Backup Documents 02/26/2019 Item #16E2 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP
TO ACCOMPANY ALL ORIGINAL DOCUMENT 4., %-:
THE BOARD OF COUNTY COMMISSIONERS OFFICE , ,r k! °.
Print on pink paper. Attach to original document. The completed routing slip and original documents are to be forwarded to the y
Office at the time the item is placed on the agenda. All completed routing slips and original documents must be recFEeR irOlg(t i 'Attorney
Office no later than Monday preceding the Board meeting.
**NEW** ROUTING SLIP
Complete routing lines#1 through#2 as appropriate for additional signatures,dates,and/or information needed. If the dealakelitanitgetrentplete with
the exception of the Chairman's signature,draw a line through routing lines#1 through#2,complete the checklist,and forward to the County Attorney Office.
Route to Addressee(s) (List in routing order) Office Initials Date
1. Risk Risk Management N
2. County Attorney Office County Attorney Office
/-5-J4
4. BCC Office Board of County ��� ��
Commissioners 7\751
4. Minutes and Records Clerk of Court's Office ‘06-
5. Procurement Services Procurement Services
PRIMARY CONTACT INFORMATION
Normally the primary contact is the person who created/prepared the Executive Summary. Primary contact information is needed in the event
one of the addressees above,may need to contact staff for additional or missing information.
Name of Primary Staff Ana Reynoso/PURCHASING Contact Information 239-252-8950
Contact/ Department
Agenda Date Item was FEBRUARY 26,2019 / Agenda Item Number 16.E.2.
Approved by the BCC /
Type of Document CONTRACT Number of Original 2
Attached Documents Attached
PO number or account N/A 17-7189 GE Digital, C
number if document is GE Digital, LLC
to be recorded
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark"N/A"in the Not Applicable column,whichever is Yes N/A(Not
appropriate. (Initial) Applicable)
1. Does the document require the chairman's original signature STAMP OK N/A
2. Does the document need to be sent to another agency for additional signatures? If yes, N/A
provide the Contact Information(Name;Agency;Address;Phone)on an attached sheet.
3. Original document has been signed/initialed for legal sufficiency. (All documents to be AR
signed by the Chairman,with the exception of most letters,must be reviewed and signed
by the Office of the County Attorney.
4. All handwritten strike-through and revisions have been initialed by the County Attorney's N/A
Office and all other parties except the BCC Chairman and the Clerk to the Board
5. The Chairman's signature line date has been entered as the date of BCC approval of the AR
document or the final negotiated contract date whichever is applicable.
6. "Sign here"tabs are placed on the appropriate pages indicating where the Chairman's AR
signature and initials are required.
7. In most cases(some contracts are an exception),the original document and this routing slip N/A
should be provided to the County Attorney Office at the time the item is input into SIRE.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of your deadlines!
8. The document was approved by the BCC on 02/26/2019 and all changes made during
the meeting have been incorporated in the attached document. The County
Attorney's Office has reviewed the changes,if applicable.
9. Initials of attorney verifying that the attached document is the version approved by the
BCC,all changes directed by the BCC have been made,and the document is ready for the 4
Chairman's signature.
1 6 E 2
MEMORANDUM
Date: March 1, 2019
To: Ana Reynoso, Purchasing Tech
Procurement Services
From: Ann Jennejohn, Deputy Clerk
Minutes & Records Department
Re: Contract #17-7189, GE Digital, LLC Assumption
of GE Intelligent Platforms, Inc.
Contractor: GE Digital, LLC
Attached, is an original copy of the contract referenced above, (Item #16E2) approved
by the Board of County Commissioners on Tuesday, February 26, 2019.
The second original contract has been held in the Minutes and Records Department
for the Board's Official Record.
If you have any questions, please contact me at 252-8406.
Thank you.
Attachment
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ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT is made and entered into on this a14 ` of
cQbrunr , 2019 by and between GE Digital, LLC ("GE Digital"), a wholly-owned
subsidiary of eneral Electric, and Collier County, a political subdivision of the State of Florida
("Customer"or"County").
WHEREAS, on December 12, 2017 (Agenda Item No. 16.C.1) the County entered into
Agreement #17-7189 with GE Intelligent Platforms, Inc. for the software licensing and support
services for Public Utilities Division's Supervisory Control and Data Acquisitions Systems
(SCADA), a copy of the Agreement #17-7189 is attached hereto as Exhibit A and hereinafter
referred to as "Agreement;" and
WHEREAS, GE Digital hereby represents to County that as part of its operations
restructuring, it is the successor in interest to GE Intelligent Platforms, Inc. in relation to the
Agreement; and
WHEREAS, the parties wish to formalize GE Digital's, assumption of rights and
obligations under the Agreement effective as of the date first above written.
NOW THEREFORE, IN CONSIDERATION of the mutual promises in this
Assumption Agreement,and for other good and valuable consideration,the receipt and sufficiency
of which are acknowledged by the parties, it is agreed as follows:
1. GE Digital accepts and assumes all rights, duties, benefits, and obligations of the
GE Intelligent Platforms, Inc. under the Agreement, including all existing and future obligations
to pay and perform under the Agreement.
2. Further supplements to, or modifications of, the Agreement shall be approved in
writing by both parties.
3. Notices sent to GE Digital shall be directed to:
GE Digital LLC
2623 Camino Ramon
San Ramon, CA 94583-9130
Main Phone: (800)433-2682
Attention: Jeff Bartoletti, Commercial Operations Leader
Email:jeff.bartoletti@ge.com
4. The County hereby consents to GE Digital's assumption of the Agreement to
continue the services provided under Agreement #17-7189. No waivers of performance or
extensions of time to perform are granted or authorized. Except as provided herein,all other terms
and conditions of the Agreement remain in full force and effect.
[19-PRC-03833/1455322/1] 1
16E2
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Assumption Agreement effective as of the date first above written.
ATTEST: BOARD OF COUNTY COMMISSIONERS
Crystal K. Kinzel, Clerk of Courts COLLIER COUNTY,FLORIDA
&Comptroller
Ce) Al°A
By: • .
