HomeMy WebLinkAboutPURCHASE OF A LMRS, CUSTOMER SUPPORT CONTRACT WITH AUGUSTA COMMUNICATIONS, INC., ONGOING OPERATING EXPENSES, REVENUE COLLECTIONS, AND SUPPORT PERSONNEL Communications System And Services Agreement
Motorola Solutions, Inc. ("Motorola") and Augusta, Georgia ("Customer") enter into this "Agreement,"
pursuant to which Customer will purchase and Motorola will sell the System and Services, 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:
Section 1 ATTACHMENTS
1.1. EXHIBITS. The Exhibits listed below are exhibits related to the System sale and
implementation. These Exhibits are incorporated into and made a part of this Agreement in reference to
RFP 18-120.
Exhibit A "Motorola Software License Agreement"
Exhibit B "Payment Schedule"
Exhibit C Motorola's Proposal dated February 8, 2017
Exhibit D "System Acceptance Certificate"
Exhibit E "Section 12 RFP Clarifications"
1.2. Customer may elect to purchase professional or subscription services in addition to the System
and related services. Any such services will be governed by the terms in the main body of the Agreement
and an applicable Addendum containing terms specific to such service. Such Addendums will be labeled
with the name of the service being purchased.
1.3 In interpreting this Agreement and resolving any ambiguities: 1) Exhibit C and Exhibit E take
precedence over the main body of this Agreement and any other exhibits and any inconsistencies between
Exhibit C and Exhibit E will be resolved by Exhibit E taking precedence; and 2) The applicable service
Addendum will take precedence over the main body of the Agreement and the Exhibits
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
"Acceptance Tests" means those tests described in the Acceptance Test Plan.
"Addendum (Addenda)" is the title of the document(s) containing a specific set of terms and conditions
applicable to a particular service or other offering beyond the communication System and System
implementation services. The terms in the Addendum are applicable only to the specific service or offering
described therein.
"Administrative User Credentials" means an account that has total access over the operating system,
files, end user accounts and passwords at either the System level or box level. Customer's personnel with
access to the Administrative User Credentials may be referred to as the Administrative User.
"Beneficial Use" means when Customer first uses the System or a Subsystem for operational purposes
(excluding training or testing).
"Confidential Information" means all information consistent with the fulfillment of this Agreement that is
(i) disclosed under this Agreement in oral, written, graphic, machine recognizable, and/or sample form,
being clearly designated, labeled or marked as confidential or its equivalent or(ii)obtained by examination,
testing or analysis of any hardware, software or any component part thereof provided by discloser to
recipient. The nature and existence of this Agreement are considered Confidential Information. Confidential
Information that is disclosed orally must be identified as confidential at the time of disclosure and confirmed
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by the discloser by submitting a written document to the recipient within thirty (30) days after such
disclosure. The written document must contain a summary of the Confidential Information disclosed with
enough specificity for identification purpose and must be labeled or marked as confidential or its equivalent.
"Contract Price" means the price for the System and implementation Services, excluding applicable sales
or similar taxes and freight charges. Further, unless otherwise stated in Exhibit B, "Payment Schedule" or
the pricing pages of the proposal, recurring fees for maintenance, SUA, or subscription services are not
included in the Contract Price.
"Deliverables" means all written information (such as reports, specifications, designs, plans, drawings,
analytics, Solution Data, or other technical or business information)that Motorola prepares for Customer in
the performance of the Services and is obligated to provide to Customer under this Agreement. The
Deliverables, if any, are more fully described in the Statement of Work.
"Derivative Proprietary Materials" means derivatives of the Proprietary Materials that Motorola may from
time to time, including during the course of providing the Services, develop and/or use and/or to which
Motorola provides Customer access.
"Effective Date" means that date upon which the last Party executes this Agreement.
"Equipment" means the hardware components of the Solution that Customer purchases from Motorola
under this Agreement. Equipment that is part of the System is described in the Equipment List.
"Force Majeure" means an event, circumstance, or act that is beyond a Party's reasonable control, such
as an act of God, an act of the public enemy,an act of a government entity, strikes,other labor disturbances,
supplier performance, hurricanes,earthquakes,fires,floods, epidemics, embargoes,war, riots, or any other
similar cause.
"LMRS" means land mobile radio system.
"Motorola Software" means software that Motorola or its affiliated companies owns.
"Non-Motorola Software" means software that a party other than Motorola or its affiliated companies
owns.
"Open Source Software" (also called "freeware" or "shareware") means software with either freely
obtainable source code, license for modification, or permission for free distribution.
"Proprietary Materials" means certain software tools and/or other technical materials, including, but not
limited to, data, modules, components, designs, utilities, subsets, objects, program listings, models,
methodologies, programs, systems, analysis frameworks, leading practices and specifications which
Motorola has developed prior to, or independently from, the provision of the Services and/or which Motorola
licenses from third parties.
"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.
"Services" means system implementation, maintenance, support, subscription, or other professional
services provided under this Agreement, which may be further described in the applicable Addendum
and/or SOW.
"Software" (i) means proprietary software in object code format, and adaptations, translations, de-
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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.
"Software Support Policy" ("SwSP") means the policy set forth at
http://www.motorolasolutions.com/softwarepolicy describing the specific technical support that will be
provided to Customers under the Warranty Period and during any paid maintenance support period for
Motorola Software. This policy may be modified from time to time at Motorola's discretion.
"Solution" means the combination of the System(s) and Services provided by Motorola under this
Agreement.
"Solution Data" means Customer data that is transformed, altered, processed, aggregated, correlated or
operated on by Motorola, its vendors or other data sources and data that has been manipulated or retrieved
using Motorola know-how to produce value-added content to data consumers, including customers or
citizens which is made available to Customer with the Solution and Services.
"Specifications" means the functionality and performance requirements that are described in Exhibit C.
"SUA" means Motorola's Software Upgrade Agreement program.
"Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in Exhibit C.
"System" means the Equipment, including incidental hardware and materials, Software, and design,
installation and implementation services that are combined together into an integrated system; the
System(s) is (are) described in Exhibit C.
"System Acceptance" means the Acceptance Tests have been successfully completed.
"Warranty Period" for System Hardware, Software, or services related to system implementation means
one (1) year from the date of System Acceptance or Beneficial Use, whichever occurs first. Unless
otherwise stated in the applicable Addendum, Warranty Period for other Services means ninety (90) days
from performance of the Service.
Section 3 SCOPE OF AGREEMENT AND TERM
3.1. SCOPE OF WORK. Motorola will provide, install and test the System(s), and perform its other
contractual responsibilities to provide the Solution, all in accordance with this Agreement and Exhibit "E"
attached hereto. Customer will perform its contractual responsibilities in accordance with this Agreement.
Motorola shall perform all Services under this Agreement in a skillful and competent manner, exercising
high standard of skill, quality, and care while doing so.
