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HomeMy WebLinkAboutReconfiguration Planning Phase Agreement -;oe;&- 1(,;1.. II tf/t7h - C 1 r; Reconfiguration Planning Phase Agreement (Planning Phase Services Only; No Equipment, Software, or Implementation Phase Services) Motorola, Inc. ("Motorola" an.d e; - ("Licensee" or "Customer"), whose main address is DO Wa4 ~ , '3 , enter into this Reconfiguration Planning Phase Agreement ("Agreement"), pur uant to which Licensee will purchase and Motorola will sell the Reconfiguration Planning Phase services described below. Motorola and Licensee may be referred to individually as a "Party" and collectively as the "Parties." This Agreement is made with reference to the following recitals. A. On August 6, 2004, the FCC issued Report and Order FCC 04-168 that modified its rules governing the 800 MHz band to minimize harmful interference to public safety communications systems. On December 22, 2004, the FCC issued a Supplemental Order and Order on Reconsideration FCC 04-294. The August 6 and December 22, 2004 orders, and any supplemental orders the FCC issues, are collectively referred to as the "Order." B. Pursuant to the Order, certain licensees of 800 MHz channels used in public safety or other systems must relinquish their existing channels and relocate their systems to other licensed channels ("Replacement Channels"). Also pursuant to the Order, Nextel must relinquish some of its existing channels and must provide and pay relocation funds ("Relocation Funds") to enable affected licensees to relocate their systems onto Replacement Channels and reconfigure their systems so that they are "Comparable Facilities" (llS defined below). C. The FCC has appointed a Transition Administrator ("T A") to assure that the rebanding initiative proceeds on schedule and in a planned and coordinated manner so that disruption to a licensee's system is minimized. In the T A's published "Reconfiguration Handbook," the two major phases to accomplish the reconfiguration are described as the "Reconfiguration Planning Phase" and the "Reconfiguration Implementation Phase." D. Licensee has selected Motorola to provide Reconfiguration Planning Phase services. For good and valuable consideration, the Parties agree as follows: Section 1 DEFINITIONS In addition to the defined terms above, capitalized terms in this Agreement have the following meanings: 1.1. "Comparable Facilities" means the Licensee's System (including the subscriber radio equipment) have, at minimum, the same operational capabilities that existed before relocation, specifically (1) equivalent channel capacity; (2) equivalent signaling capacity, baud rate, and access time; (3) coextensive geographical coverage; and (4) equivalent operating costs. 1.2. "Confidential Information" means to the extent consistent with applicable law, any information that is disclosed in written, graphic, verbal, or machine-recognizable form, and is marked, designated, labeled or identified at the time of disclosure as being confidential or its equivalent; or if the information is in verbal form, it is identified as confidential or proprietary at the time of disclosure and is confirmed in "''Tiring within thirty (30) days of the disclosure. Confidential Information does not include any information that: is not expressly exempt from disclosure under Florida Public Records law; or becomes publicly known through no wrongful or negligent act of the receiving Party; is already known to the receiving Party without restriction when it is disclosed; is, or subsequently becomes, rightfully and without breach of this Agreement, of any other agreement between the Parties or of any applicable protective or similar order, in the receiving Party's possession without any obligation restricting disclosure; is independently developed by the receiving Party without breach of this Agreement; or is explicitly approved for release by written authorization of the disclosing Party. 1.3. "Contract Price" means the price for the selected Reconfiguration Planning Phase services, excluding any applicable sales or similar taxes. 104. "Customer Suitability Assessment" means the initial assessment services performed by Motorola to determine whether Licensee's System (infrastructure) is suitable for updating using the Motorola Software that has been especially modified for purposes of the 800 MHz band reconfiguration. Reconfiguration Planning Phase Services Agreement Rev.3 .17 .06 revision 163 1.5. "Effective Date" means that date upon which all Parties have executed this Agreement. 1.6. "Force Majeure" means an event, circumstance, or act of a third party (including Nextel and the T A) that is beyond a Party's reasonable control. An act of God, the public enemy, a government entity, or another party (including another party's failure to comply with the Order ); strikes or other labor disturbances; general unavailability of necessary materials; hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots are examples of a Force Majeure. 