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Agenda 10/09/2012 Item #16E210/9/2012 Item 16.E.2. EXECUTIVE SUMMARY Recommendation to authorize sole source purchasing of equipment and services for the 800 MHz Public Safety Radio System OBJECTIVE: Request approval for sole- source purchasing of equipment and services for the 800 MHz Public Safety radio system CONSIDERATIONS: On October 26, 1994 the Board approved contract 94 -2201 with Ericsson Inc., now Harris Corporation, for construction of an EDACS 800 MHz trunked radio system. The County's trunked radio system operates with proprietary software and technology protocols. All equipment accessing the system must be compatible with these protocols. The system must be maintained and there is constant adding and replacing units system wide which includes the Sheriff, all Fire Departments, EMS, and County operating departments. System maintenance will be provided by Harris Corporation, the manufacture of the system. The unit maintenance and purchase of new units will be provided at the direction of Harris by an authorized reseller. This system is compatible statewide and has interoperability with the State Department of Emergency Management, Florida Department of Law Enforcement. There are several other abilities with the surrounding Counties for interoperability. Authorization of continued sole- source purchasing is requested for the following reasons: • Since November 1997, with approval from Collier County, Communications International Inc. has been assigned to Collier County as Harris' agent for sales and maintenance of the County's radio system. • The standard discount level for equipment purchases is established in State Contract 725- 001 -01 -1, Statewide Law Enforcement Radio System, which is valid until June 30, 2021. • Due to the complex nature of trunked radio systems, Harris Corp. requires that system upgrades, software updates and maintenance be performed by an authorized and qualified service provider and Harris warranties these efforts. Purchasing Considerations: The Purchasing Director certifies that: Packet Page -1259- 10/9/2012 Item 16.E.2. 1. The item(s) is the only one available that can properly perform the intended function(s), and; 2. The recommended vendor /contractor is the only one ready, willing and able to meet the County's requirements. FISCAL IMPACT: Funds for the System Maintenance are budgeted in Fund 188 in the estimated amount of $650,000. Funds for radio equipment and services are already budgeted in individual cost center for FY 12 and 13 in the estimated amount of $150,000. GROWTH MANAGEMENT IMPACT: None LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is legally sufficient, and requires majority vote for approval. -JAK RECOMMENDATION: That the Board of County Commissioners authorizes this sole - source purchasing of radio system components, user equipment and services for the 800 MHz radio system from Harris Corporation and Communications International Inc., as Harris's designated agent for sales and maintenance in Collier County for a period of five years. Prepared by: John Daly, Telecommunications Manager Attachments: Waiver Request Harris Letter State of Florida Contract 725- 001 -01 -1 Packet Page -1260- 10/9/2012 Item 16.E.2. COLLIER COUNTY Board of County Commissioners Item Number: 16.E.2. Item Summary: Recommendation to authorize sole source purchasing of equipment and services for the 800 MHz Public Safety Radio System. Meeting Date: 10/9/2012 Prepared By Name: DalyJohn Title: VALUE MISSING 9/6/2012 9:32:43 AM Submitted by Title: VALUE MISSING Name: DalyJohn 9/6/2012 9:32:46 AM Approved By Name: pochopinpat Title: Administrative Assistant,Facilities Management Date: 9/6/2012 11:32:30 AM Name: BerriosMike Title: Manager - Network Operations,Information Technology Date: 9/13/2012 9:00:43 AM Name: WardKelsey Title: Manager - Contracts Administration,Purchasing & Ge Date: 9/17/2012 11:26:36 AM Name: pochopinpat Title: Administrative Assistant,Facilities Management Date: 9/17/2012 12:57:15 PM Packet Page -1261- 10/9/2012 Item 16.E.2. Name: WardKelsey Title: Manager - Contracts Administration,Purchasing & Ge Date: 9/18/2012 12:27:30 PM Name: JohnsonScott Title: Purchasing Agent,Purchasing & General Services Date: 9/19/2012 8:36:15 AM Name: BerriosMike Title: Manager - Network Operations,Information Technology Date: 9/27/2012 6:59:11 PM Name: KlatzkowJeff Title: County Attorney Date: 10/1/2012 10:31:49 AM Name: KlatzkowJeff Title: County Attorney Date: 10/1/2012 10:37:37 AM Name: FinnEd Title: Senior Budget Analyst, OMB Date: 10/1/2012 12:06:20 PM Name: IsacksonMark Title: Director -Corp Financial and Mgmt Svs,CMO Date: 10/2/2012 3:51:42 PM Packet Page -1262- C+�er Can ty Admirrlsvabve services Dvisron P,rChasing 10/9/2012 Item 16.E.2. Collier County Waiver Request instructions Completedwaiu00- inquests must1be sdbW ted to the de tint's procurement professional for any amount above $3,oQ1). Purdhssesabaa*430oo require wree gvifts or formal campetltlora � deponent must,provide jEtstificatibn to Purchase to request' considleratbn tb :.waive the c hive purrbasing process, and ibunc a trom a single verttior.. i ,bivers of grealer tl Ot $51),000 MA11 ,t ire appMirW by. 4%6;.8os0d ot.County ComrAisstono ..Tb, qualifyibr &waive. select a wai�rer'cateadry,::provide in explanation -of !I* fibseardi conooeted•en* suppor'tbV.ratictnat ,.4i6d aogaire the,appraval- signature fl*yd your direr t+or..,Sepd the walver requ Gat, " r into r Ation an&c tract m9erialslo your purah8sing pr t esalenal irrPUrchasing. Requester Name: .roan Daly Vendor Name: Hem. corporation Department: UNamation Technology Item I Service: Radloequlpmentand serAws Requisition # if applicable): Antici ated Cost: s6so.000 Emeraencv: Describe the public health or safety issues that requires the immediate product or service (i.e., The supply of vaccination was completely depleted within hours of delivery to the employee health center; the current vendorwill not receive another shipment for 2 weeks). Compatibility ! Proprietary (One of a Kind or No Substitute Available): Describe the research completed to determine that there is only one product or service capable of meeting the County's existing conditions and that no other vendor can provide a product, component, or replacement part that may be substituted. The County's trunked radio system operates with proprietary software and technology protocols. Collier County contracts with the system vendor, Harris Corp, for system component sales, maintenance services and software support. Harris provides these services to Collier County through an authorized sub- contractor, . Authorized Distributor: Describe the research completed to find similar features and operability, and a letter from the manufacturer naming the single source authorized distributor(s) in the southwest Florida region. It is a felony to knowingly circumvent a competitive process for commodities or services by fraudulently specifying sole source. Florida Statute 838.22(2). Requested by: Date: 41 Department Di or: gat -1%- wZ Procurement Profession I at 1 /?w M Packet Page -1263- 10/9/2012 Item 16.E.2. Collier County Waiver Request Comptated waitwr must be vAbmrftd to the d"6Ftment iwremant professional for any amount above S3,OItEI. PU'Oha*08 above $3000 require three gLotee or fort compsWon. The deplirttmertt must provide justification to request consiftration to r the bompedtl*•purt h8Sirt(- and purchase from a single vendor. Waivers of gtteRW than M VWU 1104111111` apprWral by the ,Boar{ of courtly C�omrrtissfor►ets To qualify fbA a wearer: SftdIB waivsr 410%gt7ge,*vide an explanation of the research cond*CW and the -w ng ivitiongl4t and acq*8.the400rmr1i•40 from your dime w, Saw rho waiver request. -any research Mfonrlatimand contract mater&W to Youria+rchas`tng professional in Purchasing. Requester Name: IoM Daly Vendor Name: 4�artrrtent: adonr+bn Teo vwwoq Item tService Pdw Wuwnent an wvw.. Requisition # (if applicable}: i Anticipated Cost" Emerttertcv: Describe the public health or safety issues that requirns the immediate product or service (i.e.. The supply of vaccination was completely depleted within hours of delivery to the employee health center: the current vendor will not receive another shipment for 2 weeks). I-omoaucuRv i Prnnristary (One of a Kind or No Substitute Available): Describe the research completed to determine that there is only one product or service capable of meeting the County's existing conditions and that no other vendor can provide a product, component, or replacement part that may be substituted. The County's trunked radio system operates vWth propr*b" software and technology protocol's. AA equtpntent accessing the system must be compatible with these protocols. Harris Corp., the system vendor requires that only authorized sales and services providers perform system maintenance, system upgrades and software updates. Authorized Distributor. Describe the research completed to find similar features and operability, and a letter from the manufacturer naming the single source authorized distributor(s) in the southwest Florida region. It Is a felony to knowingly circumvent a competitive process for commodities or services by fraudulently specifying sole source. Florida Statute 838,22(2). Requested by: _ Zf::? Dater Department L- Z5- /Z7 Pi;aire rent Professional: - Da`e9 /u✓zwz Packet Page -1264- VA6V_"T July 18th, 2012 Mr. John Daly Telecommunications Manager Collier County Administrative Services Division - Information Technology 3299 Tamiami Trail East, Suite 600 Naples, Florida 34112 RE: 800 MHz Trunked Radio System Dear Mr. Daly, 10/9/2012 Item 16.E.2. HARRIS CORPORATION RF Communications 221 Jefferson Ridge Parkway Lynchburg, Virginia 24501 www.pspc.harr s.com The trunked EDACS radio equipment that operates on Collier County's 800 MHz radio system is manufactured only by Harris Corporation (formally M /A -COM and Ericsson). This radio equipment can only be purchased directly from Harris or indirectly from Communications International (CI), the only Harris authorized EDACS Reseller serving Collier County for both sales and service. If a Collier County entity would like to purchase EDACS radio equipment directly from Harris, this transaction can be handled directly with Harris or through Cl. Harris offers existing EDACS users in Florida a flat 25% discount off the published list price of EDACS radio equipment only. Currently, Harris has a contract with the State of Florida (contract number 725 - 001 -01 -1) that provides the same 25% discount off of our current list price. For direct orders, Purchase Orders would need to be made out to Harris Corporation. Invoicing comes direct from Harris and Harris' Standard Terms and Conditions apply. For indirect orders, the Purchase Order should be made out to Communications International and the invoicing and terms will be from Cl. Communications International (CI) is one of Harris' Regional Centers of Excellence (RCE) from which all channel partners purchase Harris products for resell. The RCEs are the day -to -day contact for product configuration and availability, order placement and status. As such, Communications International (CI) is the only Harris Regional Center of Excellence (RCE) serving Collier County for both sales and service. If you have any further questions or concerns I encourage you to call me at (954) 214 -5783. Thank you for your continued support of Harris radio communications solutions. Truly yours, Jose Luis Vasquez Area Sales Manager Harris RF Communications Division iose.vasguez(@harris.com (954) 214 -5783 Packet Page -1265- assuredcommunications' 10/9/2012 Item 16.E.2. COM -NET AND THE STATE OF FLORIDA, Acting through the Department of Management Services and the State Technology Office Dated as of September 28, 2000 Saa -928 Page Z "00 Service Agreement Packet Page -1266- 10/9/2012 Item 16.E.2. CUM -NET nou THE STATE OF FLORIDA, Acting through the Department of Management Services and the . State Technology Office Dated as of September 28, 2000 Saa -92$ Page 1 L _ _ " ^00 Service Agreement Packet Page -1267- COM -NET 10/9/2012 Item 16.E.2. SERVICE AND ACCESS AGREEMENT TABLE OF CONTENTS 1: INTERPRETATION— — 6 Section l..l_. Section 4.1 ..... - - -• . - - -• b.... ... Section 1.2 Section 4.3 Other Definitions ................................................................ ............................... 8 Section1.3 Section 4.5 Schedules ............................................................................ ............................... 8 Section 1.4 Section 4.7 Parties' Addresses .....................................................:........ ............................... 8 Section 1.5 Section 4.9 Order Of Precedence .......................................................... ............................... 9 Section1.6 V: REPRESENTATIONS ................................................_.....«»........... Time .....................•-------...................................................... .................--- ........... 9 11: TERM, RENEWAL AND CONDITIONS PRECEDENT._......... .......»...«....... IQ Section2.1 Initial Term ......................................................................... .............................10 Section 2.2 Term Extension ....................................................... ........... .............................10 Section 23 Conditions Precedent: Funding ............ ............................... .....................10 Section 2.4 Offset Frequency Waivers .................................................. .............................10 M: COM -NET RESPONSIBILITIES ....».........»