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HomeMy WebLinkAboutContract 37712MOTOROLA intelligence everywhere" C1 i 1' ��-�i�1F�il�e. ooNv TTI ,;�c1 No . 3� � COMMUNICATIONS SYSTEM AGREEMENT CITY OF FORT WORTH, TX PORTABLE TOWER REVISION HISTORY: 05-2M8 Draft JP Draft based on final Local Gov Refresh CSA City of Fort Worth, Texas City of Fort Worth, Texas C®MMUNICATI®N SYSTEM AGREEMENT City of Fort Worth, Texas Motorola, tnc., a Delaware corporation ("Motorola"), and the City of Fort Worth, Texas, a municipal corporation organized under the laws of the state of Texas and situated in Tarrant, Denton, and Wise counties, Texas ("Customer or the City") enter into this Communications System Agreement (the "Agreement" or "Communications System Agreement"), effective as of the last date signed below (the "Effective Date"), pursuant to which Customer will purchase and Motorola will provide Customer with a portable tower. Section 1 EXHIBITS The Exhibits below are hereby incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below. Exhibit A Statement of Work Exhibit B Payment Terms Exhibit C System Acceptance Certificate Section 2 DEFINITIONS Capitalized terms used in this Agreement and not otherwise defined within the Agreement have the following meanings: "Communications System" or "System" is the communications system described in Exhibit A, including, but not limited to, the Equipment, Software and all services described in the, Statement of Work, Acceptance Test Plan and Equipment List. "Equipment" is the equipment specified in the Equipment Lists "Motorola Software" is software whose copyright is owned by Motorola. "Non -Motorola Software" is software whose copyright is owned by a party other than Motorola. "Software" includes Motorola and any Non -Motorola Software that may be furnished with the Communications System. ® MoroRo�a Page 2 Motorola City of Fort Worth, Texas Section 3 SCOPE OF AGREEMENT A. SCOPE OF WORK. Motorola will assemble and test the Communications System as specified in Exhibit A and in accordance with this Agreement. Customer will perform its responsibilities as specified in Exhibit A and in accordance with this Agreement. Motorola shall perform all work described in and pursuant to this Agreement in a professional manner and in conformance to professional standards. B. CHANGE ORDERS. Either party may request changes within the general scope of this Agreement. If a requested change causes an increase or decrease in the cost of or time required for the performance of this Agreement, Motorola and Customer will agree to an equitable adjustment in the Agreement price or performance schedule, or both; provided, however, that if Motorola requests the change and Customer consents, such change shall not result in or create any delay in any milestone set forth in the Statement of Work, Exhibit A unless otherwise specifically agreed to in writing by Customer. Motorola is not obligated to comply with requested changes unless and until both parties execute a written change order. Changes that increase Customer's costs under this Agreement by more than $25,000.00 must be approved by Customer's City Council prior to execution of a written change order. C. ADDITIONAL PRODUCTS. For one (1) year after the date of Final System Acceptance, Customer may purchase additional Equipment as add-ons to the Communications System ("Add -on Equipment"). If Customer and Motorola have agreed to a convention for processing electronic data interchange ("EDI") transactions, purchase orders may be transmitted electronically. Each purchase order must specifically refer to this Agreement and will be an offer by Customer subject to Motorola's acceptance. Except for pricing and delivery terms, which must be stated on the purchase order, Customer and Motorola agree that the applicable terms of this Agreement will be the only terms and conditions that govern the purchase and sale of products identified on such purchase orders. Customer and Motorola agree that the procedure for payment of all additional products so purchased will be in accordance with the procedure set forth in Section 5 this Agreement. D. MAINTENANCE SERVICE. After the first year following expiration of the Warranty Period, Customer may purchase maintenance services and software support for the Communications System pursuant to a separately executed service agreement and software subscription agreement between Motorola and Customer. E. MOTOROLA SOFTWARE. Any Motorola Software furnished will be licensed to Customer solely according to the terms and restrictions of the applicable software License. Customer hereby accepts all of the terms and restrictions of the Software License Agreements as negotiated between Motorola and the City of Fort Worth. F. NON-MOTOROLA SOFTWARE, Non -Motorola Software furnished by Motorola will be subject to the terms and restrictions of its copyright owner unless such copyright owner has granted to Motorola the right to sublicense such Non -Motorola Software, in which case the Software License Agreement (including any addendum to satisfy /'', MO�dROLA Page 3 Motorola City of Fort