By:
Attest as to f ��;� yCl, /L. McDaniel Jr., Chairman
signature only:;:
Witnesses: GE Digital LLC.
Signa By:
/ ( ). 't JEFF b/w-tit eNi,I ) O Letroefe-
Print Ndnie Print Name/Title
Date: it).Q /,30
Signature
Print Nam ,ounty of C,h-es+eA-
..iionwealth of Pennsylvania —�
toregoing instrument was acknowledged uefore me
tris ZGj day of Tint) ,2o Iq
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440. 77, votary Pub:r:
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commission expires --zoI G�1
Approved as to form and legality:
COMMONWEALTH OF PENNSYLVANIA
1.114/1
NOTARIAL SLAL
By: 11a GRETCHEN L.HUGHES,Notary Public
.
Jeffrey i '+ atz1
Pottstown Borough,Montgomery County
y My Corr-1 it>stun Expres January 30,2019
County • , eY �.. ..
Item# L Lo E 2- E
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[19-PRC-03833/1455322/11 2
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EXHIBIT A E 1
GE DIGITAL MASTER PRODUCTS AND SERVICES AGREEMENT(MPSA)
ON PREM SOFTWARE AND SUPPORT ONLY(NON-MONITORING)
As negotiated
Collier County Contract No.17-7189
This GE Digital Master Products and Services Agreement("Agreement")is entered into by and between GE Intelligent Platforms,
Inc., having its place of business at 2500 Austin Drive, Charlottesville, VA 22911 ("GE") and, Collier County Board of County
Commissioners having a place of business at c/o Mike Raabe, PE,Collier County Public Utilities Department, En ineering and
Project Management Department,3339 East Tamiami Trail,Suite 303,Naples,FL 34112("Customer"),on this 1b'' day
of ct.erri €r 2017("Effective Date").
GE and CUSTOMER are each referred to herein as a"Party"and together as the"Parties."The term"MPSA"shall mean specifically
this document,including the main body of this document and all appendices attached hereto.The term"Agreement"shall mean
the MPSA,along with all Orders,SOWs,and Change Orders entered into hereunder.
1. DEFINITIONS
The capitalized terms used in this Agreement shall have the meaning given to them below.Words imparting the singular shall
also include the plural and vice versa,as the context requires.
1.1. "Affiliate"means,with respect to a Party,an entity that controls,is controlled by,or is under common control with such
Party,where control means ownership,directly or indirectly,of 50%or more of the voting shares of the subject entity or
the right to appoint a majority of the board of directors of the subject entity.
1.2. "Confidential Information"of a Party means all of that Party's information and documentation disclosed to or accessed
by the other Party in connection with this Agreement that is marked(or,if disclosed other than in writing,designated at
the time of disclosure)as"confidential"or with a similar designation,including any information developed by reference
to or use of the other Party's Confidential Information. GE's Confidential Information includes the GE Offerings.
"Confidential Information"does not include information that: (a)is independently developed by the receiving Party,as
demonstrated by the recipient's written records,without violating the disclosing Party's proprietary rights; (b)is or
becomes publicly known (other than through unauthorized disclosure); (c) is disclosed by the owner of such
information to a third party free of any obligation of confidentiality;(d)is already known by the receiving Party at
the time of disclosure,as demonstrated by the receiving Party's written records,and the receiving Party has no
obligation of confidentiality other than pursuant to this Agreement;or(e)is rightfully received by the receiving Party
free of any obligation of confidentiality.Confidentiality of information contained in this agreement is subject to the
requirements of the Florida Public Records Act,Chapter 119,Fla.Stat,and the Florida Sunshine Law,Chapter 286,
Fla.Stat
1.3. "Customer Content"means data,information,documentation,and software provided by Customer for use in connection
with the GE Offerings.
1.4. "Embedded Software"is defined in Section 3.1.
1.5. "GE Offerings"means,collectively,the Hardware,Software,Professional Services,and Support Services provided by GE in
accordance with this Agreement.
1.6. "Hardware"means hardware equipment that is provided by GE to Customer,as described in Section 3.
1.7. "Infringement Claim"is defined in Section 11.1.
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GE DIGITAL MASTER PRODUCTS AND SERVICES AGREEMENT JULY 2017 GE CONFIDENTIAL
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1.8. "Open Source Software"means any software that is distributed as"free software,""open source software"or under a
similar licensing or distribution model,including without limitation the GNU General Public License(GPL) (including the
GNU Affero GPL License),GNU Lesser General Public License(LGPL),Mozilla Public License(MPL),BSD licenses,the Artistic
License,the Netscape Public License,the Sun Community Source License(SCSL),the Sun Industry Standards License(SISL)
and the Apache License,
1.9. "Order"means a written agreement for the purchase and provision of GE Offerings that:(a)includes a reference to this
MPSA and is signed by both Parties,or(b)is issued and accepted pursuant to Section 2.2.
1.10. "Software"is defined in Section 4.1.
1.11. "Support Services"means services associated with the support programs described in Appendix A.
1.12. "Third Party Software"is defined in Section 4.3.
2. SCOPE:ORDERS
2.1. Scone. This Agreement sets forth the terms and conditions that govern one or more Orders entered into between
Customer and GE for the provision of GE Offerings.This Agreement also incorporates the terms and conditions for specific
GE Offerings,as may be set forth in an Order or any appendix attached hereto.
2.2. Orders.Upon Customer's request,GE may provide a written offer for GE Offerings,which may be in the form of a proposal,
quote,statement of work,activation schedule,or similar documentation(a"Proposal"),and that includes a reference to
this MPSA. Customer may accept such Proposal, unless previously revoked or expired, by providing to GE its written
acceptance thereof.Upon Customer's acceptance,the Proposal shall become a binding Order governed by this MPSA.Any
purchase order,order receipt,acceptance,confirmation,correspondence,online terms,or other confirmatory documents
presented by Customer shall be deemed to be presented for payment purposes only,and GE specifically objects to,and
shall not be bound by,any additional or different terms contained In such documents.In the event of any inconsistency,
this MPSA shall take precedence over any conflicting or inconsistent term in any Order,unless the Parties have expressly
agreed to override a conflicting Section of this MPSA by express reference in a written instrument signed by both Parties.