..........�....» »» .... .............................12 Section 3.1 Provision Of Services .......................................................... .............................12 Section3.2 Service Levels .. .............................................. ._ .............................................. 12 Section 3.3 Existing JTF Contracts ...................................... . ................................. ............ 13 Section 3.4 Installation And Operation ................................................. .............................14 Section3.5 Warranties .......................................................................... .............................15 Section 3.6 Com -Net And Subcontractor Personnel .......................... ............................... 15 Section 3.7 Software Enhancements ..................................................... .............................17 Section 3.8 Escrow Agreement ............................................................. .............................17 IV : STATE RESPONSIBILITIES .......».»....._ ............................. ....................--Is Section 4.1 Payments To COM- NET .................................................... .............................18 Section 4.2 Operational Plans ................................................................. ....................••- -...18 Section 4.3 Conveyance of Assets ........................................................ ........... ..................18 Section4.4 Access to Sites .................................................................... .............................19 Section 4.5 STATE's System Manager ............................................... ............................... 20 Section 4.6 Communications System Use Planning ........................... ............................... 20 Section 4.7 Use Of Facilities And Support Services ........................... ............................... 20 Section 4.8 Regulatory Approvals ....................................................... ............................... 21 Section 4.9 Competing Systems .......................................................... ............................... 21 Section 4.10 STATE Disclosure Responsibilities ................................ ............................... 21 V: REPRESENTATIONS ................................................_.....«»........... .......... ».................... 23 Section 5.1 Cam -Net Representations ................................................ ............................... 23 Section 5.2 STATE Representations ................................................... ............................... 24 Saa -928 Page 2 c�.......�.... �Q )nnn Service Agreement Packet Page -1268- COM -NET 10/9/2012 Item 16.E.2. SERVICE AND ACCESS AGREEMENT TABLE OF CONTENTS (coat.) VI: MEETINGS, REPORTING AND RECORDS Section6.1 Meetings ........................ ................................ _............................................... 25 Section6.2 Reporting ................................................»....................... ............................... 25 Section 6.3 ...... ..Records..:................... . . _ . . 26 VII: CHARGES AND EXPENSES .----27 Section 7.1 STATE's initial Payment ................................................. ............................... 27 Section7.2 Deliverables ...................................................................... ............................... 27 Section7.3 Quarterly Payments ......................................................... ............................... 28 Section 7.4 Event Of Non - Appropriation ............ ............................... ............................... 29 Section7.5 Taxes ................................................................................ ............................... 29 VIII: REVENUE SHARING».»».......».......».»»».»«».. .....»........». » .............. ...»»...»».. 30 Section8.1 Marketing Rights .............................................................. ............................... 30 Section 8.2 Third -Party Lease Negotiations and Reporting ................ ............................... 30 Section 83 Third Party Subscriber Revenue..... .................................. ............................... 30 Section 8.4 Third Party Tenant Revenue ............................................. ............................... 30 Section8.5 Additional Sites ................................................................ ............................... 31 Section 8.6 Radio Salvage Proceeds ................................................... ............................... 31 Section8.7 Payment Terms ................................................................. ............................... 31 Section8.8 Survival ............................................................................ ............................... 32 IX : DISPUTE RESOLUTION; BONDS AND END OF TERM OPTIONS...... »......»»... 33 Section 9.1 Resolution Of Disputes .................................................... ............................... 33 Section 9.2 Construction and Performance Bonds .............................. ............................... 33 Section93 Bond Provisions ............................................................... ............................... 34 Section9.4 End Of Term Options ....................................................... ............................... 35 X: DEFAULTS AND REMEDIES ..»...»...»...»»»»».»..».»......»....» ............. »»------ .--- ... ».-- -- 37 Section 10.1 STATE Events Of Default ............................................... ............................... 37 Section 10.2 Com -Net Events Of Default ............................................ ............................... 37 Section10.3 Remedies ............................................................................ .............................38 Section 10.4 Remedies Cumulative ...................................................... ............................... 39 Section10.5 Waiver Of Default ........................................................... ............................... 39 XI : OTHER PROVISIONS---..—.. ..»».»»»».».........»» . ».. ». » »........». »............ 40 Section 11.1 Software License .............................................................. ............................... 40 Section11.2 Other Work ...................................................................... ............................... 40 Section 11.3 Force Majeure .................................................................. ............................... 40 Section 11.4 Insurance And Risk Of Loss ............................................ ............................... 40 Section 11.5 Amendment And Waiver ................................................. ............................... 43 Section 11.6 Further Assurances .......................................................... ............................... 43 Saa -928 Packet Page - 1269 -� rage 3 Service Agreement COM NET 10/9/2012 Item 16.E.2. SERVICE AND ACCESS AGREEMENT TABLE OF CONTENTS (cons) Section 11.7 Severability ..................................................................... ..............................- 43 Section 11.8 Entire Agreement ............................................................. ............................... 44 Section11.9 Governing Law ................................................................ ........................... . ... 44 _. Section 11,1Q..Public.,Regulation and Frequency Licenses ................. ......... ........... . 44 Section 11.11 Assignment ........................... .............. ..............................- ---- ......... 45 Section 11.12 Confidentiality ............................ _ .................................................................. 46 Section 11.13 Publication And Publicity ................................................ ............................... 46 Section 11.14 No Third Party Beneficiaries ........................................... ............................... 46 Section11.15 Counterparts ................................................ ......................... ...... .................46 Saa -928 Page 4 10 Packet Page -1270 - Service Agreement COM -NET 10/9/2012 Item 16.E.2. SERVICE AND ACCESS AGREEMENT This SERVICE AND ACCESS AGREEMENT ("Service Agreement') is entered into on the 28* day of September 2000, by and between COM NET ERICSSON CRITICAL RADIO SYSTEMS, INC., a Delaware corporation ( "COWNET'� and THE STATE OF FLORIDA, acting by and 1. ._.......- _11-1-1--.- ......... _ through the Department ofManagement Services ( "DMS') and the State Technology Office ("STO ") acting as administrative agent for the Joint Task Force ( "JTF") on STATE Agency Law Enforcement Communications (collectively the "STATE"). NOW THEREFORE, in consideration of the premises and mutual covenants hereinafter set forth and intending to be legally bound, the Parties hereto agree as follows: ragea Packet Page - 1271 -,, Service egm=cnt r--- ---- - - -'` COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. I: INTERPRETATION Section 1.1 Definitions In this Service Agreement, the following terms shall have the following respective meanings: A. "Affiliate" means any other entityor person that; directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the specified entity or person. B. "Communications. System" means the communications facilities, improvements, equipment and other improvements described in Schedule A hereto. C. "COM- -NET" means Com -Net Ericsson Critical Radio Systems, Inc., and any successors or assigns thereto as permitted hereunder. D. "Contract Documents" means: (1) This Service Agreement; and (2) COM -NET`S Response dated March 3, 2000 to the STATE's Request for Proposals No. 21- 725 - 001 -W, as modified by Proposal dated April 19, 2000 and further modified by agreement. E. "Deliverable" means the reports, payments and performance defined in Section 7.2. F. "Effective Date" means the effective date of this Service Agreement, which is the later of the date set forth in the opening paragraph hereof and the date of completion of all conditions precedent as set forth in Section 2.3 hereof. G. "Existing Contracts" means the STATE's contracts and agreements for hardware maintenance, support services and construction as identified in Schedule C hereto. H. "Existing System" means all of the assets comprising the existing JTF Motorola mobile radio system. I. "FCC" means the Federal Communications Commission, or any other similar or successor agency of the federal government administering the Communications Act. J. "FCC Licenses" means the Licenses currently held by the STATE or issued in the future to the State for use of spectrum at 800 MHz to provide public safety services. K. "Fiscal Year" means the fiscal year of the STATE, which currently ends on June 30 of each year. Saa -928 Page 6 V--t--NO �� Service Agreement Packet Page -1272- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. L. "Governmental Authority" means any nation or government, any state or any political subdivision thereof, any municipal, local, city or county government, and any entity exercising executive, legislative, judicial, regulatory or administration functions of or pertaining to government. M. "Initial Term" means the initial contract term as defined in Section 2.1. N.._ "Parties" means the parties to this Service Agreement and "Party" means either one of ....... _ . _ ... .. them. O. "Quarterly Payments" means the fees that the STATE agrees to pay four times a year as set forth in VII hereto. P. "Secured Debt" means any obligations issued by COM -NET, or its Affiliates, which are secured in whole or in part by payments made bythe STATE pursuant to this Service Agreement. Q. "Service Agreement" means this Service and Access Agreement and all Schedules hereto, as the same may be amended and supplemented from time to time as provided herein. The definition of Service Agreement should incorporate the STATE's General and Special Conditions. R. "STATE" means the State of Florida, acting by and through the Department of Management Services as state term contract administrator, and the State Technology Office of the Department of Management Services, acting as administrative agent for the Joint Task Force on State Agency Law Enforcement Communications. S. "Term" means the Initial Term and the Term Extension(s) as permitted in Section 2.2, if any. T. "Third Party Subscribers" means users, who are eligible under Part 90 of the FCC's rules to use spectrum allocated for public safety use, to which COM NET provides communications services on the Communications System. U. "Third Party Tenants" means entities to which COM -NET leases tower space on the conveyed towers.. V. "Trust Fund" means the STATE Agency Law Enforcement Radio System Trust Fund as established by Section 282.1095, Florida Statutes. W. "Trust Fund Net Proceeds" means the annual proceeds ofthe Law Enforcement Radio System Trust Fund less the 7% General Revenue Surcharge, the 5% statutory reserve and a $200,000 administrative charge. Saa -928 Page 7 c— U— q* gngo Service Agfe=ent Packet Page -1273- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. Section 1.2 Other Definitions Other terms used in this Service Agreement shall have the respective meanings given such terms herein. Section 13 Schedules The_following is a list of the schedules attached to and incorporated into this Service Agreement and deemed to be a