HomeMy WebLinkAboutScana Communications,Inc. (2)
Augusta Richmond GA
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800 MHz USER AGREEMENT
THIS 800 MHZ USER AGREEMENT ("Agreement") effective January 6
199 Bis entered into by and between SCANA Communications, Inc. (hereinafter "SCANA
Communications"), a South Carolina corporation, and Augusta, Georgia, a political
subdivision of the State of Georgia (hereinafter "User").
WHEREAS, SCANA Communications presently operates and manages a non-profit,
cost-shared wide-area 800 MHZ trunked voice radio system throughout portions of South
Carolina and Georgia (the "Wide-Area Network"), and User currently takes service from the
Wide-Area Network's North Augusta (Site #6), Augusta (Site #5), and Hephzibah (Site #7)
sites on a non-profit, cost-shared basis pursuant to a prior agreement ("Prior Agreement");
and
WHEREAS, User desires to adjust its current service arrangement so as to receive
service from the following sites: North Augusta (Site #6); Augusta (Site #5); Jefferson EMC
(to be constructed); and CSSI (to be constructed);
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, SCANA Communications and User hereby abolish and nullify
the Prior Agreement and covenant and agree as follows:
1. ACCEPTANCE
This Agreement shall be executed simultaneously with the System Management
Agreement and shall be incorporated into said Agreement. Service Activation Forms,
substantially in the fomI attached hereto as Exhibits A, B, C and D, shall be submitted by User
to authorize and identi~y radio service to be provided by SCANA Communications and to
change such radio service to User's radios from time to time as provided therein. Service
Activation Forms, once initialed by User, shall become a part of this Agreement and be
incorporated herein by reference. Any changes in the Service Activation Form(s) must be
approved by User.
2. SERVICES
2.1 User agrees to pay for the services provided, pursuant to the Service
Activation Forms submitted by User, on a non-profit, cost-shared basis. Billing will
commence on the first day of the calendar month after service has begun.
2.2 User and SCANA Communications acknowledge that, for purposes of
this Agreement, User is receiving radio service to approximately 650 radios as of the date of
this Agreement pursuant to the terms and conditions included in the Prior Agreement. The
parties understand and agree that, as of the date of this Agreement, User shall be charged a
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dispatch rate of $28.50 per month per radio for dispatch services provided to all radios in
service as of the date of this Agreement. The parties further understand and agree that, after
execution of this Agreement, User will add additional radios as described below. Accordingly,
the parties agree to complete the necessary Service Activation Form(s) for said radios prior to
their activation on the system. The basic dispatch rate for radios added to the system after
execution of this Agreement also shall be $28.50 per month per radio.
The parties further understand and agree that, within nine (9) months of
the date of this Agreement, SCANA Communications will provide additional radio service to
all of User's radios activated on the system from the Jefferson EMC site ("JEMC") and that
within eighteen (18) months of the date of this Agreement, SCANA Communications will
provide additional radio service to all of User's radios activated on the system from the CSSI
site. Should SCANA Communications fail to complete the Jefferson EMC site and provide
additional radio service from such site within nine (9) months of the date of this Agreement, or
should SCANA Communications fail to construct the CSSI site and provide additional radio
service from such site within eighteen (18) months of the date of this Agreement, the monthly
charge set forth in the Service Activation Form(s) shall be reduced by 50% of the stated charge
until such time as the radios are activated on the system from such sites. Should SCANA
Communications fail to provide such additional radio service from the Jefferson EMC site and
CSSI site within eighteen (18) months of the date of this Agreement, such charge as reduced
above shall be reduced by an additional 50% until such time as the radios are activated. from
such sites.
2.3 User and SCANA Communications understand and agree that User shall
load on the system afte:rconstruction of JEMC additional radios pursuant to the following
schedule:
Date
Within 6 months after construction of JEMC
Within 12 months after construction of JEMC
Within 18 months after construction of JEMC
Within 24 months after construction of JEMC
Within 30 months after construction of JEMC
TOTAL
Number of
Additional Radios
370 Radios*
55 Radios
55 Radios
55 Radios
55 Radios
590 Radios
* (to include any radios purchased between July 1, 1997 and the date of this
Agreemcmt)
The parties understand and agree that the 590 radios described above (and the monthly service
charges) are in addition to those radios operating on the system (and the service charges
associated therewith) as of the date of this Agreement. Also, the above schedule is the
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minimum number of additional radios allowed during any 6-month period. Any radios added
during any previous months shall be applied against the total required to be loaded.
2.4 In determining whether User has added the required number of
additional radios at any given point in time, any radio added to the system by Augusta,
Georgia shall count toward User's loading requirement. In the event that User does not load
additional radios on the system in conformance with the above schedule, User nevertheless
shall be responsible for and pay all monthly service charges as if additional radios were added
to the system consistent with the above schedule.
2.5 User understands and agrees that any and all handset preprogramming or
other handset related expenses associated with the service provided to User under this
Agreement shall be the responsibility of and paid for by User.
2.6 User understands and acknowledges that construction of the Jefferson
EMC and CSSI sites is contingent upon SCANA Communications' ability to secure sufficient
rights to real estate at these sites for the construction and operation of 800 MHz
transmitters/receivers. Accordingly, the parties hereto understand and agree that, if SCANA
Communications, in its sole judgment, is unable to secure sufficient rights to real estate for the
construction of 800 MHz transmitters/receivers at the Jefferson EMC and CSSI sites, this
Agreement shall be nulll and void.
3. INTERCONNECT
If User should wish to obtain interconnection with the Public Switch Telephone
Network, User shall submit a modified Service Activation Form designating the specific radio
units for which interconnection is requested. SCANA Communications reserves the right to
regulate and manage the:: use of telephone interconnect service in order not to degrade dispatch
service. User understands and agrees that SCANA Communications has the right to invoke
whatever operating restrictions are deemed necessary to ensure that interconnect does not
degrade dispatch servio:.
4. INTERCONNECT CHARGES
Should User elect to have the telephone interconnect option, User will be
responsible to SCANA Communications for payment of all charges for usage of this option.
Charges for interconnect will be billed on either a flat fixed fee or on an air time billing cost
basis or a combination of both according to the terms of the Service Activation Agreement. If,
pursuant to the Service Activation Form(s), User is billed on a per minute basis, the Parties
understand and agree that any access of the interconnect option will result in airtime charges
regardless of whether calls are completed. User shall be responsible for its equal portion of
basic telephone company service and telephone line charges, any local calls and any toll calls it
incurs.
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5. FEES
SCANA Communications and User agree that the monthly recurring service fees
set forth herein in the Service Activation Form(s) shall be effective at all times during the term
of this Agreement.
