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taw oFFices MOSKOWITZ, MANDELL, SALIM & SIMOWITZ, P.A. MICHAEL MosKowrT2"! BROWARD (954) 401-2000 Scovre simawirz" Boca RATON (801) 760-7700 hare J waNoELt TELECOPIER (ese) 498-2054 WICLIAN 6. SALI oR.e+ EMAIL mnesgnmastaw com O00 A ARMBRUSTER Racher L SiMOWITZ SHIRLEY D. WEISMAN, PA Aap forego sulneosees ‘CERTIFIED ciRcUIT COURT MEDIATOR December 8, 2016 VIA E-MAIL AND HAND-DELIVERY Ms, Brenda J. Billingsley, Director Broward County Purchasing Division 115 S. Andrews Avenue, Rm. 212 Fort Lauderdale, FL 33301 Re: Harris Corporation’s Protest Letter Pertaining to Proposed Recommendation of Award on Broward County Solicitation #R1422515P1, Public Safety Radio APCO Project 25 700 MHz Communication System Dear Ms. Billingsley: On behalf of our client, Harris Corporation (“Harris”), we hereby submit Harris's protest letter objecting to the Proposed Recommendation for Award (the “Proposed Recommendation”) posted on December 1, 2016 in connection with Broward County's (the “County”) Solicitation #R1422515P1, Public Safety Radio APCO Project 25 700 MHz Communication System (the “Solicitation”). This protest is timely submitted within five (5) days of the Proposed Recommendation pursuant to Section 21.118..2. of the Broward County Procurement Code (the “Code”), and Section S of the Standard Instructions for Vendors, in order to raise certain issues regarding the Solicitation, the evaluation of the proposals submitted in response thereto and the Proposed Recommendation. Enclosed herewith you will find Legacy Bank Cashier's Check Number 014337 in the amount of $5,000.00 made payable to the Broward County Board of County Commissioners in payment of the filing fee required by the Code, Section 21.118.a6., and Section S.6. of the Standard Instructions for Vendors of the Solicitation. This protest focuses on what Harris believes is unfair, incomplete and/or inaccurate information submitted by the Proposed Recommendation’s recommended vendor, Motorola Solutions, Inc. Motorola”), as well as new information as to the same, which should be considered in evaluating the responsiveness, responsibility and/or qualifications of Motorola, Rejecting December 8, 2016 Page 2 Motorola’s Proposal as non-responsive, and Motorola as non-responsible, in light of its failure to comply with the requirements of the Solicitation is warranted. Allowing Motorola to negotiate and change its proposal after submission, and before actual award and contract negotiations, also provided a competitive advantage in violation of the Solicitation’s requirements, The Proposed Recommendation should accordingly be rescinded, and a new proposed recommended award issued to Harris, This will also save the County and its residents $4 million dollars over the term. of the contract while providing a technologically superior Harris P25 Public Radio System. ‘The grounds for this protest include, but are not limited to, the following: 1, The Motorola “Materia!” Litigation Disclosure is Incomplete and Inaccurate The Code, the Solicitation and general competitive bidding law require that proposals submitted be accurate and complete. This insures that all proposals are fairly evaluated and prevents after the fact changes once the proposals are opened, Yet, Motorola’s Litigation Disclosure is misleading, if not incomplete and inaccurate. Specifically, the Solicitation, Special Instructions to Vendors, Section B, Responsibility Criteria, sets forth certain required information for a vendor to be responsive to the Solicitation, “Failure to provide any of this required information and in the manner required may result in a recommendation by the Director of Purchasing that the Vendor is non-responsive.” Subsection thereof, entitled Litigation History,” provides as follows: a. All Vendors are required to disclose to the County all "material" cases filed, pending, or resolved during the last three (3) years prior to the solicitation response due date, whether such cases were brought by or against the Vendor, any parent or subsidiary of the Vendor, or any predecessor organization. A case is considered to be "material" if it relates, in whole or in part, to any of the following: i, A similar type of work that the vendor is seeking to perform for the County under the current solicitation; ii, Anallegation of negligence, error or omissions, or malpractice against the vendor or any of its principals or agents who would be performing work under the current solicitation; A vendor's default, termination, suspension, failure to perform, or improper performance in connection with any contract; iv. The financial condition of the vendor, including any bankruptcy petition (voluntary and involuntary) or receivership; or y. A criminal proceeding or hearing concerning business-related offenses in which the vendor or its principals (including officers) were/are defendant. December 8, 2016 Page 3 b. For each material case, the Vendor is required to provide all identified on the Litigation History Form ¢. The County will consider a Vendor's litigation history information in its review and determination of responsibility If the Vendor is a joint venture, the information provided should encompass the joint venture and each of the entities forming the joint venture, eA Vendor is also required to disclose to the County any and all ease(s) that exist between the County and any of the Vendor's subcontractors/subconsultants proposed to work on this project, f Failure to disclose any material case, or to provide all requested information in. connection with each such case, may result in the Vendor being deemed non- The required “Litigation History Form” is attached hereto as Exhibit “A.” Motorola’s response to this Solicitation requirement is contained on page 1242 of its 1583 page proposal (the “Proposal”), and its Litigation History Form at page 1571 of 1583, both of which are attached hereto as Composite Exhibit “B.” Page 1242 provides “Additional Information” regarding the Litigation History Form, and clearly altempts to avoid the question by referring to Motorola's large size and “many civil lawsuits,” and inability to maintain a “detailed history of such cases.” It then adds a link to its December 31, 2015 Form 10-K filed with the Sceurities and Exchange Commission (“SEC”), even though the Solicitation response deadline was, and its Proposal dated, August 17, 2016, That Form 10-K, in Part I, Item 3, entitled “Legal Proceedings,” vaguely states: We are a defendant in various lawsuits, claims, and actions, which arise in the normal course of business. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on our consolidated financial position, liquidity, or results of operations. However, an unfavorable resolution could have a material adverse effect on our consolidated financial position, liquidity, or results of operations in the periods in which matters are ultimately resolved, or in the periods in which more information is obtained that changes management's opinion of the ultimate disposition. Motorola’s Proposal concludes its additional litigation information with the following note: Note: Motorola Solutions has reviewed the list of approximately fifty lawsuits that were searched by Broward County and Motorola Solutions advises that such lawsuits are immaterial to the work and products involved in this solicitation because the lawsuits either involve Motorola Mobility, another cell phone company now; labor cases; discontinued businesses; dismissed suits, or December 8, 2016 Page 4 involved asbestos-related cases. Specifically, the Gomez case is about the garnishment of an employee’s wages. [Emphasis added] Finally, on the required “Litigation History Form,” Motorola then checks the box stating “There are no material cases for this Vendor.” [Emphasis added]. Clearly Motorola's litigation disclosures are vague and suggest merely that it is subject to many suits, none of which are material or related to the services to be provided under the Solicitation, Motorola's disclosure and response are, quite simply, false in light of the Solicitation’s definition of “material” quoted above. Not only does that definition include potential adverse financial effect, but also where such litigation involves “similar type of work” as the Solicitation or “allegations of negligence, error or omissions, or malpractice” against the vendor. Size, financial wealth, or number of employees or shareholders, are irrelevant to the latter inquiries. Yet, Motorola is in fact subject to several lawsuits that are “material” as defined in the Solicitation. A quick public records search reveals the following “material” litigation which is pending, let alone filed and resolved, against Motorola: a Erika Smith, as Personal Representative of the Estate of Christopher Smith, jeceased v. Motorola Solutions, Inc., et al., Case No, 37 2015 CA 002884, pending in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, A copy of the Complaint filed in the aforesaid case on December 4, 2015 is attached hereto as Exhibit “C.” That Complaint alleges that the Motorola “PremierOne CAD System” was misrepresented to the City of Tallahassee, Leon County and the Leon County Sheriff's Office as an upgraded system to avoid competitive bidding requirements, and that after acquisition, it repeatedly failed. The Complaint alleges that, as a result, Deputy Christopher Smith was murdered when the system allegedly failed and a hazard waming was not relayed to responding officers. The Complaint includes claims for strict tort liability and negligence against Motorola. Given the substantive allegations of the Complaint, and the fact that a police officer was killed as a result of the alleged failure, clearly this pending lawsuit was “material” as defined by the Solicitation. Yet, Motorola failed to disclose it, and instead misled the County and its Evaluation Committee by stating its “lawsuits either involve Motorola Mobility, another cell phone company now; labor cases; discontinued businesses; dismissed suits, or involved asbestos-related cases.” This pending wrongful death case is extremely material and reflects that the Motorola statement that “there are no material cases” was patently false. This suit was pending as of August 17, 2016 and remains pending to date. It should have been disclosed. b. Sabina Bebce. individually and on behalf of the Estate of Robert Bebee, deceased, etal. v, Motorola Solutions, Inc.. et al., Case No. 2016-08066 (Court 11), file the District Court of Harris County, Texas, removed to the United States District Court for the Southern District of Texas, Case No. 4:16-cv-00763. December 8, 2016 Page 5 A copy of the Original Petition filed in the aforesaid case on February 8, 2016 is attached hereto as Exhibit “D.” The case was subsequently removed to the federal court on March 23, 2016 and remains pending, That Petition alleges that Motorola provided the City of Houston, for use by the Houston Fire Department, a $140,000,000 APX 7000 digital radio system that was defective and failed repeatedly, allegedly resulting in the death of three Houston firefighters and severe injury to a fourth in the “Southwest Inn” fire, The Petition alleges numerous examples of failures and defects in the radio system that contributed to the wrongful death of the firefighters. The Petition includes claims for design, marketing and product defects, negligence, agency and respondeat superior, gross negligence and breach of warranty. Compensatory damages in excess ‘of $1,000,000 per plaintiff, and punitive damages in excess of $5,000,000 per plaintiff, are sought. Given the substantive allegations of the Petition, and the fact that several firefighters were killed or severely injured, this pending lawsuit was clearly “material” as defined by the Solicitation. Yet, Motorola failed to disclose it, and instead misled the County and its Evaluation Committee by stating its “lawsuits either involve Motorola Mobility, another cell phone company now; labor cases; discontinued businesses; dismissed suits, or involved asbestos-related cases.” This pending wrongful death case is extremely material and reflects that the Motorola statement that “there are no material cases” was patently false. This suit was pending as of August 17, 2016 and remains pending to date. It should have been disclosed. ¢. Anthony Treg Livesay, et al. v. Motorola Solutions, Inc., et al,, Case No. 2015+ 31080 (Court 125), filed in the District Court of Harris County, Texas, ‘A copy of the Petition filed in the aforesaid case on May 29, 2015 is attached hereto as Exhibit “E.” This case arises out of the Southwest Inn fire which is the subject of the Bebee case discussed above, Substantially similar claims and allegations are asserted on behalf of the injured firefighters in this case, including compensatory damages in excess of $1,000,000 per plaintiff, and punitive damages in excess of $4,000,000 per plaintiff. The Petition includes claims for product defects, negligence, and gross negligence, Given the substantive allegations of the Petition, and the fact that several firefighters were killed or severely injured, this pending Jawsuit was clearly “material” as defined by the Solicitation, Yet, Motorola failed to disclose it, and instead misled the County and its Evaluation Committee by stating its “lawsuits either involve Motorola Mobility, another cell phone company now; labor cases; discontinued businesses; dismissed suits, or involved asbestos-related cases.” ‘This pending wrongful death case is extremely material and reflects that the Motorola statement that “there are no material cases” was patently false. This suit was pending as of August 17, 2016 and remains pending to date. It should have been disclosed. ‘The Solicitation’s Vendor Questionnaire Form concludes as follows: As the Vendor's authorized representative, 1 attest that any and all statements, oral, written or otherwise, made in support of the Vendor's response, are accurate, true and correct. I also acknowledge that inaccurate, untruthful or incorrect statements made in support of the Vendor's response may be used by the County as a basis for rejection, rescission of the award, or termination of the contract and December 8, 2016 Page 6 may also serve as the basis for debarment of Vendor pursuant to Section 21.119 of the Broward County Procurement Code. Clearly, Motorola's litigation disclosures and Litigation History Form are misleading, incomplete and quite simply, false. It failed to disclose material litigation, as defined by the clear and unambiguous language of the Solicitation, because it involved the same or substantially similar radio systems as sought under the Solicitation and which allegedly resulted in death and severe injury to police officers and firefighters. As a result, Motorola should have been found non-responsive and/or non-responsible, and its Proposal rejected. The Code, Section 21.41.a., provides the Director of Purchasing the right to determine the responsibility of a bidder. Section 21.41.c. further provides: The awarding authority may consider any unresolved concem regarding an offeror, including a bidder or proposer, prior to making an award. At any time prior to award, the awarding authority may find that an offeror is not responsible to receive a particular award. The awarding authority may consider the following factors, without limitation: debarment or removal from the authorized vendors list or a final decree, declaration or order by a court or administrative hearing officer or tribunal of competent jurisdiction that the offeror has breached or failed to perform a contract, claims history of the offeror, performance history on a County contract(s), an unresolved concern, or any other cause under this Code and Florida Jaw for evaluating the responsibility of an offeror. At the September 30, 2016 meeting of the Evaluation Committee, the following statement regarding litigation was made at 17:49: And just for the benefit of all the other (unintelligible) who may not know, because we rely on the proposers to disclose materiality or not, if for some reason down the road a company prevailed and we were to find out that there was a case out there that was material we would take such actions as much as even dismissing or terminating the contract if it was that much of an impact. So that’s why we have to rely on their forthright. ‘The Summary Meeting Minutes of that meeting reflect the following discussion related to the litigation disclosure component of the