2.3. Affiliates.Subject to mutual written agreement,Affiliates of a Party may enter into Orders with each other or with a Party,
subject to the terms and conditions of this MPSA.Each such Order shall form a separate agreement,and for the purposes
thereof,the term"Party"or"Parties"shall refer only to the entitles directly entering Into such Order.
3. HARDWARE(FOR HARDWARE KEYS ONLY)
3.1. Delivery.Delivery of Hardware sold will be made FCA GE's facility(Incoterms 2010). Title to Hardware shipped by GE from
the United States shall pass to Customer Immediately after each item departs from the territorial land,seas,and overlying
ij airspace of the United States. Title to all other Hardware sold shall pass when the product is made available for shipment
at the point of shipment. Delivery of Hardware leased to Customer shall be made by commercially reasonable means.
Title to such leased Hardware shall not pass to Customer.Title to any software embedded in or included with Hardware
("Embedded Software")does not pass to Customer.
3.2. Embedded Software.GE grants to Customer a limited,nonexclusive license to use any Embedded Software only with and
as embedded within the associated Hardware, and Customer shall have no other rights with respect to Embedded
Software,including any right to copy or modify the Embedded Software.Customer may transfer the Embedded Software
to a third party only to the extent that Customer is permitted to transfer the associated Hardware under this Agreement.
Embedded Software is otherwise governed by the license restrictions set forth in Section 9.4 below.
it
3.3. Hardware Warranties.
3.3.1. Hardware Sold.During the applicable warranty period stated below,GE warrants that Hardware sold will be free from
material defects In material and workmanship and will materially conform to any specifications agreed to by the Parties
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GE DIGITAL MASTER PRODUCTS AND SERVICES AGREEMENT JULY 2017 GE CONFIDENTIAL
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in writing. If any failure to meet this warranty appears within applicable warranty period from the date of shipment of
the Hardware,and Customer returns such equipment to GE pursuant to GE's applicable repair and replacement policy,
GE shall correct any such failure at its option,(I)by repairing any defective or damaged part or parts of the equipment,
or(ii)by making available,FCA GE's shipment facility(Incoterms 2010),any necessary repaired or replacement parts.
Inbound shipping charges to GE, including associated taxes, duties, tariffs, etc., shall be paid by Customer. Return
(outbound)warranty repair shipping charges shall be paid by GE to Customer's destination. GE shall have no warranty
obligation for Hardware damage or malfunction caused by accident,abuse,misuse,neglect,or improper repair,storage
or handling by Customer or its agents. If in GE's reasonable judgment such repair or replacement of Hardware is not
practicable,GE shall offer to refund or credit monies paid by Customer for such Hardware upon a return of such
Hardware to GE. The applicable warranty period for sold Hardware is twenty-four(24)months from shipment date,
unless otherwise stated in the Order or an appendix hereto.
3.3.2. Reserved.
3.3.3. Remanufactured Subassemblies or Parts. Unless prohibited by law, certain Hardware may contain remanufactured
subassemblies or parts which have been cleaned, refinished,Inspected, and tested to new-product standards. The
warranty for any such product will be as provided in this agreement or any applicable warranty of the third party
manufacturer,if applicable.
3.3.4. Third Party Hardware. GE warrants Hardware manufactured by third parties including, but not limited to, personal
computers,gateways, routers, servers, sensors,edge devices, micro drives, rotary disks, compact flash, cables and
accessories,and embedded third party firmware only to the extent that the manufacturer's or third party's warranty
allows GE to transfer such warranty to Customer. GE shall pass through to Customer any such warranties. Except to
the extent any such manufacturer or third party provides a pass-through warranty,such Hardware Is provided"AS IS"
without warranty of any kind and the manufacturers and/or third parties disclaim all warranties,whether express or
implied,including but not limited to the Implied warranties of merchantability,title,non-Infringement,or fitness for a
particular purpose. The manufacturers or third parties shall not have any liability for special, indirect, punitive,
incidental,or consequential damages. Customer's sole remedy for breach of such warranty shall be the remedy offered
by and available from the manufacturer or third party, if any. GE shall have no liability,whether in contract, tort,
negligence,or otherwise,to Customer with respect to third party Hardware and associated Embedded Software.
The remedies stated in this Section 3.3 are Customer's exclusive remedy,and GE's sole obligation and liability,for any
breach of the warranties for Hardware.
4. SOFTWARE
4.1. Scope.As used herein,the term"Software"shall mean certain computer software and related documentation described
in an Order, that is provided to Customer by digital download or on physical media for Customer's installation on
Customer's computers,including any updates or upgrades provided by GE in connection with Support Services.As used
herein,the term"Software"excludes any software hosted by or on behalf of GE and provided as a service.
4.2. Licenses.Subject to Customer's payment of all applicable fees and compliance with this Agreement,GE grants to Customer
a limited, non-transferable, nonexclusive license, for the license period specified in the applicable Order, to use the
Software provided pursuant to an Order for Customer's internal business use. Customer must comply with any license
scope or usage limitations(such as named user,concurrent user,processor,server,site,facility,or asset based limitations)
described on the applicable Order. Customer shall not license, sublicense, sell, resell, rent, lease, transfer, assign,
distribute,time share,or commercially exploit the Software,or make the Software available to any third party,other than
as expressly permitted by this Agreement.
4.3. Separately Licensed Software.Some Software may be supplied to Customer under a separate license agreement,Including
Open Source Software("Third Party Software"). Customer's use of such Third Party Software will be governed by such
separate license agreements.GE shall have no warranty,support,maintenance,or other obligations or liability under this
Agreement with respect to such Third Party Software.