part of this Service Agreement {the "Schedules"}: A. Statement of Work: Schedule A contains COM -NET's statement of work and includes an overview of the system, an outline of project responsibilities, a transition plan and a future maintenance plan. B. Acceptance Testing Procedures: Schedule B contains the Acceptance Testing Procedures. C. Existing Contracts: Schedule C describes all contracts and agreements relating to the Existing System. D. Owned Tangible Equipment: Schedule D describes DMS owned equipment which is being conveyed to COM -NET. E. Tower Sites Available for Conveyance: Schedule E provides the DMS and JTF tower sites that are potentially available for conveyance to COM -NET. F. Long Term Purchase Agreement: Schedule F provides the form of the Long Term Purchase Agreement G. User Equipment Maintenance Agreement: Schedule G provides the form ofthe User Equipment Maintenance Agreement. H. Special Conditions: Schedule H sets forth the Special Conditions. I. General Conditions: Schedule I sets forth the STATE's general contract provisions. J. Technology Escrow Agreement: Schedule J sets forth the form of the Technology Escrow Agreement. Section 1.4 Parties' Addresses All notices under this Service Agreement shall be in writing and shall be deemed to have been duly given upon being delivered personally or upon receipt if mailed by certified mail, return receipt Saa 928 Page 8 )noo Service Agreement Packet Page -1274- COM NET Service and Access Agreement 10/9/2012 Item 16.E.2. requested. Notices shall be sent to the representatives named below or any subsequent representative for whom notice was provided pursuant to this section. A. If to COM -NET, to: State of Florida Senior Project Manager and Corporate Counsel COM- NETEricss6n Critical Radio Systems, Inc. 3315 Old Forest Road Lynchburg, Virginia 24501 Fax (804) 385-2301 B. If to the STATE, to: Contract Manager State Technology Office 4030 Esplanade Way Tallahassee, FL 32399 -0950 Section 1.5 Order Of Precedence System Manager State Technology Office 4030 Esplanade Way Tallahassee, FL 32399 -0950 In the event of a conflict between the terms and conditions of any of the Contract Documents, the controlling terms and conditions shall be, in descending order of precedence, those of: A. State of Florida Special Conditions (Schedule H) B. State of Florida General Conditions (Schedule I) C. The Service Agreement (including all remaining Schedules incorporated herein) D. COM NET`s Response dated March 3, 2000 to the STATE's Request for Proposals No. 21- 725- 001 -W, as modified by Proposal dated April 19, 2000 and further modified by agreement E. Any Purchase Order Section 1.6 Time In this Service Agreement, unless otherwise specifically stated in the context of the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding." Saa -928 rage Y ^ I.. — ^ ^00 Service Agreement Packet Page -1275- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. II: TERM, RENEWAL AND CONDITIONS PRECEDENT Section 2.1 Initial Term The Term shall begin on the Effective Date and shall terminate at- the end the fiscal year, 20 years . . after the Effective Date, unless extended in accordance with Section 2.2 hereof. Section 2.2 Term Extension The Term of this Service Agreement may be extended annually beyond the Initial Term on such terns and conditions to which the Parties mutually agree. The STATE shall notify COM -NET whether it intends to extend this Service Agreement at least one year prior to the end of the Term. Section 2.3 Conditions Precedent: Funding This Service Agreement is expressly conditioned upon and subject to approval of a budget amendment to secure fimds as required by Chapter No. 20N -369, Florida Laws. Notwithstanding anything herein to the contrary, the Term of this Service Agreement shall be subject to the provisions of Section 7.4 hereof in the Event of Non-Appropriation. Section 2.4 Offset Frequency Waivers It is the STATE's expectation that the FCC will grant the STATE's Request for Expedited Waiver (filed by the STATE with the Chief of the FCC's Wireless Telecommunications Bureau on August 8, 2000, and any amendments or supplements thereto) and approve use of the 19 offset frequencies associated with the following 20 contiguous 800 MHz channels that are already licensed to the STATE: 808.8375 808.9625, 809.0875, 809.2125, 808.8625 808.9875, 809.1125, 809.2375, 808.8875, 809.0125, 809.1375, 809.2625, 808.9125, 809.0375, 809.1625, 809.2875, 808.9375, 809.0625, 809.1875, 809.3125 Saa -928 Page 10 Packet Page -1276- 0 Service Agreement COM NET Service and Access Agreement 10/9/2012 Item 16.E.2. If the Expedited Waiver is not granted or is subsequently set aside, then the STATE shall have the following options: A. terminate this Service Agreement whereupon it shall have no other liability whatsoever to COM -NET under this Service Agreement and COM -NET shall reimburse the STATE for all legal expenses incurred by the STATE in its efforts to gain access to such offset ... frequencies; or B. proceed as follows: (1) the Parties shall meet within ninety (90) days after the Effective Date to assess the progress of the STATE in obtaining the Expedited Waiver, and (2) if despite the best efforts o Parties, the Expedited Waiver is not granted within one hundred and " ty 120) days following the Effective Date, or if the Expedited Waiver is 'th conditions that are materially adverse to the STATE, CO M- s provide thereafter to the STATE, at the STATE's option and at M -NET7s expense, a new System Design for the STATE's review and approval within 30 days. In the event that the new System Design does not meet the STATE's coverage and functional requirements, the STATE. may terminate this Service Agreement under Section 2AA above. (3) If the new System Design meets the STATE's requirements and within one . hundred and eighty (180) days from the Effective Date the Expedited Waiver has still not been granted, COM -NET, at the STATE's option, shall commence implementation of such new System Design. Saa•928 Page i 1 I nn ~n10 Service Agreement Packet Page -1277- COM -Nn Service and Access Agreement 10/9/2012 Item 16.E.2. III: COM -NET RESPONSIBILMES Section 3.1 Provision Of Services In consideration for the fees and charges as set forth in VII hereto, subject to the limitations, qualifications and exclusions set forth in this Service Agreement -( including -the Schedules),_COM- NET shall provide the following products and services: A. access to the Communications System B. the products and services provided herein, including all schedules Section 3.2 Service Levels COM -NET shall ensure that its performance of the Services will meet or exceed the applicable Service Levels described in this section. The system is divided into five subsystems in order to evaluate the overall performance of the Communications System. Subsystem Uptime will be calculated on a weekly basis and applied over each calendar quarter period. Downtime is the average time components in the subsystem are unavailable for use, such that users are materially affected Downtime shall not include downtime for scheduled maintenance or Communications System upgrades or for factors subject to Force Majeure. The five subsystems are as follows: A. IMCs (includes DViUs) / StarGate B. Simulcast control points C. Simulcast repeater sites D. Stand alone (non - simulcast) repeater sites E. Repeaters Each subsystem shall have an uptime greater than or equal to 99.8% when calculated on a weekly basis and applied over each calendar quarter. Saa -928 Page 12 IMD Service Agreement Packet Page -1278- COM -NET Service and Access A Bement 10/9/2012 Item 16.E.2. Failures shall be declared regardless of which part of the system failed, including microwaveM, power, HVAC, or 800 MHz equipment, but will only count against the uptime calculation if service to the users was affected. For example, if 1 out of 6 repeaters failed, but no queuing was experienced due to the failure, then the downtime of the repeater would not apply toward the downtime. However, if a link to a repeater site fails and an alternate path is not available, users would be affected such that all of the downtime for that repeater site would apply toward the potential liquidated damages for the repeater site subsystem category. Below is a list of some of the potential failure types and the category where it would be classified: ■ a single channel failure '(whether the failed component is within an IMC, the microwave multiplex equipment, or a repeater) will be counted as single repeater downtime; • the failure of a single repeater site to communicate with the IMC will be considered as single repeater site downtime; a and a link failure can be considered a site, simulcast control point, or an EMC failure, if no alternate path exists for the failed path. Section 3.3 Existing TITF Contracts To the extent permitted, the STATE shall assign to COM -NET the Existing Contracts in Schedule C. A. COM NET may, at its expense, after giving the STATE 30 days prior written notice of its intent, cancel, substitute, amend, or request the STATE to cancel, substitute or amend, any Existing Contracts as long as such change does not result in breach of any such existing contracts or degradation of Services to the STATE. If, within such 30-day period, the STATE should raise any issue concerning such cancellation, substitution or amendment, the Parties shall meet and mutually resolve such issues prior to the implementation of such change. B. COM -NET shall pay, or reimburse the STATE for, all contracts and agreements in Schedule C that are not assigned. C. The STATE will indemnify COM -NET for any loss COM -NET may incur as a result of DMS' negligence relating to the Existing Contracts attributable to periods prior to the Effective Date and thereafter if not incurred as a result of any default of COM -NET. This indemnification is subject to the limitations found in Sec. 768-28(l 8), Fla. Statute, and nothing herein shall be deemed to alter the limits of liability set forth therein. Saa -928 Page 13 Service Agreement Packet Page -1279- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. D. Notwithstanding anything herein to the contrary, at the STATE's option, COM -NET shall honor the following contracts on the existing Motorola 800 MHz radio infrastructure and any necessary software upgrades until such time as Phase I and II equipment is accepted: (1) 725- 001 -90-1 PO # B56473- (2) 725-001 -90-1 PO # B56474 .. ........ . (3) _ 725-0014a1- PO # B56475 After the Effective Date, COM -NET shall pay all invoices submitted by the STATE in regard to such contracts. The STATE will review all such invoices for reasonableness prior to submission to COM -NET. E. COM -NET shall pay for the maintenance or replacement ofnon -800 MHz infrastructure owned by the JTF member agencies in the existing Phases III, IV & V until such time as the new 800 MHz system is operational in those areas. In no event shall COM -NET's liability to pay said amounts exceed $500,000 per year. F. COM -NET shall reimburse the position costs for the State Technology Office Radio System Project through June 30, 2001, said position costs to be agreed upon and not more excessive than usually incurred or previously predicted. COM -NET's payment or reimbursement to the STATE for said salaries shall in no way be construed to create an employer /employee relationship or an implied contract of any kind. All such employees shall remain employees of the STATE entitled to all the benefits thereof and shall not be eligible to participate in any COM -NET employee benefit plan. G. The STATE will continue to pay existing contract obligations as customary, and when they become due, prior to the effective date. Section 3A InstaQation And Operation A. The Communications System shall at all times be operated in accordance with all FCC and other applicable rules and regulations, and in such a manner as not to cause interference, of any kind, with any lawful radio transmissions of radio or,television broadcasts in the area of the sites, or the transmission or reception of radio, television, microwave and other communication signals as conducted on the Effective Date of this Service Agreement by existing tower users of the STATE. COM -NET shall not violate any federal, state or local law currently in effect or promulgated including, but not limited to, laws, rules or regulations pertaining to electromagnetic radiation. If the operations conducted by COM -NET under this Service Agreement shall at any time cause any such interference or violation of law, COM -NET shall immediately, at COM- Saa -928 Page 14 °---•-- 1--''° '^'lo Service Agreement Packet Page -1280- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. NErs own expense, take all steps necessary to remedy such situation and/or eliminate such interference. B. COM -NET, under the supervision of the STATE, will use its best efforts to manage the resolution of any matter relating to interference with the STATE's transmission or reception of signals, or damages or related costs arising therefrom caused by others. Without limiting the generality of the foregoing, COM -NET shall provide the STATE all necessary tectincal assistance in identifying the source of such ite derence'and recommendations as to how to resolve such interference. Except for its obligations to the FCC, neither the STATE nor its agents shall be held responsible for COM -NET's noncompliance with any law pertaining to the operation ofthe Communications System. C. The Communications System shall be constructed and operated in accordance with the technical specifications which will be made a part of