1.7. "Motorola Software" means software in object code format that Motorola or its affiliated company owns, including any releases or software kits to reprogram radios. This Agreement does not involve any source code. 1.8. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to any documents delivered by Motorola under this Agreement or any Motorola Software or equipment. 1.9. "Reconfiguration Planning Phase Services" means those services to be provided by Motorola to Licensee under this Agreement; these services are described in the Statement of Work. 1.10. "Statement of Work" means the description of the work to be performed under this Agreement by the Parties. The Statement of Work is set forth in Attachment A and is incorporated herein by this reference. 1.11. "System" means the hardware and software products that comprise the Licensee's existing 800 MHz radio communications system. Section 2 SCOPE OF PLANNING PHASE SERVICES 2.1. SCOPE OF WORK. The Parties will perform their respective contractual responsibilities in accordance with this Agreement. Any changes to this Agreement, including changes to the Statement of Work, must be in writing and executed by both Parties. This Agreement sets forth the Parties' rights and responsibilities with respect to each other concerning the agreed Reconfiguration Planning Phase activities only, and not the Reconfiguration Implementation Phase activities (which, if applicable, will be governed by a separate Reconfiguration Implementation Phase Agreement). Specifically, this Agreement does not involve the provision by Motorola of any equipment, hardware, or software, or any services to reconfigure the System or any part of it. This Agreement sets forth the Parties' rights and responsibilities with respect to each other concerning only those Reconfiguration Planning Phase activities covered by the Order, and not the sale of products or services (or any other activities) that are not part of the 800 MHz Band Reconfiguration process. If the Parties wish to contract for these other activities, they will do so pursuant to a separate contract. If the parties whish to amend the scope or terms of this Agreement for products or services covered by the Order, they will do so by written change orders, which prior to becoming effective, must be submitted to and approved by Nextel and the Transition Administrator (each a "Change Order"). 2.2. MOTOROLA RESPONSIBILITIES. Motorola will provide the Reconfiguration Planning Phase Services as described in the Statement of Work. 2.3. LICENSEE RESPONSIBILITIES. At the appropriate time, Licensee will submit its Request for Planning Funding, any required certifications, and any amendments thereto (if applicable) to Nextel and the T A. For the limited purpose of assisting Nexteland the TA to evaluate Licensee's Request for Planning Funding, Motorola authorizes Licensee to (and Licensee will) provide to the TA and Nextel a copy of this Agreement, including the exhibits and pricing, but such information is and remains Motorola Confidential and Proprietary as provided below in Section 9 (and pursuant to Non-Disclosure Agreements Motorola has with Nextel and the TA). Licensee will employ commercially reasonable efforts to assist Motorola in providing the Reconfiguration Planning Phase services, and will provide reasonable access to Licensee's equipment, facilities, personnel and relevant information. Licensee will designate a point of contact person. 2.4. LICENSEE-NEXTEL RELATIONSHIP. The T A's Reconfiguration Handbook indicates that Licensee and Nextel will fonn a "Planning Funding Agreement" and/or a "Frequency Reconfiguration Agreement" (collectively referred to as "FRA") which, among other things, sets forth Nextel's obligation to pay the Relocation Funds. The Reconfiguration Handbook encourages a payment process by which Nextel pays Relocation Funds directly to Reccnfiguration Planning Phase Services Agreement Rev .3.17 .06 revision 2 164 Licensee's selected vendors; and Licensee will ensure that its FRA provides for direct payment by Nextel to Motorola. Promptly after execution of the FRA, Licensee will provide to Motorola a copy of those portions of the FRA that pertain to Motorola's services, products, pricing and payment, including Attachment C to the FRA (redacted if necessary to exclude information not pertaining to Motorola). 