3.2. CONVERSION OF CURRENT MOTOROLA CUSTOMERS. Motorola shall assist Customer with the
transition of non-Augusta LMRS clients of Motorola within the projected and/or actual footprint of
Customer's LMRS. Such assistance shall include, but is not limited to, the provision of current non-Augusta
LMRS client list, assistance with notification of such clients of the conversion, coordination between
Motorola and Customer to transition non-Augusta LMRS clients, assistance with contract negotiations
between Customer and non-Augusta LMRS clients, and any necessary access to sites that is required to
effectuate the transition of non-Augusta LMRS clients to Customer's LMRS. Further, Motorola warrants
and assures that it has no intent to continue to operate LMRS services for its current clients within the
projected and/or actual footprint of the Customer's LMRS.
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3.3 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 or applicable
subscription fees, Performance Schedule, or both, and will reflect the adjustment in a change order or
Addendum. Neither Party is obligated to perform requested changes unless both Parties execute a written
change order.
3.4. 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 Project Acceptance or expiration of the Warranty Period, whichever occurs last. The
term and the effective date of recurring Services will be set forth in the applicable Addendum.
At the end of the first year of the Agreement and each year thereafter, a CPI percentage change calculation
shall be performed. Should the annual inflation rate increase greater than 5% during the previous year,
Motorola shall have the right to increase all future maintenance prices by the CPI increase amount
exceeding 5%. The Midwest Region Consumer Price Index(http://www.bls.gov/ro5/cpimid.htm), All items,
Not seasonally adjusted shall be used as the measure of CPI for this price adjustment. Measurement will
take place once the annual average for the new year has been posted by the Bureau of Labor Statistics.
3.5. ADDITIONAL EQUIPMENT OR SOFTWARE. For three (3) years after the expiration date of the
Agreement, Customer may order additional Equipment or Software, if it is then available. Each purchase
order must refer to this Agreement, the expiration date of the Agreement, and must specify the pricing and
delivery terms. The Parties agree that, notwithstanding expiration of the Agreement, 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 or Software. Additional or contrary terms in the purchase order will be inapplicable, unless
signed by both parties. Title and risk of loss to additional Equipment will pass at shipment, warranty will
commence upon delivery, and payment is due within thirty (30) days after the invoice date. Motorola will
send Customer an invoice as the additional Equipment is shipped or Software is licensed. Alternatively,
Customer may register with and place orders through Motorola Online ("MOL"), and this Agreement will be
the"Underlying Agreement"for those MOL transactions rather than the MOL On-Line Terms and Conditions
of Sale. MOL registration and other information may be found at
https://businessonline.motorolasolutions.com and the MOL telephone number is (800) 814-0601.
3.6. Motorola SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
Customer solely in accordance with the Motorola Software License Agreement in Exhibit A ("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.
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
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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 SERVICES
4.1. If Customer desires and Motorola agrees to continue Services beyond the Term, Customer's
issuance and Motorola's acceptance of a purchase order for Services will serve as an automatic extension
of the Agreement for purposes of the continuing Services. Only the terms and conditions applicable to the
performance of Services will apply to the extended Agreement.
4.2. MAINTENANCE, SUPPORT, AND SUA SERVICES. During the Warranty Period, in addition to
warranty services, Motorola will provide maintenance Services for the Equipment and support for the
Motorola Software pursuant to the Statement of Work set forth in the Maintenance and Support Addendum.
Support for the Motorola Software will be in accordance with Motorola's established Software Support
Policy. Copies of the SwSP can be found at http://www.motorolasolutions.com/softwarepolicy and will be
sent by mail, email or fax to Customer upon written request. Maintenance Services and support during the
Warranty Period are included in the Contract Price. If Customer wishes to purchase 1) additional
maintenance or software support services during the Warranty Period; or 2) continue or expand
maintenance, software support, installation, and/or SUA services after the Warranty Period, Motorola will
provide the description of and pricing for such services in a separate proposal document. Unless otherwise
agreed by the parties in writing, the terms and conditions in this Agreement applicable to those
maintenance, support, installation, and/or SUA Services, will be included in the Maintenance and Support
Addendum, SUA Addendum, the applicable Statements of Work, and the proposal. These collective terms
will govern the provision of such Services.
To obtain any such additional Services, Customer will issue a purchase order referring to this Agreement
and the separate proposal document. Omission of reference to this Agreement in Customer's purchase
order will not affect the applicability of this Agreement. Motorola's proposal may include a cover page
entitled "Service Agreement" or "Installation Agreement", as applicable, and other attachments. These
cover pages and other attachments are incorporated into this Agreement by this reference.
4.3. UNEARNED DISCOUNTS. If the Customer terminates this Agreement before the end of the Term,
for any reason other than Motorola default, then the Customer will pay to Motorola an early termination fee
equal to the discount applied to the last three (3) years of service payments for the original Term. Annual
discounts for the Term can be found on the Pricing exhibit.
4.4. PROFESSIONAL AND SUBSCRIPTION SERVICES. If Customer purchases professional or
subscription Services as part of the Solution, additional or different terms specific to such Service will be
included in the applicable Addendum and will apply to those Services. Customer may purchase additional
professional or subscription services by issuing a purchase order referencing this Agreement and
Motorola's proposal for such additional services.
4.5. Any information in the form of specifications, drawings, reprints, technical information or otherwise
furnished to Customer in providing Services under this Agreement or data viewed, accessed, will remain
Motorola's property, will be deemed proprietary, Confidential Information. This Confidential Information will
be promptly returned at Motorola's request.
4.6. TOOLS. All tools, equipment, dies, gauges, models, drawings or other materials paid for or
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furnished by Motorola for the purpose of providing Services under this Agreement will be and remain the
sole property of Motorola. Customer will safeguard all such property while it is in Customer's custody or
control, be liable for any loss or damage to this property, and return it to Motorola upon request. This
property will be held by Customer for Motorola's use without charge and may be removed from Customer's
premises by Motorola at any time without restriction. Upon termination of the contract for any reason,
Customer shall return to Motorola all equipment delivered to Customer.
4.7. COVENANT NOT TO EMPLOY. During the term of this Agreement and continuing for a period of
two (2) years thereafter, Customer will not hire, engage on contract, solicit the employment of, or
recommend employment to any third party of any employee of Motorola or its subcontractors without the
prior written authorization of Motorola. This provision applies only to those employees of Motorola or its
subcontractors who are responsible for rendering Services under this Agreement. If this provision is found
to be overly broad under applicable law, it will be modified as necessary to conform to applicable law.
4.8. CUSTOMER OBLIGATIONS. If the applicable Statement of Work or Addendum contains
assumptions that affect the Services or Deliverables, Customer will verify that they are accurate and
complete. Any information that Customer provides to Motorola concerning the Services or Deliverables will
be accurate and complete in all material respects. Customer will make timely decisions and obtain any
required management approvals that are reasonably necessary for Motorola to perform the Services and
its other duties under this Agreement. Unless the Statement of Work states the contrary, Motorola may
rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any
assumptions and Customer-provided information, decisions and approvals described in this paragraph.
4.9. ASSUMPTIONS. If any assumptions or conditions contained in this Agreement, applicable
Addenda or Statements of Work prove to be incorrect or if Customer's obligations are not performed,
Motorola's ability to perform under this Agreement may be impacted and changes to the Contract Price,
subscription fees, project schedule, Deliverables, or other changes may be necessary.