6. AUTOMATIC RENEWAL - TERMINATION
This Agreement will remain in full force and effect for a period of seven (7)
years from the date of this Agreement. User shall have the option to extend this Agreement
for an additional two (2) year term at the same cost as set forth in the then-applicable Service
Activation Form(s) approved by User. Thereafter, this Agreement shall automatically extend
for successive one (1) year periods provided that either SCANA Communications or the User
may terminate this Agn~ment upon written notice to the other party one-hundred eighty (180)
days prior to the end of any such extension period sent by certified mail to the address
indicated herein and, provided further, that this Agreement shall terminate automatically if the
frequency authorizations under which service is provided are revoked by the FCC.
7. ASSIGNMENT; SUBCONTRACT
7.1 By User. Subject to the prior written consent of SCANA
Communications, which may be withheld for whatever reason or granted conditionally, and
provided it does not violate any of the other terms and conditions of this Agreement or any
applicable rule and/or regulations by the FCC, User may assign its rights under this Agreement
to a purchaser of the System, provided such purchaser expressly assumes all of the obligations
of User hereunder and otherwise agrees to comply with all of the terms and conditions of this
Agreement. Such assignment shall be effective only upon written notice to SCANA
Communications by Us,er, satisfaction of the above said conditions and provisions of this
Agreement and, to the c~xtent applicable, consent of the FCC to the transfer of any license
authorizations. Any su~h assignment shall not relieve User of its obligations hereunder until
assignment and assumption are completed and all prior obligations fulfilled.
7.2 By SCANA Communications. Subject to the prior written consent of
User, which may be withheld for whatever reason or granted conditionally, and provided it
does not violate any of the other terms and conditions of this Agreement or any applicable rule
and/or regulations of the FCC, SCANA Communications may assign its rights to manage the
System hereunder to another party; provided such assignee has experience in the management
of land mobile radio systems or other telecommunications facilities or, alternatively, is an
affiliate of SCANA Communications or employs either personnel of SCANA Communications
or other persons who have experience in the management of land mobile radio systems or other
telecommunications facilities. Such assignment shall be effective only upon written consent by
User. Any such assignment shall not relieve SCANA Communications of its obligations
hereunder until assignment and assumption are completed and all prior obligations fulfilled.
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SCANA Communications may employ such subcontractors or agents as it deems necessary in
the performance of its duties hereunder.
8. ADDITIONAL UNITS
If User is not in default, then at any time during the term of this Agreement or
any renewal period herc~of, service will be provided for additional units ordered by the User,
pursuant to a modified Service Activation Form as approved by User, if SCANA
Communications detem:1ines that such additional service is technically feasible.
9. COVENANTS
User and SCANA Communications agree (a) to observe and abide by all
applicable statutes, laws, ordinances, rules and regulations, including but not limited to those
of the FCC, and (b) to operate its radios and any related equipment so as not to cause undue
interference with any other users using the Wide-Area Network. User and SCANA
Communications recognize that applicable FCC rules and other statutes, laws, ordinances,
rules and regulations may change from time to time and that accordingly, the Parties will
cooperate to modify this Agreement to comply with any such changes.
10. COVERAGE
10.1 User acknowledges that one hundred percent (100%) coverage of any
area at all times is improbable. Testing and experience with actual field conditions indicate
adverse propagation conditions, such as short-term unpredictable meteorological effects and
sky wave interference from distant stations, can interrupt service at any time. Such events are
beyond the reasonable t:ontrol of SCANA Communications. Other causes beyond the
reasonable control of SCANA Communications are motor ignition and other electrical noise
that could be minimized by corrective devices at User's expense.
10.2 The parties hereto understand and agree that, within 12 months after
SCANA Communications constructs the Jefferson EMC site and the CSSI site, User shall have
the right to conduct a coverage test to certify that the radio coverage received by User is
consistent with the covc:::rage described herein. Such coverage test shall be conducted by a
party not affiliated with SCANA Communications or User and who is mutually acceptable to
both parties. During the term of this Agreement, User shall have the option to conduct
additional coverage tests to determine whether the coverage provided by SCANA
Communications is consistent with the coverage described herein. If User desires to conduct
such additional coverage tests, these coverage tests shall be conducted by a third party not
affiliated with SCANA Communications or User and who is mutually acceptable to both
parties. In the event that a coverage test conducted pursuant to this paragraph identifies
inconsistencies between the coverage actually provided and the coverage described herein,
User shall so advise SCANA Communications by written notice. Upon receipt of said written
notice, SCANA Communications shall have 60 days in which to make the coverage provided
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consistent with the coverage described herein, provided that no additional sites are required.
In the event additional site(s) is required, SCANA Communications shall have up to 180 days
in order to make the coverage provided consistent with the coverage described herein. In the
event SCANA Communications fails to make the coverage provided consistent with the
coverage described hen::in as provided in this paragraph, User may terminate this Agreement
upon 30 days written notice to SCANA Communications.
10.3 SCANA Communications has supplied User with a radio frequency
propagation map for that portion of the Wide-Area Network that will be used by User. Such
map is attached to this Agreement as Exhibit E. SCANA Communications and User
understand and agree that User desires outside portable and in-vehicle portable coverage.
"Outside portable coverage" means received signal strength of at least -97 dBm at the portable
unit when located five (5) feet above ground level (" AGL") and equipped with a half-wave
dipole antenna. "In-vehicle portable coverage" means received signal strength of at least -95
dBm at the portable unit, with user in a passenger vehicle and the portable unit at head level
and equipped with one half-wave dipole antenna. The coverage map attached as Exhibit E
includes a hatched area" and the parties agree that SCANA Communications will provide
coverage over 97 % of the hatched area at a reliability rate of 95 % within the hatched area.
This means that if the hatched area is divided into 100 uniform grid squares, then 97 of these
squares will receive coverage at the 95% reliability level. User acknowledges that the map
included as Exhibit E, as well as any other coverage maps which have been provided to User,
if any, indicate general parameters of expected coverage of the Wide-Area Network, subject to
previously mentioned conditions, and are not binding as an exact representation of coverage.
The User further acknowledges that SCANA Communications is not providing a warranty of
coverage and that such coverage will be subject to the limitation of liability set forth elsewhere
in this Agreement.
10.4 The parties agree that response time for any radio transmission shall not
be more than an average of more than four (4) seconds during the busiest hour of the day.
11. DEFAULT AND REMEDIES
11.1 Default. If User fails to make payment of any sum due or fails to
perform as required by any other provisions hereunder, and continues in such failure for thirty
(30) days after written notice has been sent by SCANA Communications to User, the User
shall be deemed in default under this Agreement.
11.2 Specific Performance. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event of any of the provisions of this
Agreement are not performed in accordance with their specific terms or otherwise are
breached. Accordingly, each of the Parties agrees that the other Party shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof.
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U.2.1 Waivers. No action or inaction taken at any time pursuant to
this Agreement, including the failure to require performance of any obligation provided for in
this Agreement or any investigation by or on behalf of either Party, shall in any way affect the
right to require such performance at any time thereafter or be deemed to constitute a waiver by
the Party taking or not taking such action of compliance with any representation, warranty;
covenant or agreement contained herein and/or in any Exhibit. The waiver by either Party
hereto of any default, misrepresentation or breach of any provision of this Agreement shall not
operate or be construed as a waiver of any prior or subsequent breach of the same or any other
such provision or constitute a waiver of the responsibility or obligation itself.
12. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF REMEDIES
12.1 USER ACKNOWLEDGES AND AGREES THAT SCANA
COMMUNICATIONS IS NOT THE MANUFACTURER OF ANY RADIO FREQUENCY
EQUIPMENT OR ANY OTHER EQUIPMENT USED BY SCANA COMMUNICATIONS
TO PROVIDE RADIO SERVICE. SCANA COMMUNICATIONS HEREBY DISCLAIMS
ALL REPRESENTATIONS AND WARRANTIES, DIRECT OR INDIRECT, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN CONNECTION WITH THE EQUIPMENT OR
SERVICE, OTHER THAN AS SET FORTH HEREIN (WHETHER PURCHASED OR
LEASED BY USER FROM SCANA COMMUNICATIONS OR ANOTHER), INCLUDING
BUT NOT LIMITED TO ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF
SUITABILITY, DURABILITY, MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE. SCANA COMMUNICATIONS TO THE EXTENT
PERMITTED BY LA VI ASSIGNS TO USER ANY AND ALL MANUFACTURERS'
WARRANTIES RELATING TO EQUIPMENT PURCHASED BY USER, IF ANY, AND
USER ACKNOWLEDGES RECEIPT OF ANY AND ALL SUCH MANUFACTURERS'
WARRANTIES.
13. 12.2 USER ACKNOWLEDGES AND AGREES THAT ITS
SOLE EXCLUSNE REMEDY IN CONNECTION WITH ANY DEFECTS IN
ANY EQUIPMENT, INCLUDING MANUFACTURE OR DESIGN, SHALL BE
AGAINST THE MANUFACTURER OF THE EQUIPMENT UNDER THE
MANUFACTURERS' WARRANTIES AND THAT SCANA
COMMUNICATIONS SHALL HAVE NO LIABILITY TO USER IN ANY
EVENT FOR ANY LOSS, DAMAGE, INJURY, OR EXPENSE OF ANY KIND
OR NATURE RELATED DIRECTLY OR INDIRECTLY TO ANY EQUIPMENT
OR SERVICE PROVIDED HEREUNDER, OTHER THAN AS SET FORTH
HEREIN. 'WITHOUT LIMITING THE ABOVE, SCANA COMMUNICATIONS
SHALL HAVE NO LIABILITY OR OBLIGATION TO USER, IN EITHER
CONTRACT OR TORT, FOR SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY USER, SUCH
AS, BUT NOT LIMITED TO, CLAIMS OR DAMAGES FOR PERSONAL
INJURY, \VRONGFUL DEATH, LOSS OF USE, LOSS OF ANTICIPATED
PROFITS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR
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ECONOMIC LOSSES OF ANY KIND RELATED TO ANY EQUIPMENT OR
RADIO SERVICE DESCRIBED HEREIN, WHETHER OR NOT CAUSED BY
SCANA COMMUNICATIONS' NEGLIGENCE, TO THE FULL EXTENT
SAME MAYBE DISCLAIMED BY LAW. ANY REFERENCES TO
EQUIPMENT IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO
ALL EQUIPMENT PURCHASED BY USER OR LEASED BY USER FROM
SCANA COMMUNICATIONS, IF ANY, OR ANOTHER
LESSOR.INTERRUPTION OF SERVICE; FORCE MAJEURE
Notwithstanding any other provision of this Agreement, SCANA
Communications shall not be liable to User or any other person for any loss or damage,
regardless of cause, for interruption or loss of radio service except as described in Section 14
hereof. SCANA Communications does not assume and shall have no liability under this
Agreement for failure to provide, or delay in providing, service due directly or indirectly to
causes beyond the control of SCANA Communications or its subcontractors, including but not
restricted to, acts of God or governmental entities, or of the public enemy, strikes, or
unusually severe weathl~r conditions. In the event of any failure or delay attributable to the
fault of SCANA Communications or its subcontractors, User's sole remedy for damages shall
be limited to User's charge for the time of such failure or delay as is more fully described in
Section 14 below. Notwithstanding any other provision contained in this Agreement, User
agrees, however, that no allowance will be given if such single failure or delay does not exceed
forty-eight (48) hours.
14. LIMITATIONS OF LIABILITY; INDEMNIFICATION
USER UNDERSTANDS AND ACKNOWLEDGES THAT (A) ALTERNATIVE MEANS OF
COMMUNICATION ARE AVAILABLE TO USER; (B) OCCASIONAL INTERRUPTION
OR IRREGULARTIES IN THE SERVICE MAY OCCUR; AND (C) ANY POTENTIAL
HARM FROM INTERRUPTIONS OR IRREGULARITIES IN THE SERVICE IS
SPECULATNE IN NATURE. SCANA COMMUNICATIONS CANNOT OFFER RADIO
SERVICE AT RATES WHICH REFLECT ITS VALUE TO EACH USER, AND SCANA
COMMUNICATIONS ASSUMES NO RESPONSffiILITY OTHER THAN THAT
CONTAINED IN THIS AGREEMENT . ACCORDINGLY, USER AGREES THAT SCANA
COMMUNICATIONS' SOLE LIABILITY FOR LOSS OR DAMAGE ARISING OUT OF
MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTS IN THE
SERVICE OR TRANSMISSION OF SERVICE PROVIDED BY SCANA
COMMUNICATIONS OR ANY CARRIER, FOR LOSSES OR DAMAGES ARISING OUT
OF THE FAILURE OF SCANA COMMUNICATIONS OR ANY CARRIER TO MAINTAIN
PROPER STANDARDS OF MAINTENANCE AND OPERATION SHALL BE AS
FOLLOWS:
(a) A CREDIT ALLOWANCE, AS DESCRIBED BELOW, WILL BE
MADE AT USER'S REQUEST IN THE FORM OF A PRO-RATA ADJUSTMENT OF THE
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FIXED MONTHLY CHARGES BILLED TO USER. FIXED MONTHLY CHARGES ARE
THE MONTHLY CHARGES PAID BY USER FOR 800 MHZ RADIO SERVICE.
(b) SUCH CREDIT ALLOWANCE WILL BE BASED UPON THE
PERIOD OF TIME WHICH SUCH MISTAKES, OMISSIONS, DELAYS, ERRORS AND
DEFECTS IN THE SERVICE OR ITS TRANSMISSIONS CAUSED INTERRUPTIONS IN
THE RENDERING OF THE SERVICE. ANY SUCH PERIOD OF TIME AN
INTERRUPTION OCCURS WILL BE MEASURED FROM THE TIME IT IS REPORTED
TO OR DETECTED BY SCANA COMMUNICATIONS, WHICHEVER OCCURS FIRST.