Worth, Texas such copyright owner's requirements) shall apply; provided, however, that nothing in this Section 3.17, the Software License Agreement or any restrictions or requirements of copyright owners of Non -Motorola Software, shall be deemed or construed to limit or restrict in any way the System Functionality Warranty provided by Motorola in accordance with Section &B of this Agreement. G. PROJECT MANAGEMENT. Any and all of Motorola's officers, agents, employees, and subcontractors may, at the option of Customer, be subject to a security check at any time. Customer shall have the right to require the removal from Customer's premises any of Motorola's officers, agents, employees or subcontractors if Customer reasonably determines, such individual's presence is inappropriate under the circumstances, and Motorola agrees that it will immediately comply with and assist Customer in such removal. At Customer's request, Motorola shall promptly provide Customer with the names, dates of birth, drivers' license numbers and other identification documents required by Customer of Motorola's officers, agents, employees or subcontractors that will be present on Customer's premises in order for Motorola to fulfill its obligations under this Agreement for the purpose of standard background/criminal checks. H. PROJECT STATUS MEETINGS. From the Effective Date of this Agreement until Final System Acceptance, Motorola agrees to conduct periodic project status meetings at locations specified by Customer. These meetings shall be conducted on not less than a monthly basis and may be conducted more frequently if the parties agree. Section 4 PERFORMANCE SCHEDULE A. Motorola and Customer agree to perform their responsibilities in accordance with the Statement of Work. The work shall be completed within 45 days from the receipt of the Deposit/Engineering fee. B. By executing this Agreement, Customer authorizes Motorola to proceed with the manufacture, assembly, integration, delivery, installation, and testing of the Communications System. No further notice to proceed, purchase order, authorization, resolution, or any other action will be required unless required by applicable laws or ordinances. Section 5 PAYMENT SCHEDULE A. The total contract price for all equipment, software and services provided under this Agreement is not to exceed $ 97.475 for which Customer agrees to make payments in accordance with the Payment Terms in Exhibit B. MOTOROLA Page 4 Motorola City of Fort Worth, Texas B. Freight charges for all Equipment, software and any and all other products and supplies provided hereunder are included in the Contract Price. All material to be shipped FOB Destination. C. Notwithstanding anything to the contrary in this Agreement, Motorola understands that Customer has appropriated no more than $97,475 for purposes of the manufacture, assembly, integration, delivery, installation and testing of the Communications System and all other work or services provided by Motorola or its subcontractors under this Agreement. Motorola understands and agrees that Customer shall not be liable to Motorola or any of its subcontractors for any sums in excess of such amount unless Customer's City Council first approves and appropriates sums in excess of such amount, in which case such additional sums shall also be included as part of the Contract Price as defined and interpreted in this Agreement. D. All invoices from Motorola shall be submitted to Customer's Project Manager or, in his or her absence, the Director of Customer's IT Solutions Department. Customer shall pay invoices for services and deliverables received and approved by Customer within thirty (30) days of receipt. If Customer has any questions or disputes regarding such invoices, Motorola shall make Motorola personnel available as needed to answer or resolve such, and Customer shall be allowed additional time to pay the questioned or disputed portion of those invoices. Section 6 TRAINING No training will be provided under this agreement. Section 7 Intentionally Omitted Section 8 Intentionally Omitted Section 9 WARRANTY A. WARRANTY PERIOD. The Equipment and Motorola Software is warranted for a period of one (1) year from 3 days after delivery, with customer inspection to occur within the three-day period, in accordance with the applicable limited warranties shown below. Customer must notify Motorola in writing if the Equipment does not conform to these warranties no later than one month after the expiration of the Warranty Period. C. EQUIPMENT WARRANTY. Motorola defects in material and workmanship Warranty Period. The Warranty Period will be stated in this section. ® �roroRo�.a warrants the Equipment against material under normal use and service during the for non. Motorola manufactured Equipment Page S Motorola City of Fort Worth, Texas At no additional charge and at its option, Motorola will either repair the defective Equipment, replace the defective Equipment with the same or equivalent Equipment acceptable to Customer or refund the purchase price of the defective Equipment, and such action on the part of Motorola will be the full