4.4. Customer Responsibilities.Unless otherwise specified in an Order,Customer shall be solely responsible for:
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GE DIGITAL MASTER PRODUCTS AND SERVICES AGREEMENT JULY 2017 GE CONFIDENTIAL
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4.4.1. properly installing,configuring,and using the Software in accordance with applicable documentation,
4.4.2. providing any hardware,equipment,and physical Infrastructure necessary to run the Software,
4.4.3. providing any third party software not included In the Software,
4.4.4. maintaining the security,privacy,and backup of Customer Content,
4.4.5. compliance with applicable laws related to the use,storage,or processing of Customer Content,
4.4.6. the proper operation,control,and maintenance of Customer equipment monitored by the Software,and
4.4.7. applying patches,bug fixes,upgrades,and updates of the Software or third party software.
4.5. GE Software Warranty.GE warrants that as of the date of delivery by GE,Software will materially conform with the written
product documentation supplied with the Software.If within ninety(90)days of the date of delivery it Is shown that the
Software does not meet this warranty,GE shall,at its option,either correct the defect or error in the Software,free of
charge, or make available to Customer satisfactory substitute software, or, if none of the foregoing is reasonably
practicable,offer to return to Customer all payments made as license fees therefor after Customer certifies that it has
returned or deleted all copies of the Software in its possession. The remedy provided in this Section shall be Customer's
exclusive remedy,and GE's sole obligation and liability,for any breach by GE of the foregoing warranty.
4.6. DISCLAIMERS.WITHOUT LIMITING THE DISCLAIMERS IN SECTION 8.2,GE SPECIFICALLY DISCLAIMS ANY REPRESENTATION
OR WARRANTY THAT: (I) SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR WILL MEET CUSTOMER'S
SPECIFIC NEEDS; (II) SOFTWARE WILL DETECT ANY PARTICULAR FAILURE, FAULT, OR CONDITION, OR PROVIDE ANY
PARTICULAR DEGREE OF ADVANCE WARNING OF AN IMPENDING FAILURE, FAULT OR CONDITION OF THE CUSTOMER
EQUIPMENT;OR(III)CYBERSECURITY SOFTWARE WILL PROVIDE COMPLETE OR COMPREHENSIVE PROTECTION AGAINST
ALL POSSIBLE SECURITY VULNERABILITIES OR UNAUTHORIZED INTRUSIONS.
4.7. Delivery.Unless otherwise specified in an Order,Software will be made available for electronic download by Customer.
GE shall be deemed to have delivered Software when GE makes the Software available for download by Customer. If an
Order specifies that Software is to be delivered to Customer on physical media,then delivery of physical media will be
made FCA GE's facility(Incoterms 2010).No title to the Software shall be transferred.
4.8. Return or Destruction. Upon the expiration of Customer's license, or its earlier termination in accordance with this
Agreement,Customer shall certify,at GE's written request,the deletion or return of all copies of Software in Customer's
possession.
5. RESERVED
6. DELIVERY
6.1. General.Unless otherwise agreed by the Parties In writing:(a)GE shall determine the method and routing of all deliveries;
(b)delivery dates and times are approximate and based on(i)prompt receipt by GE of all Information necessary to permit
GE to proceed with work Immediately and without interruption,(ii)Customer's compliance with the payment terms,(iii)
prompt receipt by GE of all evidence GE may request that any required export or import license,as applicable,is in effect;
(c)the prices for the GE Offerings include only GE's usual quality processes,systems,and tests;and(d)partial deliveries
shall be permitted.
6.2. Packing. Hardware or tangible media delivered by GE shall be prepared,packed,and shipped by or on behalf of GE in
accordance with good commercial practices, unless otherwise agreed by the Parties. A complete packing list shall be
( enclosed with all shipments.Customer agrees to reimburse GE for any costs for any non-standard packing,marking,or
shipping directions requested by Customer.
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7. PAYMENT
7.1. Payment Terms.All payments shall be made without set-off for claims arising out of other sales by GE.Payments are due
upon receipt of a proper invoice and in compliance with Chapter 218, Fla. Stats., otherwise known as the "Local
Government Prompt Payment Act."Any late interest fees shall be pursuant to Section 218.74,Fla.Stat.
7.2. Financial Condition.If the financial condition of Customer at any time does not,in the judgment of GE,justify continued
performance on the terms of payment previously agreed upon,GE may terminate any Order or Statement of Work.
7.3. Late Payments.Customer shall pay a monthly late payment charge computed at the rate of 1.5%,or the maximum interest
rate permitted by law,whichever is less,on any past due amount for each calendar month(or fraction thereof)that the
payment is overdue. GE retains a security interest and right of possession in the Hardware articles until Customer makes
full payment,and Customer agrees to sign documentation at GE's request as reasonably necessary to perfect such interest.
7.4. Sales and Similar Taxes. GE shall be responsible for and shall pay any and all corporate and personal income taxes imposed
on GE and its employees by applicable laws("GE Taxes").Customer shall be responsible for and shall pay to GE all taxes,
duties,fees,and other charges of any nature(including,but not limited to,ad valorem consumption,excise,franchise,
gross receipts,import,export,license,property,sales and use,stamp,contract duty/registration fees,storage,transfer,
turnover,value-added taxes("VAT"),Business and Occupation or other similar taxes,and any and all Items of deficiency,
penalty,addition to tax,interest,or assessment related thereto),Imposed by any governmental authority of any country
in connection with the execution or performance of the Agreement("Customer Taxes"),but excluding GE Taxes.All prices
are exclusive of Customer Taxes,which may be added by GE to Customer's invoice if applicable,unless Customer provides
a direct pay or exemption certificate to GE where permitted by law.If Customer deducts or withholds any GE Taxes from
payments owed hereunder,Customer shall provide to GE,within 30 days from payment,the official receipt issued by the
competent government authority to which the GE Taxes have been paid,or an alternative document acceptable to the
relevant tax authorities. In respect of taxes to be withheld, if any,Customer shall comply with any applicable bilateral
conventions against double taxation.The Parties shall reasonably cooperate to claim any available exemptions from tax,
fees, or duties that may apply to this Agreement.When Customer arranges the export or Intra-European Union ("EU")
community shipment,Customer shall provide to GE,free of charge and within 90 days(or,in the case of exports from the
U.S.,30 days),evidence(obtained from Customer's forwarder)of exportation or intra EU community shipment.If the laws
in the country in which GE performs under this Agreement,or the laws in the country of incorporation of Customer,require
the Agreement to be subject to stamp duty,fee,or registration with any local authority,Customer shall be responsible for
the required formalities and bear the related costs.Customer shall return to GE a copy of the registration certificate or a
registered copy of the Agreement within 10 days from the due date required by said laws to apply for such fee,duty,or
registration. Collier County,Florida as a political subdivision of the State of Florida,is exempt from the payment of Florida
sales tax to Its Contractors under Chapter 212,Florida Statutes,Certificate of Exemption#85-8015966531C-1.
