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HomeMy WebLinkAboutMOTORLA SOLUTIONS INC PSA SYSTEM AGREEMENTSection 1 EXHIBITS PSA System Agreement Motorola Solutions, Inc. ( "Motorola ") and Augusta, Georgia, a political subdivision of the State of Georgia, with its place of business at 530 Greene Street, Augusta, GA U.S.A., 30901 ( "Customer ") enter into this "Agreement," pursuant to which Customer will purchase and Motorola will sell the System, as described below. Motorola and Customer may be referred to individually as a "Party" and collectively as the "Parties." For good and valuable consideration, the Parties agree as follows: The exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the exhibits and any inconsistency between Exhibits A through E will be resolved in their listed order. Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Motorola "Software License Agreement" "Payment Schedule" Motorola's Proposal dated March 13, 2012, as amended on July 24, 2012 "System Acceptance Certificate" "Performance Bond" "Augusta, GA Vendor VPN Access Agreement" Additionally, this Agreement will operate in accordance with Augusta, GA RFP 12 -123, and any item herein outside of such must be completed as in contract or be subject to penalty clause. In case of conflict between the original RFP and this contract, this contract shall supersede all previous or contemporaneous negotiations, commitments and writings with respect to matters set forth herein. It may only be rnodified in writing and must be signed by authorized representatives of both parties. Section 2 DEFINITIONS Capitalized terms used in this Agreement have the following meanings: 2.1. "Acceptance Tests" means those tests described in the Acceptance Test Plan. 2.2. "Confidential Information" means any information that is disclosed in written, graphic, verbal, or machine - recognizable form, and is marked, designated, or identified at the time of disclosure as being confidential or its equivalent; or if the information is in verbal form, it is identified as confidential at the time of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information does not include any information that: is or becomes publicly known through no wrongful act of the receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any obligation restricting disclosure; is independently developed by the receiving Party without breach of this Agreement; or is explicitly approved for release by written authorization of the disclosing Party. 2.3. "Contract Price" means the price for the System, excluding applicable sales or similar taxes and freight charges. 2.4. "Effective Date" means that date upon which the last Party executes this Agreement. 2.5. "Equipment" means the equipment listed in the List of Deliverables that Customer purchases from Motorola under this Agreement. v.7 -26 -12 1 2.6. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a Party's reasonable control (e.g., an act of God, an act of the public enemy, an act of a government entity, strikes or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots). 2.7. "Infringement Claim" means a third party claim alleging that the Equipment manufactured by Motorola or the Motorola Software directly infringes a United States patent or copyright. 2.8. "Motorola Software" means Software that Motorola or its affiliated company owns. 2.9. "Non- Motorola Software" means Software that another party owns. 2.10. "Open Source Software" (also called "freeware" or "shareware ") software with either freely obtainable source code, license for modification, or permission for free distribution. 2.11 "Products" mean the Equipment and Software provided by Motorola under this Agreement. 2.12 "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know -how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by Motorola under this Agreement and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by Motorola or another party. 2.13. "Software" means the Motorola Software and Non - Motorola Software, in object code format that is furnished with the System or Equipment. 2.14. "Specifications" means the functionality and performance requirements that are described in Exhibit C. 2.15. "Subsystem" means a major part of the System that performs specific functions or operations. Subsystems are described in Exhibit C. 2.16. "System" means the Equipment, Software, services, supplies, and incidental hardware and materials that are combined together into an integrated system; the System is described in Exhibit C. 2.17. "System Acceptance" means the Acceptance Tests have been successfully completed. 2.18. "Warranty Period" means ninety (90) days from the date of shipment. Section 3 SCOPE OF AGREEMENT AND TERM 3.1. SCOPE OF WORK. Motorola will provide, install and test the System, and perform its other contractual responsibilities, all in accordance with this Agreement. Customer will perform its contractual responsibilities in accordance with this Agreement. 3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this Agreement. If a requested change causes an increase or decrease in the cost or time required to perform this Agreement, the Parties will agree to an equitable adjustment of the Contract Price, Performance Schedule, or both, and will reflect the adjustment in a change order. Neither Party is obligated to perform requested changes unless both Parties execute a written change order. 3.3. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by mutual agreement of the Parties, the term of this Agreement begins on the Effective Date and continues until the date of Final System Acceptance or expiration of the Warranty Period, whichever occurs last. 3.4. ADDITIONAL EQUIPMENT, SOFTWARE, OR SERVICES. For three (3) years after the Effective Date, Customer may order additional Equipment, Software or services if they are then available. Each v.7 -26 -12 2 order must refer to this Agreement and must specify the pricing and delivery terms. Notwithstanding any additional or contrary terms in the order, the applicable provisions of this Agreement (except for pricing, delivery, passage of title and risk of loss to Equipment, warranty commencement, and payment terms) will govern the purchase and sale of the additional Equipment, Software, or services. Title and risk of loss to additional Equipment will pass at shipment; warranty will commence upon delivery; and payment is due within twenty (20) days after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped, Software is licensed, or services are performed. 3.5. MAINTENANCE SERVICE. After the warranty period Customer may purchase maintenance and support services for the Equipment and Motorola Software by executing the Maintenance and Support Agreement. 3.6. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to Customer solely in accordance with the Software License Agreement. Customer hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement. 3.7. NON - MOTOROLA SOFTWARE. Any Non- Motorola Software is licensed to Customer in accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date unless the copyright owner has granted to Motorola the right to sublicense the Non - Motorola Software pursuant to the Software License Agreement, in which case it applies and the copyright owner will have all of Licensor's rights and protections under the Software License Agreement. Motorola makes no representations or warranties of any kind regarding Non - Motorola Software. Non - Motorola Software may include Open Source Software. All Open Source Software is licensed to Customer in accordance with, and Customer agrees to abide by, the provisions of the standard license of the copyright owner and not the Software License Agreement. Upon request by Customer, Motorola will use commercially reasonable efforts to determine whether any Open Source Software will be provided under this Agreement; and if so, identify the Open Source Software and provide to Customer a copy of the applicable standard license (or specify where that license may be found); and provide to Customer a copy of the Open Source Software source code if it is publicly available without charge (although a distribution fee or a charge for related services may be applicable). 3.8. SUBSTITUTIONS. At no additional cost to Customer, Motorola may substitute any Equipment, Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications and is of equivalent or better quality to the Customer. Any substitution will be reflected in a change order. 3.9. OPTIONAL EQUIPMENT OR SOFTWARE. This paragraph applies only if a "Priced Options" exhibit is shown in Section 1, or if the parties amend this Agreement to add a Priced Options exhibit. During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one (1) year after the Effective Date), Customer has the right and option to purchase the equipment, software, and related services that are described in the Priced Options exhibit. Customer may exercise this option by giving written notice to Seller which must designate what equipment, software, and related services Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules, payment terms, maintenance and support provisions, additions to or modifications of the Software License Agreement, hosting terms, and modifications to the acceptance and warranty provisions. Section 4 PERFORMANCE SCHEDULE 4.1 The Parties will perform their respective responsibilities in accordance with the Performance Schedule. By executing this Agreement, Customer authorizes Motorola to proceed with contract performance. v.7 -26 -12 3 4.2 To the extent that it does not alter the scope of this Agreement, Customer may unilaterally order a temporary stopping of the work, or delaying of the work to be performed by Motorola under this Agreement. Any additional costs associated with the stop work will be documented in a written change order. In the event that a stop work exceeds sixty (60) days, Motorola reserves the right to terminate this Agreement, and to be paid up to the date of the stop work for all work performed and costs associated therewith. Section 5 CONTRACT PRICE, PAYMENT, AND INVOICING 5.1. CONTRACT PRICE. The Contract Price in U.S. dollars is $331,000, If applicable, a pricing summary is included with the Payment Schedule. Motorola has priced the services, Software, and Equipment as an integrated system. A reduction in Software or Equipment quantities, or services, may affect the overall Contract Price, including discounts if applicable. 5.2. INVOICING AND PAYMENT. Motorola will submit invoices to Customer according to the Payment Schedule. Except for a payment that is due on the Effective Date, Customer will make payments to Motorola within twenty (20) days after the date of each invoice. Customer will make payments when due in the form of a wire transfer, check, or cashier's check from a U.S. financial institution. Overdue invoices will bear simple interest at the maximum allowable rate. For reference, the Federal Tax Identification Number for Motorola Solutions, Inc. is 36- 1115800. 5.3. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre -pay and add all freight charges to the invoices. Title to the Equipment will pass to Customer upon shipment. Title to Software will not pass to Customer at any time. Risk of loss will pass to Customer upon delivery of the Equipment to the Customer. Motorola will pack and ship all Equipment in accordance with good commercial practices. INVOICING AND SHIPPING ADDRESSES. Invoices and shipments will be sent to the Customer at the following address: Michael F. Blanchard Deputy Director Information Technology Department City of Augusta, GA 530 Greene St Annex 101 Augusta, GA 30901 Phone: 706 - 821 -2862 Fax: 706 - 821 -2530 blanchard(a auqustaga.gov www.augustaga.gov The city which is the ultimate destination where the Equipment will be delivered to Customer is Augusta, Georgia. Customer may change this information by giving written notice to Motorola. 5.5 GEORGIA PROMPT PAY ACT NOT APPLICABLE. The terms of this Agreement supersede any and all provisions of the Georgia Prompt Pay Act. 5.6 PROHIBITION AGAINST CONTINGENT FEES. Motorola warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by Motorola for the purpose of securing business and that the Motorola has not received any non - Customer fee related to this Agreement without the prior written consent of the Customer. For breach or violation of this warranty, the Customer shall have the right to annul this Agreement without liability or at its discretion to deduct from the Agreement Price of consideration the full amount of such commission, percentage, brokerage or contingent fee. v.7 -26 -12 4 5.7 PERFORMANCE BOND. At Customer's expense and prior to the execution of this contract, Motorola shall have obtained a performance bond in the amount not exceeding the final agreed -upon price of the project as identified in Section 5.1 of this document. Proof of the acquisition of the bond shall be provided to the Customer as Exhibit E. Section 6 SITES AND SITE CONDITIONS 6.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement, Customer will provide a designated project manager; all necessary construction and building permits, zoning variances, licenses, and any other approvals that are necessary to develop or use the sites and mounting locations; and access to the work sites or vehicles identified in Exhibit C as reasonably requested by Motorola so that it may perform its duties in accordance with the Performance Schedule and Statement of Work. If the Statement of Work so indicates, Motorola may assist Customer in the local building permit process. 6.2. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the Statement of Work states to the contrary, Customer will ensure that these work sites have adequate: physical space; air conditioning and other environmental conditions; adequate and appropriate electrical power outlets, distribution, equipment and connections; and adequate telephone or other communication lines (including modem access and adequate interfacing networking capabilities), all for the installation, use and maintenance of the System. Before installing the Equipment or Software at a work site, Motorola may inspect the work site and advise Customer of any apparent deficiencies or non - conformities with the requirements of this Section. Section 7 TRAINING Any training to be provided by Motorola to Customer will be described in the Statement of Work. Customer will notify Motorola immediately if a date change for a scheduled training program is required. If Motorola incurs additional costs because Customer reschedules a training program less than thirty (30) days before its scheduled start date, Motorola may recover these additional costs. Section 8 SYSTEM ACCEPTANCE 8.