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HomeMy WebLinkAboutScana Communications,Inc. (2) Augusta Richmond GA DOCUMENT NAME: ~.J\uA. (Cf'f\r'll\\\'ca\\~ i \()C. DOCUMENT TYPE: 0Cj'('c:em~ YEAR: ~ BOX NUMBER: 0--\ FILE NUMBER: \ 0l\loG~ NUMBER OF PAGES: ~ ~ , " . 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 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 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 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 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. 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. 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. 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 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 Page 5 of 14 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. Page 6 of 14 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 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 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 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 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 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 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. Page 11 of 14 . ~l~ ~~) itness ~c.___ ::L /' - ::-:::.'l:: ~ Q~'/.7/~ Name~~ ~,'> ~~\, Title: Mayor u.a Tills doclllMtll apprtWtd .. ~7.to/41 Page 12 of 14 - . . EXHIBITS A, B, C, D Service Activation Forms ATTACHED HERETO Page 13 of 14 " .. , . 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 ~ wl.~f~ ~~ MMUNICA TIONS, INC. ~ NamC~~~~\llUr",k$J ~itle: ~~~\. Title: Mavor ~ 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