4.10. NON-PRECLUSION. If, as a result of the Services performed under this Agreement, Motorola
recommends that Customer purchase products or other services, nothing in this Agreement precludes
Motorola from participating in a future competitive bidding process or otherwise offering or selling the
recommended products or other services to Customer. Customer represents that this paragraph does not
violate its procurement or other laws, regulations, or policies.
4.11. PROPRIETARY MATERIALS. Customer acknowledges that Motorola may use and/or provide
Customer with access to Proprietary Materials and Derivative Proprietary Materials. The Proprietary
Materials and the Derivative Proprietary Materials are the sole and exclusive property of Motorola and
Motorola retains all right, title and interest in and to the Proprietary Materials and Derivative Proprietary
Materials.
4.12. ADDITIONAL SERVICES. Any services performed by Motorola outside the scope of this
Agreement at the direction of Customer will be considered to be additional Services which are subject to
additional charges. Any agreement to perform additional Services will be reflected in a written and executed
change order, Addendum or amendment to this Agreement.
Section 5 PERFORMANCE SCHEDULE
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. Motorola
shall use commercially reasonable efforts to complete the services covered under and pursuant to this
Agreement as directed by the Customer's Project Manager by the date of project completion as described
in Exhibit"C" and Exhibit"E."
Section 6 CONTRACT PRICE, PAYMENT AND INVOICING
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6.1. Customer affirms that a notice to proceed is required to begin contract performance and will be issued
within five (5) business days of contract execution; however, for subsequent years of service, if any, that
Customer will appropriate funds according to the Payment Schedule. The Customer will pay all invoices
as received from Motorola and any changes in scope will be subject to the change order process as
described in this Agreement. At the time of execution of this Agreement, the Customer will provide all
necessary reference information to include on invoices for payment in accordance with this Agreement.
6.2. CONTRACT PRICE. The Contract Price in U.S. dollars is$12,795,414.82. 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. Fees for professional, SUA, and/or
subscription services which are not included in the Contract Price may be listed in Exhibit B, the pricing
pages of the proposal, or the applicable Addendum.
6.3. 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 thirty (30) 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. For reference, the
Federal Tax Identification Number for Motorola is 36-1115800.
6.4. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the
invoices. Title and risk of loss to the Equipment will pass to Customer upon shipment. Title to Software
will not pass to Customer at any time. Motorola will pack and ship all Equipment in accordance with good
commercial practices.
6.5. INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following
address:
Name: Gary Hewett, Deputy Director
Address: 535 Telfair Street, Building 2000, Augusta GA 30901
Phone: (706) 821-2525
Email: hewett@augustaga.gov
The address which is the ultimate destination where the Equipment will be delivered to Customer is:
Name: Gary Hewett, Deputy Director
Address: 535 Telfair Street, Building 2000, Augusta GA 30901
The Equipment will be shipped to the Customer at the following address(insert if this information is known):
Name: Gary Hewett, Deputy Director
Address: 535 Telfair Street, Building 2000, Augusta GA 30901
Phone: (706) 821-2525
Customer may change this information by giving written notice to Motorola.
Section 7 SITES AND SITE CONDITIONS
7.1. 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 worksites 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.
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7.2. SITE CONDITIONS. Customer will ensure that all work sites mutually agreed upon by the
Partieswill 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. This Agreement is predicated upon normal soil
conditions as defined by the version of E.I.A. standard RS-222 in effect on the Effective Date.
7.3. SITE ISSUES. If a Party determines that the sites identified in Exhibit C and Exhibit E are no longer
available or desired, or if subsurface, structural, adverse environmental or latent conditions at any site differ
from those indicated in Exhibit C and Exhibit E, the Parties will promptly investigate the conditions and will
select replacement sites or adjust the installation plans and specifications as necessary. If change in sites
or adjustment to the installation plans and specifications causes a change in the cost or time to perform,
the Parties will equitably amend the Contract Price, Performance Schedule, or both, by a change order.
Section 8 TRAINING
Any training to be provided by Motorola to Customer will be described in the applicable 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 9 SYSTEM ACCEPTANCE
9.1. 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.
9.2. 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.
9.3. BENEFICIAL USE. Customer acknowledges that Motorola's ability to perform its implementation
and testing responsibilities may be impeded if Customer begins using the System before System
Acceptance. Therefore, Customer will not commence Beneficial Use before System Acceptance without
Motorola's prior written authorization, which will not be unreasonably withheld. Motorola is not responsible
for System performance deficiencies that occur during unauthorized Beneficial Use. Upon commencement
of Beneficial Use, Customer assumes responsibility for the use and operation of the System.
9.4. FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance
when all deliverables and other work have been completed. When Final Project Acceptance occurs, the
parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate.
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Section 10 REPRESENTATIONS AND WARRANTIES
10.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance with
the Specifications in all material respects. Upon System Acceptance or Beneficial Use, whichever occurs
first,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, unless Motorola has made representations about such equipment
compatibility; for reasons or parties beyond Motorola's control, such as natural causes; the construction of
a building that adversely affects the microwave path reliability or radio frequency (RF) coverage; the
addition of frequencies at System sites that cause RF interference or intermodulation; or Customer changes
to load usage or configuration outside the Specifications.
10.2. 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 receipt of the Equipment by events or causes beyond
Motorola's control, this warranty expires eighteen (18) months after the receipt of the Equipment.
10.3. SOFTWARE WARRANTY. Except as described in the SwSP and unless otherwise stated in the
Software License Agreement, during the Warranty Period, Motorola warrants the Software in accordance
with the warranty terms set forth in the Software License Agreement and the provisions of this Section that
are applicable to the Software. If System Acceptance is delayed beyond six(6) months after receipt of the
Motorola Software by events or causes beyond Motorola's control, this warranty expires eighteen (18)
months after the receipt of the Motorola Software. Nothing in this Warranty provision is intended to
conflict or modify the Software Support Policy. In the event of an ambiguity or conflict between the
Software Warranty and Software Support Policy, the Software Support Policy governs. 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 SUPERSEDES THE
SOFTWARE LICENSE AGREEMENT AS TO THE END USER OF EACH SUCH PRODUCT.
10.4. EXCLUSIONS TO EQUIPMENT AND SOFTWARE WARRANTIES. These warranties do not apply
to: (i) defects or damage resulting from: use of the Equipment or 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.
10.5. SERVICE WARRANTY. During the Warranty Period, Motorola warrants that the Services will be
provided in a good and workman-like manner and will conform in all material respects to the applicable
Statement of Work. Services will be free of defects in materials and workmanship for a period of ninety(90)
days from the date the performance of the Services are completed. Customer acknowledges that the
Deliverables may contain recommendations,suggestions or advice from Motorola to Customer(collectively,
"recommendations"). Motorola makes no warranties concerning those recommendations, and Customer
alone accepts responsibility for choosing whether and how to implement the recommendations and the
results to be realized from implementing them.