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer at least ten (10) days notice before the Acceptance Tests commence. System testing will occur only in accordance with the Acceptance Test Plan. 8.2. SYSTEM ACCEPTANCE. System Acceptance will occur upon successful completion of the Acceptance Tests. Upon System Acceptance, the Parties will memorialize this event by promptly executing a System Acceptance Certificate. If the Acceptance Test Plan includes separate tests for individual Subsystems or phases of the System, acceptance of the individual Subsystem or phase will occur upon the successful completion of the Acceptance Tests for the Subsystem or phase, and the Parties will promptly execute an acceptance certificate for the Subsystem or phase. If Customer believes the System has failed the completed Acceptance Tests, Customer will provide to Motorola a written notice that includes the specific details of the failure. If Customer does not provide to Motorola a failure notice within thirty (30) days after completion of the Acceptance Tests, System Acceptance will be deemed to have occurred as of the completion of the Acceptance Tests. Minor omissions or variances in the System that do not materially impair the operation of the System as a whole will not postpone System Acceptance or Subsystem acceptance, but will be corrected according to a mutually agreed schedule. 8.3 FINAL SYSTEM ACCEPTANCE. Final System Acceptance will occur after System Acceptance when all deliverables and other work have been completed. When Final System Acceptance occurs, the Parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate. v.7 -26 -12 5 Section 9 REPRESENTATIONS AND WARRANTIES 9.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance with the Specifications in all material respects. Upon System Acceptance this System functionality representation is fulfilled. Motorola is not responsible for System performance deficiencies that are caused by ancillary equipment not furnished by Motorola which is attached to or used in connection with the System or for reasons or parties beyond Motorola's control, such as natural causes; or Customer changes to load usage or configuration outside the Specifications. 9.2. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. If System Acceptance is delayed beyond six (6) months after shipment of the Equipment by events or causes within Customer's control, this warranty expires eighteen (18) months after the shipment of the Equipment. 9.3. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License Agreement, during the Warranty Period, Motorola warrants the Motorola Software in accordance with the terms of the Software License Agreement and the provisions of this Section 9 that are applicable to the Motorola Software. TO THE EXTENT, IF ANY, THAT THERE IS A SEPARATE LICENSE AGREEMENT PACKAGED WITH, OR PROVIDED ELECTRONICALLY WITH, A PARTICULAR PRODUCT THAT BECOMES EFFECTIVE ON AN ACT OF ACCEPTANCE BY THE END USER, THEN THAT AGREEMENT SUPERCEDES THIS SOFTWARE LICENSE AGREEMENT AS TO THE END USER OF EACH SUCH PRODUCT. 9.4. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Motorola Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized in writing by Motorola; Customer's failure to comply with all applicable industry and OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries (because they carry their own separate limited warranty) or consumables; (v) freight costs to ship Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and (vii) normal or customary wear and tear. 9.5. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at its option and at no additional charge to Customer) repair the defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola Software. That action will be the full extent of Motorola's liability for the warranty claim. If this investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding to the claim on a time and materials basis using Motorola's then current labor rates. Repaired or replaced product is warranted for the balance of the original applicable warranty period. All replaced products or parts will become the property of Motorola. 9.6. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original user purchasing the System for commercial, industrial, or governmental use only, and are not assignable or transferable. 9.7. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. v.7 -26 -12 6 Section 10 DELAYS 10.1. FORCE MAJEURE. Neither Party will be liable for its non - performance or delayed performance if caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers the Force Majeure. If a Force Majeure occurs, the Parties will execute a change order to extend the Performance Schedule for a time period that is reasonable under the circumstances. 10.2. PERFORMANCE SCHEDULE DELAYS. Both parties agree to give the other five (5) to seven (7) days' prior notice if the other (including its other contractors) delays the Performance Schedule. In the event that notice is not possible, Customer agrees to make the promised payments according to the Payment Schedule as if no delay occurred; and the Parties will execute a change order to extend the Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred because of the delay. Delay charges may include costs incurred by Motorola or its subcontractors for additional freight, warehousing and handling of Equipment; extension of the warranties; travel; suspending and re- mobilizing the work; additional engineering, project management, and standby time calculated at then current rates; and preparing and implementing an alternative implementation plan. Section 11 DISPUTES The Parties will use the following procedure to address any dispute arising under this Agreement (a "Dispute "). 11.1. GOVERNING LAW. The laws of the State of Georgia shall govern the Agreement between Customer and Motorola with regard to its interpretation and performance, and any other claims related to this agreement. All claims, disputes and other matters in question between Customer and Motorola arising out of or relating to the Agreement, or the breach thereof, shall be decided in the Superior Court of Richmond County, Georgia. Motorola, by executing this Agreement, specifically consents to jurisdiction and venue in Richmond County and waives any right to contest the jurisdiction and venue in the Superior Court of Richmond County, Georgia. 11.2. NEGOTIATION. Either Party may initiate the Dispute resolution procedures by sending a notice of Dispute ( "Notice of Dispute "). The Parties will attempt to resolve the Dispute promptly through good faith negotiations including 1) timely escalation of the Dispute to executives who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for the matter and 2) direct communication between the executives. If the Dispute has not been resolved within ten (10) days from the Notice of Dispute, the Parties will proceed to mediation. 11.3 MEDIATION. The Parties will choose an independent mediator within thirty (30) days of a notice to mediate from either Party ( "Notice of Mediation "). Neither Party may unreasonably withhold consent to the selection of a mediator. If the Parties are unable to agree upon a mediator, either Party may request that American Arbitration Association nominate a mediator. Each Party will bear its own costs of mediation, but the Parties will share the cost of the mediator equally. Each Party will participate in the mediation in good faith and will be represented at the mediation by a business executive with authority to settle the Dispute. 11.4. LITIGATION, VENUE and JURISDICTION. If a Dispute remains unresolved for sixty (60) days after receipt of the Notice of Mediation, either Party may then submit the Dispute to a court of competent jurisdiction in the state in which the System is installed. Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts in such state over any claim or matter arising under or in connection with this Agreement. 11.5. CONFIDENTIALITY. All communications pursuant to subsections 11.2 and 11.3 will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence and any v.7 -26 -12 7 additional confidentiality protections provided by applicable law. The use of these Dispute resolution procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either Party. Section 12 DEFAULT AND TERMINATION 12.1 DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this Agreement, the other Party may consider the non - performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non - performing Party a written and detailed notice of default. Except for a default by Customer for failing to pay any amount when due under this Agreement which must be cured immediately, the defaulting Party will have thirty (30) days after receipt of the notice of default to either cure the default or, if the default is not curable within thirty (30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan immediately after receipt of notice by the other Party that it approves the plan. If Customer is the defaulting Party, Motorola may stop work on the project until it approves the Customer's cure plan. Failure of Motorola which has not been remedied or waived, to perform or otherwise comply with a material condition of the Agreement shall constitute default. The Customer may terminate this contract in part or in whole upon written notice to Motorola pursuant to this Section 12. 12.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section 12.1, unless otherwise agreed in writing, the non - defaulting Party may terminate any unfulfilled portion of this Agreement. In the event of termination for default, the defaulting Party will promptly return to the non - defaulting Party any of its Confidential Information. If Customer is the non - defaulting Party, terminates this Agreement as permitted by this Section, and completes the System through a third Party, Customer may as its exclusive remedy recover from Motorola reasonable costs incurred to complete the System to a capability not exceeding that specified in this Agreement less the unpaid portion of the Contract Price. Customer will mitigate damages and provide Motorola with detailed invoices substantiating the charges. 12.3 TERMINATION FOR CONVENIENCE. The Customer may terminate this contract in part or in whole upon written notice to Motorola. Motorola shall be paid for any services under this Contract up to the time of termination. Section 13 INDEMNIFICATION 13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify and hold Customer harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against Customer to the extent it is caused by the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties under this Agreement, if Customer gives Motorola prompt, written notice of any the claim or suit. Customer will cooperate with Motorola in its defense or settlement of the claim or suit. This section sets forth the full extent of Motorola's general indemnification of Customer from liabilities that are in any way related to Motorola's performance under this Agreement. 13.2. GENERAL INDEMNITY BY CUSTOMER. Customer will indemnify and hold Motorola harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against Motorola to the extent it is caused by the negligence of Customer, its other contractors, or their employees or agents, while performing their duties under this Agreement, if Motorola gives Customer prompt, written notice of any the claim or suit. Motorola will cooperate with Customer in its defense or settlement of the claim or suit. This section sets forth the full extent of Customer's general indemnification of Motorola from liabilities that are in any way related to Customer's performance under this Agreement. 13.3. PATENT AND COPYRIGHT INFRINGEMENT. 13.3.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on a third -party claim alleging that the Equipment manufactured by Motorola or the Motorola Software v.7 -26 -12 8 ( "Product ") directly infringes a United States patent or copyright ( "Infringement Claim "). Motorola's duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to Motorola's obligation to defend, and subject to the same conditions, Motorola will pay all damages finally awarded against Customer by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing, by Motorola in settlement of an Infringement Claim. 13.3.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its option and expense: (a) procure for Customer the right to continue using the Product; (b) replace or modify the Product so that it becomes non - infringing while providing functionally equivalent performance; or (c) accept the return of the Product and grant Customer a credit for the Product, less a reasonable charge for depreciation. The depreciation amount will be calculated based upon generally accepted accounting standards. 13.3.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon: (a) the combination of the Product with any software, apparatus or device not furnished by Motorola; (b) the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Product; (c) Product designed or manufactured in accordance with Customer's designs, specifications, guidelines or instructions, if the alleged infringement would not have occurred without such designs, specifications, guidelines or instructions; (d) a modification of the Product by a party other than Motorola; (e) use of the Product in a manner for which the Product was not designed or that is inconsistent with the terms of this Agreement; or (f) the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. In no event will Motorola's liability resulting from its indemnity obligation to Customer extend in any way to royalties payable on a per use basis or the Customer's revenues, or any royalty basis other than a reasonable royalty based upon revenue derived by Motorola from Customer from sales or license of the infringing Product. 13.3.4. This Section 13 provides Customer's sole and exclusive remedies and Motorola's entire liability in the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to provide any other or further remedies, whether under another provision of this Agreement or any other legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies provided in this Section 13 are subject to and limited by the restrictions set forth in Section 14. Section 14 LIMITATION OF LIABILITY Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipment, Software, or services with respect to which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the expiration or termination of the Agreement and applies notwithstanding any contrary provision. No action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of the cause of action, except for money due upon an open account. Section 15 CONFIDENTIALITY AND PROPRIETARY RIGHTS 15.1. CONFIDENTIAL INFORMATION. During the term of this Agreement, the parties may provide each other with Confidential Information. Each Party will: maintain the confidentiality of the other Party's v.7 -26 -12 9 Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential Information to its employees who have a "need to know" and not copy or reproduce the Confidential Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential Information, including informing its employees who handle the Confidential Information that it is confidential and is not to be disclosed to others, but these precautions will be at least the same degree of care that the receiving Party applies to its own confidential information and will not be less than reasonable care; and use the Confidential Information only in furtherance of the performance of this Agreement. Confidential Information is and will at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the Confidential Information is given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement. 