extent of Motorola's liability hereunder. Repaired or replaced Equipment is warranted for the balance of the Warranty Period. All defective parts of the Equipment replaced under warranty shall become the property of Motorola. THIS WARRANTY DOES NOT APPLY TO a) Defects or damage resulting from use of the Equipment in other than its normal and customary manner. b) Defects or damage occurring from misuse, accident, water, or neglect. c) Defects or damage occurring from testing, operation, maintenance (except first line/front line echelon maintenance provided by Customer), installation, alteration, modification, or adjustment not (i) provided by Motorola pursuant to this Communications System Agreement or (ii) otherwise authorized in writing by Motorola. d) Breakage or damage to antennas unless caused directly by defects in material or workmanship. e) Equipment that has been subjected to unauthorized Equipment modifications, disassembly or repairs (including the addition to the Equipment of non -Motorola supplied equipment if not authorized by Motorola) which adversely affect performance of the Equipment or interfere with Motorola's normal warranty inspection and testing of the Equipment to verify any warranty claim. Customer's routine maintenance of the tower in accordance with product instructions will not void the warranty. f) Equipment that has had the serial number removed or made illegible. g) Batteries that carry a separate limited warranty. h) Equipment which, due to illegal or unauthorized alteration of the software/firmware in the Equipment, does not function in accordance with Motorola's published specifications or with the FCC type acceptance labeling in effect for the Equipment at the time the Equipment was initially distributed from Motorola. i) Scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment. j) Software (which is covered by the Software License Agreement). k) Normal and customary wear and tear. ® MOTOROLA P8g'@ 6 Motorola City of Fort Worth, Texas I) On site response, except where it pertains to specific new equipment, that is purchased as part of this Agreement. m) After hours warranty support. n) Systems diagnostics or response is not included as part of this Agreement. o) Any services requested that do not pertain to specific equipment that is part of this Agreement, will be billed at prevailing time and material rates. D. Intentionally Omitted E. These express limited warranties as set forth in this Section are extended by Motorola to the original end user purchasing or leasing the System for commercial, industrial, or governmental use only, and is not assignable or transferable. These are the complete warranties for the Equipment and Software provided pursuant to this Agreement. F. THESE WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOR OLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 10 DELAYS A. Successful project implementation will require cooperation and fairness between the parties. Because it is impractical to provide for every contingency that may arise during the course of performance of this Agreement, the parties agree to notify the other in writing if they become aware that any condition will significantly delay performance. The parties will agree to reasonable extensions of the project schedule by executing a written change order that may, or may not, have a financial impact. B. Under no circumstances will either party be responsible for delays or lack of performance resulting from events beyond the reasonable control of that party ("Excusable Delays"). Such events include, but are not limited to, acts of God, weather conditions, compliance with laws and regulations (excluding Customer's failure to properly and timely apply for all required FCC licenses), governmental action, bid protests, fire, strikes, lock -outs, and other labor disruptions, material shortages, riots, acts of war, and an Excusable Delay of a Motorola subcontractor. C. Customer will make available to Motorola the sites when scheduled and Customer will not otherwise unreasonably delay or prevent Motorola's performance of its responsibilities. In the event of a Customer delay during the time of shipment, Motorola may ship the equipment as scheduled to a location as designated by the Customer or if no such location is designated, a Motorola designated storage facility. ® iyyvroROL,4 Page 7 Motorola City of Fort Worth, Texas Motorola shall not ship equipment until advised by the City that the site is ready. If either party materially delays performance under this Agreement, Motorola and Customer shall discuss the reasons for the particular delay and negotiate in good faith a solution to address such delay and will execute a written change order that may, or may not, have a financial impact, if appropriate. Section 11 DEFAULT A. If Motorola fails to complete delivery, installation or acceptance testing in accordance with this Agreement, Customer may consider Motorola to be in default, unless an Excusable Delay has caused such failure. Customer agrees to give Motorola written notice of such default. Motorola will have thirty (30) calendar days