responsiveness criteria: Ms. Monica Cepero requested that the representatives of the County Attorney's Office (CAO) advise if there was anything related to disclosed or undisclosed material cases that brought up any concer by the CAO. Ms. Rene Harrod clarified that there was one case deemed material by Harris; however, there were no material cases that were undisclosed. Ms. Harrod continued that the CAO does not typically do an analysis of this information, The CAO provides proposers with the types of cases that are considered material or not material, and then the onus is on the proposers to report appropriately. There is recourse for the County if any December 8, 2016 Page 7 material cases were discovered in the future that were not previously disclosed, including cancellation of the firm’s contract. A “responsible bidder” is generally defined as one who has the capability in all respects to perform fully the contract requirements, and the integrity and reliability which will assure good faith performance.” Under the Solicitation, Code and general Florida law, the County had to consider the responsibility and responsiveness of Motorola's proposel. Although Florida case law is clear that there is a substantial public interest in favor of saving tax dollars in awarding public contracts, it is equally clear that it cannot be done at the expense of the competitive bidding process. See, Intercontinental Properties, Inc. v. State of Florida Department of Health and Rehabilitative Services, 606 So.2d 380, 386 (Fla. 3d DCA 1992); Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc, 354 So.2d 446, 449 (Fla. 1® DCA 1978). The law is clear, even in the context of requests for proposals, that a public body is not entitled to omit or alter material provisions required by the RFP because in doing so the public body fails to “inspire public confidence in the faimess of the RFP process.” Emerald Comectional Management v. Bay County Board of County Commissioners, 955 So.2d 647 (Fla. 1* DCA 2007), citing, State, Department of Lottery v. Gtech Corp., 816 So.2d 648 (Fla. 1" DCA 2001) The following discussion of applicable law is taken from the Recommended Order entered April 4, 2012 in Pro Tech Monitoring, Inc. v. Department of Corrections, Case No. 11-5794BID, State of Florida Divisions of Administrative Hearings. Therein, the Administrative Hearing Officer recommended that the contract issued in response to an RFP for global positioning satellite electronic monitoring service be awarded to Pro Tech as the highest scoring responsive vendor, and throwing out a proposed award to BI Incorporated, on the grounds that BI's proposal contained material deviations from the RFP, generally involving the failure to provide relevant, material and required information in response to the unambiguous instructions of the RFP, thereby obtaining a competitive advantage over other vendors, Such deviations were not minor irregularities, and could not be ignored by the agency. The law cited below is equally applicable to the circumstances presented herein, and requires @ determination that consideration of the Motorola proposal, despite its material exceptions to the Solicitation and Agreement required thereby, was inappropriate, and the further process of allowing Motorola to modify its proposal to eliminate those exceptions provided a clear competitive advantage, An act is “contrary to competition” which have been long held: f it runs contrary to the objectives of competitive bidding, to protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the [public] at the lowest possible expense ... December 8, 2016 Page 8 Wester v, Belote, 138 So.2d 721, 723-24 (Fla. 1931); see also, Harry Pepper & Assoc., Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 3d DCA 1977). In that regard, public officials do not have the power “to make exceptions, releases and modifications in the contract after it is let, which will afford opportunities for favoritism, whether any such favoritism is practiced or not.” Wester v, Belote, at 724. ‘The public policy regarding exceptions and releases in contracts applies with equal force to the contract procurement, Section 287.001 establishes the legislative intent that public procurement be intrinsically fair and ‘open, and that it also eliminate the appearance and opportunity for favoritism so as to preserve public confidence in the process, and provides that The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which commodities and contractual services are procured. That legislative intent has been applied to determine whether an action is contrary to competition as follows: Thus, from Section 287.001 can be derived an articulable standard of review. Actions that are contrary to competition include those which: {@) create the appearance of and opportunity for favoritism; (b) erode public confidence that contracts are awarded ‘equitably and economically; (©) cause the procurement process to be genuinely unfair or unreasonably exclusive; or (dare unethical, dishonest, illegal, or fraudulent. Syslogic Tech, Servs., Inc. v. So. Fla. Water Mgint. Dist., Case No, 01-4385BID (Fla. DOAH Jan 18, 2002; SFWMD Mar. 6, 2002). As to the ability of an agency to overlook items in a proposal that clearly meet the definition of a “material deviation” from its written specifications, itis clear that “a public body is not entitled to omit or alter material provisions required by the RFP because in doing so the public body fails to ‘inspire public confidence in the faimess of the [REP] process,” (Emphasis in original), Emerald Corr Memt._v. Bay Cty. Bd. Of Cty. Comm'rs, 955 So.2d 647, 652 (Fla. 1° DCA 2007), (citing Dep't of Lottery v. Gtech Corp., 816 So.2d 648, 651 (Fla. 1* DCA 2001)). December 8, 2016 Page 9 Every deviation from the RFP is not material and does not mandate rejection of the proposal. The agency reserved the right to waive minor irregularities. ‘The standard for determining whether a variance is a material deviation or a minor irregularity is as follows: “Although a bid containing a material variance is unacceptable, not every deviation from the invitation is material.” Robinson Elec. Co, v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982); Tropabest Foods, Inc. v. State. Dep't of Gen. Servs., 493 So.2d 50, 52 (Fla. 1* DCA 1986) (citation omitted); Glatstein x. Miami, 399 So.2d 1005 (Fla. 3d DCA 1981), review denied, 407 So.2d 1102 (Fla, 1981). “It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition.” Tropabest, 493 So.2d at 52; Harry Pepper & Assocs., Inc. v. City of Cape Coral, 352 So.2d 1190, 1193 (Fla. 2d DCA 1977). Procacci Commer. Realty v. Dep’t of HRS, 690 So.2d 603, 606 (Fla. I DCA 1997). ‘The unfair bidding advantage that is conferred on a bidder who fails to provide necessary and required information is generally threefold: (1) it_provides the precious few minutes which may be saved by failing to provide a name for the appropriate blank on form D-1 and matching the name with the price used in the bid computation, (2) it allows the potential for speculation, by use of a phantom price and efforts to shop that item or trade until a subcontractor can be found at the speculative contract price, and @) its permits a successful bidder to accept additional subcontractor bids after the bid opening, giving the opportunity for undercutting the low subcontractor on whom he relied in formulating his bid. (Emphasis added). E.M. Watkins & Co. v. Bd. Of Regents, 414 So.2d 583, 587 (Fla. I DCA 1982), The competitive advantage that is conferred on a proposer when an ageney chooses to ignore a clear and unambiguous requirement that is applicable to all other potential vendors has been described as follows: 59, The touchstone of these tests for materiality-substantial advantage—is an elusive concept, to say the least, easier to state than to apply. Obviously, waiving any defect that might disqualify an otherwise winning bid gives the beneficiary of the waiver an advantage or benefit over the other bidders. In practice, differentiating between, on the one hand, “fair” advantages — i.e. those that are tolerable because they do not defeat the object and integrity of the competitive procurement process ~ and “unfair” (or intolerable) advantages, on the other, is exceptionally difficult; and, making matters worse, there are not (as far as the undersigned is aware) many generally recognized, consistently applied, neutral principles available for the decision-maker’s use in drawing the distinction between a “substantial” advantage and a “mere” advantage, December 8, 2016 Page 10 60. _ That said, the undersigned believes that a bidder’s noncompliance with a specification which was designed to winnow the field — especially one which prescribes particular characteristics that the successful bidder must possess — should rarely, if ever, be waived as immaterial. This is because such a provision acts as a bartier to access into the competition, potentially discouraging some would-be participants, namely those who lack a required characteristic, from submitting a bid, Phil's Expert Tree Service v. Broward Co. Sch. Bd,, Case No, 06-4499BID at 29-30 (Fla, DOAH Mar. 19, 2007; BCSB June 11, 2007); see also, Syslogic Technology Servs. Inc. v. So. Fla. Water Mgmt, Dist., Case No. 01-4385BID at 63, n.23 (Fla, DOAH Jan 18, 2002; SEWMD Mar. 6, 2002) (“OF course, it will usually not be known how many, if any, potential proposers were dissuaded from submitting a proposal because of one project specification or another. That is why specifications that have the capacity to act as a barrier to access into the competition .. should generally be considered material and non-waivable for that reason.”). As in Pro Tech Monitoring, supra, Motorola’s failure to provide the required Litigation History Form as to each undisclosed material litigation, and allowing modification of its Proposal to eliminate numerous exceptions, clearly bestowed a competitive advantage. In prior procurements, the County has specifically found that such omissions go to the heart of a vendor's responsiveness and diligence. In your January 27, 2015 letter determining the bid protest with respect to County Bid No. T1247309B1 ~ Temporary Debris Management Site Services [the “ITB"], a copy of which letter is attached as Exhibit “F” for your convenience, you rescinded a proposed recommendation for award to DRC Emergeney Services, LLC (“DRC”) for imilar omissions. In light of DRC’s failure to disclose certain officer affiliations and debarments, you determined that its bid submittal was untruthful and inaccurate, finding” The actions of DRC are taken seriously by Broward County, especially since the services to be provided under this contract will protect the residents and businesses of Broward County. In addition, the federal ineligibility was for a contract similar in scope to the [ITB], in which DRC provided post-disaster services. DRC’s failure to correctly respond to Question No. 19 is dishonest, contrary to acceptable business practices and cannot be ignored, Similarly here, the Solicitation and Agreement to be awarded pursuant thereto will protect the residents and businesses of Broward County. The litigation which it failed to disclose all relates to the same or substantially similar public radio safety systems as is the subject of this Solicitation. By failing to disclose these cases, Motorola deprived the Evaluation Committee of the extremely important opportunity to ask questions and gather more information about these cases and the alleged system failures which allegedly took the lives of first responders. There is little doubt that these events would have had meaningful impact on the scoring of the Evaluation Committee, particularly the 15 points assigned to “Past Performance.” Motorola's failure to correctly respond to the Solicitation’s litigation history requirements is misleading, contrary to December 8, 2016 Page 11 acceptable business practices and cannot be ignored. It is clear that the Motorola's Proposal is inaccurate, untruthful and incorrect and, as with DRC, that such Proposal should be rejected and the proposed recommendation of award rescinded. Since Motorola is not a responsive or responsible vendor, the Motorola Proposal should be rejected altogether and Harris recommended as the recommended vendor on the Solicitation. 2, Motorola Included Substantial Exceptions to the County's Agreement As part of Staff's review of the Motorola and Harris proposals submitted, a spreadsheet entitled Terms and Conditions Exceptions Review was prepared and provided to the Evaluation Committee. A copy of such Terms and Exceptions Review is attached hereto as Exhibit "G.” Those exceptions relate to the County's prescribed Agreement attached to the Solicitation and which the selected vendor is expected to sign, Harris took NO exceptions to that Agreement. On the other hand, Motorola asserted 33 separate exceptions, sixteen (16) of which Staff originally determined to be negotiable, and seventeen (17) non-negotiable which Staff recommended be rejected, as reflected on Exhibit “G.” Notwithstanding, at the November 30, 2016 Evaluation Committee meeting, Motorola was allowed to change its Proposal submission. Specifically, for nearly one hour of the meeting, County Staff, including the Project Manager and Assistant County Attomey, proceeded through the exceptions and allowed Motorola to explain its position, and in thirteen cases, waive its exceptions. In four cases, the County elected to negotiate a solution with Motorola. In some cases, Motorola was provided an opportunity to contact its representatives located in Illinois and elsewhere, and not present at the Evaluation Committee meeting, to determine whether it would waive certain insurance and indemnity exceptions, and report back to the Committee after the Harris presentation. As reflected in the section in this letter entitled “Sunshine Law Violation” below, those negotiations included private communications between Motorola and County Staff outside the presence of the Evaluation Committee and Harris, The County's methodology for handling one competitor's 33 exceptions in comparison to the other vendor who took no exceptions is arbitrary and inconsistent with the County's instructions and evaluation procedures, The Standard Instructions for Vendors, Section J, allow the Evaluation Committee to ask questions as follows: At any committee meeting, the Selection or Evaluation Committee members may ask questions, request clarification, or require additional information of any Vendor's submittal or proposal. It is highly recommended Vendors attend to answer any committee questions (if requested) including a representative of the Vendor that has the authority to bind. Despite this provision for the Evaluation Committee to ask questions, there is no provision that allows Staff to solicit Motorola to change its Proposal submission before Evaluation Committee review and scoring. After the fact and having had an opportunity to review the Harris Proposal and see that it took NO exceptions, Motorola was provided an opportunity to materially alter it submission. That opportunity bestowed a clear competitive advantage on Motorola, as the December 8, 2016 Page 12 Standard Instructions for Vendors, Section D, specifically note that the “acceptance of any exceptions taken to the terms and conditions of the County's Agreement shall be considered a part of a Vendor's submittal and will be considered by the Selection or Evaluation Committee.” Further, the Evaluation Committee will consider exceptions in its deliberation and scoring of the proposals, and exceptions will be “viewed unfavorably” and “ultimately may impact the overall evaluation of a Vendor's submittal.” Allowing Motorola to change its Proposal after the submission deadline, and before scoring, provided a clear competitive advantage. If anything, the negotiation of any exceptions should have occurred after scoring and a proposed recommendation of award, during actual contract negotiations. The legal authorities and reasoning set forth in Section 1 above are equally applicable here. The exceptions were material and Motorola should not have been permitted to alter its Proposal after the fact. The exception modifications were not in fact “clarifications”, but rather, material changes to Motorola’s Proposal that provided a competitive advantage. The law is clear that allowing changes subsequent to response opening provides a clear competitive advantage and ‘cannot be sustained. Proceeding