IN THE EVENT USER IS AFFECTED BY SUCH INTERRUPTION FOR A PERIOD OF
LESS THAN 48 HOilltS, NO SUCH ADJUSTMENT SHALL BE MADE. WHEN AN
INTERRUPTION EXCEEDS 48 HOURS, THE LENGTH OF THE INTERRUPTION WILL
BE MEASURED IN 24 HOURS DAYS. A FRACTION OF A DAY CONSISTING OF LESS
THAN 12 HOURS WILL NOT BE CREDITED.
(c) THE CREDIT ALLOWANCE WILL BE COMPUTED BY DNIDING
THE LENGTH OF THE SERVICE INTERRUPTION BY A STANDARD 30 DAY MONTH
AND THEN MULTIPLYING THE RESULT BY THE APPLICABLE MONTHLY
CHARGES AS SET FORTH IN THE SERVICE ACTIVATION FORM FOR EACH RADIO
SET TO WHICH SERVICE WAS INTERRUPTED.
(d) THE SERVICE FURNISHED BY SCANA COMMUNICATIONS, IN
ADDITION TO THE LIMITATIONS SET FORTH ABOVE, IS ALSO SUBJECT TO THE
FOLLOWING LIMITATION: RELIABILITY OF SCANA COMMUNICATIONS FOR
LOSS OR DAMAGES ARISING OUT OF THE MISTAKES, OMISSIONS,
INTERRUPTIONS, DlELA YS, ERRORS OR DEFECTS IN THE SERVICE, ITS
TRANSMISSION OR FAILURES OR DEFECTS IN FACILITIES OF THE UNDERLYING
CARRIER, OCCURRING IN THE COURSE OF FURNISHING SERVICE NOT CAUSED
BY THE NEGLIGENCE OF THE AUTHORIZED USER OR THE UNDERLYING
CARRIER IN FAILING TO MAINTAIN PROPER STANDARDS OF MAINTENANCE
AND OPERATION AND TO EXERCISE REASONABLE SUPERVISION, SHALL IN NO
EVENT EXCEED AN AMOUNT EQUIVALENT TO THE PROPORTIONATE FIXED
MONTHLY CHARGE TO THE AUTHORIZED USER FOR SERVICE DURING THE
PERIOD OF TIME IN WHICH SUCH MISTAKES, OMISSIONS, INTERRUPTIONS,
DELAYS, ERRORS, OR DEFECTS IN THE SERVICE, ITS TRANSMISSION OR
FAILURES OR DEFECTS AND FACILITIES FURNISHED BY SCANA
COMMUNICATIONS OR THE UNDERLYING CARRIER OCCURRED.
14.2 SCANA Communications shall in no event be liable for service or
equipment interruptions or delays in transmission, errors or defects in service or equipment
when caused by acts of God, fIre, war, riots, government authorities, default of supplier or
other causes beyond SCANA Communications' or any carrier's control.
Page 9 of 14
14.3 User acknowledges that the radio service provided hereunder uses radio
channels to transmit voice and data. SCANA Communications is not liable to User for any
claims, loss, damages or cost which may result from lack of privacy on the system.
14.4 To the extent allowed by law, User hereby agrees to save SCANA
Communications harmless against claims for libel, slander, infringement or copyright from the
material, in any form, transmitted over the radio system by User or those using User's
equipment; against claims for infringement of patents arising from combining or using
apparatus or systems of the User with the facilities of SCANA Communications or any carrier;
and against all other claims arising out of any act or omission of User in connection with the
facilities or service provided by SCANA Communications.
14.5 SCANA Communications is not liable for any danlage, accident, injury
or the like occasioned by the use of radio service or the presence of equipment including 800
MHZ radio handsets and other devices, facsimile units, and ancillary equipment of User or
SCANA Communications except as provided herein.
14.6 SCANA Communications is not liable for any defacement or damage to
User's motor vehicle or any personal or real property resulting from the presence of 800 MHZ
radio and ancillary equilPment.
14.7 THE LIABILITY OF SCANA COMMUNICATIONS IN
CONNECTION WITH THE SERVICE PROVIDED IS SUBJECT TO THE FOREGOING
LIMITATIONS AND SCANA COMMUNICATIONS MAKES NO WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, AS TO THE PROVISION OF SUCH SERVICE.
15. NOTICES
All noticl~s, requests, demands, communications or information which are
required to be or may be given under or in connection with this Agreement shall be in writing
and shall be deemed given when delivered personally or by facsimile copy (with transmission
confIrmed), or upon receipt (or on the date rejected or returned if not accepted) after dispatch
by certified or registered fIrst class mail, postage prepaid, return receipt requested, directed to
the Party to whom the same is so given or made at the address or facsimile number of such
Party as hereinafter set forth or such other address or facsimile number as the Parties may
hereinafter designate:
To SCANA Communications:
SCANA Commlllnications
Attn: Stephen C. Blackwell
440 Knox Abbott Drive, Suite 240
Cayce, SC 29033
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To User:
Augusta, Georgia
C/O Charles R. Oliver, Administrator
801 Municipal Building
Augusta, Georgia 30901
With additional copy to:
Clifford Rushton
Contract Administrator
Information Teclmology Dept.
530 Greene Strel~t, Room A-I0l
Augusta, Georgia 30911-3999
16. WAIVER
Failure or delay on the part of SCANA Communications or User to exercise any
right, remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver,
to be effective, must be in writing and signed by the party making the waiver. A written
waiver of a default shall not operate as a waiver of any other default or of the same type
default on a future occasion.
17. VENUE
All claims, disputes, and other matters and questions between SCANA
Communications and User arising out of or relating to this Agreement, or breach thereof, shall
be decided in the Superior Court of Richmond County. SCANA Communications, by
executing this Agreement specifically consents to venue in Richmond County, Georgia and
waives any right to constest the venue in the Superior Court of Richmond County.
18. GENERAL
No revision of this Agreement shall be valid unless made in writing and signed
by an officer of SCANA Communications and an authorized agent of User, as enumerated in
Paragraph 15 hereof. This Agreement and the System Management Agreement executed
simultaneously herewith, constitute the entire agreement of the parties and shall supersede all
prior offers, negotiations and agreements. If any provision of this Agreement or the
application thereof to any person or circumstance shall, at any time or to any extent, be invalid
or unenforceable, the rl~mainder of this Agreement shall not be affected thereby. This
Agreement is exclusively for the benefit of the parties hereto and shall, under no
circumstances, be deemed to benefit any other party whatsoever.
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EXHIBITS A, B, C, D
Service Activation Forms
ATTACHED HERETO
Page 13 of 14
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EXHffiIT E
Coverage Map
ATTACHED HERETO
Page 14 of 14
800 MHz USER AGREEMENT
THIS 800 MHZ USER AGREEMENT ("Agreement") effective January 6
1998 is entered into by and between SCANA Communications, Inc. (hereinafter "SCANA
Communications"), a South Carolina corporation, and Augusta, Georgia, a political
subdivision of the State: of Georgia (hereinafter "User").