2.5. OTHER SERVICES. Nothing in this Agreement is intended to prevent or hinder Motorola from contracting to perform or performing for Licensee any Reconfiguration Implementation Phase services, or any other kind of services, or selling any equipment or software. Nothing in this Agreement is intended to prevent or hinder Motorola from contracting to perform or performing for other Licensees Reconfiguration Planning Phase services, Reconfiguration Implementation Phase services, or any other kind of services, or selling any equipment or software. Section 3 PERFORMANCE SCHEDULE The Parties will perform their respective responsibilities in a reasonably diligent manner, taking into consideration the procedures and processes established in the Reconfiguration Handbook. The Parties acknowledge that any scheduled performance dates are estimates only, and various factors (such as resource availability) may cause the scheduled performance dates to change or be delayed. As specifically provided for in the milestone schedule attached to this Agreement or to any Change Order executed by the parties, Motorola hereby agrees to take any and all actions necessary to ensure that the reconfiguration planning of Licensee's system is successfully completed in compliance with any and all deadlines established by the FCC and the Transition Administrator. No Party will be liable for its non-performance or delayed performance if caused by a Force Maj eure. A Party will notify the other in writing if it becomes aware of a Force Majeure that will significantly delay performance. The notifying Party will give the notice promptly after it discovers the Force Majeure. Section 4 CONTRACT PRICE, PAYMENT AND INVOICING 4.1. CONTRACT PRICE; NON-RECOURSE TO LICENSEE. 4.1.1. Contract Price. The Contract Price for Reconfiguration Planning Phase Services in U.S. dollars is $98,744. Except for reimbursable travel and related expenses and any changes to the Reconfiguration Planning Phase Services caused by mutually executed change orders, this price is a firm, fixed price.. The Contract Price excludes any sales or other taxes, all of which will be added to the invoices and paid except as exempt by law. 4. I .2. Licensee Not Liable for Contract Price. Payment of the Contract Price and any applicable taxes is to come from Nextel, and not Licensee. If Nextel fails to pay Motorola, Licensee shall not be liable to pay Motorola the Contract Price or applicable taxes. Notwithstanding the above, if Nextel pays the Contract Price and any applicable taxes to Licensee rather than to Motorola, Licensee will immediately forward the payment to Motorola. Motorola agrees to accept direct payments from Nextel if they are unconditionally made and if Nextel clearly identifies the applicable Motorola invoice. Motorola further agrees to apply these direct payments from Nextel to the Contract Price. 4.1.3. Motorola's Protections Concerning Payment by Nextel. Licensee hereby assigns to Motorola Licensee's rights (including those under the FRA) to receive payment from Nextel for the Contract Price and any applicable taxes as described above in Section 4.1.1; this assignment is limited to Licensee's rights to (i) make a claim for any unpaid portion of the Contract price against the Letters of Credit that Nextel has obtained to secure its obligations to pay Relocation Funds and (ii) resolve disputes using the Transition Administrator's ADR procedures. If requested by Motorola, Licensee will execute necessary documents to effectuate this assignment provision and will take all such actions that are reasonable or necessary to promote the prompt payment by Nextel to Motorola. 4.2. INVOICING, PAYMENT MILESTONES, AND PAYMENT. 4.2.1. Invoicing. Motorola will submit correct invoices to Licensee, with a copy to Nextel, in accordance with the pre-approved payment milestones set forth as Attachment A. Licensee's contact person and address for invoice purposes are: Licensee may change this contact person or address by written notice to Motorola. Upon receipt of an invoice, Licensee will promptly (but in no event longer than ten (10) business days) inspect the invoice, verify whether it correctly states the payment Reconfiguration Planning Phase Services Agreement Rev.3.17.06 revision 3 165 milestone, and notify Nextel in writing (via facsimile or priority overnight carrier) that Licensee approves the invoice and accepts the milestone (the "Approval Notification"). Licensee will attach a copy of the invoice to the Approval Notification. When Licensee sends to Nextel the Approval Notification, Licensee will concurrently provide to Motorola's project manager a copy of the Approval Notification so that Motorola may know approximately when Nextel receives it. If for any reason Licensee disapproves the invoice, Licensee will promptly give written notice to both Motorola and Nextel; the notice will explain the reasons for Licensee's disapproval. Motorola will promptly correct any inaccurate invoice that Licensee disapproves, and resubmit the corrected invoice using the same process as described above in this paragraph. 4.2.2. Payment Due Date. Unless otherwise agreed between Nextel and Motorola, payment to Motorola for approved invoices is due from Nextel thirty (30) days from the date Nextel receives the Approval Notification from Licensee. Motorola's Federal Tax Identification Number is 36-1115800. 