with such modifications subsequent to response opening and public display is clearly anti-competitive. Any other methodology is clearly at odds with applicable law and is not going to inspire any public confidence in the fairness of the competitive process. Since Motorola’s exceptions were allowed to be waived after Proposal submission, in a manner entirely inconsistent with the Solicitation’s provisions, it is not appropriate, is contrary to competition, provides an undue and unfair competitive advantage, and renders the Motorola proposal non-responsive. Motorola, the Incumbent Vendor, Could Not Satisfy Demonstration Requirements As part of the Solicitation’s demonstration requirements, both vendors were required to demonstrate their proposed systems in use. The Special Instructions 10 Vendors, Section D., provides: Applies to this solicitation. The portions of the demonstration addressing field testing for both fire rescue and law enforcement will be videotaped for the use of the Evaluation Committee. See Demonstration Requirements attachment, At the discretion of the Evaluation Committee, a subsequent demonstration by the vendors may be required Refer to Standard Instructions to Vendors for Additional Information, The Solicitation’s Demonstration Requirements — Addendum 1, consist of approximately 160 separate field testing elements designed to test the capability of the proposed vendor to perform the applicable requirements. It is set up as a checklist where a vendor is marked compliant ot non-compliant, with possible notes added. The Subscriber Audio Testing component also indicates that it is “To be Video Recorded by Broward County.” The Harris demonstrations occurred at the Coral Gables Public Works Department and Harri Lynchburg, Virginia headquarters on October 17 and 19-20, 2016, respectively. The Motorola December 8, 2016 Page 13 demonstrations occurred in Plantation and Fort Lauderdale on November 9 and 10, 2016. Staff appointed a Technical Review Team to attend those demonstrations and report back to the Evaluation Committee as to its observations. The Technical Review Team was provided a Technical Review Checklist consistent with the Demonstration Requirements - Addendum 1, with the approximately 160 Solicitation capability requirements for those demonstrations. The ‘Team was provided the opportunity solely to check whether the demonstration requirement was “Compliant,” “Non-Compliant,” or “Document Provided.” In turn, Staff prepared a “Vendor Demonstration Fact Finding Report," including a “Demonstration Response Matrix Summary,” summarizing the results of the demonstrations for each proposer. The Harris demonstration was not video or audio recorded, nor is there any evidence to suggest the Motorola demonstrations were. Although procurement document changes are normally reflected by Addendum issued prior to the Solicitations submission deadline, no such Addendum exists with respect to the videotape requirement. Instead, by October 3, 2016 email after the submission deadline and September 30, 2016 Evaluation Committee meeting, the County decided not to tape the demonstrations. The reasons therefore are unknown, and the September 30, 2016 Evaluation ‘Committee meeting minutes reflect no formal consideration by the Committee. Also, nowhere in the Solicitation is the composition, structure or purpose of this Technical Review Team addressed. In fact, it is unclear how the Technical Review Team was selected or by whom. The Evaluation Criteria within the Solicitation, Addendum 1, clearly provide substantial points, namely 40, for “Project Approach,” which is in turn dependent on factors arising out of the demonstrations. — The Evaluation Committee did not observe those demonstrations and had to rely upon and review the Checklists, Reports and Summaries referenced above and prepared by the Technical Review Team or Staff. Contrary to the express terms of the Solicitation, the Evaluation Committee was provided no audio or video recordings of the demonstrations of either vendor. Moreover, as indicated by the minutes of the November 21, 2016 Evaluation Committee meeting, it is apparent that the opinions of the Technical Review ‘Team, including their opinions noted on the Checklists, were wrongly shared with the Evaluation Committee. This is even though Assistant County Attorney Jones expressly cautioned that such opinions could not be considered by the Evaluation Committee [in light of which, the comments should not have been shared at all and the Checklists redacted solely to show whether the vendor ‘was “Compliant” or “Non-Compliant.”] Aside from the failure of the Solicitation to provide for this methodology, the results are telling. Harris could not perform various demonstration requirements largely due to its inability to ob access to certain required software controlled by Motorola, its competing vendor for thi procurement, for Motorola's PremierOne CAD system. Despite numerous requests to the County, the County was unable to provide this software and aceess to the Motorola systems in order to demonstrate certain required demonstration interfaces. Those thirteen (13) demonstration requirements or capabilities are noted in the Vendor Demonstration Fact Finding Report attached hereto as Exhibit “H.” However, and as authorized by the County, Harris submitted documentation indicating it could meet all applicable requirements of those thirteen demonstrations. . See also, Section 5.g. below and Exhibits referenced therein. December 8, 2016 Page 14 On the other hand, Motorola, the incumbent vendor in place for the last 25 years and controller of the keys to the applicable software and interfaces, was unable to meet forty-two (42) requirements, each of which are identified in the Vendor Demonstration Fact Finding Report attached hereto as Exhibit “I.” Those requirements were allegedly satisfied by Motorola's provision of documentation that it could meet the requirements. Despite having a total of 29 additional inabilities to perform demonstration requirements, Motorola was in no way penalized. The Checklists prepared by the Technical Review Team allowed for no scoring or points attribution depending on the quality of the demonstration or the performance features thereof. This is despite the fact that the Evaluation Criteria allocated 40 points, or 40% of the total available points, for the “Project Approach” demonstrated. How could the Technical Review Team not be able to provide more than just a “compliant” or “non- compliant” when the Evaluation Committee was scoring based on their observations of the demonstrations? How could the Evaluation Committee evaluate those demonstrations when it was not provided an opportunity to view them, whether in person or in recorded form as required by the Solicitation? A procuring agency must ensure that the provisions of a solicitation are clear and definitive and that all evaluation criteria have been disclosed. In Moore v. State, Dept. of Health & Rehabilitative Services, 596 So.2d 759 (Fla. Ist DCA 1992), the court found that the agency's failure to comply with its own bid evaluation criteria undermined the integrity of the competitive procurement process. The court reversed the award made by the agency, holding that the evaluation process was so tainted that it made the award arbitrary and capricious. Under Moore, deviation from the award criteria in the bid documents, or the agency's failure to follow its in house evaluation procedures, are sustainable grounds for protesting an award. Here, the requirements of the solicitation were not adhered to, The Evaluation Committee did not observe, in any manner, any of the demonstrations. The Technical Review Team Checklists, and the Vendor Demonstration Fact Finding Reports, were apparently all that was provided, including the opinions end comments of the Technical Review Committee that should not have been considered. Yet, the Scoring Sheets of the Evaluation Committee members completed at the November 30, 2016 meeting require them to assess up to 40 points for items directly related not only to the written description of the Project Approach contained within the proposal submitted, but the demonstrations thereof required by the Solicitation, Without the Evaluation Committee members having any real knowledge of those demonstrations, Evaluation Committee members were somewhat blind as to the respective systems proposed by the vendors. The Evaluation Committee members’ assessments of the respective proposcr’s “Project Approach” were thus not consistent with the requirements of the Solicitation and its evaluation criteria. One of the members of the Evaluation Committee, Ms. Cepero, even acknowledged that she was “technically ignorant” (her words) (EC Meeting, November 30, 2016, Time: 4:14:30), and scored Harris 11 points lower than Motorola (15 points lower when only discretionary scoring is considered). Her scores on the technical requirements were, as conceded by her, based on little to no understanding of the Solicitation’s technical or demonstration requirements. Moreover, December 8, 2016 Page 15, having been recently added to the Evaluation Committee to replace Rob Hernandez, who left the County's employ, it is unrealistic to assume that she, or anyone for that matter, had any real familiarity with the 1,583 page Motorola Proposal and the 2,059 page Harris Proposal, let alone the voluminous Staff documentation and Technical Review Team Checklists (or for that matter, what they meant). Given the substantial public safety implications of this Solicitation, and the specific requirements of the Evaluation Criteria contained therein, the Evaluation Committee was required to view the required demonstrations. Instead, as reflected in the Summary Meeting Minutes of the November 21, 2016 Evaluation Committee meeting, page 9 of 11, the Evaluation Committee decided to skip additional demonstrations, and never in fact witnessed any portion thereof (whether by videotape, audiotape or live). Without such information, it is impossible for the Evaluation Committee to determine the reliability, applicability or suitability of the systems proposed by the competing vendors. Under these circumstances, and the clear failure to follow the required demonstration protocols, it is clear thet the Evaluation Committee’s consideration of the Evaluation Criteria and scoring in accordance therewith were not consistent with the Solicitation’s requirements, rendering the scoring itself arbitrary and capricious, 4. Sunshine Law Violation At the commencement of the Evaluation Committee meeting on November 30, 2016, and as discussed above, County Staff spent approximately an hour reviewing and negotiating Motorola's exceptions to the County’s form Agreement attached to the Solicitation. Although forewamed by Staff to be able to respond to all such exceptions, and any questions by the Evaluation Committee, Motorola was not prepared with respect to certain exceptions. Motorola was then allowed to contact its corporate representatives elsewhere to obtain whatever auth ‘was needed to address the same. One exception related to the insurance requirements of the Agreement that Motorola had taken exception to. In particular, Motorola flatly rejected the requirements of Section of 11.5 of the Agreement that it advise the County of any claims in excess of $250,000 against its professional liability policy. Motorola also rejected the Section 11.7°s requirement that the County be provided a copy of any insurance poliey upon request. In light of these exceptions, and unprepared to address fully, Motorola representatives and County Staff, particularly risk management, were permitted to Ieave the public meeting and engage in negotiations as to those terms. Such negotiations were conducted out of the public view, and prior to the scoring of the proposals and any recommendation of award. This is contrary to the specifications of Solicitation, which provide for negotiations only in publicly noticed Evaluation Committee negotiation sessions. As discussed above, allowing Motorola to change its position on those exceptions after bid submission also bestowed a competitive advantage, December 8, 2016 Page 16 Florida law is clear that all negotiations related to a competitive procurement must be conducted in the sunshine. Section 21.4 of the Code provides that “[nJegotiation of contracts, amendments thereto, and work authorizations shall be in accordance with Government in the Sunshine law.” That law, Florida Statutes, Section 286.011, clearly renders the November 30, 2016 meeting of the Evaluation Committee a public meeting subject to strict recording requirements, See, Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So.2d 1099 (Fla, 3" DCA 1997); Leach-Wells v. City of Bradenton, 734 So.2d 1168 (Fla. 2d DCA 1999). Allowing Motorola and County Staff representatives to leave that mecting, undertake negotiations directly related to the matter being considered by the Evaluation Committee, and then subsequently scored based on those negotiated exceptions, constitutes a clear departure from the requirements of the Sunshine Law. See, Port Everglades Authority v. International Longshoremen’s Association, Local 1922-1, 652 So.2d 1169 (Fla. 4" DCA 1995) (holding that excluding a competing bidder from presentations, even by asking that they voluntarily remove themselves from the meeting, during a selection committee meeting constituted a violation of the Sunshine Law). Analogously here, the negotiations between County Staff and Motorola representatives as to its exceptions to the Agreement that occurred on the record during the course of the November 30, 2016 meeting should not have been permitted to occur outside of the Sunshine, or the presence of either the Evaluation Committee or Harris. As noted above, clearly those exceptions were matters to be considered by the Evaluation Committee in scoring the proposals submitted and allowing any negotiations of the same outside the Sunshine was improper. 5. Process Deficiencies that Tainted the Procurement and the Evaluation Thereof a During the course of the November 30, 2016 Evaluation Committee meeting, Motorola made numerous misstatements about its Proposal and capabilities as well as certain clements of the proposed Harris Public Safety Radio System solution, Those misstatements unduly influenced the Evaluation Committee's consideration of the Harris proposal, while also appearing to provide a ‘competitive advantage to Motorola as the incumbent legacy provider to the County. An example of these misstatements was the Motorola claim that the proposed Harris 3 watt portable radios were in violation of Federal ‘Communications Commission (“FCC”) regulations, therefore rendering the Harris P25 system unbuildable, (November 30, 2016 EC Meeting, 1:05:00). However, such radios are in use by Harris customers throughout the country, including Florida, and are fully compliant with FCC regulations, See, FCC Grant of Equipment Authorization attached as Exhibit “J.” If nothing else, the statement falsely suggests that the proposed Harris system could not be successfully integrated with the current Motorola equipment that the County owas. b. Motorola proposed building a single 300 foot tower site in the Everglades. Aside from failing to address required system redundancy and back-up requirements, the permitting and environmental compliance processes required to build in the Everglades make it highly unlikely that such a tower could be built within the 18 month schedule proposed by Motorola, if at all. Verizon took almost two years to obtain required governmental approvals to solely modify its existing Everglades December 8, 2016 Page 17 tower, Harris proposed using two existing tower sites, one of which was prescribed by the Solicitation Appendix B, Site Information Motorola stated that it could complete building this Everglades tower and 6 more new towers in the first 10 months of their 18 month schedule (Motorola proposal page 7). This schedule seems extremely unlikely to be met given the many issues involved in construction in Broward County. Yet Motorola in their presentation to the Evaluation Committee (page 16 of their presentation) said their design had “Full Constructability” and enumerated this with a list stating “It can be built,” “No guess work,” and “Control your schedule.” During the September 30, 2016 Evaluation Committee meeting, and as reflected in the Summary Meeting Minutes for that meeting, Ms. Cepero requested that County Staff