from the receipt of such notice to provide a written plan of action that is acceptable to Customer to cure the default. Such written plan of action shall include milestones necessary to cure the default and timetables for achieving those milestones and shall be signed by Motorola and Customer. B. If Motorola fails to cure the default within the timetables and in accordance with the plan of action that Customer has accepted, Customer may (i) terminate any unfulfilled portion of this Agreement and, at Customer's sole option, complete the Communications System at a quality and to a capability equaling, that specified in this Agreement through a third party or (ii) if the Communications System or any component thereof cannot be completed through a third party as provided in subsection (i) above, demand and receive specific performance by Motorola. If Customer completes the Communications System through a third party, Customer may recover all reasonable costs and expenses incurred in the course of completing the Communications System to a capability not exceeding that specified in the Agreement, less the unpaid portion of the Contract Price. Customer agrees to use its best efforts to mitigate such costs. Motorola's liability under this Section is subject to the limitations of the Section entitled Limitation of Liability of this Agreement. Section 12 LIABILITY AND INDEMNIFICATION A. GENERAL LIABILITY AND INDEMNITY. MOTOROLA SHALL BE RESPONSIBLE FOR ANY AND ALL TANGIBLE PROPERTY LOSS OR DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF MOTOROLA, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND/OR SUBCONTRACTORS, IN THE PERFORMANCE OF OR RELATED TO THE PERFORMANCE OF THIS AGREEMENT. IN ADDITION, MOTOROLA SHALL DEFEND, INDEMNIFY AND HOLD CUSTOMER HARMLESS FROM AND AGAINST ANY AND ALL LAWSUITS, CLAIMS, ACTIONS, DEMAND, LIABILITIES OR OTHER COSTS AND EXPENSES WHICH MAY ACCRUE AGAINST CUSTOMER TO THE EXTENT THAT THE SAME ARE CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF MOTOROLA, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND/OR /6►pTORO�.A Page 8 Motorola City of Fort Worth, Texas SUBCONTRACTORS. THE TERMS, CONDITIONS AND PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, B. PATENT AND COPYRIGHT INFRINGEMENT. Motorola will defend at its expense any suit brought against Customer to the extent it is based on a claim that the Equipment or Motorola Software infringes a U.S. patent or copyright, and Motorola will indemnify for those costs and damages finally awarded against Customer which are attributable to any such claim. Motorola's duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in writing of the infringement claim; Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the infringement claim. If a claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its option and expense procure for Customer the right to continue using the Equipment or Motorola Software, replace or modify it so that it becomes non -infringing while providing functionally equivalent performance, or grant Customer a credit for the Equipment or Motorola Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and Motorola Software. Motorola will have no duty to defend or indemnify for any claim that is based upon the combination of the Equipment or Motorola Software with any software, apparatus or device not furnished by Motorola; the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Equipment or Motorola Software; any Equipment that is not Motorola's design or formula; a modification of the Motorola Software by a party other than Motorola; or the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. The foregoing states the entire liability of Motorola with respect to infringement of patents and copyrights by the Equipment, Motorola Software, or any of their parts. Section 13 DISPUTES A. Motorola and Customer will attempt to settle any claim or controversy arising from this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If those attempts fail, the dispute may be mediated by a mediator chosen jointly by Motorola and Customer within thirty (30) business days after notice by one of the parties requesting non -binding mediation. If both parties consent to mediation, Motorola and Customer will share the cost of the mediation equally. The parties may postpone mediation until they have completed some specified but limited discovery about the dispute. The parties may also replace mediation with some other form of non -binding alternate dispute resolution CAW') procedure. Any mediation, ADR procedure or other negotiations or meetings MOTpROLA Page 9 Motorola City of Fort Worth, Texas pertaining to a claim, controversy or problem arising under this Agreement shall be held at a location in Fort Worth, Tarrant County, Texas. B. Any dispute that cannot be resolved between the parties through negotiation or mediation within two (2) months after the date of the initial request for non -binding mediation may then be submitted by either party to a court of competent jurisdiction in accordance with Section 18.J of this Agreement. Each party consents to jurisdiction over it by such