, 2004 to consistent with the terms of this Agreement that are
Customer's Request for Proposal #04-0001, and further submitted in accordance with this Section. The terms
clarified in the revised Business Proposal dated June 29, and conditions of this Agreement relating to the
2004, and in other documents as incorporated by purchase of Services and Equipment shall be deemed
reference ("Proposal") and as outlined in Section 16 of incorporated into and made a part of each Purchase
this Agreement. Order. Any terms and conditions appearing in a
Purchase Order or in any acknowledgment or
2. Term. The initial term ("Term") of this Agreement acceptance of a Purchase Order that are inconsistent
shall begin on the Effective Date and be effective for a with, or in addition to (except as required by law) the
period of one (1) year, unless sooner terminated in terms and conditions of this Agreement shall be null and
accordance with any applicable provision set forth void.
herein. The Term may be extended upon the mutual
written agreement of the Parties for up to three (3) 4. Payment. (a) Billinz. Customer is responsible to
consecutive one-year periods. pay Nextel within thirty (30) calendar days from the
date of Customer's receipt of Nextel's invoice for
Equipment or Service(s) provided by Nextel to
3. Purchase Orders. Any Purchase Orders shall be Customer, including without limitation all applicable
subject to this Section and shall describe the Equipment interconnect fees, recoveries and other similar charges
and Services being purchased; the quantity to be imposed on Services in the amounts as set forth on the
purchased; the delivery destinations; the requested invoice. For Customers with multiple account-numbers,
Blackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc.
Page 1 of I 1
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Customer will identify with its payment the specific any additional amounts charged under this Section.
amounts being paid for each account number. The Customer understands that in the event of nonpayment
creation of new cell sites, Nextel's implementation of of charges or any other material breach of the terms and
new billing technology, delays in the reporting of conditions of this Agreement, in addition to any other
international or other roaming charges between carriers, remedies Nextel may have, Nextel may temporarily or
and other similar events may result in delayed billing. permanently terminate Service to Customer. Nextel
Nextel may bill Customer on behalf of thud party may, but is not required to, reactivate Service to
providers of Online Applications that are accessed by Customer after Service has been suspended or
Customer through the Equipment. Nextel may retain a terminated in accordance with the previous subsection.
percentage of these charges before providing the Before Service may be reactivated, Customer must pay
balance to the third party provider of such Online to Nextel all past due amounts and may be required to
Application. pay a reconnection charge equal to $25.00 per Number,
plus applicable taxes.
(b) Payment. Customer shall pay in full all charges for
Equipment and Services provided under this (e) Disputed Charges. Customer may dispute only those
Agreement, including monthly service charges, usage charges that Customer believes are the result of(1) a
charges, taxes, assessments and any additional fees or billing error; (2) a problem related to Customer's
charges imposed on Customer or on Nextel and Service; or (3) dropped calls. To dispute any charge,
associated with the Service or the Equipment. Customer must pay all undisputed amounts when due
Customer is responsible for all authorized charges or and submit a written notice to Nextel within ninety(90)
purchases associated with Customer's Number, Service days of the problem or before the end of the third billing
and Equipment. If Customer fails to timely pay any cycle after the date upon which the problem occurred,
amounts when due under this Agreement, Customer whichever occurs later. If Customer fails to pay any
shall be in default and Nextel shall be entitled to undisputed amount or, after a reasonable period of time,
exercise any remedies available to it under this fails to pay any amount determined by Nextel to have
Agreement or at law or in equity. been validly assessed upon Customer, Nextel may
exercise any remedies available to Nextel under this
(c) Usage Charges. Customer may incur usage charges Agreement for non-payment, including termination of
for Services such as: wireless calling, Direct Connects"', the Agreement.
Nationwide Direct Connects", Group Connects,
Mobile Messaging, Nextel Online® Services and other 5. Rate Plans,Other Fees and Assessments. Nextel will
Services that may be offered from time to time. Usage make available to customer the National Shared Minute
charges may vary depending on how, where and when family of rate plans and the Government Local Shared
Customer uses the Service. Depending on the rate plan rate plans for the life of this Agreement and affirm that
utilized by the Customer, the Customer may be assessed discounts will remain fixed as stated herein. Nextel
long distance charges(including international calling) or reserves the right to change, discontinue or introduce
other chares for toll-free calls to 800, 866, 877, 888 and promotional rate plans on a quarterly basis. Customer
other toll-free numbers. Customer also may be charged may utilize such new or revised promotional rate plans
for the use of special Services such as 411 services or under the terms and conditions of this Agreement.
call-forwarding. Additional charges may apply to Nextel rate plans,
which are subject to change, and may vary by market.
(d) Failure to Pav. Customer acknowledges that time is Such charges may include, but are not limited to, a
of the essence with respect to all amounts owed to Universal Service Fund assessment, a Telephone Relay
Nextel. IF CUSTOMER HAS NOT PAID ITS Service charge, and in some states a mandatory state-
MONTHLY INVOICE IN FULL BY THE DUE required E911 fee. Nextel also imposes a Federal
DATE, A LATE PAYMENT CHARGE OF UP TO Programs Cost Recovery ("FPCR") fee, which is
1.5% PER MONTH, OR SUCH LESSER AMOUNT currently$1.55 (or$2.83 in certain locations for service
AS PERMITTED BY LAW, MAY BE APPLIED TO provided by Nextel Partners,Inc.). The FPCR fee is not
THE TOTAL UNPAID BALANCE DUE AND a tax or government-required charge. The FPCR fee is
OUTSTANDING. THIS LATE PAYMENT CHARGE charged by Nextel for one or more of the following
IS ASSESSED TO RECOVER COSTS FOR federally-mandated programs or services: E-911 Phase
CUSTOMER'S FAILURE TO PAY AND SHALL 11 service, number pooling and wireless number
NOT CONSTITUTE INTEREST. Nextel's acceptance portability,and may be increased or decreased during to
of late or partial payments(even if marked"paid in full" term of the Agreement as necessary. Nextel reserves
or similar notations) shall not waive Nextel's right to the right to adjust its rates and charges or to impose
collect the full amount due under this Agreement, plus additional rates and charges on its customers in order to
Blackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc.