this Service Agreement as described in Schedules A and B hereto. Compliance with the specifications and requirements of the FCC Licenses-will be demonstrated in part by tower analysis and intermodulation, transmitter noise and receiver desensitization studies. D. Acceptance testing of the Communications System shall be performed in accordance with the provisions of Schedule B hereto. E. COM -NET shall maintain the Communications System in accordance with the plan described in Schedule A hereto and in accordance with all applicable laws, including the Communications Act, as amended, and FCC rules and regulations. F. COM -NET, with the consent of the STATE, which consent shall not be unreasonably withheld, will make the Communications System available to Third Party Subscribers in the STATE as provided in the Contract Documents; provided, however, that the STATE shall at all times have unfettered use of all facilities and equipment in connection with the Communications System. The Parties will cooperate to secure any necessary consents or applicable waivers from the FCC or other regulatory bodies. Section 3.5 Warranties COM -NET warrants the Communications System pursuant to the Special Conditions in Schedule H. Section 3.6 Com -Net And Subcontractor Personnel A. COM -NET shall designate a person to whom all communications from the STATE may be addressed and who has the authority to act for COM NET in connection with all Saa -928 Page 15 )nno Service Agreement Packet Page -1281- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. aspects of this Service Agreement (the "COM- -NET Manager. ") COM -NET may replace the COM -NET Manager at any time during the Term, upon 30 days prior written notice to the STATE. In the event of such replacement, a resume of the replacement person will be provided to the STATE for approval, which will not be unreasonably withheld. B. COM -NET shall implement the System Management Matrix shown in Fiu ft*emw site . Figure l COM -NET Management Matrix 1. AdMWOWW P. LVr sue Devebpmenc Fbrida sits C Cam. �Twr com~ Esimm Lyrdturg SLPpaR Fesstioos Traem sr. Prgea Director hkfin - nu ftied MW " �" Fbdda Fimft srts �� i r^ Sloe tAar vw Site Meager UMd Q"1h Fbrida FbriCa Fbrida� n.. I Firida SWevpm LA I i I 1POeL- Lwd ire SE-LrChbtn I I I SE-Lrdftn system &* I System COM NET shall, at all tunes, employ qualified and sufficient personnel for completing work in the manner and time required. COM -NET further understands that the STATE has relied on the qualifications of COM -NET's personnel as one of the main criteria for awarding this Service Agreement. Accordingly, the key personnel listed in the proposal shall be the personnel assigned to perform this Service Agreement and shall not be substituted or removed from their positions prior to final acceptance of the Communications System without the consent of the STATE, whose consent shall not be Saa -928 Page 16 e.......a..r �s? -)Mr) Service Agreement Packet Page -1282- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. unreasonably withheld. Upon termination of a COM -NET employee, COM -NET shall timely replace the employee with a person of equal or greater skill and expertise to continue performance of the contract. COM -NET shall bear all cost and responsibility for ensuring that replacement personnel are trained and prepared to assume the tasks of the previously assigned employee immediatelywithout causing delay or inconvenience to the STATE. C. The STATE shall have the right to approve any subcontractor utilizedbyCOM -NET in construction of the Communications System, which approval shall not be unreasonably withheld. D. The STATE retains the option to require the removal from the state premises of any employee, subcontractor or other person the STATE deems inappropriate for any reason whatsoever for placement in a public safety environment. E. COM -NET agrees that each of its employees, subcontractors, consultants and principals/owners, at the option of the STATE, be subject to a security check at anytime and will meet all security requirements at all times. Section 3.7 Software Enhancements COM -NET shall provide, at no cost to the STATE, all applicable software enhancements released during the Term of the Service Agreement, and will implement such upgrades on the Communications system as mutually agreed. Section 3.8 Escrow Agreement COM -NET shall meet all its obligations with respect to the technology escrow agreement (Schedule J), including paying the escrow fees and depositing the source code of the installed software on a timely basis. Saa -928 Page 17 ea., ►..»�, -� Q 7nno Service Agreement Packet Page -1283- COM NET Service and Access Agreement 10/9/2012 Item 16.E.2. IV: STATE RESPONSIBILITIES Section 4.1 Payments To COM NET The obligations of the STATE to make Quarterly Payments shall be limited to monies deposited to _.. the. Trust. Fund. at. the _$1.0.0 statutory_ level .currently in effect. on_ the Effective. Date hereo£ The STATE shall use its best efforts to: A. Maintain the license surcharge deposited in the Trust Fund at $1.00 as provided in Section 320.0802 and Section 328.72, Florida Statutes; and HB 1707er, Section 37, Chapter 99 -399. B. Include in the STATE's final budget an appropriation for the Quarterly Payments, which shall become due in the next succeeding Fiscal Year. Section 4.2 Operational Plans The STATE shall cooperate with COM -NET in the implementation of all project and operational changes and, where the change requires the STATE`s agreement, consent or approval, such agreement, consent or approval shall be in writing and shall not be unreasonably withheld. Section 43 Conveyance of Assets In order to allow COM -NET to execute its duties and obligations, the STATE will convey to COM- NET all rights, and interests in the assets and properties described below: A. DMS Owned Tangible Equipment: All DMS Owned Tangible Equipment listed in Schedule D is to be conveyed AS IS; B. Existing Towers Potentially Available for Assignment: The STATE will use its best efforts to convey its rights and interests in the communications sites identified in Schedule E and provide ground leases as set forth below. Upon conveyance, COM -NET will assume the sites AS IS, including liabilities and expenses of the sites (subject to the rights of any existing tenants as appropriate) and will market and share revenues received from these sites, per provisions of Section 8.4, for a period of not less than 50 years- The STATE will use its best efforts to: Saa -928 Page 18 C ^ntrmtwr lR ?CM Service Agreemem Packet Page -1284- COWNET Service and Access Agreement 10/9/2012 Item 16.E.2. (1) Assign all underlying ground leases or other instruments of conveyance to transfer rights necessary to operate and market the towers; (2) Make modifications to the ground leases as needed; (3) Execute any reasonable instruments of conveyance necessary to effect such conveyances including assignment agreements, certificates of estoppel, etc.; (4) Have underlying property owners maintain a zero rental or nominal lease rate; (5) Execute an Interagency Agreement by and among relevant agencies. In consideration of the conveyances, COM -NET has reduced the amount of the STATE's required initial contribution by $20,000,000 and will provide the STATE with a purchase credit, for goods and services such as those in the Long Term Purchase Agreement, of $300,000 per tower site conveyed to COM -NET, up to an aggregate amount of $25,500,000. Nothing herein shall nullify the STATE's obligation to use its best efforts to convey all of the tower sites included in Section 13E. C. Additional State -owned Sites: The STATE shall use its best efforts to identify additional STATE -owned wireless communications sites for potential conveyance to COM -NET under this agreement. The STATE will be given consideration for such wireless communications sites in the form of a purchase credit for goods and services such as those in the Long Term Purchase Agreement, at mutually agreed upon amounts. Conveyance of any additional sites will not be subject to the aggregate amount in Section 43B. The STATE concurrently with its conveyance of any equipment shall receive from COM -NET an appropriate security interest in such equipment, subject to any purchase money security interest COM -NET grants to a third party. At its option, the STATE may repurchase any of the conveyed towers 50 years from the date of conveyance, for the sum of $1 per tower. Upon repurchase of the towers, the STATE agrees to extend services to Third Party Subscribers and Tenants and maintain the towers as required COM- NET will execute any reasonable instruments of conveyance as required. Section 4.4 Access to Sites The STATE shall use its best efforts to provide, at no cost, access for COM -NET to all lands, buildings or structures (including, without limitation, towers) owned, leased or controlled by the Saa -928 Page 19 Sentember 28. 2000 Service Agreement Packet Page -1285- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. STATE or any agency thereof as may be reasonably necessary for COM NET to fulfill its obligations pursuant to this Service Agreement. COM -NET shall hold and save the STATE, its officers, agents and employees harmless against claims by'third parties resulting from any liability arising from the STATE providing such access. Section 4S STATE's System Manager The STATE shall designate a contact person ("STATE's System Manager" ) who shall be the primary interface with COM -NET. The STATE may designate anew System Manager at anytime during the Term upon providing COM -NET with 30 days prior written notice. The STATE's System Manager shall establish and approve all policies applicable to operations and shall be authorized to act on behalf of the STATE on all matters in connection with this Service Agreement. Section 4.6 Communications System Use Planning During the Term of this Service Agreement, the STATE shall notify. COM -NET of any activities, changes, plans or events that may significantly affect the operations of the Communications System. COM -NET will treat all information received as confidential. Each party shall protect such confidential information in the same manner as it protects its own confidential information of like kind Disclosure of any confidential information will be governed by the provisions of the Florida Public Records Act, Chapter 119, Florida Statutes. Section 4.7 Use Of Facilities And Support Services The STATE shall, at no charge to COM -NET: A. Provide access to and use of the facility locations described in Schedule E to the extent allowed under existing agreements, 24 hours a day, seven days a week. COM NET shall comply with all policies and procedures governing access to and use of state facilities to the extent allowed under existing agreements, if applicable. At all times during which COM -NET uses space in the STATE facilities, COM NET shall: Saa -928 Page 20 Sentemher 2R- 2nM Service Agreement Packet Page -1286- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. B. use all reasonable care to comply with applicable agreements of the STATE relating to such space; and C. use all reasonable care to maintain the space in the condition in which it existed immediately prior to the date on which COM -NET was given access to the space, reasonable wear and tear accepted eetion 4. 8 Rcg tory Approvals The STATE and COM -NET shall cooperate to obtain all regulatory licenses, consents, approvals and waivers reasonably necessary for the ownership and operation of the Communications System. COM -NET shall pay all charges, fees and taxes in regard to obtaining such licenses, consents, approvals and waivers. In addition, the STATE and COM -NET shall cooperate in obtaining the use of needed sites including, but not limited to, all zoning and land use permits relating to the Communications System. The STATE shall retain ultimate control and authority over its FCC licenses, which shall at no time be transferred to COM -NET. Section 4.9 Competing Systems It is not the intent of the JTF law Enforcement Agencies or the STATE acting on their behalf to build, own, operate or access any communications system or facilities that would directly compete with, replicate or be redundant to the Communication System which would provide the Services set forth in this Service Agreement. This does not preclude the Eligible Users from procuring additional equipment, such as mobile data computers or associated services, outside this agreement. Section 4.10 STATE Disclosure Responsibilities In order to enable COM -NET to comply with the requirements of federal securities laws the STATE agrees to prepare and file with COM -NET any annual financial information or material events disclosures that are required to achieve such compliance. These laws include without limitation, Rule 144A and Rule l ab-5, promulgated by the Securities and Exchange Commission under the Securities Act of 1933, the Securities Exchange Act of 1934 and amendments of each. Saa -928 Page 21 Sentember 28.2000 Service Agreement Packet Page -1287- COM NET Service and Access Agreement 10/9/2012 Item 16.E.2. The STATE consents to COM -NET's incorporation by reference into COM -NET's prospectuses, necessary official statements or other necessary disclosure documents related to the obligations, the STATE's official statements or portions thereof, financial statements or other documents that the STATE may have filed or may file with Municipal Securities Rulemaking Board, any one or more nationally recognized municipal securities information repositories, or any state information depository . .. Saa -928 Page 22 0-1— ''^^O Service Agreement Packet Page -1288- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. V: REPRESENTATIONS Section 5.1 Com -Net Representations A. Organization. COM -NET is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation. _ .._ ...... ....