15.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola, the third party manufacturer of any Equipment, and the copyright owner of any Non - Motorola Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola does not grant to Customer, either directly or by implication, estoppel, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Customer will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell or export the Software, or permit or encourage any third party to do so. The preceding sentence does not apply to Open Source Software which is governed by the standard license of the copyright owner. 15.3 GEORGIA OPEN RECORDS ACT. Motorola acknowledges that this Agreement and certain documentation may be subject to the Georgia Open Records Act (O.C.G.A. § 50- 18 -70, et seq.). Motorola shall cooperate fully in responding to such requests and shall make all records, not exempt, available for inspection and copying as required by law. Motorola shall clearly mark any information provided to Customer which Motorola contends is Proprietary Information. Each Party shall notify the other immediately of any Open Records request arising out of this contract and shall provide a copy of any response to the same within three days of the request. Section 16 GENERAL 16.1. TAXES. The Contract Price does not include any excise, sales, lease, use, property, or other taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola is required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to Motorola the amount of the taxes (including any interest and penalties) within twenty (20) days after the date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth. 16.2. ASSIGNABILITY AND SUBCONTRACTING. Except as provided herein, neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any attempted assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the foregoing, Motorola may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. In addition, in the event Motorola separates one or more of its businesses (each a "Separated Business "), whether by way of a sale, establishment of a joint venture, spin -off or otherwise (each a "Separation Event "), Motorola may, without the prior written consent of the other Party and at no additional cost to Motorola, assign this Agreement such that it will continue to benefit the Separated Business and its affiliates (and Motorola and its affiliates, to the extent applicable) following the Separation Event. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement. v.7 -26 -12 10 16.3 WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. 16.4. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect. 16.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an independent contractor. The Parties and their personnel will not be considered to be employees or agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or be interpreted as a joint venture, partnership or formal business organization of any kind. 16.6. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party. 16.7. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even if a representative of each Party signs that document. 16.8. NOTICES. Notices required under this Agreement to be given by one Party to the other must be in writing and either personally delivered or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt: Motorola Solution, Inc. Judy Jean - Pierre, Law Dept. 1303 E. Algonquin Road, IL01, 8 Floor Schaumburg, IL 60196 F: 847 - 576 -0721 Email: Judy.Jean-Pierremotorolasolutions.com Augusta, Georgia c/o Fred Russell, City Administrator 530 Greene Street, Room 801 Augusta, GA 30901 T: 706.821.2400 F: 706.821.2819 16.9. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. 16.10. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. 16.11. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 3.6 (Motorola Software); Section 3.7 (Non - Motorola Software); if any payment obligations exist, Sections 5.1 and 5.2 (Contract Price and Invoicing and Payment); Subsection v.7 -26 -12 11 9.7 (Disclaimer of Implied Warranties); Section 11 (Disputes); Section 14 (Limitation of Liability); and Section 15 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 16. 16.12 VENDOR SYSTEM ACCESS TO AUGUSTA, GEORGIA NETWORK. Motorola will sign a VPN Vendor Access Agreement with the Licensee, verifying that it will respect the integrity of Licensee's network and security protocols. Access to Augusta's network through the firewall will only be granted after said agreement has been signed. 16.13 INSURANCE. Motorola shall, at all times that this Agreement is in effect, cause to be maintained in force and effect an insurance policy(s) as set forth below: A. Worker's Compensation Insurance — in accordance with the laws of the State of Georgia. B. Commercial Liability Insurance — in an amount of not less than One Million ($1,000,000) Dollars per occurrence for injuries and property damage, including those resulting in death to any one person. Customer will be included as an additional insured with respect to Motorola's liabilities hereunder in insurance coverage's identified in items B. The policies shall be written by a responsible company(s), and shall be non - cancellable except on thirty - (30) days' written notice to the Customer by Motorola. An Acord Certificate of Insurance shall be filed with the Director with five days of execution of this Agreement. 16.14 GENERAL ACKNNOLWEDGEMENT OF ALL PARTIES CONTRACTING WITH AUGUSTA, GEORGIA. Contractor acknowledges that this Agreement and any changes to it by amendment, modification, change order or other similar document may have required or may require the legislative authorization of the Board of Commissioners and approval of the Mayor. Under Georgia law, Contractor is deemed to possess knowledge concerning Augusta, Georgia's ability to assume contractual obligations and the consequences of Contractor's provision of goods or services to Augusta, Georgia under an unauthorized contract, amendment, modification, change order or other similar document, including the possibility that the Contractor may be precluded from recovering payment for such unauthorized goods or services. Accordingly, Contractor agrees that if it provides goods or services to Augusta, Georgia under a contract that has not received proper legislative authorization or if the Contractor provides goods or services to Augusta, Georgia in excess of the any contractually authorized goods or services, as required by Augusta, Georgia's Charter and Code, Augusta, Georgia may withhold payment for any unauthorized goods or services provided by Contractor. Contractor assumes all risk of non - payment for the provision of any unauthorized goods or services to Augusta, Georgia, Georgia, however characterized, including, without limitation, all remedies at law or equity." This acknowledgement shall be a mandatory provision in all Augusta, Georgia contracts for goods and services, except revenue producing contracts. Customer agrees to advise Motorola in writing that all authorizations and approvals have been made prior to any orders shipped under this Agreement. 16.15 E- VERIFY REGISTRATION. All contractors and subcontractors entering into contracts with Augusta, Georgia for the physical performance of services shall be required to execute an Affidavit verifying its compliance with O.C.G.A. § 13- 10 -91, stating affirmatively that the individual, firm, or corporation which is contracting with Augusta, Georgia has registered with and is participating in a federal work authorization program. All contractors and subcontractors must provide their E- Verify number and must be in compliance with the electronic verification of work authorized programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), P.L. 99 -603, in accordance with the applicability provisions and deadlines established in O.C.G.A. § 13 -10 -91 and shall continue to use the federal authorization program throughout the contract term. All contractors shall further agree that, should it employ or contract with any subcontractor(s) in connection with the physical performance of v.7 -26 -12 12 services pursuant to its contract with Augusta, Georgia the contractor will secure from such subcontractor(s) each subcontractor's E- Verify number as evidence of verification of compliance with O.C.G.A. § 13 -10 -91 on the subcontractor affidavit provided in Rule 300- 10- 01 -.08 or a substantially similar form. All contractors shall further agree to maintain records of such compliance and provide a copy of each such verification to Augusta, Georgia at the time the subcontractor(s) is retained to perform such physical services 16.16 LOCAL SMALL BUSINESS LANGUAGE. In accordance with Chapter 10B of the AUGUSTA, GA. CODE, Contractor expressly agrees to collect and maintain all records necessary to for Augusta, Georgia to evaluate the effectiveness of its Local Small Business Opportunity Program and to make such records available to Augusta, Georgia. The requirements of the Local Small Business Opportunity Program can be found at www.augustaga.gov. In accordance with AUGUSTA, GA. CODE § 1-10 - 129(d)(7), for all contracts where a local small business goal has been established, the contractor is required to provide local small business utilization reports. Contractor shall report to Augusta, Georgia the total dollars paid to each local small business on each contract, and shall provide such payment affidavits, regarding payment to subcontractors as may be requested by Augusta, Georgia. Such documents shall be in the format specified by the Director of minority and small business opportunities, and shall be submitted at such times as required by Augusta, Georgia. Failure to provide such reports within the time period specified by Augusta, Georgia shall entitle Augusta, Georgia to exercise any of the remedies set forth, including but not limited to, withholding payment from the contractor and /or collecting liquidated damages. The Parties hereby enter into this Agreement as of the Effective Date. Motorola olutions, Inc. By: �1x Name: Marshall Wrigh Title: MSSSI VP & Director v.7 -26 -12 Augusta eorgia By: ttName: Deke S. Copenhaver Title: Mayor Date: September 10, 2012 Date: fly Attest: Signature Name: Lei pi Title: Cl e kdan e 199L r b Q c • eoo• no�� c 13 Section 1 DEFINITIONS Exhibit A SOFTWARE LICENSE AGREEMENT This Exhibit A Software License Agreement ( "Agreement ") is between Motorola Solutions, Inc. ( "Motorola ") and Augusta, Georgia, a political subdivision of the State of Georgia, with its place of business at 530 Greene Street, Augusta, GA U.S.A. 30901 ( "Licensee "). For good and valuable consideration, the parties agree as follows: 1.1 "Designated Products" means products provided by Motorola to Licensee with which or for which the Software and Documentation is licensed for use. 1.2 "Documentation" means product and software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which such information is provided). 1.3 "Open Source Software" means software with either freely obtainable source code, license for modification, or permission for free distribution. 1.4 "Open Source Software License" means the terms or conditions under which the Open Source Software is licensed. 1.5 "Primary Agreement" means the agreement to which this exhibit is attached. 1.6 "Security Vulnerability" means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach such that data is compromised, manipulated or stolen or the system damaged. 1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de- compilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement. Section 2 SCOPE Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary Software or products containing embedded or pre - loaded proprietary Software, or both. This Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee's use of the Software and Documentation. Section 3 GRANT OF LICENSE 3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants to Licensee a personal, limited, non - transferable (except as permitted in Section 7) and non- exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code. v.7 -26 -12 1 3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the terms and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine whether any Open Source Software is provided under this Agreement; (ii) identify the Open Source Software and provide Licensee a copy of the applicable Open Source Software License (or specify where that license may be found); and, (iii) provide Licensee a copy of the Open Source Software source code, without charge, if it is publicly available (although distribution fees may be applicable). Section 4 LIMITATIONS ON USE 4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting the general nature of these restrictions, Licensee will not make the Software available for use by third parties on a "time sharing," "application service provider," or "service bureau" basis or for any other similar commercial rental or sharing arrangement. 4.2 Licensee will not, and will not allow or enable any third party to: (i) reverse engineer, disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant any sublicense or other rights in the Software or Documentation to any third party, or take any action that would cause the Software or Documentation to be placed in the public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, back- up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software. 4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other device. Licensee may temporarily transfer Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary transfer is discontinued. 4.4. The license for Cityworks or Customer Service Request Software is for the use of the Software with the Designated System or for the specified number of Concurrent Users for which it was provided, the purpose for which it was designed and only for the application specific use covered by this Agreement, or the Primary Agreement. This license does not allow access to the Software through other Designated Systems except as specifically permitted. "Concurrent User" means the maximum number of concurrent connections to Software authorized by this Agreement or the Primary Agreement at any one instance in time. "Designated System" means the computer hardware and operating system configuration specified in the Primary Agreement for which the Software is licensed for use. Additional Designated System licenses are required for communication with additional instances of a database or additional databases. v.7 -26 -12 2 4.5. Licensee will maintain, during the term of this Agreement and for a period of five years thereafter, accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an independent third party ( "Auditor ") may inspect Licensee's premises, books and records, upon reasonable prior notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this Agreement. Section 5 OWNERSHIP AND TITLE Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Software and Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de- compilations, disassemblies, emulations to or derivative works from the Software or Documentation, whether made by Motorola or another party, or any improvements that result from Motorola's processes or, provision of information services). No rights are granted to Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing the Software, Designated Products, Documentation or related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights. Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY 6.1. The commencement date and the term of the Software warranty will be a period of ninety (90) from shipment, except that for application Software that is provided on a per unit basis, the warranty period for subsequent units licensed is the remainder, if any, of the initial warranty period or, if the initial warranty period has expired, the remainder, if any, of the term of the applicable Software Maintenance and Support Agreement. If Licensee is not in breach of any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted, error -free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee's particular requirements. Motorola makes no representations or warranties with respect to any third party software included in the Software. 6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct significant, demonstrable program or documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola's option, Motorola will replace the defective Software with functionally - equivalent Software, license to Licensee substitute Software which will accomplish the same objective, or terminate the license and refund the Licensee's paid license fee. 6.3. Warranty claims are described in the Primary Agreement. 6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other warranties (express or implied, oral or written) with respect to the Software or Documentation, including, without limitation, any and all implied warranties of condition, title, non - infringement, merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether v.7 -26 -12 3 arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola disclaims any warranty to any person other than Licensee with respect to the Software or Documentation. Section 7 TRANSFERS Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee paying all applicable license fees and agreeing to be bound by this Agreement. If Licensee transfers ownership of the Designated Products to a third party, Licensee may assign its right to use the Software embedded in or furnished for use with those Designated Products; provided that Licensee transfers all copies of the Software and Documentation to the transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon request, obligating the transferee to be bound by this Agreement. Section 8 TERM AND TERMINATION 8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation may be terminated immediately upon notice by Motorola. 8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer in use by Licensee. 8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non - embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Section 9 UNITED STATES GOVERNMENT LICENSING PROVISIONS This Section applies if Licensee is the United States Government or a United States Government agency. Licensee's use, duplication or disclosure of the Software and Documentation under Motorola's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software- Restricted Rights clause at FAR 52.227 -19 (JUNE 1987), if applicable, unless they are being provided to the Department of Defense. If the Software and Documentation are being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227 -7013 (OCT 1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice, or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement transaction. Section 10 CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary Agreement concerning Confidential Information apply. v.7 -26 -12 4 Section 11 LIMITATION OF LIABILITY The Limitation of Liability provision is described in the Primary Agreement. Section 12 NOTICES Notices are described in the Primary Agreement. Section 13 GENERAL 13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software. 13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Motorola and the appropriate governmental authority of the United States, in any form export or re- export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval. Violation of this provision is a material breach of this Agreement. 13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or consent of Licensee. 13.4. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a sovereign government entity. The terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the Uniform Computer Information Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA ") becomes applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA. 13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and Licensee. No third party has the right to make any claim or assert any right under this Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing, any licensor or supplier of third party software included in the Software will be a direct and intended third party beneficiary of this Agreement. 13.6. SURVIVAL. Sections 4, 5, 6.3, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement. 13.7. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the Primary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other subject matter. 13.8 SECURITY. Motorola uses reasonable means in the design and writing of its own Software and the acquisition of third party Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will take the steps set forth in Section 6 of this Agreement. v.7 -26 -12 5 Fa7h��" 3k3'�iy i Y�'�1R� .cc 'k i ..�'� �.3�✓*`' F' �' ''"y �y �hT+ � , �-. Acceptance Certificate Signed for Statement of Work Completion (Task 1.8) 5% 15% Acceptance Certificate Signed for Kick -Off Meeting (Task 2.8) 10% Acceptance Certificate Signed for Software Completion (Task 4.5) 10% 10% Acceptance Certificate Signed for Training Completion (Task 5.6) 15% 15% Acceptance Certificate Signed for PremierOne CSR Configuration Completion (Task 6.7) 20% 20% Acceptance Certificate Signed for PremierOne CSR Citizen Mobile Apps Configuration Completion (Task 7.6) 10% 10% Acceptance Certificate Signed for On -site Report Training Completion (Task 9.8) 10% 20% Acceptance Certificate Signed for ATP Execution Completion (Task 10.5) 10% Acceptance Certificate Signed for On -site Go -Live Support Completion (Task 12.10) 5% 10% Acceptance Certificate Signed for Post Go -Live Support Completion (Task 13.8) 5% Motorola's Projected Payment Milestones Exhibit B Payment Schedule Projected Payment Milestones and Tentative Project Schedule �" -� � i..,� �� � 3n ( ,�✓ � ���� } p��l t L" � SV Y. ( 5 Y '�i St ': v"` : 4 t� �` 4" � � N h 4� "�"� ,�,��4`� L�` �+}, 4'S' 'e ` t Selection of Vendor COMPLETE Contract Negotiation 7/2012 Approval of Contract by City Attorney 8/2012 Administration / Commission Approval 8/2012 Contract Signing 8/2012 Project Kickoff and Statement of Work completion 9/2012 Software Installation 10/2012 Will be scheduled pending arrival of equipment that must be ordered by Augusta IT and installation of infrastructure and equipment as needed. . System Implementation 2/2013 System Acceptance Testing and Acceptance 3/2013 System Acceptance At completion of acceptance testing System Go -live 4/2013 Motorola's Tentative Project Schedule *All dates are subject to change upon mutual agreement of Augusta and Motorola. Motorola reserves the right to make partial shipments of software and /or equipment and to request payment upon shipment of such software and/or equipment. Motorola has priced the above software, services and equipment quantities as a single system. Changes in software, services and/or equipment quantities will result in an adjustment of the overall system price. Item Cost Software Cost* (See Note 1) Indicate Per Seat Cost, Cost Per Module, Customization Costs (based on this RFP), Other as needed. $150,000.00 Management/Implementation Cost* (See Note 2) Include manhours, travel, lodging, meals, etc. $212,271.00 Training Cost* $28,900.00 Conversion of Existing Data* (See Note 3) $TBD Annual Support (starting 2 " year)* $40,125.00 Hardware Costs (See Note 4) Augusta reserves the right to purchase hardware from our own sources, but the vendor is asked to denote all of the equipment required to implement their solution so that Augusta IT staff can do hardware cost estimates. If specific equipment is necessary for your solution, please provide costs for those as well. Include Servers, Mobile Devices, or other equipment recommended for use with the vendor's solution (bar code readers, scanners, digital cameras, etc.) Total (originally proposed on March 13, 2012) $431,296.00 Removing 2 " year of annual support from the l year costs since this will not be due until the 2 year. - $40,125.00 Total for 1 year $391,171.00 Motorola one -time system discount for a signed contract by June 15, 2012 - $66,171.00 Total (revised May 30, 2012) (See Note 6) $325,000.00 Performance Bond as required by the City $6,000.00 Total (revised July 24, 2012) (See Note 6) $331,000.00 Exhibit C Motorola's Proposal dated March 13, 2012, as amended on July 24, 2012 PRICE PROPOSAL - Augusta hosted on -site NOTES: Note 1: Motorola PremierOne CSR Suite license, Includes the (8) call center personnel, (20) departmental users, Citizen Web Intake and Citizen Mobile Apps. Note 2: Motorola is providing a firm, fixed price proposal to meet Augusta's requirements as outlined in our response. Note 3: Addendum #1 stated conversion costs not necessary as part of vendor's original bid. Note 4: Motorola has provided the list and specifications of servers required for Augusta to implement the PremierOne CSR system in our response. Note 6: Pricing does not include any data conversation or interfaces. Note 7: A detailed Statement of Work (SOW) and payment schedule will need to be finalized and approved before beginning the project. Exhibit D SYSTEM ACCEPTANCE CERTIFICATE Public Service Applications Customer Name: Project Name: This System Acceptance Certificate memorializes the occurrence of System Acceptance. Motorola and Customer acknowledge that: 1. The Acceptance Tests set forth in the Acceptance Test Plan have been successfully completed, and all System or product documentation promised under the Agreement has been provided. 2. The System is accepted, except for any items listed on a punch list. The parties will promptly complete their respective punch list responsibilities according to a mutually agreed schedule. Customer Representative: Motorola Representative: Signature: Signature: Print Name: Print Name: Title: Title: Date: Date: FINAL SYSTEM ACCEPTANCE: Motorola has provided and Customer has received all deliverables, and Motorola has performed all other work required for Final System Acceptance. Customer Representative: Motorola Representative: Signature: Signature: Print Name: Print Name: Title: Title: Date: Date: Definitions Policy B. Connectivity Exhibit F Vendor Remote Network Access Policy and Procedures Purpose The purpose of this policy is to ensure that a secure method of connectivity is provided between Augusta, Georgia (hereinafter "City ") and the vendor and to provide guidelines for the use of the network and computing resources associated with the remote connectivity in order to ensure the safety, integrity, and operability of Augusta, Georgia Information Systems. Scope This policy applies to all Augusta, Georgia systems, application and/or servers /devices requiring support by external vendors on behalf of Augusta, Georgia. A Virtual Private Network (VPN) provides a secure network connection over the Internet between an individual and a private network (164 bit encryption). By utilizing the public Internet for data transport, VPN provides a low cost solution to remote access or connectivity. A. Vendor Remote Access Request and Approvals All requests for remote access for vendors must be made in advance through the Project Leader responsible for the vendor. It is the Project Leader's responsibility to ensure that the vendor has provided all of the required information in the proper format. All vendor remote access requests must first have the Assistant Director of the Business Application Services signature for approval as well as the Director of Information Technology. As part of the request and approval process, the technical and administrative contact within the vendor's organization or someone at a higher level within the company will be required to read and sign the VPN Access policy form and any additional documents, such as the Augusta, Georgia Non - Disclosure Agreement. Once Vendor Remote Access has been approved, it is valid until changes in this policy or technology make it necessary, in City's estimation, to require a new form to be filed. Remote Access will only be available to Vendors that have signed Annual Support and Maintenance Contracts with the City. 1. The vendor will be required to use the City's standard method for connecting to the network. The current standard method is Cisco's VPN client. 2. The vendor will be given a unique user ID and password to authenticate the VPN access. The password may be subject to regular changes. 3. Only one person may be connected to the VPN at any given time. 4. Access will be restricted to only the servers located in IT that were approved for the vendor. 5. Access will be restricted to only the ports necessary for connectivity. 6. Access will not be open 24/7. The vendor must request access every time it is necessary and only during business hours of 8:30am — 5:OOpm EST. Access outside of these hours may be requested but will need additional approval and will be handled on a case by case situation. C. Vendor Request Process 1. The vendor will contact the Project Leader to request access. 2. The Project Leader is responsible for logging the request for access and justification in the change control log. 3. The Project Leader will document reason for access and email Firewall Administrators to have the VPN opened. 4. A firewall administrator will open the VPN and reply to the Project Leader's email notifying them it has been opened. 5. Once the vendor has completed their work and the application has been tested, they will notify the Project Leader that the work is complete. D. Network Security 1. Vendor will allow only the vendor's employees approved in advance by the City to access the network connection. Vendor shall be solely responsible for ensuring that Authorized Vendor Employees are not security risks, and upon the City's request, Vendor will provide the City with any information reasonably necessary for the City to evaluate security issues relating to any Authorized Vendor Employee. 2. Vendor will promptly notify the City whenever any Authorized Vendor Employee leaves the Vendor's employ or no longer requires access to the Network Connection. 3. Each party will be solely responsible for the selection, implementation and maintenance of security procedures and policies that are sufficient to ensure that (a) such party's use of the Network Connection is secure and is used only for authorized purposes, and (b) such party's business records and data are protected against improper access, use, loss, alteration or destruction. 