10.6. 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 Equipment or Software warranty claim, Motorola will
(at its option and at no additional charge to Customer)repair the defective Equipment or Motorola Software,
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replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola
Software. These actions will be the full extent of Motorola's liability for the warranty claim. In the event of
a valid Services warranty claim, Customer's sole remedy is to require Motorola to re-perform the non-
conforming Service or to refund, on a pro-rata basis, the fees paid for the non-conforming Service. 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.
10.7. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola
to the original user purchasing the System or Services for commercial, industrial, or governmental use only,
and are not assignable or transferable.
10.8. 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, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE.
Section 11 DELAYS
11.1. 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 or applicable Addenda for a time period that is reasonable under the circumstances.
11.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If Customer (including its
other contractors) delays the Performance Schedule due to circumstances, incidents, and/or events within
its control, it will 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; however, such compensation for the delay charges shall
be contingent upon Motorola's written documentation of Customer's failure which led to the delay as soon
as possible so that corrective action can be taken.
11.3 PERFORMANCE SCHEDULE DELAYS CAUSED BY MOTOROLA. If Motorola(including its other
contractors) delays the Performance Schedule, it shall incur a liquidated damages penalty of$150.00 per
day for each day beyond each milestone date in the Performance Schedule. Customer agrees to submit
to Motorola any issues that may impact the final completion date in the Performance Schedule that are
believed to be Motorola's responsibility and may therefore increase the likelihood of a penalty being
invoked. Customer shall identify these issues as soon as possible so that corrective action can be taken
by Motorola. The penalty shall not apply under the following circumstances: (i) if a milestone is extended
or moved by mutual consent of the Parties; if the milestone is extended or moved, then penalties will accrue
beginning on the new milestone date; (ii) Customer did not meet requirements or objectives required in
order to facilitate the milestone as scheduled, e.g., Customer delays or(iii) events of force majeure. Such
failure by the Customer must be documented in writing by Motorola as soon as possible so that corrective
action can be taken; and/or (iii) Customer fails to notify Motorola of additional requirements which, when
identified, impacted the milestone date. Such failure by Customer must be documented in writing by
Motorola as soon as possible so that corrective action can be taken. Liquidated damages may not
cumulatively exceed 2% of the Contract Price.
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Section 12 DISPUTES
The Parties will use the following procedure to address any dispute arising under this Agreement (a
"Dispute").
12.1. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the
laws of the State of Georgia.
12.2. 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.
12.3. 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.
12.4. 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 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.
12.5. CONFIDENTIALITY. All communications pursuant to subsections 12.2 and 12.3 will be treated as
compromise and settlement negotiations for purposes of applicable rules of evidence and any 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 13 DEFAULT AND TERMINATION
13.1. DEFAULT BY A PARTY. If either Party fails to observe, perform, or comply with a material
obligation, term, covenant, agreement, or condition 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. If Motorola is the defaulting Party, Customer may withhold payment until it approves
Motorola's cure plan. Further, if either Party commits any fraud, misrepresentation, breach of fiduciary duty,
willful misconduct, or an intentional breach of any provision of this Agreement during the course and scope
of this Agreement, said Party shall be in default, and said default shall not be entitled to be cured by the
defaulting Party.
13.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section
13.1, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of
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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. In
the event Customer elects to terminate this Agreement for any reason other than default, Customer shall
pay Motorola for the conforming Equipment and/or Software delivered and all services performed up to and
including the date of termination.
Section 14 INDEMNIFICATION
14.1. GENERAL INDEMNITY BY Motorola. Motorola will indemnify and hold Customer, its employees,
and its agents who are users of the Equipment, 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 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.
Notwithstanding, this obligation does not apply if Motorola is entitled to immunity under the NG911 Act of
2012.
14.2. GENERAL INDEMNITY BY CUSTOMER. To the extent allowed by law, 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.
14.3. PATENT AND COPYRIGHT INFRINGEMENT.
14.3.1. 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
("Motorola 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.
14.3.2 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 Motorola Product; (b) replace or
modify the Motorola Product so that it becomes non-infringing while providing functionally equivalent
performance; or(c)accept the return of the Motorola Product and grant Customer a credit for the Motorola
Product, less a reasonable charge for depreciation. The depreciation amount will be calculated based upon
generally accepted accounting standards.
14.3.3 Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon: (a)
the combination of the Motorola 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
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connection with the Motorola Product; (c) Motorola 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 Motorola
Product by a party other than Motorola; (e) use of the Motorola Product in a manner for which the Motorola
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 Motorola Product.
14.3.4. This Section 14 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 14 are subject to and limited by the restrictions set forth in Section 15.
Section 15 LIMITATION OF LIABILITY
Except for personal injury, death or damage to tangible property, Motorola's total liability,whether for breach
of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the
damages recoverable under law, but not to exceed the price of the Equipment, Software, or implementation
Services with respect to which losses or damages are claimed. With respect to all non-implementation
Services and unless as otherwise provided under the applicable Addenda, Motorola's total liability will be
limited to the damages recoverable under law not to exceed the Contract Price.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,
LOSS TIME, DATA, GOODWILL, 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.
Section 16 CONFIDENTIALITY AND PROPRIETARY RIGHTS
16.1. CONFIDENTIAL INFORMATION.
16.1.1. Each party is a disclosing party ("Discloser") and a receiving party ("Recipient") under this
Agreement. All Deliverables will be deemed to be Motorola's Confidential Information. To the extent
allowed by law, and during the term of this Agreement and for a period of three (3) years from the
expiration or termination of this Agreement, Recipient will (i) not disclose Confidential Information to any
third party; (ii) restrict disclosure of Confidential Information to only those employees (including, but not
limited to, employees of any wholly owned subsidiary, a parent company, any other wholly owned
subsidiaries of the same parent company), agents or consultants who must be directly involved with the
Confidential Information for the purpose and who are bound by confidentiality terms substantially similar to
those in this Agreement; (iii) not copy, reproduce, reverse engineer, de-compile or disassemble any
Confidential Information; (iv) use the same degree of care as for its own information of like importance, but
at least use reasonable care, in safeguarding against disclosure of Confidential Information; (v) promptly
notify Discloser upon discovery of any unauthorized use or disclosure of the Confidential Information and
take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized
actions or other breach of this Agreement; and (vi) only use the Confidential Information as needed to fulfill
this Agreement.
16.1.2. Recipient is not obligated to maintain as confidential, Confidential Information that Recipient can
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demonstrate by documentation (i) is now available or becomes available to the public without breach of this
agreement; (ii) is explicitly approved for release by written authorization of Discloser; (iii)is lawfully obtained
from a third party or parties without a duty of confidentiality; (iv) is known to the Recipient prior to such
disclosure; or(v) is independently developed by Recipient without the use of any of Discloser's Confidential
Information or any breach of this Agreement.
