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Wireless System & Service
.006--261 St/ WIRELESS SYSTEM AND SERVICE AGREEMENT, This Agreement (the "Agreement") effective as of this nineteenth day of April, 2006, (the "Effective Date") is entered into between the City of Miami Beach, a Florida corporation, whose address is 1700 Convention Center Drive, Miami Beach, FL, 33139 (hereinafter referred to as the "City"), and International Business Machines Corporation, whose address is 1 Alhambra Plaza, Coral Gables, FL 33146 (hereinafter referred to as "Vendor" or "IBM"). City and Vendor may be hereinafter referred to individually as a "Party" or collectively as the "Parties." I. Definitions - For the purpose of this Agreement the following words, terms and phrases shall have the meaning given herein. Words, terms and phrases not defined herein shall be given the meaning in each respective Schedule, or as customarily used in the industry. 1.1 Best -Effort Service - a net throughput per subscriber of one (1) to five (5) megabit per second (Mbps) upstream (client device to Network) and downstream (Network to client device) transmission. 1.2 Capacity - The maximum number of simultaneous connections or the maximum amount of bandwidth at any one given point in time. 1.3 City — The City of Miami Beach, FL. 1.4 Coverage Area — The entire 7.1 square miles of the City of Miami Beach, including that portion of Terminal Island and Fisher Island that is within the boundaries of Miami Beach. 1.5 Encryption - State of the Art security standards, which includes the logical security for all critical Network Equipment and other components of the System via secured facilities. 1.6 Equipment — Any and all components, facilities, wiring, electronics and other materials utilized in the construction, activation, operation, management and monitoring of the System. 1.7 Invention — The term "Invention" means any idea, concept, design, technique, invention, discovery, or improvement, whether or not patentable, that either of our employees first conceives and reduces to practice during the term and in performance of a project under this Agreement and for which a patent application is filed. 1.8 Materials — "Materials" are literary works or other works of authorship (such as software programs and code, documentation, reports, and similar works) that Vendor delivers to the City as part of a Service. The term Materials does not include licensed programs and other items commercially available under their own license terms or agreements. 1 IBM -CMB FINAL AGREEMENT 1.9 Network — All Equipment, Software, Firmware and Middleware including both wireless and wired components necessary to provide Service. 1.10 Network Infrastructure — All hardware, software and equipment that supports the City's wireless system Bill of Materials as specified by the Vendor during the design process and approved by the City. 1.11 Purchase Order — A City written document which serves to provide Vendor with a notification to proceed with all work pursuant to the terms and conditions in this Agreement, and encumbers funds for payment processing upon receipt of valid invoices. Any additional City terms and conditions contained in the Purchase Order shall be deemed void. 1.12 Project Change Request ("PCR") — A Vendor written document serving to provide City with notification to modify or change the terms or conditions of the services, Equipment or Materials delivered pursuant to this Agreement. The PCR will describe the change, the rationale for the change and specify the estimated schedule or other terms as required. Any additional standard IBM terms or conditions contained in any PCR shall be deemed void. 1.13 Service — High speed wireless access to the Internet via Vendor's Network from any point within the City including but not limited to seamless roaming subject to the 95% in -street (outdoor) and 70% indoor coverage requirements, as defined in the RFP. 1.14 Software - Software means any and all software, middleware, microcode and firmware, both licensed by Vendor and software that Vendor licenses from a third party, and associated written and electronic documentation and data licensed in connection with the provision of services under this Agreement. 1.15 State of the Art — The most advanced, commercially available, Wireless Fidelity (Wi-Fi) and Worldwide Interoperability for Microwave Access (WiMax) technology solutions related to levels of performance, applications, Equipment, Software and components, based upon ratified standards issued by the Institute of Electrical and Electronic Engineers, Inc. (IEEE), to enhance existing or potential user applications for the City and/or the Network users taking in consideration performance, Capacity, signal coverage, reliability, features, maintenance, and efficiency of frequency use. State of the Art shall not include any technology or Equipment which is in Beta stage. 1.16 Street(s) - means the surface, the air space above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, causeway, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, or any other public right-of-way or public place, including 2 LBM -CMB FINAL AGREEMENT public utility easements dedicated for compatible uses, or any other property in which the City holds any kind of property interest or over which the City exercises any type of lawful control, and any temporary or permanent fixtures or improvements located thereon, as may be ordinarily necessary and pertinent to construct and operate a wireless network. 1.17 Subscribers - public users, including but not limited to residents, visitors and government users, who access the Network. 1.18 System — the Network and Service, including, without limitation, all Equipment and Software provided by Vendor pursuant to this Agreement. 1.19 Unlicensed Spectrum - a frequency block that does not require a license from the FCC or equivalent governmental agency. 1.20 Vendor — International Business Machines Corporation ("IBM"). 1.21 Wi-Fi - Wi-Fi shall mean any wireless local area network (WLAN) products that are based on the Institute of Electrical and Electronics Engineers' (IEEE) 802.11 standards. 1.22 Wi-MAX —A broadband wireless network that is based on the IEEE 802.16 standard, which ensures compatibility and interoperability between broadband wireless access Equipment. II. Scope of Agreement - Vendor shall provide, operate and maintain for the City a Wi- Fi Network including, but not limited to, all design, configuration, installation and maintenance of Equipment, Software, Service, and other services necessary to make available free access to the Internet from any point within the City on a "Turnkey" basis as set forth herein and subject to the obligations of the City of Miami Beach. Schedule II sets forth the anticipated services and applications contemplated by the Parties to be provided by the WiFi Network (hereinafter defined as Services). The City Request For Proposals (RFP, Addendum No. 1, dated 8/10/05; Addendum No. 2, dated 8/24/05) and the IBM responses thereto; ("IBM Response to RFP No. 36- 04/05", dated 9/21/05; IBM "Partnered for Success" dated 2/9/06; IBM Document dated 2/14/06; IBM "Best and Final Offer" dated 2/21/06; IBM E-mail dated 3/3/06;) are hereby incorporated herein by reference (collectively referred to herein as the "RFP/Response"). All provisions, terms and conditions contained in the RFP/Response shall represent the obligations of the Parties as if same were set forth herein unless expressly modified or amended herein. If there is a conflict between the RFP/Response and this Agreement, this Agreement prevails. This Agreement includes all schedules attached hereto. III. Price and Terms of Payment - In consideration of Vendor's performance of the Services, City shall permit Vendor to attach its Equipment to approximately 260 mounting assets, including but not limited to poles and other facilities owned or 3 IBM -CMB FINAL AGREEMENT leased by the City as set forth in Schedule III, and shall pay Vendor for all Network elements and Services assigned to and rendered to the City pursuant to this Agreement as set forth in Schedule IIIc. City will determine, following consultation and collaboration with the Vendor, how many mounting assets will be required for System optimization. Additionally, City may at its option purchase any one single or combination of all three optional additional items as set forth in Schedule IIIb. All taxes and similar assessments, levies and government -imposed obligations with respect to Vendor's income derived from its performance of Services hereunder shall be the obligation of and be paid by Vendor. IV. Term - The initial term of this Agreement shall commence upon the date of execution of this Agreement by all Parties, and shall continue for the period of design, configuration, installation and testing of the System and for a period of six (6) years from the Acceptance Date of the System as defined in Section V 1.4.2 herein for the operation, upgrade and maintenance of the System, unless otherwise terminated in accordance with this Agreement. The City, at its sole option and discretion, shall have the option to renew for two (2) terms of three (3) years each, with the consent of the Vendor ("Renewal Term"), unless otherwise terminated in accordance with this Agreement. Notwithstanding the foregoing, if the City terminates this Agreement prior to the expiration of the Initial Term or the Renewal Term and requests that Vendor to complete the Services then in progress, then the terms of this Agreement shall remain in full force and effect, but only as applicable to and until the completion of any such work in progress. V. Design, Construction, Installation, Maintenance and Performance 1.1 System Design Methodology — Vendor shall employ a methodical approach to Network design that centers around three progressively elaborated levels of granularity and detail. The Network architecture shall have the scalability and capability to evolve as the City's needs evolve thereby enabling the development of a progressively more detailed set of Network designs, and the full set of functional requirements as set forth in Schedule V 1.1. 1.2 Architecture and Design Services — The Vendor's wireless Network solution shall be designed based on a three -tiered approach. The top tier will consist of the applications management and support Services. This tier shall include but not be limited to Internet gateway, splash page and portal applications, OSS, customer and technical support services, Network monitoring and management. The middle tier shall be a multi -tier backhaul Network consisting of both wired and wireless connectivity solutions operating in the licensed or unlicensed spectrum while the wired connectivity shall be operated by fiber. However, with the prior written consent of the City, Vendor may substitute microwave facilities in lieu of fiber for any connectivity solutions. The Wireless Network's backbone solution shall employ wired technologies for 25% of the failover backbone solution such that the Network is at all times fully redundant and available. The third and bottom layer shall consist of the Wi-Fi Network 4 IBM -CMB FINAL AGREEMENT Mesh for the Coverage Area. Schedule V 1.2 sets forth the required elements of architecture for the System as well as required services for the System. 1.3 Network Infrastructure Requirements - the System shall consist of a wireless Network covering all 7.1 square miles of the City of Miami Beach. Schedule II Section 3.1 sets forth the priority for using adequate mounting assets. Vendor shall give City no less than 5 months notice for procuring any requisite new poles; shall afford the City no less than three (3) business days for the installation of each new pole; and shall afford the City no less than one (1) business day to wire six (6) existing poles. 1.4 Installation Services — Vendor shall provide turnkey installation Services required to the successful deployment of the System on a reasonably expedited commercially available basis. Schedule V 1.4 sets forth the specific installation requirements and time schedules. Time is of the essence for completion of the tasks set forth herein. 1.5 Telecommunications Connectivity Provisioning and Services — Schedule V 1.5 sets forth the telecommunication connectivity provisions and services necessary to accommodate the Network Capacity requirements for aggregation points for wired and wireless telecommunications services. 1.6 Network Monitoring and Management Services — Vendor shall be responsible for monitoring and managing the System, including but not limited to all Network Equipment, Hardware, Software, tools, personnel and other components required to meet the reliability and performance goals of the City throughout the term of this Agreement, as set forth in Schedule V 1.6, including, but not limited to, the following: 1.6.1 Performance Management - Measure and make available various aspects of Network performance so that inter -Network performance can be maintained at an acceptable level. 1.6.2 Configuration Management - Monitor Network and System configuration information so that the effect of configuration changes (intentional or unintentional) can be tracked and managed. 1.6.3 Accounting Management - Measure Network -utilization parameters so that individual or group users on the Network can be regulated appropriately. Such regulation should minimize Network problems and maximize the fairness of Network access across all domains and users. 1.6.4 Fault Management - Detect, log, notify support organizations and users (where appropriate) of, and (to the extent possible) automatically fix Network problems to keep the Network running effectively. This should 5 IBM -CMB FINAL AGREEMENT include proactive determination of symptoms, isolation of problems and rapid resolution. 1.6.5 Security Management — Control access to Network and System resources according to policies developed by the City so that the Network cannot be accessed, altered or modified without appropriate authorization. 1.6.6 Remote Operations Center - Vendor shall utilize a remote operations center. Designated City personnel shall at all times have unrestricted access to be used in the event of an emergency to all Network management software. The remote control system shall include deployment, provisioning, monitoring, managing and reporting functions. The specifications including access policies and processes for the Remote Operations Center and Management Policies are set forth in Schedule V 1.6. 1.6.7 Reports - Vendor shall provide the City a written report regarding Network management, monitoring and maintenance on a quarterly basis and statistical reporting on a weekly basis, during the first one hundred eighty (180) days of operation and then on at least a monthly basis or within ten (10) days of any City request for the same. Vendor shall additionally maintain all firmware, microcode or middleware at no less than an in an n-1 status on a quarterly basis. 1.6.8 Vendor Representative - Vendor shall designate, in writing, an executive from the Vendor who is the primary or single point of contact and provide the City with 24/7 contact information. 1.6.10 Additional Management — In addition, Vendor shall meet the following technical requirements: • Provide event notifications • Provide group management of System components • Built-in configuration database • Provide Simple Network Management Protocol ("SNMP") standards • Graphical representation of Network data • Provide configurable Access Control Lists ("ACLs") • Ability to drill -down on System components • Ability to auto discover new devices in the System • Provide wireless proxy agents for non-SNMP devices • Provide statistical reporting 1.7 Maintenance and Support Services. Vendor shall provide six (6) years of maintenance/support Services of the System at no additional cost to the City. Vendor shall be responsible for all maintenance and support services for all elements of the System, including but not limited to all Equipment and Software and any data transport Services that are required under the Agreement, and will be the single point of contact 6 IBM -CMB FINAL AGREEMENT for maintenance, Service and support. Schedule V 1.7 sets forth the required plan and for maintenance of the System, which will include requirement for spare inventory. Additionally, Vendor warrants that: (i) there will be minimal interruption of Service during upgrades; and (ii) backwards compatibility will be ensured for all existing applications that are part of the System, Service and Subscribers as upgrades occur. 1.8 Operations Support Systems (OSS) Services - Vendor shall provide tier - one, two and three support for Citywide hot zone technical support. Specific provisions are set forth in Schedule V 1.8. 1.9 Use of Streets, Government Owned Facilities and Rights of Way Permits, licenses and compliance with applicable rules and regulations of any government agency — Vendor shall be solely responsible for obtaining and for the cost of all necessary permits and licenses, and compliance with all applicable rules and regulations of any governmental agency having jurisdiction over streets, government-owned facilities and/or rights-of-way, including but not limited to the Code of the City of Miami Beach. To the extent that there are delays beyond the normal processing time, IBM will be relieved from associated milestone on a day for day basis. 1.9.1 Relocation Costs — responsible party The Vendor shall be responsible for all costs incurred for removal and relocation of any Network Equipment, including the cost of all permits and other approvals necessary for the work. Further, Vendor is responsible for restoring any damage to Street and including, without limitation, sidewalks, streets, curbs, landscaping, and utilities, and other facilities resulting from removal and relocation of Equipment. 1.10 Prioritization of Access and In Motion Service — Vendor's Network shall provide traffic prioritization for government user data, as defined by the City. Vendor shall provide seamless, in -motion connectivity throughout the Coverage Area to government users. This includes the ability for Subscribers to maintain session -level persistence while the Subscriber's device is in motion at speeds up to sixty (60) miles per hour. This capability must be supported with no interruption to applications running on the device. Vendor shall provide in -motion service as provided in Schedule V 1.10. VI. System Security — The System shall provide State of the Art security creating a means of authenticating users and a secure 802.1X or VPN method for securely connecting to the Network as set forth in Schedule VI. Vendor shall be responsible for the authorization and authentication security infrastructure for wireless government users up to and until the City's designated demarcation point as set forth in the design process in Schedule VI, Item 1. It is required by City that all installed System hardware employing a Windows based operating system, be procured from Dell, as this is the City standard. Vendor shall use commercially reasonable best 7 IBM -CMB FINAL AGREEMENT efforts to install any security or encryption patches or updates on an expedited basis, but in no event shall this period exceed forty-eight (48) hours from the release of any such update. These security standards shall include but not be limited to the encryption standard protocols as set forth herein. 