WHEREAS, SCANA Communications presently operates and manages a non-profit,
cost-shared wide-area 800 MHZ trunked voice radio system throughout portions of South
Carolina and Georgia (the "Wide-Area Network"), and User currently takes service from the
Wide-Area Network's North Augusta (Site #6), Augusta (Site #5), and Hephzibah (Site #7)
sites on a non-profit, cost-shared basis pursuant to a prior agreement ("Prior Agreement");
and
WHEREAS, User desires to adjust its current service arrangement so as to receive
service from the following sites: North Augusta (Site #6); Augusta (Site #5); Jefferson EMC
(to be constructed); and CSSI (to be constructed);
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, SCANA Communications and User hereby abolish and nullify
the Prior Agreement and covenant and agree as follows:
1. ACCEPTANCE
This Agreement shall be executed simultaneously with the System Management
Agreement and shall be: incorporated into said Agreement. Service Activation Forms,
substantially in the forrn attached hereto as Exhibits A, B, C and D, shall be submitted by User
to authorize and identify radio service to be provided by SCANA Communications and to
change such radio servilce to User's radios from time to time as provided therein. Service
Activation Forms, once: initialed by User, shall become a part of this Agreement and be
incorporated herein by reference. Any changes in the Service Activation Form(s) must be
approved by User.
2. SERVICES
2.1 User agrees to pay for the services provided, pursuant to the Service
Activation Forms submitted by User, on a non-profit, cost-shared basis. Billing will
commence on the first day of the calendar month after service has begun.
2.2 User and SCANA Communications acknowledge that, for purposes of
this Agreement, User is receiving radio service to approximately 650 radios as of the date of
this Agreement pursuant to the terms and conditions included in the Prior Agreement. The
parties understand and agree that, as of the date of this Agreement, User shall be charged a
Page 1 of 14
dispatch rate of $28.50 per month per radio for dispatch services provided to all radios in
service as of the date of this Agreement. The parties further understand and agree that, after
execution of this Agrel~ment, User will add additional radios as described below. Accordingly,
the parties agree to complete the necessary Service Activation Form(s) for said radios prior to
their activation on the system. The basic dispatch rate for radios added to the system after
execution of this Agrel~ment also shall be $28.50 per month per radio.
The parties further understand and agree that, within nine (9) months of
the date of this Agreement, SCANA Communications will provide additional radio service to
all of User's radios activated on the system from the Jefferson EMC site ("JEMC") and that
within eighteen (18) months of the date of this Agreement, SCANA Communications will
provide additional radio service to all of User's radios activated on the system from the CSSI
site. Should SCANA Communications fail to complete the Jefferson EMC site and provide
additional radio service from such site within nine (9) months of the date of this Agreement, or
should SCANA Communications fail to construct the CSSI site and provide additional radio
service from such site within eighteen (18) months of the date of this Agreement, the monthly
charge set forth in the Service Activation Form(s) shall be reduced by 50% of the stated charge
until such time as the radios are activated on the system from such sites. Should SCANA
Communications fail to provide such additional radio service from the Jefferson EMC site and
CSSI site within eighteen (18) months of the date of this Agreement, such charge as reduced
above shall be reduced by an additional 50% until such time as the radios are activated from
such sites.
2.3 User and SCANA Communications understand and agree that User shall
load on the system afterconstruction of JEMC additional radios pursuant to the following
schedule:
Date
Within 6 months after construction of JEMC
Within 12 months after construction of JEMC
Within 18 months after construction of JEMC
Within 24 months after construction of JEMC
Within 30 months after construction of JEMC
TOTAL
Number of
Additional Radios
370 Radios*
55 Radios
55 Radios
55 Radios
55 Radios
590 Radios
* (to include any radios purchased between July 1, 1997 and the date of this
Agreem~nt)
The parties understand and agree that the 590 radios described above (and the monthly service
charges) are in addition to those radios operating on the system (and the service charges
associated therewith) as of the date of this Agreement. Also, the above schedule is the
Page 2 of 14
minimum number of additional radios allowed during any 6-month period. Any radios added
during any previous months shall be applied against the total required to be loaded.
2.4 III determining whether User has added the required number of
additional radios at any given point in time, any radio added to the system by Augusta,
Georgia shall count toward User's loading requirement. In the event that User does not load
additional radios on the: system in conformance with the above schedule, User nevertheless
shall be responsible for and pay all monthly service charges as if additional radios were added
to the system consistenlt with the above schedule.
2.5 User understands and agrees that any and all handset preprogramming or
other handset related expenses associated with the service provided to User under this
Agreement shall be the responsibility of and paid for by User.
2.6 User understands and acknowledges that construction of the Jefferson
EMC and CSSI sites is contingent upon SCANA Communications' ability to secure sufficient
rights to real estate at these sites for the construction and operation of 800 MHz
transmitters/receivers. Accordingly, the parties hereto understand and agree that, if SCANA
Communications, in its sole judgment, is unable to secure sufficient rights to real estate for the
construction of 800 MHz transmitters/receivers at the Jefferson EMC and CSSI sites, this
Agreement shall be null and void.
3. INTERCONNECT
If User should wish to obtain interconnection with the Public Switch Telephone
Network, User shall submit a modified Service Activation Form designating the specific radio
units for which intercOlmection is requested. SCANA Communications reserves the right to
regulate and manage the use of telephone interconnect service in order not to degrade dispatch
service. User understands and agrees that SCANA Communications has the right to invoke
whatever operating res1rictions are deemed necessary to ensure that interconnect does not
degrade dispatch service.
4. INTERCONNECT CHARGES
Should User elect to have the telephone interconnect option, User will be
responsible to SCANA Communications for payment of all charges for usage of this option.
Charges for interconnel~t will be billed on either a flat fIxed fee or on an air time billing cost
basis or a combination of both according to the terms of the Service Activation Agreement. If,
pursuant to the Service Activation Form(s), User is billed on a per minute basis, the Parties
understand and agree that any access of the interconnect option will result in airtime charges
regardless of whether calls are completed. User shall be responsible for its equal portion of
basic telephone company service and telephone line charges, any local calls and any toll calls it
incurs.
Page 3 of 14
5. FEES
SCANA Communications and User agree that the monthly recurring service fees
set forth herein in the Service Activation Form(s) shall be effective at all times during the term
of this Agreement.
6. AUTO~~TIC RENEWAL - TERMINATION
This Agreement will remain in full force and effect for a period of seven (7)
years from the date of this Agreement. User shall have the option to extend this Agreement
for an additional two (2) year term at the same cost as set forth in the then-applicable Service
Activation Form(s) approved by User. Thereafter, this Agreement shall automatically extend
for successive one (1) year periods provided that either SCANA Communications or the User
may terminate this Agreement upon written notice to the other party one-hundred eighty (180)
days prior to the end of any such extension period sent by certified mail to the address
indicated herein and, provided further, that this Agreement shall terminate automatically if the
frequency authorizations under which service is provided are revoked by the FCC.