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recover amounts it is required by government the copyright of another, or upload or transmit any
authorities to collect or otherwise pay to others in "virus", "worm" or other malicious code). Customer
support of government-mandated programs. shall not modify, disassemble, deinstall or alter the
Equipment in any manner, except in accordance with
6. Taxes and Fees. Customer shall pay all applicable the use instructions accompanying the Equipment.
federal, state, and local taxes and fees("Taxes")that are Customer may not resell or lease the Service or the
imposed on transactions subject to this Agreement. Equipment to any other person or party.
Customer must provide Nextel with valid and properly
executed tax exemption certificates before any such (b) Change in Service/Number. A change in the Service
exemption shall become effective. Customer shall be or Equipment may require additional programming or
responsible for all Taxes regardless of whether Taxes Equipment or changes to Numbers assigned to
are: (1) measured by gross receipts from sales made to Customer. Customer may be assessed a programming
Customer; (2) imposed as a per-line or per-unit charge; fee in connection with any change requested by
or (3) imposed upon Customer or Nextel. Taxes Customer. Nextel may, at any time, change or remove
include, but are not limited to, the following: federal, any Number assigned to Customer when such change is
state, and local excise taxes, sales and transaction taxes, reasonably necessary in the conduct of Nextel's
gross receipts taxes, utility taxes, and other taxes and business. Customer acknowledges that Customer has no
fees. Customer shall not be responsible for Taxes proprietary or ownership rights or interest in Customer's
imposed on Nextel's net income or property. Customer Number(s) and cannot acquire such rights or interest
shall provide Nextel with the Primary Place of Use (i.e., through usage, publication or otherwise. Customer may
Customer's residential street address or primary not assign its Number to any other Equipment and shall
business address) for each unit activated on Customer's not program any other Number into its Equipment. In
account, and notify Nextel of changes in any such the event that wireless number portability becomes
address. Nextel is not required by law to collect certain available in Customer's Service Area, Customer may
Taxes. Taxes are subject to change without notice. request that its Phone number(s) be ported to another
service provider. Upon such request, all amounts then
7. Shipment; Risk of Loss. Equipment shall be shipped owed to Nextel (including damages for early
F.O.B. destination. Upon Customer's acceptance of termination and any amounts that appear on the final
delivery of the Equipment, all risk of loss, damage, invoice) shall become immediately due and payable,
theft, or destruction to the Equipment shall be borne by and Customer's failure to provide timely payment to
the Customer. No loss, damage, theft, or destruction of Nextel could delay facilitation of Customer's request.
the Equipment, in whole or in part, shall impair
Customer's obligations under this Agreement, (c) Nextel Online® Services. Nextel Online® Services
including, without limitation, Customer's responsibility consist of applications such as email, data, information
for the payment of service charges due under this and other wireless Internet services ("Online
Agreement. Applications"). Customer acknowledges that no
guarantee or assurance exists that the Online
8. Use of Service. (a) Unlawful Use Prohibited. Applications will be compatible, or, if currently
Customer shall not use the Service or the Equipment in compatible, will continue to be compatible, with
any unlawful manner (including, but not limited to, use Nextel's network or with Customer's Equipment or
in any aircraft or motor vehicle where prohibited by Service. Nextel does not endorse any Online
law, ordinance, or regulation), or in a manner that may Application, even if currently compatible with Nextel's
be abusive, harassing, threatening or fraudulent. network or with Customer's Equipment or Service.
Customer is solely responsible for all content Nextel may, at any time in its sole discretion, disable or
transmitted using the Service or the Equipment and shall discontinue any Online Application for any reason. Use
not use the Service or Equipment to communicate any of Nextel Online® Services requires Internet compatible
(1) harassing, threatening, defamatory, pornographic or Equipment, and is subject to applicable storage,
obscene messages; (2) unsolicited commercial memory or other Equipment limitations. Only certain
messages; or (3) unsolicited commercial and/or bulk Internet sites may be accessed by Customer, and certain
text or SMS messages. Customer shall not use the Nextel Online(& Services may not be available in all
Service or Equipment in a manner that could result in areas where Service is provided. Customer may, from
damage or risk to the business, reputation,properties, or time to time, access through Nextel Online® Services
services of Nextel or to Nextel's subscribers, third statements, opinions, graphics, photos, music, services
parties or to the public generally (e.g., Customer shall and other information ("Content"), including Content
not attempt to gain unauthorized access to the Service or provided by third parties. Customer acknowledges that
any account on the Service, use the Service to infringe Nextel offers no guarantee or as ce regarding the �I
Blackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc.
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accuracy, completeness, appropriateness or utility of the Nextel also may be required during public safety
Content. Customer also acknowledges that Nextel does emergencies or when System capacity is otherwise
not publish and is in no way responsible for any Content limited to limit access to the Nextel network for those
that is provided by third parties. Customer also may customers that are not then using the Service and
establish contact with third parties through Nextel connected to the network in order to facilitate
Online® Services. Nextel is not responsible for the communications by public safety organizations such as
actions of third parties contacted by Customer, whether police and fire departments. In this event, customers
such contact was initiated by Customer or was brought that have priority access Service will be given access to
about through an embedded link on the Equipment. the Nextel network before Nextel's non-priority access
Content providers and others have proprietary interests customers. Nextel will not complete calls to 900, 976 or
in certain Content. Customer shall not, and will not similar numbers for pay-per-call services. Caller
permit others, to reproduce, broadcast, distribute, sell, identification information may not be available for all
publish, commercially exploit or otherwise disseminate incoming calls. International calling may be blocked.