a court. The use of any ADR procedures will not be considered under the doctrine of laches, waiver, or estoppel to affect adversely the rights of either party. Either party may resort to the judicial proceedings described in this paragraph prior to the expiration of the two -month ADR period if (a) good faith efforts to attempt resolution of the dispute under these procedures have been unsuccessful or (b) interim relief from the court is necessary to prevent serious and irreparable injury to such party or any of its affiliates, agents, employees, customers, suppliers, or subcontractors. Section 14 LIMITATION OF LIABILITY Except for personal injury or death, Motorola's total liability to Customer for claims or damages asserted by Customer, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the total Contract Price, IN NO EVENT WILL MOTOROLA BE LIABLE FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This Limitation of Liability will survive the expiration or termination of this Agreement. Section 15 INSURANCE From the Effective Date of this Agreement until Final System Acceptance, Motorola shall maintainI in full force and effect, a policy or policies of insurance as specified in this Section 14 to cover risks related to Motorola's scope of work under this Agreement. At a minimum, Motorola shall provide coverage of the types and at the limits specified herein: • Commercial General Liability: $1,000,000.00 per occurrence; TO) ,Mr) ,000 annual aggregate; • Business Automobile Liability: $1,000,000 combined single limit • Worker's Compensation: Applicable Statutory Limits The insurers for all policies must be approved to do business in the State of Texas. Certificates of Insurance provided by Motorola under this Agreement shall (i) list Customer as an additional insured on the commercial general liability policy, and (ii) MOTOROLA Pag@ 10 Motorola City of Fort Worth, Texas provide that the respective policy shall not be canceled, limited in scope or coverage, or non -renewed until after thirty (30) days prior written notice has been give to the Risk Manager, City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102. Motorola shall provide Customer with a copy of its Certificate(s) of Insurance prior to the effective date of this Agreement. Section 16 Termination Customer may terminate this Agreement, in whole or in part, at any time and for any reason following at least thirty (30) calendar days' advance written notice to Motorola. Customer shall pay Motorola for (i) all Equipment provided and services and other work performed by Motorola through the effective date of termination; (ii) actual and reasonable expenses incurred by Motorola in the removal of installation and test equipment from Customer's premises; and (iii) any actual and reasonable costs which may be borne by Motorola in the early and abrupt termination for convenience of subcontracts, provided that Customer has approved in writing the provisions of such subcontracts that relate to termination by Motorola or liquidated damages or other financial obligations of Motorola due to termination by Motorola, which approval shall not unreasonably be withheld. Section 17 FCC Licenses Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses and authorizations required for the installation, operation and use of the System before the scheduled installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC license applications, neither Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters. Section 18 GENERAL A. TITLE AND RISK OF LOSS. Title to respective Equipment will pass to Customer upon delivery to Customer's facilities. Full risk of loss, however, shall not pass to Customer until completion of the Installation of Equipment Milestone set forth in Exhibit B provided, however, that after delivery of Equipment to Customer's facilities but before payment by Customer to Motorola for that Equipment, Customer shall be responsible for any losses or damages to Equipment to the extent that such are directly caused by the negligent act(s) or omission(s) or intentional misconduct of Customer, its officers, agents, servants and/or employees. Title to Software will not pass to Customer at any time. B. TAXES. The purchase price does not include any amount for federal, state, or local excise, sales, lease, service, rental, use, property, occupation, or other taxes, all of which (other than federal, state, and local taxes based on Motorola's income or net worth) will be paid by Customer except as exempt by law. MOTOROLA Page 11 Motorola City of Fort Worth, Texas C. CONFIDENTIAL INFORMATION. Customer and Motorola will not disclose to third parties any material or information that is identified by either party to the other as proprietary and confidential ("Confidential Information") without the other party's prior written permission unless required by law; provided, however, that Customer may disclose Confidential Information of Motorola to Customer's employees, agents, consultants and other contractors, in which case Customer shall identify to such parties the nature and obligations of Customer with respect to that