4. Vendor shall notify the City in writing promptly upon a change in the user base for the work performed over the Network Connection or whenever in vendor's opinion a change in the connection and /or functional requirements of the Network Connection is necessary. E. Protection of Augusta, Georgia Private Information and Resources The Augusta, Georgia network support group responsible for the installation and configuration of a specific vendor connection must ensure that all possible measures have been taken to protect the integrity and privacy of the City's confidential information. At no time should the City rely on access /authorization control mechanisms at the vendor's site to protect or prohibit access to the City's confidential information. The City shall not have any responsibility for ensuring the protection of vendor information. The vendor shall be entirely responsible for providing the appropriate security measures to ensure protection of their private internal network and information. F. Audit and Review of Vendor Network Connections All aspects of the vendor network connections up to, but not including the City firewall, will be monitored by the appropriate IT staff. Where possible automated tools will be used to audit tasks. Monthly reports should be generated on the authentication database showing the specific login entries. All vendor network connections will be reviewed on a quarterly basis and information regarding specific vendor network connection will be updated as necessary. Obsolete vendor network connections will be terminated following confirmation with the Project Leader that the connection is indeed obsolete. G. Augusta, Georgia IT Security Augusta, Georgia IT Security has the responsibility for maintaining related policies and standards. IT Security will also provide advice and assistance regarding judgment calls, and will facilitate information gathering in order to make a correct decision. H. Enforcement Any vendor found in violation of this policy will be subject to, but not limited to, loss of VPN privileges and other action up to and including dissolution of contract and /or legal action if Augusta systems are compromised. Vend Na me: Vendor R epresentative { Title: A� 4h Work: Cell: eth nical Sapp ►rt {� , Re presentat ye Title: Phone• Work: Cell: After hours: ; Bu mes �bn erv ers reque i e for, V endor's IP address(es) . r e sco pn c lient? Yes ❑ No (1 endor s l et o k , ��re walled? Yes ❑ No n nti it � ofare: Ver. # P Intl Virus rS version VPN Access Request Form Request for remote access to the Augusta- Richmond County network. Vendor Information (please print) Agreement I have read and agree to the Policy & Guidelines set forth for Vendor VPN access. (Vendor's signature) Authorization (Date) (Project Leader's signature) (Date) (IT Director's signature) (Date) Maintenance and Support Agreement Motorola Solutions, Inc., a Delaware corporation, ( "Motorola" or "Seller ") having a place of business at 1301 E. Algonquin Road, Schaumburg, Illinois 60196 and Augusta, Georgia, a political subdivision of the State of Georgia ( "Customer "), with its place of business at 530 Greene Street, Augusta, GA U.S.A. 30901, enter into this Maintenance and Support Agreement ( "Agreement "), pursuant to which Customer will purchase and Motorola will sell the maintenance and support services as described below and in the attached exhibits. Motorola and Customer may be referred to individually as "party" and collectively as "parties." For good and valuable consideration, the parties agree as follows. Section 1 EXHIBITS The Exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in the order in which they are listed below. Exhibit A "Description of Covered Products" Exhibit B "Support Plan" Exhibit C "Support Plan Options and Pricing Worksheet" Section 2 DEFINITIONS "AHMS" means Motorola's Administrative Hearing Management System "CSR" and "PremierOne CSR" means Motorola's Customer Service Request System "Equipment" means the physical hardware purchased by Customer from Motorola pursuant to a separate System Agreement, Products Agreement, or other form of agreement. "Motorola" means Motorola Solutions, Inc., a Delaware corporation. "Motorola Software" means Software that Motorola owns. The term includes Product Releases, Standard Releases, and Supplemental Releases. "Non- Motorola Software" means Software that a party other than Motorola owns. "Optional Technical Support Services" means fee -based technical support services that are not covered as part of the standard Technical Support Services. "Patch" means a specific change to the Software that does not require a Release. "Principal Period of Maintenance" or "PPM" means the specified days, and times during the days, that maintenance and support services will be provided under this Agreement. The PPM selected by Customer is indicated in the Support Plan Options and Pricing Worksheet. "Products" means the Equipment (if applicable as indicated in the Description of Covered Products) and Software provided by Motorola. "Releases" means an Update or Upgrade to the Motorola Software and are characterized as "Supplemental Releases," "Standard Releases," or "Product Releases." A "Supplemental Release" is defined as a minor release of Motorola Software that contains primarily error corrections to an existing PSV MSA Page 1 v. 7 -26 -12 Standard Release and may contain limited improvements that do not affect the overall structure of the Motorola Software. Depending on Customer's specific configuration, a Supplemental Release might not be applicable. Supplemental Releases are identified by the third digit of the three -digit release number, shown here as underlined: "1.2.3 ". A "Standard Release" is defined as a major release of Motorola Software that contains product enhancements and improvements, such as new databases, modifications to databases, or new servers. A Standard Release may involve file and database conversions, System configuration changes, hardware changes, additional training, on -site installation, and System downtime. Standard Releases are identified by the second digit of the three -digit release number, shown here as underlined: "1.2.3 ". A "Product Release" is defined as a major release of Motorola Software considered to be the next generation of an existing product or a new product offering. Product Releases are identified by the first digit of the three -digit release number, shown here as underlined: "1.2.3 ". If a question arises as to whether a Product offering is a Standard Release or a Product Release, Motorola's opinion will prevail, provided that Motorola treats the Product offering as a new Product or feature for its end user customers generally "Residual Error" means a software malfunction or a programming, coding, or syntax error that causes the Software to fail to conform to the Specifications. "Services" means those maintenance and support services described in the Support Plan and provided under this Agreement. "Software" means the Motorola Software and Non - Motorola Software that is furnished with the System or Equipment. "Specifications" means the design, form, functionality, or performance requirements described in published descriptions of the Software, and if also applicable, in any modifications to the published specifications as expressly agreed to in writing by the parties. "Standard Business Day" means Monday through Friday, 8:00 a.m. to 5:00 p.m. local time, excluding established Motorola holidays. "Standard Business Hour" means a sixty (60) minute period of time within a Standard Business Day(s). "Start Date" means the date upon which this Agreement begins. The Start Date is specified in the Support Plan Options and Pricing Worksheet. "System" means the Products and services provided by Motorola as a system as more fully described in the Technical and Implementation Documents attached as exhibits to a System Agreement between Customer and Seller (or Motorola). "Technical Support Services" means the remote telephonic support provided by Motorola on a standard and centralized basis concerning the Products, including diagnostic services and troubleshooting to assist Customer in ascertaining the nature of a problem being experienced by the Customer. "Update" means a Supplemental Release or a Standard Release. "Upgrade" means a Product Release. Section 3 SCOPE AND TERM OF SERVICES 3.1. In accordance with the provisions of this Agreement and in consideration of the payment by Customer of the price for the Services, Motorola will provide to Customer the Services in accordance with Customer's selections as indicated in the Support Plan Options and Pricing Worksheet, and such Services will apply only to the Products described in the Description of Covered Products. PSV MSA Page 2 v. 7 -26 -12 3.2. Unless the Support Plan Options and Pricing Worksheet expressly provides to the contrary, the term of this Agreement is one (1) year, beginning on the Start Date. This annual maintenance and support period will automatically renew upon the anniversary date for successive one (1) year periods unless either party notifies the other of its intention to not renew the Agreement (in whole or part) not less than thirty (30) days before the anniversary date or this Agreement is terminated for default by a party. 3.3. This Agreement covers all copies of the specified Software listed in the Description of Covered Products that are licensed by Motorola to Customer. If the price for Services is based upon a per unit fee, such price will be calculated on the total number of units of the Software that are licensed to Customer as of the beginning of the annual maintenance and support period. If, during an annual maintenance and support period, Customer acquires additional units of the Software that is covered by this Agreement, the price for maintenance and support services for those additional units will be calculated and added to the total price either (1) if and when the annual maintenance and support period is renewed or (2) immediately when Customer acquires the additional units, as Motorola determines. Motorola may adjust the price of the maintenance and support services effective as of a renewal if it provides to Customer notice of the price adjustment at least forty -five (45) days before the expiration of the annual maintenance and support period. If Customer notifies Motorola of its intention not to renew this Agreement as permitted by Section 3.2 and later wishes to reinstate this Agreement, it may do so with Motorola's consent provided (a) Customer pays to Motorola the amount that it would have paid if Customer had kept this Agreement current, (b) Customer ensures that all applicable Equipment is in good operating conditions at the time of reinstatement, and (c) all copies of the specified Software listed in the Description of Covered Products are covered. 3.4. When Motorola performs Services at the location of installed Products, Customer agrees to provide to Motorola, at no charge, a non - hazardous environment for work with shelter, heat, light, and power, and with full and free access to the covered Products. Customer will provide all information pertaining to the hardware and software with which the Products are interfacing to enable Motorola to perform its obligations under this Agreement. 3.5. All Customer requests for covered Services will be made initially with the call intake center identified in the Support Plan Options and Pricing Worksheet. 3.6. Motorola will provide to Customer Technical Support Services and Releases as follows: 3.6.1. Motorola will provide Technical Support Services and correction of Residual Errors during the PPM in accordance with the exhibits. The level of Technical Support depends upon the Customer's selection as indicated in the Support Plan Options and Pricing Worksheet. Any Technical Support Services that are performed by Motorola outside the contracted PPM and any Residual Error corrections that are outside the scope shall be billed at the then current hourly rates. Technical Support Services will be to investigate specifics about the functioning of covered Products to determine whether there is a defect in the Product and will not be used in lieu of training on the covered Products. 3.6.2. Unless otherwise stated in paragraph 3.6.3 or if the Support Plan Options and Pricing Worksheet expressly provides to the contrary, Motorola will provide to Customer without additional license fees an available Supplemental or Standard Release after receipt of a request from Customer, but Customer must pay for any installation or other services and any necessary Equipment or third party software provided by Motorola in connection with such Supplemental or Standard Release. Any services will be performed in accordance with a mutually agreed schedule. 3.6.3. Reserved PSV MSA Page 3 v. 7 -26 -12 3.6.4. Motorola will provide to Customer an available Product Release after receipt of a request from Customer, but Customer must pay for all additional license fees, any installation or other services, and any necessary Equipment provided by Motorola in connection with such Product Release. Any services will be performed in accordance with a mutually agreed schedule. 3.6.5. Motorola does not warrant that a Release will meet Customer's particular requirement, operate in the combinations that Customer will select for use, be uninterrupted or error -free, be backward compatible, or that all errors will be corrected. Full compatibility of a Release with the capabilities and functions of earlier versions of the Software may not be technically feasible. If it is technically feasible, services to integrate these capabilities and functions to the updated or upgraded version of the Software may be purchased at Customer's request on a time and materials basis at Motorola's then current rates for professional services. 3.6.6. Except as provided in Section 3.6.7, Motorola's responsibilities under this Agreement to provide Technical Support Services shall be limited to the current Standard Release plus the two (2) prior Standard Releases (collectively referred to in this section as "Covered Standard Releases. "). Notwithstanding the preceding sentence, Motorola will provide Technical Support Services for a Severity Level 1 or 2 error concerning a Standard Release that precedes the Covered Standard Releases unless such error has been corrected by a Covered Standard Release (in which case Customer shall install the Standard Release that fixes the reported error or terminate this Agreement as to the applicable Software). 3.6.7. Motorola's responsibilities under this Agreement to provide Technical Support Services shall be limited to the current Standard Release concerning the following Software: Customer Service Request, Case Management, Integration Framework, and Integration Framework Express. 3.7. The maintenance and support Services described in this Agreement are the only covered services. Unless Optional Technical Support Services are purchased, these Services specifically exclude and Motorola shall not be responsible for: 3.7.1. Any service work required due to incorrect or faulty operational conditions, including but not limited to Equipment not connected directly to an electric surge protector, or not properly maintained in accordance with the manufacturer's guidelines. 