any Content in any manner without the prior written
consent of Nextel, the Content providers, or others with (g) Equipment. Customer acknowledges that Nextel is
proprietary interests in such Content, as applicable. not responsible for the operation, quality of
transmission, or, unless separate maintenance
(d)Network Security. Nextel may take any action that it arrangements have been made between Nextel and
deems necessary to (1) protect its network, its rights or Customer, for maintenance of the Equipment.
the rights of its customers and third parties; or (2) Customer further acknowledges that Equipment
optimize or improve its network, its Services and the purchased from Nextel is not compatible with and will
Equipment. Customer acknowledges that such action not support services provided by other wireless carriers,
may include, without limitation, employing methods, except for those services provided by an entity operating
technologies, or procedures to filter or block messages compatible iDEN equipment or in connection with
sent through Nextel Online® Services. Nextel may, in roaming to certain countries outside of the United
its sole and absolute discretion, at any time, filter States. NEXTEL SHALL NOT BE LIABLE FOR
"spam" or prevent "hacking," "viruses" or other ANY DAMAGES (INCLUDING DAMAGE TO THE
potential harms without regard to any Customer EQUIPMENT) RESULTING FROM INSTALLATION
preference. OF ANY EQUIPMENT BY CUSTOMER OR ANY
THIRD PARTY.
(e) Application Support. Nextel is often not the
developer of Online Applications that are accessible 9. Indemnification. (a) Nextel will defend, indemnify
through Nextel Online® Services. Therefore, if and hold harmless the Customer, and its employees,
Customer contacts Nextel's Customer Care department officers, directors, principals and agents against all
regarding use of an Online Application, Customer may claims, actions, damages, costs, and liabilities
be referred to the customer care department of the (including reasonable attorney's fees),and all liability to
developer of the Online Application, and Nextel shall third parties arising from or in connection with any
not be obligated to support any such Online death, bodily injury or damage to tangible personal or
Application. real property caused or incurred by the physical acts of
Nextel's employees or agents while upon the premises
(f) Service Availability. Service is generally available of or controlled by Customer.
to Customer when Customer is within the operating
range of the Nextel network or within the range of a (b) To receive the foregoing indemnities, Customer
provider with which Nextel has a reciprocal service must notify Nextel in writing of a claim or suit and
arrangement ("Service Area"). CUSTOMER'S provide reasonable cooperation (at Nextel's expense)
SERVICE AREA IS SUBJECT TO CHANGE AT and full authority to defend or settle the claim or suit.
ANY TIME IN NEXTEL'S SOLE DISCRETION. Nextel shall have no obligation to indemnify Customer
Service quality and availability within Customer's under any settlement made without Nextel's written
Service Area is also affected by conditions Nextel does consent.
not control, including the Equipment, problems
associated with interconnecting carriers, power failures, 10. Limitation of Liability. NEXTEL'S SOLE
"viruses", obstructions such as buildings or trees, LIABILITY FOR SERVICE DISRUPTION,
tunnels, atmospheric, geographic or topographical WHETHER CAUSED BY THE NEGLIGENCE OF
conditions and other conditions. Service also may be NEXTEL OR OTHERWISE, IS LIMITED TO A
limited or temporarily unavailable due to System CREDIT ALLOWANCE NOT E_XCEEDLNTG AN
capacity limitations or system repairs or modifications. AMOUNT EQUAL TO THE ROPORTIONATE
Blackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc.
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CHARGE TO CUSTOMER FOR THE PERIOD OF Equipment and Service that are dependent thereon, less
SERVICE DISRUPTION. EXCEPT AS OTHERWISE a reasonable amount for Customer's use of the
SET FORTH IN THE PRECEDING SENTENCE, Equipment and Service up to the time of return. The
NEXTEL'S SOLE LIABILITY (WHETHER IN foregoing remedies constitute the sole and exclusive
CONTRACT, TORT, NEGLIGENCE, STRICT remedies of Customer against Nextel and Nextel's
LIABILITY IN TORT OR BY STATUTE OR entire liability with respect to infringement. To receive
OTHERWISE) FOR ANY OTHER TYPE OF CLAIM the foregoing indemnities, Customer must promptly
IN ANY MANNER RELATED TO THIS notify Nextel in writing of a claim or suit and provide
AGREEMENT SHALL BE THE PAYMENT OF reasonable cooperation and full authority to defend or
DIRECT DAMAGES, AND SUCH DAMAGES settle the claim or suit.
SHALL IN NO EVENT EXCEED IN THE (c) THE FOREGOING PROVISIONS OF THIS
AGGREGATE THE FEES RECEIVED BY NEXTEL SECTION STATE THE ENTIRE LIABILITY AND
UNDER THIS AGREEMENT WITH RESPECT TO OBLIGATION OF NEXTEL, AND ANY OF ITS
THE WORK INVOLVED. IN NO EVENT IS LICENSORS, AND THE EXCLUSIVE REMEDY OF
NEXTEL LIABLE FOR ACTUAL, THE CUSTOMER, WITH RESPECT TO ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, ACTUAL OR ALLEGED INFRINGEMENT OF ANY
SPECIAL OR OTHER INDIRECT DAMAGES U.S. PATENT, COPYRIGHT, TRADE SECRET,
CAUSED BY ITS NEGLIGENCE OR OTHERWISE TRADEMARK OR OTHER INTELLECTUAL
WHETHER OR NOT SUCH DAMAGES ARE PROPERTY RIGHT BY THE EQUIPMENT AND/OR
FORESEEN OR UNFORESEEN, NOR FOR SERVICES OR ANY PART THEREOF.