evaluate Motorola’s performance as a County vendor. Despite repeated Motorola communications equipment failures and delays, as well as the failure of a Motorola dealer to provide the MotoTRBO technology equipment ordered over three years ago and still not deployed despite Motorola's offered assistance, no such vendor report was ever delivered by Staff to the Evaluation Committee. Yet, Past Performance as a County Vendor is clearly a portion of the Evaluation Criteria, Section 3, The County currently utilizes obsolete Motorola Gold Elite dispatch consoles which are over 20 years old and these consoles have not been supported by a software update since 2007. There seems to have been some confusion about the Gold Elite software information that was asked for by the Evaluation Committee and the answer provided that related to the new MCC 7500 dispatch console platform included in the Motorola Proposal (November 30, 2016 EC Meeting, 1:42:00). The existing consoles used by the County have resulted in many dispatch issues well-known throughout the County. The new MCC 7500 consoles included in Motorola's Proposal use the same old Graphical User Interface technology contained in the obsolete Gold Elite consoles; Motorola claims this provides the County with an advantage because dispatchers will not need any new taining. Motorola seems to have avoided answering the Evaluation Committee's questions that would have revealed that essentially the County will be getting much of the same old dispatch console system technology. Motorola's Proposal claimed more voice talkpath capacity than any other vendor can offer in any simulcast cell. Yet, it proposed 36 voice talkpaths while Harris proposed 38 talk paths (and the ability to provide more as needed), As Harris has repeatedly noted, Motorola appears to have intentionally molded its P25 radio system solution into a proprietary network that only Motorola subscriber radios can be used on in order to take full advantage of proprietary software features loaded on the infrastructure. The benefits of an open source, multi-vendor P25 system will never inure to the County. Please note that the December 8, 2016 Page 18 existing Motorola APX radios will work on the Harris P25 radio system proposed infrastructure and will provide all the mandatory features required by the Solicitation. Despite Motorola's claim that the Harris system will not provide GPS location information (November 30, 2016 EC Meeting, 1:37:12), the Harris solution does relay GPS data to the PremierOne system to map, Although the Motorola PremierOne CAD API is proprietary and was not provided for purposes of the required Solicitation demonstrations, Motorola did indicate during the course of the November 30, 2016 meeting that it would make the PremicrOne CAD software available for integration if Harris were the successful proposer. As indicated by Harris’ prior correspondence attempting to obtain that information for purposes of the demonstrations, and the County's responses indicating that it could not be provided but ultimately accepting letter certifications, all attached as Composite Exhibit “K” hereto, not before the November 30, 2016 meeting did Motorola make this offer. The inability to access this Motorola proprietary information for demonstrations provided Motorola with a competitive advantage. Despite Harris proposing a technologically superior P25 radio solution at a twenty (20%) percent lower price, Motorola was rewarded by the point formula set forth the Solicitation, Rather than comprising twenty-five (25%) percent of the Evaluation Criteria points, the result was only an additional five (5%) percent of the scoring or 31 points to Harris. Such price differential does not even take into consideration the costs of Motorola change orders that might be required for additional equipment and support that may be needed. Had County Staff listened to Ms. Cepero’s request noted in Section 5(c) above, Motorola's change order history would also have been reviewed. Motorola clearly relied on its status as the County’s existing vendor to take advantage of the County's existing PremierOne CAD system and APX radio investments. (November 30, 2016 EC Meeting, 59:28). Refusing the PremierOne CAD system access thwarted Harris’ ability to fully demonstrate its proposed solution, and provided Motorola with a competitive advantage. But Harris can in fact integrate with the County's existing PremierOne CAD system. The County's APX radios will work on the proposed Harris infrastructure equipment as demonstrated to the County's Technical Committee members in both Coral Gables and in Lynchburg, VA. Despite its efforts to portray itself as a strong and vibrant company with a huge local presence, Motorola is simply not the same company that it was 40 years ago when it first obtained the public safety radio contract for the County, nor even ‘what it was ten years ago. Motorola no longer owns its Plantation facility and ‘occupies only a fraction of the floor space as a tenant. Its local employment rolls have dropped from over 5,000 employees several years ago to hundreds today, making it one of Broward County’s largest lay-offs in the last five years. Efforts December 8, 2016 Page 19 by the Evaluation Committee to get a firm commitment that its operations would not be moved off-shore were greeted with no promises. k. When questioned about a recent Motorola radio system failure that took down the County's system several weeks ago, the County Project Manager was quick to note that it was caused by a power failure at the Public Safety building (November 30, 2016 EC Meeting, 2:05:55). He added that it was a relatively common occurrence. Clearly, the shutdown of the County's public radio system should not be caused by a power failure, which one could reasonably expect to occur frequently due to Florida’s title as the lightning strike capital of the United States, positioning in hurricane alley, and summer heat brown-outs. Instead, the question is whether the existing system, and the Motorola proposed system, have a single point of failure due to the lack of a back-up power supply. Like the Everglades tower discussed above, there is no redundancy, no back-up, and no assurances, all contrary to the Solicitation specifications. For all of the aforesaid reasons, it is respectfully submitted that Motorola’s failure to accurately disclose its Litigation History, and to update that history, is in clear violation of the specifications of the Solicitation and infringes on the integrity and reliability of Motorola, rendering it non-responsible and its Proposal non-responsive. The other factors set forth above likewise compel a conclusion that Motorola was bestowed a competitive advantage in this procurement that cannot withstand scrutiny. Accordingly, Harris requests that its protest be upheld, the recommended award to Motorola rescinded, and a new proposed recommended award issued to Harris. Upon such determination, Harris’ filing fee should also be returned as provided by the Code. In accordance with the Code, Section 21.118.b., we look forward to meeting with you in an effort to settle or resolve this protest. We also urge you to seek the guidance of the County Attomey as to what all of the available options are at this point in time. Your courtesy and consideration in this matter is greatly appreciated, Should you require any additional information or clarification, please do not hesitate to contaet the undersigned, Very truly yours, MOSKOWITZ, ‘ee “ott KS , BY: W an : WILLIAM G. SALI & SIMOWITZ, P.A. WGSiel ce: Glenn Miller, Assistant County Attorney Client EXHIBIT “A” Page 1 of 1 LITIGATION HISTORY FORM. ‘The completed form(s) should be returned with the Vendor's submittal. if not provided with submittal, the Vendor must submit within three business days of County's request. Vendor may be deemed non-responsive for fallure to fully comply within stated timeframes. (There are no material cases for this Vendor; or Material case(s) are disclosed below: Te his Tors: eheck type) | Wes, name of Parent/Subsiian/ Predecessor Ciearens, Cisubsisiary, or Cleredecessor tiem? __| Oro UI arty Case Number, Name, and Date Filed Wane of Court or other tribunal Type of Case Bankruptey Cuil CL) criminal L) __adminitrative/Regulatory CI Claim or Cause of Action and Bret description of each Count, Bret description ofthe Subject Matter and Project ImoWved Disposition of Ce | pending Cl Settied OD Dismissed CI (attach copy of any applicable Judgment, Judgment Vendor's Favor [] judgment Against Vendor C) Settlement Agreement ‘and Satisfaction of Judgment.) \f Judgment Against, is Judgment Satisfied? Cl yes Ono. ‘Opposing Counsel Names] emai Telephone Number: 1 Vendor Name: | file:///H:/ WGS/3632.01/SOLICITA TION%20DOCS/RLI%20-%20RFP%20-%20RFQ%2.... 12/3/2016 EXHIBIT “B” SECTIONS RESPONSIBILITY CRITERIA 3.1 LITIGATION HISTORY As required by Bid #R1422515P1Standard Instructions for Vendors, Motorola Solutions has completed the Litigation History Form on BidSync and we have included this form with our submission, 3.1.1 Litigation History Form- Additional Information In general, Motorola Solutions, inc. is a Fortune 300 company with billions of dollars in annual sales globally, employing thousands of workers worldwide and having more than one hundred thousand (100,000) shareholders. As is normal for such companies, Motorola Solutions and its subsidiaries have been a party to many civil lawsuits. These suits have made many different legal and factual claims and have put forward many alleged legal theories seeking damages or other legal relief against Motorola Solutions. Motorola Solutions does not maintain a detailed history of such cases or their outcomes, nor does it maintain a iisting ofall allegations made therein, and therefore cannot provide the same. As a publicly traded company, however, Motorola Solutions files an annual report Form 10-K with the SEC and describes therein certain titigation that is material for disclosure under SEC rules. Please see SEC filings. See Item 3, Legal Proceedings: yw, ives Témsi20115 10-k. htm Note: Motorola Solutions has reviewed the list of approximately fifty lawsuits that were searched by Broward County and Motorola Solutions advises that such lawsuits are immaterial to the work and products involved in this solicitation because the iawsuits either involve Motorola Mobility, another cell phone company now; labor cases; discontinued businesses; dismissed suits, or involved asbastos-related cases. Specifically, the Gomez case is about the garnishment of an employee's wages: Q 3.2. FINANCIAL INFORMATION As required by Bid #R1422515P Standard Instructions for Vendors, Motorola Solutions has provided our two most recent annual reports for 2014 and 2015 at the end of this section. Annual reports, additional information, and documentation are available on our Investor Relations website at bttov/investors.motorolasolutions,comn/AnnualReports/index?Key GenPage=10737- 3.3. AUTHORITY TO CONDUCT BUSINESS IN FLORIDA As required by Bid #R1422515P1Standard Instructions for Vendors, Motorola Solutions has listed our active Florida Department of State Division of Corporations Document Number in the Vendor Questionnaire, Question No. 10. Additionally, we have provided our State of Florida, Department of State Certificate of Good Standing on the following page. ‘roars County Boar of County Commision August 17,2016 ‘Standard nections for Verso Use or dclosure of i propotalstubect Bis Rtazzs1581 tw he reins one cover pape © wotecasostone Responty Cree 24 Page | of | LITIGATION HISTORY FORM ‘The completed form(s) should be returned with the Vendor's submittal f not provided with submittal, the Vendor ‘must submit within three business days of County's request. Vendor may be deemed non-responsive for fallure to fully comply within stated timeframes, SZ There are no material cases for this Vendor; or C__ Materiatcase(s) are disclosed below: Ts this fora: (check ype) Oarent, Ci subsidiary, Olrredecessor Firm? ifYes, name of Parent/Subsidlary/Predecessor: ase see Standard Instructions for Vendors Section 3.1.1 for additional information. ore Party Case Number, Name, ‘and Date Files Wamve of Court or other tribunal Type of Case Bankruptcy L) civit Criminal []___Administrative/Regulatory L] Claim or Cause of Action and Brief description of each Count Brief description of the Subject Matter and Project Involved Disposition of Case (Attach copy of any applicable Judgment, Settlement agreement and Satisfaction of Judgment.) Pending C] settled 1 Dismissed (J) Judgment Vendor's Favor [] judgment Against Vendor C] 1f Judgment Against, is Judgment Satisfied? Ces Ono ‘Oxposing Counsel Name: Email Telephone Number: Vendor Name: Motorola Solutions, Ine. file://G/PU_RLUCurrent%20RL1s%20and%20RFPS/R1422515R1%20P25%20Radi0%2. 8/17/2016 EXHIBIT “C” IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA CASE NO. ERIKA SMITH, as Personal Representative of the Estate of CHRISTOPHER SMITH, deceased, CIVIL DIVISION Plaintiff, v. TALAHASSEE-LEON COUNTY CONSOLIDATED DISPATCH AGENCY, and MOTOROLA SOLUTIONS, INC., Defendants, COMPLAINT Plaintiff, ERIKA SMITH, as Personal Representative of the Estate of CHRISTOPHER SMITH, deceased, sues Defendants, TALLAHASSEE-LEON COUNTY CONSOLIDATED DISPATCH AGENCY ("the CDA”), and MOTOROLA SOLUTIONS, INC. (‘MOTOROLA”) and alleges: Jurisdiction and Venue 1. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00). 2. Plaintiff, ERIKA SMITH, is the Personal Representative of the Estate of Christopher Smith, having been so appointed on February 2, 2015. A copy of the Letters of 3. The CDA is an intergovernmental agency that is jointly owned by the Leon County Sheriff, the City of Tallahassee, and Leon County. 4. MOTOROLA is a foreign corporation registered and doing business in the State of Florida. 5. Venue is proper in this Court because the causes of action alleged herein accrued in Leon County, Florida, Conditions Precedent 6 Plaintiff has fully complied with all statutory prerequisites to bringing a negligence claims against a governmental authority, agency, or subdivision pursuant to Chapter 768, FLA. Stat, specifically including, but not limited to, the provision that written notice of the claim to Defendant CDA, and to the State of Florida, Department of Insurance, as required by the provisions of §768.28(6), FLA. STAT. Factual Allegations 7. Inthe Fall of 2010, the City of Tallahassee, Leon County, and the Leon County Sherif? Office (hereinafter “the Owners”) evaluated what dispatch systems should be installed at the new Tallahassee-Leon County Consolidated Dispatch Agency (“the CDA”). 8. Prior to the creation of the CDA, the Tallahassee Police Department and Fire Services used the Motorola “Premiere CAD System,” which had performed satisfactorily. 9. Motorola, through its agents or employees, misrepresented to the Owners that the Premiere CAD System used by the Tallahassee Police Depastment was being discontinued and replaced with a newer version of that same system known as the PremietOne CAD system. Asa result, Motorola was able to circumvent Florida's statutorily required competitive bidding statutes. 10. Motorola, through its agents or employees, sold the PremierOne CAD system to the ‘Owners under the pre-tense that it was an upgrade to the existing system used by the Tallahassee Police Department; however this was in fact a new system. See Exhibit B June 24, 2014 letter to Tim Boyle from Sabrina Holoman) and Exhibit C (City Audit, p. 72). 11, Based on Motorola's mis-representations that the PremierOne CAD system was an upgrade to the existing CAD system used by the Tallahassee Police Department, the Owners did not utilize the statutorily required competitive procurement methods, and the Owners did not consider Motorola competitors’ proven systems for implementation at the CDA. 12, In December of 2010, based upon Motorola’s representations that the PremierOne CAD system was an upgrade only, the Owners entered into a contract with Motozola to purchase the PremierOne Computer Aided Dispatch System (“CAD System”) and a Mobile and Radio Communications System (*Radio Dispatch System”), Collectively, these will be referred to as, “the Systems.” A copy of the contract is attached hereto as Exhibit D. 13, Inaccordance with Attachment A of the Contract, Motorola agreed to provide training related to the Systems, including without limitation all equipment, hardware, and software. 