16.1.3. All Confidential Information remains the property of the Discloser and will not be copied or
reproduced without the express written permission of the Discloser, except for copies that are absolutely
necessary in order to fulfill this Agreement. Within ten (10) days of receipt of Discloser's written request,
Recipient will return all Confidential Information to Discloser along with all copies and portions thereof, or
certify in writing that all such Confidential Information has been destroyed. However, Recipient may retain
one (1) archival copy of the Confidential Information that it may use only in case of a dispute concerning
this Agreement. No license, express or implied, in the Confidential Information is granted other than to use
the Confidential Information in the manner and to the extent authorized by this Agreement. The Discloser
warrants that it is authorized to disclose any Confidential Information it discloses pursuant to this
Agreement.
16.2. 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.
16.3 VOLUNTARY DISCLOSURE. Except as required to fulfill its obligations under this Agreement,
Motorola will have no obligation to provide Customer with access to its Confidential Information and/or
proprietary information. Under no circumstances will Motorola be required to provide any data related to
cost and pricing.
Section 17 GENERAL
17.1. 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 thirty (30)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.
17.2 INSURANCE. Motorola shall, at all times that this Agreement is in effect, cause to be maintained
in force and effect an insurance policy(s) that will ensure and indemnify the Customer against liability or
financial loss resulting from injuries occurring to persons or property or occurring as a result of any negligent
error, act, or omission of Motorola in the performance of work during the term of this Agreement.
Motorola shall provide, at all times that this Agreement is in effect, Insurance with limits of:
(a)Commercial General Liability
Coverage Limit
General Aggregate Products Liability/Completed $2,000,000.00
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Oper.Aggregate $1,000,000.00
Each Occurrence $1,000,000.00
Personal&Advertising Injury $1,000,000.00
If Commercial General Liability or other form with a general aggregate limit is used,the general aggregate limit shall be
twice the required occurrence limit.
(b)Workers'Compensation and Employer's Liability
Coverage Limit
Workers'Compensation Statutory Employer's Liability $ 500,000.00
Each Accident
Per Employee-Disease $ 500,000.00
Annual Aggregate-Disease $ 500,000.00
(c)Automobile Liability
Coverage Limit
Bodily Injury and Property Damage $1,000,000.00
Combined-Occurrence
Uninsured/Underinsured Motorist- $1,000,000.00
Occurrence
This Policy must provide coverage for all owned, non-owned,and hired autos.
(d)Technology E&O $1,000,000.00
17.3. PERFORMANCE BOND. Motorola shall secure a performance bond ("Bond") within ten (10)
Business Days after execution of this Agreement in the face amount of$12,795,414.82. The Bond amount
shall cover the total amount of services to be provided under this Agreement through the Warranty Period.
In the event that Augusta desires to renew or extend the term of the performance bond, Augusta shall be
responsible for any additional bond premiums and any renewal thereof shall be subject to underwriting or
surety approval.
17.4. 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.
17.5. 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.
17.6 MODIFICATION. Motorola 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 Augusta, Georgia Board of Commissioners and approval of the Mayor. Under
Georgia law, Motorola is deemed to possess knowledge concerning Augusta, Georgia's ability to assume
contractual obligations and the consequences of Motorola's provision of goods or services to Augusta,
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Georgia under an unauthorized contract, amendment, modification, change order or other similar
document, including the possibility that Motorola may be precluded from recovering payment for such
unauthorized goods or services. Accordingly, Motorola agrees that if it provides goods or services to
Augusta, Georgia under an agreement that has not received proper legislative authorization or if Motorola
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 Motorola. Motorola assumes all risk of non-payment
for the provision of any unauthorized goods or services to Augusta, Georgia, and it waives all claims to
payment or to other remedies for the provision of any unauthorized goods or services to Augusta, Georgia,
however characterized, including, without limitation, all remedies at law or equity; unless the person who
executes a change order or amendment on behalf of Augusta, Georgia ("Authorized Signatory" represents
that all legislative approvals were given and that the Authorized Signatory is duly authorized to bind
Augusta, Georgia. This acknowledgement shall be a mandatory provision in all Augusta, Georgia contracts
for goods and services, except revenue producing contracts.
17.7 E-VERIFY REQUIREMENT. 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 OCGA§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 OCGA §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 OCGA §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.
17.8 GEORGIA OPEN RECORDS ACT. Motorola acknowledges that this Agreement and certain
documentation may be subject to the Georgia Open Records Act (OCGA §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. Motorola shall notify Customer immediately
of any Open Records request arising out of this contract and shall provide to Customer a copy of any
response to the same.
17.9 CONFLICTS OF INTEREST; PROHIBITED INTERESTS. Motorola maintains and warrants that it
has not employed or retained any company or person, other than a bona fide employee working solely for
Motorola, to solicit or secure this Agreement. Further, Motorola warrants that it has not paid or agreed to
pay any company or person, other than a bona fide employee working solely for Motorola, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the
award or making of this Agreement. For breach or violation of this warranty, Customer shall have the right
to rescind this Agreement without liability. For the Term of this Agreement, no member, officer or employee
of Customer, during the term of his or her service with Customer, shall have any direct interest in this
Agreement, or obtain any present or anticipated material benefit arising therefrom.
17.10 DEFECTIVE PRICING. To the extent that the pricing provided by Motorola is erroneous or
defective, the Parties may, by agreement, correct the pricing errors to reflect the intent of the Parties.
17.11 GEORGIA PROMPT PAY. The Georgia Prompt Pay Act is not applicable. The terms of this
Agreement supersede any and all provisions of the Georgia Prompt Pay Act.
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17.12. 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.
17.13. 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.
17.14 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 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.
17.15. 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.
17.16. 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 provided by the other Party 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.
To Customer: Tameka Allen, IT Director
535 Telfair Street, Bldg 2000
Augusta, GA 30901
T: 706.821.2522
F: 706.821.2530
Copies to: Hardie Davis, Jr., Mayor
535 Telfair Street, Suite 200
Augusta, GA 30901
T: 706.821.1831
To Motorola: Judy Jean-Pierre, Sr. Counsel
Legal, Government Affairs & Corporate Communications
500 West Monroe Street
Chicago, IL 60661
17.17. 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.
Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses and
authorizations required for the installation, operation and use of the System before the scheduled
installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC license
applications, neither Motorola nor any of its employees is an agent or representative of Customer in FCC
or other matters.
17.18. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all
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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.
17.19. ADMINISTRATOR LEVEL ACCOUNT ACCESS. If applicable to the type of System purchased by
Customer, Motorola will provide Customer with Administrative User Credentials. Customer agrees to only
grant access to the Administrative User Credentials to those personnel with the training and experience to
correctly use them. Customer is responsible for protecting Administrative User Credentials from disclosure
and maintaining Credential validity by, among other things, updating passwords when required. Customer
may be asked to provide valid Administrative User Credentials when in contact with Motorola System
support personnel. Customer understands that changes made as the Administrative User can significantly
impact the performance of the System. Customer agrees that it will be solely responsible for any negative
impact on the System or its users by any such changes. System issues occurring as a result of changes
made using the Administrative User Credentials may impact Motorola's ability to perform Services or other
obligations under the Agreement. In such cases, a revision to the appropriate provisions of the Agreement,
including the Statement of Work, may be necessary. To the extent Motorola provides assistance to correct
any issues caused by or arising out of the use of or failure to maintain Administrative User Credentials,
Motorola will be entitled to bill Customer and Customer will pay Motorola on a time and materials basis for
resolving the issue.