1.1 Encryption —Vendor shall design and provide State of the Art security and encryption solutions for the Network, particularly for City users, which includes but shall not be limited to the physical security for all critical Network Equipment and other components of the System via secured facilities. The Vendor agrees to provide solutions and support for the following as well as new or updated security or encryption protocols as they become commercially available: • Media Access Control ("MAC") address filtering • Wired Equivalent Privacy ("WEP") Encryption, including both 64 and 128 bit keys • Temporal Key Integrity Protocol ("TKIP") Encryption • TAC & ACS Protocols for Cisco products only • Advanced Encryption Standard ("AES") Encryption • Wi-Fi Protected Access ("WPA") & Wi-Fi Protected Access 2 Enterprise ("WPA2 Enterprise") Encryption • 802.1x authentication using Extensible Authentication Protocol ("EAP") and "Remote Authentication Dial -In User Service" ("RADIUS") • The suppression of Extended Service Set Identifier ("ESSID") broadcasts • Multiple ESSIDs and the ability to map ESSIDs individually to Virtual LANs ("VLANs") • Filtering of traffic based on Internet Protocol ("IP") addresses, subnets and Transmission Control Protocol ("TCP") ports • Virtual Private Network ("VPN") tunneling • Encryption of all control and Network management traffic transmitted within the System 1.2 Network filter — Vendor shall provide State of the Art Network security, capable of dynamically identifying possible security breaches, actively tracing the root thereof and immediately taking corrective action. Support for State of the Art Network traffic monitoring, analysis and reporting capable of capturing and analyzing all traffic transport over the System and decoding all major TCP/IP and application protocols in order to filter Network traffic to find specific information. VII. Vendor Services Standards - Vendor warrants that it shall perform its Services in accordance with the International Organization for Standardization (ISO) Fault, Configuration, Accounting, Performance, Security (FCAPS) Standard (ISO Standard 10165-4). If during the Term of this Agreement, or the renewal thereof, it is shown that there is an error or omission in the Services as a result of Vendor's failure to meet those standards, and City has notified Vendor in writing of any such error or omission, within thirty (30) days, Vendor shall perform such corrective Services within the original scope of Services as may be necessary to remedy such error at Vendor's sole cost and expense. Vendor warrants it shall use commercially 8 IBM -CMB FINAL AGREEMENT reasonable best efforts to ensure that all users receive continuous, uninterrupted Service. VIII. Technical and Customer Support — Vendor shall provide technical and customer support for the System. Specific requirements are set forth in Schedule VIII. IX. Training - Vendor shall provide training for a minimum of two (2) weeks of on-the- job training on the design and operation of the overall System for a minimum of four (4) City -designated persons prior to the activation of the System. Vendor shall provide a minimum of one (1) week of updated on-the-job training on the design and operation of the overall System for a minimum of four (4) City -designated persons on an annual basis during the Term of this Agreement. X. Implementation and Activation Schedule — Vendor shall timely implement the Network as more specifically set forth in Schedule V 1.4. Vendor is on notice that time is of the essence for compliance with the timetable set forth in Schedule V 1.4. It is the Parties' intent that the System be designed, implemented and made operational on an expedited basis. XI. Inspection, Testing and Acceptance 1.1 Conditional Acceptance - Vendor shall notify the City in writing when Vendor contends that all work comprising a Milestone, as set forth in Schedule III, has been successfully tested pursuant to Section XI 1.3, and provide the results thereof, stating that the Milestone has met the Conditional Acceptance Tests, to the City for its review. This notice shall state that the Milestone is completed and ready for Conditional Acceptance by the City. Within thirty (30) days following receipt of Vendor's written notice, the City shall issue its written statement of Conditional Acceptance of the Milestone, or its written notice that the Work comprising the Milestone is not Conditionally Accepted. Conditional Acceptance will not be unreasonably withheld provided that all Work comprising the Milestone is completed and conforms to the Conditional Acceptance Standards. 1.1.1 In the event any work comprising a Milestone is rejected by the City, the City shall, in its notice of rejection, specify in reasonable detail the reasons for the rejection including a description of the defects on which the rejection is based. Vendor shall, within five (5) business days following receipt of City's notice, deliver to the City its plan for correcting all defects identified in the City's notice. Upon the City's written approval of the plan of correction, Vendor shall proceed to correct the defective Work in accordance with the approved plan and shall complete all corrections within fifteen (15) calendar days following receipt of the City's approval of the plan, or such longer period as the City may agree to in writing (the "First Correction Period"). Upon completion of the corrections, Vendor shall notify the City in writing of such 9 IBM -CMB FINAL AGREEMENT completion. The City shall determine whether the corrected work complies with the Conditional Acceptance Standards and issue its written notice of Conditional Acceptance or rejection of the corrected work to Vendor. If the work is rejected a second time, Vendor shall again be required to correct the defects within five (5) business days; and if the work still does not materially comply with the Conditional Acceptance Standards, following the Second Correction Period, the City may, in its sole discretion, (i) request Vendor, in writing, to remove the rejected portion at Vendor's expense and to restore the System (and the premises, if applicable) to its condition prior to performance of the Milestone; and/or (ii) remove the rejected portion itself, at Vendor's expense, if Vendor does not comply with such request; and/or (iii) perform the rejected portions of the work itself, through its own personnel or third parties, at Vendor's expense. 1.1.2 The Conditional Acceptance Standards consist of the following: 1.1.2.1 The descriptions of functionality and standards of performance that are set forth in this Agreement that apply to the Milestone; 1.1.2.2 The manufacturer's (including, without limitation, Vendor's, where applicable) most current published specifications for the Software, Equipment, and Deliverables that apply to the Milestone; 1.1.2.3 System designs, as accepted and approved by the City; 1.1.2.4 The test criteria and standards of performance provided in the Test Plan(s) as defined in this Agreement that are accepted and approved by the City and apply to the Milestone; and 1.1.2.5 Successful completion of the Conditional Acceptance Tests and the Reliability Period as provided in this Agreement. 1.2 Final Acceptance - Vendor shall notify the City in writing when Vendor contends that all requirements for the System are completed and that the System and all other components have been fully performed in accordance with the Agreement, including, without limitation, the Final Acceptance Standards as set forth herein, and the system is ready for Final Acceptance Test(s). Following receipt of such notice, the City shall establish a schedule for commencing and conducting the Final Acceptance Test(s); the commencement date shall be not more than thirty (30) calendar days following the date on which the City receives Vendor's notice, except as may be otherwise agreed to by the Parties. The System shall not be Finally Accepted unless and until the System and all other 10 IBM -CMB FINAL AGREEMENT components of the System function together as an integrated whole in accordance with the Final Acceptance Standards. 1.2.1 The Final Acceptance Standards consist of the following: 1.2.1.1 The descriptions of functionality and performance and all standards of performance that are set forth in this Agreement; 1.2.1.2 The Documentation; 1.2.1.3 The manufacturer's (including, without limitation, Vendor's where applicable) most current published specifications for all Software and Deliverables; 1.2.1.4 All design documents prepared by Vendor under this Agreement, including, without limitation, the Preliminary Design and Detailed Design; 1.2.1.5 The test criteria and standards of performance set forth in the Test Plan(s), as accepted and approved by the City; and 1.2.1.6 Successful completion of the Final Acceptance Tests and the Reliability Period provided in this Agreement. 1.3 Acceptance Test(s); Test Plan(s) - The Services and deliverables comprising each Milestone in Schedule III shall be subject to conditional acceptance testing as approved and accepted by the City (the "Conditional Acceptance Tests"), and the Services and deliverables as an integrated system shall be subject to final acceptance testing as approved and accepted by the City (the "Final Acceptance Tests"). No Conditional or Final Acceptance Test or other test of the Services and deliverables shall commence unless and until Vendor has delivered and the City has accepted and approved, in writing, Vendor's written plan or plans setting forth, for the Conditional Acceptance Test(s) and the Final Acceptance Test(s), a test method and criteria and standards of performance that must be satisfied for the test to be successful (collectively, the "Test Plan(s)" that are acceptable to the City). The Test Plan(s) shall include, without limitation, test methods and criteria and standards of performance for all Project Milestones identified in Schedule III, and otherwise conform to the general test requirements; and shall fully test the System for conformance to the terms and conditions of the Agreement and other Final Acceptance Standards. The Test Plan(s) shall be deliverables under the Agreement. 1.4 Reliability Period — 1.4.1 For Conditional Acceptance: The System elements of Milestones must function in conformance with the Conditional Acceptance Standards and without any material defect or material failure for a period of ninety (90) consecutive calendar days, commencing on the day following the first successful completion of the Conditional Acceptance Test, to be 11 IBM -CMB FINAL AGREEMENT conditionally accepted. In the event any System element or work comprising a Milestone suffers any material defect or material failure prior to the expiration of such period (the "Reliability Period"), Vendor shall remedy such material defect or material failure, and a new ninety (90) consecutive calendar day Reliability Period (the "Second Reliability Period") shall begin on the day that Vendor notifies the City that the remedial action has been completed. In the event System element or work comprising a Milestone does not successfully complete the Second Reliability Period without any material defect or material failure, the City may, at its sole discretion, terminate this Agreement and exercise any remedy provided to the City in Section. This clause and the conditional acceptance periods shall only apply to the first three of the four Milestones. Notwithstanding the above, should the City fail to identify a material failure or material defect in the System during the conditional acceptance Reliability Periods, the City shall not be estopped from raising such material defects or material failures during the Final Acceptance Reliability Period as set forth below. 1.4.2 For Final Acceptance: The period for Final Acceptance shall commence upon exchange of the fourth Construction Letter of Credit and fourth payment of 20% of the Year 1 Capital Cost as set forth in Schedule V 1.4. It shall be a condition of Final Acceptance that the completed and fully integrated System function in conformance with the Final Acceptance Standards and without any material defect or material failure for a period of ninety (90) consecutive calendar days, commencing on the day following the first successful completion of the Final Acceptance Test. In the event the System suffers any material defect or material failure prior to the expiration of such period (the "Reliability Period"), Vendor shall remedy such material defect or material failure, and a new ninety (90) consecutive calendar day Reliability Period (the "Second Reliability Period") shall begin on the day that Vendor notifies the City in writing that the remedial measures have been completed. In the event the System does not complete the Second Reliability Period without any material defect or material failure, the City may, at its sole option and discretion, terminate this Agreement for default and exercise any one or more of the remedies provided to the City in Section XXVII. Payment of the fifth and final payment will only be made upon successful completion of either the final acceptance Reliability Period or the final acceptance Second Reliability Period. 1.5 Acceptance or Rejection- If the System is not in compliance, the City may, in its sole discretion, (a) reject the System and this Agreement shall be terminated with all costs and fees to be paid by the Vendor within thirty (30) days of receipt of the Notice of Rejection or the City shall have the right to exercise its rights under the Construction Letters of Credit pursuant to Section XXVII 1.5, or in the 12 IBM -CMB FINAL AGREEMENT City's sole discretion (b) allow the Vendor additional time to come into compliance. If the City determines that the System is in compliance, then the City shall accept the System. In the event that the City rejects the System, Vendor shall remove all equipment and restore all City assets and property to their original state at Vendor's sole cost within 60 days. Vendor shall not be responsible for any modifications made by the City. 1.6 Acceptance Certificate and Transfer of Title - Upon the successful completion of the Final Acceptance Test and the Final Reliability Period or the Final Second Reliability Period, if necessary, Vendor shall submit to City an Acceptance Certificate. Therein, the Certificate shall certify the test results and state that the Equipment and Software is installed and operating in accordance with the requirements of this Agreement. Vendor shall then transfer Title and ownership of all components of the System to the City. 1.6.1 Acceptance Certificates shall apply to each item of Equipment and Software delivered and installed pursuant to this Agreement. City shall sign the Acceptance Certificate upon successful completion of the Final Reliability Period, acknowledging that the Equipment, Software and the System, have been installed in accordance with the requirements of this Agreement and the Specifications, and return the Acceptance Certificate to Vendor. 1.6.2 The date on which the City signs the Acceptance Certificate shall be the Acceptance Date of the System. Upon delivery of such Acceptance Certificate to Vendor, "Acceptance" (or in its verb form "Accepted"), as used herein, shall be deemed to have taken place. XII. Ownership and Title to Equipment 1.1 Ownership and Rights in Equipment - Upon written acceptance of the System, pursuant to Section XI, title to all Equipment installed pursuant to this Agreement shall be exclusively held by the City, free and clear of all liens and encumbrances. 1.2 Ownership and Rights in Materials 1.2.1 City Materials - The City will own all copyrights in Materials created within the Scope of Agreement and they will each constitute a "work made for hire" to the extent permissible under U.S. copyright law ("City Materials and Inventions"). If any such Materials are not works made for hire under applicable law, Vendor hereby assigns the ownership of copyrights in such Materials to the City. The City grants to Vendor an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, distribute (within Vendor's enterprise only) copies of such City Materials. Vendor and the City agree to negotiate royalties for any use by Vendor of the City Materials with third parties. 13 IBM -CMB FINAL AGREEMENT 1.2.2 Other Deliverable Materials - Vendor shall provide Materials which are copyrighted by Vendor or third parties ("Other Deliverables"). Vendor grants the City an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, and distribute (within the System) copies of Other Deliverables. 1.3 Inventions - An Invention is treated as follows: IBM shall take good faith, commercially reasonable efforts to identify its development of any Inventions under the Scope of this Agreement. In the event IBM or the City determines that an Invention is being developed within the Scope of this Agreement, either on its own, or jointly with the City, IBM will cease development of the Invention and promptly notify the City of the potential Invention. The Parties will negotiate whether to pursue the development of the Invention and, if the Parties decide to so pursue the development of the Invention, will negotiate ownership rights in and to the Invention, including royalty payments to the City where appropriate. Any Invention not identified in good faith, during the term of this Agreement, by IBM or the City, and subjected to the intent to development process defined above, will be jointly owned by the parties. This clause shall not apply to any Inventions developed by any party other than IBM, including, but not limited to, IBM's subcontractors, or Inventions described in this Agreement as defined in Section 1.4 below. 1.4 Existing - Vendor or its third party suppliers retain ownership of the copyrights or patents, in any Vendor or third party works or Inventions that pre-exist or were developed outside the Scope of Agreement and any modifications or enhancements of them that may be made under this Agreement. To the extent that such works or Inventions remain embedded in any Materials, they are licensed to the City in accordance with their applicable license separately provided by Vendor or its third party suppliers, if one is not provided, the terms for Other Deliverable Materials. 