HomeMy WebLinkAboutRADIO SERVICES CONTRACT_ SYSTEM MANAGEMENT AGREEMENT tl
SYSTEM MANAGEMENT AGREEMENT
THIS AGREEMENT (the"Agreement")_is made and entered into as of this 17th
day of January 2017 (the "Execution Date"), by and between Motorola, Inc., a Delaware
Corporation ("Motorola") and County of Augusta-Richmond, Georgia, a body politic
("Licensee").
RECITALS
WHEREAS Motorola is in the business of designing, establishing and operating
wireless communications systems; and
WHEREAS Motorola is the manager of the cost sharing, wide-area 800 MHz Trunked
voice radio system throughout portions of South Carolina and Georgia(the"System"); and
WHEREAS Licensee has been issued the necessary licenses (collectively with
any related future authorizations, the "Licenses") by the Federal Communications
Commission (the "FCC") to operate 800 MHz frequencies in South Carolina that
Licensee desires to incorporate into the System. A schedule of the Licenses that Licensee
currently holds are listed on Attachment A; and
WHEREAS Licensee desires to enter into a management arrangement with
Motorola and Motorola desires to assist Licensee in Licensee's continued operations
under the Licenses (the "Licensed Operations"), in accordance with all applicable rules
and regulations of the FCC (collectively, the"FCC Rules"); and
WHEREAS the parties hereto wish to document in this Agreement the terms and
conditions by which Motorola will manage the Licensed Operations on behalf of
Licensee; and
WHEREAS Licensee and Motorola are familiar with the FCC Rules applicable
to the Licensed Operations, and it is the intention of the parties hereto that this
Agreement not diminish any of Licensee's duties and/or responsibilities as an FCC
licensee;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and agree as
follows:
1. APPOINTMENT OF MANAGER
1.1 Appointment. Licensee hereby appoints Motorola to manage the
Licensed Operations as is more fully described herein, and Motorola hereby accepts such
appointment. Motorola shall provide the technical and managerial services set forth in
this Agreement on behalf of Licensee.
1.2 Available Channel Capacity. Provided that the necessary regulatory
approvals are secured and maintained from the FCC and from any other federal, state or
other governmental authority having jurisdiction over Licensee or the Licensed
Operations, Licensee shall make available the full channel capacity of the Licensed
Operations for the duration of this Agreement to allow Motorola to accommodate users
on the System (the "Users") in accordance with the terms and conditions as herein
provided.
2. SERVICES
2.1 In General. Subject to the general authority and oversight of Licensee,
Motorola shall be responsible for the operation of the Licensed Operations. Motorola's
responsibilities shall include managing, overseeing, arranging for and directing the
planning, design, construction equipping and operation of the Licensed Operations as part
of the System, all of the foregoing being subject to the general authority of Licensee. On
Licensee's behalf, Motorola shall be responsible for contracting with, and collecting fees
from, Users of the System. Motorola shall use its best efforts consistent with sound and
reasonable practice to conduct (or cause to be conducted) such business and to render(or
cause to be rendered), assist with, obtain or contract for all services, as shall be necessary
for the planning, design, construction, equipping and operation of the Licensed
Operations as part of the System, including without limitation,the following:
(a) Generally providing management services to perform all of the day-to-day
functions associated with the Licensed Operations and doing or assisting with any and all
other acts or executing such other agreements, documents or instruments as are consistent
with the FCC Rules and, in the good faith judgment of Motorola, are necessary to carry
out the development, construction and operation of the Licensed Operations as part of the
System, whether or not specifically enumerated herein;
(b) The hiring and supervision of Motorola personnel and any subcontractors
necessary to operate the Licensed Operations;
(c) Payment of all expenses and fees incurred or payable by the Licensed
Operations as part of the System as provided in Section 2.4 hereof;
(d) Arranging for the maintenance of the Licensed Operations according to
standards consistent with FCC Rules, and for the provision of necessary repairs and
replacements, as provided in Section 2.4 hereof;
(e) Assisting Licensee in preparing, maintaining and submitting any
applications, reports, notices or other documentation related to the System required by the
FCC Rules; and
(f) Providing for appropriate office recordkeeping, bookkeeping and internal
accounting services and arranging for and/or overseeing outside accounting services.