17.20. 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 6.1 and 6.2 (Contract Price and Invoicing and Payment); Subsection
10.8 (Disclaimer of Implied Warranties); Section 12 (Disputes); Section 15 (Limitation of Liability); and
Section 16 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 17.
17.21. 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 executed in multiple counterparts, and shall have the same legal force and effect as if the Parties had
executed it as a single document. The Parties may sign in writing, or by electronic signature, including by
email. An electronic signature, or a facsimile copy or computer image, such as a PDF or tiff image, of a
signature, shall be treated as and shall have the same effect as an original signature. In addition, an
electronic signature, a true and correct facsimile copy or computer image of this Agreement shall be treated
as and shall have the same effect as an original signed copy of this document. 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 or 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.
Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498
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The Parties hereby enter into this Agreement as of the Effective Date.
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Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498
Page 19
Exhibit A
MOTOROLA SOFTWARE LICENSE AGREEMENT
This Exhibit A Motorola Software License Agreement ("Agreement") is between Motorola Solutions, Inc.
("Motorola") and Augusta, Georgia ("Licensee"). For good and valuable consideration, the parties agree
as follows:
Section 1 DEFINITIONS
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 proprietary software and affiliated 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.
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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; and (ii) identify the Open Source Software (or
specify where that license may be found).
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 Licensee will maintain, during the term of this Agreement and for a period of two 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.
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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. Unless otherwise stated in the Primary Agreement, the commencement date and the term of the
Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the
"Warranty Period"). 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. Notwithstanding, any warranty provided by a copyright owner
in its standard license terms will flow through to Licensee for third party software provided by Motorola.
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 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 the Designated Products
are Motorola's radio products and Licensee transfers ownership of the Motorola radio products to a third
party, Licensee may assign its right to use the Software (other than CPS and Motorola's FLASHport®
Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498
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software)which is embedded in or furnished for use with the radio products and the related Documentation;
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 Commercial Computer Software
9.1 This Section 9 only applies to U.S. Government end users. The Software, Documentation and updates
are commercial items as that term is defined at 48 C.F.R. Part 2.101, consisting of"commercial computer
software" and "computer software documentation" as such terms are defined in 48 C.F.R. Part 252.227-
7014(a)(1) and 48 C.F.R. Part 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48 C.F.R. Part
227.7202, as applicable. Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-7015, 48 C.F.R.
Part 227.7202-1 through 227.7202-4, 48 C.F.R. Part 52.227-19, and other relevant sections of the Code of
Federal Regulations, as applicable, the Software, Documentation and Updates are distributed and licensed
to U.S. Government end users: (i) only as commercial items, and (ii) with only those rights as are granted
to all other end users pursuant to the terms and conditions contained herein.
9.2 If Licensee is licensing Software for end use by the United States Government or a United States
Government agency, Licensee may transfer such Software license, but only if: (i) Licensee transfers all
copies of such Software and Documentation to such United States Government entity or interim transferee,
and (ii) Licensee has first obtained from the transferee (if applicable)and ultimate end user an enforceable
end user license agreement containing restrictions substantially identical to the ones contained in this
Agreement. Except as stated in the foregoing, Licensee and any transferee(s)authorized by this subsection
9.2 may not otherwise use or transfer or make available any Motorola software to any third party nor permit
any party to do so.
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.
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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 of Georgia. 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, 6.4, 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.
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Exhibit B
PAYMENT SCHEDULE
Except for a payment that is due on the Effective Date, Customer will make payments to Motorola within
thirty(30) days after the date of each invoice. Customer will make payments when due in the form of a
check, cashier's check, or wire transfer drawn on a U.S. financial institution and in accordance with the
following milestones.
System Purchase(excluding Subscribers, if applicable)
1. 10% of the Contract Price due upon contract execution (due upon effective date);
2. 10% of the Contract Price due upon contract design review;
3. 30% of the Contract Price due upon shipment of Fixed Network Equipment(FNE)from Staging;
4. 20% of the Contract Price due upon installation of FNE equipment; and
5. 15% of the Contract Price due upon completion of civil work; and
6. 15% of the Contract Price due upon Final Acceptance.
If Subscribers are purchased, 100% of the Subscriber Contract Price will be invoiced upon receipt
(as received).
Motorola shall make partial shipments of equipment and will request payment upon shipment of such
equipment. In addition, Motorola shall invoice for installations completed on a site-by-site basis or when
professional services are completed, when applicable. The value of the equipment shipped/services
performed will be determined by the value shipped/services performed as a percentage of the total
milestone value. Unless otherwise specified, contract discounts are based upon all items proposed and
overall system package. For invoicing purposes only, discounts will be applied proportionately to the FNE
and Subscriber equipment values to total contract price. Overdue invoices will bear simple interest at the
maximum allowable rate by state law.
For Lifecycle Support Plan and Subscription Based Services:
Motorola will invoice Customer annually in advance of each year of the plan.
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Exhibit C
Motorola's Proposal dated February 8, 2017
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EXHIBIT D
System Acceptance Certificate
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.
2. The System is accepted.
Customer Representative: Motorola Representative:
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
FINAL PROJECT ACCEPTANCE:
Motorola has provided and Customer has received all deliverables, and Motorola has performed all other
work required for Final Project Acceptance.
Customer Representative: Motorola Representative:
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
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EXHIBIT E
Section 12 RFP Clarifications
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GEORGIA
SERVICE LEVEL AGREEMENT
THIS SERVICE LEVEL AGREEMENT ("Agreement") is made as of this this IV- day of
WrAbeir, 2018 between Augusta Communications Inc. ("Consultant"), and Augusta,
Georgia ("Augusta"), a political subdivision of the State of Georgia, by and through its
Information Technology Department.
WITNESSETH:
WHEREAS, Augusta, Georgia desires certain professional services to provide
maintenance and support services to sustain its P25 radio users; and
WHEREAS, Augusta Communications Inc. desires to assist Augusta in providing such
services and support to sustain Augusta, Georgia's P25 users; and
NOW THEREFORE, in consideration of the following mutual covenants and other good
and valuable consideration, the receipt and adequacy of which is hereby acknowledged by all
Parties hereto, Consultant and Augusta hereby agree as follows:
1. Scope of Work. Consultant agrees to ensure that the proper elements and commitments are in
place to provide consistent service support and delivery to Augusta. Consultant agrees to
provide customer support to all users of Augusta's P25 radio system. Consultant also agrees
to perform all billing users on Augusta's P25 radio system and collect said fees on behalf of
Augusta. Consultant shall provide an annual payment to Augusta, Georgia of the fees owed
by the P25 radio system users, minus Consultant's fee of twenty percent (20%). Consultant
shall generate quarterly reports,communicate specific needs and requirements for the adequate
provision of services,and schedule and conduct any necessary meetings. Consultant shall also
provide the appropriate notification to all P25 radio system users concerning scheduled and
unscheduled maintenance on the P25 radio system. Consultant shall be responsible for the
scope and all requirements described in Section 5 and Section 6 of the Service Level Agreement
attached hereto and incorporated herein as Exhibit "A." In the event of a conflict between a
term in Exhibit "A" and this Agreement, the terms of this Agreement shall supersede Exhibit
"A,"until this Agreement is modified by mutual consent of the Parties to effectuate some other
intent.