ECONOMIC LOSS, PERSONAL INJURIES OR
PROPERTY DAMAGES SUSTAINED BY 12. Warranties Disclaimed. (a) Service, Content,
CUSTOMER OR ANY THIRD PARTIES ARISING Applications: NEXTEL MAKES NO WARRANTIES,
FROM OR RELATING TO SERVICE DISRUPTION. EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF
11. Intellectual Property Indemnification. (a) If MERCHANTABILITY OR FITNESS FOR A
Customer notifies Nextel in writing of a third-party PARTICULAR PURPOSE TO CUSTOMER IN
claim against Customer that any Equipment or Service CONNECTION WITH ITS USE OF THE SERVICE,
provided under the Agreement, or any material provided CONTENT AND/OR APPLICATIONS. THE
by Nextel which is included in or used in the CUSTOMER ACKNOWLEDGES THAT SERVICE
development or provision of Equipment or Service, DISRUPTIONS WILL OCCUR FROM TIME TO
infringes a U.S. patent, copyright, trade secret, or TIME AND, SUBJECT ONLY TO THE LIMITATION
trademark of any third parry, Nextel shall defend such OF LIABILITY SECTION SET FORTH HEREIN,
claim at its expense and shall pay any costs or damages AGREES TO HOLD NEXTEL HARMLESS FOR ALL
that may be finally awarded against Customer. Nextel SUCH DISRUPTIONS.
shall not indemnify Customer, however, if the claim of
infringement is caused by: (1)misuse or unauthorized (b) Equipment: NEXTEL DOES NOT
modification of the Equipment or Service by Customer; MANUFACTURE ANY EQUIPMENT AND OFFERS
(2) failure to use corrections or enhancements made NO WARRANTY ON ANY EQUIPMENT BEYOND
available to Customer by Nextel; (3) use of the THE MANUFACTURER'S WARRANTY
Equipment or Service in combination with any product PROVIDED DIRECTLY FROM THE
or information not owned or developed by Nextel, MANUFACTURER TO THE CUSTOMER UPON
unless the claim would have arisen solely from the use RECEIPT OF THE EQUIPMENT. EXCEPT FOR
of the Equipment or Service without combination with ANY WARRANTIES THE CUSTOMER RECEIVES
such product or information; (4)Customer's FROM THE EQUIPMENT MANUFACTURER,
distribution, marketing, or use for the benefit of third NEXTEL MAKES NO WARRANTIES OR
parties of the Equipment or Service; or (5) information, REPRESENTATIONS OF ANY KIND, STATUTORY,
direction, specification, or materials provided by EXPRESS OR IMPLIED, TO CUSTOMER OR TO
Customer. ANY OTHER PURCHASER OF EQUIPMENT.
(b) If any Equipment or Service is found to be WITHOUT LIMITING THE FOREGOING, NEXTEL
infringing,Nextel shall, at its expense and option,either SPECIFICALLY MAKES NO EXPRESS OR
(i)procure the right for Customer to continue using it, IMPLIED WARRANTIES OF MERCHANTABILITY
(ii)replace it with a non-infringing equivalent, OR FITNESS FOR A PARTICULAR PURPOSE.
(iii)modify it to make it non-infringing, or (iv)direct EXCEPT FOR ANY WARRANTIES THE
the return of the Equipment and refund of the fees and CUSTOMER RECEIVES FROM THE EQUIPMENT
expenses paid for such Equipment and Service and any MANUFACTURER, THE CUSTOMER HEREBY
ftBlackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc.
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WAIVES ALL OTHER WARRANTIES, the "Cure Period." The Cure Period shall be a
GUARANTEES, CONDITIONS, OR LIABILITIES, minimum of thirty (30) days from the date that the non-
EXPRESS OR IMPLIED, ARISING BY LAW OR defaulting Party provides written notice ("Cure Notice")
OTHERWISE. N NO EVENT SHALL NEXTEL BE of such breach to the defaulting Party, and provides
LIABLE FOR CONSEQUENTIAL, SPECIAL, such defaulting Party with an opportunity to cure.
INCIDENTAL OR OTHER NDIRECT DAMAGES,
WHETHER OR NOT OCCASIONED BY NEXTEL (c)Nextel incurs a significant cost in activating Service
NEGLIGENCE AND INCLUDING, WITHOUT to Customer, including a large up-front cost in offering
LIMITATION, LIABILITY FOR ANY LOSS OR Equipment to Customer. These costs are partially
DAMAGE RESULTING FROM THE recouped over the length of Customer's Agreement with
INTERRUPTION OR FAILURE N THE Nextel through monthly service rate charges to
OPERATION OF ANY EQUIPMENT SOLD OR Customer, which have been established in part for this
LEASED HEREUNDER. EXCEPT FOR SPECIFIC purpose. If Customer breaches this Agreement or
WARRANTIES, EXTENDED BY EQUIPMENT terminates Service for any reason (including by porting
MANUFACTURERS DIRECTLY TO THE its Phone number to another service provider),
CUSTOMER, THERE ARE NO WARRANTIES Customer understands and acknowledges that Nextel
THAT EXTEND BEYOND THE DESCRIPTION will not receive the full benefit of its Agreement with
CONTAINED N THE MANUFACTURER'S Customer, in part, because Nextel will not continue to
WARRANTIES APPLICABLE TO A GIVEN ITEM receive monthly service charges from Customer. As a
OF EQUIPMENT. IF THE EQUIPMENT PROVES result, Nextel shall incur damages that are difficult, if
DEFECTIVE, UNLESS OTHERWISE AGREED BY not impossible, to determine.
NEXTEL N WRITING, ANY COSTS OF
NECESSARY SERVICNG AND REPAIR WILL BE (d)In the event Nextel is determined to be in breach of a
BORNE BY THE CUSTOMER. material obligation under this Agreement and Nextel
fails to remedy such breach within the Cure Period,
(c) UNDER CERTAIN CIRCUMSTANCES, SOME Customer's sole remedy will be to terminate this
JURISDICTIONS MAY NOT RECOGNIZE OR GIVE Agreement. Nextel will not pay excess reprocurement
EFFECT, N WHOLE OR N PART,TO WARRANTY costs or costs of cover.
