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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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 1 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- Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 2 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 3 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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 4 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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 5 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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 6 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 7 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 8 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, Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 9 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 10 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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 11 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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 12 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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 13 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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 14 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, Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 15 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 16 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 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 17 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 Page 18 The Parties hereby enter into this Agreement as of the Effective Date. Motorola Solutions, Inc. Augusta, Georgia /7By: Pita By: Name: Marshall Wright 9 cmit8 Name: Hardie Davis, Jr. Title: Strategic Project Team/MSSSI Vice President Title: Mayor Date: Date: 7-46/ef' k a i Vie, r170 !1 Pti'�e tat.. Atte*. ��� Gc/ i ..::, • _ _._ f I� `kii' ion i' { e-, . 4t j 0,onx. 4' i 4� i n 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 20 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 21 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 Page 22 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 23 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 24 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. Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 25 Exhibit C Motorola's Proposal dated February 8, 2017 Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 26 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: Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 27 EXHIBIT E Section 12 RFP Clarifications Communication System and Services Agreement v.8-23-2018 Motorola Contract No.237498 Page 28 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. Page 5 of 6 , y,�dc+71M•....scf.r �r�zrx�.w!..�• ria.,.,._... . „r�,. AUSTA,G ORGIA ATTEST, F, ' ' ', : � G V �� � �� W P . f Cammissiin Hardie Davis, Jr. Da y J Pf f 4 Ms Mayor G; ..0 ' u, v� ` 0� �' I. L/ B- 4(d(i f .1,:f 64,4,4 996 _.401 97, 4464.9046•9— AUGUSTA COMMUNICATIONS,INC. (7/7 3-1 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 2/6 AU USTA 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 3/6 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 4/6 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. 5/6 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. 6/6 AUGUSTA C0\1A1UNICAIiOVS