14. Based on Motorola’s misrepresentations that the CAD system was an upgrade to the system already being utilized by the Tallahassee Police Department, the Owners contracted for a less thorough training regimen than they would have had Motorola truthfully revealed that the Systems that they were purchasing were, in fact, new Systems. 15, In early 2012, when Motorola started training project staff for configuration and provisioning of the Systems, the Owners determined that the Systems were, in fact, a new product and not “an upgrade” as represented by Motorola, 16, The CDA went live on September 17, 2013. 17. _ In only the first nine months of operation, the Systems experienced 83 issues including, but not limited to: a. Miscategorized calls; b. Botched upgrades; ©. Delays in dispatching first responders; and, d. Full system shutdowns. (Exhibit C, pp. 55-66) 18 Inan effort to resolve the operational and functional issues experienced by the CDA in utilizing what was, in fact, a new system, rather than an upgrade as represented by Motorola, the Owners proposed an Amendment to the Motorola Contract. The proposed Amendment which was sent to Motorola on October 16, 2014, included, inter alia, extensive on-site training by Motorola, Motorola refused to enter into the Amendment without an increase to the Contract Price. The proposed Amendment is attached hereto as Exhibit E. 19, One feature available in the Systems allows critical information applicable to a specific premises (addressilocation) to be recorded (“flagged”) within the system as a premises hazard. Information recorded varies, but includes details that first responders should be made aware of for safety purposes (e.g., threatening or dangerous individual residing at the premises) Premises hazards are categorized into type. For example, those potentially impacting law enforcement safety are shown as “Officer Safety” warnings. 20. Once applicable information is recorded for a premises, the CAD system will show a premises hazard anytime that location, or a nearby location, is associated with an incident created 4 inthe CAD system. Ifa CDA call taker answers an emergency call for a specific location (premises), the premises hazard for that location will automatically be reflected as a “flag” on the CAD incident screen created for that incident. To see the specific details pertaining to the hazard type, the call taker must click on the specific “icon” as shown on the call taker’s incident screen. 21, The existence of the premises hazard is also reflected on the premises hazard “tab” shown on the incident screen used by the applicable CDA dispatcher who selects and dispatches a service unit to respond to the applicable incident, To see the specific details pertaining to the hazard type, the dispatcher must follow a two-step process. Specifically, to see the specific details pertaining to the hazard type, the dispatcher and/or responding unit must first click on the hazard “tab” as shown on their incident sereen which results in the “flag” being shown, and then click on the “flag” or other available “icon”, 22, On November 8, 2014, the Leon County Sheriff's Office properly provided critical and specific “Officer Safety Premises Hazard? information to the CDA in reference to threats made by Curtis Holley “to shoot any law enforcement” that responds to 3722 Caracus Court, Tallahassee, Florida. This information was entered into the CAD system. 23. On November 22, 2014, at 10:10 a.m.,@ CDA call taker received an emergency eall reporting a residential structure fire at 3722 Caracus Court, Tallahassee, Florida, The CDA call taker did not view the Premise Hazard warning or take any action related to the Premise Hazard ‘warning at 3722 Caracus Court. 24, The radio dispatchers for both law enforcement and fire also failed to view the Premise Hazard warning information. 25, At 10:21 a.m. Plaintiff's decedent, Deputy Christopher Smith, and Deputy Colin Wulfekubl were dispatched to 3722 Caracus Court with no knowledge of Mr. Holley’s threat to shoot any responding law enforcement who came to the premises. Upon his arrival at the premises, Deputy Smith was ambushed and killed by Curtis Holley. Deputy Wulfekuhl was shot in the back by Mr. Holley, but his life was saved by his protective vest. 26. At 10:33 a.m., Curtis Holley was shot and killed by off-duty Tallahassee police officer, Scott Angulo. Had the firefighters, who had no protective equipment or weapons, arrived to the structure fire prior to Deputy Smith and Deputy Wulfekuhl, they would have likely been murdered by Mr. Holley. 27. At 10:53 a.m., the Premise Hazard at 3722 Caracus Court in Tallahassee, Florida, was viewed for the first ime by CDA personnel. 28. The City of Tallahassee audit of the CDA and Related Motorola Contracts conducted after Deputy Smith's murder, revealed a 98% failure rate in CDA call takers and dispatchers properly utilizing the Premises Hazards tabs on the Systems and that no quality assurance was conducted whatsoever to insure proper utilization of the hazard waming. 29. CDA Director Tim Lee concluded in regard to premise hazards that the “existing database is overloaded with excessive and outdated data”. 30. The CDA failed to implement any fortnal training programs or written guidelines ‘on premise hazards and provided no quality assurance to monitor compliance with premise hazards and/or office safety warnings. 31, Motorola failed to properly train the CDA administrators and employees on the importance of properly maintaining hazard files end failed to train the CDA on proper training and use of the hazard files and PremierOne CAD software. COUNTI Negligence of the CDA 32, Plaintiff realleges paragraphs | through 31 above. 33. Defendant, CDA, owed a duty to first responders, including Deputy Christopher ‘Smith, o properly and adequately train its call takers and dispatchers on the proper use of the CAD System, including the Premise Hazard warning information. 34. Defendant, CDA, breached its duty as evidenced by the call taker and the dispatchers” failure to view the Premise Hazard warning information on November 22, 2014, regarding 3722 Caracus Court, and to report the warning information to the first responders, including Deputy Smith, 35, Asaresult of the CDA failure to properly and adequately train its call takers and dispatchers, Deputy Christopher Smith, was shot and killed by Curtis Holley. 36. On November 22, 2014, call taker C37808, while working in the course and scope of his or her employment with the CDA, negligently failed to view the Premise Hazard warnings associated with 3722 Caracus Court prior to contacting law enforcement and fire dispatchers. 37. On November 22, 2014, law enforcement radio dispatcher C 12342, while working in the course and scope of his or her employment with the CDA, negligently failed to view the Premise Hazard wamings associated with 3722 Caracus Court, and failed to report the warning information to the first responders, including Deputy Smith. 38. On November 22, 2014, fire dispatcher C61172, while working in the course and scope of his or her employment with the CDA, negligently failed to view the Premise Hazard warnings associated with 3722 Caracus Court, and failed to report the warning information to the first responders, including Deputy Smith. 39. Asaresult of the negligence of CDA employees, as set forth above, Deputy Christopher Smith, was shot and killed by Curtis Holley, 40. The CDA is liable for the negligence of the call taker and the law enforcement and fire dispatchers that occurred on November 22, 2014, while they were working in the course and scope of their employment with the CDA. 41, Plaintiff, ERIKA SMITH, as Personal Representative of the Estate of Christopher ‘Smith, seeks the following damages which have been incurred by the Estate of Christopher Smith and the decedent’s survivors, to-wit: a, _ ERIKA SMITH, the decedent's wife, has suffered the loss of support, compenionship, protection and service, as well as mental pain and suffering; b. The decedent's minor child, Gabrielle Smith, has suffered the loss of support, services, parental companionship, instruction and guidance, as well as mental pain and suffering; c. The Estate of Christopher Smith has incurred the loss of prospective net accumulations and medical and funeral expenses. WHEREFORE, Plaintiff demands judgment against Defendant, CDA, for all allowable damages, such prejudgment interest as may be permitted by law, costs, and such other relief as may be deemed just and proper. Plaintiff demands a trial by jury. ‘OUNT IL Strict Liability Against Motorolla 42. Plaintiff realleges paragraphs 1-5 and 7-31 above. 43. MOTOROLA atall times material hereto was engaged in the business of designing, ‘manufacturing, promoting, selling and distributing the computer aided dispatch software product, 8 “PremierOne CAD” (the “CAD System”), with the intent that the CAD System be sold and utilized within the State of Florida, 44. The Central Dispatch Agency (“CDA”) located in Leon County, Florida, at all material times hereto utilized the CAD System. 43. MOTOROLA marketed the CAD System as an advanced computer aided dispatch system for use by governmental police, fire, and rescue departments. Including the cost of Purchase, maintenance, training, and service, the CAD System is a multi-million dollar investment for the communities to which MOTOROLA sells, 46. | MOTOROLA designed the CAD System to focus on getting first responders to the right location as quickly as possible. MOTOROLA’s focus on efficiency rather than safety, placed all first responders, including Deputy Smith, in danger. 47, The CAD System designed, manufactured, and sold by Defendant, MOTOROLA, was defective and unreasonably dangerous when used in the manner and for the purpose for which was intended, and was designed and sold in such a Way that it caused or contributed to communication and dispatch response failures with regard to potentially life threatening premise hazards. 48. The CAD system was used by the CDA in a condition substantially unchanged from its condition when installed and updated by MOTOROLLA. 49. ‘The CDA employees reported that the premises hazard tab did not appear on theit sereens or did not prominently appear on their screens prior to dispatching emergency personnel, including Deputy Smith, to 3722 Caracus Court on November 22, 2014 50, Asa direct and proximate result of the defective CAD system, Deputy Christopher Smith was shot and killed. 51, Plaintiff, ERIKA SMITH, as Personal Representative of the Estate of Christopher Smith, seeks the following damages which have been incurred by the Estate of Christopher Smith and the decedent’s survivors, to-wit: a. ERIKA SMITH, the decedent's wife, has suffered the loss of support, companionship, protection and service, as well as mental pain and suffering; b. The decedent's minor child, Gabrielle Smith, has suffered the loss of support, services, parental companionship, instruction and guidance, as well as mental pain and suffering; ¢. The Estate of Christopher Smith has incurred the loss of prospective net accumulations and medical and funeral expenses. WHEREFORE, Plaintiff demands judgment against Defendant, MOTOROLA SOLUTIONS, INC., for all allowable damages, such prejudgment interest as may be permitted by law, costs, and such other relief as may be deemed just and proper. Plaintiff demands a trial by jury. COUNT IIT Negligence against MOTOROLA 52. Plaintiff realleges and incorporates paragraphs 1-5 and 7-31 53. In order to avoid statutorily required competitive bidding, MOTOROLA sold the CAD System to the Owners under the pretense that the System was an update to the existing system being used by the Tallahassee Police Department. In fact the CAD System was a new System. This allowed Motorola to circumvent the legally required competitive bidding process under Florida Law, 54, The Owners detrimentally relied on MOTOROLA’s representations thet the CAD 10 System was an update (o the existing system, rather than a new system. 55. If MOTOROLA had accurately represented to the Owners that the CAD system that was contracted for in December of 2010 was a new system, rather than a system upgrade, the ‘Owners would have likely a) performed a more enhanced risk analysis; b) engaged in a competitive procurement process; ¢) become more educated regarding Motorola's competitors’ superior CAD software; and d) become aware of problems associated with MOTOROLA'S PremierOne CAD system. 56, If MOTOROLA had correctly represented to the Owners that the CAD system that ‘was contracted for in December of 2010 was a new system, rather than a typical system upgrade, the Owners could have acknowledged and better addressed the risks associated with implementation of a new and relatively unproven system, including design problems associated with Premise Hazard warnings 57. If MOTOROLA had accurately represented to the Owners that the CAD system that was contracted for in December of 2010 was @ new system, rather than a typical system upgrade, the Owners, more likely than not, would have contracted with MOTOROLA, or other services providers, to provide extensive training to CDA employees including, but not limited to, the proper maintenance and use of the premises hazard alerts. 58. Atal material times to this Complaint, MOTOROLA held itself out as an expert in the field of public dispatch services and products. 59. MOTOROLA was aware that the CDA was a fledgling dispatch agency and MOTOROLA was in a superior position of knowledge regarding known risks associated with premise hazard warnings such as the failure of agencies such as the CDA to properly maintain and u utilize hazard files. 60. MOTOROLA failed to educate, warn and train the CDA regarding the proper maintenance and utilization of premise hazard files which caused and/or contributed to the death of Deputy Smith. 61. Defendant, MOTOROLA, as the designer, manufacturer, and seller of software, including the CAD System sold to the Owners, owed a duty to first responders relying on its products, including Deputy Christopher Smith to: 1) exercise reasonable care in the design and sale of the CAD System software involved in this action, 2) _ provide sufficient training to the CDA and first respondenders regarding the PremietOne CAD System and how to properly maintain and utilize premise hazard files and warnings, and 3) wam the CDA and first responders of foreseeable misuse associated with the PremierOne CAD System. 