4.2.3. Mutual Cooperation. The Parties will cooperate with each other and provide to each other, and to ~extel and the Transition Administrator, such inforrpation (other than Confidential Information, which is governed by Section 9.1) as is reasonable or necessary to facilitate the prompt payment of the Contract Price to Motorola. Section 5 REPRESENTA nONS AND W ARRAN TlE S 5.1. RECONFIGURATION PLANNING PHASE SERVICES WARRANTY. For thirty (30) days from the completion of the Planning Phase Services (the "Warranty Period"), Motorola warrants that these services were performed in a good and workmanlike manner. In the event that Motorola receives all or majority of the implementation services identified in the Planning Phase, the Warranty Period for Motorola's Planning Phase Services shall be extendcd so that it is conterminous Motorola's warranty for its implementation services. This services warranty does not cover any services or duties performed or owed by Nextel, Licensee, or any other contractor hired by them. Motorola warrants that Licensee's System, to the extent provided by Motorola, will be Comparable Facilities after the reconfiguration work is completed. 5.2. WARRANTY CLAIMS. To assert a warranty claim, Licensee must notify Motorola in writing of the claim before the date which is thirty (30) calendar days after the expiration of the applicable Warranty Period. Upon timely receipt of this notice, Motorola will investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at no additional charge to Licensee) re-perform the Reconfiguration Planning Phase services.. . Where additional work, not otherwise covered by an existing Motorola warranty, Licensee and Motorola shall negotiate and execute a Change Order to this Agreement, which shall become effective upon approval by Nextel and the Transition Administrator, and Licensee shall file a claim for reimbursement against the Relocation Funds and will pay to Motorola any invoice amounts for which it receives reimbursement. Pursuant to the change order. 5.3. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original end uscr and are not assignable or transferable except to any lawful successor in interest. 5.4. POTENTIAL DAMAGE TO EXISTING EQUIPMENT. Licensee acknowledges th.at Motorola, Licensee's employees, or others might cause damage to equipment that is part of Licensee's System when performing the Reconfiguration Planning Phase Services, and that such damage may occur in the absence of negligence by any party. Motorola is solely responsible for any and all damage to equipment caused by or arising from the actions of Motorola, its employees or subcontractors.. Motorola at its option will repair or replace the damaged equipment or refund its fair market value to Licensee.. Where Motorola will incur a cost outside of existing warranty and maintenance agreements, Licensee will cooperate with Motorola to execute a Change Order and submit a claim for reimbursement against the Relocation Funds. Before Licensee asserts a damage claim against Motorola under this section, it will frrst investigate the cause of the damage and the investigation must result in adequate proof that the damage was caused by the actions of Motorola, its employees or subcontractors. . This provision does not diminish any rights Licensee might have under any pre-existing Motorola warranty or maintenance agreement. 5.5. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE C0I'..fPLETE WARRANTIES FOR THE RECONFIGURATION PLANNING PHASE SERVICES PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. EXCEPT FOR THE Reconfiguration Planning Phase Services Agreement Rev.3.17.06 revision 4 166 FOREGOING WARRANTIES, THE SERVICES ARE PROVTDED "AS IS" AND MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE IS RESPONSIBLE FOR, AND MOTOROLA MAKES NO WARRANTY CONCERNING, THE BACK-UP AND DISASTER RECOVERY PROCEDURES, FACILITIES AND EQUIPMENT, OR DATA ENTRY AND LOADING. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. Section 6 DISPUTES The Parties, through their respective project managers, will attempt to settle any dispute arising from this Agreement (except for a claim relating to intellectual property or breach of confidentiality provisions) through consultation and good faith negotiation. The dispute will be escalated to appropriate higher level managers of the Parties, if necessary. In the event the parties do not resolve a dispute, either party may require submission of the dispute to mediation in thirty (30) days after written notice is served on the other party. In the event the arties do not resolve the matter in mediation, both parties will submit the matter to the Transition Administrator or if not within the jurisdiction of the Transition Administrator to binding arbitration to be heard by three (3) arbitrators qualified by and subject to the American Arbitration Association. Any mediation or arbitration pursuant to this section shall occur in Miami-Dade County, FL Section 7 DEFAULT Al'ID TERMINATION If a Party fails to perform a material obligation under this Agreement, the other Party may consider the non- perfonning Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written and detailed notice of default. The defaulting Party will have thirty (30) days after receipt of the