DISCLAIMERS AND/OR LIMITATIONS OF
REMEDIES FOR BREACH; AND THEREFORE, TO 14. Force Majeure. Notwithstanding anything to the
THE EXTENT THAT THE DISCLAIMER OF contrary contained in this Agreement (including but not
WARRANTIES SET FORTH HEREN AND THIS limited to installation, delivery and liquidated damages),
LIMITATION OF REMEDIES ARE NOT either Party shall not be liable for loss or damage or be
PERMITTED BY APPLICABLE LAW, THEY WILL deemed to be in breach of the Agreement due to a
NOT APPLY TO CUSTOMER OR SHALL ONLY Party's failure of performance, wholly or in part, under
APPLY TO THE EXTENT PERMITTED BY SUCH the Agreement if such failure or delay of performance,
APPLICABLE LAW. is due to causes beyond a Party's reasonable control or
beyond the reasonable control of its subcontractors or
13. Termination. (a) Customer may terminate this agents, including but not limited to acts of God, fire,
Agreement for convenience, in whole or in part, upon at flood, explosion, vandalism, storm or other similar
least thirty (30) days prior written notice. If Customer occurrences; any law, order, regulation or request of the
terminates all or part of this Agreement for United States government or of any government having
convenience, Customer must pay Nextel all fees and jurisdiction or of any agency, commission, court or
charges for all Services, work done, and preparations other instrumentality of any one or more of such
made (including reasonable startup and implementation governments; national emergencies; cable cuts;
costs that were to be amortized over future payments) transmission tower damage; riots; wars; strikes, criminal
for the terminated portions of the Agreement, including or malicious acts of third parties, lockouts, work
reasonable settlements with subcontractors, reasonable stoppages or other such labor difficulties; acts of the
costs of settling the terminated work, and a reasonable local exchange company or other third party beyond the
allowance for profit for Equipment and/or Service reasonable control of a Party. Any delay resulting
already provided to and accepted by Customer. therefrom shall extend or excuse a Party's performance
accordingly, in whole or in part, as may be reasonable.
(b) In the event either Party breaches a material
provision or obligation under this Agreement, then the 15. Confidentiality; Release of Customer Information.
non-defaulting Party may terminate the Agreement if (a) Privacy. Wireless systems use radio chanud&-to
the defaulting Party does not remedy the breach within transmit communications that y--Te accidentally or
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City of Fort Worth and Nextel of Texas,Inc.
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intentionally intercepted. Although federal and state (c) Access, Use and Disclosure of Customer
laws may make it illegal for third parties to listen in on Information and Communications. Customer
Customer's Service, privacy cannot be guaranteed. acknowledges and agrees that Nextel may access, use,
NEXTEL SHALL NOT BE LIABLE TO CUSTOMER and disclose to third parties, any information whether
OR TO ANY THIRD PARTY FOR personally identifying information, or "customer
EAVESDROPPING ON OR INTERCEPTION OF proprietary network information" ("CPNI") within the
COMMUNICATIONS MADE WHILE USING THE meaning of 47 U.S.C. § 222 and its implementing
SERVICE OR THE EQUIPMENT. regulations ("CPNI Regulations") that Nextel collects,
possesses or develops about Customer to: (1) provide
(b) 911 or Other Emergency Calls. The Service does Customer with Equipment, Service, or customer
not interact with 911 and other emergency services in support; (2) enable Customer to switch to a new service
the same manner as non-wireless or landline telephone provider (either Nextel or another service provider)
services. Depending on Customer's location, the type while retaining the same phone number; (3) list
of Equipment being used, the type of equipment being Customer's contact information (e.g., name, address,
utilized by any applicable emergency services provider, and Number) in a telephone or subscriber directory, or
and the circumstances and conditions of a particular include such information in a directory assistance
call, Customer's phone number and/or location may not service; (4) provide handset-based or network-based
be identifiable to emergency services providers and geographic information services via Nextel-provided or
Customer may not be connected to the appropriate third party software Applications; (5) comply with
emergency services provider. In certain circumstances, applicable law; or (6) respond to emergencies.
a 911 call may be routed to a state patrol dispatcher. Customer acknowledges that any information that
Nextel is deploying wireless Enhanced 911 ("E911") identifies Customer (e.g., Customer's name and
compatible Equipment that meets applicable Federal Number) and calls made by Customer may appear on
Communications Commission ("FCC") requirements the Equipment or bill of a person or party that receives
and that is designed to help public safety authorities Customer's call. Nextel may access, use, disclose,
locate users of the Service who make 911 calls. record or monitor any communications to or from
However, E911 service that is compatible with the FCC Customer or any other person to protect Nextel's rights
technical requirements is not available in all areas, and or property or those of other customers, as permitted by
even in those areas where it is available, it is not entirely law.
reliable. Moreover, if Customer's Equipment is not
GPS-enabled, emergency services personnel may have (d) Geographic Information Services. Consistent with
much less precise location information about the the foregoing, Customer acknowledges and agrees that
Customer, compared to the information available to Nextel or a third party application service provider may
them if Customer's Equipment was GPS-enabled. The access, use, and disclose to third parties the geographic
information available to emergency service providers location of Customer's Equipment to provide Customer
may also be limited if Customer's number or numbers with any geographic information service which
are in the process of being ported. Customer Customer accesses through the Service or Equipment.