8. REPRESENTATIONS AND WARRANTIES
8.1. General Conditions of Warranty. The warranties and remedies set forth herein are conditioned upon: proper storage,
installation,use,and maintenance of the GE Offering in accordance with the applicable documentation,the proper design,
operation, and configuration of the system into which the GE Offering is installed, conformance with any applicable
recommendations of GE,and GE's ability to reproduce and observe the claimed defect,and prompt notification to GE of
any defects and, as required, promptly making any personnel and computer systems available. Any unauthorized
modification to or use of the GE Offerings by Customer will void the warranty.
8.2. DISCLAIMER OF IMPLIED WARRANTIES.EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT,GE AND ITS
AFFILIATES AND LICENSORS MAKE NO WARRANTIES,CONDITIONS,OR REPRESENTATIONS,WHETHER EXPRESS,IMPLIED,
OR STATUTORY, AND GE AND ITS LICENSORS EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT,DATA ACCURACY,SYSTEM INTEGRATION,AND FITNESS FOR A PARTICULAR PURPOSE.
8.3. CUSTOMER WARRANTIES. Customer represents and warrants that it has all rights and consents necessary to disclose
Customer Content to GE and to permit GE to use the Customer Content to perform GE's obligations hereunder.
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GE DIGITAL MASTER PRODUCTS AND SERVICES AGREEMENT JULY 2017 GE CONFIDENTIAL
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9. OWNERSHIP
9.1. Customer Content. As between Customer and GE, Customer retains all rights,title, and interests in and to Customer
Content.Except as provided in this Agreement,GE obtains no rights under this Agreement from Customer to any Customer
Content.
9.2. Service Data.Customer consents to GE's use of Customer Content to provide the GE Offerings to Customer and to perform
GE's obligations under this Agreement. Customer further agrees that GE and its Affiliates may use Information derived
from Customer Content or generated by the GE Offerings to maintain, protect, create, develop, and improve the GE
Offerings and other GE products and services,to the extent permitted by applicable law.
9.3. Reserved Rights. Customer acknowledges that the GE Offerings are protected by the copyright, patent, trade secret,
trademark,and/or other intellectual property laws of the United States and other countries.As between GE and Customer,
GE(or its Affiliates and licensors)own and reserve all rights,title,and interests in the GE Offerings,except those rights and
licenses expressly granted to Customer by this Agreement.
9.4. Restrictions.Except as expressly authorized by this Agreement,Customer shall not(a)sublicense,copy,distribute,modify,
create derivative works of any GE Offering,except to the extent authorized by GE under separate agreements,(b)reverse
engineer,disassemble,or decompile any GE Offering or apply any other process or procedure to derive the source code
of the GE Offerings,(c)access or use the GE Offerings in a way intended to avoid incurring fees or to exceed usage limits
or quotas,or(d)remove,alter,or obscure any proprietary notices that accompany the GE Offerings;or authorize or assist
others to do any of the foregoing.
9.5. Suggestions.If Customer provides GE or Its Affiliates with any feedback or suggested improvements to the GE Offerings,
then Customer consents to GE's use and implementation of such suggestions,without compensation to Customer,and as
between the Parties,GE shall solely own products and services developed by or for GE from such suggestions.
10. CONFIDENTIALITY
10.1. Non-Disclosure and Non-Use. A Party receiving Confidential Information (the "Receiving Party") shall not directly or
indirectly, at any time, without the prior written consent of the Party disclosing such Confidential Information (the
"Disclosing Party"),use or disclose the Confidential Information or any part thereof for any use other than necessary for
the performance of the Receiving Party's obligations under this Agreement or as otherwise expressly permitted by this
Agreement.The Receiving Party shall use reasonable efforts, but not less than those efforts it uses to protect its own
information of a similar nature,to avoid disclosure,dissemination,or unauthorized use of the Confidential Information of
the Receiving Party. Confidentiality of information contained in this agreement is subject to the requirements of the
Florida Public Records Act,Chapter 119,Fla.Stat.,and the Florida Sunshine Law,Chapter 286,Fla.Stat.
10.2. Compelled Disclosure. If the Receiving Party is requested by a governmental authority to disclose any Confidential
Information,it shall promptly notify the Disclosing Party,to the extent permitted by law,to permit the Disclosing Party to
seek a protective order or take other appropriate action,and shall assist in such activities.The Receiving Party shall only
disclose that part of the Confidential Information as is required by law to be disclosed and the Receiving Party shall use
commercially reasonable efforts to obtain confidential treatment therefor.
10.3. iniunctive Relief. In addition to any other rights and remedies under this Agreement or at law, the Receiving Party
acknowledges and agrees that,due to the nature of the Confidential Information,its confidentiality obligations to the
Disclosing Party under this Agreement are of a unique character and agrees that any breach of such obligations may result
in irreparable and continuing damage to the Disclosing Party for which there may be no adequate remedy in damages and
accordingly the Disclosing Party shall be authorized and entitled to seek injunctive or other equitable relief.
11. INDEMNIFICATION
11.1. By GE. GE shall,at GE's expense,defend or,at GE's option,settle any claim brought against Customer that any GE Offering
infringes any third party's United States patent,copyright,trademark,or trade secret(an"Infringement Claim"),and pay
any final judgments awarded by a court of competent jurisdiction or settlements entered into by GE on Customer's behalf.