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2.2 Control. Motorola understands that discretion, control over and
responsibility for the Licensed Operations shall remain vested in Licensee. Licensee will
supervise Motorola's activities and will retain control over the Licensed Operations as
required under applicable FCC rules and regulations.
2.3 Consolidation. In arranging for the provision of goods and services to
Licensee, including, without limitation, the services referred to in Section 2.1 hereof,
Motorola may make arrangements to consolidate the purchase of such goods and services
with purchases for other 800 MHz systems owned, operated or managed by Motorola or
its affiliates; provided that all such purchases are on terms no less favorable than could be
obtained by Motorola for Licensee on an unconsolidated basis.
2.4 Expenses. Licensee and Motorola agree that Motorola shall be
responsible for all fees and expenses arising from day-to-day operation and maintenance
of the System. As part of this day-to-day system maintenance, Motorola shall maintain,
repair and replace existing equipment to the extent necessary to satisfy system
performance standards required under the 800 MHz Trunking Agreement, dated
November 15, 1995, by and between the Office of Information Resource Management of
the State of South Carolina Budget and Control Board and SCI ("the State Contract").
Collectively, all of these fees and expenditures referred to in this subsection are the
"Expenses"of the System.
2.5 System Expansions or Upgrades.
(a) The parties hereto acknowledge that, during the term of this Agreement,
Motorola may recommend expansions of or upgrades to the Licensed Operations, their
capabilities and equipment (including additional licenses, equipment and software related
thereto). Motorola shall advise Licensee of such proposed expansions or upgrades at the
periodic meetings of the Users Advisory Committee, of which Licensee is a member and
whose meeting Motorola is hereby authorized to attend. Unless Licensee objects to a
proposed expansion or upgrade at the meeting at which it is presented, Licensee shall be
deemed to have consented to the enhancement and shall cooperate with Motorola to
implement the expansion or upgrade, including applying for any necessary FCC or other
governmental authorizations or permits. Prior to, and as a condition of, the
implementation of these expansions or upgrades, the parties must agree on the allocation
of costs for these enhancements.
(b) The parties hereto acknowledge that, during the term of this Agreement,
Licensee may recommend expansions of or upgrades to the Licensed Operations, their
capabilities and equipment (including additional licenses, equipment and software related
thereto). To the extent such expansions or upgrades are New Construction as defined in
and required under Section 2.3 of the State Contract, Motorola will implement such New
Construction and be responsible for all capital expenditures associated therewith. To the
extent such expansions or upgrades are not New Construction required under Section 2.3
of the State Contract, Motorola will not be obligated to implement such New
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Construction unless and until Licensee provides to Motorola monies that cover all costs
of implementing such New Construction.
3. WIDE-AREA NETWORK; EXLUSIVE AGENT; COOPERATION; BEST
EFFORTS
3.1 Wide-Area Network.
(a) Licensee acknowledges that Motorola desires to incorporate the Licensed
Operations into a wide-area system to be managed and operated by Motorola and to
install additional Users on the System who are eligible, or may become eligible in the
future, to utilize the System pursuant to the FCC Rules, provided, however, that any such
additional User is a Public Safety or Industrial/Land Transportation eligible as defined by
the FCC's Rules. Licensee agrees to allow Motorola to take such actions upon receipt of
the necessary regulatory approvals from the FCC and from any other federal, state,
county, municipal or other governmental authority having jurisdiction over Licensee or
the System, to allow Motorola to incorporate the Licensed Operations into the System.
Accordingly, Licensee agrees to share the Licensed Operations with current and future
licensees on the System in accordance with Section 90.179 of the FCC's Rules, 47 C.F.R.
§ 90.179 (1995).