Confidential Information. Notwithstanding the foregoing, Motorola understands and acknowledges that the Customer is a public entity under the laws of the State of Texas, and as such, all information held by Customer or that customer has a right of access to is subject to public disclosure under Chapter 552 of the Texas Government Code. Customer may be required to disclose information that may reveal Motorola proprietary information to third parties under the Texas Government Code or by any other legal process, law, rule or judicial order by a court of competent jurisdiction. If either Customer or Motorola is required by law to disclose such material or information, the disclosing party will notify the other party prior to such disclosure. D. DISCLAIMER OF LICENSE. Except as explicitly provided in the Motorola Software License Agreement, nothing in this Agreement will be deemed to grant, either directly or by implication, estoppel, or otherwise, any license or right under any patents, patent applications, copyrights, trade marks, trade secrets or other intellectual property of Motorola. E. ASSIGNABILITY, This Agreement may not be assigned by either party without the prior written consent of the other party except that Motorola may assign this Agreement to any of its affiliates or its right to receive payment following at least thirty (30) days' advance written notice to Customer. F WAIVER. Failure or delay by either party to exercise any right or power under this Agreement will not operate as a waiver of such right or power. G. SEVERABILITY. If any portion of this Agreement is held to be invalid or unenforceable, that provision will be considered severable and the remainder of this Agreement will remain in full force and effect as if the invalid provision were not part of this Agreement. H. HEADINGS AND SECTION REFERENCES. The headings given to the sections of this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular Section to which the heading refers. I. ENTIRE AGREEMENT, This Agreement (including the Exhibits) constitutes the entire agreement of the parties regarding the subject matter of this Agreement and supersedes all previous agreements and understandings, whether written or oral, relating to such subject matter. This Agreement may be altered, amended, or modified only by a written instrument signed by the duly authorized representatives of both parties. MOTORO4A Page 12 Motorola City of Fort Worth, Texas J. GOVERNING LAW AND VENUE. This Agreement will be governed by and construed in accordance with the laws of the State of Texas. Venue for any action arising under or related to the terms and conditions of this Agreement shall lie in state courts located in Tarrant County, Texas or in the United States District Court for the Northern District of Texas, Fort Worth Division. K. NOTICES AND CORRESPONDENCE. Notices authorized or required under this Agreement must be in writing and, along with all written correspondence, mailed via United States Mail, certified, return receipt requested, to the below addresses: City of Fort Worth Attn: Project Manager IT Radio &Infrastructure Services 1000 Throckmorton Fort Worth, TX 76102 Motorola, Inc. Attn: Law Department 6450 Sequence Drive San Diego, CA 92121 As to written correspondence from one party to the other that concerns or is related to the clarification, proposed solution or any other situation requiring a written response from the other party, both Motorola and Customer shall have a maximum of ten (10) business days from receipt to respond in writing to such correspondence. If the receiving party believes that the contents of such correspondence does not conform to the requirements of this Agreement, or otherwise disagrees with such correspondence, it shall notify the sending party in writing within the above -stated ten (10) business days, defining in detail such non -acceptance. In the event that the receiving party finds the content of the correspondence in conformance to the requirements of this Agreement, it shall, wn the above stated ten (10) business days, notify sending party in writing of this fact, and such notification shall constitute acceptance of the content of the correspondence delivered. Because certain Agreement deliverable documents requiring Customer's approval may require more than ten (10) business days for Customer to complete its review process, Customer may have up to thirty (30) business days to review and approve documents and manuals relating to the functional specification and administration of the System or any portion thereof. L. COPIES. Customer shall have the right to make as many copies of Motorola's written application system documentation as necessary for Customer's own internal use (including, but not limited to, any consultants or other contractors retained by Customer for assistance related to this Agreement or the Communications System) except as prohibited by copyright restriction. Customer agrees that authorized copies will contain any trade secret notice found in Motorola's original document. In addition, Customer shall have the right to make as many copies of any