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Contract 39274
MarOMCLA intelligence everywhere" CON RACTENO � 3� C�MMuJIglcki'il®iNo it o71'niv AGREEMENT REVISION HISTORY: T WORTH, TX City of Fort Worth, Texas City of Fort Worth, Texas Motorola, Inc., 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 county, 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 an PTP link from Bolt St to Eagle Mountain 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 Motorola Software License Agreement Exhibit B Payment Terms Exhibit C Technical Documents C-1 System Description/Statement of Work C-2 Technical Documentation C-3 Equipment List and Pricing 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 C, including, but not limited to, the Equipment, Software and all services described in the, Statement of Work and Equipment List. Page 2 Motorola 8/13/2009 City of Fort Worth, Texas "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. Section 3 SCOPE OF AGREEMENT A. SCOPE OF WORK. Motorola will assemble and integrate the Equipment and Software, and deliver, install and test the Communications System at designated sites, as specified in Exhibit C and in accordance with this Agreement and, specifically, with the Project Timeline and Implementation Schedule, as specified in C-2, and the Payment Terms, as specified in Exhibit B. Customer will perform its responsibilities as specified in Exhibit C 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 Project Schedule set forth in C-2 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. Page 3 Motorola 8/13/2009 City of Fort Worth, Texas 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 Software License Agreement attached as Exhibit A. 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 such copyright owner's requirements) shall apply; provided, however, that nothing in this Section &F, 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 8.13 of this Agreement. G. PROJECT MANAGEMENT. Motorola shall assign a project manager acceptable to Customer, who is authorized to exercise technical direction of all duties and obligations of Motorola and Motorola's subcontractors under this Agreement. Motorola agrees to meet and consult with Customer before designating a new or alternate project manager and allow Customer reasonable right of refusal. Motorola's project manager shall have authority to negotiate changes in or amendments to this Agreement on behalf of Motorola. In addition, 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 Page 4 Motorola 8/13/2009 City of Fort Worth, Texas 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 and the Project Timeline and Implementation Schedule. Payments are to be activity based / related, not cumulative time based / related. If payments are tied to deliverables, if the deliverable moves so does the payment. 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 $39,185.02 for which Customer agrees to make payments in accordance with the Payment Terms in Exhibit B. 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 $39,185.02 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. Page S Motorola 8/13/2009 City of Fort Worth, Texas Section 6 TRAINING Motorola will provide on site training for this link. Section 7 SITES A. In addition to its responsibilities described in the Statement of Work, Customer agrees to provide a designated project director, also known as the Project Manager, procure any necessary construction permits, building permits, zoning variances and the like, provide access to the sites identified in the Exhibits as requested by Motorola, and have such sites available for installation of the Equipment by Motorola in accordance with the performance schedule and Statement of Work. B. If either Motorola or Customer determines during the course of performance of this Agreement that the sites identified in the Exhibits are no longer available or desired, or, if subsurface, structural, adverse environmental or latent conditions at any site differ from those indicated on the specifications in the Exhibits, Motorola and Customer will promptly investigate the conditions and in good faith negotiate an equitable solution and, based on such solution, execute any written amendments to this Agreement or the Exhibits attached hereto that may be deemed necessary by both parties. C. If Customer and Motorola determine that any change requested by Customer in site availability, installation plans, or specifications may require an adjustment in the Contract Price or in the time required for the performance of this Agreement, the parties will in good faith negotiate an equitable solution and, based on such solution, execute any written amendments to this Agreement or the Exhibits attached hereto that may be deemed necessary by both parties. Amendments will be via the Change Order process described in "Section 3 Scope of Agreement, Paragraph B. Change Orders." SECTION 8 FINAL SYSTEM ACCEPTANCE A. Motorola will perform tests of various components of the Communications System and a final test of the fully integrated Communications System in accordance with the Statement of Work/. Acceptance of the Communications System will occur upon the successful completion of such final testing of the System as a fully integrated Communications System, as outlined in and in accordance with the Statement of Work ("System Acceptance"), at which time both parties shall promptly document any deficiencies, failures, or problems, in the form of a Punch List. Final System Acceptance Certificates will not be issued by the City of Fort Worth until all issues on the Punch List have been resolved to the sole satisfaction of the City of Fort Worth ("Final System Acceptance"). Customer shall not unreasonably delay Final System Acceptance. In addition, both parties shall promptly execute certificates of subsystem acceptance upon the successful completion of testing of such subsystems, as outlined in and in accordance with the Statement of work attached Page 6 Motorola 8/13/2009 City of Fort Worth, Texas hereto. Customer and Motorola will jointly prepare a list of such omissions and variances which Motorola will correct according to an agreed upon schedule with clearly defined and agreed to due dates. Reference to `System Acceptance' SHALL NOT equate to `Final System Acceptance'. B. BENEFICIAL USE. Customer acknowledges that Motorola's ability to perform its implementation and testing responsibilities may be impeded if Customer begins using the System before System Acceptance. Therefore, Customer will not commence Beneficial Use before System Acceptance without Motorola's prior written authorization, which will not be unreasonably withheld. Motorola is not responsible for System performance deficiencies that occur during unauthorized Beneficial Use. Upon commencement of Beneficial