(b) Provided that the necessary regulatory approvals are secured from the
FCC and from any other federal, state or other governmental authority having jurisdiction
over Licensee or the System, Licensee grants Motorola the right to (i) combine the
channels of Licensee's Licensed Operations with other channels of the System, and (ii)
connect Licensee's channels into the System, if Motorola so chooses. To the extent
necessary or appropriate to facilitate or implement Motorola's management and operation
of the System, Licensee will cooperate in the execution of any other agreements as
Motorola from time to time may reasonably request.
(c) All Expenses incurred by Motorola and allocated to the Licensed
Operations shall be accounted for by Motorola, including without
limitation any Management Fee(hereinafter defined).
3.2 Exclusive Agent. Subject to Section 3.1 hereof, Motorola shall act as
Licensee's exclusive agent with respect to operating the System and providing service to
Users. Motorola's agency authority includes without limitation the authority to enter into
new written agreements with additional Users, as required by FCC Rule 90.179(d), for
the purpose of sharing the Licensed Operations with Licensee on a cost shared basis. It is
understood that nothing herein shall prevent Motorola from selling mobile equipment,
maintenance or other services on such equipment to Users who may utilize capacity on
the System.
3.3 Customer Loading and System Construction. Subject to the provisions
of Section 3.1(a) hereof, the parties hereto shall cooperate with respect to the future use
of the System by Users and the loading of Users on the System and any expansions
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thereof as provided for herein. Licensee understands and acknowledges that under
current FCC Rules, the channels must be constructed and placed in operation within one
year of the date of the grant of any licenses for the System. Accordingly, Licensee shall
take all reasonable steps necessary to assist Motorola in achieving that end with respect to
the Licensed Operations.
4. FCC MATTERS
4.1 Control. Licensee is the holders of the Licenses to provide the Licensed
Operations. As required under applicable FCC Rules, Licensee shall supervise
Motorola's activities and exercise control thereof over the Licensed Operations. It is
expressly agreed and understood that nothing in this Agreement is intended to or will
constitute a transfer of"control" (as defined in the FCC Rules and decisions of the FCC)
of any of the Licenses from Licensee to Motorola or to any other person.
4.2 Reports. Licensee will prepare, maintain and submit, as applicable, in
accordance with FCC rules and regulations, all applications, reports, notices and/or other
documentation required to provide the Licensed Operations. Motorola shall assist
Licensee in preparing maintaining and submitting any such applications, reports, notices
and other documentation.
4.3 Authorizations. Licensee, with Motorola's assistance, shall be
responsible for obtaining any licenses or other authorizations required by the FCC to
provide the Licensed Operations and approved expansions thereto. With Motorola's
assistance, Licensee shall also be responsible for complying with the FCC Rules and with
the rules and regulations of any federal, state or local regulatory agency with jurisdiction
over Licensee and the Licensed Operations. Licensee shall provide notice to Motorola of
any FCC correspondence or inquiries on matters that relate to the Licenses, the Licensed
Operations, or System within ten(10) days of Licensee's receipt of same.
4.4 Compliance. Motorola shall be responsible for assuring that all work
performed and required of Motorola, as set forth under this Agreement shall be in
substantial compliance with all applicable laws and FCC Rules. Similarly, Licensee
agrees to comply with all applicable laws and FCC Rules.
4.5 Agreement. In the event that the FCC determines that any provision of
this Agreement, or the relationship between Motorola and Licensee created hereby,
violates any applicable FCC Rules, the parties hereto shall immediately make good faith
and diligent efforts to bring this Agreement or such relationship into compliance with
such FCC Rules, and any applicable FCC order relating thereto, subject to the provisions
of Section 13.10 hereof.
5. USER FEES
Motorola shall assess fees for Users of the System ("User Fees") according to the
rate schedule attached as Attachment B hereto and will maintain such fee schedule in
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effect without increase through June 30, 2017. Thereafter, Motorola shall have the
authority to establish User Fees during the term of this Agreement that reflect the costs of
operating, maintaining and developing the System, including without limitation a
Management Fee paid to Motorola as hereinafter defined. All User Fees will be paid
directly to Motorola by the Users, pursuant to agreements between Motorola and each
User of the System.