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As a condition of GE's obligation,Customer must notify GE promptly of any Infringement Claim in writing,tender to GE
sole control and authority over the defense or settlement of such claim, and reasonably cooperate with GE, at GE's
expense,and provide GE with available information in the investigation and defense of such claim.Any effort by Customer
to settle an infringement Claim without GE's involvement and written approval shall void any indemnification obligation
hereunder.If use of any GE Offering becomes,or in GE's opinion Is likely to become,enjoined or subject to a valid claim
of infringement,GE may,at GE's option,(i)procure,at no cost to Customer,the right to use such GE Offering,or(II)modify
the GE Offering or provide a substitute that is non-infringing. If the foregoing are not commercially reasonable,GE may,
as applicable, terminate Customer's license to the affected Software or Deliverables or accept a return of affected
Hardware,and refund the applicable fees or purchase price,less reasonable depreciation.GE shall have no obligation or
liability under this Section for any Infringement Claim to the extent caused by:(a)a modification to the GE Offerings not
provided or performed by GE,(b)Customer Content and Customer designs and specifications,(c)the combination of the
GE Offerings with other hardware,software,content,or services not provided by GE,(d)use of an Infringing GE Offering
after GE has provided a non-infringing alternative,or(e) use of the GE Offerings beyond the scope authorized by this
Agreement or contrary to applicable documentation.This Section states GE's sole obligation and exclusive liability,and
Customer's sole remedy,for any third party claims of infringement of any Intellectual or proprietary right.
By Customer,to the extent allowed by law, Customer shall defend and indemnify GE,GE's Affiliates and licensors,and
each of their respective employees,officers,directors,and representatives from and against any claims,damages,losses,
liabilities, costs, and expenses: (a) Customer's or any of its Users' use of the GE Offerings, other than an Infringement
Claim. The foregoing indemnification provision shall not constitute a waiver of sovereign immunity or extend the
Customer's liability beyond the limits established in Section 768.28 of the Florida Statutes.
12. LIMITATIONS OF LIABILITY
12.1. GE, INCLUDING ITS AFFILIATES AND LICENSORS, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE,
EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, USE, GOODWILL,
DATA, OR COSTS OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING
NEGLIGENCE). CUSTOMER IS SOLELY RESPONSIBLE FOR, AND BEARS ALL RISKS ASSOCIATED WITH THE CONTROL,
OPERATION,AND USE OF CUSTOMER EQUIPMENT.
12.2. GE,INCLUDING ITS AFFILIATES AND LICENSORS,SHALL NOT BE LIABLE FOR CLAIMS ARISING OUT OF THIS AGREEMENT IN
A CUMULATIVE AMOUNT EXCEEDING CUSTOMER'S ACTUAL DIRECT DAMAGES,UP TO THE AMOUNTS PAID BY CUSTOMER
FOR THE PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY.
13. TERM AND TERMINATION
13.1. Term.The term of this Agreement will commence on the Effective Date and will expire five(5)years after the Effective
Date,provided however,that this Agreement shall remain in effect with respect to any unexpired or renewed Order or
Statement of Work,until the completion or scheduled expiration thereof(including the term of any license or subscription
provided therein),unless earlier terminated in accordance with Section 13.3.
13.2. Renewal. Except as otherwise stated in the Order,each license or subscription for Software having a fixed and limited
initial term may be renewed for successive one(1)year renewal terms.
13.3. Termination.
13.3.1. Without Cause. A Party may terminate an Order or Statement of Work issued hereunder without cause or for
convenience only as expressly permitted by the applicable Order or Statement of Work.
13.3.2. For Breach.Either Party may terminate this Agreement,or any individual Order or Statement of Work,for a material
breach by the other Party,which breach Is not cured within thirty(30)days of written notice provided to the breaching
Party,or which breach is incapable of being cured.
13.3.3. For Insolvency. A Party may terminate this Agreement upon notice to the other Party if the other Party becomes
insolvent,makes an assignment for the benefit of creditors,has a receiver or trustee appointed,or is the subject of a
proceeding under bankruptcy or insolvency law that is not dismissed within thirty(30)days of the filing date thereof.
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13.3.4. Effect of Termination.The expiration or termination of this Agreement,or of any Order or Statement of Work,shall
terminate the licenses granted and services provided thereunder, except as otherwise provided in Section 13.1 or
agreed in writing.Upon any termination or expiration of this Agreement,the following Sections survive:7(Payment),
9(Ownership), 10(Confidentiality),11(Indemnification),12(Limitations of Liability),13(Term and Termination),and
14(Miscellaneous).
14. MISCELLANEOUS
14.1. Performance by GE. GE shall have the right to use subcontractors and Affiliates to perform its obligations under this
Agreement,and in such event,GE shall remain responsible to Customer for such obligations.
14.2. Excusable or Delayed Performance. GE shall not be liable for delays or nonperformance due to causes beyond its
reasonable control,including,but not limited to,acts of God,acts of Customer,prerequisite work by others,acts of civil
or military authority, government priorities, changes in laws or regulations, fires, strikes or other labor disturbances,
floods,epidemics,war,terrorism,riot,delays in transportation or car shortages,or inability to obtain or delay in obtaining
suitable labor,materials,government permits,or facilities,due to causes beyond its reasonable control. In the event of
any such delay,the time of performance shall be extended for a period equal to the time lost by reason of the delay,or if
performance is rendered impossible,GE shall be excused from performance subject to an equitable adjustment to the
applicable fees.In the event GE is delayed by conditions caused by Customer or by prerequisite work by other contractors
or suppliers of Customer, GE shall be entitled to an equitable price adjustment in addition to extension of the time of
performance.
14.3. Independence.GE and Customer are independent contractors,and neither Party,nor any of their respective Affiliates,is
an agent,partner,or joint-venturer of the other for any purpose or has the authority to bind the other.Both Parties reserve
the right(a)to develop or have developed for it products,services,concepts,systems,or techniques that are similar to or
compete with the products,services,concepts,systems,or techniques developed or contemplated by the other Party and
(b)to assist third party developers or systems integrators who may offer products or services which compete with the
other Party's products or services.