Use, Customer assumes responsibility for the use and operation of the System. Section 9 WARRANTY A. WARRANTY PERIOD. Upon System Acceptance or Beneficial Use, whichever first occurs, the System Functionality representation described below is fulfilled. The Equipment and Motorola Software is warranted for a period of one (1) year after System Acceptance in accordance with the applicable limited warranties shown below. Customer must notify Motorola in writing if Equipment or software does not conform to these warranties no later than one month after the expiration of the Warranty Period. B. SYSTEM FUNCTIONALITY WARRANTY. Motorola represents that the Communications System will satisfy the functional requirements in Exht C. Upon System Acceptance, this System Functionality representation is fulfilled. After System Acceptance, the Equipment Warranty set forth below and the Software Warranty set forth in the Software License Agreement will apply in accordance with their terms and conditions. Motorola will not be responsible for performance deficiencies of the System caused by ancillary equipment not furnished or specified for use by Motorola or another party in accordance with the provisions of this Agreement that is attached to or used in connection with the System provided hereunder. Additionally, Motorola will not be responsible for System performance where the functionality is reduced for reasons beyond Motorola's control including but not limited to i) an earthquake, adverse atmospheric conditions or other natural causes; ii) the construction of a building that adversely affects the microwave path reliability or Radio Frequency (RF) coverage; iii) the addition of additional frequencies at System sites that cause RF interference or intermodulation; iv) Customer changes to load usage and/or configuration outside the parameters specified in Exhibit C; v) any other act outside the scope of the ordinary use of the Communications System by parties who are beyond Motorola's control, including Customer or its employees, contractors, consultants or agents. Page 7 Motoroln 8/13/2009 City of Fort Worth, Texas C. EQUIPMENT WARRANTY. Motorola warrants the Equipment against material defects in material and workmanship under normal use and service during the Warranty Period. The Warranty Period for non -Motorola manufactured Equipment will be stated in this section. 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. 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. Page 8 Motorola 8/13/2009 City of Fort Worth, Texas 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. 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. MOTOROLA SOFTWARE WARRANTY. Motorola Software is warranted in accordance with the terms of the Software License Agreement attached as Exhibit A. E. These express limited warranties as set fiorth 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. MOTOROLA 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 Page 9 Motorola 8/13/2009 City of Fort Worth, Texas ("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. If Customer (including its other contractors) delays the Performance Schedule, it will make the promised payments according to the Payment Schedule as if no delay occurred; and the Parties will execute a change order to extend the Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred because of the delay. Delay charges may include costs incurred by Motorola or its subcontractors for additional freight, warehousing and handling of Equipment; extension of the warranties; travel; suspending and re -mobilizing the work; additional engineering, project management, and standby time calculated at then current rates; and preparing and implementing an alternative implementation plan. 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. 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 Page 10 Mororolo 8/13/2009 City of Fort Worth, Texas 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/OP, 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. Page I1 Motorola 8/13/2009 City of Fort Worth, Texas 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 ("ADR") procedure. Any mediation, ADR procedure or other negotiations or meetings 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 wn 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, Page 12 Motorola 8/13/2009 City of Fort Worth, Texas 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 maintain, in full force and effect, a policy or policies of insurance as specified in this Section 15 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; $2,000,000 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. Certlficates of Insurance provided by Motorola under this Agreement shall (i) list Customer as an additional insured on the commercial general liability policy, and (ii) 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. Page 13 Motoroln 8/13/2009 City of Fort Worth, Texas Section 1 I FCC Licenses Customer will obtain and comply with all Federal Communications Commission 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. C. CONFIDENTIAL INFORMATION. Customer and Motorola will not disclose to third parties any material or information that is idented 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. Page I4 Motorola 8/13/2009 City of Fort Worth, Texas D. DISCLAIMER OF LICENSE. Except as explicitly provided in the Motorola Software License Agreement included in Exhibit A, 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) 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. constitutes 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 Motorola, Inc. Attn: Law Department Page I S Motorola 8/13/2009 City of Fort Worth, Texas Services 1000 Throckmorton Fort Worth, TX 76102 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, within 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 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 Page 16 Motorola 8/13/2009 City of Fort Worth, Texas 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, 12, 13, 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 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. Page 17 Motorola 8/13/2009 City of Fort Worth, Texas (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: Worth By: Name: Karen L. Montgomery Title: Assistant City Manager Date: / 0 ! �O /, Approved as to rm and Legality: By Assistant City Attorney Date Approved: - 1 1a bog City Secretary Motorola, Inc. By: G Name: Title: Date: MOTOROtA Page 18 Motoroln 8/13/2009 City of Fort Worth, Texas This Exhibit A, Software License Agreement ("Agreement") is between Motorola, Inc., ("Motorola"), and The City of Fort Worth ("Licensee"). For good and valuable consideration, the parties agree as follows: Section 1 DEFINITIONS 1.1 "Designated Products" means products provided by Motorola to Licensee with which or for which the Software and Documentation is licensed for use. 1.2 "Documentation" means product and software technical and performance features and capabilities, training manuals for the Software (including all physical such information is provided). documentation that specifies and the user, operation and or electronic media upon which 1.3 "Open Source Software" means software with either freely obtainable source codeI license for modification, or permission for free distribution. 