1.5 Freedom of Action - Notwithstanding anything else to the contrary, but without waiver of a Party's patent rights, each Party is free to use in its business activities the ideas, concepts, and know-how that are developed or provided by either Party in the performance of a Service. Accordingly, nothing in this Agreement shall preclude or limit IBM from providing consulting services and/or independently developing Software or Materials for itself or other clients, irrespective of the possible similarity to materials which might be delivered to City, including, by way of example screen formats, structure, sequence and organization. 1.6 Rights Reserved. Each Party grants the other only the licenses and rights specified. No other licenses or rights (including rights under patents) are granted, either directly, by implication or otherwise. 14 IBM -CMB FINAL AGREEMENT XIII. Upgrade and State of the Art System - Vendor shall maintain a State of the Art System, as defined in Section I, 1.10 herein during the term of the Agreement to mitigate the risks of obsolescence in the System or its performance. It is the Parties' intent to maintain the System as the best of the best citywide wireless network. Vendor shall provide to the City, at minimum, on a quarterly basis, an informal briefing and, on an annual basis, a written report, setting forth the then current State of the Art for wireless Networks and Services including but not limited to: (a) requirements to upgrade the System to enhance the existing level of Service and applications; and (b) to provide any new wireless services or new products commercially available. Based upon the findings of the report, Vendor shall simultaneously submit an upgrade plan to the City which shall include a description of new Software, Equipment and services the Vendor shall provide and the timing for implementation of the new Software, services and Equipment on a commercially reasonable expedited schedule. The Parties contemplate that one complete replacement of the Network Infrastructure shall be provided during the term of this Agreement. Vendor's upgrade plan shall take into consideration backwards compatibility, which must be provided for existing applications, services and subscribers as upgrades occur. All upgrades shall minimize any interruption of Services. IBM shall provide recommendations beyond the capacity, as set forth in Schedule V 1.2 of the Agreement. Should these recommendations be accepted by the City, the Parties will exercise IBM's Project Change Request procedure to effect the change. However, the City shall at no time be responsible for any costs with respect to Internet bandwidth. Vendor's upgrade plan shall also take into consideration the need for continuity with existing Equipment. The Vendor's upgrade plan is subject to review and written approval by the City. The Parties anticipate that upgrades, including WiMax, under consideration by the industry be deployed by Vendor on an expedited basis when commercially available. The City shall not be liable for any costs related to upgrading the System, Equipment and Service. XIV. Warranties - Vendor shall warrant the entire System and all work that is provided under the Agreement, including, without limitation, all Software, Equipment, cabling, and other deliverables; Network design and other designs and studies furnished and/or used in the implementation of the System; and implementation/integration services, construction services, and any other services required under the Agreement. The warranty guarantees that the System will conform to all technical specifications, performance standards, and designs for the System that are incorporated in the Agreement and/or furnished as deliverables under the Agreement. The Vendor is responsible for all warranty obligations and is the single point of contact for service under the warranty. The warranty period shall be for two (2) years, commencing upon Final Acceptance of the System by the City. In the event that City determines there is a breach of the above referenced specifications or identifies any defects in material or workmanship, Vendor shall, on a commercially expedited basis, replace said Equipment. Vendor warrants that it holds a good and valid license for all Software delivered or installed under this Agreement. 15 IBM -CMB FINAL AGREEMENT XV. Insurance - Vendor shall obtain, provide and maintain during the term of the Agreement the following types and amounts of insurance which shall be maintained with insurers licensed to sell insurance in the State of Florida and have a B+ VI or higher rating in the latest edition of AM Best's Insurance Guide published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Manager. These policies cannot be canceled, modified, terminated or reduced in coverage without thirty (30) days prior written notice to the City. The Vendor shall not commence any work pursuant to this Agreement until all insurance required under this Section has been obtained and such insurance has been approved by the City's Risk Manager. The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City's Risk Manager. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager for approval prior to any work commencing. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall. The Vendor is solely responsible for obtaining and submitting all insurance certificates for its sub -Vendors. Compliance with the foregoing requirements shall not relieve the Vendor of the liabilities and obligations under this Section or under any other portion of this Agreement, and the City shall have the right to obtain from the Vendor specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required coverage. Any exceptions to these requirements must be approved by the City's Risk Management Department. 1.1 Commercial General Liability - A policy including, but not limited to, comprehensive general liability including bodily injury, personal injury, property damage in the amount of a combined single limit of not less than $1,000,000. Coverage shall be provided on an occurrence basis. The City of Miami Beach shall be named as certificate holder and additional insured on policy. 1.2 Worker's Compensation Insurance & Employer's Liability — A policy of Worker's Compensation and Employers Liability Insurance in accordance with State worker's compensation laws as required per Florida Statutes. Said policies of insurance shall be primary to and contributing with any other insurance maintained by Vendor or City only as to work performed by the Vendor under this Agreement. 1.3 Automobile Liability - A policy including, but not limited to, automobile liability including bodily injury, personal injury, property damage in the amount of a combined single limit of not less than $1,000,000. Coverage shall be provided on an occurrence basis. The City of Miami Beach shall be named as certificate holder and additional insured on policy. XVI. Indemnification - Vendor agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees, for personal, or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, 16 IBM -CMB FINAL AGREEMENT omissions or other wrongful conduct of the Vendor, its employees, agents, sub - Vendors, or any other person or entity acting under Vendor's control, in connection with the Vendor's performance of the Services pursuant to this Agreement; and to that extent, the Vendor shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. The parties agree that one percent (1%) of the total compensation to the Vendor for performance of the Services under this Agreement is the specific consideration from the City to the Vendor for the Vendor's Indemnity Agreement. The Vendor's obligation under this Subsection shall not include the obligation to indemnify the City of Miami Beach and its officers, employees and agents, from and against any actions or claims which arise or are alleged to have arisen from negligent acts or omissions or other wrongful conduct of the City and its officers, employees and agents. The Parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. XVII. Intellectual Property Indemnification If a third party claims that any IBM Equipment, Materials or Software provided to City by Vendor or any Equipment, Materials or Software provided by IBM's suppliers under this Agreement infringes upon that party's patent or copyright, Vendor will defend City against such claim at Vendor's sole expense and pay all associated costs, damages, and attorney's fees that a court may award, provided that City: (1) notifies Vendor in writing of a potential claim within sixty (60) days of receipt of notice of such claim; and (2) permits Vendor to control, and will cooperate with Vendor in, the defense and any related settlement negotiations thereof. If such a claim is made or appears likely to be made, Vendor shall make arrangements to enable themselves to continue providing City the Equipment, Materials or Software, modify them, or replace them, with comparable Equipment, Materials or Software consistent with the current State of the Art of the System in such a manner and time so as to assure continuity of service of the System. If, after consultation with City, Vendor determines that no alternative is reasonably available, City shall return the Equipment, Materials or Software to Vendor upon written request and Vendor shall be liable to the City for the cost of the returned Equipment, Material or Software, including installation and profit, reduced by an amount reflecting the City's beneficial use of the Equipment, Material or Software prior to the return of the Equipment, Material or Software, as well as damage arising from the loss of any functionality of the System that may result from the removal of the Equipment, Material or Software. If the City reasonably determines that the removal of the Equipment, Material or Software substantially adversely impacts the System and/or its applications, the City may require the Vendor to remove all Equipment, Materials and Software previously provided by Vendor at its sole cost, Vendor shall return all monies previously paid by City to Vendor reduced by an amount reflecting the City's beneficial use of the System prior to the return of the System, and Vendor shall return 17 IBM -CMB FINAL AGREEMENT all City assets and property to its original state at Vendor's sole cost within a reasonable amount of time. This indemnification shall not cover: (1) anything provided by City to Vendor that is incorporated into the Equipment, Materials or Software; (2) City's modifications to Equipment, Materials or Software; or (3) the combination, operation, or use of the Network Infrastructure with any product, data, apparatus, or business method that IBM did not provide, if the infringement would not have occurred were it not for such combination, operation or use, or the distribution, operation or use of the Equipment, Material or Software for the benefit of a third party. This is Vendor's entire obligation and City's exclusive remedy regarding any claim of infringement. XVIII. Public Entity Crimes - A State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes shall be filed with the City's Procurement Division, prior to commencement of the Services herein. XIX. Conflicts of Interest - The Vendor agrees to adhere to and be governed by, to the extent applicable, the Metropolitan Miami -Dade County Conflict of Interest Ordinance (No. 72-82), as amended; and, to the extent applicable by the City of Miami Beach Charter and Code, which are incorporated by reference herein as if fully set forth herein, in connection with the Agreement conditions hereunder. The Vendor covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the services and work. XX. Notices - All notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Vendor and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO VENDOR: Trish Hearn IBM 4111 Northside Parkway Mail Drop L04F23 Atlanta, GA 30327 TO CITY: IBM -CMB FINAL AGREEMENT 18 Patricia Walker Chief Financial Officer City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 And to: Matthew L. Leibowitz, Esq. Leibowitz & Associates One SE 3rd Avenue, Suite 1450 Miami, FL 33131 Notices delivered hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. XXI. Limitation of Liability - 1.1 City - The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of the total Agreement Price less any sums paid by the City prior to the breach (unless the City has drawn down upon the Construction Letters of Credit). Vendor hereby expresses its willingness to enter into this Agreement with Vendor's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of the Agreement Price less any sums paid by the City prior to the breach (unless the City has drawn down upon the Construction Letters of Credit). Accordingly, and notwithstanding any other term or condition of this Agreement, Vendor hereby agrees that the City shall not be liable to the Vendor for actual direct damages in an amount in excess of the Agreement Price less any sums paid by the City prior to the breach (unless the City has drawn down upon the Construction Letters of Credit) but in no circumstances shall the City be liable to the Vendor for loss of or damage to data, special, incidental, or indirect damages, or for any consequential damages, for lost profits, business, revenue, goodwill or anticipated savings, relating to any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida Statutes. 1.2 IBM - The Vendor desires to enter into this Agreement only if in so doing the Vendor can place a limit on the Vendor's liability for any cause of action for money damages due to an alleged breach by the Vendor of this Agreement, so that its liability for any such breach never exceeds the sum of the total Agreement Price. City hereby expresses its willingness to enter into this Agreement with City's recovery from the Vendor for any damage action for breach of contract to be limited to a maximum amount of the Agreement Price. Accordingly, and notwithstanding any other term or condition of this Agreement, City hereby agrees that the Vendor shall not be liable to the City for actual direct damages in an amount in excess of the Agreement Price, but in no circumstances shall the Vendor be liable to the City loss of or damage to data, special, incidental, or 19 IBM -CMB FINAL AGREEMENT indirect damages, or for any consequential damages, for lost profits, business, revenue, goodwill or anticipated savings, relating to any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the Vendor by this Agreement. 1.3 Notwithstanding the above, the limitation of liability of the Agreement price as set forth above shall not apply for either Party to violations of intellectual property rights and damages, for bodily injury (including death) or damage to real and tangible personal property. XXII. Independent Vendor Relationship - Vendor shall install the System and perform the Services required under this Agreement as an independent contractor. Vendor shall not be considered an employee or agent of the City nor shall Vendor acquire any property interest in any pole or other facility to which Equipment connected with the System is attached. Nothing herein, shall be construed to create a joint venture between Vendor and the City. XXIII. Subcontracting Prohibited — Vendor is prohibited from subcontracting this Agreement or any part thereof unless such subcontracting is first approved by the City in writing. A list of pre -approved sub -contractors is attached hereto as Schedule XXIII. Neither Party shall, on the basis of this Agreement, contract on behalf of or in the name of the other Party. Any contract made in violation of this provision shall confer no rights on any party and shall be null and void in its entirety. XXIV. Agreement User Access Fee - All entities, approved by the City, are eligible to purchase products and services under this Agreement. Such entities or end users shall agree with Vendor to a separate supplement or the standard IBM Customer Agreement setting forth specific terms, pricing and conditions particular to that end user. The City shall have no liability to Vendor for the cost of any purchase made by an ordering entity and shall not be deemed to be a party thereto. Vendor shall pay to the City, on a monthly basis, one percent (1 %) of the total dollar amount of all sales to governmental, not-for-profit or quasi -governmental entities, resulting from this Agreement and/or utilization of the City's Agreement, or terms and conditions. Vendor will provide to the City specification of solution and elements to be made available subject to this Section. XXV. Successors and Assigns - The Vendor shall not assign, sublet, convey or transfer its interest, in whole or in part, this Agreement without City's prior written consent, which shall not be unreasonably withheld or delayed. The assignment of this Agreement, in whole or in part, within Vendor's Enterprise or to a successor organization, controlled by Vendor and operating in the United States, by merger or acquisition does not require the City's consent. Nothing herein shall be construed as creating any personal liability on the part of any official, employee or agent of the City which may be a party hereto, nor shall it be construed as giving any rights or benefits hereunder to anyone other than the City and the Vendor. Any unauthorized assignment shall constitute default by the Vendor. 20 IBM -CMB FINAL AGREEMENT XXVI. Applicable Law; Venue - Vendor and City are subject to and agrees to comply with all generally applicable local, City, State and Federal laws, ordinances, rules, regulations and orders, existing or hereafter lawfully adopted. This Agreement shall be governed by the Laws of the State of Florida. Venue for any action arising out of the performance of this Agreement shall lie in any court of competent jurisdiction in Miami -Dade County. BY ENTERING INTO THIS AGREEMENT, THE VENDOR AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. XXVII. Termination and Liquidated Damages 1.1 Termination by Default 1.1.1 Termination for Default by Vendor - If, through any cause within the reasonable control of the Vendor, Vendor shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations material to the Agreement, the City shall thereupon have the right to terminate the Services then remaining to be performed by giving written notice to the Vendor of such termination and Vendor fails to cure such default after a period of thirty (30) days from receipt by the Vendor of the written termination notice. However, the cure period for any security or encryption patch update, as set forth in Section VI herein, shall be twenty-four (24) hours. In addition, no additional cure period shall apply for any cure period in Sections VI or XI. In that event, the City shall compensate the Vendor in accordance with the Agreement for all Services performed by Vendor prior to termination, net of any costs incurred by the City as a consequence of the default. Notwithstanding the above, Vendor shall not be relieved of liability to the City for damages sustained by the City by virtue of any breach of the Agreement by Vendor and the City may reasonably withhold payments to the Vendor for the purposes of set off until such time as the exact amount of damages due the City from Vendor is determined. 