acknowledges that E911 service is not available in all If Customer utilizes any such service and there are
areas, is not completely reliable and is further limited additional users on Customer's account, Customer shall
when using non-GPS enabled Equipment or during the clearly, conspicuously, and regularly notify all
number porting process. CUSTOMER AGREES TO individual users of the Service that location information
WAIVE ANY AND ALL CLAIMS, ACTIONS, (i.e., the geographic coordinates of the Equipment) may
SUITS, DEMANDS AND JUDGMENTS, be accessed, used, or disclosed in connection with the
INCLUDING WITHOUT LIMITATION ANY Service. For any geographic information service that is
CLAIMS FOR INDEMNIFICATION, AGAINST governed by the CPNI regulations or a similar law,
NEXTEL ARISING OUT OF THE USE OR Nextel will provide Customer with a separate notice and
ATTEMPTED USE OF NEXTEL'S SERVICE TO opportunity to consent to the access,use, and disclosure
ACCESS 911 OR OTHER EMERGENCY SERVICES. of geographic information. CUSTOMER AGREES TO
Customer consents to Nextel's disclosure of Customer WAIVE ANY AND ALL CLAIMS, LOSSES,
information to governmental and public safety EXPENSES, DEMANDS, ACTIONS, OR CAUSES
authorities in response to emergencies. This OF ACTION (INCLUDING ALL ACTIONS BY
information may include, but is not limited to, THIRD PARTIES) AGAINST NEXTEL ARISING
Customer's name, address, Number, and the location of OUT OF A BREACH OF CUSTOMER'S
the user of the Service at the time of call. OBLIGATION TO NOTIFY USERS AS SET FORTH
IN THIS SECTION OR CUSTOMER'S USE OF ANY
Blackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc. _
Page 7 of 11
GEOGRPAHIC INFORMATION SERVICE OR alternative dispute resolution method. Each Party shall
LOCATION INFORMATION. continue to perform its obligations under this
Agreement pending final resolution of any dispute
(e) Confidential Information. Commencing on the arising out of or relating to this Agreement. Except as
Effective Date of this Agreement and continuing for a otherwise provided under this Agreement, Customer
period of three (3) years from the termination of this and Nextel shall each bear its own costs and expenses
Agreement, each Party shall protect as confidential, and incurred in connection with any dispute resolution
shall not disclose to any third party, any Confidential pursuant to this Agreement. In addition, Customer and
Information received from the disclosing Party or Nextel shall share equally all third-party costs in
otherwise discovered by the receiving Party during the connection with any attempt to resolve disputes
Term of this Agreement, including but not limited to, pursuant to this Agreement,unless otherwise agreed.
the pricing and terms of this Agreement, and any
information relating to the disclosing Party's 18. Assignment. Neither Party may assign this
technology, business affairs, and marketing or sales Agreement or any rights hereunder without the prior
plans(collectively the "Confidential Information"). The written consent of the other Party, which consent shall
Parties shall use Confidential Information only for the not be unreasonably withheld, except that Nextel may
purpose of this Agreement. The foregoing restrictions assign this Agreement to any parent, subsidiary or
on use and disclosure of Confidential Information do affiliate of Nextel upon written notification to
not apply to information that: (a) is in the possession of Customer. Subject to the restrictions contained herein,
the receiving Party at the time of its disclosure and is this Agreement shall bind and inure to the benefit of the
not otherwise subject to obligations of confidentiality; successors and assigns of the Parties hereto.
(b) is or becomes publicly known, through no wrongful
act or omission of the receiving Party; (c) is received 19. Appropriation of Funds. Customer shall provide
without restriction from a third party free to disclose it Nextel with reasonable notice of any lack of allocable
without obligation to the disclosing Party; (d) is funds or appropriation of funds relating to this
developed independently by the receiving Party without Agreement. If for any reason, at any time during any
reference to the Confidential Information; or (e) is term of this Agreement, Customer fails to appropriate
required to be disclosed by statute, regulation, court or funds sufficient to perform it's obligations under this
government order, or otherwise by law. Agreement or withdraws previously appropriated funds
so that the Customer is no longer able to fulfill its
16. Order of Precedence. Customer's Solicitation for obligations under this Agreement, this Agreement shall
Cellular Phone Services and Nextel's proposal automatically terminate effective (i) thirty (30) days
submitted in response to Customer's Solicitation are following delivery by Customer to Nextel written notice
hereby incorporated by reference. In the event of an of Customer's intent to terminate or (ii) on the last date
inconsistency or conflict between or among the for which funding has been appropriated, whichever
provisions of this Agreement, the inconsistency or date is sooner.
conflict shall be resolved by giving precedence to the
following documents as follows: (i) this Agreement, 20. Technology Refreshment. (a) During the course of
including attachments; (ii) Nextel's proposal; and (iii) this Agreement, Nextel shall submit a Technological
Customer's solicitation. In the event of inconsistency Refreshment Proposal for the Customer's consideration
among the main body of this Agreement and the to propose the substitution or addition for any provided
Attachments, the order of precedence shall be the main product or service that may become available as a result
body of this Agreement and the Attachments in of technological improvements. The Customer may, at
alphabetical or numerical order. any time during the term of this Agreement or any
extensions thereto, modify this Agreement to acquire
17. Disputes. Each Party hereby agrees that any products which are similar to those existing under the
dispute arising between the Parties relating to this Agreement and that Nextel has or has not formally
Agreement will be promptly submitted in writing to the announced for marketing purposes. Such action shall
other Party in accordance with the notice requirements be considered to be within the scope of this Agreement.
of this Agreement. The Parties shall designate At the option of the Customer, a live test demonstration
individuals with authority to resolve the dispute and of the substitute product or service may be required.
such individuals shall work diligently to resolve the The Customer is under no obligation to modify this
dispute. In the event the Parties are unable to resolve Agreement in response to Nextel's proposed additions
the dispute within thirty (30) days, either Party may or substitutions. Such additions or substitutions may
refer the dispute to a court of competent jurisdiction, or include all or any part of a given product or service_
if both Parties agree, to mediation, arbitration or other provided that the following conditions are met and
Blackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc.