__ ...... _ _. B. Authority: COM -NET has full power and authority to enter into this Service Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by COM -NET of this Service Agreement have been duly authorized by all requisite corporate action. This Service Agreement has been duly executed and delivered by COM -NET, and constitutes a valid and binding obligation of COM -NET, enforceable in accordance with its terms, except as such enforceabilitymay be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally or by general equitable principles. C. No Violation. To COM -NET'S knowledge and belief, neither the entering into of this agreement nor the consummation of the transaction contemplated hereby will constitute or result in a violation or breach by COM -NET of any judgment, order, writ, injunction or decree issued against or imposed upon it, or will result in a violation of any applicable law, order, rule or regulation of any Governmental Authority. D. Litigation The following is a list of the outstanding disputes and investigations known to the COM- -NET that may give rise to a material adverse effect on the ability of the COM- NET to consummate the transactions contemplated for the Term of this Service Agreement: (1) Motorola, Inc. v. State of Florida Department of Management Services, BID 00 -2921, State Of Florida Division Of Administrative Hearings (2) Motorola, Inc. v. State of Florida Department of Management Services, Case No. 00 -1705, In The Circuit Court of The Second Judicial Circuit In And For Leon County, Florida Motorola, Inc. v. State of Florida Department of Management Services, Case No. I D00 -2672, In The First District Court of Appeal of Florida If a court finds this agreement is unauthorized or void, the agreement shall be deemed terminated without liability to either party and any unexpended payments to COM -NET will be refunded to the state. Saa -928 Page 23 c ....._i r -,o -)nr)o Service Agmm=t Packet Page -1289- COM-NU Service and Access Agreement 10/9/2012 Item 16.E.2. Section 5.2 STATE Representations The STATE represents and warrants to COM-NET that A. Authority. The execution, delivery, and receipt of the Agreement Documents, under the circumstances contemplated by the Agreement Documents, and the compliance with the provisions thereof, have not and will not in any material respect conflict with or ..................... - .. ...... . . ...... - ... ... ........... .... .......... ... ......... .. I-- I.I....'.....- - ........ ........ I - ........ ... . ...... constitute on the part of the STATE a breach of, or a default under, any agreement or other instrument to which the STATE is a party or by which it is bound or any existing law, court or administrative regulation, decree, or order to which the STATE is subject or by which it is bound. B. No Violation. To the STATE's knowledge and belief, neither the entering into of this agreement nor the consummation of the transaction contemplated herebywill constitute or result in a violation or breach by the STATE of any judgment, order, writ, injunction or decree issued against or imposed upon it, or will result in a violation of any applicable law, order, rule or regulation of any Governmental Authority. C. Litigation The list of the outstanding disputes and investigations in Section 5.1D is known to the STATE and may give rise to a material adverse effect on the ability of the STATE to consummate the transactions contemplated for the Term of this Service Agreement. If a court finds this agreement is unauthorized or void, the agreement shall be deemed terminated without liability to either party and any unexpended payments to COM-NET will be refunded to the state. Saa-928 Page 24 llnr10 Service Age=ent Packet Page -1290- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. VI: MEETINGS, REPORTING AND RECORDS Section 6.1 Meetings Within 30 days following the Effective Date, the Parties will mutually determine an appropriate schedule ofperiodic meetings to be held between the STATE and.COM-NET. At.aminimum,- these... _ meetings will include weekly maintenance meetings, monthly performance reviews and issue meetings and a quarterly management meeting to review COM -NET's current monthly report on Service Level achievement, project schedules, changes, operating parameters and such other matters as appropriate. All meetings will have a published agenda issued sufficiently in advance of the meeting to allow meeting participants a reasonable opportunity to prepare for the meeting. Section 6.2 Reporting The parties will mutually determine an appropriate set of periodic reports to be issued by COM -NET to the STATE. At a minimum, the following reports shall be provided on a weekly basis: A. STATE System usage; B. Customer service request and resolution; C. Preventative and connective maintenance; and D. System outage report. The following reports will be provided on a monthly basis: E. CUM NEPs Service Level performance; F. The STATE's system utilization; and G. Third Party system utilization. The following reports shall be provided on a quarterly basis: H. COM -NET's Service Level performance; I. The STATE's system utilization; Saa -928 Page 25 7Q -mqo Service Agreement Packet Page -1291- COM -NET Service and Access Agreement 10/9/201 2 Item 16.E.2. J. Third Party system utilization; K. Third Parry system sharing revenue; L. Third Party tower revenue; M. Total debt secured by project; and N. Executive Summary. .... _ .... Section 63 Records A. COM -NET shall maintain books, records and other compilations of data pertaining to the requirements of this Service Agreement to the extent and in such detail as shall substantiate claims forpayment under this Service Agreement All such records shall be kept for a period of five years or for such longer period as is specified herein. If any litigation, claim, negotiation, audit or other action involving the records is commenced prior to the expiration of the applicable retention period, all records shall be retained until completion of the action and resolution of all issues resulting therefrom, or until the end of the applicable retention period, whichever is later. Duly authorized representatives or designees of the STATE shall have the right at reasonable times and upon reasonable notice to examine and copy; at reasonable expense, the books, records and other compilations of data of COM -NET which pertain to the provisions and requirements of this Service Agreement Such access shall include on -site audits, review and copying of records. B. All documents, papers, letters or other material relating to this Service Agreement that are made or received by COM -NET in conjunction with this Service Agreement are public records and must be available to public access and for audit purposes, for a period of five years after completion of this Service Agreement Materials exempt from this requirement are: (1) computer security risk analyses, (2) written internal STATE computer security policies and procedures, (3) internal audits as required by law, (4) documentation or other material related to STATE - produced sensitive software as defined in law, (5) materials which may reveal STATE security systems, or (6) other materials exempted by law. C. This provision shall survive the expiration or earlier termination of this Service Agreement. Saa -928 Page 26 ca..t_... -)o ''MO Service Agreement Packet Page -1292- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. VII: CHARGES AND EXPENSES Section 7.1 STATE's Initial Payment Upon the later of the Effective Date or receipt of confirmation that the Construction Bond is in place, - .. 1. the STATE agrees to pay COM- NET an amount equal to $40, 000, 000 from the Trust Fund for project initiation. Such monies shall be held in trust by COM -NET for the State of Florida project (the "Project Trust") and shall be used only to pay costs relating to the acquisition, construction, maintenance and financing of the Communications System as provided in this Service Agreement In no event may COM -NET withdraw any part of the final $4,000,000 from the Project Trust prior to satisfactorily completing all final acceptance test procedures pursuant to Schedule B. Section 7.2 Deliverables In order to receive Quarterly Payments as identified in Section 7.3, COM NET shall: A. provide a quarterly Executive Summary which shall include, but is not limited to, a narrative describing the current status of the system and significant events occurring in the preceding quarter, including the progress of any system build outs or modifications; B. deliver the reports identified in Section 6.2 as required; C. make timely payments pursuant to Section 3.3; D. meet or exceed the Service Levels delineated in Section 3.2 and the Schedules; and E. make timely progress in the construction and implementation of the Communications System pursuant to Section III and the following implementation deadlines: (1) Phase III completion by June 30, 2002 (2) Phase IV completion by June 30, 2003 (3) Phase V completion by June 30, 2004 Adjustments in these implementation dates, and the transition dates for Phase I and II, may be made as mutually agreed by the Parties. A third party fiduciary may be mutually agreed upon by the parties to oversee governance of Deliverables. Saa -928 Page 27 "10 Service Ag==t Packet Page -1293- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. Section 73 Quarterly Payments The STATE shall make Quarterly Payments in arrears in the amounts of all Trust Fund Net Proceeds deposited during the Term. Payments shall be subject only to the annual appropriation of such payments by the Legislature and the following: A. .... .. Invoices:._ COW NET shall submit invoices for each quarterly payment with suff dent detail to perform a proper preaudit and postaudit. All payments shall be made in accordance with Section 215.422, Florida Statutes or otherwise upon approval of the Comptroller. The Parties agree that 15% of the payment otherwise due to COM -NET for any given quarter may be withheld by the STATE until all Deliverables have been accepted by the STATE for the applicable quarter. At such time as all Deliverables are completed, the STATE shall pay to COM -NET the amount previously withheld. B. Acceptance of Deliverables: Upon receipt of the Deliverables in Section 72, the STATE will have ten business days to accept orreject the Deliverables, using reasonable discretion and any other documentation mutually agreed to by the Parties. if the STATE notifies COM NET that it has rejected a Deliverable, STATE shall provide written notice, within the stated acceptance period, specifying the basis of the deficiency. COM -NET shall have the same number of business days to cure such deficiency and redeliver the Deliverable for an additional acceptance period. The STATE's review and approval of such corrected or changed Delivers_ ble shall be solely for the purpose of determining that corrections have been made to bring the Deliverable into compliance as set forth herein. If the STATE fails to reject, in a writing specifying the deficiency, any Deliverable within the acceptance period, the STATE shall be deemed to have accepted the Deliverable as of the final day of the acceptance period, unless a longer acceptance period is mutually agreed upon in writing. C. Changes in Services: Nothing in this Service Agreement shall limit the right of the STATE, in its sole discretion, to recommend changes in the Services for any reason. Any such recommendation shall be made in writing to COM -NET. COM NET shall have no more than ten business days to provide the STATE with a response to the change request, unless a longer period is mutually agreed upon in writing. Late payments shall be handled in accordance with Section 4(d) of the General Conditions. Saa -928 Page 28 Q— t...a~ 1a -)nno Service Agreement Packet Page -1294- COM- -NET Service and Access Areemment 10/9/2012 Item 16.E.2. Section 7.4 Event Of Non- Appropriation The STATE shall provide in its budget request that it submits to the Legislature each year a line item providing for Quarterly Payments which shall become due in the next succeeding Fiscal Year. This Service Agreement shall automatically terminate at the end of the then current Fiscal Year if a final budget is not approved in accordance with Florida law that appropriates sufficient funds to make the ............ _ ..... ....... _ ... Quarterly Payments for the swing Fiscal Year Upon the occurrence of an Event of Non- Appropriation, the STATE will not be obligated to make the Quarterly Payments beyond the then current Fiscal Year. The STATE must deliver notice of the Event of Non - Appropriation to COM- NET and its assigns within at least thirty business days thereof. Under no circumstances shall the failure of the STATE to appropriate sufficient monies to make Quarterly Payments constitute an Event of Default hereunder or require payment of a penalty. In the event of any termination, COM -NET shall continue to fully perform its maintenance and service obligations under the Service Agreement so long as the STATE continues to pay amounts equivalent to the Quarterly Payments. Section 7.5 Taxes Taxes imposed by any taxing authority relating to the Services or the Communications System shall be the responsibility of COM -NET. The STATE shall cooperate with COM -NET in attempting to obtain any possible exemptions from taxes or reduction in such taxes. Saa 928 Page 29 qz—t .,,u~?R -)MO Service Agreement Packet Page -1295- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. VIII: REVENUE SHARING Section 8.1 Marketing Rights COM -NET, with the STATE's reasonable consent, shall have the right to market the radio portion of the Communications System to eligible Third -Party Subscribers, so long as each subscriber's use in no way diminishes the STATE's use of the Communications System or its rights to control its FCC licenses. COM -NET shall have the sole and absolute right to market the towers conveyed, subject to the rights of any owners of underlying real property and to all provisions of law including, but not limited to, Federal antitrust laws and sections 253 and 332 of the Communications Act (47 U.S.0 §§253,332.). Section 8.2 Third -Party Lease Negotiations and Reporting. COM -NET shall have the sole right to negotiate all leases for all Third -Party Subscribers to the Communications System. COM -NET shall utilize prudent business practices and shall market the Communications System consistent with the usual and customary practices and rates. On a quarterly basis, COM -NET will supply the STATE with a summary of all current leases by Third -Party Subscribers. The summary will be in electronic format and will include the Lessee's name, lease expiration date, lease amount, etc. As requested by the STATE, COM NET will provide copies of individual leases. Section 83 Third Party Subscriber Revenue The gross revenue generated from Third Party Subscribers of the Communications System shall be divided between the parties, with COM -NET receiving 95% and the STATE receiving 5 %. Section 8.4 Third Party Tenant Revenue COM -NET will market any of the wireless communications towers in Schedule E that are conveyed under this Service Agreement to other tenants. Revenue received from Third Party Tenants on the towers will be shared as follows: Saa -928 Page 30 September 28, 2000 Service Agreement Packet Page -1296- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. A. During the Initial Tenn of the Access Agreement, the STATE will receive 15% of all net revenues received from Third Party Tenants on the conveyed towers B. After the initial Term, the STATE will receive 50% of all net revenue received from Third Party Tenants on the conveyed towers For purposes of this section, net revenue is defined as all revenues received less ground rent. .. . ...... The revenue sharing arrangement and percentages as set forth in paragraph B above will continue for an additional 30 years after the end of the Initial Term regardless of which end of term option in Section 9.4 the STATE chooses to select. Section 85 Additional Sites COM -NET shall have the right to purchase additional sites that shall, from time to time, be negotiated in exchange for goods and services at a mutually agreed upon price. Section 8.6 Radio Salvage Proceeds Upon cutover of the new Phase I and II equipment, and at the STATE's request, COM -NET may act as the STATE's agent for the sale of any existing Motorola backbone and subscriber equipment that the STATE may wish to sell. The sale proceeds will be shared equally between COM -NET and the STATE. COM NET will provide the STATE an accounting of the sale and the STATE's share of proceeds within thirty days of COM -NET's receipt of proceeds. Section 8.7 Payment Terms COM -NET shall pay or provide credit in goods and services to the STATE for its proportionate share of the revenues on a quarterly basis, within thirty (30) days of the end of each quarter and shall provide with each payment, a summary setting forth the name of each Third -Party Subscriber or Tenant, the revenues received during the quarter and the portion of the revenues paid to the STATE for the quarter. Saa -928 Page 31 September 28, 2000 Service Agreement Packet Page -1297- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. Section 8.8 Survival As appropriate, the provisions of Article VIII and associated provisions of Article III and Article X shall survive termination of this Service Agreement. Saa -928 Page 32 September 28, 2000 Service Agreement Packet Page -1298- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. IX: DISPUTE RESOLUTION; BONDS AND END OF TERM OPTIONS Section 9.1 Resolution Of Disputes Should any disputes arise with respect to this Service Agreement, COM -NET and the STATE agree to act immediately to resolve any such disputes. Tune is of the essence in the resolution of disputes. . A. Administrative Remedy: The Parties agree to resolve disputes through submission of their dispute to the Chief information Officer (CIO) of the State Technology Office, who shall reduce a decision to writing and furnish a copy to COM -NET and the STATE within ten working days. The CIO's decision shall be final if COM -NET furnishes a written concurrence within ten working days. Otherwise, the Parties may proceed to Section 9.IB or other available legal or equitable remedies. B. Arbitration: Upon agreement ofboth Parties, disputes maybe resolved by arbitration in Tallahassee, Florida, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators maybe entered in any court having jurisdiction thereof. Arbitration shall be conducted by a panel of three members, COM -NET and the STATE each selecting one member and the third member, who shall be chairman, selected by agreement between the other two members. The chairman shall be an attorney-at-law, and the other members shall have a background or training in telecommunications . The arbitrators shall have the authority to grant injunctive relief in a form substantially similar to that that would otherwise be granted by a court of law. C. Continuing Responsibilities: The Parties agree that, existence of the dispute notwithstanding, they will continue without delay to carry out all their responsibilities under this Service Agreement that are not affected by the dispute. Should either Party fail to continue to perform its responsibilities under this Service Agreement in the accomplishment of all non- disputed work, any additional costs incurred as a result of such failure to proceed shall be borne by that Party. Section 9.2 Construction and Performance Bonds The STATE shall be provided with the following bonds, within 30 days of the Effective Date: Saa -928 Page 33 Scptembcr 28, 2000 Service Agreement Packet Page -1299- COM NET Service and Access Agreement 10/9/2012 Item 16.E.2. A. Construction Bond: COM -NET shall furnish the STATE a Construction Bond in the amount of 536,000,000. The Construction Bond shaII remain in effect until the Communications System is accepted by the STATE as provided in Schedule B. B. Performance Bond: COM -NET shall famish the STATE a Performance Bond in an amount equal to the projections of all Quarterly Payments to be received in the next year. After the system is accepted, the Performance bond shall be renewed annually in an amount equal to the greater of: _. ................... .............................._ . .... (1) an amount equivalent to the outstanding principal of the Secured Debt, if any, which COM -NET has placed upon the Communications System project; or (2) the projections of all Quarterly Payments to be received in the next year. Section 93 Bond Provisions The following provisions shall apply to the bonds in Section 92: A. The STATE shall be named as the beneficiary of the bonds. COM -NET's bonds shall provide that the insurer or bonding company shall pay losses suffered by the STATE directly to the STATE. B. COM -NET or its insurer shall provide the STATE 30 days prior written notice that the bond(s) has been renewed together and of any attempt to cancel or to make any other material changes in the status, coverage or scope of the required bond or of COM -NETs failure to pay bond premiums. C. The STATE shall not be responsible for -any premiums or assessments of the bond(s). D. The performance and payment bond(s) is to protect the STATE against any loss sustained through failure of COM -NET or any of its employees to faithfullyperform the Services required by this Service Agreement and which will further indemnify and save harmless the STATE from all costs and damages by reason of COM -NETS default, breach or failure to satisfactorily complete any of the following items: (1) Payment to all entities, individuals, and the lice furnishing labor or materials in connection with this Service Agreement; and (2) Successful, full; and satisfactory completion, including the dates specified between the STATE and COM -NET, of the Communications System installation, ongoing performance, consumable supplies and maintenance herein concerned. E. No payments shall be made to COM -NET until the performance bond is in place. Saa -928 Page 34 Sentember 28, 2000 Service Agreement Packet Page -1300- COO -NET Service and Access Agreement 10/9/2012 Item 16.E.2. F. To be acceptable to the STATE as surety for performance bonds, the Surety Company shall: (1) Have a currently valid Certificate of Authority, issued by the State of Florida, Department of insurance, authorizing it to write surety bonds in the State of Florida (2) Have a currently valid Certificate of Authority issued by the United States Department ofTreasury under Sections 9304 to 9308 ofTitle 31 oftheUnited States Code. _. . (3) Be in full compliance with the provisions of the Florida Insurance Code (4) Have a minimum Best's Policyholder Rating of A- or Performance index Rating of VI from Best's Key Rating Guide Section 9.4 End Of Term Options Following the end of the initial Term or upon termination, the STATE shall have the right to: A. Purchase all System Equipment for the cost of $1.00. System Equipment will include, but not be limited to: (1) 800 MHz EDACS repeaters and 800 MHz antenna systems; (2) Microwave base stations, antenna systems and network administration equipment; (3) EDACS WC's, Stargate, CSD's and PBX Gateways; (4) EDACS dispatch consoles, logging and call check recorders; (5) EDACS RF control stations; (6) mobile data network equipment; (7) shelters and generators; and (8) All other associated equipment excluding towers. all of which were provided pursuant to this Service Agreement. Upon such purchase, the STATE shall extend services to Third Party Subscribers and COM NET shall execute any documents of conveyance that may be necessary. B. Extend the Term of this Service Agreement pursuant to Section 2.2 hereof upon mutually agreeable terms and conditions; or C. Not renew the Term of this Service Agreement, in which event neither Party shall have any further obligation to the other Party except as may have arisen prior to the expiration of the Term and under the Third Party Revenue Sharing Agreements. Saa -928 Page 35 September 28, 2000 Service Agreement Packet Page -1301- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. Under all end of term options, the STATE and all grandfathered tenants shall have the right to continue their use of the towers, rent free, for 30 years after the end of the Initial Term. Saa -928 Page 36 September 28, 2000 Service Agreement Packet Page -1302- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. X: DEFAULTS AND REMEDIES Section 10.1 STATE Events Of Default The STATE shall be in default hereunder if any of the following events ( "STATE Event of Default ") shall occur: A. the STATE fails to pay any of its obligations under this Service Agreement, except as provided in Section 7.3, when such obligation is due and such failure shall remain unremedied for a period of 40 days after written notice is provided by COM -NET or its assigns; or B. the STATE fails to observe any material term, covenant or condition contained herein and such failure shall remain unremedied for a period of 40 days after written notice is provided by COM -NET. However, if default is of such a nature that it could not reasonably be performed within 40 days, such 40 -day period shall be extended so long as the STATE takes corrective action within such 40 days and thereafter diligently and continuously works to cure the default. Section 10.2 Com -Net Events Of Default COM -NET shall be in default hereunder if any of the following events ( "COM NET Event of Default") shall occur: A. COM -NET fails to pay any of its obligations under this Service Agreement when such obligation is due and such failure shall remain unremedied for a period of 40 days after written notice is provided by the STATE; or B. COM NET initiates a proceeding in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, appointment of a trustee, receiver, custodian, or the like for all or substantially all of its assets, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of 60 consecutive days; or an order for relief shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect. C. COM NET fails to observe any material term, covenant or condition contained herein and such breach shall remain unremedied for a period of 40 days after written notice is provided by the STATE. However, if default is of such a nature that it could not reasonably be performed within 40 days, such 40 -day period shall be extended so long Saa -928 Page 37 September 28, 2000 Service Agreement Packet Page -1303- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. as COM -NET takes corrective action within such 40 days and thereafter diligently and continuously works to cure the default. Section 103 Remedies A. The Parties acknowledge that this Service Agreement contemplates the provision of Services of unique importance to the public safety of the citizens of Florida and that such Services cannot be-easilyduplicated. Upon