62, The breach of the duty of care owed to Deputy Christopher Smith by Defendant, MOTOROLA, and its agents, employees and consultants, include, but are not necessarily limited to, the following acts or omissions: marketing the CAD System software without first determining ifthe system ‘would safely and effectively perform as intended; b. failing to design the CAD System in an adequate manner that would properly highlight life threatening hazards and dangers associated with specific property addresses to call takers, dispatchers, and first responders; 2 © failing to design the CAD System in a manner that would prevent call-takers and dispatchers from taking action on a call to an address with a property hazard unless and until the property hazard had been specifically acknowledged; 4. ailing to warn the purchasers and users of the system of foreseeable Problems to be expected from operation of the device as designed and sold, or to warn or advise as to the proper data entry procedures that would be required to obtain the safe and efficient operation of the CAD premises hazard tab; © failing to wam the CDA of foreseeable misuse associated with its CAD System £ failing to properly and adequate train the CDA, its employces, and first respondenders with regard to the implementation, use and operation of the CAD premises hazard tab. 63. Asa direct and proximate result of MOTOROLA’'s negligence, Deputy Christopher Smith was killed 64. Prior to Deputy Smith's murder, at least four of MOTOROLA’s major competitors provided software that would have prevented the Caracus Court call to advance to Deputy Smith without giving him the specific threat from Curtis Holley, 65. Plaintiff, ERIKA SMITH, as Personal Representative of the Estate of Christopher ‘Smith, seeks the following damages which have been incurred by the Estate of Christopher Smith and the decedent's survivors, to-wit: a —_ ERIKA SMITH, the decedent's wife, has suffered the loss of support, companionship, protection and service, as well as mental pain and suffering; 2 b, The decedent’s minor child, Gabrielle Smith, has suffered the loss of support, services, parental companionship, instruction and guidance, as well as mental pain and suffering; ¢. The Estate of Christopher Smith has incurred the loss of prospective net accumulations and medical and funeral expenses. WHEREFORE, Plaintiff demands judgment against Defendant, MOTOROLA SOLUTIONS, INC., for all allowable damages, such prejudgment interest as may be permitted by Jaw, costs, and such other relief as may be deemed just and proper. Plaintiff demands a trial by Jury. BROOKS, LeBOUEF, BENNETT, FOSTER & GWARTNEY P.A. MATTHEW K. FOSTER, ESQ. Florida Bar Ne-0007927 Brooks, LeBoeuf, Benniétt & Foster & Gwartney, P.A. 909 Bast Park Avenue Tallahassee, Florida 32301 (850)222-2000 Attorneys for Plaintif 1“ EXHIBIT A TO PLAINTIFF’S COMPLAINT. IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA PROBATE DIVISION IN RE: ESTATE OF CHRISTOPHER LYND SMTH, File No. 2015-CP-000083 Deceased. ! LETTERS OF ADMINISTRATION TO ALL WHOM IT MAY CONCERN: WHEREAS, CHRISTOPHER LYND SMITH, a resident of Leon County, Florida, died on November 22, 2014, and WHEREAS, ERIKA SMITH has been appointed personal representative of the estate of the decedent and has performed all acts prerequisite to issuance of Letters of Administration in the estate, NOW, THEREFORE, |, the undersigned Circuit Judge, declare ERIKA SMITH duly qualified under the laws of the State of Florida to act as personal representative of the estate of CHRISTOPHER LYND SMITH, deceased, with full power to administer the estate according to Jaw; to ask, demand, sue for, recover and receive the property of the decedent; to pay the debts of the decedent as far as the assets of the estate will permit and the law directs; and to make distribution of the estate according to law. 4 Ordered on_sJth, 2- 2015. dod JACKIE C: FULFORD 4)” Circuit Judge Conformed copy to. Carolyn LeBoeuf, Esq. EXHIBIT B TO PLAINTIFF’S COMPLAINT sone 24, 2044 ‘Tim Boyle, Vice President Applications and Product Soitions| Motorola Solutions, Ine, ASOLE, Algonquin Ra, 1102 SH643 Sehaurburg, 260196 RE: City of Tallahassee Projects ~ Contract #10-29 16THS & Contact #1.0-0350 Des Tint: ‘This leer serves a fllow up io our meeting held last week in Tallahassee, Again, we'd fike io thank you for your visi, ‘Your presence here in Tallahassee was 2 show oF good faith that Motorola vecognlzes the senouness of the inues hero m ‘Yallahassee and that you are commuted to resolving toe issues tt § imely raanner As discussed in eur meeting, there ar. project issuer with both the PremierOne CADIMcbile project (Cootact #10-29164/11) and the PrenwerOne Records Mangement Sysieme Projet (Convact #10-03508). Motorola sold «: CAD/Mebile system under the pretense tht this wes an upumide to our existing system however tis isin fac a Few system. The issues thn we've expetienced, ranging from poorer performance 10 complete system failure have caused mamerous problems for us affecting ex abil 10 ‘rovide efficient publi safety services to the citizens of Talohnstee, Specshcaly, since the hive cyiovsr of PremierOne CAD/Mobile on Seplomber 17, 2013, we have experienced approximately $3 issues Wile Motorola has depioyed resources to Tallahassee and a ramber of aur issues have been resolved, we sill do nothave a sable vite. file to take « pracicat approach wo esoiving these isues because cll, 1's 9 win-win for all. Molonola will move forward wh resolving tie issues quickly. However We vil ‘not hesiate to tenminate our contact if needed. ‘Asdlscussad in our weetng, because of tke sanerous issues and delans with resolving systew defccucies, the City, Leon County and the Shemif's Office has, and will, sulir a financial impact Ag such, we are asking Motorola for te following os compensation for your ineomplei> performance i tega (o te CAD Mobile projec: 1, Cress for v0 2) change ones. and one ining request associated with this project Change Order (COOOL PSC-PICAD-ZI712 = 539,919 Change Oraer XCOOOH-PSC-PICAD-USISIS -£11,000 TDD Schema Trining S65 2 Credits fr seven moaths' aly of | FTE (aor officet) who as been assed tothe CAD Proje ful time since December 3p asst uoubleshooting problems = $29,820, Jn addition, Motorola has up 1 30 days to stabilize tne CAD eytam and maintain that tsb’ fora tte of 30 days without any system faces or any issues oc ouages cat impact tae performance ofthe syste ‘The stability. and performance of the CAD/Mobie system has a direct impact on. our ability to nove forsnrd with implementaion of the PremierOne Records Management Syotem for te Tallahassee Potce Depuntmeu Finally, tke PromiesOne Records Mansgement System las alto wfered muinerous delays. The bles dle, ‘elated to data conversion completion dstc changing lo October 2014, ls caused us vo push ext gorive aic-to January: 2015. This is a one year dela from our mest reont poslive date of February 2OLL The delay in completing dae'ccoversion bas many impacts on ve. Tire, impacts out aly fo generate car Uniform Crime swtistics. without a huge manual effor. In addluon, delayed data conversien during 9 critieal ane period herein Tallahasae impedes our ablity to perform tainiag and roll out of» naw sytem, These numerous delays have and will bave @ significant financial impact on the City of Tallahnssee. In addition, to Motoroli's commitment hat Tallahsaae’s MremierOne Kevords projest wil be ready for Jive wo ater dutn Novernber 30, 2014, we are requesting the folowing fom Motorola 1, Malgtenance payment of the City's third purty Held base reporting softwar ~ $163,000 (is was ‘not bndgeted in FYL5 because we anucipated having PremiexOue Records io ple) 2, Mainterance payment ofthe City's OpenTextil Web software - $12,000 3. Payment ofthe Ciry's remaining two (2) Records Manngemeat lease payments ~ $148,309.70 Agfa. we opprecate your visit and tras ti you havea clear mderstanding ofthe issu Gicing us here in ‘Taliascee. We Iook forward to Moworols's dedicated resolve wo correcting all the issves WE have with both Tallahassee cones ina timely manner, Situxrdy, OSairin co€zilamain Subrine Holloman, COCIO, CPM Chief Information Systems Otficer ce: Raoul Lavio, Director ~Management and Adininiswation ‘Thm Lee, Direaor ~ Consolidated Dispatch Agency Gregon’ A, Frost, Director Administrative Services ~ Tllahasse Police Departmest Haveld Lave, Public Safety Systems Admuinistarer Infermotion Systems Services Janna Richardson, FT Manager ~ Leon County Shen 5 Office Brian: Whaley, Account Executive = Motorola EXHIBIT “D” Cote Dan! 2016-08066 / Court: 011 CAUSE NO. SABINA BEBEE, Individually and On Behalf of the ESTATE OF ROBERT BEBEE, DECEASED; MARY SULLIVAN, Individually and As Representative of the ESTATE OF ANNE SULLIVAN, DECEASED; NICOLE GARNER, ‘As Representative of the ESTATE OF ROBERT GARNER, DECEASED; And AMY and ROBERT YARBROUGH Plaintiffs, vs. MOTOROLA SOLUTIONS, INC. SCOTT SAFETY, INC., SCOTT HEALTH AND SAFETY, INC, MOTOROLA, INC., ACCESS DATA SUPPLY, INC., CTS CONSOLIDATED TELECOM SERVICES, LLC Defendants. {P22 0 CON 2 Lt Lt th i ne, IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS JUDICIAL DISTRICT PLAINTIFFS BEBEE, SULLIVAN, GARNER AND YARBROUGII'S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: 016 447:19 PAM Distt Clk Marne County EEmielipe No, S07 3874 By. Bonnie Lugo ‘Fed: 282016 4:47.19 PM COME NOW SABINA BEBEE, Individually and on behalf of the Estate of Robert Bebce, MARY SULLIVAN, Individually and as Representative of the Estate of Anne Sullivan, NICOLE GARNER, as Representative of the Estate of Robert Gamer, and AMY and ROBERT YARBROUGH (collectively referred to as “Plaintiffs") and file this Original Petition against Defendants MOTOROLA SOLUTIONS, INC., SCOTT SAFETY, INC., SCOTT HEALTH AND SAFETY, INC., MOTOROLA, INC, ACCESS DATA SERVIC! INC, and CTS CONSOLIDATED TELECOM SERVICES, LLC ("Defendants") and show the following: L DISCOVERY CONTROL PLAN 1.1 This Lawsuit is requested to be govemed under a Discovery Control Plan Level 3 as provided by the court iL, REQUESTS FOR DISCLOSURE 2.1 PluintiffS request that all Defendants disclose the information and material provided for production in TRCP 194.2(a}(I). ML. PARTIES 3.1 Plaintifts are Texas residents and reside in the jurisdiction of this court. 3.2 Motorola Solutions, Ine. is 2 Delaware corporation doing business in the State of Texas nd can be served with process by serving its registered agent, CT Corporation System, located at 1999 Bryan Street, Suite 900, Dallas, Texas 75201-3136. 3.3, Scott Safety, Inc. is not belicved to be licensed to do business in the State of Texas but regularly transacts business in the State of Texas as patt of its sales of its communications system and equipment for use with fire department personnel. This lawsuit arises out of its contacts with the State of Texas, directly or indirectly, when packaged with the Motorola Solutions Systems sold to the City of Houston, Service of process may be effectuated on this defendant under Article 2.11 of the Texas Corporation Act by serving the Texas Secretary of State who. shall immediately cause one of the copies of the petition to be forwarded by registered mail, addressed to the corporation Scott Safety at its registered office: Scott Safety, 4320 Goldmine Road, Monroe, North Carolina 28110. 3.4 Scott Health and Safety, Ine. is not believed to be licensed to do business in the State of Texas but regularly transacts business in the State of Texas as part ofits sales of its communications system and equipment for use with fire department personel. This lawsuit arises out of its contacts with the State of Texas, directly or indirectly, when packaged with the ‘Motorola Solutions Systems sold to the City of Houston. Service of process may be eifectuated oon this defendant under Article 2.11 of the Texas Corporation Act by serving the Texas Secrelary of State who shall immediately cause one of the copies of the petition to be forwarded by registered mail, addressed to the corporation Scott Safety at its registered office: Scott Safety, 4320 Goldmine Road, Monroe, North Carolina 28110. 3.5 Motorola, Ine. is a Delaware corporation that contracted to repair und maintain the Houston Fire Department radios and has regularly conducted business in the State of Texas and in Houston and may be served with process by serving Mr. George M. Ebelt at 1140 Cypress Station Drive, Suite 300, Houston, TX 77090 and/or by serving its registered agent, CT Corporation System, located at 1999 Bryan Street, Suite 900, Dallas, Texas 75201-3136. 3.6 Access Data Supply, Inc. (ADSI) is a Texas Coxporation engaged in marketing, servicing, sund/or assisting in the provision and use of the Motorola products involved in the deaths and injuries to the plaintiffs alleged in this suit. This defendant may be served with process by serving its agent, Thomas Deon Warner, located at 550 Westcott Street, Suite 415, Houston, Texas, 77007. 3.7 CTS Consolidated Telecom Services, LLC (CTS) is a Texas Corporation engaged in the marketing, servicing, provision and use of the Motorola products and advertising complained about in this case and contributing to the deaths and injuries of plaints alleged in this suit. “This defendant may be served with process by serving its registered agent, Pam Faver, located st 204 Texas Ave., Suite A, Round Rock, Texas, 78664. Vv. BRIEF NOTICE FACTS 4.1, OnMay 31, 2013, Plaintiffs Robert Bebee, Robert Gamer, and Anne Sullivan died and Robert Yarbrough was severely injured when parts of a burning structure variously fell om them. “They entered the burning structure confident that if they got in trouble they could radio for help to be immediately assisted, The radio devices they trusted were designed, manufactured and/or rnarketed by one or more of the defendants, and/or components of the radio system were designed, manufactured and/or marketed by one or more of the defendants. They did not know thar the radios they trusted would betray them or fail under the very purposes for which they were intended, Unknown to the firefighters their Motorola Solutions System and Scott Safety system radios and components were defeative and/or deficient in performance which delayed or prevented instructions to firefighters or cut them off entirely without notification tothe users. ‘Numerous other failures of the system caused delays in both rescue as well as evacuation from the building, 42. Motorola Solutions sold an approximately $140,000,000 digital radio system (o the City of Houston for use by the Houston Fire Department. ‘That system was allegedly designed t0 be suitable for use in situations such 9s the Southwest Ian fire in question in this case. The system is believed to have been implemented in April 2013. However, at the time of its implementation, despite representations by Motorola Solutions as to its suitabi the anticipated, foresceable and actual fire use. Its failures included the following: for use, it was unsuitable for & Excessive “bonks” when a firefighter was shut out of the system and unable to aveess the system - 339 times in the first thirty minutes of the fire in question; b. Firefighters were shut out of the system 256 times after the collapse of the roof and when rescue efforts commenced; ©. Digital Delays between the time a firefighter would speak and the time that the message was actually sent and received by another user; d. Excessive “quick keys” when a radio microphone was accidentally struck causing the Talk Group on the frequency to be "frozen" for 3-4 seconds; ©. _ Digital Cliffs occurring suddenly, and without warming, when the radios would go ‘out of range although the person would be only a few feet away; £ The use of the same “bonk™ tone tor both the out of range tone and the Talk Group busy tone so that the firefighter could not determine if the Talk Group was busy and so the firefighters could not determine if they just needed to wait in place to communicate or to move to be able to speak; & __ Malfunctioning equipment not suited for firefighting under reasonably foreseeable conditions causing the housing and inside wiring of the devices to fuse making the radios inoperable; h. Unsuitable equipment causing the radio of one of the Downed Firefighters! to send out multiple keyed mic signals falsely suggesting voluntary radio activation when no such action was intended by the operator, i. Bleeding over trom one Talk Group to another resulting in additional “bonks” preventing usage during the fire and restricting the available equipment needed for ‘communications during fire and rescue operations; js __ Provision of unsuitable equipment such that almost 6 minutes and 24 seconds of the first hour of the fire presented unusable talk time -- ie., 10% of the first hour of the fire; k.__ Overriding firefighter communications by OBC radios with no notification to the firefighters in the building who would not know the emergency transmissions had not been heard despite indications that it had been successfully transmitted; 1 Using radios with “Emergency Call” buttons that were unsuitable for use in a fire because the buttons were not conducive to use with gloves, resulting in the preposterous " Senior Captain Matthew Renaud, Engineer Operator Robert Bebee, Firefighter Robert Gamer and Probationary Firefighter Anne Sullivan are collectively referred to as the Downed Firefighters. 5 situation that a firefighter in an emergency would have to remove protective gloves in the middle of firefighting to activate the radio's emergency call button? 43° Because of the failures of the Motorola Solutions system necessary and foreseeable radio communications during the fire conditions were unreliable and resulted in firefighters using face to face communications, running to the recipients of messages, delaying the firefighting and rescue operations to the detriment and increased injuries to plaints. 