6. MANAGEMENT FEE
Motorola shall be entitled to a fee for management of the Licensed Operations
(the"Management Fee") equal to the excess of total gross revenues of the System less all
Expenses paid or incurred by Motorola on behalf of or otherwise allocated to the System
and/or the Licensed Operations during the term of the Agreement.
7. TERM;
7.1 Term; Except as provided in Sections 7.2 and 7.3 hereof, the term of this
Agreement shall commence upon the Execution Date and will remain in full force and
effect for a period of two (2) years provided that either Motorola or the User may
terminate this Agreement, in whole or in part, at any time for the convenience upon
written notice to the other party thirty (30) days prior to the date of termination with any
such notice being sent by certified mail to the address indicated herein. At any time, this
Agreement may be terminated immediately and without notice if the frequency
authorization(s) (which may be held by User, Motorola, a Licensee or any other licensee)
under which the Wide-Area Network operates is(are)revoked by the FCC.
7.2 Termination by Breach.
(a) In the event of material breach of the Agreement by Motorola, and
Motorola's failure to cure the breach within 30 days of receipt of written notice by
Licensee regarding such breach, Licensee may elect to terminate the Agreement. Such
termination will be effective 30 days after Motorola's receipt of written notice from
Licensee expressing its intent to terminate the Agreement.
(b) In the event of material breach of the Agreement by Licensee, and
Licensee's failure to cure the breach within 30 days of receipt of written notice by
Motorola regarding such breach, Motorola may elect to terminate the Agreement. Such
termination will be effective 30 days after Licensee's receipt of written notice from
Motorola expressing its intent to terminate the Agreement.
7.3 Use of Licensed Operations. It is understood and agreed that upon
termination of this Agreement, Motorola shall have no further right to manage the
Licensed Operations. Motorola shall execute and/or file any document or instrument
necessary to evidence such termination.
8. REPRESENTATIONS; WARRANTIES; COVENANTS
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8.1 Licensee. Licensee represents and warrants that it: (a) is the duly
authorized licensee of the FCC Licenses in Attachment A (the "Licenses") and is duly
qualified under all laws, rules and regulations to hold such Licenses, (b) is the sole owner
and real-party-in-interest of the Licenses and that no other party has an interest of any
kind in such Licenses, (c) has the requisite authority and/or capacity, as applicable, to
perform its undertakings pursuant to this Agreement, (d) is familiar with the applicable
rules and regulations of the FCC, including without limitation those requiring that a
licensee retain control of its licenses, (e) is aware of no impediment to the performance of
its undertakings hereunder, and (f) shall maintain the Licenses in full force and effect and
as part of the System for the full term of this Agreement. Licensee further represents that
the Licensed Operations for the Licenses, as currently being provided, are consistent with
the Licenses and are fully compliant with the applicable laws and FCC Rules.
8.2 Motorola. Motorola represents that it: (a) is a corporation organized and
existing under the laws of the State of Delaware and is duly authorized and in good
standing under the laws of the State of Delaware; (b) has the requisite authority to
perform its undertakings pursuant to this Agreement; and (c) is familiar with the
applicable FCC Rules and is aware of no impediment to the performance of its
undertakings hereunder.
9. INSURANCE
Motorola shall enter into a program of self insurance for the System, including the
Licensed Operations, to protect Motorola and the Licensee against any liability
occasioned by accident or disaster arising as a result of Motorola's actions under the
Agreement or Motorola's breach of the Agreement.