3.7.2. The repair or replacement of Products or parts resulting from failure of the Customer's facilities, Customer's personal property and /or devices connected to the System (or interconnected to devices) whether or not installed by Motorola's representatives. 3.7.3. The repair or replacement of Equipment that has become defective or damaged due to physical or chemical misuse or abuse, Customer's negligence, or from causes such as lightning, power surges, or liquids. 3.7.4. Any transmission medium, such as telephone lines, computer networks, or the worldwide web, or for Equipment malfunction caused by such transmission medium. 3.7.5. Accessories, custom or Special Products; modified units; or modified Software. 3.7.6. The repair or replacement of parts resulting from the tampering by persons unauthorized by Motorola or the failure of the System due to extraordinary uses. 3.7.7. Operation and /or functionality of Customer's personal property, equipment, and /or peripherals and any application software not provided by Motorola. PSV MSA Page 4 v. 7 -26 -12 3.7.8. Services for any replacement of Products or parts directly related to the removal, relocation, or reinstallation of the System or any System component. 3.7.9. Services to diagnose technical issues caused by the installation of unauthorized components or misuse of the System. 3.7.10 Services to diagnose malfunctions or inoperability of the Software caused by changes, additions, enhancements, or modifications in the Customer's platform or in the Software. 3.7.11 Services to correct errors found to be caused by Customer - supplied data, machines, or operator failure. 3.7.12. Operational supplies, including but not limited to, printer paper, printer ribbons, toner, photographic paper, magnetic tapes and any supplies in addition to that delivered with the System; battery replacement for uninterruptible power supply (UPS); office furniture including chairs or workstations. 3.7.13. Third -party software unless specifically listed on the Description of Covered Products. 3.7.14. Support of any interface(s) beyond Motorola - provided port or cable, or any services that are necessary because third party hardware, software or supplies fail to conform to the specifications concerning the Products. 3.7.15. Services related to customer's failure to back up its data or failure to use an UPS system to protect against power interruptions. 3.7.16. Any design consultation such as, but not limited to, configuration analysis, consultation with Customer's third -party provider(s), and System analysis for modifications or Upgrades or Updates which are not directly related to a Residual Error report. 3.8. The Customer hereby agrees to: 3.8.1. Maintain any and all electrical and physical environments in accordance with the System manufacturer's specifications. 3.8.2. Provide standard industry precautions (e.g. back -up files) ensuring database security, per Motorola's recommended backup procedures. 3.8.3. Ensure System accessibility, which includes physical access to buildings as well as remote electronic access. Remote access can be stipulated and scheduled with customer; however, remote access is required and will not be substituted with on -site visits if access is not allowed or available. 3.8.4. Appoint one or more qualified employees to perform System Administration duties, including acting as a primary point of contact to Motorola's Customer Support organization for reporting and verifying problems, and performing System backup. At least one member of the System Administrators group should have completed Motorola's End -User training and System Administrator training (if available). The combined skills of this System Administrators group should include proficiency with: the Products, the system platform upon which the Products operate, the operating system, database administration, network capabilities such as backing up, updating, adding, and deleting System and user information, and the client, server and stand alone personal computer hardware. The System Administrator shall follow the Residual Error reporting process described herein and make all reasonable efforts to duplicate and verify problems and assign a Severity Level according to definitions provided herein. Customer agrees to use reasonable efforts to ensure that all problems are reported and verified by the System PSV MSA Page 5 v. 7 -26 -12 Administrator before reporting them to Motorola. Customer shall assist Motorola in determining that errors are not the product of the operation of an external system, data links between system, or network administration issues. If a Severity Level 1 or 2 Residual Error occurs, any Customer representative may contact Motorola's Customer Support Center by telephone, but the System Administrator must follow up with Motorola's Customer Support as soon as practical thereafter. 3.9. In performing repairs under this Agreement, Motorola may use parts that are not newly manufactured but which are warranted to be equivalent to new in performance. Parts replaced by Motorola shall become Motorola's property. 3.10 Customer shall permit and cooperate with Motorola so that Motorola may periodically conduct audits of Customer's records and operations pertinent to the Services, Products, and usage of application and data base management software. If the results of any such audit indicate that price has been understated, Motorola may correct the price and immediately invoice Customer for the difference (as well as any unpaid but owing license fees). 3.11. If Customer replaces, upgrades, or modifies equipment, or replaces, upgrades, or modifies hardware or software that interfaces with the covered Products, Motorola will have the right to adjust the price for the Services to the appropriate current price for the new configuration. 3.12 Customer shall agree not to attempt or apply any update(s), alteration(s), or change(s) to the database software without the prior approval of the Motorola. Section 4. RIGHT TO SUBCONTRACT AND ASSIGN Motorola may assign its rights and obligations under this Agreement and may subcontract any portion of Motorola's performance called for by this Agreement. Section 5. PRICING, PAYMENT AND TERMS 5.1 Prices in United States dollars are shown in the Support Plan Options and Pricing Worksheet. Unless this exhibit expressly provides to the contrary, the price is payable annually in advance. Motorola will provide to Customer an invoice, and Customer will make payments to Motorola within twenty (20) days after the date of each invoice. During the term of this Agreement, Customer will make payments when due in the form of a check, cashier's check, or wire transfer drawn on a United States financial institution. Annual maintenance and support pricing increase each year at 5% over the previous year. 5.2. Overdue invoices will bear simple interest at the rate of ten percent (10 %) per annum, unless such rate exceeds the maximum allowed by law, in which case it will be reduced to the maximum allowable rate. 5.3 If Customer requests, Motorola may provide services outside the scope of this Agreement or after the termination or expiration of this Agreement and Customer agrees to pay for those services. These terms and conditions and the prices in effect at the time such services are rendered will apply to those services. 5.4 Price(s) are exclusive of any taxes, duties, export or customs fees, including Value Added Tax or any other similar assessments imposed upon Motorola. If such charges are imposed upon Motorola, Customer shall reimburse Motorola upon receipt of proper documentation of such assessments. PSV MSA Page 6 v. 7 -26 -12 Section 6. LIMITATION OF LIABILITY This limitation of liability provision shall apply notwithstanding any contrary provision in this Agreement. Except for personal injury or death, Motorola's (including any of its affiliated companies) total liability arising from this Agreement will be limited to the direct damages recoverable under law, but not to exceed the price of the maintenance and support services being provided for one (1) year under this Agreement. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA (INCLUDING ANY OF ITS AFFILIATED COMPANIES) WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE SYSTEM, EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability will survive the expiration or termination of this Agreement. No action for breach of this Agreement or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of such cause of action, except for money due upon an open account. Section 7. DEFAULT/TERMINATION 7.1. If Motorola breaches a material obligation under this Agreement (unless Customer or a Force Majeure causes such failure of performance); Customer may consider Motorola to be in default. If Customer asserts a default, it will give Motorola written and detailed notice of the default. Motorola will have thirty (30) days thereafter either to dispute the assertion or provide a written plan to cure the default that is acceptable to Customer. If Motorola provides a cure plan, it will begin implementing the cure plan immediately after receipt of Customer's approval of the plan. 7.2. If Customer breaches a material obligation under this Agreement (unless Motorola or a Force Majeure causes such failure of performance); if Customer breaches a material obligation under the Software License Agreement that governs the Software covered by this Agreement; or if Customer fails to pay any amount when due under this Agreement, indicates that it is unable to pay any amount when due, indicates it is unable to pay its debts generally as they become due, files a voluntary petition under bankruptcy law, or fails to have dismissed within ninety (90) days any involuntary petition under bankruptcy law, Motorola may consider Customer to be in default. If Motorola asserts a default, it will give Customer written and detailed notice of the default and Customer will have thirty (30) days thereafter to (i) dispute the assertion, (ii) cure any monetary default (including interest), or (iii) provide a written plan to cure the default that is acceptable to Motorola. If Customer provides a cure plan, it will begin implementing the cure plan immediately after receipt of Motorola's approval of the plan. 7.3. If a defaulting party fails to cure the default as provided above in Sections 7.1 or 7.2, unless otherwise agreed in writing, the non - defaulting party may terminate any unfulfilled portion of this Agreement and may pursue any legal or equitable remedies available to it subject to the provisions of Section 6 above. 7.4. Upon the expiration or earlier termination of this Agreement, Customer and Motorola shall immediately deliver to the other Party, as the disclosing Party, all Confidential Information of the other, including all copies thereof, which the other Party previously provided to it in furtherance of this Agreement. Confidential Information shall include: (a) proprietary materials and information regarding technical plans; (b) any and all other information, of whatever type and in whatever medium including data, developments, trade secrets and improvements, that is disclosed by Motorola to Customer in connection with this Agreement; (c) all geographic information system, address, telephone, or like records and data provided by Customer to Motorola in connection with this Agreement that is required by law to be held confidential. PSV MSA Page 7 v. 7 -26 -12 7.5 TERMINATION FOR CONVENIENCE. The Customer may terminate this contract in part or in whole upon written notice to Motorola. Motorola shall be paid for any services rendered under this Contract up to the time of termination. Section 8. GENERAL TERMS AND CONDITIONS 8.1. Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service), or by facsimile with correct answerback received, and shall be effective upon receipt. Fred Russell, City Administrator 530 Greene Street, Room 801 Augusta, GA 30901 T: 706.821 -2400 F: 706.821. Seller: Motorola Solutions, Inc. Attn: Judy Jean - Pierre, Law Dept. 1303 E. Algonquin Road, IL01, 8th Floor Schaumburg, IL 60196 F: 847 - 576 -0721 Email address: Judy. Jean - Pierre @motorolasolutions,com 8.2. Neither party will be liable for its non - performance or delayed performance if caused by an event, circumstance, or act of a third party that is beyond such party's reasonable control, 8.3. Failure or delay by either party to exercise any right or power under this Agreement will not operate as a waiver of such right or power. For a waiver to be effective, it must be in writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. 8.4. Customer may not assign any of its rights under this Agreement without Motorola's prior written consent. 8.5. This Agreement, including the exhibits, constitutes the entire agreement of the parties regarding the covered maintenance and support services and supersedes all prior and concurrent agreements and understandings, whether written or oral, related to the services performed. Neither this Agreement nor the Exhibits may not be altered, amended, or modified except by a written agreement signed by authorized representatives of both parties. Customer agrees to reference this Agreement on all purchase orders issued in furtherance of this Agreement. Neither party will be bound by any terms contained in Customer's purchase orders, acknowledgements, or other writings (even if attached to this Agreement). 8.6. This Agreement will be governed by the laws of the United States to the extent that they apply and otherwise by the laws of the State of Georgia if Licensee is a sovereign government entity, or the laws of the State of Illinois if Licensee is not a sovereign government entity. 8.7. GOVERNING LAW. The laws of the State of Georgia shall govern the Agreement between Customer and Motorola with regard to its interpretation and performance, and any other claims related to this agreement. All claims, disputes and other matters in question between Customer and Motorola arising out of or relating to the Agreement, or the breach thereof, shall be decided in the Superior Court of Richmond County, Georgia. Motorola, by executing this Agreement, PSV MSA Page 8 v. 7 -26 -12 specifically consents to jurisdiction and venue in Richmond County and waives any right to contest the jurisdiction and venue in the Superior Court of Richmond County, Georgia. Section 9. CERTIFICATION DISCLAIMER Motorola specifically disclaims all certifications regarding the manner in which Motorola conducts its business or performs its obligations under this Agreement, unless such certifications have been expressly accepted and signed by an authorized signatory of Motorola. Section 10. COMPLIANCE WITH APPLICABLE LAWS The Parties shall at all times comply with all applicable regulations, licenses and orders of their respective countries relating to or in any way affecting this Agreement and the performance by the Parties of this Agreement. Each Party, at its own expense, shall obtain any approval or permit required in the performance of its obligations. Neither Motorola nor any of its employees is an agent or representative of Customer Section 11. AUGUSTA, GEORGIA PROVISIONS 11.1 VENDOR SYSTEM ACCESS TO AUGUSTA, GEORGIA NETWORK. Motorola will sign a VPN Vendor Access Agreement with the Licensee, verifying that the Vendor will respect the integrity of Licensee's network and security protocols. Access to Augusta's network through the firewall will only be granted after said agreement has been signed. 