7. ASSIGNMENT; SUBCONTRACT
7.1 lily User. Subject to the prior written consent of SCANA
Communications, whi(:h may be withheld for whatever reason or granted conditionally, and
provided it does not violate any of the other terms and conditions of this Agreement or any
applicable rule and/or regulations by the FCC, User may assign its rights under this Agreement
to a purchaser of the System, provided such purchaser expressly assumes all of the obligations
of User hereunder and otherwise agrees to comply with all of the terms and conditions of this
Agreement. Such assignment shall be effective only upon written notice to SCANA
Communications by User, satisfaction of the above said conditions and provisions of this
Agreement and, to the extent applicable, consent of the FCC to the transfer of any license
authorizations. Any such assignment shall not relieve User of its obligations hereunder until
assignment and assumption are completed and all prior obligations fulfilled.
7.2 )Jy SCANA Communications. Subject to the prior written consent of
User, which may be withheld for whatever reason or granted conditionally, and provided it
does not violate any of the other terms and conditions of this Agreement or any applicable rule
and/or regulations of the FCC, SCANA Communications may assign its rights to manage the
System hereunder to another party; provided such assignee has experience in the management
of land mobile radio systems or other telecommunications facilities or, alternatively, is an
affiliate of SCANA Communications or employs either personnel of SCANA Communications
or other persons who have experience in the management of land mobile radio systems or other
telecommunications fadlities. Such assignment shall be effective only upon written consent by
User. Any such assignment shall not relieve SCANA Communications of its obligations
hereunder until assigmnent and assumption are completed and all prior obligations fulfilled.
Page 4 of 14
SCANA Communications may employ such subcontractors or agents as it deems necessary in
the performance of its duties hereunder.
8. ADDITIONAL UNITS
If User is not in default, then at any time during the term of this Agreement or
any renewal period hen~of, service will be provided for additional units ordered by the User,
pursuant to a modified Service Activation Form as approved by User, if SCANA
Communications determines that such additional service is technically feasible.
9. COVENANTS
User andl SCANA Communications agree (a) to observe and abide by all
applicable statutes, laws, ordinances, rules and regulations, including but not limited to those
of the FCC, and (b) to operate its radios and any related equipment so as not to cause undue
interference with any other users using the Wide-Area Network. User and SCANA
Communications recognize that applicable FCC rules and other statutes, laws, ordinances,
rules and regulations may change from time to time and that accordingly, the Parties will
cooperate to modify this Agreement to comply with any such changes.
10. COVERAGE
10.1 User acknowledges that one hundred percent (100%) coverage of any
area at all times is improbable. Testing and experience with actual field conditions indicate
adverse propagation conditions, such as short-term unpredictable meteorological effects and
sky wave interference from distant stations, can interrupt service at any time. Such events are
beyond the reasonable (;ontrol of SCANA Communications. Other causes beyond the
reasonable control of SCANA Communications are motor ignition and other electrical noise
that could be minimized by corrective devices at User's expense.
10.2 The parties hereto understand and agree that, within 12 months after
SCANA Communications constructs the Jefferson EMC site and the CSSI site, User shall have
the right to conduct a coverage test to certify that the radio coverage received by User is
consistent with the covt~rage described herein. Such coverage test shall be conducted by a
party not affiliated with SCANA Communications or User and who is mutually acceptable to
both parties. During the term of this Agreement, User shall have the option to conduct
additional coverage tests to determine whether the coverage provided by SCANA
Communications is consistent with the coverage described herein. If User desires to conduct
such additional coverage tests, these coverage tests shall be conducted by a third party not
affiliated with SCANA Communications or User and who is mutually acceptable to both
parties. In the event that a coverage test conducted pursuant to this paragraph identifies
inconsistencies between the coverage actually provided and the coverage described herein,
User shall so advise SCANA Communications by written notice. Upon receipt of said written
notice, SCANA Communications shall have 60 days in which to make the coverage provided
Page 5 of 14
consistent with the cov(~rage described herein, provided that no additional sites are required.
In the event additional site(s) is required, SCANA Communications shall have up to 180 days
in order to make the coverage provided consistent with the coverage described herein. In the
event SCANA Communications fails to make the coverage provided consistent with the
coverage described herlein as provided in this paragraph, User may terminate this Agreement
upon 30 days written notice to SCANA Communications.
10.3 SCANA Communications has supplied User with a radio frequency
propagation map for that portion of the Wide-Area Network that will be used by User. Such
map is attached to this Agreement as Exhibit E. SCANA Communications and User
understand and agree that User desires outside portable and in-vehicle portable coverage.
"Outside portable coverage" means received signal strength of at least -97 dBm at the portable
unit when located five (5) feet above ground level (" AGL") and equipped with a half-wave
dipole antenna. "In-vehicle portable coverage" means received signal strength of at least -95
dBm at the portable unit, with user in a passenger vehicle and the portable unit at head level
and equipped with one half-wave dipole antenna. The coverage map attached as Exhibit E
includes a hatched area, and the parties agree that SCANA Communications will provide
coverage over 97 % of the hatched area at a reliability rate of 95 % within the hatched area.
This means that if the hatched area is divided into 100 uniform grid squares, then 97 of these
squares will receive coverage at the 95% reliability level. User acknowledges that the map
included as Exhibit E, as well as any other coverage maps which have been provided to User,
if any, indicate general parameters of expected coverage of the Wide-Area Network, subject to
previously mentioned conditions, and are not binding as an exact representation of coverage.
The User further acknowledges that SCANA Communications is not providing a warranty of
coverage and that such coverage will be subject to the limitation of liability set forth elsewhere
in this Agreement.
10.4 The parties agree that response time for any radio transmission shall not
be more than an average of more than four (4) seconds during the busiest hour of the day.
11. DEFAULT AND REMEDIES
11.1 }>efault. If User fails to make payment of any sum due or fails to
perform as required by any other provisions hereunder, and continues in such failure for thirty
(30) days after written notice has been sent by SCANA Communications to User, the User
shall be deemed in default under this Agreement.
11.2 ~;pecific Performance. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event of any of the provisions of this
Agreement are not performed in accordance with their specific terms or otherwise are
breached. Accordingly, each of the Parties agrees that the other Party shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof.
Page 6 of 14
11.2.1 Waivers. No action or inaction taken at any time pursuant to
this Agreement, including the failure to require performance of any obligation provided for in
this Agreement or any investigation by or on behalf of either Party, shall in any way affect the
right to require such performance at any time thereafter or be deemed to constitute a waiver by
the Party taking or not taking such action of compliance with any representation, warranty;
covenant or agreement contained herein and/or in any Exhibit. The waiver by either Party
hereto of any default, misrepresentation or breach of any provision of this Agreement shall not
operate or be construed as a waiver of any prior or subsequent breach of the same or any other
such provision or constitute a waiver of the responsibility or obligation itself.
12. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF REMEDIES
12.1 USER ACKNOWLEDGES AND AGREES THAT SCANA
COMMUNICATIONS IS NOT THE MANUFACTURER OF ANY RADIO FREQUENCY
EQUIPMENT OR ANY OTHER EQUIPMENT USED BY SCANA COMMUNICATIONS
TO PROVIDE RADIO SERVICE. SCANA COMMUNICATIONS HEREBY DISCLAIMS
ALL REPRESENTATIONS AND WARRANTIES, DIRECT OR INDIRECT, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, IN CONNECTION WITH THE EQUIPMENT OR
SERVICE, OTHER THAN AS SET FORTH HEREIN (WHETHER PURCHASED OR
LEASED BY USER FROM SCANA COMMUNICATIONS OR ANOTHER), INCLUDING
BUT NOT LIMITED TO ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OF
SUITABILITY, DURABILITY, MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE. SCANA COMMUNICATIONS TO THE EXTENT
PERMITTED BY LA'~ ASSIGNS TO USER ANY AND ALL MANUFACTURERS'
WARRANTIES RELATING TO EQUIPMENT PURCHASED BY USER, IF ANY, AND
USER ACKNOWLEDGES RECEIPT OF ANY AND ALL SUCH MANUFACTURERS'
WARRANTIES.
13. 12.2 USER ACKNOWLEDGES AND AGREES THAT ITS
SOLE EXCLUSIVE REMEDY IN CONNECTION WITH ANY DEFECTS IN
ANY EQUIPMENT, INCLUDING MANUFACTURE OR DESIGN, SHALL BE
AGAINST THE MANUFACTURER OF THE EQUIPMENT UNDER THE
MANUFACTURERS' WARRANTIES AND THAT SCANA
COMMUNICATIONS SHALL HAVE NO LIABILITY TO USER IN ANY
EVENT FOR ANY LOSS, DAMAGE, INJURY, OR EXPENSE OF ANY KIND
OR NATURE RELATED DIRECTLY OR INDIRECTLY TO ANY EQUIPMENT
OR SERVICE PROVIDED HEREUNDER, OTHER THAN AS SET FORTH
HEREIN. VVITHOUT LIMITING THE ABOVE, SCANA COMMUNICATIONS
SHALL HAVE NO LIABILITY OR OBLIGATION TO USER, IN EITHER
CONTRACT OR TORT, FOR SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY USER, SUCH
AS, BUT NOT LIMITED TO, CLAIMS OR DAMAGES FOR PERSONAL
INJURY, \VRONGFUL DEATH, LOSS OF USE, LOSS OF ANTICIPATED
PROFITS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR
Page 7 of 14
ECONOMIC LOSSES OF ANY KIND RELATED TO ANY EQUIPMENT OR
RADIO SERVICE DESCRIBED HEREIN, WHETHER OR NOT CAUSED BY
SCANA COMMUNICATIONS' NEGLIGENCE, TO THE FULL EXTENT
SAME MAY BE DISCLAIMED BY LAW. ANY REFERENCES TO
EQUIPMENT IN THIS PARAGRAPH SHALL BE DEEMED TO APPLY TO
ALL EQUIPMENT PURCHASED BY USER OR LEASED BY USER FROM
SCANA COMMUNICATIONS, IF ANY, OR ANOTHER
LESSOR. INTERRUPTION OF SERVICE; FORCE MAJEURE
Notwithstanding any other provision of this Agreement, SCANA
Communications shall not be liable to User or any other person for any loss or damage,
regardless of cause, for interruption or loss of radio service except as described in Section 14
hereof. SCANA Communications does not assume and shall have no liability under this
Agreement for failure to provide, or delay in providing, service due directly or indirectly to
causes beyond the control of SCANA Communications or its subcontractors, including but not
restricted to, acts of God or governmental entities, or of the public enemy, strikes, or
unusually severe weather conditions. In the event of any failure or delay attributable to the
fault of SCANA Communications or its subcontractors, User's sole remedy for damages shall
be limited to User's charge for the time of such failure or delay as is more fully described in
Section 14 below. Notwithstanding any other provision contained in this Agreement, User
agrees, however, that no allowance will be given if such single failure or delay does not exceed
forty-eight (48) hours.
14. LIMIT A TIONS OF LIABILITY ; INDEMNIFICATION
USER UNDERSTANDS AND ACKNOWLEDGES THAT (A) ALTERNATIVE MEANS OF
COMMUNICATION ARE AVAILABLE TO USER; (B) OCCASIONAL INTERRUPTION
OR IRREGULARTIES IN THE SERVICE MAY OCCUR; AND (C) ANY POTENTIAL
HARM FROM INTERRUPTIONS OR IRREGULARITIES IN THE SERVICE IS
SPECULATIVE IN NATURE. SCANA COMMUNICATIONS CANNOT OFFER RADIO
SERVICE AT RATES WHICH REFLECT ITS VALUE TO EACH USER, AND SCANA
COMMUNICATIONS ASSUMES NO RESPONSffiILITY OTHER THAN THAT
CONTAINED IN THIS AGREEMENT. ACCORDINGLY, USER AGREES THAT SCANA
COMMUNICATIONS' SOLE LIABILITY FOR LOSS OR DAMAGE ARISING OUT OF
MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR DEFECTS IN THE
SERVICE OR TRANSMISSION OF SERVICE PROVIDED BY SCANA
COMMUNICATIONS OR ANY CARRIER, FOR LOSSES OR DAMAGES ARISING OUT
OF THE FAILURE OF SCANA COMMUNICATIONS OR ANY CARRIER TO MAINTAIN
PROPER STANDARDS OF MAINTENANCE AND OPERATION SHALL BE AS
FOLLOWS:
(a) A CREDIT ALLOWANCE, AS DESCRIBED BELOW, WILL BE
MADE AT USER'S REQUEST IN THE FORM OF A PRO-RATA ADJUSTMENT OF THE
Page 8 of 14
FIXED MONTHLY CHARGES BILLED TO USER. FIXED MONTHLY CHARGES ARE
THE MONTHLY CHARGES PAID BY USER FOR 800 MHZ RADIO SERVICE.
(b) SUCH CREDIT ALLOWANCE WILL BE BASED UPON THE
PERIOD OF TIME WHICH SUCH MISTAKES, OMISSIONS, DELAYS, ERRORS AND
DEFECTS IN THE SERVICE OR ITS TRANSMISSIONS CAUSED INTERRUPTIONS IN
THE RENDERING OF THE SERVICE. ANY SUCH PERIOD OF TIME AN
INTERRUPTION OCCURS WILL BE MEASURED FROM THE TIME IT IS REPORTED
TO OR DETECTED BY SCANA COMMUNICATIONS, WHICHEVER OCCURS FIRST.
IN THE EVENT USER IS AFFECTED BY SUCH INTERRUPTION FOR A PERIOD OF
LESS THAN 48 HOURS, NO SUCH ADJUSTMENT SHALL BE MADE. WHEN AN
INTERRUPTION EXCEEDS 48 HOURS, THE LENGTH OF THE INTERRUPTION WILL
BE MEASURED IN 24 HOURS DAYS. A FRACTION OF A DAY CONSISTING OF LESS
THAN 12 HOURS WILL NOT BE CREDITED.