2. Augusta Responsibilities. Augusta shall designate a customer representative to be
reasonably available to Consultant in order to resolve any service-related incident of request.
Augusta shall also communicate and provide documentation of all material relevant to the in-
scope services and components of its P25 radio system necessary to assist Consultant in the
provision of its services.
3. Term. This Agreement shall have a term from subscriber activation until December 31, 2022.
This Agreement shall be reviewed and revised at the conclusion of said term. If upon review,
Page 1 of 6
Augusta deems the services provided by Consultant to be adequate; this Agreement may be
renewed, in writing,upon mutual agreement of the Parties for three(3),one(1)year terms.
4. Standard of Performance. Consultant represents and warrants that they have the necessary
knowledge, experience, abilities, skills, and resources to perform their obligations under this
Agreement, and agrees to perform their obligations under this Agreement in a professional
manner, consistent with prevailing industry standards and practices.
5. No work beyond the scope of services discussed in Section 1 above will be undertaken unless
prior written approval is received from Augusta and both Parties agree.
6. Qualifications, Licenses, and Permits; Compliance with Law. Consultant represents and
warrants that they have all licenses and permits necessary to conduct business and perform
their obligations under this Agreement, and agrees to comply with all applicable federal, state
and local statutes, regulations, codes, ordinances and policies in performing their obligations
under this Agreement.
7. Independent Consultant Relationship. The Parties intend that Consultant's relationship to
Augusta in providing services hereunder shall be that of an independent consultant. Nothing
in this Agreement, nor any performance hereunder, is intended or shall be construed to create
a partnership,joint venture or relationship of agency or employment between Augusta and
Consultant. In providing services hereunder, Consultant shall represent itself to third parties
as an independent consultant to Augusta and shall not hold itself out as having any authority to
obligate Augusta. Consultant shall have no authority for any complaints related to employment
with Augusta, Georgia and has no authority to hire, fire, discipline, or otherwise effect the
terms and conditions of Augusta, Georgia employees, except as specifically set forth herein.
8. Confidentiality. Consultant shall treat all information disclosed by Augusta pursuant to this
Agreement as confidential,and Consultant shall not disclose or use such information except as
required in connection with the performance of their obligations under this Agreement.
9. Compensation. In consideration of Consultant performing his obligations under this
Agreement,Augusta will pay Consultant at a negotiated rate of twenty percent(20%)of all
fees collected by Consultant on behalf of Augusta.Consultant shall be responsible and liable
for any other costs and expenses related to the performance of their obligations under this
Agreement.
10. Payment of Fees. Consultant shall provide annual payment to Augusta of all fees owed to it
by its P25 radio system users, less twenty percent(20%)as compensation for the Consultant as
described in Section 9 above. The first payment shall be made 12 months following radio
subscriber activation. Augusta shall have the right to audit Consultant's files, data, and any
other such information concerning Augusta's P25 radio system customer base and the revenues
collected therefrom on an annual basis. If there is a dispute between the Parties concerning the
amount of said payment, Augusta shall pay Consultant the undisputed amount as detailed
above,while the Parties discuss the disputed portion. If the Parties cannot agree on the disputed
portion of the invoice, the Parties shall resolve said dispute in a court of law as provided in
Section 12 below.
11. Power and Authority; Due Authorization; No Conflict; Enforceability. Each Party represents
and warrants to the other Party that(i)such Party has the power and authority to execute,deliver
and perform its obligations under this Agreement,(ii)the execution,delivery and performance
of this Agreement have been duly authorized by such Party and do not and shall not conflict
Page 2 of 6
with any agreement or instrument to which it is bound, and(iii)this Agreement constitutes the
legal, valid and binding obligation of such Party, enforceable against it in accordance with its
terms.
12. Disputes. Augusta and Consultant both agree that in the event that any dispute arises between
the Parties, the complaining Party shall promptly notify the other of the dispute in writing.
Each Party shall respond to the other Party in writing within five (5) business days of receipt
of such notice.
13. Periodic Review and Modification. This Agreement shall be reviewed, at a minimum, once
per fiscal year, as calculated by Augusta's fiscal year; however, in lieu of a review during any
period specified, this Agreement shall remain in effect. Consultant shall be responsible for
facilitating the regular review of this Agreement. Augusta and Consultant both agree that any
amendments to this Agreement shall be made in writing, and executed by both Parties. No
proposed amendment that is not in writing and executed by both Parties shall effect the terms
of this Agreement.
14. Termination. Either Party may terminate this Agreement at any time,provided that every effort
will be made to give at least one hundred eighty(180)days' notice,delivered to the individual
designated to receive such notice,prior to the termination of this Agreement.
15. Indemnification. Consultant shall indemnify, hold harmless, protect and defend Augusta and
its Commissioners, elected officials, trustees, officers, employees, agents, and representatives
(the"Indemnified Parties")for,from and against any and all demands, claims, suits, damages,
losses, liabilities, costs and expenses, including, but not limited to, court costs and attorneys'
fees (the "Indemnified Matters"), of any nature whatsoever (including, but not limited to,
damage to or loss of property, bodily injury or death), directly or indirectly arising out of or in
connection with the performance of Consultant's obligations under this Agreement.
Consultant's indemnification obligations under this Section 15 shall apply whether the
Indemnified Matters are due in part to the concurrent fault or negligence of the Indemnified
Parties or others, but shall not extend to such concurrent fault or negligence. Consultant's
defense obligations under this Section 14 shall be with attorneys approved by Augusta, which
approval shall not be unreasonably withheld.
16. Notices. Any notices, bills, invoices, or reports required by this agreement shall be sufficient
if sent by the Parties hereto in the United States mail, postage paid, to the addresses noted
below. Any notices, bills, invoices, or reports required by this Agreement shall also be
sufficient if sent to the Parties hereto via electronic mail or facsimile.Notice shall be effective
upon receipt.
For Augusta:
Augusta, Georgia
Information Technology Department
Tameka Allen
535 Telfair Street, Building 2000
Augusta, Georgia 30901
alien@augustaga.gov
With Copy:
Augusta, Georgia
Page 3 of 6
Office of the Mayor
Hardie Davis,Jr.
535 Telfair Street, Suite 200
Augusta, GA 30901
Augusta Law Department
General Counsel
535 Telfair Street, Building 3000
Augusta, Georgia 30901
amackenzie@augustaga.gov
For Consultant:
Spiro Papadopoulos
Augusta Co a - : ations,Inc.
17. Local Small Business Program. 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.
18. Governing Law; Jurisdiction and Venue; Attorneys' Fees. This Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of Georgia (without
regard to the conflicts or choice of law principles thereof). The Parties irrevocably consent to
the jurisdiction of the State of Georgia,and agree that the Superior Court of Richmond County,
Georgia, shall be an appropriate and convenient place of venue to resolve any dispute with
respect to this Agreement. In the event either Party commences any proceeding against the
other Party with respect to this Agreement,the Parties agree that neither Party shall be entitled
to recover attorneys'fees except as otherwise specifically provided for by law.