the occurrence of an Event of Default, the non - defaulting Party may either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the Laws of the State of Florida, or granted and contained in this Service Agreement, and may enforce and compel the performance of all duties and obligations required by this Service Agreement to be performed by the defaulted Party. B. In addition to the foregoing remedies, in the event COM -NET is in default for a period of 90 days the STATE shall, at its option, be entitled to either of the following remedies: (1) The STATE may take any and all steps necessary to cure COM NETs default including the hiring or contracting of third parties to fulfill COM -NETs obligations. In the event the STATE takes any action to effect such cure, COM -NET shall be obligated to reimburse the STATE for the STATE's reasonable costs and expenses, including attorney's fees. (2) Assume ownership and control of the Communications System and assume liability for all future operational expenses and any and all unamortized principal for the Secured Debt, if any, that COM -NET has place upon the Communications System Project, whereupon this Service Agreement shall terminate and be of no legal effect. At the STATE's option, in the event the STATE elects to exercise its remedy set forth in Section 10.3(B)(2), all future Third Party Subscriber revenues set forth in Section •8.3 will revert to the STATE providing, however, that the STATE will be responsible forpaying all secured debt associated with third party system expansions and enhancements, and undertakes liability for all operational and maintenance expenses for the Communication System. COM -NET shall execute any reasonable instruments of conveyance necessary to effect such conveyance. C. Liquidated Damages: Because installation in accordance with the implementation schedule and maintenance of the Communications System are of critical importance to the STATE and because damages would be difficult to quantify, the STATE and COM- NET agree to the following liquidated damages, in addition to any other remedies: (1) Delayed Installation: For each day of delay in each phase and deadline for final acceptance of the Communications System as the sole result of the Sag 928 Page 38 September 28, 2000 Service Agreement Packet Page -1304- COM NET Service and Access Asz-eement _ 10/9/2012 Item 16.E.2. actions or inaction of COM -NET and not excused by Section 113, Force Majeure, or specifically the inability of the STATE and COM -NET despite their efforts to obtain any site or sites or the required zoning or other permits for any site or sites, COM -NET shall pay the STATE S 1,000 per calendar day of delay increasing to $5,000 per day after 30 days. (2) Delayed Maintenance Response: For each hour that COM -NET's response to a critical Communication System failure exceeds the response time set forth in Schedule A as the sole result of the actions or inaction of COM -NET and not excused by Section 11 .5, Force Majeure, COM -NET pay the STATE $500.00 per hour of delay. (3) Delayed System Restoration: For any critical Communication System failure that is not restored within 12 hours, COM -NET shall pay to the STATE liquidated damages of $1000 per day, increasing to $3,000 per day after 48 hours and $5,000 per day after 96 hours. (4) Subsystem Failure: Liquidated damages in the amount of $50,000 will be paid by COM NET for each failure to meet a quarterly subsystem uptime requirement as specified in Section 3.2. In the event of a COM -NET Event of Default for which liquidated damages pursuant to Section 10.3C are payable, COM NET shall pay such liquidated damages within thirty (30) days of receipt of written demand from the STATE. Section 10.4 Remedies Cumulative No remedy herein conferred upon or reserved to either Party is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. Section 10.5 Waiver Of Default No delay or omission of by either Party to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default, or an acquiescence therein; and every power and remedy given by Section 10.3 may be exercised from time to time, and as often as may be deemed expedient. Saa -928 Page 39 September 28, 2000 Service Agreen=t Packet Page -1305- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. XI: OTHER PROVISIONS Section 11.1 Software License COM -NET grants to the STATE and Eligible Users a non-transferable, nonexclusive, fully paid ......... license to use. the software necessary to ,operate and maintain the Communications Systern. The STATE agrees not to provide or otherwise make available any licensed program or portion thereof to any third party and to hold such materials in confidence using a strict degree of care to protect the licensed program from unauthorized disclosure. The STATE may make copies of each licensed program provided in machine- readable form as necessary for use and for archival purposes. The STATE may make copies of any written materials, such as manuals, diagrams or other documentation, for its own internal use. Section 11.2 Other Work For work not initially included in Schedule A, such as construction of dispatch centers or provision of console furniture, Eligible Users may negotiate with COM -NET the additional work at mutually agreed upon prices. Section 113 Force Majeure Force Majeure shall be pursuant to the provisions in Schedule H, Special Conditions. Section 11.4 Insurance And Risk Of Loss A. Types of Insurance: On the Effective Date, COM NET shall obtain all of the following types of insurance and submit insurance certificates for approval by the STATE. (1) Workers' Compensation Insurance: COM -NET shall take out and maintain during the life of this Service Agreement Workers' Compensation Insurance for all of the COM NET employees connected with the work of the Communications System and, in case any work is sublet, COM NET shall require the subcontractors similarly to provide Workers' Compensation Insurance for all of the latter employees unless such employees are covered by the protection afforded by COM NET. Such insurance for workers based in Saa -928 Page 40 Smtember 28, 2000 Service Agreement Packet Page -1306- COM_NET Service and Access Agreement 10/9/2012 Item 16.E.2. the STATE shall comply fully with the Florida Workers' Compensation Law, under Chapter 440, Florida Statutes. If any class of employees engaged in hazardous work under this Service Agreement at the site of the Communications System is not protected under the Workers' Compensation statute, COM -NET shall provide, and cause each subcontractor to provide, adequate insurance, satisfactory to the STATE, for protection of COM -NET employees not otherwise protected. Proof of insurance shall be provided within 15 consecutive days after the execution of the Service Agreement (including amount of coverages effective __ date, ..... ending .. period _ and policy number). (2) Comprehensive Liability Insurance: COM -NET shall take out and maintain during the life of this Service Agreement COMPREHENSIVE GENERAL LIABIIITY AND COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE as shall protect COM -NET and the STATE from claims for damage for personal injury, including accidental death, as well as an agreement for any directly or indirectly employed by COM NET, and the amount of such insurance shall be the minimum limits as follows: (a) Commercial General Liability. COM NET shall take out and maintain a Commercial General Liability insurance including products and completed operations. This insurance will provide coverage for all claims that may arise from the operations completed under this agreement, whether such operations are by COM -NET or anyone directly or indirectly employed by him. Such insurance shall. be include a Hold Harmless Agreement in favor of the STATE and also include the STATE as an Additional Named insured for the entire length of the contract. Minimum Limits of Liability: $1,000,000 Each Occurrence $2,000,000 General Aggregate $2,000,000 Products and Completed Operations Aggregate Hold Harmless Endorsement COM -NET shall indemnify and hold harmless the STATE, State Technology Office and Department of Management Services, and these agencies' employees from and against all losses, claims, demands, payments, suits, actions, recoveries and judgments of every nature and description brought or recoverable against it or them by reason of any act or omission of COM -NET, his agent or employees, in the execution of the work or in consequence of any negligence or carelessness in guarding the same. (b) Commercial Automobile Liability: COM NET shall take out and maintain Commercial Automobile Liability insurance including Hired and Non -owned Liability for all claims that may arise from all operations under this agreement or contract whether such operations are by COM NET or by anyone they directly or indirectly employ. Saa -928 Page 41 September 28, 2000 Service Agreement Packet Page -1307- COM- NET _ Service and Access Aareemeat 10/9/2012 Item 16.E.2. Minimum Limits of Liability: $1,000,000 Combined Single Limits Or $500,000 Each Person $1,000,000 Each Accident $100,000 Property Damage $1,000,000 Hired & Non -owned Liability (c) Owners Contractors Protective: - COM -NET shall take out and maintain during the life of this agreement, Owners Contractors Protective Liability insurance for all claims arising out of the operation of independent contractors or subcontractors employed by COM NET. The limits of insurance should be equal to or greater than the limits insured under the Commercial General Liability Policy. Minimum Limits of Liability. $2,000,000 (d) Commercial Umbrella Liability: COM -NET shall take out and maintain during the life of this agreement, Commercial Umbrella Liability insurance for all liability claims that may arise, such coverage may include coverage for exposures not covered by the primary liability policies and shall provide limits in excess of the primary coverages. Minimum Limits of Liability. $10,000,000 Each Occurrence $10,000,000 General Aggregate (3) Property Insurance: COM NET shall insure the COM -NET system and the Motorola Existing System in Phase 1, Phase II and FT. Myers, until such time as equipment is replaced. The insurance shall be of sufficient amount to insure replacement or repair of the property in the event of damage or destruction, including by Force Majeure. The following equipment shall be covered: (a) radio and microwave equipment (b) all associated equipment such as racks, antennas, etc. (c) towers (d) generators (e) shelters (fl consoles B. No Loss Deductible Clause: The STATE shall be exempt from, and in no way liable for, any sums of money that may represent a deductible in any insurance policy. The payment of such deductible shall be the sole resporis►ility of COM -NET. Saa -928 Page 42 September 28, 2000 Service Agreement Packet Page -1308- COM -NET Service and Access Agreement.. 10/9/2012 Item 16.E.2. C. State Registration: All insurance policies shall be with insurers qualified and doing business in the STATE. D. Proof of Insurance: COM -NET shall provide the STATE Contract Manager with certificates of insurance accompanying the contract documents naming the STATE as an additional insured. The STATE shall be provided 60 days prior notification if any policy is to be canceled or terminated. _. ... ................ ........ __ ...... E. Duration: The required insurance policies shall be maintained throughout the Term of this Service Agreement, as appropriate., F. Subcontractor's Insurance: All COM -NET subcontractors are required to meet the requirements of this section. Section 11.5 Amendment And Waiver No supplement, modification, amendment or waiver of this Service Agreement shall be binding unless executed in writing by both Parties and, in the event Secured Debt shall be outstanding, the trustee representing holders thereof or credit enhancer in lieu of such holders. No waiver of any of the provisions of this Service Agreement shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. Section 11.6 Further Assurances The Parties shall with reasonable diligence, do all things and provide all reasonable assurances as may be required to complete the transactions contemplated by this Service Agreement, and each Party shall provide such further documents or instruments required by the other Party as may be reasonably necessary or desirable to give effect to this Service Agreement and to carry out its provisions. Section 11.7 Severability Any provision in this Service Agreement which is held to be illegal or unenforceable in any jurisdiction shall be ineffective to the extent of such illegality or unenforceability without invalidating the remaining provisions and any such illegal or unenforceable provision shall be Saa -928 Page 43 September 28, 2000 Service Agreement Packet Page -1309- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. Section 11.8 Entire Agreement This Service Agreement constitutes the entire agreement between the Parties pertaining to the subject matter I hereof and supersedes all prior and contemporaneous agreements, I understandings,, negotiations and discussions, whether oral or written, of the Parties and there are no warranties, representations or other agreements between the Parties in connection with the subject matter hereof except as specifically set.forth in this Service Agreement. Section 11.9 Governing Law This Service Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue for matters in dispute that may arise as a result of this agreement shay be in Leon County, Florida Section 11.10 Public Regulation and Frequency Licenses This Service Agreement is subject