Page 8 of l l — -
substantiated by documentation in Nextel's all of its employees, agents and operations. Neither
Technological Refreshment Proposal: Nextel nor anyone employed by it shall be, represent,
(i) The proposed product shall meet all of the act, purport to act or be deemed to be the agent,
technical specifications and terms and conditions of this representative, employee or servant of Customer. The
Agreement. Parties understand and agree that this Agreement is not
(ii) The proposed product shall have capacity, intended to create and does not create a joint venture,
performance, or functional characteristics equal to or partnership, or agency relationship. Each Party shall be
greater than the current product. conclusively deemed to be an independent contractor
(iii) The Technological Refreshment Proposal shall and not under the control or supervision of the other
discuss the impact, if any, on training, maintenance, Party,except as it pertains to the quality control over the
documentation, other software, other hardware, existing use of the other Party's trademarks.
data files and databases, and delivery schedules under
the Agreement. The cost of changes to hardware, 24. Notices. All notices, requests, or other
software and/or existing data files and databases not communications (excluding invoices) hereunder shall
specifically addressed in the Technological Refreshment be in writing and either transmitted via overnight
Proposal shall be borne solely by Nextel. courier, facsimile with correct answerback, electronic
(iv) An estimate of the cost impact, if any, that will mail, hand delivery or certified or registered mail,
result from the adoption of the Technological postage prepaid and return receipt requested to the
Refreshment Proposal. Parties at the following addresses. Notices will be
deemed to have been given when received.
(b) Nextel has the right to withdraw, in whole or in
part, any Technological Refreshment Proposal prior to Customer:
acceptance by the Customer. Contactor will use City of Fort Worth/IT Solutions
commercially reasonable efforts to ensure that prices for Attn:Beatrice De Hoyos, Contract Administrator
additions or substitutions are comparable to replaced or 1000 Throckmorton
discontinued products and services. If a Technological Fort Worth,TX 76102
Refreshment Proposal is accepted and made a part of
this Agreement, an equitable adjustment increasing or Nextel:
decreasing the Agreement price and any other affected Nextel Communications
provision of this Agreement shall be made in Attn: Rexford R. Gile,III, Sr. Contracts Manager
accordance with this section and any other applicable 2001 Edmund Halley Drive
provision of this Agreement. Mail Stop A2-5
Reston, VA 20191
21. Governing Law. This Agreement shall be governed
by the laws of the State of Texas, without regard to its Customer shall ensure that a contemporaneous copy of
choice of law principles. all notices under this Section is sent to: Vice President
& Assistant General Counsel — Public Sector, Nextel
22. Severability; Waiver; Headings. If any portion of Communications, 2001 Edmund Halley Drive, Reston,
this Agreement is held or determined to be invalid or VA 20191.
unenforceable, the remaining provisions will not be
affected thereby. The failure of a Party to object to, or to 25. Publicity. Neither Party shall: (a) use any service
take affirmative action with respect to, any conduct of the mark or trademark of the other Party; or (b) refer to the
other Party which is in violation of the terms of this other Party in connection with any advertising,
Agreement shall not be construed as a waiver of the promotion, press release or publication unless it obtains
violation or breach or of any future violation, breach, or the other Party's prior written approval.
wrongful conduct. Any waiver, in whole or in part, of
any provision hereof shall not be construed as a waiver of 26. No Third Party Beneficiary. The Parties acknowledge
any other provision hereof, or as a future waiver of any and agree that enforcement of the terms and conditions of
subsequent breach by a Party. The headings of sections this Agreement, and all rights of action relating to such
of this Agreement are for the convenience of the Parties enforcement, shall be strictly reserved to Nextel and
only and shall not be considered in any interpretation of Customer, and nothing contained in this Agreement shall
this Agreement. give or allow any such claim or right of action by any
other or third party or person on such Agreement,
23. Independent Contractor. Nextel is and shall including but not limited to subcontractors, consultants,
perform these services as an independent contractor and and suppliers. It is the express intention of Nextel and
as such, shall have and maintain complete control over Customer that any person other than ?extel- Ctts �rier
Blackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc. "
Page 9 of 1 I `���
receiving services or benefits under this Agreement shall
be deemed to be an incidental beneficiary only.
27. Examination of Records. Nextel shall maintain in
accordance with applicable law and generally accepted
commercial standards all relevant records relating to
this contract for a period of six (6) years following the
date of acceptance of final payment under the contract.
Upon reasonable prior written notice,Nextel shall make
records relating to the contract available to Customer at
Nextel's business offices during normal business hours
for inspection, examination or audit. Further, due to the
highly sensitive and proprietary nature of Nextel's
records, any third party auditor acting on behalf of the
Customer shall be subject to prior approval by Nextel
and may be required at Nextel's sole discretion to
execute Nextel's standard Non-Disclosure Agreement
prior to examining, inspecting, copying or auditing
Nextel's records.
28. Entire Agreement. This Agreement (and any
Attachments and other documents incorporated herein
by reference) constitutes the entire agreement between
the Parties with respect to its subject matter and
supersedes all other representations, understandings or
agreements that are not expressed herein, whether oral
or written. Except as otherwise set forth herein, no
amendment to this Agreement shall be valid unless in
writing and signed by both Parties. Terms defined in
the main body of this Agreement shall have the same
meaning in the Attachments and vice versa.
Blackberry Service Agreement ME
City of Fort Worth and Nextel of Texas,Inc.
Page 10 of 11
IN WITNESS WHEREOF, the duly authorized representatives of the Parties hereto have executed
this Agreement as of the Effective Date.