1.1.2 Termination for Default by City - If, though any cause within the reasonable control of the City, City shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations material to the Agreement, the Vendor shall thereupon have the right to terminate the Agreement by giving written notice to the City of such termination and City fails to cure such default after a period of thirty (30) days from receipt by the City of the written termination notice. Notwithstanding the above, City shall 21 IBM -CMB FINAL AGREEMENT containing all the provisions of Schedule XXVII 1.4, attached hereto, entitled "Letter of Credit". The Letter of Credit shall be in the amount of $250,000 as a guarantee to the City of the completion and performance of the work, as well as full payment of all suppliers, laborers, or subcontractors employed pursuant to this Agreement. The Letter of Credit shall be for a term of three hundred sixty five (365) days and IBM shall renew the Letter of Credit annually, to provide for continuous coverage, until one hundred eighty (180) days after expiration or termination date of this Agreement. IBM shall provide a new or renewed Letter of Credit on the same terms and conditions no less than ten (10) days prior to the annual expiration of the Letter of Credit. In the event of a breach of this Agreement or any act of non-compliance by Vendor, the City shall have the right to draw down from the Letter of Credit the estimated cost of remedying the act of breach or non-compliance. The City may execute such draw down ten (10) days after it has given notice to Vendor to cure the breach or act of non-compliance and Vendor has failed to cure same or to provide the City with a plan to cure that is acceptable to the City. The Letter of Credit may be reduced or cancelled one hundred eighty (180) days after the expiration or termination date of this Agreement and receipt by the City of releases from Vendor in connection with any payments due suppliers and provided that any amount in dispute between the parties remains or is replaced by a cash security deposit. 1.5 Construction Letters of Credit — For any work comprising a Milestone, following the successful completion of the testing and associated Conditional Reliability Period, Vendor shall present City with an invoice for that Milestone. Upon payment of said invoice, Vendor shall present City with a corresponding Construction Letter of Credit. The Vendor and the City shall exchange the letter of credit and payment simultaneously. The Construction Letter of Credit shall be an amount equal to the amount of each payment made by City as a guarantee to the City of the completion and performance of the work, as well as full payment of all suppliers, laborers, or subcontractors employed pursuant to this Agreement. The Construction Letter of Credit shall be for a term of three hundred sixty five (365) days and IBM shall renew the Construction Letter of Credit annually, to provide for continuous coverage, until transfer of title of the System by the City, pursuant to Section XI 1.6. IBM shall provide a new or renewed Construction Letter of Credit on the same terms and conditions no less than ten (10) days prior to the annual expiration of the Construction Letter of Credit. In the event that City terminates this Agreement due to Vendor's failure to cure work on a Milestone previously rejected by the City pursuant to Sections XI 1.1 and XXVII 1.1.1 or Vendor breaches its obligation by failing to meet the Final Acceptance Standard after notice and opportunity to cure as set forth in this Agreement, the City shall have the right to draw down the Letters of Credit. The City may execute such draw down ten (10) days after it has given notice to Vendor to cure the breach or act of non-compliance and Vendor has failed to cure same or to provide the City with a plan to cure that is acceptable to the City. The Construction Letter(s) of Credit shall terminate upon transfer of title of the System by the City, pursuant to Section XI 1.6. 23 IBM -CMB FINAL AGREEMENT 1.6 Letters of Credit - In the event the City draws on any of the letters of credit above, Vendor shall have the right to contest the City determination of default in a court of competent jurisdiction. If such a court ultimately determines that the Vendor was not in default, City shall refund to IBM any funds drawn on the letter of credit in addition to interest if the court finds appropriate. 1.7 In the event of termination by the City, Vendor shall remove all Equipment and restore City assets and property to their original state at Vendor's sole cost within 60 days. XXVIII. Public Benefits - The Vendor shall provide the public benefits related to the System as set forth in Schedule XXVIII. Notwithstanding anything to the contrary, this provision is not subject to the Additional User Access Fee. XXIX. City Obligations - The City shall be required to provide Vendor City assets and personnel as set forth in Schedule XXIX to assist in the installation of the System. Regardless of any statement herein that time is of the essence, Vendor shall not be responsible for delays caused by the City. XXX. Most Favored Customer — Technology, Services and Costs — If, after this Agreement is entered into, Vendor enters into an agreement with another municipality, city or local government in the United States for the provision of Wi-Fi or WiMax Services, technology or equipment that provide comparable or better services as measured by such metrics as intended purpose, throughput, spectrum, technology, application provisioning, size, configuration, user density, as reasonably determined by the City, after meaningful consultation with the Vendor, the City shall have the right to amend this Agreement to include rights, obligations and benefits substantially similar to those contained in such other agreement. The Vendor shall have no obligation to maintain documentation or monitor its other agreements to comply with this clause. XXXI. Severability - If a court of competent jurisdiction orders the City, or finds a provision in the Agreement is illegal, the Parties agree to delete that provision and to modify the Agreement as necessary. XXXII. Force Majeure — Neither Vendor nor City shall be considered in default by reason of any failure in performance, if such failure arises out of causes reasonably beyond the control of the Parties. Such causes include fire, flood, earthquake, hurricane, elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts, labor difficulties, acts of God, natural or public health emergencies, labor disputes, and abnormally severe and unusual weather conditions. This clause shall apply regardless of any statement herein that "time is of the essence." 24 IBM -CMB FINAL AGREEMENT XXXIII. Entirety of Agreement - Entirety of Agreement - This Agreement and the attached Schedules, including those documents incorporated by reference herein, constitute the complete basis for the Agreement. No other representations of any kind, oral or otherwise, have been made. XXIV. Reservation of Rights - Nothing herein shall be deemed a waiver of the City's right to provide any form of communications or telecommunications services or to own, lease or operate a System consistent with applicable Federal and State law. Further, nothing herein shall be construed to limit the City's lawful right to grant non-party entities access to the City's Streets, Rights of Ways and facilities including but not limited to poles consistent with applicable law, rules, regulations and technical standards. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. CIi F MI EACH INTERNATIONAL BUSINESS MACHINES CORPORATION Name A V D WIZYNIXL. Title: '4 o ta Date: APltl t (9, 2 ©o By: e._i(4.-� -, Name: Ahu. M. Trainor Title: $r. Cl;en+ E,tecu-five Date: Itpril 9, zoo6 Address: 1700 Convention Center Drive Address: 1 Alhambra Plaza Miami Beach, FL 33139 Coral Gables, FL 33146 IBM -CMB FINAL AGREEMENT OA CIO" Lit AL 25 APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION City Attom Date Old Ca�ttal I Begins at contract execution) Bowe Propowal • Capalal Coats °option 2 CityNide Acus Total Capital 9. Waitangi ;Yr 1 begns at acceptance) Hasa Proposal • Operating, Maintenance and Upgrade Option 2 - Operating SCBLDLLE illi YRI YR2 YR$ YR4 YRS YRS Total $1 449.509 _5515Q $1.505 999 51 449 509 awiek $1 50550 YR1 YR2 YR3 YR4 YRS YRS Total S:34379 00.965 523,136 533.11E4) 559,978 505.975 $1049291 50.470 104 474 104.474 104 474 104.474 104.474 017.940 $528 949 592.439 627.510 938.3.34 654.45,7 510.449 53.562 131 Tow 55.197 800 tlwwe Proposal Cppal S1449 504 Operating, MMnlenrta and Upgrade 3.49 291 $445e810 Option 2 Capital $51.11) OV.rabng, Maintenance and Upgrade 61'4540 5659 ,300 Total Cowl Ss 157.90f IBM -CMB FINAL SCHEDULES 1 Option Number 1: In -building (indoor) coverage to 90% of residences and businesses including high-rise buildings located in the City including separate costs for proposed CPE equipment. 1 Option Number 2: Any additional infrastructure, deployment, management, software and cost increases for providing public access Citywide. (100% Citywide Hot Zone). SCHEDULE IIIb ADDITIONAL OPTIONS $487,300 $0 $0 $0 $0 $0 $487,300 $146,630 $104,474 $104,474 $104,474 $104,474 $104,474 $669,000 Option Number 3: Provide cost information for longer term battery backup for all network equipment sufficient to $351,500 $31,600 $31,600 $31,600 $31,600 $31,600 $509,500 assure continuous operation at full power and functionality for a period of not less than ten (10) hours in the absence of utility power. 1 This represents 100 units at a unit price of $4,873.00 that may be purchased at any time during the term of the Agreement. Additionally, the City may purchase additional units at the same price as above over the term of the Agreement. IBM -CMB FINAL SCHEDULES 2 SCHEDULE II ANTICIPATED SERVICES AND APPLICATIONS, 1. Architecture and Design Services 1.1 City of Miami Beach Wireless Network Design Description: The objective of this task is to develop the design detail required for implementation. The design will provide for a citywide Hotspot covering all 7.1 square miles of the City, subject to the 95% in -street (outdoor) and 70% indoor coverage requirement. The failover network backbone for the wireless Network will contain at least a 25% fixed wired component. The major sub tasks are: 1. Define Network Functionality and Sizing (Conceptual Design) 2. Evaluate technical alternatives to requirements (specifically for areas where the City of Miami Beach may not have rights to adequate mounting facilities.) 3. Define final products and solution set (Detail Design) 4. Define future Network addressing and naming scheme 5. Create a Network Design Document including the Wired and Wireless Backbone solutions 6. Present the Network Design to the City of Miami Beach Completion Criteria: This task will be complete when IBM delivers the Network Design document to the City of Miami Beach Project Manager and City approves the same. Deliverable: Network Design Document 1.2 City of Miami Beach Engineering Design and Site Survey Description: Develop and document the detailed site survey for the backhaul, multipoint and WiFi mesh for the 7.1 square mile City of Miami Beach coverage area which includes those portions of Terminal Island and Fisher Island owned by the City of Miami Beach The major subtasks are to: 1 Overall Wireless System Survey Planning • Collection of all information from City recording all available facilities, connected to network and areas to be covered • Tower, streetlight and building mapping for the area • Pre survey design of solution and review with the City of Miami Beach • Coordination of survey project schedule with the City of Miami Beach • Consider alternate scenarios that reduce pole count by using base station or other technology 2. On Site Survey for Backhaul and Multipoint IBM -CMB FINAL SCHEDULES 3 • Onsite Survey of each location for LOS to second location or tower o Tower climbing to guarantee LOS where required o Bucket Truck where required • Spectrum Analysis as required • Digital pictures of all site details • Identification of mounting requirements, and review with City of Miami Beach Facilities or Public Works management • Identification of cable runs for power, grounding, RF and network connections • Site grounding upgrade requirements • Recommendations for structural analysis if needed 3. WiFi Mesh Planning Survey • Perform Detailed Site Survey for WIFI via onsite Survey of each location for line of site to other mesh and gateway locations • Option 2 Citywide Hot Zones • Spectrum Analysis (if needed) • Produce Coverage Reports • Digital pictures of all site details • Identification of mounting requirements, and review with facilities manager if possible • Identification of power, grounding, RF and network connections 4. Design Review and Acceptance • Presentation of site design and build plan • Conduct 2 follow up design review/acceptance meetings Completion Criteria: This task will be considered complete when the "City of Miami Beach Wireless Coverage Physical Network Specifications" document package is approved by the City of Miami Beach Project Manager. Deliverable: Wireless Site Survey Plan, City of Miami Beach Wireless Coverage Physical Network Specifications Purpose: IBM will provide a document with the details of the Wireless Network Infrastructure physical engineering specifications for City of Miami Beach consideration Delivery: One hard copy and one soft copy (CD) in PDF format will be delivered to the City of Miami Beach Project Manager. Content: The report will consist of the following, as appropriate: Delivered Site Survey Report: 1. Full report submission with pictures identifying each site build plan 2. Report of all gathered information on site location 3. Overall maps and summary of proposed network 4. Engineering Path Analysis between sites 5. WiFi Coverage Maps 1.3 City of Miami Beach Government User Security Solution Design Description: Through a series of structured workshops with the City of Miami Beach, IBM will work with the City of Miami Beach to define and document the wireless security architecture. The IBM -CMB FINAL SCHEDULES 4 architecture will include physical and logical views including authentication, authorization, user repositories, and City of Miami Beach Administration requirements. The major sub tasks are: 1. Conduct requirements gathering workshops with key technical personnel to identify and document the business and technical requirements for wireless security integration. 2. Document the City of Miami Beach wireless security to include encryption, authentication and acceptable protocol requirements in the Requirements Document 3. Develop and document the City of Miami Beach Government user design in the Solution Design Document 4. Review Solution design document with the City of Miami Beach 5. Develop a bill of materials for proposed solution for review by the City of Miami Beach 6. Develop and document the Security System Test Plan to include at least three representative City of Miami Beach applications. Completion Criteria: This task will be considered complete when the wireless system security requirements, design, and test plan have been approved by the City of Miami Beach Project Manager. Deliverables: 1. Wireless System Requirements Document 2. Wireless System Solution Design Document 3. Wireless Security System Test Plan Task Assumptions: 1. Essential City of Miami Beach personnel will participate in the Wireless Security System requirements definition and design workshops. 1.4 Develop the City of Miami Beach Wireless Network Design Implementation Plan Description: The objective of this task is to develop the detailed implementation and transition plan for the wireless Network and security infrastructure implementation work that corresponds with the detailed design. The major sub tasks are: 1. Develop The City of Miami Beach Wireless Network Implementation Plan 2. Create a detailed Implementation Plan in consultation with the City of Miami Beach 3. Establish support service component policies and procedures. 4. Create the Wireless Network Infrastructure Implementation Plan. Completion Criteria: This task will be complete when the Network Infrastructure Implementation Plan has been delivered to and approved by the City of Miami Beach Project Manager. Deliverable: Network Infrastructure Implementation Plan 2. Network Infrastructure Procurement IBM -CMB FINAL SCHEDULES 5 Description: To orderprocure and manage the deliof the City of Miami Beach Wireless Network infrastructure. The Major Sub task is: 1. Procure the products coinciding with the deployment schedule. 2. IBM receives all goods and equipment. Task 1. None. Completion Criteria: This task wUl be complete when IBM has verified the delivery of hardware and software products. Deliverable: IBM Inventory Management Document � &�� =.° Installation Services 3.1 Site Acquisition Description: IBM shall negotiate leaoea, if naoemoary, for installation of Backhaul equipment for the City of Miami Beach Coverage Area. The mjor sub tasks are: 1. IBM will negotiate on behalf of and with the assistance of the City, as required, and mubieotbo [|�'sapproval, �aoeofor edd�onaiaboo.|BW1ohoU: ' a. Option exhibits for tovvar/bui|dingleaaen b. Permit preliminary site surveys, inopeoUona, site visits c. Review agreements to ensure compliance with special conditions pertaining to technical installation d. Negotiate all final lease agreements. Completion Criteria: This task will be considered complete when IBM has obtained agreement for use of backhaul buildings. Deliverable: Copies of negotiated leases Task 1. The less aggressive project schedule in Schedule V1.4 is contingent upon The City ^ 2. It is the intent of the Parties to use City assets (i.e. existing poles and City owned and controlled roof -tops for the System facilities). In the event additional sites are required, the Parties agree to jointly evaluate the following additional site options in priority order: a. Minimal installation of new City poles b. County or FP&L poles already in place c. Non -City owned or controlled roof -tops IBM -CMB FINAL SCHEDULES 6 3. Wind Load input requirements for permitting will be limited to providing wind load specifications for the Access Point of base station being mounted and the mounting bracket and mechanism being used. 4. In the event that non -City assets are used, including rooftop rights, City will be responsible for the associated lease charges. 