(c) THE CREDIT ALLOWANCE WILL BE COMPUTED BY DIVIDING
THE LENGTH OF THE SERVICE INTERRUPTION BY A STANDARD 30 DAY MONTH
AND THEN MULTIPLYING THE RESULT BY THE APPLICABLE MONTHLY
CHARGES AS SET FORTH IN THE SERVICE ACTIVATION FORM FOR EACH RADIO
SET TO WHICH SERVICE WAS INTERRUPTED.
(d) THE SERVICE FURNISHED BY SCANA COMMUNICATIONS, IN
ADDITION TO THE LIMITATIONS SET FORTH ABOVE, IS ALSO SUBJECT TO THE
FOLLOWING LIMITATION: RELIABILITY OF SCANA COMMUNICATIONS FOR
LOSS OR DAMAGES ARISING OUT OF THE MISTAKES, OMISSIONS,
INTERRUPTIONS, DELAYS, ERRORS OR DEFECTS IN THE SERVICE, ITS
TRANSMISSION OR FAILURES OR DEFECTS IN FACILITIES OF THE UNDERLYING
CARRIER, OCCURRING IN THE COURSE OF FURNISHING SERVICE NOT CAUSED
BY THE NEGLIGENCE OF THE AUTHORIZED USER OR THE UNDERLYING
CARRIER IN FAILING TO MAINTAIN PROPER STANDARDS OF MAINTENANCE
AND OPERATION AND TO EXERCISE REASONABLE SUPERVISION, SHALL IN NO
EVENT EXCEED AN AMOUNT EQUIVALENT TO THE PROPORTIONATE FIXED
MONTHLY CHARGE TO THE AUTHORIZED USER FOR SERVICE DURING THE
PERIOD OF TIME IN WHICH SUCH MISTAKES, OMISSIONS, INTERRUPTIONS,
DELAYS, ERRORS, OR DEFECTS IN THE SERVICE, ITS TRANSMISSION OR
FAILURES OR DEFECTS AND FACILITIES FURNISHED BY SCANA
COMMUNICATIONS OR THE UNDERLYING CARRIER OCCURRED.
14.2 SCANA Communications shall in no event be liable for service or
equipment interruptions or delays in transmission, errors or defects in service or equipment
when caused by acts of God, fIre, war, riots, government authorities, default of supplier or
other causes beyond SCANA Communications' or any carrier's control.
Page 9 of 14
14.3 User acknowledges that the radio service provided hereunder uses radio
channels to transmit voice and data. SCANA Communications is not liable to User for any
claims, loss, damages or cost which may result from lack of privacy on the system.
14.4 To the extent allowed by law, User hereby agrees to save SCANA
Communications harmless against claims for libel, slander, infringement or copyright from the
material, in any form, transmitted over the radio system by User or those using User's
equipment; against claims for infringement of patents arising from combining or using
apparatus or systems of the User with the facilities of SCANA Communications or any carrier;
and against all other claims arising out of any act or omission of User in connection with the
facilities or service provided by SCANA Communications.
14.5 SCANA Communications is not liable for any damage, accident, injury
or the like occasioned by the use of radio service or the presence of equipment including 800
MHZ radio handsets and other devices, facsimile units, and ancillary equipment of User or
SCANA Communications except as provided herein.
14.6 SCANA Communications is not liable for any defacement or damage to
User's motor vehicle Olr any personal or real property resulting from the presence of 800 MHZ
radio and ancillary equipment.
14.7 THE LIABILITY OF SCANA COMMUNICATIONS IN
CONNECTION WITH THE SERVICE PROVIDED IS SUBJECT TO THE FOREGOING
LIMITATIONS AND SCANA COMMUNICATIONS MAKES NO WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, AS TO THE PROVISION OF SUCH SERVICE.
15. NOTIC]~S
All notices, requests, demands, communications or information which are
required to be or may be given under or in connection with this Agreement shall be in writing
and shall be deemed given when delivered personally or by facsimile copy (with transmission
conftrmed), or upon feiceipt (or on the date rejected or returned if not accepted) after dispatch
by certified or registen:d ftrst class mail, postage prepaid, return receipt requested, directed to
the Party to whom the same is so given or made at the address or facsimile number of such
Party as hereinafter set forth or such other address or facsimile number as the Parties may
hereinafter designate:
To SCANA Communications:
SCANA Communications
Attn: Stephen C. Blackwell
440 Knox Abbott Drive, Suite 240
Cayce, SC 29033
Page 10 of 14
To User:
Augusta, Georgia
C/O Charles R. Oliver, Administrator
801 Municipal Building
Augusta, Georgia 30901
With additional copy to:
Clifford Rushtolll
Contract Administrator
Information Technology Dept.
530 Greene Strc::et, Room A-101
Augusta, Georgia 30911-3999
16. WAIVER
Failure or delay on the part of SCANA Communications or User to exercise any
right, remedy, power or privilege hereunder shall not operate as a waiver thereof. A waiver,
to be effective, must be: in writing and signed by the party making the waiver. A written
waiver of a default shaH not operate as a waiver of any other default or of the same type
default on a future occasion.
17. VENUE
All claims, disputes, and other matters and questions between SCANA
Communications and User arising out of or relating to this Agreement, or breach thereof, shall
be decided in the Superior Court of Richmond County. SCANA Communications, by
executing this Agreeme:nt specifically consents to venue in Richmond County, Georgia and
waives any right to constest the venue in the Superior Court of Richmond County.
18. GENERAL
No revision of this Agreement shall be valid unless made in writing and signed
by an officer of SCANA Communications and an authorized agent of User, as enumerated in
Paragraph 15 hereof. This Agreement and the System Management Agreement executed
simultaneously herewith, constitute the entire agreement of the parties and shall supersede all
prior offers, negotiatiollls and agreements. If any provision of this Agreement or the
application thereof to any person or circumstance shall, at any time or to any extent, be invalid
or unenforceable, the remainder of this Agreement shall not be affected thereby. This
Agreement is exclusive:1y for the benefit of the parties hereto and shall, under no
circumstances, be deemed to benefit any other party whatsoever.
Page 11 of 14
~
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~~
MMUNICA TIONS, INC.
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NamC~~~~\llUr",k$J
~itle: ~~~\.
Title: Mavor
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Page 12 of 14
EXHIBITS A, B, C, D
Service Activation Forms
A TT ACHED HERETO
Page 13 of 14
EXHIBIT E
Coverage Map
A TT ACHED HERETO
Page 14 of 14
.
Exhibit E
Predicted Coveraee Plot (Attached)
Legend
Red: Portable-in-vehic1e
Blue: Portable-on-street
Gray: Mobile
,x~
~x
COUNlV, GA
N. AUGUSTA@5Q2' - EXISllNG SllE
AUGUST A@465 - EXISllNG SllE
JEMC@462' - lOdB OMNI ANlENNA
CSSI@382' - 10dB OMNI ANlENNA
Exhibit E
J<.X.
x
x