14.4. No Third Party Beneficiaries.This Agreement does not create any third party beneficiary rights in any individual or entity
that is not a party to this Agreement.
14.5. Trade Compliance.Each Party shall comply with applicable laws that govern the import,export,or re-export of data or
materials supplied under this Agreement.Without limiting the foregoing,Customer agrees that it shall not sell,distribute,
disclose, release, or otherwise transfer any item or technical data provided under this Agreement to: (i) any country
designated as a"State Sponsor of Terrorism"by the U.S.Department of State including,for this Agreement,the countries
of Cuba and North Korea(ii)any entity located in,or owned by an entity located in,a"State Sponsor of Terrorism"country,
Cuba,or North Korea,(iii)the region of Crimea,or(iv)any person or entity listed on the"Entity List"or"Denied Persons
List"maintained by the U.S.Department of Commerce,the list of"Specifically Designated Nationals and Blocked Persons"
maintained by the U.S.Department of Treasury or any other applicable prohibited party list of the US Government.This
clause shall apply regardless of the legality of such a transaction under local law.Except as otherwise agreed in writing
between the Parties, each Party shall be responsible for obtaining and maintaining any authorization required for its
performance under this Agreement (including the transfer any item or technical data under this Agreement), such as
export license,Import license,exchange permit or other required government export or import authorization. Each Party
shall provide reasonable assistance necessary for the other Party to secure and comply with such authorizations as may
be required.Each Party shall not be liable if any government export authorization is delayed,denied,revoked,restricted
or not renewed despite commercially reasonable efforts by the Party.Additionally,such delay,denial,revocation or non-
renewal shall not constitute a breach of this Agreement.Customer acknowledges that GE may conduct periodic screening
of Customer and of its beneficial owners to comply with applicable laws and consents to the foregoing.
14.6. Language. All communications and notices to be made or given pursuant to this Agreement must be in the English
language.
14.7. Severability and Interpretation. If any portion of this Agreement is held to be invalid or unenforceable, the remaining
portions of this Agreement shall remain in full force and effect.Any invalid or unenforceable portions shall be interpreted
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GE DIGITAL MASTER PRODUCTS AND SERVICES AGREEMENT JULY 2017 GE CONFIDENTIAL
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to effect the intent of the original portion.if such construction is not possible,the invalid or unenforceable portion shall
be severed from this Agreement but the rest of the Agreement shall remain in full force and effect.Section headings are
used for convenience only.
14.8. Audit.Customer agrees to permit GE or GE's designated agent,upon reasonable notice to Customer,to audit Customer's
books,records,and facilities to verify Customer's compliance with the terms and conditions of this Agreement,including
any usage limitations or restrictions applicable to the GE Offerings.If any audit reveals an underpayment by Customer,GE
may invoice Customer for such underpayment in accordance with GE's standard policies.Customer agrees to pay such
invoice in accordance with the payment terms of this Agreement.
14.9. Notices.GE may provide any notice required or permitted to be given to Customer under this Agreement by sending a
notice to the mailing or email address below(as may be updated by Customer from time to time upon notice to GE):
Board of County Commissioners for Collier County,Florida
dJo Collier County Public Utilities Department
3339 East Tamiami Trail,Suite 303
Naples,FL 34112
Telephone:239-252-5379
Fax:239-252-5378
Attn:Mike Raabe,PE
E-Mail:mikeraabtvccilleigov.net
Notices to GE may be provided as follows(as may be updated by GE from time to time upon notice to Customer):
By personal delivery,overnight courier,or U.S.Postal registered or certified mail:
GE Digital
2700 Camino Ramon
Suite 450
San Ramon,CA 94583
Attention:GENERAL COUNSEL
By email:CONTRACTS.SOFTWARE@GE.COM
14.10.Assignment. Neither Party may assign this Agreement,or any of its rights or obligations hereunder,without the prior
written consent of the other Party,and any assignment in violation of this provision shall be void.Notwithstanding the
foregoing,GE may assign this Agreement,or any of its rights or obligations hereunder,without the necessity for obtaining
consent,to any Affiliate of GE.Subject to these requirements,this Agreement shall be binding upon, and inure to the
benefit of the Parties and their respective successors and assigns.
14.11.Entire Agreement.This Agreement is the entire agreement between Customer and GE regarding the subject matter of this
Agreement.This Agreement supersedes all prior or contemporaneous representations, understandings,agreements,or
communications between Customer and GE,whether written or oral,regarding the subject matter of this Agreement.
14.12.Amendments. Any Amendments to this Agreement must be in writing and must be signed by both Parties. No oral
agreement,course of dealing,or trade usage shall be deemed to modify this Agreement.
14.13.Waivers.The failure of a Party to enforce any provision of this Agreement shall not constitute a present or future waiver
of such provision or limit a Party's right to enforce such provision at a later time.All waivers must be in writing and signed
by the Party issuing the waiver.
14.14.Choice of Law.This Agreement shall be governed by the laws of the State of Florida,without reference to its conflict of
laws provisions.The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this
Agreement. Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between
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the parties,the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall
be attended by representatives of the Customer with full decision-making authority and by GE's representative.
14.15.High Risk Uses.Customer acknowledges that the GE Offerings are not designed for real-time control or time-sensitive
applications that have the potential to cause death,personal injury,or property damage or that could result in radioactive,
chemical,or biological contamination or environmental damage.Customer assumes the entire risk for any such use and
shall defend and indemnify GE and its Affiliates from any liability to third parties resulting therefrom.Customer agrees not
to use the GE Offerings for control of any nuclear facility or activity.