3.2 Federal Communications Commission ("FCC" Licensing) Description: IBM will obtain appropriate FCC licenses required to operate the System by the FCC for the City of Miami Beach Wireless Network. The major sub tasks are: 1. FCC Licensing Acquisition • IBM will obtain 4 Government owned FCC licenses for 6, 11, 18, or 23 GHz radios. • IBM will collect license owner data from customer and necessary information for completion of forms • IBM will complete and send all path engineering forms to FCC Frequency Coordinator • IBM will perform search for Frequency availability • IBM will receive City of Miami Beach Approval Notice (CAN) of License from FCC and send to Customer for approval • Customer must sign and return CAN for final approval • IBM will forward final licenses to customer • IBM will complete FCC database filings after installation Completion Criteria: This task will be considered complete when IBM provides the City of Miami Beach Project Manager with the required FCC licenses. Deliverable: Required FCC licenses 3.3 City of Miami Beach Wireless Network Installation Description: Install and configure any hardware and software for the backhaul, multipoint and WiFi mesh for the 7.1 square mile City of Miami Beach coverage area. The major sub tasks are: Installation 3.3.1 Licensed Backbone Links: Install four licensed links for the core backbone for the city wide wireless network; • Install Three links of Licensed 18 Ghz : o (6) 18GHz split design 200Mbps Licensed Radio o (6) 4ft 18GHz direct connect dish IBM -CMB FINAL SCHEDULES 7 o (6) Pole mount or mounts for the dishes: Exact specifications and numbers will be determined upon completion of the site survey. o All mounts will have increased strength mounting materials. o Install 50" NEMA 4 enclosures with fans and air option o Install Outdoor rated coax and route to enclosures that are described in the bill of materials. o Ground all equipment o Install lightning protection o Weatherproof all outdoor connections. o Install layer 3 switches at the four backhaul locations o Turn up and test backhaul links • Install from North to South a 11 Ghz link; o (2) 11GHz split design 100Mbps Licensed Radio o (2) 4ft 11 GHz direct connect dish o (2) Pole mount: Exact specifications will be determined upon completion of the site survey o Install Outdoor rated coax and route to enclosures that are described in the bill of materials. o Ground all equipment o Install lightning protection o Weatherproof all outdoor connections. o Turn up and test backhaul links 3.3.2 B28 Link: 5.3Ghz Link to South Beach Backhaul Point (Southern Beach Area Coverage - Govt Cut) • (2, one each site) Install radios 5.3 GHz B28 Links to Buildings listed above. • (2, one each site) Install outdoor CAT5 cable to accommodate each of the access units, • Install (2) panel antennas to achieve a point to point connection • Pole mount or mounts for the panel antennas: Exact specifications and numbers will be determined upon completion of the site survey. • Install lightning protection and ground cable if needed. • Weatherproof all connections • (1, far end) Install 50" NEMA 4 enclosures with fans and air option • Install layer 3 switch at far end • Turn up and test link 3.3.3 Multi Point Backhaul Links: IBM -CMB FINAL SCHEDULES 5.8GHz Multipoint Access units will be installed at the 4 distribution points of the back haul network plus the South Beach distribution area, each providing 360 degrees of coverage: • Install base Station Chassis w/ Redundant PS • Install 5.8Ghz Base Station Card with 120 Degree • Install three runs of outdoor CAT5 cable to accommodate each of the access units, • Install (3) sector antennas to tower to achieve 360 deg coverage 8 • Install lightning protection and ground cable if needed. • Install increased Strength Mounting Materials • Weatherproof all connections • All mounts will be determined upon completion of the site survey • Connect to layer three switch that will be installed with Back haul links • Turn up and test link 3.3.4 Multi Point Subscriber Units: Install 50 Subscriber units which will connect WiFi Gateways back to the multipoint equipment at the main back haul distribution points. Installation at each location will consist of the following: • Installation of Alvarion VL 54Mbps Subscriber on existing light or telephone poles • Install mount to be determined upon completion of the site survey • Install Outdoor CAT5 Cable and connect to • Install Outdoor Battery backup • Connect power to radio from pole (power connections will be defined after survey) • Turn up and test radio • Align antenna • Connect to Tropos Gateway mesh node 3.3.5 Tropos Mesh Installation • Install 259 mesh nodes on existing poles • Mount Tropos Access Point to pole (exact mounting will be defined after survey) • Connect power radio from pole (power connections will be defined after survey) • Turn up and test radio and integrated software • Configure radio into Mesh Network • Configure and test Tropos hardware and software combination as part of larger mesh solution 3.3.6 Wired Backhaul Installation • IBM will ensure that 25% of the Backhaul installation will employ wired technologies for the failover backbone solution Completion Criteria: This task will be considered complete when the System has been approved by the city pursuant to Section XI 1.2, Final Acceptance. Deliverable: None Task Assumptions: 1) 20-30% of the Miami Beach Area may have sufficient mounting assets for a proper deployment of a mesh network. The southernmost and northernmost sections of the beach have mounting assets available for the mesh network design. All other areas of the beach do not have sufficient mounting assets that are conducive to utilizing the mesh network. IBM -CMB FINAL SCHEDULES 9 2) Mounting on existing street lights in all areas of the City. 3) IBM will be responsible for finding suitable mounting facilities. If no suitable mounting facilities are available, the acceptance period may be extended as required. 4) IBM may utilize alternative technology to provide coverage in a more efficient manner by using supplements to mesh technology. The City shall approve any alternative solutions, prior to implementation and pursuant to the Project Change Control Procedure as follows: a. When both parties agree to a change in this Agreement, a written description of the agreed change (called a "Project Change Request" or "PCR") will be prepared, which both parties must sign. The PCR will describe the change, the rationale for the change, and specify any changes in the estimated schedule or other terms. 5) Solar power options may be considered for utilizing new utility poles where delivery of permanent power may take a long time subject to City's consent. 6) Utilization of the smaller decorative poles in areas of Miami Beach will significantly reduce performance and create mounting issues. 7) A minimum of 60 locations will require strong mounting assets as the backhaul nodes have a greater wind Toad and weight. Deployment will require a total of 260 mounting assets suitable for handling the weight and the wind load of the equipment with a desired minimum height of approximately 25ft. 3.4 Implement the Wireless System Security Solution Description: IBM will implement the agreed to security solution as documented in the design documents. The major sub tasks are: 1. Procure hardware and software required to implement the agreed to wireless security design 2. Develop implementation schedule with the City of Miami Beach during agreed to maintenance windows. 3. Configure all hardware and software 4. Install all hardware and software in the designated City of Miami Beach location. 5. Test, at least three of the selected City applications for interoperability with government user security solution. Completion Criteria: This task will be considered complete when the security system infrastructure has been successfully configured, implemented tested and approved by the City. Deliverables: None. Task Assumptions: 1. The City of Miami Beach will require one demarcation point for security infrastructure. IBM -CMB FINAL SCHEDULES 10 3.5 City of Miami Beach Government User Wireless Security Policy Implementation Description: Configure and implement the security policies and settings on the agreed to security infrastructure including but not limited to IBM provided security devices. The major sub tasks are: 1. Install and configure the security architecture specified in the security design. 2. Develop security settings and configurations for the security architecture components. 3. Execute Wireless Security System Test Plan 4. Provide documented security policies to be implemented for the City of Miami Beach Wireless Network. Completion Criteria: This task will be considered complete when the security policies have been implemented and testing is successful and approved by the City of Miami Beach. Deliverable: None Task Assumptions: 1. The City of Miami Beach will be responsible for the procurement, implementation and configuration of any portions of the City of Miami Beach Government User Security solution that involves changes or additions to any existing data servers, existing client devices, or existing infrastructure components not limited to existing City of Miami Beach firewall, VPN and other related devices. Any new servers, hardware and software required for the implementation of the security policies of the Network will be procured by IBM. 3.6 Wireless Network Testing and Tuning Description: Perform final Network testing, tuning and optimization. The major sub tasks are: 1. Overall System Review and Tuning • Perform System testing and document coverage • Perform final tuning and re -allocation Completion Criteria: This task will be considered complete when the IBM completes the implementation of the Wireless Network to the specifications set forth in the Agreement and IBM Project Manager requests the City of Miami Beach Project Manager to perform their acceptance testing. Deliverable: None Deliverable: Integrated Test Plan, Final Design and As -Built Report 4. Program and Project Management Services IBM -CMB FINAL SCHEDULES 11 Description: The objective of this task is to provide an individual ("IBM Project Manager") to provide direction and control of IBM project personnel, and to establish a framework for project communications, reporting, procedural and contractual activity. The major sub tasks are: 1. Maintain project communications through the City of Miami Beach Project Manager. 2. Establish documentation and procedural standards for the development of this project. 3. Prepare a project plan at the onset of this project. The project plan will define tasks, schedule and responsible person(s) or organization for each milestone. 4. Conduct project status meetings. 5. Prepare and submit monthly Status Reports. 6. IBM Project personnel shall include Manny Bascuas, Yorke Rhodes III, Patricia Hearn, and Ana Trainor. Unless agreed in writing by the City Project Manager, IBM will not re- assign these personnel, full time, to other projects during the committed period; provided, however that IBM will not be in breach of this Agreement if such personnel are reassigned from or cease work on a project because of disability or illness, death, family or other significant personal reasons, or because of termination or suspension of employment. IBM reserves the right to implement timed and planned transition of resources from the project in order to not limit resource ability to advance within the IBM corporation. 7. Additionally, IBM may wish to work with the City to establish a physical office within the City of Miami Beach and will coordinate with the City to determine the details of such an arrangement. The local IBM team currently operates out of the Coral Gables facility where IBM has been based for the last 15 years. Completion Criteria: This activity will be complete when the other activities described as IBM Responsibilities have been completed, according to their completion criteria, or IBM has met the criteria defined in the Completion Criteria section of this Statement of Work. Deliverables: Status Reports. City of Miami Beach Wireless Project Plan Estimated Schedule Estimated Start Date: April 17, 2006 Estimated End Date: April 16, 2012 If the Agreement date is beyond the Estimated Start Date, the Estimated Start Date, the Estimated Start Date shall automatically be extended to be the first business day following the day the last signature is affixed to this Agreement. The Estimated End Date shall automatically be extended by the same number of days. Reasonable effort shall be made to keep the schedule dates intact. Note: IBM will assess the integration of wired backhaul and present a solution to the City that complies with the requirements as set forth in the RFP for the City's consideration and approval. IBM -CMB FINAL SCHEDULES 12 SCHEDULE III LIST OF POLES AND OTHER FACILITIES TO BE USED AS MOUNTING ASSETS, The City of Miami Beach will provide access to all City owned assets to support the deployment of the citywide Wireless Network including but not limited to: 1. 260 mounting assets (street Tight poles, street light arms, roof tops, towers, etc.) suitable for handling the weight (14Ibs) of the equipment. The specific poles and mounting facilities for the Wireless network gear will be co -specified by the City of Miami Beach and IBM during the design phase. 2. Power for System components including conditioned power (110, 220, 480 volts with adequate grounding) The City will resolve power quality issues such as ground faults on selected mounting assets. 3. Additional (new) poles with adequate power (grounded 110, 220 or 480v) and connectors (photocell) to support the deployment. 4. Space, in the Data Center, up to 1/2 Rack (21 Us) and in the IT closets, as available. 5. Space for cabinets, switches, routers, security equipment and other System components, as available. IBM -CMB FINAL SCHEDULES 13 SCHEDULE V 1.1 WIRELESS NETWORK ELEMENTS AND SERVICES TO BE RENDERED TO THE CITY OF MIAMI BEACH Wireless Network Architecture and Design System Design Methodology IBM employs a methodical approach to Network design that centers around three progressively elaborated levels of granularity and detail. These phases provide the steps necessary to design a network - from the high level 'logical' design down to the detail design where vendor products are selected. This method allows us to take a modular approach built upon the City's functional and operational requirements. Using this model will help enable the development of a progressively more detailed set of Network designs, each meeting the full set of functional requirements. The first level of design (referred to as the Network Conceptual Design), provides for the basic building blocks of the Network - showing logical connection points between network nodes and links. The second level of design (Network Specified Design) adds required client attributes like performance, scalability, management and availability to the design. Additionally, generic Network components (routers, switches) are selected. The third level of Network design (Network Node Design) provides for Vendor products meeting the above design criteria to be specified and added to the detailed design. This design methodology provides: • A way of linking networking to other aspects of the IT and business organization at key design decision points: systems management, applications development, organizational change, testing, business continuity • A hierarchical set of Network designs - each providing more detail as the networking requirements are refined • A flexible approach to constructing a Network design in any environment - campus, international, LAN-based, WAN -based, etc. • The input to the critical planning steps required for implementing and operating a Network. The design methodology addresses all documenting requirements of the solution, including the tiered infrastructure, NOC, and secure usage by government workers. Backhaul Network A resilient backhaul Network leveraging wired and wireless connectivity in a multilayered topology is offered as part of our solution. The first backhaul layer is a distributed -wireless backhaul Network using unlicensed 5.8 GHz spectrum that connects to the WiFi network and consolidates to four primary backbone locations utilizing a point -to -multipoint connectivity scheme. The design proposes 49 distributed gateway points between the WiFi Network and IBM -CMB FINAL SCHEDULES 14 backhaul. At these points, Tropos gateway nodes or Base Stations are Ethernet connected to Alvarion 5.8 GHz subscriber units. The Alvarion subscriber units then wirelessly connect to one of 4 Alvarion multi -sector base stations which are co -located with licensed microwave wireless ring connection points. Data is transferred from the wireless access layer, to the wireless backhaul, to the licensed microwave ring. For public access traffic, the BellSouth network delivers the subscriber data to the Internet. Government worker traffic is routed separately to the City's internal network through a single demarcation connected to the microwave ring. In addition, Government users must be part of wired backhaul solution for availability). Network traffic routing is managed by Layer 3 Cisco 3750 network switches in an OSPF and/or EIGRP environment to provide path redundancy. The distribution network for Tropos and Base Station backhaul as well as any additional fixed locations the City requires is provided at the four core backbone locations as well as an additional location in South Beach, served by one of the Alvarion 5.3 Ghz base stations. The Multipoint network will consist of 5.8 GHz that will service the government as well as the private sector uses. In addition to the high capacity of the distribution Network, the multi -sector design supports true redundancy from a gateway subscriber connectivity level. The 360 -degree design takes advantage of the inherent "best Access Unit" function of the Alvarion equipment. If a sector within a distribution site should fail, the gateway node subscriber will automatically switch to the neighboring base station at the distribution site. While performance may be affected during this time, connectivity is still maintained until the failed sector is repaired. The four backbone nodes will backup one another via a wired and wireless point-to-point solution to increase overall backhaul network availability. Through the microwave Network, traffic will route according to user type and application. Public access users will be routed through the Internet Gateway to the splash page and portal, as well as to the Internet. Government workers will be routed to the Internet to secured City applications and data based on their authorization through the IBM security solution being developed and implemented as part of this contract. WiFi Network The user WiFi Network is composed of a mesh environment using the 802.11g protocol supplemented with a Base Station solution using 802.11Wb. The mesh technology utilizes flexible coverage and connection routing to provide a high degree of