44 The Defendants were aware of the problems with the system and despite this knowledge marketed and sold the products representing that they were fit and suitable for use in fire conditions such as those at issue in this case. 4.5 The Motorola APX 7000 radio was supplied with a Scott E-Z Radio System and consisted of three components. The Scott E-Z Radio System components were inadequately protected from fire conditions with a thin casing that melted and caused involuntary “quick is a false indicator of intentional activation of a radio and resulted in Robert Yarbrough entering the building as part of rescue efforts resulting from false notification that a firefighter(s) was activating the quick key. The Motorola Solutions system further did not have any means of advising the users that such alerts were not a lalse indicator of volitional key activation as result of there being a short in the system. ‘This malfunction, coupled with other unreliable and inadequate radio communications, delayed rescue efforts and enhanced caused plaintiffs! injuries. Rather than use radio communications which should have been instantaneous, firefighters were forced to yell and attempt more difficult ways of communicating, to evacuate individuals, Such complications increased the risks and dangers confronted and 2 Despite multiple firefighters on scene, trapped and injured, not one “Emergency Call Button” was activated in the Southwest Inn Fire. 6 sustained by plaintiffs. Had firefighters known how unreliable the defendants’ radio products were they would have used altemative methods rather than imperil themselves during fire and rescue operations. 4.6 Despite its $140,000,000 price-tag, the Motorola Solutions system was regrettably Unsuitable for use in lire conditions, delayed or prevented necessary communications, and increased the risk of injury, death and harm to the firefighters on the ground and in the structure, This defective system resulted in and caused enhanced damages and injuries to the plaintiffs ‘These defendants also breached implied and express warranties relating to the communication systems, and failed to warn about the dangerous conditions created or promoted by their dangerous equipment. 4.7 In addition to defects, defendants marketed and sold the defective fire radio system without reasonable wamings about the device's limitations and defects, Indeed, instead of ‘warning of defects, these defendants misled and misrepresented the capabilities of the system, including the failure to disclose frightening limitations that would put the lives of firefighters at risk, Defendants ADSI and C1'S agreed to serve as subcontractors to partner with the other defendants to market, integrate and provide processing and instructions regarding Motorola's defective radio system. As such, all defendants arc liable for the enhanced and actual damages to plaintiffs complained about in this suit. Further, because the devices concem life safety issues, the duties owed by all defendants were non-dclegable. All defendants are sued for nogligence, negligent marketing, failure to war, deceptive trade practices, and strict liability, 48 — Defendants' conduct, jointly and severally, was more than mere negligence or oversight, ‘but was of such a reckless, defective and unconscionable nature that it rises to the level of legal malice and gross negligence. Defendants’ conduct caused Plaintiffs to enter buming structures with the misplaced trust and confidence that they could get out or be rescued quickly if they radioed for help. lnstead, these firefighters’ communications’ were crippled and unable to convey even basic information to facilitate a speedy rescue because of the defendants’ defective product. Defendants, jointly and severally, should be punished for their dangerous and reckless ‘conduct and Plaintiffs seek punitive damages from each, 49 Inaddition to the deceased firefighters and Robert Yarbrough, this suit is filed on behalf of the wrongful death beneficiaries and loved ones possessing loss of consortium, loss of society, support, love and affection claims. Each of the plaintiffs seeks damages, both compensatory and punitive, from cach of the defendants. The survival claims of the deceased plaintiffs are also ‘brought in this suit against the defendants, jointly and severally. v. DESIGN, MARKETING, AND PRODUCT DEFECT CLAIMS 5.1 For reasons alleged herein and as may be proved at trial, each of the defendants is liable for one or more of the following claims that was/were a proximate cause of Plaintiffs damages: design defect, manufacturing defect, deceptive trade practices, strit liability, marketing defect, failure to warn, breach of warranty (implied and express), and for enhanced damages. The marketing defects included at least the following: = representing that the Motorola radio system provided reliable communications when life and limb were at stake; + representing that the Motorola system provided reliable controls for command operations, = failing reasonably to disclose the restrictions and limitations of the system; = failing to disclose problems about the "bonk" problems with the devices; = providing unreasonably incomplete instructions on how the radios would fail to operate in real life scenarios; — failing to provide reasonable warnings to firefighters regarding operational limitations of the radio system prior to the fire made the basis of this suit; and ~ overstating the abilities and reliability of the radio devices and communication system, Had Plaintiffs known that defendants’ devices and communication system were not as reliable as sdvertised and marketed, or that these devices would interfere with and impede the ability of others to reasonably communicate during a fire event, they would not have taken the risks they did take or would have taken other measures to safeguard against risks that resulted in their deaths and injuries complained of in this suit. VL NEGLIGENCE 6.1 Defendants, jointly and severally, were negligent in designing, manufacturing, and/or ‘marketing the products and their negligence was a proximate cause of Plaintiffs" injuries and damages. Plaintiffs also allege that defendants’ products were intended to be used in ultra- hazardous activities and, as suck, Defendants are liable for slight negligence and strict liability Defendants were also negligent in failing to provide reasonable warning about their products. VIL. AGENCY AND RESPONDEAT SUPERIOR THEORIES 7.1 Each defendant is alleged to be liable under theories of ostensible, apparent, implied and express agency. Each defendant is liable under theories of conspiracy, respondeat superior, single business enterprise, and principal/agent liability. vii. GROSS NEGLIGENCE 8.1. Plaintiff would further show that each of the acts, conduct and omissions of the Defendants, taken singularly or in combination, constitutes gross negligence, leyal malice and were proximate and producing causes ofthe injuries and damages to plaintiffs. The conduct, acts and omissions of Defendants involved an extreme degree of risk, considering the probability and magnitude of the potential harm; said Defendants had subjective awareness of the risks involved, ‘but nevertheless proeceded with conscious indifference to the rights, safety, and welfare of the firelighters, Such gross negligence/leyal malice entitles Plaintiffs to recover exemplary damayes against each detendant IX. BREACH OF WARRANTY 9.1 The allegations contained herein arc incorporated by reference as if'set forth in full 9.2 Plaintiffs further allege and intend to show that the defendants breached express, statutory and/or implied warranties, including but not limited to the warranties of fitness, use, and appropriateness as life-safety deviees and fire communication systems x. DAMAGES 10.1 Robert Yarbrough is suffering severe and permanently disabling injurics, including closed head injury, traumatic brain injury, PTSD, broken bones and body, and loss of the ability to function as he once did prior to the fire, All plaintiff seck damages for injuries und death, as applicable, as follows: (a) past pain and suffering; (b) future pain and suffering; (c) past 10 disfigurement; (4) future disfigurement; (c) past impairment; (f) future impairment; (g) past ‘mental anguish; (h) future mental anguish; (i) past lost wages; () future lost wages; (K) past medical and other expenses; and (|) future medical and other expenses. 102 Plaintiffs Sebina Bebee, Mary Sullivan, and Ainy Yarbrough seek their individual damages as claimants against each of the defendants, and representatively on behalf of the deceased firefighter plaintifis. 10.3 The sum of Plaintiffs? damages is within the jurisdictional limits of the Court. Plaintifis, seek damages which are in excess of $1,000,000 each and all conditions precedent to bring the claims in this case have occurred or been performed by plaintiffs. XI. NOTICE OF INTENT TO USE DOCUMENTS Notice is provided that Plaintiffs intend to use any and all materials, tangible things, information and/or documents produced and/or obtained via discovery in this ease, subject to applicable evidentiary rales. This statement is not intended to be, nor is it, any admission that matters exchanged in discovery in this care are admissible in evidence. XU. JURY DEMAND 12.1 Plaintiffs demand a jury trial and the appropriate jury fee will be paid in accordance with the law, WHEREFORE, PREMISES CONSIDERED, Plaintiffs, as named herein, scek actual damages against the named defendants in at least the following particulars: 1) Actual damages in excess of $1,000,000.00 each; 2» 3 4) » Punitive damages in an amount in excess of $5,000,000.00; Cost and interest (pre-and post-judgment); Attomey's fees as permitted at law; and All other relief to which Plaintiffs may be entitled. [SIGNATURE ON FOLLOWING PAGE} R Respectfully submitted, és/ Benjamin 1, Hall, UL Benjamin L, Hall, UT State Bar No, 08743745 William Van Fleet State Bar No. 20494750 ‘The Hall Law Firm 530 Lovett Blvd. Houston, Texas 77006 Telephone: (713) 942-9600 Facsimile: (713) 942-9566 EXHIBIT “E” 9201s 70823 PM (cvs Dani - Distt Clark Waris County velope No. 6460684 2015-31080 / Court: 125 ums: notion Suto CAUSE NO. ANTHONY TREG LIVESAY, and BRANDY § IN THE DISTRICT COURT OF CHISOLM, as next friend of W.J.L.,a minor, § and C.0.L,, a minor, 8 Plaintiffs 8 . § HARRIS. COUNTY, TEXAS § Ss MOTOROLA SOLUTIONS, INC. SCOTT § ee SAFETY, INC, and SCOTT HEALTH AND. § < SAFETY, INC., CRITERIUM SYSTEMS, INC$ i? & o/a SOUTHWEST INN, HARENDRA § & MATHURIA, individually, and d/b/a BHOJAN § Po a/k/a BHOJAN INDIAN RESTAURANT, —§ S SHRI SIDDHIVINAYAKA, LLC, and 5 > ROGER CHEN, 5 © Defendants § ) DISCOVERY CONTROL PLAN 1. This lawsuit is requested to be governed under a Discovery Control Plan Level 3 as provided by the court. a. REQUESTS FOR DISCLOSURE Anthony Treg Livesay, and Brandy Chisolm, as next friend of WJL, a minor, and COL, a ‘minor,! request that all Defendants disclose the information and material provided for production in TRCP 194.2(3)-(). . s@ tt GS en PARTIES x 3. Anthony Treg Livesay is an individual residing at sich, Houston, Texas, #1334, Houston, Texas 77030. As mandated by C.P.R.C, s30.0@ driver's license number is TX 120114767; SSN AXX-XX-XTI6, Se 4. Brandy Chisolm, as next friend of WIL, er, and COL, a minor, is a Texas resident \esiding at 25980 Lakeview Way, Montgomer(Tekas 77316. As mandated by C.P.R.C. $30.014, river's license number is Tx DL 000K SSN XXX-XX-X624, Motorola Solutions. In. isa gelpivare corporation, doing business in the State of Texas and ag can be served with service of progesi by service on its registered agent, CT Corporation System, at its registered business addeat 99 Bryan Stee, Suite 900, Dallas, Texas 75201-3136, 6 Scott Safety, Inga a foreign corporation, not licensed to do business in the State of Texas but doing sn State of Texas, despite not maintaining a regular place of business in the State, orToxas ‘which does not maintain a registered agent for service of process. Scott Safety, Ine, regulary transacts business in the State of Texas as part of is sales ofits communications system for use with fire department communications, This lawsuit arises of out its contacts with the "Hereinafter referred to as “Plaintifis”. State of Texas, directly or indirectly, when packaged with the Motorola Solutions Systems sold to the City of Houston. Service of process may be effctuated under Article 2.11 of the Texas Corporation Act on the Texas Secretary of State who shall immediately cause one of the copies thereof to be forwarded by registered mail, addressed to the corporation Scott Safety at its registered office Scott Safety, 4320 Goldmine Road, Monroe, North Carolina 28110. 7. Scott Health and Safety, Inc. is a foreign corporation, not licensed to Wodbusiness in the State of Texas but doing business in the State of Texas, despite not maintain i Segular place of business in the State of Texas, and which does not maintain a registered Nia service of process. Scott Satety, Inc., regularly wansacts business in the State of iis as part of its sales of its communications system for use with fire department. negation This lawsuit arises of out its contacts with the State of Texas, directly or incr gen packaged with the Motorola Solutions Systems sold to the City of Houston. Service of frakess may be effectuated under Article 2.11 of the ‘Texas Corporation Act on the Texas Seasaty of State who shall immediately cause one of the copies thereof to be forwarded by re mail, addressed to the corporation Scott Safety at its registered office Scott Health wal St, Inc., 4320 Goldmine Road, Monroe, North Carolina 281102 eo 8. Defendant eg Systems, Inc, ba Southwest inn isa Foreign (Corporation, duly formed and existing enli of the State of California. Service of citation may be effected on it by service of proc ‘on its registered agent/president/owner, Roger Chen, at its registered business address, 6855 Southwest Freeway, Houston, Texas 77074. toro! ns Ine Seott Safety, Scout Health and Safety, Inc. are hereinafter collectively referred to as the “Communication System Defendants”. 3 9, Defendant Harendra Mathuria, Individually and d/b/a Bhojan a/k/a Bhojan Indian Restaurant is a resident of Missouri City, Texas, Fort Bend County residing at 1123 Concord Place Drive, ‘Missouri City, Texas 77459. Said Defendant may be served with service of process at that address. 10. Roger Chen is an individual and may be served by mailing of serving process of service on hhim at 6895 Southwest Freeway, Houston, Texas 77074 or at his home. 11. Shr siddhivineyaka LLCis Texas Corporation and maybe serv Gidh process by serving its registered agent Kaushik Oza at the registered business address salt 2 llcroft, #C4, Houston, Texas 77036, Iv. °@ < BRIEF NOTICE E&GPS* © 12. On March 31, 2013, Anthony Treg Livesay sometimes referred to as Tony Livesay or S Tony) was severely injured when a wall fet, obi ‘as he was escaping the Southwest lan fire located in the city limits of Houston, Hanis Cbunty, Texas. He had entered the building as part of the rescue which had received a repéaigil Quick Key of the Motorola Solutions communication Oo System using the Scott E-Z Radic stem. Unbeknowst to the firefighters at the scene of the *s this was a false keying cq a result of a short of the wires in the Scott B-Z, Radio System. The Motorola Solutipagssystem in service for approximately one month was deficient in > performance, deta instructions to firefighters or cut them off entirely without notification to the oS LS °Criterium Systems, Inc., Mathuria Harendra, Individually and D/b/a Bhojan A/k/a Bhojan Indian Restaurant, Roger Chen, Shri Siddhivinayaka LLC, are hereinafter collectively referred to as the “Property Defendants”, Discovery is just begi " Thus, allegati de in parton information, belief and preliminary work. This complaint may be amended. 