10. INDEMNIFICATION
10.1 Licensee. Licensee agrees to defend, indemnify and hold Motorola and
Motorola's employees, agents, attorneys and principals free and harmless from and
against all claims, costs, expenses, demand, attorneys' fees and disbursements, suits,
liabilities,judgments and damages arising from or relating to this Agreement, the System,
the Licensed Operations or the breach by Licensee of any agreement, term, undertaking,
covenant, representation or warranty hereunder, except to the extent: (a) Motorola is
contractually obligated to pay for them, or (b) they arise from Motorola's gross
negligence or willful misconduct. Notwithstanding anything to the contrary herein, the
provisions of this Section 10.1 shall survive the termination of this Agreement for a
period of two (2) years.
10.2 Motorola. Motorola agrees to defend, indemnify and hold Licensee and
Licensee's employees, agents, attorneys and principals free and harmless from and
against all claims, costs, expenses, demand, attorneys' fees and disbursements, suits,
liabilities,judgments and damages arising from or relating to this Agreement, the System,
the Licensed Operations or the breach by Motorola of any agreement, term, undertaking,
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covenant, representation or warranty hereunder, except to the extent: (a) Licensee is
contractually obligated to pay for them, or (b) they arise from Licensee's gross
negligence or willful misconduct. Notwithstanding anything to the contrary herein, the
provisions of this Section 10.2 shall survive the termination of this Agreement for a
period of two (2) years.
11. OTHER INTERESTS AND CONFLICTS
Motorola and its affiliates may engage in, or possess an interest in, other business
ventures of any nature or description, independently or with others, whether currently
existing or hereafter created, including the acquisition, construction, management,
operations and sale of 800 MHz systems, and Licensee shall not have any rights in or to
such independent ventures or the income or profits derived therefrom.
12. FORCE MAJEURE
No party hereto shall be liable for delays in performance, or for failure to perform,
due to: acts of God, acts of a public enemy, acts or failures to act on the part of any other
party, acts by civil or military authority, governmental priorities, strikes or other labor
disturbances; earthquakes, fires, floods, epidemics, embargoes, war, riot, delays in
transportation, car shortages and loss or damage beyond the reasonable control of either
party or its suppliers to obtain necessary materials, components, service of Licensed
Operations, provided, however, that this force majeure limitation shall not apply to
claims brought by unrelated third parties against Licensee.
13. MISCELLANEOUS
13.1 Survival. All of the representations, warranties and covenants of the
parties hereto contained in this Agreement and in any exhibit shall survive for a period of
two (2) years after this Agreement is terminated.
13.2 No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto.
13.3 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties hereto and supersedes any prior understandings, agreements, or
representations by or between the parties, written or oral, that may have related in any
way to the subject matter hereof.
13.4 Succession. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns.
13.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which, when executed, shall be deemed an original and all of which
together will constitute one and the same instrument. This Agreement shall be binding
upon the transmission by facsimile by each party of a signed signature page thereof to the
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other party. If such transmission occurs, the parties hereto shall each also immediately
post, by overnight courier, a fully executed counterpart of the Agreement to the other
party.
13.6 Headings; Construction. The section headings contained in this
Agreement are inserted for reference and convenience purposes only and shall not affect
in any way the meaning or interpretation of this Agreement nor be deemed to constitute a
part hereof. This Agreement has been fully reviewed and negotiated by the parties hereto
and their respective counsel. Accordingly, in interpreting this Agreement, no weight
shall be placed upon which party or its counsel drafted or controlled the drafting of the
provisions being interpreted.
13.7 Notices. All notices, requests, demands, communications or information
which are required to be or may be given under or in connection with this Agreement
shall be in writing and shall be deemed given when delivered personally or by facsimile
copy(with transmission confirmed), or upon receipt (or on the date rejected or returned if
not accepted) after dispatch by certified or registered first class mail, postage prepaid,
return receipt requested, directed to the party to whom the same is so given or made at the
address or facsimile number of such party as hereinafter set forth or such other address or
facsimile number as the parties hereto may hereinafter designate:
To Motorola:
Motorola Solutions, Inc.
6 Harbison Way
Columbia, SC 29212
Attention: Jim Weih
Fax No. 803-749-8149
Telephone: 803-407-5602
To Licensee:
Augusta, Georgia
Mayor Hardie Davis, Jr.