notice of default to either cure the default or, if the default is not curable within thirty (30) days, to provide a written cure plan. The defaulting Party will begin implementing the CUTe plan immediately after receipt of notice by the other Party that it approves the cure plan. If a defaulting Party fails to cure the default, unless otherwise agreed in writing, the non-defaulting Party shall submit the dispute to mediation and if necessary to arbitration as set forth in Section 6 above. The non-defaulting Party will mitigate damages. Section 8 LIMITATION OF LIABILITY Licensee acknowledges that the limitations in this Section are integral to the Contract Price being charged by Motorola under this Agreement, and that if Motorola assumed further liability other than as set forth in this Section 8, the Contract Price would be substantially higher. This limitation of liability provision applies notwithstanding any contrary provision in this Agreement. Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, contribution, or otherwise, will be limited to the direct damages incurred by Licensee and recoverable under law, but not to exceed the Contract Price. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIDILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA (AND rrs SUBCONTRACTORS AND SUPPLIERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES) WILL NOT BE LIABLE TO LICENSEE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS, OPPORTUNITIES OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION), THE SALE OR USE OF PRODUCTS, EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. ALL CLAIMS BY A PARTY AGAINST ANOTHER PARlY WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWlSE, MUST BE BROUGHT WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES. Section 9 CONFIDENTIALITY AND PROPRIETARY RIGHTS 9.1. CONFIDENTIAL INFORMA TIaN. During the term of this Agreement, the Parties may provide Confidential Information to each other. Any inventory report or Customer Suitability Assessment report concerning Licensee's System, and any other document conceming the reconfiguration of Licensee's System that Motorola prepares specifically for and is a promised deliverable to Licensee under this Agreement (collectively, Reconliguratlon Planning Phase Services Agreement Rev.3.17.06 revision 5 167 "Documentary Deliverable") shall be the Confidential Information of Licensee unless otherwise agreed by the Parties in writing or unless any or all such Confidential Information is deemed not exempt from disclosure under Florida Public Records law. 9.1.1. Non-Disclosure. Consistent with applicable law, each Party will: maintain the confidentiality of the other Party's Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing Of as required by a court of competent jurisdiction, the FCC or the Transition Administrator; restrict disclosure of Confidential Information to its employees who have a "need to know" and not copy or reproduce the Confidential Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential Information, including informing its employees who have access to it that it is confidential and not to be disclosed to others, but those precautions will be at least the same degree of care that the receiving Party applies to its own confidential information and will not be less than reasonable care. The confidentiality restrictions and obligations contained herein shall be in addition to any confidentiality restrictions or obligations contained in any othef agreement (whether prior to, contemporaneous or subsequent to the date of this Agreement) between Motorola on the one hand and the TA, Nextel or Licensee on the other hand, as well any protective order or confidentiality restrictions or rules issued by the FCC or the TA. . 9.1.2. Use. Unless otherwise provided in this Agreement, a Party may use the Confidential Information of the other Party only in furtherance of the performance of this Agreement or any other agreement between the Parties. Notwithstanding the preceding sentence, Motorola may use the information in any Documentary Deliverable for its own business purposes or to assist Licensee or its other contractors or consultants in the overall effort to plan and reconfigure Licensee's System. Except for a Documentary Deliverable, Confidential Information is and will at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the Confidential Information is hereby given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement or any other agreement betweentJie Parties or as required by applicable Jaw, the FCC or the Transition Administrator. 9.