11.2 GEORGIA OPEN RECORDS ACT. Motorola acknowledges that this Agreement and certain documentation may be subject to the Georgia Open Records Act (O.C.G.A. § 50- 18 -70, et seq.). Motorola shall cooperate fully in responding to such requests and shall make all records, not exempt, available for inspection and copying as required by law. Motorola shall clearly mark any information provided to Customer which Motorola contends is Proprietary Information. Each Party shall notify the other immediately of any Open Records request arising out of this Agreement and shall provide a copy of any response to the request within three days of the request. 11.3 INSURANCE. Motorola shall, at all times that this Agreement is in effect, cause to be maintained in force and effect an insurance policy(s) as set forth below: A. Worker's Compensation insurance — in accordance with the laws of the State of Georgia. B. Commercial Liability Insurance — in an amount of not less that One Million ($1,000,000) Dollars per occurrence and property damage, including those resulting in death to any one person. Customer will be included as an additional insured with respect to Motorola's liabilities hereunder in insurance coverage's identified in items B. The policies shall be written by a responsible company(s), and shall be non- cancellable except on thirty - (30) days' written notice to the Customer by Motorola. An Acord certificate of insurance shall be filed with the Director at within five (5) days of the execution of this Agreement. 11.4 GENERAL ACKNNOLWEDGEMENT OF ALL PARTIES CONTRACTING WITH AUGUSTA, GEORGIA. Contractor acknowledges that this Agreement and any changes to it by amendment, modification, change order or other similar document may have required or may require the legislative authorization of the Board of Commissioners and approval of the Mayor. Under Georgia law, Contractor is deemed to possess knowledge concerning Augusta, Georgia's ability to assume contractual obligations and the consequences of Contractor's provision of goods or services to Augusta, Georgia under an unauthorized PSV MSA Page 9 v. 7 -26 -12 contract, amendment, modification, change order or other similar document, including the possibility that the Contractor may be precluded from recovering payment for such unauthorized goods or services. Accordingly, Contractor agrees that if it provides goods or services to Augusta, Georgia under a contract that has not received proper legislative authorization or if the Contractor provides goods or services to Augusta, Georgia in excess of the any contractually authorized goods or services, as required by Augusta, Georgia's Charter and Code, Augusta, Georgia may withhold payment for any unauthorized goods or services provided by Contractor. Contractor assumes all risk of non - payment for the provision of any unauthorized goods or services to Augusta, Georgia. This acknowledgement shall be a mandatory provision in all Augusta, Georgia contracts for goods and services, except revenue producing contracts. The County will provide or confirm in writing that all authorizations and approvals have been given prior to the shipment of any equipment or services rendered. 11.5 E- VERIFY REGISTRATION. All contractors and subcontractors entering into contracts with Augusta, Georgia for the physical performance of services shall be required to execute an Affidavit verifying its compliance with O.C.G.A. § 13- 10 -91, stating affirmatively that the corporation which is contracting with Augusta, Georgia has registered with and is participating in a federal work authorization program. All contractors and subcontractors must provide their E- Verify number and must be in compliance with the electronic verification of work authorized programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), P.L. 99 -603, in accordance with the applicability provisions and deadlines established in O.C.G.A. § 13 -10 -91 and shall continue to use the federal authorization program throughout the contract term. All contractors shall further agree that, should it employ or contract with any subcontractor(s) in connection with the physical performance of services pursuant to its contract with Augusta, Georgia the contractor will secure from such subcontractor(s) each subcontractor's E- Verify number as evidence of verification of compliance with O.C.G.A. § 13 -10 -91 on the subcontractor affidavit provided in Rule 300- 10- 01 -.08 or a substantially similar form. All contractors shall• further agree to maintain records of such compliance and provide a copy of each such verification to Augusta, Georgia at the time the subcontractor(s) is retained to perform such physical services. 11.6 LOCAL SMALL BUSINESS LANGUAGE. In accordance with Chapter 10B of the AUGUSTA, GA. CODE, Contractor expressly agrees to collect and maintain all records necessary to for Augusta, Georgia to evaluate the effectiveness of its Local Small Business Opportunity Program and to make such records available to Augusta, Georgia. The requirements of the Local Small Business Opportunity Program can be found at www.augustaga.gov. In accordance with AUGUSTA, GA. CODE § 1-10 - 129(d)(7), for all contracts where a local small business goal has been established, the contractor is required to provide local small business utilization reports. Contractor shall report to Augusta, Georgia the total dollars paid to each local small business on each contract, and shall provide such payment affidavits, regarding payment to subcontractors as may be requested by Augusta, Georgia. Such documents shall be in the format specified by the Director of minority and small business opportunities, and shall be submitted at such times as required by Augusta, Georgia. Failure to provide such reports within the time period specified by Augusta, Georgia shall entitle Augusta, Georgia to exercise any of the remedies set forth, including but not limited to, withholding payment from the contractor and /or collecting liquidated damages. 11.7 GEORGIA PROMPT PAY ACT NOT APPLICABLE. The terms of this Agreement supersede any and all provisions of the Georgia Prompt Pay Act. 11.8 GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify and hold Customer harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against Customer to the extent it is caused by the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties under this Agreement, if Customer gives Motorola prompt, written notice of any the claim or suit. Customer will cooperate with Motorola in its defense or settlement of the claim or suit. This section sets PSV MSA Page 10 v. 7 -26 -12 forth the full extent of Motorola's general indemnification of Customer from liabilities that are in any way related to Motorola's performance under this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first written above. Motorola Solutions, Inc. 1 By: L "fG Name: Marshall Wright Title: MSSSI VP & Director Date: September 10, 2012 Augusta, Georgia By: Am Name: Deke S. Copenhaver 002 Title: Mayor Signature: Date: Date: 714/7(fe N NdLAu Attest: , , •41 ..•..�,o 1 r,4 EORGA- PSV MSA Page 11 v. 7 -26 -12 Product Description Version Qty PremierOne CSR PremierOne CSR (10) Concurrent user licenses 4.2.1 10 PremierOne CSR Contact Center (8) Call center licenses 4.2.1 8 Citizen Web Intake — site license 4.2.1 1 PremierOne CSR Citizen Mobile Apps 3.5 1 CUSTOMER: Augusta, Georgia Exhibit A DESCRIPTION OF COVERED PRODUCTS MAINTENANCE AND SUPPORT AGREEMENT NO. The following table lists the Products under maintenance coverage: PSV MSA, Exhibit A Page 1 MAINTENANCE AND SUPPORT AGREEMENT NO. Exhibit B SUPPORT PLAN This Support Plan is a Statement of Work that provides a description of the support to be performed. 1. Services Provided. The Services provided are based on the Severity Levels as defined herein. Each Severity Level defines the actions that will be taken by Motorola for Response Time, Target Resolution Time, and Resolution Procedure for reported errors. Severity levels 1 and 2 are for production environments. Because of the urgency involved, Response Times for Severity Levels 1 and 2 are based upon voice contact by Customer, as opposed to written contact by facsimile, email or letter. Resolution Procedures are based upon Motorola's procedures for Service as described below. SEVERITY LEVEL ',! 1 2 3 4 5 Total System Failure - occurs when the System is not functioning and there is no workaround; such as a Central Server is down. Critical Failure - Critical process failure occurs when a crucial element in the System that does not prohibit continuance of basic operations is not functioning and there is usually no suitable work- around. Note that this may not be applicable to intermittent problems. Non- Critical Failure - Non - Critical part or component failure occurs when a System component is not functioning, but the System is still useable for its intended purpose, or there is a reasonable workaround. Inconvenience - An inconvenience occurs when System causes a minor disruption in the way tasks are performed but does not stop workflow. Customer request for an enhancement to System functionality is the responsibility of Motorola's Product Management. Telephone conference within one (1) hour of initial voice notification Telephone conference within three (3) Standard Business Hours of initial voice notification Telephone or email conference within two (2) Standard Business Days of initial notification Telephone or email conference within seven (7) Standard Business Days of initial notification Determined by Motorola's Product Management. TARGET =RESOLUTION'. EM1 Resolve within twenty -four (24) hours of initial notification Resolve within seven (7) Standard Business Days of initial notification Resolve within 180 days in a Motorola - determined Patch or Release. At Motorola's discretion, may be in a future Release. If accepted by Motorola's Product Management, a release date will be provided with a fee schedule, when appropriate. 1.1 Reporting a Problem. Reporting of problems should be funneled through the customer's designated primary point person(s). Customer shall assign an initial Severity Level for each error reported, either verbally or in writing, based upon the definitions listed above. Because of the urgency involved, Severity Level 1 or 2 problems must be reported verbally to the Motorola's call intake center. Motorola will notify the Customer if Motorola makes any changes in Severity Level (up or down) of any Customer - reported problem. PSV MSA, Exhibit B Page 1 1.2 Motorola Response. Motorola will use best efforts to provide Customer with a resolution within the appropriate Target Resolution Time and in accordance with the assigned Severity Level when Customer allows timely access to the System and Motorola diagnostics indicate that a Residual Error is present in the Software. Target Resolution Times may not apply if an error cannot be reproduced on a regular basis on either Motorola's or Customer's Systems. Should Customer report an error that Motorola cannot reproduce, Motorola may enable a detail error capture /logging process to monitor the System. If Motorola is unable to correct the reported Residual Error within the specified Target Resolution Time, Motorola will escalate its procedure and assign such personnel or designee to correct such Residual Error promptly. Should Motorola, in its sole discretion, determine that such Residual Error is not present in its Release, Motorola will verify: (a) the Software operates in conformity to the System Specifications, (b) the Software is being used in a manner for which it was intended or designed, and (c) the Software is used only with approved hardware or software. The Target Resolution Time shall not commence until such time as the verification procedures are completed. 1.3 Error Correction Status Report. Motorola will provide verbal status reports on Severity Level 1 and 2 Residual Errors. Written status reports on outstanding Residual Errors will be provided to System Administrator on a monthly basis. 2. Customer Responsibility. 2.1 Customer is responsible for running any installed anti -virus software. 2.2 Operating System ( "OS ") Upgrades. Unless otherwise stated herein, Customer is responsible for any OS upgrades to its System. Before installing any OS upgrade, Customer should contact Motorola to verify that a given OS upgrade is appropriate. 3. Motorola Responsibility. 3.1 Reserved 3.2 Reserved 3.3 Reserved 3.4 Remote Installation. At Customer's request, Motorola will provide, for a fee, remote installation advice or assistance for Updates. 3.5 Software Release Compatibility. At Customer's request, Motorola will provide: (a) current list of compatible hardware operating system releases, if applicable; and (b) a list of Motorola's Software Supplemental or Standard Releases 3.6 On -Site Correction. Unless otherwise stated herein, all suspected Residual Errors will be investigated and corrected from Motorola's facilities. Motorola shall decide whether on -site correction of any Residual Error is required and will take appropriate action. 4. Reserved 5. Compliance to Local, County, State and /or Federal Mandated Changes. (Applies to Software and interfaces to those Products) Unless otherwise stated herein, compliance to local, county, state and /or federally mandated changes, including but not limited to IBR, UCR, ECARS, NCIC and state interfaces are not part of the covered Services. PSV MSA, Exhibit B Page 2 Maintenance and Support Agreement # Term Start Date TBD CUSTOMER AGENCY Address City, State, Zip Contact Name Contact Title Telephone Number Fax Number Email Address Augusta, Georgia 530 Greene St. Annex 101 Augusta, GA 30901 Mike Blanchard Deputy Director IT 706 - 821 -2862 706 - 821 -2530 Blanchard(a auqustago.gov For support and updates on products below, please contact Motorola Solutions Public Service Application's Customer Support: (800) 323 -9949 Option 2, Option 6, then select the corresponding product prompts as follows: 1 CSR PRODUCTS ` 2 ASSET MANAGEMENT ® ! PremierOne CSRTM ❑ Cityworks ❑ Infor Radio Asset Management ❑ 0 0 MOTOROLA SOLUTIONS SERVICES ® STANDARD SUPPORT SERVICES 1 Customer Support Plan 2 Case Management 24X7 3 Technical Support Monday through Friday 8:00 a.m. to 5:00 p.m. Customer local time 4 Third -party Vendor Coordination 5 On -site Support (when applicable) 6 7 SW Releases: Standard & Supplemental Access to Users Group Site 8 ❑ SUPPLEMENTAL SERVICE OPTIONS Service Descriptions Available Upon Request 1 24x7 Technical Support Svcs 2 Time and Materials 3 Professional Services Training 4 Professional Services Upgrades 5 Preventive Maintenance 6 Users Conference Advance Purchase 7 On -site Support (Dedicated Resource) 8 GeoFile Services PSV MSA, Exhibit C SUPPORT PLAN OPTIONS AND PRICING WORKSHEET Custom Interfaces ❑ Administrative Hearings (■HMS) TERM FEES $ 40,125.00 $ Included $ Included $ Included $ Included $ Included $ Included $ Included MOTOROLA SOLUTIONS TOTAL FEES $ 40,125.00 USERS CONFERENCE ATTENDANCE ADVANCE PURCHASE DETAILS ❑ Users Conference Attendance ($2,650 per Attendee) • Registration fee • Hotel accommodations (booked by Motorola Solutions) • Daily meal allowance (determined by Motorola Solutions guidelines) Page 1 Exhibit C BILLING AGENCY Address City, State, Zip Contact Name Contact Title Telephone Number Fax Number Email Address Term Length Term End Date 12 Months Augusta, Georgia 530 Greene St. Annex 101 Augusta, GA 30901 Mike Blanchard Deputy Director IT 706 - 821 -2862 706- 821 -2530 Blanchard a(� auqustaga.gov THIRD PARTY SERVICES ❑ VENDOR AGENCY: ♦ Product Type /Description: Term Dates: Service Level -Hours of Coverage: - Onsite /Software /Parts: -Other Services: System ID # (if applicable): THIRD PARTY TOTAL FEES DISCOUNT DISCOUNTS $ Year Number Attendees • Roundtrip travel for event (booked by Motorola Solutions) • Rental car (booked by Motorola Solutions) TERM FEES $ BUNDLED SERVICE OPTIONS ❑ MULTI - SYSTEM (x% Discount) $ ❑ MULTI - YEAR (x% Discount) $ ❑ ONE - TIME (x% Discount) $ ❑ OTHER (x% Discount) $ ❑ OTHER (x% Discount) $ TERM GRAND TOTAL* $ 40,125.00 *Excludes taxes if applicable Docume n t A312 TM - 2010 .