4 speaker. Numerous other failures of the system caused delays in both rescue as well as evacuation, ofthe building, Plaintiff Tony Livesay was injured just feet from escaping the fire when a wall fell on him. He was severely injured, 13. Motorola Solutions sold an approximately $140,000,000 digital radio system to the City of Houston for use by the Houston Fire Department. This system was allegedly de table eX for use in situations such as the Southwest Inn fire in question. The system Wad implemented on or around April 2013. However, at the time of its implementation, despit tations by Motorola 5 Solutions as to its suitability for usc, it was unsuitable for the antigippted and actual use. Its failures Yo > included the following: @ S a. Excessive “bonks” when a firefighter: woes ‘out of the system and unable to access. the system - 339 times in the first tniepininutes of the fire; b, Firetighters shut out of the syste@.056 times after the collapse of the roof and when Livesay was attempting to 1 \ ssicte the downed firefighters; Digital Delays betwe é heard by another uge® i) ie times a firefighter speaks and the message is sent and = 1-15 seconds, 4 ‘eys" when u radio microphone is accidentally struck causing the Talk Groppto be frozen for 3-4 seconds; as ® DigiG@}-Cliffs occurring suddenly and without warning - when the radio goes out of oO _Séaitze within a building when a foot away it functions; £ The use of the same “bonk” tone for both the out of range tone and the Talk Group busy tone so that the firefighter cannot determine if the Talk Group is busy and he ~can just waitin eads be able-to speak; 8 Malfunctioning equipment not suited for fire reasonably foreseeable conditions ‘causing the housing and inside wiring to fuse making the radio inoperable; h, Unsuitable equipments causing the radio of one of the Downed Fitefighters® to send ‘out multiple keyed mic signals falsely indicating intentional radio activation falsely ate, indieating tothe firefighters, inluding Anthony Livesay, who waS\With revue, that <@O CE 2 rescue was needed, rather than recovery; i. Bleeding over from one Talk Group to another result in additional “bonks” preventing usage during the fire of the equipment needed for adequate y) communication during the tire; first hour of the fire presented unusabl@alk time - 10% of the frst hour of the fire; k, Overrides of firefighter commusightion by CEC radios with no notification to the ee firefighter in the building. pbrrouta not know his emergency transmission had not been heard despite aliions that it had been successfully transmitted; os 1 Using radios wih Bexgency Call” buttons unsuitable for use in a fire because the a? buttons nese touse with gloves, resulting inthe preposterous situation that a firetigh Be ‘in an emergency has to take off his gloves in the midst of the fire to OS exh the emergency call button,* © ‘Senior Captain Matthew Renaud, Engineer Operator Robert Bebce, Firefighter Robert Gamer and Probationary Firefighter Anne Sullivan are collectively referred to as the Downed Firefighters. ——— ——Pespite-saultiple firefighters on scene, tapped and injured, not one “Emergency Call Button” was activated in the Southwest Inn Fite. 6 14. Because of the failures of the Motorola Solutions system sold to the radio communications during the fire were unreliable and resulted in the firefighters using face to face communications, running to the recipients of messages, delaying the fighting of the fire and the rescue. In the casc of Plaintiff Anthony Livesay seconds did in fact count and resulted in his delaying his exit from the : a building and consequent life altering injuries. eS aS 15, ‘The Communication System Defendants were aware of the problefus)with its system and of) despite this knowledge sold the product and represented its suiabiig BF use in fires such as the Southwest Inn fire, cy 16. The Motorola APX 7000 radio was supplied with a sai 'E-Z Radio System consisting of three components. ‘This system was unsuitable for use ine ach as the one in question. The Scott E-Z Radio System components were eT with a thin casing that melted and caused the “quick keying” to occur. This was a' Gai icator of intentional activation and resulted. in Tony Livesay entering the building a girot rescue which had received false notification of a firefighter activating the quick key. ‘EMoorola Solutions system further did not have any means of advising the users that this swaagi ee system, ‘This combined with fadlequate radio communications such that face to face was the only reliable certain method Bog egress from the building and caused his injuries, Rather than use the radio commundins which should have been instantaneous, HFD was forced to yell into the fire at Tony tify ‘to evacuate, hoping he would hear in time to evacuate and avoid injury. Tony Livesay dove out awindow and was within a few feet of escaping injury when the wall collapsed on him, He was close to getting out in time, but not quite, and consequently was severely injured. ———— Despite ts 3140;000,000-cost-the Motorola Selutions system was unsuitable for-use_delayed or prevented communications, and increased the risks to the firefighters on the ground and in the structure. It was a proximate end producing cause of the injuries to Plaintiff 17. The actions of the Property Defendants were as follows and occasioned the fire in question, and the trapping of the Downed Firefighters, and increased the hazard of their rescue, to Tony Livesay's damage, The actions of the Property Defendants included as follows me) 1) the active and continuing negligence of the defendants; _ J 2) failure to war of dangerous conditions of which they. og which Plaintiff Anthony Treg Livesay had no knoipiige; actual knowledge and of 3) failure to warn of dangerous conditions that thé@had created and of which Plaintiff Ss Anthony Treg Livesay and no Trefightee ill knowledge; 4) Property Defendants! unlawful or unjehitted use of the property where firefighters were tapped and perished; © 5) Property Defendants’ Aagrag tna repeated failure to comply with life/safety laws, rules and regulations. idea to prevent structural failure ond improper storage of highly Aarmable © 6 Shs engaging in unpermitd and una operations and uses of 7 SRepery Defendants! compromising the structural integrity of the building without warning the firefighters of same; 8) Property Defendants’ stockpiling fuel sources inside a building that was not permitted “or allowed-to-be-used-in-such a fashionp——— 9) Property Defendants' operating ignition sources in an unauthorized manner; 10) Property Defendants’ trespassing upon the permitted uses ofthe structure that trapped certain fighters, killing or injuring them, and which trespass was a cause of Plaintiffs" damages; 11) Property Defendants trespassing upon the lawful or authorized ror the building and/or negligently advising firefighters after they ove scene to enter the building because of the presence of others which was.EiW8 or unsupported by the known facts; building and fire codes; &y 13) Property Defendants’ maintaining sa installing roof coverings without proper inspections, engineering sndiorSaptovel; 14) Property Defendants’ i ‘wantonly placingcertain tirefighters’ lives in peril without any warning oie of dangerous conditions cy 15) Property Defendants“ “failing to comply with applicable laws and non-delegable duties. oo 18, Serco Re Engineer Operator Robert Bebee, Firefighter Robert Gamer and Probationary tae Anne Sullivan died after they entered a death-trap created by the Property ose, For up to 15 minutes at the scene on May 31, 2013 defendants had the ‘opportunity to advise Downed Firefighters of the dangerous conditions. Indeed they or their agents negligently told the Downed Firefighters and other firetighters that people were inside the burning — building: Defondantsend/ortheir agents stood around.and watched Downed Finefightersand others Prepare themselves to enter the building in the brave quest to save trapped victims. Defendants failed to inform/wam Downed Firefighters of the dangerous conditions they had created or were aware of, Defendants! conduct was more than mere negligence, even though it was at least that, it was also unconscionable, constituted negligence per se, legal malice and gross negligence. Defendants’ conduct caused Downed Firefighters to go into the building to search for others em act of active or continuing negligence for which Property Defendants are now liable, | 19. Downed Fitofighters died not solely from the fire that bowen to the scene; but also because of he active and continuing negligence of the Property 3efendans that invited them into ‘he dangerous conditions they had created or of which they w&te'aware. Downed Firefighters had Ss no knowledge he was entering a building that was oug-of’€ode, Their death is even more tragic because they were negligently encouraged to enter sieitding by the very property owners they had es come to help. eo oy VL 2 THE FIRERSN 'S RULE IS INAPPLICABLE. Defendants may try to coggpe ibility by asking the court to adopt the "fireman's rule" that has not been sanctioned by she Seas Supreme Court. This defense fails for at least three reasons: 1) the Texas Supreme cor has not officially adopted the fireman's rule and there is conflicting Texas case outorgieriting firefighters to recover damages; 2) even if the rule were recognized in Texas it watle-apply to premises liability claims and be available only to owner/occupiers of property and not to all defendants in this case; and 3) the conduct complained of in this case falls under several exceptions to the rule (j continuing/active negligence; created/known dangers; —witifal — —— 21, While there are lower level courts that have recognized the "fireman's rule,” there are other Texas cases that have allowed firefighters to recover damages sustained during their efforts to fight a fire, The Fifth Circuit Court of Appeals, interpreting Texas law, observed in the case of Harris v. Atchison. Topeka and Santa Fe Railway Co., 538 F.2d 682 (1976) that the Texas Supreme Court has not expressly adopted the fireman's rule to bar a firefighter's recovery. In se point, the Harris court writes: & ge At the outset we are confronted with Phillips’ argument thaahe”"firemen's rule” should preclude recovery. Although many jurisdictions forbjdiptoveries by firemen Tor injuries suffered at the scene of negligently caused comiI§Brations, Texas has no such rule, [ts courts have sustained recoveries by fi gs least three occasions, In Houston Belt & Terminal Ry. Co. v. O'Leary, | 601 (Tex. Civ. App.- 1911, writ rePd), defendant railroad negligentlys@iowed a boxcar containing fireworks to collide with other cars during switehit operations. Plaintiffs intestate, the chief engineer of the fire department, approdvhed the boxcar to extinguish the fire, One of a recurring scries of explosiongfgeally injured him. A jury verdict for plaintiff rejected defense assertions ofs@lBnti non fit injuria and contributory negligence. The court affirmed, conckuding that each explosion constituted an independent negligent act. 136 S.W. 3605. Notonly do Texas courts pv no objection to recoveries by iremen, they are even willing to indulge in strate! reasoning to permit such recoveries, The Texas Supreme Court adopted tHE O'Leary theory of continuing acts of negligence in allowing a fireman to recoyet in a case arising out of the sume accident as O'Leary. Houston Belt & TerminadsBy. Co, v. Johansen, 107 Tex, 336, 179 S.W, 853 (1913). Despite shal ph the continuing negligence theory remains viablein Texas, Meafee v. Travis, GusCorp., 137 Tex. 314, 153 S.W.2d 442 (1941); deme Products Cov. Wenzel S.W 2d 139 (Tex.Civ.App. Houston (Ist Dist.) 1969, no writ Id. Ar 686-87. public employees do not leave their rights to recover damages caused by another's negligence at the door of their employment. The court continues "Given the recent trend in Texas to eliminate absolute bars te-recovery--we feel safe in holding: that public safety officers do-not lose the right to sue for ul damages upon accepting public employment ld, at 688. 23. Just as in Harris, Plaintiffs did "not lose, [his] right to sue for damages upon Accepting public employment,” especially not for conduct as egregious as the defendants’ acts in this case, Further, ‘ot all of the defendants in this case are ‘owner/occupiers, The individually named defendants are in fact non-premises owners who retained or exercised control over the offensive agi ‘complained AX of in this suit. Their decisions and control caused the enhanced injuries and deaths involved in this case. The conduct was unconscionable, negligent, unlawful and, sooty for which theycan s be held individually liable. Defendants Chen and Mathuria we rule sngon ont sgt eee stern Sg mde witha i east negligent and grossly legal authority; Hlagranily disregarding city ne ring life/safety measures needed for operations on the premises; debating non-~ wea responsibility for safety measures and compliance with laws while endangering the pu6li and Plaintiff instructing or permitting unlawful N\ restaurant and motel operations on the brapety that were not authorized; instructing that needed action to address fucl sources on the cis ‘were not addressed; undercapitalizing operations to address lawful demands; not: sel oS : pairing/replacing fie hazards and defective equipment on the Property; conspiring to sell 8 real property and/or dissipate other corporate assets to dettaud creditors; including Plaigiifs as judgment creditors, ss 2. Controlling the operation and maintenance of defective equipment and fire hazards on the property, ~~ ——Preventingnevessaryactionstoaddressfife/satety deficiencies hatcontributedtothe 12 ‘conditions causing injuries to Plaintiff Anthony Livesay and damages to his children; 4, Conspiring to and encouraging the trespass upon and use of property not permitted for use; 5. Failing to remedy dangerous conditions and equipment andlor wam of their existences & we 6. Refusing to repair the premises and equipment to ait known or created dangerous conditions; and vil. ROOF COVERING AND Ag¥IC ALLEGATIONS 25. tn 2004, Derendant Criterion knew it ys purchasing an aged property builtin cirea 1960s. The propertyalso extibted man enovaign and additions. Public records reveal that such changes \were made that had to bein comin updated building and fire codes, Defendants alterations to the property placed stresses o1 2 property from its original purpose and construction. Such stresses created dangerous seit conditions on the premises that contributed to the death of ow te penton epee toad ie oot covering ontherootihoufrstundenaking needed structural and engineering studies to determine ‘he appropriates of same, Such negligence created an increased dangor ofbuilingcollapse, Some of these Ee included the danger of entrapment, compromised load-bearing walls and promoted the risk of roof collapse, Thus, while the firefighters arrived at the scene to fight a fire, “ney Were unaware of the-defe alterations that-had-ereated das conditions. Plaintiffs 3 also expressly pleads the continuing/active negligence theory against all Property Defendants for encouraging Downed Firefighters to enter the building to rescue people who weren't in the building. vill. CONTINUING/ACTIVE NEGLIGENCE ALLEGATIONS 26, Downed Firefighters were not killed the moment they arrived at the sees Stine fire, Best evidence suggests that a length of time passed before Downed Pitgneated the building at as ed and killed. Therewas the invitation ofthe defendants. There, Downed Firefighters became ent more than sutficient time forthe defendans, collectively and singdiply, to warm or inform Downed Firefighters and others of latent and non-obvious dangerous wiltions in the building that created increased risk of ham/injury and death to the firefight 2 Too, there was enough time for the defendants not to have negligently represented to Digetea Firefighters that people were still inside the building. Such affirmative and negligent eoi{duet caused Downed Firefighters to further risk his 8 life to try to locate the alleged lost soulgSuch conduct by Property Defendants constitutes opéity Defendants can and should be held liable for actual and 2 Gesiuing duty for defendants to affirmatively diselose to the firefighters that they had matd@iiffy altered the integrity of the building, Their silence in the face of impending danger algQ}vonsiues continuing negligence. Plaintiffs expressly plead the continuingactve #égtigence doctrine agains all Property Defendants, mA reali if any Property Defendant makes it to appear that 1) it was a lawful owner/occupicr that caused the fire in question and 2) that Plaintiff Anthony Livesay was 10 be accorded the duties owed to a licensee, which Plaintiff denies, then Plaintiffs allege that only an merfoccupier camrassert suet Iytotheext using the fre, Nothing iath law on this issue permits an owner/occupicr to take refuge for other affirmative acts of negligence that further imperil a firefighters life. IX, NEGLIGENCE PER SE oth 28. Property Detendants, jointly and severally, are liable for negligence per se Aad for cumulative violations of life/safety laws. Their conduct crested dangerous condition it contributed to the damages and deaths complained of in this litigation. Their violin of such a cumulative, repetitive and frequent nature as fo constitute more than mere ne ie sand rises to the level of willful, wanton, reckless and unconscionable conduct deserve ‘actual and punitive damages. At least the following known laws and regulations arc betel to have been repetitively violated by defendants: ~ e° & Houston Fire Code sections 101107.5, 109.1 , 901.4, 901.4.1 , 801.4.2, 901.44, 901.6, 901.6.1 , 901.62.901,7901., and 901.9; b. 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