performance and availability. The WiFi cells automatically self organize and determine the best RF path to get to the local interconnect locations. These RF paths are continuously evaluated and altered as needed. Depending upon building density and foliage, approximately 36 nodes per square mile will be required for good coverage of the City. The requirements of low power handheld devices such as PDAs increase the required node density count due to the client side power issues. Coverage will propagate indoors, but this varies greatly depending on building type. Alternative 802.11 technologies may be employed in the network for some of the Hot Zones pending the initial design study to provide flexibility where mounting asset problems exist. IBM -CMB FINAL SCHEDULES 15 Where interference in the 5.8 GHz band exists or may exist in the future, 4.9 GHz or 5.3 GHz Backhaul Nodes may be added in conjunction with or replacement for, the 5.8 GHz Backhaul Nodes. This provides an extremely resilient and flexible network for future growth and scalability. The proposed design of the distribution Network is based on 1 to 1.8 -mile radius cells. Upon award, the full design and survey study will determine the exact required placement and actual coverage of each distribution site. IBM -CMB FINAL SCHEDULES 16 SCHEDULE V 1.2 WIRELESS ARCHITECTURE AND DESIGN GUIDING PRINCIPLES • Provide throughout the Coverage Area for wireless access from desktop PCs, laptop PCs, handheld devices, mobile phones and other manned or unmanned devices equipped with either an IEEE 802.11b or 802.11g wireless interface. • Provide throughout the Coverage Area for Best Effort Service. • 70% in -building (indoor) coverage for residences and businesses within the Coverage Area. A residence or business is assumed covered under this requirement if a single, first or second -floor room, (e.g. adjacent to an exterior wall in residence or business), can access the wireless network at the stated Service levels with no additional hardware required beyond the device's standard wireless interface. • Provide for having parks, common areas and other public spaces within the City defined and managed to allow any user with a mobile device to gain free and open access to the System while in these areas. • Battery and/or solar power backup for all Network Equipment sufficient to assure continuous operation at full power and functionality for a period of not less than six (6) to ten (10) hours in the absence of utility power. • Provide for a mixed wireless and wired "backhaul" solution to aggregate Wi-Fi Network traffic from multiple Subscribers and access points back to an Internet point of presence ("PoP"). • Provide for pole, roof and wall mount options for wireless Network Equipment. • Compliance to IP56/NEMA4 dust and water ingress ratings for all outdoor -mounted Equipment. • Provide for ambient temperature ranges of 0 F to +122 F for all outdoor -mounted Equipment. • Provide for all outdoor -mounted Equipment to withstand wind loads up to 150 mph and consistent with any codes and/or regulations that may exist within the City of Miami Beach, with no impact to operation of the System. • Protection against power surges, including lightning strikes, for all electrical and Network connections. • Provide for the logical segmentation of the System to Provide different "domains" of users. This must include the ability to define and manage different profiles for authentication, encryption and other service characteristics based on the requirements of each user domain. • Provide for seamless, in -motion usage throughout the Coverage Area by government users. This includes the ability for Subscribers to maintain "session -level" persistence while the subscriber's device is in motion at speeds up to sixty (60) miles per hour. This capability must be provided with no interruption to applications running on the device. • Provide for both 32 bit (IPv4) and 128 bit (IPv6) IP Addressing, including multicast and any cast support. • Provide for the prioritization of Network traffic for specific applications, users, devices, and domains. • IBM -CMB FINAL SCHEDULES 17 • Fault tolerance mechanisms to mitigate and/or eliminate single points of failure for all components of the System. • Guaranteed reliability of 99.9% for the 802.11g and 802.11b tier of the System and 99.999% for the backhaul and PoP tiers of the System. • Sufficient capacity throughout the System to support IBM's projections at the service levels described above throughout the Agreement Term. These Subscriber projections are provided below for reference: Number of subscribed users Number of active users Number of simultaneous users 250,000+ 250,000+ 250,000+ 250,000+ 250,000+ 250,000+ 250,000+ 26,000 26,000 26,000 26,000 26,000 26,000 26,000 15,625 15,625 15,625 15,625 15,625 15,625 15,625 • Scalable to support additional users, capacity, and functions throughout the Agreement Term. IBM -CMB FINAL SCHEDULES 18 SCHEDULE V 1.3 ALTERNATIVE SCENARIOS THAT POTENTIALLY REDUCE POLE COUNT As part of IBM's research into alternatives to achieve an expedited deployment in the face of limited mounting assets, IBM has looked at some additional technologies. There are a few different options for base station deployments in the 2.4 GHz frequency that provide high power output and directed signals, effectively increasing the coverage. Given this, IBM is confident that there are base station options to consider where there is limited pole infrastructure available today. IBM will test and potentially use base station technology to augment coverage in those areas, such as Middle Beach, that are challenged with limited pole infrastructure. However, City may also independently verify any proposed alternative solution. IBM -CMB FINAL SCHEDULES 19 SCHEDULE VI City of Miami Beach Government User Wireless System Security Solution IBM will work with Miami Beach to design and implement the wireless system security solution for government users that are using the wireless network for government network application access. IBM -CMB FINAL SCHEDULES 20 SCHEDULE V 1.4 WIRELESS NETWORK INSTALLATION REQUIREMENTS • The installation and configuration of all Network components, access points, routers, bridges and other Network Equipment. • Coordination with the City and any other parties required for access to any structural assets, facilities or permits required for the installation of the System. • The ramp -up and activation of all Services to include but not be limited to customer Service, technical support, hosting, OSS, Network management Systems, processes and personnel. • The configuration and integration of all components in the Systems. • A safety plan detailing precautionary measures taken to mitigate risks during installation. High Level Project Schedule There are five phases defined in the plan below. Note most major tasks have been "fast tracked" or have been scheduled to run in parallel with their predecessors instead of having a "Start to Finish" relationship. In order to accomplish this, IBM will introduce additional resources than previously planned to expedite the schedule and meet the City's desired schedule. There are a total of four engineering/design teams and four deployment teams scheduled. IBM will work with the City to adequately identify the required City resources to execute this schedule and identify contingency plans to ensure a timely completion, in the event City resources are not available. The following schedule is an aggressive best case scenario based on the information known to date and mitigation plans for known obstacles such as the use of alternative technologies in areas of the City of Miami Beach without City owned street lights that can be used for mounting. Some of these mitigation plans are still in the process of being validated and can only finalized during the design and site survey tasks of the project. IBM -CMB FINAL SCHEDULES 21 Month fl I Month l2 l Miami Beach WW, Project lipip4Imiwatose 0 - Project Preparation Phase 1 - Network Design Phase 2 - Network Component Procurement Phase 3 - Network Configuration and Imp' ^ Phase 4 - Final A (.. . Process The Schedule below depicts the less aggressive schedule. Please note that the milestone for 80% coverage is achieved in Month 4. The remaining 20% coverage is depicted in this schedule to take longer than expected due to some unforeseen circumstances may be realized the site survey and design tasks. 11 12 13 14 15 16 17 18 19 110 111 112 113 114 115 116 Month ipmammaimmamiiiiimmomismommomi Miami Beach WWI Project Phase 0 - Project Preparation loasom! Phase 1 - Network Design Phase 2 - Network Component Procurement se 3 - Network Configuration and Implementation 4 Testing and Acceptance Phase 5 - Begin Ongoing Operations The City of Miami Beach and IBM will jointly finalize the detailed project schedule during the design phase of the project. Acceptance and Payment: The payment schedule will be based on successful completion of each Phase described above. The payment schedule for the Year One Capital Cost will be as follows: Milestone Propositions: 1) Notice to Proceed a. Payment Milestone 1 (20% of Y1 Capital Cost) as agreed b. Construction Letter of Credit = Price c. Conditional Acceptance Test Run 2) Design Documented 3) Backbone, BackOffice, & Distribution Systems Operational 4) Hot -zones 1 - 8 Operational a. Proposed Payment Milestone 2 (20% of Y1 Capital Cost) b. Construction Letter of Credit = Cumulative Price c. Conditional Acceptance Test Run 5) Hot -zones 9 — 16 Operational IBM -CMB FINAL SCHEDULES 22 6) Hot -zones 17 — 21 Operational 7) Hot -zones 22 — 30 Operational a. Proposed Payment Milestone 3 (20% of Y1 Capital Cost) b. Construction Letter of Credit = Cumulative Price c. Conditional Acceptance Test Run 8) Hot -zones 31 — 35 Operational 9) Hot -zones 36 — 38 Operational 10) Remaining areas Operational a. Proposed Payment Milestone 4 (20% of Y1 Capital Cost) b. Construction Letter of Credit = Cumulative Price c. Final Acceptance Test and Reliability Period Starts 11) Acceptance and Citywide Operational Period Begins a. Upon Acceptance, Construction Letter of Credit Removed b. Proposed Payment Milestone 5 (20% of Y1 Capital Cost) Based upon the Acceptance Criteria outlined in Section XI of the Agreement, IBM will invoice the City of Miami Beach. Payment for invoice is due upon receipt. IBM -CMB FINAL SCHEDULES 23 SCHEDULE V 1.5 TELECOMMUNICATIONS PROVISIONING AND SERVICES Description: IBM will provide an Internet connection to support the public and government users. Internet bandwidth will be provisioned at a level not to exceed 65-70% utilization capacity during peak periods as mutually agreed upon by the Vendor and the City based upon actual performance characteristics of the system over a period of 14 days measured at the Internet demarcation point. The major subtasks are to: 1. IBM will provide customer premise equipment to provide connectivity to the Internet through service provider of choice. 2. Provision Network bandwidth to support registered and recurring users. 3. Provide all monitoring, management, troubleshooting, repair and/or replacement of the customer premises equipment. Completion Criteria: This task will be considered complete when the Agreement expires. Deliverables: None Task Assumptions: None IBM -CMB FINAL SCHEDULES 24 SCHEDULE V 1.6 WIRELESS NETWOK MONITORING AND MANAGEMENT REMOTE : TROPOS WIRELESS MANAGEMENT SYSTEM rk Monitoring and Management Services Description: IBM will provide the City of Miami Beach with monitoring and management services for the Wireless Network. The Major subtasks are: 1. 24/7 Equipment Mom • Document System configuration, Signal Leve|o. BERs for baseline maintenance agreements. � Set up ancl define Network Operations Center Procedures • 24/7 Monitoring of all wireless devices on the network for availability and signal strength (where availabie by device) of the Network infrastructure. • Incident Ticket Reporting to Customer on the status of outages, dispatch and repair. • 24/7 TeIephone/Ema Technical Assistance and Dispatch • Online Iink history statistics Completion Criteria: This task will be considered complete upon expiration of this Agreement. Deliverables: None IBM -CMB FINAL SCHEDEJLES 25 SCHEDULE V 1.7 WIRELESS NETWORK MAINTENANCE Level I: Preventive Maintenance Preventive Maintenance shall include a semi-annual checkup of all wireless Equipment and connectors. Vendor shall conduct an inspection of the backhaul and multipoint outdoor placed Equipment on towers and rooftops twice a year. Due to Florida's hurricane season, the routine inspection shall be conducted by June 1 of any given calendar year and no later than January 1 of the following calendar year. As part of the maintenance agreement, Vendor shall perform the following during a semi- annual preventive maintenance inspection: • Document current RSS signal levels compared to installation baseline • Inspect and replace any damaged weather sealing • Inspect and replace any loose cable termination points • Perform a Spectrum Analysis at the site, if necessary • Align the antennae for optimum performance and tighten any mount points • Software and firmware upgrades Vendor shall conduct installation of firmware upgrades as part of the maintenance agreements. All preventative maintenance delivered hereunder shall be included and City shall not be subject to any additional costs for preventative maintenance. Level II: On -Site Emergency Service If problems with the Network cannot be resolved remotely, Vendor shall provide on site emergency support Service within a 4-6 hour response time to resolve the issue. Level III: Preventive Maintenance, On -Site Emergency Service and Equipment Replacement Service In addition to the above Services, Level 3 adds Equipment Replacement Service, Vendor shall provide full replacement of any failed Equipment on the Network within a 46 hour response window on a 24x7 basis. Network Maintenance Description: IBM will provide the City of Miami Beach with Network maintenance services for all components of the System. The Major subtasks are: 1. 24/7/4 Equipment Replacement and Labor IBM -CMB FINAL SCHEDULES 26 • (2) Inspections per year on backbone equipment enly • Document current RSSI signal levels compared to installation baseline • Inspect and replace any damaged weather sealing • lnspect and replace any loose cable termination points • Aligrr the antennae for optimum performance and tighten any mount points • IBM will provide 24/7 Telephone Support and On -Site Emergency Maintenance Support with qualified technicians and replacement parts as described below: • IBM will provide 2-4 hour Telephone Response. In the case of a down radio, IBM will provide 4-6 hour on-site noeponoa, weather permitting, unless otherwise postponed by Client. IBM will diagnose the source of the problem and will repair or replace, at IBM's opUon, such products or pads thereof which, on inspection by IBM, are found to be materially defective. m IBM will repair or replace said products or parts within 24 hours of IBM's diagnoses of the problem. Completion Criteria: This task will be considered complete uopn expiration of this Agreement. Deliverables: None Task Assumptions: 1. ThiaMointenonoedoeenptincudaoovarmgeforincidencaaoonoideredForceyW jeure; either covered or not covered by City's insurance. If the maintenance issue is determineby IBM to be caused by Force Mjeure, IBM will seek reimbursement from the City, and the Ciy shall pay, for IBM's time and materials, including travel charges. 2. If the failure is due to City configuration error, IBM will charge City and City shall pay for IBM's time and materials, including travel charges. Notwithstanding the above, if, in an emergency, authorized City personnel, after consultation or good faith attempted consultation with Vendor, makes configuration changes, then City shall not be responsible for any failure due to City configuration error. 3. In the event of any new radio frequency interference in the WIFI 802.11 frequencies that adversely effects the System after Final Acceptance and during the Term ofthis Aunsement. Vendor shall use its best e�o�s.onanexpedited basis bominimize the adverse -cbsofthe radio frequency interference. The remedial measures shall include but not limited to installing additional equipment, employing additional sites or modifying existing oi*aa, modifying the povverofthe radios, using a|harnabvachannels nr�equenoiemvvithinthe 882.11 quenoieo. all at no cost to the City other than the use of additional City owned assets or leased sites. However, Vendor shall not be ultimately responsible for any radio frequency interference arising from sources out of Vendor's control, beyond taking the best effort steps as described above. IBM -CMB FINAL SCHEDULES 27 SCHEDULE V 1.8 SOFTWARE HOSTING AND OPERATIONS SUPPORT SYSTEMS (OSS) Description: IBM will provide the City of Miami Beach with Operations Support Systems Services that will provide customer service, service policies, management and hosting of a subscriber portal for the system, and reporting such as usage tracking and reporting. The major subtasks are: The Major subtasks are: 1. End -User Provisioning a. IBM will provide a web -based registration form that allows new City of Miami Beach End - Users to sign-up to utilize the citywide Hotspot. b. The registration form will be branded to the City of Miami Beach and will display service plans and other terms and conditions for use from content the City of Miami Beach supplies through the portal. 2. Authentication Portal a. IBM will provide the Authentication Portal which will direct the End -User's credentials to the authentication database for Authentication, Authorization and Accounting ("AAA") to obtain access to the network. b. The Authentication Portal page will have designated areas that may be customized by IBM for the City of Miami Beach 3. Gateway Manaaement Service a. IBM will allow certain Gateway technical information to be provisioned and maintained in the OSS. This technical information will identify the Gateway which will be used to receive the End -User portal pages and related branding elements specific to the City of Miami Beach. The information will also be used to facilitate AAA requests to and from the End -User database which enables the End -User registration and login process. 4. Citywide Hotspot Network AAA Services a. IBM will perform AAA services for End -Users requesting access on your Hotspot/Hot Zone Network based on Login ID information supplied to the Authentication Portal. 