�: Performance Bond CONTRACTOR: (Name, legal status and address) MOTOROLA SOLUTIONS, INC. 1303 East Algonquin Road Schaumburg, IL 60196 OWNER: (Name, legal status and address) AUGUSTA, GEORGIA 530 Green STreet, Ste 605 August, GA 30901 CONSTRUCTION CONTRACT Date: 9/24/12 Amount: Three Hundred Thirty One Thousand and No /100 - -- Dollars ($331,000.00) Description: (Name and location) Installation of CRM /3 -1 -1 System for City of Augusta BOND Date: 9/27/12 (Not earlier than Construction Contract Date) Amount: Three Hundred Thirty One Thousand and 00/100 Dollars ($ 331,000.00) Modifications to this Bond: DINone CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) `Company MOTOROLA SIR S, I� , BERKLEY RE If Signature: Name ^ Mark Kroh and Title. Vice .President (_Air' addrtronat s : AIA Document A312" — 2010. The American Institute of Architects. SURETY: (Name, legal status and principal place of business) BERKLEY REGIONAL INSURANCE COMPANY 11201 Douglas Ave Urbandale, IA 50322 ❑ See Section 16 (Corporate Seal) L INSURANCE COMPANY Signature Name Susan A. Welsh, Attorney -in -Fact , rtd Title: are last page of this Performance Bond (FOR INFORMATION ONLY — Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Aon Risk Services Central, Inc. (Architect, Engineer or other party:) 200 E. Randolph, 12th Floor Chicago, IL 60601 (312) 381 -1000 Bond No. 0168697 This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. AIA Document A312 -2010 combines two separate bonds, a Performance Bond and a Payment Bond, into one form. This is not a single combined Performance and Payment Bond. 1 § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. § 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Section 3. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise after 1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the Contractor's performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default, tenninates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. § 4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. § 5 When the Owner has satisfied the conditions of Section 3, the Surety shall promptly and at the Surety's expense take one of the following actions: § 5.1 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract, § 5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; § 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or § 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined. make payment to the Owner; or .2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. § 6 If the Surety does not proceed as provided in Section 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Section 5.4, and the Owner refuses the payment or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. AIA Document A312" — 2010. The American Institute of Architects. 2 § 7 If the Surety elects to act under Section 5.1, 5.2 or 5.3. then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price the Surety is obligated, without duplication, for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .2 additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Section 5; and .3 liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non - performance of the Contractor. § 8 If the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Bond. § 9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors and assigns. § 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 11 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 12 Notice to the Surety, tlic Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. § 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 14 Definitions § 14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. § 14.2 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. § 14.3 Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. § 14.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 14.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 15 If this Bond is issued for an agreement between a Contractor and subcontractor, the tenn Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. AIA Document A312" — 2010. The American Institute of Architects. 3 § 16 Modifications to this bond are as follows: (Space is provided below, for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: , Address: AIA Document A312TM' — 2010. The American Institute of Architects. Signature: Namc and Title: , Attorney -in -Fact Address: 4 !AIA Document A312 TM Payment Bond CONTRACTOR: (Name, legal status and address) MOTOROLA SOLUTIONS, INC. 1303 East Algonquin Road Schaumburg, IL 60196 OWNER: (Name,, legal status and address) AUGUSTA, GEORGIA 530 Green STreet, Ste 605 August, GA 30901 CONSTRUCTION CONTRACT Date: 9/24/12 BOND Date: 9/27/12 (Not earlier than Construction Contract Date) Modifications to this Bond: I5Z None ❑ See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: Corporate Seal) Company: MOTOROLA SOLU ..! BERKLEY REG Signature AIA Document A312'^^ — 2010. The American Institute of Architects. SURETY: (Name, legal status and principal place of business) BERKLEY REGIONAL INSURANCE COMPANY 11201 Douglas Ave Urbandale, IA 50322 Amount: Three Hundred Thirty One Thousand and No /100 - -- Dollars ($ 331,000.00) Description: (Name and location) Installation of CRM /3 -1 -1 System for City of Augusta Three Hundred Thirty One Thousand and No /100 - -- Dollars Amount: ($ 331,000.00) Signature: Name t Name Susan A. Welsh, Attorney - in - Fact and Title: Vice Preside Title: (Any additzonai srgnatL.; ,s appear on to ast page of this Payment Bond.) (FOR INFORMATION ONLY — Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Aon Risk Services Central, Inc. (Architect, Engineer or other party.) 200 E. Randolph, 12th Floor Chicago, IL 60601 (312) 381 -1000 2010 Bond No. 0168697 (Corporate Seal) URANCE CO PANY 0 ,,.t This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. AIA Document A312 -2010 combines two separate bonds, a Performance Bond and a Payment Bond, into one form. This is not a single combined Performance and Payment Bond. 5 § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. § 2 If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims, demands, hens or suits to the Contractor and the Surety. § 4 When the Owner has satisfied the conditions in Section 3, the Surety shall promptly and at the Surety's expense defend, indemnify and hold harmless the Owner against a duly tendered claim, demand, lien or suit. § 5 , e Surety's obligations to a Claimant under this Bond shall arise after the following: § 5.1 Claimants, who do not have a direct contract with the Contractor, .1 have furnished a written notice of non - payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last perfonmed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety (at the address described in Section 13). § 5.2 Claimants, who are employed by or have a direct contract with the Contractor. have sent a Claim to the Surety (at the address described in Section 13). § 6 If a notice of non- payment required by Section 5.1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non - payment under Section 5.1.1. § 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: § 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and § 7.2 Pay or arrange for payment of any undisputed amounts. § 7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. § 9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Constniction Contract and to satisfy claims, if any, under any construction perforniance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. AIA Document A312T"' — 2010. The American Institute of Architects. 6 § 10 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. § 11 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 12 No suit or action shall be conunenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 13 Notice and Claims to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the date received. § 14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. § 16 Definitions § 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant; and .8 the total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of the date of the Claim. § 16.2 Claimant. An individual or entity- having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the teens "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. § 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. ALA Document A312" — 2010. The American Institute of Architects. 7 § 16.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. § 18 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: , Address: AIA Document A312 — 2010. The American Institute of Architects. Signature: Name and Title: , Attorney -in -Fact Address: 8 STATE OF ILLINOIS COUNTY OF COOK ACKNOWLEDGEMENT BY SURETY On this 27 day of September, 2012 before me, Meredith C. Covelli, a Notary Public, within and for said County and State, personally appeared Susan A. Welsh to me personally known to be the Attorney -in -Fact of and for Berkley Regional Insurance Company and acknowledged that she executed the said instrument as the free act and deed of said Company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, at my office in the aforesaid County, the day and year in this certificate first above written. C -de. 0 Notary Public in the State of Illinois County of Cook OFFICIAL SEAL MEREDITH C. COVELLI NOTARY PUBLIC, STATE OF ILLINOIS MY COMMISSION EXPIRES 03 -15 -2015 (Seal) NOTICE: The warning found elsewhere in this Power of Attorney affects the validity thereof. Please review carefully. KNOW ALL MEN BY THESE PRESENTS, that BERKLEY REGIONAL INSURANCE COMPANY (the "Company "), a corporation duly organized and existing under the laws of the State of Delaware, having its principal office in Urbandale, Iowa, 7. has made, constituted and appointed, and does by these presents make, constitute and appoint: Sandra M. Martinez, Susan A. Welsh, Joellen M. Mendoza, Richard A. Moore, Jr., Karen Daniel, Marcia K. Cesafsky, Patricia M. Doyle, Christopher P. L Troha, Melissa L. Fortier, Michelle D. Krebs, Linda M. Napolillo or Judith A. Lucky - Eftimov of Aon Risk Services Central of Chicago, IL its true and lawful Attorney -in -Fact, to sign its name as surety only as delineated below and to execute, seal, acknowledge and deliver any and all bonds and undertakings, with the exception of Financial Guaranty Insurance, providing that no single obligation shall exceed Fifty Million and 00 /100 U.S. Dollars (U.S.$50,000,000.00), to the same extent as if such bonds had been duly executed and acknowledged by the regularly elected officers of the Company at its principal office in their own proper persons. v This Power of Attorney shall be construed and enforced in accordance with, and governed by, the laws of the State of Delaware, without giving effect to the principles of conflicts of laws thereof. This Power of Attorney is granted pursuant to the following resolutions which were duly and validly adopted at a meeting of the Board of Directors of the Company held on August 21, 2000: "RESOLVED, that the proper officers of the Company are hereby authorized to execute powers of attorney authorizing and ct qualifying the attorney -in -fact named therein to execute bonds, undertakings, recognizances, or other suretyship obligations on behalf of the Company, and to affix the corporate seal of the Company to powers of attorney executed pursuant hereto; o 5 and further RESOLVED, that such power of attorney limits the acts of those named therein to the bonds, undertakings, recognizances, or other suretyship obligations specifically named therein, and they have no authority to bind the Company except in the manner and to the extent therein stated; and further ° RESOLVED, that such power of attorney revokes all previous powers issued on behalf of the attorney -in -fact named; and • °' further RESOLVED, that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any E power of attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligation of the Company; and such signature and seal when so used shall have the same force and effect as E though manually affixed. The Company may continue to use for the purposes herein stated the facsimile signature of any person or persons who shall have been such officer or officers of the Company, notwithstanding the fact that they may have ceased to be such at the time when such instruments shall be issued." o IN WITNESS WHEREOF, the Company has caused these presents to be signed and attested by its appropriate officers and its n j' corporate seal hereunto affixed this 1 3 day of , , 2012. e 0 (Seal) By �% By Attest: Ira S. Lederman POWER OF ATTORNEY BERKLEY REGIONAL INSURANCE COMPANY WILMINGTON, DELAWARE Senior Vice President & Secretary Berkley Regional Insurance Company . Hafter nior ce President 1 \U. / UTJI a 1 . ) WARNING: THIS POWER INVALID IF NOT PRINTED ON BLUE "BERKLEY" SECURITY PAPER. E STATE OF CONNECTICUT ) c o ) ss: COUNTY OF FAIRFIELD ) Sworn to before me, a Notary Public in the State of Connecticut, this ) 3 day of ,J u , 2012, by Jeffrey M. Hafter and Ira S. Lederman who are sworn to me to be the Senior Vice President, and the Senior Vice President and Secretary, respectively, of ti Berkley Regional Insurance Company. EILEEN KILLEEN (9--— e- e- -Vl--P—t A---1,, . o NOTARY PUBLIC. STATE OF CONNECTICUT Notary Public, State of Connecticut v MY COMMISSION EXPIRES JUNE 30, 2017 CERTIFICATE 7 J I, the undersigned, Assistant Secretary of BERKLEY REGIONAL INSURANCE COMPANY, DO HEREBY CERTIFY that the C ,: foregoing is a true, correct and complete copy of the original Power of Attorney; that said Power of Attorney has not been revoked = or rescinded and that the authority of the Attorney -in -Fact set forth therein, who executed the bond or undertaking to which this Power of Attorney is attached, is in full force and effect as of this date. Given under my hand and seal of the Company, this day of !1.1 ilkto , Oo l a .