City of Fort Worth: Nextel of Texas, Inc.,
d/b/a Nextel Communications
By: By: ✓ s
Name: Richard Zavala Name: H. Leon Frazier
Assistant City Manager Vice President
Date: t° Date: IL 12", �o
Approved as to Form and Legality:
By. �
Name: Maleshia B. Farmer
Assistant City Attorney
Date: 4 '�q,
M&C: P-10035 11/16/04
Atter
By:
Name: Marty Hendrix
City Secretary
Blackberry Service Agreement
City of Fort Worth and Nextel of Texas,Inc.
Page 1 I of I I
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 11/16/2004
CONTINUED FROM A PREVIOUS WEEK
DATE: Tuesday, November 09, 2004
LOG NAME: 13PO4-0001 REFERENCE NO.: P-10035
SUBJECT:
Purchase Agreement for Blackberry Equipment and Services with Nextel Communications, Inc. for
the Information Technology Solutions Department
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize a purchase agreement for the purchase of Blackberry equipment, software and wireless
services from Nextel Communications, Inc. (Nextel of Texas, Inc.) for the Information Technology Solutions
Department; and
2. Authorize this agreement to begin December 1, 2004, and expire November 30, 2005, with options to
renew for three additional one-year periods.
DISCUSSION:
In January 2004, the City of Fort Worth issued a Request for Proposals (RFP) for Blackberry wireless
services, equipment, accessories and software. The purpose of the RFP was to establish service and price
agreements with one qualified vendor for the provision of the services for the City of Fort Worth. The
respondents were asked to describe the wireless services to be provided, the geographic areas served,
potential upgrades for service and hardware, and to address customer service and billing issues.
Prior to the release of the RFP for Blackberry services the IT Solutions Department and departmental
customers tested several wireless technologies for email and calendar usage. At the time, the Blackberry
device was found to be consistently more reliable than other technologies available. The Blackberry device
held a battery charge longer than other devices. Email and meeting information was delivered directly to
the device, making it easier for the customer to use. Staff found that the Blackberry service allowed
connection with secure, wireless access to email, data, phone and web features. As a result, the IT
Solutions staff is recommending that Blackberry technology be used as the wireless standard for the City of
Fort Worth for the delivery of email and calendar services.
Four vendors responded with proposals to provide Blackberry wireless services. Vendors with responses
were AT&T Wireless Services, Cingular Wireless, Nextel Communications and Verizon Wireless. A team of
IT Solutions Department and Purchasing staff evaluated the proposals. The primary factors in the initial
evaluation included: 1) experience of the firm, 2) proposed contract price, 3) technical support capability
and 4) customer service capability. After the initial evaluation, the two highest rated vendors (Nextel and
Cingular) were asked to supply additional information, to negotiate for services and complete the evaluation
process. Based on further review, it was determined that Nextel Communications would provide the most
effective services for the City.
The primary factor in recommending the award to Nextel is the company's advanced ability to serve the
Lopnnme- 1 IP04-0001 PnaP 1 of I
public health and safety communities. Nextel is upgrading its network and handsets to meet federal
requirements for the most advanced 911 capabilities. Nextel services already include the capability to use
the system in a radio mode. At the time of this evaluation, the other firms did not have the capability to
provide this feature. As a result, Nextel has more advanced interoperability capabilities.
Currently, a few City officials and staff have Blackberry devices and wireless services. At this time several
different vendors are providing the Blackberry services. It is recommended that a transition process occur to
move all City users to the same service system. If the service is standardized with Nextel, IT Solutions staff
can better support this communication function. Additionally, any pricing discounts are more likely to occur
with a larger number of users with the one vendor.
For each user that is added to the Blackberry system, the City will need to purchase a Blackberry device
and user license. Nextel is offering the City Of Fort Worth its products at their flat rate public sector pricing
or at discounts off standard pricing of 39% for equipment and 20% for accessories, whichever is less. The
City will receive at least an 18% discount off of Nextel's monthly service airtime rate plans. The first year
estimated cost for 100 Blackberry users is $71,100. The estimated cost includes the acquisition of the
devices, licenses for each device and 12 months of service for each device.
An item that was not part of the RFP was the improved reception of wireless signals for service. Currently,
there are parts of City Hall and other immediate City facilities that need a wireless signal boost in order to
use the Blackberry devices. The solution is to install Bi-Directional Amplifiers (BDAs) inside certain locations
of the City Hall, Public Safety and Annex buildings. The estimated cost to install the BDAs for increased
signal strength for City Hall and adjacent facilities is $30,000. Since each wireless service provider has a
different signal frequency, the signal boosting process will only assist the reception of Nextel wireless
signals.
Initially, the City will pay the $30,000 cost of installing the BDAs. If the City meets certain conditions, then
Nextel will refund the cost of this installation. The conditions include: 1) in addition to maintaining the current
subscription service level, the City will add at least 100 new subscriptions for Blackberry or other services
during the first year of the agreement and 2) the City renews the service agreement for the second year. In
a survey of City Departments' staff it appears as though the minimum 100 user commitment is
achievable. If the City does not meet the conditions for the BDA agreement, then any refund the City
receives for renewing the agreement for a second year would be prorated based on the number of
subscribers the City had on the Nextel system.
BID ADVERTISEMENT — The Request for Proposals was advertised in the Commercial Recorder on
January 14 and 21, 2004.
M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the Purchasing
Division and approved by the M/WBE Office because the purchase of goods or services is from sources
where subcontracting or supplier opportunities are negligible.
RENEWAL OPTIONS - This agreement may be renewed for up to three successive one-year terms at the
City's option. This action does not require specific City Council approval provided that the City Council has
appropriated sufficient funds to satisfy the City's obligations during the renewal term.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated, of
the participating departments.
Loaname: 13PO4-0001 PAOP ? of`3
BQN\04-0001\LGS
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Richard Zavala (Acting) (8511)
Originating Department Head: Jim Keyes (8517)
Additional Information Contact: Robert Combs (8357)
Pete Anderson (8781)
Loename: 13PO4-0001 D- I --P2