535 Telfair Street—Suite 200
Augusta, GA 30901
With Additional copy to:
Tameka Allen
Director of Information Technology
Contract Administrator
Information Technology Department
535 Telfair Street—Building 2000
Augusta, GA 30901
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13.8 Governing Law. This Agreement, its validity and all rights, obligations,
liabilities and responsibilities of the parties hereto, shall be governed and interpreted in
accordance with the laws of the State ( SC ) and the FCC Rules. All claims, disputes,
and other matters in question between Motorola and Licensee arising out of or relating to
this Agreement, or breach thereof, shall be decided in the Circuit Court of ( )
County. Motorola and Licensee, in executing this Agreement, specifically consent to
venue in Circuit Court of( ) County and waive any right to contest the venue in
Circuit Court of( ) County.
13.9 Amendments. No amendment of any provision of this Agreement shall
be valid unless the same shall be an instrument in writing and signed by Motorola and
Licensee.
13.10 Severability. Any term or provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this Agreement
that is or shall be deemed invalid or unenforceable in any situation in any jurisdiction
shall be ineffective to the extent of such invalidity only and stricken as though never
written, without in any way affecting the validity or enforceability of the remaining terms
and provisions in any other situation or in any other jurisdiction; provided that if the
remaining parts materially alter the benefits of the Agreement for either party, the parties
shall use their best efforts to promptly modify the terms of this Agreement in order to
achieve the intended result while maintaining compliance with the law.
13.11 Other Expenses. Motorola and Licensee each will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby. Motorola and Licensee shall each be
responsible for any broker fees incurred by them in connection with transactions
contemplated hereby. To the extent that a party may have any liability to a broker or any
other liability, that liability should be and remains the sole liability of that party and that
party shall indemnify and hold harmless the other party from any liability related to such
broker.
13.12 Specific Performance. Each of the parties acknowledges and agrees that
the other party would be damaged irreparably in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or otherwise are
breached. Accordingly, each of the parties agrees that the other party shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of this Agreement and
to enforce specifically this Agreement and the terms and provisions hereof in any action
instituted in the Circuit Court of( ) County, in addition to any other remedy to
which it may be entitled, at law or in equity.
13.13 Waivers. No action or inaction taken at any time pursuant to this
Agreement, including the failure to require performance of any obligation provided for in
this Agreement or any investigation by or on behalf of either party, shall in any way
affect the right to require such performance at any time thereafter or be deemed to
constitute a waiver by the party taking or not taking such action of compliance with any
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representation, warranty, covenant or agreement contained herein and/or in any exhibit.
The waiver by either party hereto of any default, misrepresentation or breach of any
provision of this Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach of the same or any other such provision or constitute a waiver of the
responsibility or obligation itself.
13.14 Assignment. The rights and obligations of Licensee under this
Agreement shall not be assignable without the written consent of Motorola, which
consent shall not be unreasonably withheld. Similarly, the rights and obligations of
Motorola under this Agreement shall not be assignable by Motorola without the written
consent of Licensee, which consent shall not be unreasonably withheld. However,
Motorola may assign such rights and obligations hereunder to any affiliate without
Licensee's consent.
13.15 Cooperation. Each of the parties hereto shall cooperate with the others
and take such steps and execute such documents as may be necessary from time to time
to effectuate the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
the Execution Date.
MOTOROL/__ NC.
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Nam-: Jim Weih
Title: Director of Operations
COUNTY OF AUGUSTA-RICHMOND
By: eiinvv -
iix Name: Hardie Davis,Jr.
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ATTACHMENT A
Schedule of Licenses
WPQG882 North Augusta—trunking channels 1 — 11
WPMA541 Augusta—trunking channels 1 — 10; 1 Data
WPJY894 Blythe—trunking channels 1 —9; 1 Data
WPMA550 McBean—trunking channels 1 —9; 1 Data
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ATTACHMENT B
Rate Schedule
STATE RATE
(See Exhibit D of the 800 MHz User Agreement)
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