5. Reporting Services a. IBM will make available access to various reports and data relating to the service. b. These reports will be available to the City of Miami Beach on an on demand basis, Completion Criteria: This activity will be complete when the other activities described as IBM Responsibilities have been completed, according to their completion criteria. Deliverables: None IBM -CMB FINAL SCHEDULES 28 SCHEDULE V 1.10 IN -MOTION LICENSING REOUIREMENTS Vendor shall be responsible for providing to the City, configuring, and integrating a solution which provides Application Session Persistence at speeds up to sixty (60) miles per hour. The City currently holds the licenses to 280 NetMotion Mobility XE users. Vendor shall make available to City 600 additional NetMotion Mobility XE licenses at a rate of 150 user licenses annually. Should the City, in any given year during the Term hereof, not acquire all 150 licenses, Vendor shall make these licenses available in subsequent years on a roll over basis. Should the City desire to acquire, in any given year during the Term hereof, any number of licenses beyond the annual provision of 150 licenses, Vendor shall make available those additional licenses and permit City to draw upon the required 600 licenses. Should the City desire to purchase any additional licenses beyond the 600 as provided for in this Agreement, Vendor shall make additional licenses available on a per -license basis at the same fractional cost as the stipulated 600 licenses. Should Vendor decide to change the software employed for obtaining session level persistence, Vendor shall provide, at its cost, any replacement software for the licenses already in service. Vendor will configure the software, integrate, and test the solution from end to end and provide template installation instructions for client deployment. IBM -CMB FINAL SCHEDULES 29 SCHEDULE VIII CUSTOMER SERVICE AND TECHNICAL SUPPORT Customer Service and Technical Support - IBM will provide unlimited customer service and technical support on any issue that may require IBM assistance. The Customer Service Center (CSC) will provide end-to-end customer care and technical support for the city-wide wireless broadband Network public access users and level 2 support for govemment users. The City will be responsible for level I support for government users. The Center will be a Single Point of Contact (SPOC) and will maintain end-to-end ownership of request for Services, including those that may need to be referred or escalated for resolution. The SPOC will act as a central focal point for logging, tracking, reporting, and end-to-end management of problems and issues related to the City. Coverage for the Wireless Network will be provided 24 his a day, 365 days a year. The SPOC will operate as a virtual extension of City IT support staff to answer technical questions and to resolve problems in connection with the wireless broadband Network. The Customer Service Center will be located in a Vendor selected site. Wireless Network Subscribers and City staff will be provided a toll-free 1-800 phone number for contacting the Service Desk. The Customer Service Center includes tools and procedures to provide the appropriate assistance for callers' service requests, allowing the CSR's to focus on complex problems while routine requests are resolved through automated responses or processes. The CSC customer service representatives will receive telephone calls (or e-mail) from public access users and City of Miami Beach support staff, and will follow mutually agreed -to processes and procedures to triage a call, provide basic support and if required, transfer the call to the appropriate resource for subsequent resolution. The SPOC will monitor and/or escalate problems and requests for service as necessary. Call and Problem Management - Calls to the Help Desk are logged into a problem and call management repository. Problem Management includes documenting problems, routing those problems to the responsible personnel for resolution, recognizing recurring problems, reducing the impact of problems, and reducing the number of problems that occur. Call Categorization- Based on the nature of the call as identified by the caller, the call will be routed to an appropriately skilled customer service representative. This representative will ask questions to clarify symptoms of the issue so that we can provide the appropriate level of support. Vendor assigns each call to a category and follows each category to assess its impact. If during the initial call, the customer service representative cannot resolve an issue, then the problem may need to be transferred to the next level of support. Problem Tracking - Problem records will be logged for every reported problem. These records provide an up-to-date status and history for problems and their resolution. CSC will be responsible for making sure problem records are created and regularly updated to reflect the status of the problem and its resolution. IBM -CMB FINAL SCHEDULES 30 Frequently Asked Questions & Self -Help Database — Vendor shall provide and maintain a database of Frequently Asked Questions (FAQs) including records of solutions to common problems, to enable wireless broadband Network users quickly find and solve their problems without the need, and associated costs, of having to speak to a Customer Service Representative. Service Outage Process- When there is Service interruption or Network outage, Vendor shall proactively notify Network users and callers of the Service interruption or Network outage. Components of the Support Desk will include the following: • Providing a Single Point of Contact for end users • Receiving requests via phone call and electronic mail • Assigning call priority • Performing basic problem determination • Resolving problems/requests • Accessing appropriate Knowledge Databases • Referring problem/request to following agreed -to -process and procedure • Closing problem / request records • Documenting and maintain Vendor processes and procedures • Training Customer Service Representatives • Providing Service Level Reporting through Standard Monthly reports which will include total call and ty�es of calls. • Abandon rate • First Call Resolution Problem Manaeement Tool Vendor will use a problem management system. Vendor support staff will access system directly on an internal Network. Vendor shall provide access for City IT support staff' via the open Internet using a web browser interface. The City support teams will access the System to view, update and manage problem records and initiate ad-hoc queries on tickets. Vendor shall support and maintain System availability to comply with Service Level Objectives. General tasks will include: • Maintaining functionality of tool during the term of the Agreement • Providing access rights, passwords and connectivity to the e -ESM problem management System for the execution of Services • Providing appropriate administrative access levels and rights to create and distribute ad hoc queries from the call/problem management tool • Providing System availability 24 hours a day x 7 days a week, excluding schedule maintenance windows, to support Service Level compliance. Technical Support Services Vendor will answer general questions about the functionality of the wireless Network. For example: Do I need a wireless card? How do I use the Service or is my connection secure? In addition to such customer care -related issues, Vendor also provides support IBM -CMB FINAL SCHEDULES 31 for technical issues. As products and technology evolve, the scope of support will be tailored to incorporate these changes. Technical support for the end users will include: Basic WiFi Card Driver Support Vendor will attempt to determine if the end-user has a working WiFi Card that is locating a wireless signal using guidelines set forth by the most common types of WiFi cards. Vendor will not install, remove or otherwise modify the installation of such devices. The settings of these devices will need to be handled by the actual hardware manufacturer or other responsible party. SSID configuration IBM will verify the correct SSID for the location being accessed by an end user. IBM Support will attempt to verify that the end user has the correct SSID set in their Network Connection profile, using basic guidelines developed for the most common operating systems, and the most common WiFi cards. Login/Access Difficulties IBM will review with the end user, the correct format for the login/access parameters on the access screens. IBM will attempt to verify that the correct settings are enabled in the end user's browser, and verify that the end user is not using security Software that may be blocking access. Location Specific Coverage IBM Support will verify the location details that the end user is accessing and will direct the end user to the most appropriate coverage locations. E-mail IBM Support will provide the end user with the settings needed to send and receive email over a wireless connection using the most common email programs. VPN issues IBM will assist an end user set up a new VPN connection by directing the end user to the Windows Network setup wizard. The Call Center will direct the end user to their own Network Administrator for any settings on an existing VPN that the end user is trying to access. IBM -CMB FINAL SCHEDULES 32 SCHEDULE X IMPLEMENTATION & ACTIVATION SCHEDULE See supra Schedule V 1.4. IBM -CMB FINAL SCHEDULES 33 SCHEDULE XXIII LIST OF PRE -APPROVED SUBCONTRACTORS Some of the Services may be performed by an IBM subcontractor. If an IBM subcontractor assists with the project, IBM is solely responsible for completion of the work and Services described herein and compliance with the terms hereof and coordinating any involvement of IBM subcontractors who may be engaged to assist IBM in accomplishing the work described herein. List of annroved subcontractors: Business Information Group (BIG) Trident Telecommunications, Inc. AirPath, Inc. BellSouth IBM -CMB FINAL SCHEDULES 34 SCHEDULE XXVII 1.3 LIOUIDATED DAMAGES The following Liquidated Damages have been agreed to by both parties and are subject to a total cap of $250,000.00 over the life of the Agreement. Type of Violation Amount per Occurrence in Dollars 1. Insufficient capacity using a fourteen (14) day average to support the Best Effort Service for the required number of active users or simultaneous users as set forth in Schedule V $5000.00 per 14 Day 1.5 Period 2. Signal availability failing to meet the required 95% in - street (outdoor) and 70% indoor coverage requirement for more than 5 days. $1000.00 3. Failure to meet any Level II or Level III maintenance response time as set forth in Schedule V 1.7 $1000.00 4. Failure to meet principal milestones as set forth in the less aggressive timetable as set forth in Schedule V 1.4 $1000.00 5. Any failure to meet the required level of customer service $500.00 per 7 Day as set forth in Schedule VIII for a seven (7) day period. Period 6. Any System wide outage for each 4 hour period. $575.00 7. Failure to obtain any requisite license or permit for the installation of Equipment or a violation of any permit or license condition. $500.00 8. Failure to reasonably restore to prior conditions City assets after the installation of Equipment not to exceed thirty (30) days except as provided by such permit or lease consent or similar Agreement. $500.00 9. Failure to reasonably restore a public right of way after installation or removal of equipment within thirty (30) days. $500.00 10. The use of any subcontractor not listed in Schedule XXIII or where prior written consent has not been obtained from the City $1000.00 11. Unauthorized assignment, sublet, conveyance or transfer $1000.00 IBM -CMB FINAL SCHEDULES 35 of Vendor's interest in this Agreement without City's prior written consent as set forth in Section XXV. 12. Any material failure to maintain the required level of security as set forth in the Wireless Security System design document IBM -CMB FINAL SCHEDULES $5000.00 36 SCHEDULE XXVII 1.4 FORM OF LETTER OF CREDIT Date of Issue Issuing Bank's No Beneficiary: Applicant: City of Miami Beach Amount: 1700 Convention Center Drive Expiring: Miami Beach, Florida 33139 (Date) We hereby authorize you to draw on at (branch address) of (Bank, Issuer name) by order of and for the account (contractor, applicant, customer) up to an aggregate amount, in United States Funds, of available by your drafts at sight. Drafts must be drawn and negotiated not later than (expiration date) IBM -CMB FINAL SCHEDULES 37 This Letter of Credit sets forth in full terms of our undertaking, and such undertaking shall not in any way be modified, amended, or amplified by reference to any documents, instrument, or agreement referred to herein or to which this Letter of Credit is referred or this Letter of Credit relates, and any such reference shall not be deemed to incorporate herein by reference any document, instrument, or agreement. We hereby agree with the drawers, endorsers, and bona fide holders of all drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee. The execution of the Contract and the submission of the required Performance and Payment Guaranty and Insurance Certificate by the (contractor, applicant, customer) shall be a release of all obligations. This Letter of Credit is subject to the "Uniform Customs and Practice for Documentary Credits," International Chamber of Commerce (1993 revision), Publication No. 500 and to the provisions of Florida law. If a conflict between the Uniform Customs and Practice for Documentary Credits and Florida law should arise, Florida law shall prevail. If a conflict between the law of another state or country and Florida law should arise, Florida law shall prevail. Authorized Signature IBM -CMB FINAL SCHEDULES 38 SCHEDULE XXVII 1.5 FORM OF CONSTRUCTION LETTERS OF CREDIT Date of Issue Issuing Bank's No Beneficiary: Applicant: City of Miami Beach Amount: 1700 Convention Center Drive Expiring: Miami Beach, Florida 33139 (Date) We hereby authorize you to draw on at (branch address) of (Bank, Issuer name) by order of and for the account (contractor, applicant, customer) up to an aggregate amount, in United States Funds, of available by your drafts at sight. Drafts must be drawn and negotiated not later than (expiration date) IBM -CMB FINAL SCHEDULES 39 This Construction Letter of Credit sets forth in full terms of our undertaking, and such undertaking shall not in any way be modified, amended, or amplified by reference to any documents, instrument, or agreement referred to herein or to which this Construction Letter of Credit is referred or this Construction Letter of Credit relates, and any such reference shall not be deemed to incorporate herein by reference any document, instrument, or agreement. We hereby agree with the drawers, endorsers, and bona fide holders of all drafts drawn under and in compliance with the terms of this Construction Letter of Credit that such drafts will be duly honored upon presentation to the drawee. The execution of the Contract and the submission of the required Performance and Payment Guaranty and Insurance Certificate by the (contractor, applicant, customer) shall be a release of all obligations. This Construction Letter of Credit is subject to the "Uniform Customs and Practice for Documentary Credits," International Chamber of Commerce (1993 revision), Publication No. 500 and to the provisions of Florida law. If a conflict between the Uniform Customs and Practice for Documentary Credits and Florida law should arise, Florida law shall prevail. If a conflict between the law of another state or country and Florida law should arise, Florida law shall prevail. Authorized Signature IBM -CMB FINAL SCHEDULES 40 SCHEDULE XXVIII PUBLIC BENEFITS Should the City determine that it wishes to exercise any of the benefits set forth below, it will be handled via the Public Benefits Implementation Process. The City recognizes that any benefits set forth below that includes estimated incremental pricing is not included in the pricing as set forth in Schedules III A and IIIB. 1. High Rise and Condominium Installation Discount Program a. IBM will provide packaged pricing to Condominium and Multiple Dwelling Unit associations referred by the City of Miami Beach for wireless access. b. Each multiple unit dwelling requires an inspection and determination of the most appropriate solution(s). c. Options for deployment: i. Distributed Antenna Systems ii. Wireless bridge from the City Wide Wireless Network iii. Fiber, if available iv. Internal access points v. External wireless base station d. Packaged pricing i. These prices are offered on a multiple unit basis. ii. Pricing will be extended to the City of Miami Beach referrals at State of Florida Contract terms and pricing generally reserved for State and Local entities only. iii. Current hardware discount rate associated with this solution is 25% off list price for the Alvarion equipment. iv. Services will be offered in terms consistent with the State of Florida Services Contract on a fixed price basis. IBM -CMB FINAL SCHEDULES 41 2. Miami Beach Schools and Citywide Content Filtering Solution The City of Miami Beach has requested a Content Filtering solution as an addition to the Citywide Wireless Network to enforce usage policies the City may wish to establish. a. IBM can provide the Websense Enterprise Suite as an enhancement to the WiFi Solution for filtering and reporting. b. IBM is proposing a filtering software and services bundle to include: i. Websense Enterprise Suite ii. Unlimited database downloads iii. Software maintenance for filtering iv. Monitoring and Reporting v. Configuration and Integration Services into WiFi Network vi. Standard Technical Support c. Special bundled pricing is offered for blocks of 2000 licenses and subscription term of 34 months. Description Per Seat Ext List Extended QTY List Price Price Discount Discounted Price Websense Enterprise for 2,000 Internet Access Devices for 34 2000 $42.00 $84,000.00 35% $54,600.00 month subscription 3. IBM Community Outreach Commitment IBM will work with the City of Miami Beach, Miami -Dade Public Schools, and other not for profits including organizations that provide services to the elderly at the City to explore similar opportunities for community outreach as a commitment to our partnership. IBM will provide the following: a. Promote Technology Careers in the Classroom Program i. IBM will provide three one to two hour labs per year to introduce the children of the City of Miami Beach to the range of exciting, profitable careers in engineering and IT. ii. These labs are available to any of the City's Schools or Community Centers. iii. The presentations and labs can be offered to the City's children from ages 11 to 17. The content, presentation, and activities will be tailored to the target age group. iv. There are four engaging presentations to choose from and each includes hands-on activities and will make the school or community center visit fun, easy and successful. Presentations and activities include: Encourage math & science — children 11-14 Encourage math & science — children 14-17 IBM -CMB FINAL SCHEDULES 42 Preparing for an IT career Preparing students presentation Preparing students presentation (with animation) IT Careers: Getting started and activities guide IT Careers: Workplace simulation IT Careers: Jobs overview IT Careers: Discussion starters v. These sessions will be conducted by qualified IBM employees who are engineers or IT Professionals that have completed the 2 hour training requirement to lead these workshops. b. Technology Workshops and Training for Teacher, Community Center Personnel, Adults and Seniors i. IBM will provide 3 technology training workshops per year ii. These workshops are available to any of the City's Schools, Community Centers, or senior homes. iii. The workshops will be targeted and customized as applicable for teachers, education staff, parents or seniors. iv. The purpose of these workshops is to help participants learn about acceptable Internet use and challenges/concerns about integrating technology into education or community programs v. Each workshop can consist of any two of the following sessions plus Module 8 — City of Miami Beach WiFi Network Overview: MODULE 1: Getting Connected MODULE 2: Tips for Searching the Internet MODULE 3: Downloading from the Internet MODULE 4: Netiquette MODULE 5: Internet Troubleshooting MODULE 6: Fun things to do on the Internet MODULE 7: Safety on the Net MODULE 8: City of Miami Beach WiFi Network Overview vi. IBM will provide all the materials for each session including the presentation materials, participant handouts and activity worksheets. vii. IBM will coordinate the use of each facility's computer resources if required for a particular session. 