19. Entire Agreement Severability; Further Assurances. This Agreement, including any exhibits
attached hereto, constitutes the entire agreement between the Parties, and supersedes all prior
and contemporaneous agreements,understandings and negotiations,with respect to the subject
matter hereof. In the event any provision of this Agreement is determined to be invalid or
unenforceable, it is the desire and intention of the Parties that such invalidity or
unenforceability not invalidate or render unenforceable the remainder of the Agreement and
that such provision be reformed and construed in such a manner that it will, to the maximum
Page 4 of 6
extent practicable, be deemed valid and enforceable, and the rights and obligations of the
Parties shall be construed and enforced accordingly. Each Party shall execute and deliver such
further documents and take such further actions as may be required or reasonably requested by
the other Party to effectuate the purposes of this Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF,Augusta and Consultant have duly executed and delivered this Agreement.
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Spiro Papadapou Date
Consultant
Federal I.D.No./Tax Identification No. — I 9 60 S-9 -
Page 6 of 6
EXHIBIT "A"
AUGUSTA
COMMUNICATIONS
Service Level Agreement (SLA)
For
Augusta, Georgia
By
Augusta Communications, Inc
Effective Date: 8-2-2018
Document Owner: Augusta Communications,Inc
Version
Version Date Description Author
1.0 8-2-2018 Service Level Agreement Spiro Papadopoulos
Approval
(By signing below, all Approvers agree to all terms and conditions outlined in this Agreement.)
Approvers Role Signed Approval Date
Augusta Service Provider
Communications, /2
Inc
Augusta,Georgia Customer
AUGUSTA
C:0�11+tiiLNftiAIIONS
Table of Contents
1. Agreement Overview 3
2. Goals & Objectives 3
3. Stakeholders 4
4. Periodic Review 4
5. Service Agreement 5
5.1. Service Scope 5
5.2. Customer Requirements 5
5.3. Service Provider Requirements 5
5.4. Service Assumptions 5
6. Service Management 6
6.1. Service Availability 6
6.2. Service Requests 6
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CO11,ti1UNI( Al IONS
1. Agreement Overview
a. This Agreement represents a Service Level Agreement ("SLA" or "Agreement") between Augusta
Communications, Inc.(hereinafter referred to as the "Service Provider" and Augusta, Georgia, a political
subdivision of the State of Georgia (hereinafter referred to as the "Customer"), for the provision of
services required to support and sustain P25 radios users.
b. This Agreement remains valid until superseded by a revised agreement mutually endorsed by the
stakeholders.
c. This Agreement outlines the parameters of all services covered as they are mutually understood by the
primary stakeholders. This Agreement does not supersede current processes and procedures unless
explicitly stated herein.
d. This SLA covers the period from January 1, 2020 to December 31, 2024 and will be reviewed and
revised at the end of this period. Either party may terminate this agreement at any time; however, every
effort will be made to give at least one hundred eighty (180) days' notice, delivered to the individual
designated to receive such notice, in writing,prior to the termination of this Agreement.
2. Goals & Objectives
a. The purpose of this Agreement is to ensure that the proper elements and commitments are in place to
provide consistent service support and delivery to the Customer(s) by the Service Provider(s).
b. The goal of this Agreement is to obtain mutual agreement for the provision of service between the
Service Provider(s) and Customer(s).
c. The objectives of this Agreement are to:
• Provide customer support to all Augusta Richmond County radio users on the P25 radio system
• Perform billing for all Augusta Richmond County radio users at a negotiated rate of 20% of all fees
collected on behalf of Augusta Richmond County
• Provide an annual payment to Augusta Richmond County of fees owed minus 20%
• Generate quarterly reports
• Communicate specific needs and requirements
• Appropriate notification to all radio users for scheduled maintenance
• Schedule and conduct meetings
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AUGUSTA
COANIL NI( AI ION
3. Stakeholders
The following Service Provider(s) and Customer(s)will be used as the basis of the Agreement and represent
the primary stakeholders associated with this SLA:
Service Provider(s): Augusta Communications, Inc
Customer(s): Augusta, Georgia
4. Periodic Review
a. This Agreement is valid from the Effective Date outlined herein and is valid until further notice. This
Agreement should be reviewed at a minimum once per fiscal year; however, in lieu of a review during any
period specified,the current Agreement will remain in effect.
b. The Business Relationship Manager ("Document Owner") is responsible for facilitating regular
reviews of this document. Contents of this document may be amended as required, provided mutual
agreement is obtained from the primary stakeholders and communicated to all affected parties. The
Document Owner will incorporate all subsequent revisions and obtain mutual agreements / approvals as
required.
Business Relationship Manager: Augusta Communications, Inc.
Review Period: Bi-Yearly (6 months)
Previous Review Date: 01-01-2020
Next Review Date: 06-01-2020
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AUGUSTA
CO,ti11lL NI( Al ft)NS
5. Service Agreement
The following detailed service parameters are the responsibility of the Service Provider in the ongoing
support of this Agreement.
5.1. Service Scope
The following Services are covered by this Agreement;
o Manned telephone support 24 hours
o Monitored email support
o Billing and payment collections
o Planned or Emergency Onsite assistance
o Monthly system reviews
5.2. Customer Requirements
Customer responsibilities and/or requirements in support of this Agreement include:
• Reasonable availability of customer representative(s) when resolving a service related incident or
request.
5.3. Service Provider Requirements
Service Provider responsibilities and/or requirements in support of this Agreement include:
• Meeting response times associated with service related incidents.
• Appropriate notification to Customer for all scheduled maintenance.
5.4. Service Assumptions
Assumptions related to in-scope services and/or components include:
• Changes to services will be communicated and documented to all stakeholders.
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AUGUSTA
6. Service Management
Effective support of in-scope services is a result of maintaining consistent service levels. The following
sections provide relevant details on service availability, monitoring of in-scope services and related
components.
6.1. Service Availability
Coverage parameters specific to the service(s) covered in this Agreement are as follows:
• Telephone support: 8:00 A.M. to 5:00 P.M. Monday—Friday
o Calls received out of office hours will be forwarded to the answering service and best
efforts will be made to answer/action the call
• Email support: Monitored 8:00 A.M. to 5:00 P.M. Monday—Friday
o Emails received outside of office hours will be collected, however no action can be
guaranteed until the next working day
• Onsite assistance guaranteed within 24 hours during the business week
6.2. Service Requests
In support of services outlined in this Agreement, the Service Provider will respond to service related
incidents and/or requests submitted by the Customer within the following time frames:
• 0-8 hours (during business hours) for issues classified as High priority.
• Within 24 hours for issues classified as Medium priority.
• Within 3 working days for issues classified as Low priority.
Remote assistance will be provided in-line with the above timescales dependent on the priority of the
support request.
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AUGUSTA
C0\1A1UNICAIiOVS