user manuals, technical manuals, maintenance manuals or other similar types of documents provided by Motorola under this Agreement as necessary for Customer's MoroRo�a Page 13 Motorola City of Fort Worth, Texas own internal use. Customer shall also have the right to make copies of Motorola's software programs and documentation except as may be specifically prohibited under the Software License Agreement. M. MOTOROLA SUBCONTRACTORS AND SUPPLIERS. Motorola may not subcontract with a third party for the provision of any services or materials whose value or cost exceeds $1,000.00 without the advance written consent of Customer which consent will not be unreasonably withheld. Motorola will enter into written contracts with all subcontractors that are approved by Customer, which contracts shall incorporate this Agreement for all purposes. In no event shall Customer's approval of any subcontractor of Motorola relieve Motorola of its responsibilities and obligations under this Agreement. Throughout this Agreement and all Exhibits attached hereto, references to the duties and obligations of a specific subcontractor of Motorola shall also be fully binding on and enforceable against Motorola as if Motorola itself were providing the services or supplies provided by the subcontractor. N. DISASTER RECOVERY. In the event a disaster or accident beyond Customer's control impairs the operation of the System, Motorola shall use its best efforts to help Customer restore operations as quickly as possible at rates not to exceed those set forth in or calculated in accordance with those in the Service Agreement or those last paid by Customer for similar services. O, SECTIONS SURVIVING TERMINATION OR FINAL SYSTEM ACCEPTANCE. The terms and conditions of Sections 8, 10, 11, 121 131 18.J shall survive the termination date of and/or date of Final System Acceptance under this Agreement. P. RIGHT TO AUDIT.'Motorola agrees that Customer shall, until the expiration of three (3) years after final payment under this contract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of Motorola involving transactions relating to this contract. Customer may send a representative to a Motorola facility during normal business hours to conduct such limited review, or at Customer's request Motorola will provide copies of the specific documents to Customer's location for its review. Motorola books and records provided to Customer pursuant to this provision shall not be used, duplicated or disclosed to any other third party without the express written permission of Motorola, unless required by law. In no circumstances will Motorola be required to create or maintain documents not kept in the ordinary course of Motorola's business operations, nor will Motorola be required to disclose any information, including but not limited to product cost data, which it considers confidential or proprietary to Motorola. Motorola agrees that Customer shall have access during normal working hours to all necessary Motorola facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. Customer shall give Motorola reasonable advance notice of intended audits. (a) Motorola further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that Customer shall, until the expiration of three (3) years after final payment under the subcontract, have MOTOROLA Page 14 Motorola City of Fort Worth, Texas access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such subcontractor, subject to the provisions of Paragraph P above, involving transactions to the subcontract, and further, that Customer shall have access during normal working hours to all subcontractor facilities, and shall be provided adequate and appropriate workspace, in order to conduct audits in compliance with the provisions of this article together with subsection (3) hereof. Customer shall give subcontractor reasonable advance notice of intended audits. (b) Motorola and subcontractor agree to photocopy such documents as may be requested by the City. The City agrees to reimburse Motorola and or subcontractor for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. In witness whereof, the parties have caused duly authorized representatives to execute this Agreement in multiples on the dates set forth below. IN WITNESS WHEREOF City of Fprt Wo Name: Karen L. Montgomery Title: Assistant City Manapger/CFO Date: Approved Assista rm and Legality: City Attorney Date Approved: Q 1 I U I DR City Secretary Motorola, Inc. By: Name: � 0 e i J i �, Title: rn s s 0 i,l: P Date: �' 0��1�1A1� R�caR� CITY SECRETARY FT WORTH, TX MoroRota Page 15 Motorola City of Fort Worth, Texas ® MOTOROLA Page 16 Motorola City of Fort Worth, Texas MOTOROLA Page 17 Motorola CITY OF FORT WORTH POLICE DEPARTMENT PORTABLE TOWER - COMMUNICATIONS May 6, 2008 City of Fort Worth Police Department Portable Tower - Communications System Description /Statement of Work 5/6/08 PROJECT OVERVIEW The City of Fort Worth Police Department has requested information and pricing associated with a portable tower that can be deployed in conjunction with existing communications site equipment in the event of an emergency. The City's requirement includes the capability to deploy two-way communications antennas as well as microwave point-to-point antennas. The limitations placed on such towers as a result of their portable nature impacts the size and quantity of antennas on such a structure. As a result of this, Motorola is offering a portable tower system limited to the deployment of two-way communications antennas. Trailer No. 1—Two-Way Communications Radio Antenna Trailer 1. The portable tower system is a fully self-contained transportable trailer capable of being towed to any mission critical location and deployed with minimal effort and provides an automated mechanism to stabilize and raise the tower. 