14.16.U.S.Government Contracting. If Customer is a U.S.Government entity or procures GE Offerings for or on behalf of a
U.S.Government entity,the following provisions apply:(a)Customer agrees that all GE Offerings meet the definition of
"commercial-off-the-shelf"(COTS)or"commercial item"as defined In FAR 2.101,and that the subparagraph terms of FAR
52.212-5(e)or FAR 52.244-6(or,for orders from the U.S Government,FAR 52.212-5 and FAR 52.212-4 with tailoring to the
extent permitted by FAR 12.302 by replacing all paragraphs except those listed in FAR 12.302(b)with these terms and
conditions), and (subject to subsection (e) below) DFARS 252.212-7001(c) or DFARS 252.244-7000, whichever are
applicable,apply only to the extent applicable to COTS or commercial items and only as appropriate for the dollar value
of this order;(b)with regard to any terms related to Buy American Act or Trade Agreements,the country of origin of GE
Offerings is unknown unless otherwise specifically stated in writing by GE;(c)Customer agrees that any services offered
by GE are exempt from the Service Contract Act of 1965(FAR 52.222-41);(d)Customer agrees that this sale is not funded,
in whole or in part,by the American Recovery and Reinvestment Act unless otherwise set forth in a written agreement of
the Parties;(e)GE makes no representations,certifications,or warranties whatsoever with respect to the ability of GE
Offerings to satisfy DFARS 252.225-7009,Restriction on Acquisition of Certain Articles Containing Specialty Metals;(f)with
regard to DFARS 252.204-7012, Customer agrees that no Unclassified Controlled Technical Information or Covered
Defense Information shall be provided to GE, delivered by GE to Customer, or used by GE in the performance of this
Agreement;and (g)Customer is solely and exclusively responsible for compliance with any other applicable statutes or
regulations governing sales to the U.S. Government, and GE makes no representations, certifications or warranties
whatsoever with respect to the ability of GE Offerings or prices to satisfy any such statutes and regulations other than
those contained herein.
JREMAINDER OF PAGE INTENTIONALLY BLANK1
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the last date written below by their
respective duly authorized officers or representatives.
GE Collie oun :nerd of County Commi *. ers
z
Signaure Signature
14 1-17 Itit, 1--Cre b::?.; Penny Taylor,Chairman
Print Name/Title Print Name/Title
Date Date
Approved as to Form nd Legality:
i
torig6ss
Deputy County Attorney
ATTEWI Sr :
EBOC , LERK
* • ty Omit
Attest as to Chairman's
signature only,
GE DIGITAL MASTER PRODUCTS AND SERVICES AGREEMENT JULY 2017 GE CONFIDENTIAL e)
16► E2 4
Appendix A
Product Specific Terms and Conditions
The following terms and conditions apply to specific GE Offerings listed below,in addition to the terms and conditions of the main
body of the MPSA. In the event of any conflict between the terms and conditions in this Appendix and the main body of the
MPSA,these terms and conditions shall take precedence with respect to the GE Offerings described below.
1. Trial Offerings.
From time to time,GE may offer Customer access to certain GE Offerings that GE designates as"beta,""evaluation,"or
"trial"on the Predix Web site or in Order documents("Trial Offerings").Trial Offerings are provided to Customer free of
charge,except as otherwise specified by GE.GE may limit,suspend,or terminate Customer's license or subscription to
any portion of the Trial Offerings for any reason,in GE's sole discretion,Including,for example,the expiration of the Trial
Offerings period,to enforce Trial Offering usage limitations,or to protect GE's services or systems.Any product or service
designated"alpha,""beta,"or"pre-release"is subject to change without notice,may differ substantially upon commercial
release,and may have limited or no Support Services. Trial Offerings have not been fully tested and may contain defects,
may lack standard security features,and may be taken offline or become unavailable without notice.TRIAL OFFERINGS
ARE PROVIDED"AS IS"AND"WITH ALL FAULTS"AND GE HAS NO OBLIGATION OR LIABILITY WITH RESPECT TO TRIAL
OFFERINGS.
2. ThingWorx/PTC(Software'
2.1. ThingWorx and PTC Software are licensed only for use in conjunction with,and as part of,the software application package
provided by GE and may not be separated from the software application package or used on a standalone basis.
3. Acceleration Plans(Support Servicesl.
3.1. Support Services.GE shall provide the support program and associated level of support as reflected in the applicable Order
("Support Services"). The applicable program,level of service and included or a la carte components that constitute the
Support Services are further described in the Acceleration Plans Support&Services Guide and shall be acknowledged by
GE(the"Support Confirmation").Support Services may include various types of Services as described in the Acceleration
Plans Support&Services Guide.
3.2. Nature of Support Services. Support Services may be provided Independently as a GE Offering or as a required component
of another GE Offering. To the extent Support Services are provided as a component part of another GE Offering,the
relevant Support Services must be purchased and shall terminate when such GE Offering is terminated or shall be extended
to the extent such GE Offering is extended(including any automatic renewals thereof).To the extent Support Services are
associated with Software,such Support Services shall automatically terminate in the event the license to the underlying
Software is terminated.
3.3. Adoption Services and Managed Services. "Adoption Services"and "Managed Services" are available as part of some
Support Services plans, as further described on Customer's Order. These services provide Customer with assistance,
information,and advice in adopting,implementing,and monitoring GE Digital Offerings by providing Customer with key
indicators and metrics.Customer acknowledges that the interpretation or application of any such indicators,information,
or advice depends on many factors outside of GE's ability to control or foresee,and therefore,Customer assumes sole
responsibility for confirming such Information or advice with appropriate testing and validation prior to taking any action
or decision.GE does not and cannot guarantee that every fault condition can be foreseen or detected or that GE will be
able to provide any particular amount of advance warning of any impending fault or failure.
3.4. Term.Renewal and Termination
3.4.1. Support Services Associated with Software. The Support Services subscription term will be as stated on the
Confirmation.Customer shall have the option to renew the Support Services. GE shall notify Customer that the then-
current service period is ending;GE may provide Customer with a quote(including renewal rate)for renewal prior to
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expiration of the then current service period.Timely purchase and payment of the applicable yearly service fee shall
extend Support Services. The renewal rate shall equal the current Support Services rate plus the annually published
Consumer Price Index plus one percent(1%)over the prior period. CPI shall mean the U.S.City Average(December to
December percent)for AL Urban Consumers(CPI-U).
3.4.2, Reserved.
3.5. No Right of Refund. Payment for any and all Support Services is required in advance,without right of refund for any
reason.
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