to all of the terms and conditions associated with all of the STATE's outstanding FCC Licenses, applications and authorizations from the FCC and other federal, state and local government agencies with respect to the Communications System. This Service Agreement is not intended to convey any FCC license, channel or frequency possessed by the STATE. The STATE shall retain control over its licensed frequencies at all times as required by Section 310(d) of the Communications Act, as amended, and by FCC rules and policies, and shall carry out all policy decisions, including the filing of FCC applications, with respect thereto. In the event that a federal, state or local government authority (including, without limitation, the FCC) orders, takes, threatens or announces any action that challenges or could reasonably be expected to challenge the lawfulness of any of the provisions of this Service Agreement under the Communications Act, The parties agree to consult with the FCC and its staff concerning such matters and negotiate in good faith a modification to this Service Agreement designed reasonably to Saa -928 Page 44 September 28, 2000 Service Agreement Packet Page -1310- CC;M -NET Service and Access Agreement 10/9/2012 Item 16.E.2. accommodate any such FCC questions while preserving, to the maximum extent possible, the intent of the Parties. Nothing in this Service Agreement shall give COM -NET, directly or indirectly, the right to control or direct the STATE's exercise of ultimate authority over its FCC licenses. In providing these services, COM -NET shall take no action that would cause any of the FCC Licenses to be revoked, or that . would result in a transfer of control or assignment of the FCC Licenses without necessary FCC approval. COM -NET shall cooperate with the STATE in providing all information and taking all other actions necessary to ensure that all FCC Licenses remain valid and in full force and effect. This Service Agreement is not intended to convey any FCC license; channel or frequency possessed by the STATE. COM -NETs rights with respect to all such licenses, channels and frequencies shall at all times be strictly limited to the management of any such licenses, channels and frequencies. Section 11.11 Assignment Each Party-may assign its respective rights and obligations under this Service Agreement with the express written consent of the other, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, the STATE acknowledges and agrees that COM NET shall have the right, at any time and without the consent of the STATE, to sell, transfer or assign all or any portion of its rights to the payments described herein to any affiliate of COM- NET. COM -NET and its permitted assignees shall furthermore have the right, at any time and without the consent of the STATE, to collaterally assign all or any portion of its rights to such payments or to other rights to enforce such payments provided herein to any financing party or lender or trustee in regard to Secured Debt. However any such assignment of payments shall not relieve COM NET or COM -NET'S Surety of their respective responsibilities, obligations, and liabilities under this Agreement. COM -NET agrees that the rights and obligations of the STATE may be transferred in the event that the agency /department that originally executed this Service Agreement is transferred, moved or absorbed by another State of Florida entity. Saa -928 Page 45 September 28, 2000 Service Agreement Packet Page -1311- COM -NET Service and Access Agreement 10/9/2012 Item 16.E.2. Section 11.12 Confidentiality AMWW COM -NET agrees not to divulge any information exempt from the Public Records Act that it may obtain in the course of executing this Service Agreement without the express written permission of the STATE. This provision is without time limit and shall survive the expiration or earlier termination of this Service Agreement. Section 11.13 Publication And Publicity COM -DIET will not publish the results of its engagement and participation in STATE programs without prior approval from the STATE. However, COM NET may refer to this Service Agreement as an experience citation with other clients without prior approval. Section 11.14 No Third Party Beneficiaries The Parties acknowledge and agree that this Service Agreement is for the benefit of the Parties hereto, any permitted assignee under Section 11.11 or any Eligible User. The Service Agreement is not intended to confer any legal rights or benefits on any third party. Other than the eligible system users defined in the special conditions, there are no third party beneficiaries to this Service Agreement or any part or specific provision thereof. Section 11.15 Counterparts This Service Agreement maybe executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Section 11.16 Survivability This Service Agreement and any and all promises, covenants, and representations made herein are binding upon the parties hereto and any and all respective heirs, assigns, and/or successors in interest. Saa -928 Page 46 September 28, 2000 Service Agreement Packet Page -1312- COWNET Service and Access Agreement 10/9/2012 Item 16.E.2. IN WITNESS WHEREOF, the Parties have executed and acknowledged this Service Agreement, the day and year first above written. State of Florida. Approved as to form and legality. Department of Management Services Office of General Counsel Department of Management Services State of Florida Office of State Technology Officer By. Date: - - �C G Stacnorn Approved as to form and legality: Office of General Counsel Office of State Technology Date: By;-Z- Date: q 2 00 Staff Attorney Com -Net Ericsson Critical Radio Systems, Inc. „ Approved as to form and legality. Ofce of General Counsel Com Net Ericsson Critical Radio Systems, Inc. By. / Z Date: aS SECa -v By.. "- ��" `_'Date 0243 Scc�oa Steven avor �' Staff Attorney President Saa -928 Page 47 September 28, 2000 Service Agreement Packet Page -1313- 10/9/2012 Item 16.E.2. COM -NET JTF Radio System Contract State of Florida SCHEDULE F LONG TERM PURCHASE AGREEMENT This TERM AGREEMENT ( "Agreement' ) entered into this 28th day of September 2000, between COM- NET ERICSSON CRITICAL RADIO SYSTEMS, INC. ( "Com -Nef) and THE STATE OF FLORIDA, acting by and through the Department of Management Services (the "State ") acting as state term contract administrator. WHEREAS, concurrent with the signing of this Agreement the parties are entering into a Service and Access Agreement of like date hereto (the "Service and Access Agreement "); and, WHEREAS, during such Initial Tenn this Agreement sets forth certain terms with respect to COM NET Products available for purchase by Eligible Users as described in the Special Conditions of the Service and Access Agreement. The State expects to purchase from Com -Net for the use of State Law Enforcement Agencies certain temlinal units and services ("Products') all as specifically set forth in the Modified Pricing Proposal; and, WHEREAS, the parties wish to establish the purchase price and other terms and conditions of sale for such Products; NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter set forth and intending to be legally bound, the parties agree as follows: Section 1 Definitions. Capitalized terms used but not defined herein shall have the same meanings as in the Service Agreement. F - LT Purch Aereement- 928.docF' -- Page F -I LT D.,;..h A ffoomont 074 September 28, 2000 Schedule F Packet Page -1314- 10/9/2012 Item 16.E.2. COM -NET LT Purchase Agreement State of Florida Section 2 Sale of Products During the Initial Term, COM -NET shall offer for sale to the State the Products or their functional equivalent. As the Eligible Users may have critical delivery schedules, need for compatibility with existing equipment, and applications of unique technical requirements, product quality or specifications that differ from those provided by Corn-Net, purchase from this agreement is optional. Section 3 Price Initial prices for the Products are set forth below. On the annual anniversary date of this Agreement, the Prices may be modified pursuant to the Special Condition entitled "Pricing" and either raised or lowered in accordance with: A. For Equipment: the Producers' Price Index for communications equipment PCU3663 # 145 B. For Services: the Producers' Price Index for Engineering design, analysis, and consulting PCU8711 #2 COM -NET shall provide to the STATE, and Eligible users, Products and services from its catalog at a discount of no less than 25% of their list prices. The prices of the products below include the discount. LPE System Portable Radio Price Includes - 800 Systems /Groups, EDACS, Emergency, Dynamic Regroup, Priority System, Scan, ProScan, ProFile, 2 batteries, and Whip Antenna $3,060 ProVoice DES Encryption $375 PE Single Unit Battery Charger $86 PE Six Unit Battery Charger $518 Speaker Microphone $128 Spare Battery $90 Leather Carrying Case $45 Plastic Belt Clip $11 Orion System Mobile Package - Dash Mount Price High Power Radio - 35 Watt, Control Unit, Microphone, ProFile, 3dB Antenna, Dash Mount $3,342 Extended cable for trunk mounting $71 Motorcycle option and motorcycle antenna $704 Motorcycle Helmet Kit $779 Marine Mount Antenna $175 Low Profile Mount Antenna $74 F - LT Purch Areeement- 928.doc-�:— Page F -2 T T Rwrgr A g r o,- 928 September 28, 2000 Schedule F Packet Page -1315- 10/9/2012 Item 16.E.2. COM- -NET LT Purchase Agreement State of Florida ProVoice DES Encryption: dash mount $413 roVoice DES Encryption: trunk mount $450 roVoice DES Encryption: motorcycle $375 Desktop System Control Station Price High Power Radio - 35 Watts, Control Unit, Desk Microphone, Antenna System, Profile $5,074 roVoice DES Encryption $375 Orion Desktop Station Remote Controller Application $2,660 emote Controller Programming Kit $100 Optional Analog Radios Price Analog LPE System Portable Package $2,573 Analog Orion System Mobile Package - Dash Mount $2,855 Analog Orion System Mobile Package - Trunk Mount $2,926 nalog Orion System Motorcycle Package $3.559 [Analog Desktop System Control Station $4,702 Mobile Data System Radio Package I Price ehicle Data Package - Radio, MDT, Data Application, Installation 1 $17,622 Programming Equipment Price Radio Programming Kit $2,241 Cryptographic Key loader Kit $1,685 User Equipment Maintenance Price 1st Tier Maintenance $125 2nd Tier Maintenance $108 Installation & Programming of Radios Price Desktop Control Stations $1,350 Dash Mount Mobile Radios $251 Trunk Mount Mobile Radios $311 Motorcycle Mobile Radios $498 Programming of Portable Radios $63 Section 4 Terms and Conditions The General Conditions and Special Conditions, and the Long Term Purchase Agreement, shall apply to the sale of all products pursuant to this Agreement. In the event of a conflict between the provisions of the General Conditions and Special Conditions, and any other provisions, which may become a part of this Agreement, the terms and conditions of the General Conditions and Special Conditions shall take precedence and govern. F - LT Purch Agreement-928.docl=- T T- Pu;:Gh A .Troo oti+ 929 September 28, 2000 Packet Page -1316- Page F -3 Schedule F 10/9/2012 Item 16.E.2. COM -NET LT Purchase Agreement State of Florida Section 5 Severability Any provision in this Agreement which is held to be illegal or unenforceable in any jurisdiction shall be ineffective to the extent of such illegality or unenforceability without invalidating the remaining provisions and any such illegal or unenforceable provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specially set forth in this Agreement. Section 6 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Florida and neither party shall be construed as the primary drafter. The parties to this Agreement hereby understand and agree that the venue for matters or disputes that may arise as a result of this Agreement shall be in Leon County, Florida. Section 7 Assignment Each party may assign its respective rights and obligations under this Agreement with the express written consent of the other, which consent shall not be unreasonably withheld. COM -NET agrees that the rights and obligations of Eligible Users may be transferred in the event that the agency /department that originally purchased from this Agreement is transferred, moved or absorbed by another State of Florida entity. Section 8 Renewal Prior to the expiration of the Initial Term of the Agreement or any subsequent renewals, the State shall have the unconditional option to renew on an annual basis. In the event the State fails to exercise an option to F - LT Purch Agreement- 928.docF -- Page F-4 September 28, 2000 Schedule F Packet Page -1317- 10/9/2012 Item 16.E.2. COM -NET LT Purchase Agreement State of Florida renew, the Agreement shall continue in full force on a month -to -month basis for a maximum of six (6) months at the current stated contract price. Extension of this Agreement will be governed by Section 287.057 (11), Florida Statutes. IN WITNESS WHEREOF, the Parties have executed and acknowledged this Long Term Purchase Agreement, the day and year first above written. State of Florida Department of Management Services By: Date: Cynthia A. Henderson Secretary Corn-Net Ericsson Critical Radio Systems, Inc. By: Date: Steven Savor President Approved as to form and legality: Office of General Counsel Department of Management Services By: Staff Attorney Date: Approved as to form and legality: Office of General Counsel Com -Net Ericsson Critical Radio Systems, Inc. By: Staff Attorney F - LT Purch Aereement-928.docF- T T Pa;Gh a September 28, 2000 Packet Page -1318- Date: Page F -5 Schedule F