4. Miami Beach Public Schools Technology Program a. IBM will provide thirty (30) PCs to the City of Miami Beach Commission to distribute specifically for the use of the underprivileged. b. IBM will donate these PCs to an existing 501.(c)(3) organization. c. Additional non -monetary terms and conditions may apply. IBM -CMB FINAL SCHEDULES 43 5. IBM Corporate Employee Purchase Program a. IBM will create and manage a customized Purchase Program portal site specifically for the City of Miami Beach and its residents to provide the same level of discount for IBM and Lenovo products available to IBM employees. b. Program is available to Miami Beach City employees for personal use c. Program is available to Miami Beach residents for personal use d. Discounts are in addition to special promotions. e. Purchasable items include notebooks, desktop PCs, monitors, keyboards and other accessories. f. Additional non -monetary terms and conditions may apply. 6. Capacity Injection for Events Though the proposed Network is designed to handle a higher user Toad than Miami Beach initially requested, there may be a need to augment capacity in areas where an event is concentrated. The method IBM will use to deliver consistent service to the guests and residents of Miami Beach will be through the network operations center. IBM will baseline the Network activity at all points of the Network on a regular basis so that existing capacity can be gauged. As events are expected, IBM will be able to determine if excess capacity might be needed. 1. IBM will provide a capacity injection kit and will deploy it to a specific area where an event might warrant additional capacity. a. The Capacity Injection Kit will consists of: i. Quantity of 5 Tropos 5210 Metro Mesh Routers ii. Quantity of 1 Alvarion 5.8GHz CPE (SU-A)Subscriber Unit iii. Site survey iv. Configuration and Implementation Services 2. Each capacity injection kit will provide up to 270mbps of additional capacity at the access layer and 45mbps at the backhaul layer. 3. The cost of the deployment and equipment for the capacity injection kit will be $24,200 to $30,000. 4. The price range and capacity estimates are contingent on: a. The proximity to an existing backhaul aggregation point b. Line of sight conditions to an existing backhaul aggregation point c. Having sufficient capacity at the target backhaul aggregation point to handle the increase in capacity IBM -CMB FINAL SCHEDULES 44 d. Having adequate City supplied mounting infrastructure and power on which to deploy the injection capacity kit. 5. IBM will determine the best solution to provide the required capacity as the requirements for a specific event become available and the site survey is conducted. 7. Location Awareness Capability IBM will explore the applicability of location tracking with the City of Miami Beach by evaluating various hardware and software solutions that run on the WiFi Network at no charge to the City. 8. Wireless Connectivity for Causeway and Jail Routes IBM will explore with the City various methods to establish "out of city" Network connectivity for public safety officials who need to travel outside of the boundaries of the Miami Beach WiFi Network. a. IBM will provide exploratory services in the amount of 100 hours to establish a desired solution. b. IBM will extend the State of Florida hardware contract pricing for the elements of the network being deployed in Miami Beach. This pricing is currently between 20% and 35% off of list price depending on the specific hardware. Options include: i. Roam to another network via session persistence. ii. Extend coverage through access point or base station technology deployments. 9. Mobile Building and Permitting IBM will provide advisory consulting services up to 40 hours to the City of Miami Beach to determine the options to bring the permitting application into the field and onto the WiFi network. 10. WiFi-enabled Multi -space Parking Pay Stations IBM will provide up to 100 hours of integration consulting support through to assist with bringing the parking meter solution onto the WiFi Network. This includes such tasks as: a. Bench testing b. Integration into the terminal management system c. Field testing and validation of real time statistics d. Identification of work required to integrate the meters onto the wireless network IBM -CMB FINAL SCHEDULES 45 11. IBM Accessibility Technologies IBM will provide a trial version and special pricing for a tool that is not commercially available to other organizations to improve accessibility of the Miami Beach web site. Capability includes: a. Downloadable software from the web site b. Unlimited number of users per web site c. Allows customizable color, sound effects d. Reads text aloud in 9 languages, with adjustable speed, volume control e. Purchase price: $50,000 - $60,000 Y1 f. License and support services: $16,000 - $20,000 Y2 forward g. Additional non -monetary terms and conditions may apply. 12. Mobile Incident Command Trial IBM will provide one NIMS 2.0 compliant Mobile Incident Command prototype for a trial period of 60 days. Specifics of the trial include: a. 60 day trial duration b. One mobile hardware device, including, software, and support c. Solution is NIMS 2.0 compliant d. Additional non -monetary terms and conditions may apply 13. Governmental and Packaged Solutions for Fixed Video and In -Car Video The IBM team has developed comprehensive offerings for stationary and in -car video capture for States and Local Governments. This includes digital video capture system, integration services, and data management software and hardware. Our offerings are backed by a team of skilled consultants and technologists to accomplish these complex solution objectives. We are well positioned to efficiently provide the equipment and related services to support the deployment of digital video system and the management of the video captured. In addition to our technology capabilities and knowledge, we have years of experience working with state and local law enforcement organizations nationwide. Additional non -monetary terms and conditions may apply a. IBM will provide a free trial program to the City of Miami Beach consisting of a 30 day trial for one car outfitted with one camera. i. IBM will provide the server and storage required to capture up 6 hours of video at 15 frames per second. The video will be stored for 5 days during the pilot. ii. One existing City of Miami Beach workstation will be set up to view the video. iii. IBM will install the equipment in one City of Miami Beach vehicle. iv. The City of Miami Beach will provide network connectivity for the server. IBM -CMB FINAL SCHEDULES 46 b. IBM has estimated the following pricing for future and potential Digital Video Solutions for Miami -Beach: i. Stationary/Fixed Video --$2,000-$12,000 Per Camera (Minimum of 20 cameras) - OR ii. In -Car Digital Video --$9,000 - $10,000 Per Vehicle (Minimum of 20 vehicles) iii. These estimates include all software and the server with internal storage based on the following assumptions: 1. Mpeg 4 video is captured and stored at 15 frames per second using CIF (352x288) or QCIF2 (704x288) resolution (These are standard specifications in terms of format and quality for digital video surveillance.) 2. A maximum of 6 hours of video is captured daily (A typical high end estimate is 2 hours of video per shift.) 3. The video will be stored on the server for 30 days. For In -Car Video Solution the following assumptions and City of Miami Beach responsibilities apply: 1. The City of Miami Beach will utilize existing Mobile Data Terminals (i.e. laptops in vehicles) which have at least 5 GB of free space on their internal hard drive for storage. 2. IBM will determine whether the City's Mobile Data Terminals have the minimum requirements for the solution at the time of interest. 3. The video will only be stored on the Mobile Data Terminals for a maximum of 2 days before it is automatically uploaded to the storage server or manually transferred. iv. These estimates are for budget and planning purposes only. c. Storage Requirements Calculation Logic i. The following storage calculations provide the details incorporated into our estimates. Server Storage # Bit # of # of Total Total Total Cameras Rate Hours Days MB GB TB 20 512 6 30 829440 829.44 0.82944 Mobile Data Terminal Storage # Bit # of # of Total Total Total Cameras Rate Hours Days MB GB TB 1 512 6 2 2764.8 2.7648 0.00276 IBM -CMB FINAL SCHEDULES 47 14. Mobile Noise Complaint Inspection Pilot IBM will provide a 60 trial of a hand held mobile noise complaint solution. Specifics of the trial include: a. Creation of one Noise Complaint Inspection Form b. 60 day trial to include evaluation software licenses c. One way upload to backend complaint system d. Data and forms are hosted at an ASP for trial period e. Hardware evaluation units can be arranged f. $15,000 charge for pilot execution and support by IBM g. Additional non -monetary terms and conditions may apply 15. Project Management Office IBM's project management office consists of the following: a. Single Point of Contact (SPOC) through its project management office. b. Staffed by a senior PMI certified project manager c. An IT Architect d. Network Specialists e. Administrative support f. IBM advocates telecommuting, so this staff will not necessarily work from one physical location. g. IBM's project team including customer support and technical resources will report through the IBM Project Office to the IBM Project Manager. h. The IBM Project Manager will report directly to the City of Miami Beach's designated project manager for the wireless project. 16. Sponsorship Marketing and Marketing Support IBM will coordinate a promotional campaign in conjunction with the City of Miami Beach to include: 1. Press releases 2. White papers 3. Internal and external promotional pieces 4. IBM will work with the City of Miami Beach to ensure the City is represented at business shows and trade fairs. 5. IBM will collaborate with the City of Miami Beach to develop joint opportunities to host IBM Customer Executive Events. IBM -CMB FINAL SCHEDULES 48 6. IBM will host one significant event each year in the City of Miami Beach. 7. IBM will induct the City of Miami Beach into the Executive Contact Program, which creates strategic links between the top City officials and a senior IBM executive in order to showcase IBM Company and community activities, including initiatives and grant. 17. IBM Scripps Infectious Disease Research On February 16, 2006, an announcement was made by IBM, Governor Jeb Bush and Scripps to unveil the details of an exciting collaboration on pandemic research to be headquartered in South Florida. IBM and Scripps are already working on a similar project based in California in which over 200 million computational cycles have been generated and analyzed for HIV treatment research. IBM invites the City to join forces with other governmental agencies who are participating in this project. 18. IBM Institute for Electronic Government The City can showcase its technology at IBM's Institute for Electronic Government in Washington D.C. Since it opened in 1996, over 25,000 government leaders from around the world have visited the IEG for customized meetings, for tours of the 15,000 square feet of demonstration space, for collaboration and idea -exchange with their peers and IBM executives and staff who have deep experience in the business of state and local government. This is a win-win for IBM and for the cities that are featured at the IEG, IBM's briefing center dedicated to e -Government. http://www-1.ibm.com/industries/government/ieg/index.html IBM invites the City of Miami Beach to be featured at the IEG Briefing Center. 19. Digital Cities Event IBM will work with the City of Miami Beach to plan a follow-up Digital Cities event to be held during January 2007 highlighting the citywide deployment and applications as a significant case study. 20. Safe Internet Zones for the Schools of the City of Miami Beach IBM is a Board Member of Web Wise Kids, a nonprofit organization committed to teaching children and their caregivers strategies for safe Internet use, including methods of detecting and deterring online predators. IBM also teams with !- SAFE, a not-for-profit foundation, designated by the United States Congress to educate and empower the youth of the Nation to safely and responsibly take control of their Internet experiences. IBM understands the Public Schools' requirement to be in compliance with the Children's Internet Protection Act, which affects the schools' federal funding. IBM will provide 'safe Internet zones' design services free of charge to the City of Miami Beach. IBM -CMB FINAL SCHEDULES 49 SCHEDULE XXIX OBLIGATIONS OF THE CITY OF MIAMI BEACH The City of Miami Beach Responsibilities 1. The City shall make appropriate management and technical personnel available to provide approvals, consultation and guidance as required. 2. Provide security clearance and building access for IBM project personnel on an escorted basis, where required by the City. Most of the work involved in this project will be performed during normal working hours (8:OOam to 5:OOpm). However, on some occasions, the City of Miami Beach may need to provide access to facilities outside of these hours. 3. Be responsible for the content of any database, the selection and implementation of controls on its access and use, backup and recovery and the security of the stored data. This security will also include any procedures necessary to safeguard the integrity and security of software and data used in the Service from access by unauthorized personnel. 4. Be responsible for the identification and interpretation of any applicable laws, regulations, and statutes that affect City's existing application systems or programs that IBM will have access to during the Services. It is City's responsibility to assure that the systems and programs meet the requirements of those laws, regulations and statutes. 5. Be responsible for the City internal network, content of any database, the selection and implementation of controls on its access and use, backup and recovery and the security of the stored data. This security will also include any procedures necessary to safeguard the integrity and security of software and data used in the Services from access by unauthorized personnel. 6. Authorize IBM and its subsidiaries (and their successors and assigns, contractors and IBM Business Partners) to store and use the City's business contact information wherever they do business, in connection with IBM products and Services or in furtherance of IBM's business relationship with the City. 7. If the City makes facilities, software, hardware, networks or other resources available to IBM, the City is responsible for obtaining any licenses or approvals related to such resources that may be necessary for IBM or its subcontractors to perform the Services, including the development of any deliverables. Notwithstanding the above, the Vendor remains required to comply with all Federal, State and local ordinances, rules, regulations, codes, laws and permitting processes as required. IBM will be relieved of its obligations to the extent the City's failure to promptly obtain such licenses or approvals adversely affects IBM's ability to perform its obligations. 8. Provide adequate resources to support the installation included but not limited to: • Approximately 260 mounting assets suitable for handling the weight of the equipment. The adequate poles and mounting facilities for the Wireless network gear will be co -specified by the City of Miami Beach and IBM during the design phase. ■ Power for System components including power conditioning and the resolution of power quality issues such as ground faults on selected mounting assets. • Additional (new) poles with adequate power (grounded 110, 220 or 480v) and connectors (photocell) to support the deployment. IBM -CMB FINAL SCHEDULES 50 • City Resources to support the deployment schedule for tasks related to the design, survey and installation including the preparation of the City's mounting assets and infrastructure as needed in support of the deployment schedule. 9. Space in applicable sites for the installation of System equipment including switches and routers, as available. 10. Rack space for switches, routers, security equipment and other System components, as available. City of Miami Beach Project Manager Prior to the commencement of this Agreement, the City of Miami Beach will designate a person, called the City of Miami Beach Project Manager, to whom IBM communications will be addressed for all matters regarding implementation of this Agreement. The City of Miami Beach Project Manager's responsibilities include: 1. Serve as the interface between IBM and all the City of Miami Beach departments, organizations and sites participating in this project. 2. With the IBM Project Manager, develop the project plan prior to implementation. 3. With the IBM Project Manager, administer the Project Change Control Procedure. 4. Attend project status meetings. 5. Obtain and provide information, data, decisions and approvals, within five (5) working days of IBM's request, unless both IBM and the City of Miami Beach agree to an extended response time. 6. Help resolve project issues and escalate issues within the City of Miami Beach organization, as necessary. IBM -CMB FINAL SCHEDULES 51