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola owns and retains all of its Proprietary Rights, and nothing in this Agreement is intended to restrict its Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Licensee the services remain vested exclusively in Motorola, and this Agreement does not grant to Licensee any shared development rights of intellectual property. This Agreement does not involve the license of any software. Section 10 GENERAL 10.1 ASSIGNABILITY AND SUBCONTRACTING; WAIVER. No Party may assign this Agreement without the prior written consent of the other Party. Motorola may subcontract part of the work" provided the company provides to the City a list of subcontractors sufficiently in advance of the start of work to allow the City to perform security and background checks. The City reserves the right to deny access to any subcontractor. Subcontracting will not relieve Motorola of its duties under this Agreement. Failure or delay by a Party to exercise a right or power under this Agreement will not be a waiver of the right or power. An effective waiver of a right or power must be in writing signed by the waiving Party and will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. 10.2 INDEPENDENT CONTRACTORS. Each Party is an independent contractor with respect to the other Party, and a Party and its personnel will not be considered to be employees or agents of the other. Nothing in this Agreement grants a Party the right or authority to make commitments of any kind for the other Party. This Agreement will not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. 10.3 INTERPRETATION OF AGREEMENT. This Agreement, including any attachments, constitutes the entire agreement of the Parties regarding the subject matter of this Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to that subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of the Parties. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement and any change orders executed by the parties and approved by the Transition Administrator takes precedence over any attachments or Reconfiguratlon Planning Phase Services Agreement Rev.3.17.06 revision 6 168 administrative forms or documents. Section headings in this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. This Agreement is an arm's length transaction and will be fairly interpreted in accordance with its terms and conditions and not for or against a Party. If a court of competent jurisdiction renders any part of this Agreement to be invalid or otherwise unenforceable, it will be severed and the remainder of this Agreement will continue in full force and effect as if the invalid part was not part of this Agreement. This Agreement and the rights and duties of the parties will be governed by and interpreted in accordance with the laws of the State of Florida without regard to its Conflicts of Laws provisions. 10.4. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Licensee will obtain and comply with all FCC licenses and authorizations required for the' installation, operation and use of the System. 10.5. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. Each ,Party represents that it is fully aware of the terms contained in this Agreement and has voluntarily entered into this Agreement, having had a full and fair opportunity to seek the advice of counsel and other professionals or consultants as its considers necessary. This Agreement may be executed in separate counterparts, which together constitute a single agreement. 10.6. Motorola hereby represents that the provisions of Section 5.4, 5.5 and Section 8 as incorporated in this Agreement are mandatory provisions in each and every Reconfiguration Planning Phase Agreement the company has or will enter into with any government licensee and acknowledges that said representation is a material inducement to the City to enter in to this Agreement In the event Motorola enters into an Agreement with a government licensee which includes additions, deletions or modifications to the subject of said provisions, Motorola shaH so advise the City and at the City's option the parties will amend this Agreement to replace the existing Section 5.5 or Section 8 with the added, deleted or modified language. 10.7. SURVIVAL OF TERMS. The following provisions survive the expiration or termination of this Agreement for any reason: if any payment obligations exist, all of Section 4 (Contract Price, Payment and Invoicing);Section (Representations and Warranties); Section 6 (Disputes); Section 8 (Limitation of Liability); and Section 9 nfi e tiali and Proprietary Rights); and all of the General provisions in Section 10. er into this Agreement as of the Effective Date. Motorola BY~~ Name: " Title: C;;;' ~& Date: q - (p _() " N extcl Assigned Deal Number: DL ~ q oLJI./ I q;) I , A-r~1 r~ Ct~ Uu.k APPROVED AS TO FORM & LANGUAGE &FOR CUnON " , 1 ;- o~ 7 Reconfiguration Planning Phase Services Agreement Rev.3.17.06 revision / ;' ( 169 Attachment A Nextel-Motorola Pre-approved Payment Milestone Schedule Depending on the Contract Price set forth in Section 4.1.1, the following payment milestones apply: 1. Contract Price < $300,000 Mobilization 50% Complete Planning Activities 50% 2. Contract Price $300,000 and above Mobilization 40% Complete Suitability Assessment 40% Complete Plalming Activities 20% WRFMAIN 124779953 Reconfiguration Planning Phase Services Agreement Rev.3.17.06 revision 8 170