2. The portable tower system includes a fully -automated, Self-supporting and Guy -capable 106' Tower System (107' AGL), consisting of six (6) 21' each hot -dipped galvanized telescoping lattice tower sections. 3. The trailer's GVWR is 12,500 lbs., with overall length of 23'6", tandem, heavy duty Dexter axles — 7,000 lb. capacity each, 14,000 lb. capacity, and all -wheel electric brakes (12V). 4. The trailer will include four (4) Heavy Duty Telescoping Outriggers; 15,000 lb. Static Load Jacks. 5. The trailer utilizes a 2-5/16" Heavy Duty Ball Coupler or Pintle w/ two (2) P-70 Chains. 6. Customer equipment capacity is up to 2,000 lbs. 7. The tower's tilt and telescoping functions are powered by standard 120VAC/60Hz/1PH power, provided through an onboard 7KW diesel generator with integral 6.6-gallon fuel tank that can also power the tower base -mounted Halogen work light. 8. The tower will support up to three (3) Motorola TDF6471 6dB gain antennas on a supplied top -mounted three-way antenna mounting bracket. Antennas are not included. 9. The tower will utilize flexible low loss RF transmission lines such as LMR600DB, stowed on coax/cable reels, three of which are included. The transmission lines are not included. 10. The tower will be supplied with the following options: a Guy Kit with Torque Arm, Lightning kit, Grounding kit, Halogen Work Light, full size spare tire with Sub -Frame storage assembly, and Transportation to Fort Worth. i CITY OF FORT WORTH POLICE DEPARTMENT PORTABLE TOWER - COMMUNICATIONS May 6, 2008 TRAILER No. 1— FIRM PRICE $979475 HGAC Contract Number RA01-08 APC 207 Fixed Station Antenna Systems/Fixed Station Controls Price Validity is thirty (30) days. Terms of Payment: Depost/Engineering Fee: 35% of purchase price ($34,116.25). Balance of Payment: NET 30 ($63,358.75) 3 City of Fort Worth, Texas EXHIBIT B PAYMENT TERMS Depost/Engineering Fee: 35% of purchase price ($34,116.25). Balance of Payment: NET 30 ($63,358.75) MOTOROLA Page 18 Motorola Confidential Proprietary Exhibit C SYSTEM ACCEPTANCE CERTIFICATE Customer Name: Project Name: FINAL PROJECT ACCEPTANCE: Motorola has provided and Customer has received all deliverables, and Motorola has performed all other work required for Final Project Acceptance. Customer Representative: Signature: Print Name: Title: Date: Motorola Representative: Signature: _ Print Name: Title: Date: Motorola System Acceptance Certificate.FINAL.9.1.03.doc 'LOG NAIVIEv '1 1 1':� uthorize the Purchase of a Portable Radio Tower on Wheels from Motorola, Inc., Using a Houston� Galveston Area Council Cooperative Contract for the Information Technology Solutions Department for a Total Amount Not to Exceed 11 otorola Inc., using a Houston�Galveston Area Council Cooperative Contract for the Information Technology Solutions Department, for a total amount not to exceed $97,475.00 with payment due 30 days of - - • of • • The Information Technology Solutions (iTS) Department will deploy this two-way communications portable 'a.. lQUIV tower Willi exiStiilg cV1i111luillLationS Sits equipment or ds pall of an ellleigency stand-alone communication system. In the event of a disaster or crisis, the portable radio tower will allow ITS to quickly restore an outage of radio communications services. Additionally, the unit will enable the Radio Services Division to connect to the existing mobile emergency communications trailer, which allows the Public Safety Radio Communications to be functional. The City received a State of Texas Homeland Security Program Grant in 2006, (IV1�C G-15465) to enhance its capability to respond to and recover from disasters. The purchase of the portable radio tower will help ensure radio communications during disasters. The City will use Houston -Galveston Area Council (HGAC) Contract No. RA01-08 to purchase the unit. State Law provides that a local government entity purchasing an item under a cooperative purchasing agreement satisfies state laws requiring that the local government entity seek competitive bids for purchase of the item. HGAC contracts have been competitively bid to increase and simplify the purchasing power of local government entities across the State of Texas. Fund,Grants Logname: 13P08-0218 Page 1 of 2 i r • 541370 002442172140 $97A75,00 Submitted for City Manage, s ®ffice bl . Karen Montgomery (6222) riinating Department Head: Lena Ellis (8517) Additional Information Contact: Jack Dale (8357) Logname: 13P08-0218 Page 2 of 2