1.4 "Open Source Software License" means the terms or conditions under which the Open Source Software is licensed. 1.5 "Primary Agreement" means the agreement to which this exhibit is attached. Page 19 Motorola 8/13/2009 City of Fort Worth, Texas 1.6 "Security Vulnerability" means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach such that data is compromised, manipulated or stolen or the system damaged. 1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de -compilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement. Section 2 SCOPE Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary Software or products containing embedded or pre -loaded proprietary Software, or both. This Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee's use of the Software and Documentation. Section 3 GRANT OF LICENSE 3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants to Licensee a personal, limited, non -transferable ex as permitted in Section 7) and non-exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code. 3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the terms and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the Page 20 Motorola 8/13/2009 City of Fort Worth, Texas license grants in this Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine whether any Open Source Software is provided under this Agreement; (ii) identify the Open Source Software and provide Licensee a copy of the applicable Open Source Software License (or specify where that license may be found); and, (iii) provide Licensee a copy of the Open Source Software source code, without charge, if it is publicly available (although distribution fees may be applicable). Section 4 LIMITATIONS ON USE 4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting the general nature of these restrictions, Licensee will not make the Software available for use by third parties on a "time sharing," "application service provider," or "service bureau" basis or for any other similar commercial rental or sharing arrangement. 4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer, disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant any sublicense or other rights in the Software or Documentation to any third party, or take any action that would cause the Software or Documentation to be placed in the public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, back-up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software. 4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other device. Licensee may temporarily transfer Page 21 Motorola 8/13/2009 City of Fort Worth, Texas Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary transfer is discontinued. 4 4 When usina Motorola's Radio Service Software ("RSS"l. Licensee mus purchase a separate license for each location at which Licensee uses RSS. Licensee's use of RSS at a licensed location does not entitle Licensee to use or access RSS remotely. Licensee may make one copy of RSS for each licensed location. Licensee shall provide Motorola with a list of all locations at which Licensee uses or intends to use S upon Motorola 's re 4.5. Licensee will maintain, during the term of this Agreement and for a period of two years thereafter, accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an independent third party ("Auditor") may inspect Licensee's premises, books and records, upon reasonable prior written notice to Licensee not less than ten (10) business days, and during Licensee's normal business hours and subject to Licensee's facility and security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this Aareement. Section 5 OWNERSHIP AND TITLE Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Software and Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de -compilations, disassemblies, emulations to or derivative works from the Software or Documentation, whether made by Motorola or another party, or any improvements that result from Motorola's processes or, provision of information services). No rights are granted to Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing the Software, Designated Products, Documentation or Page 22 Motorola 8/13/2009 City of Fort Worth, Texas related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights. 6.1. The commencement date and the term of the Software warranty will be a period of ninety (90) days from installation of the Software (the "Warranty Period"). If Licensee is not in breach of any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted, error -free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee's particular requirements. Motorola makes no representations or warranties with respect to any third party software included in the Software. 6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct significant, demonstrable program or documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola's option, Motorola will replace the defective Software with functionally. equivalent Software, license to Licensee substitute Software which will accomplish the same objective, or terminate the license and refund the Licensee's paid license fee. 6.3. Warranty claims are described in the Primary Agreement. 6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other warranties (express or implied, oral or written) with respect to the Software or Documentation, including, without limitation, any and all implied warranties of condition, title, non infringement, merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola disclaims any Page 23 Motoroln 8/13/2009 City of Fort Worth, Texas warranty to any person other than Licensee with respect to the Software or Documentation. Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written consent, which_ may not be unreasonably withheld, but may be conditioned upon transferee paving all applicable license fees and agreeing to be bound by this Agreement. If the Designated Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products to a third party. Licensee may assign its right to use the Software (other than RSS and Motorola's FLASHport® software) which is embedded in or furnished for use with the radio products and the related Documentation: provided that Licensee transfers all copies of the Software and Documentation to the transferee. and Licensee and the transferee sign a transfer form to be provided by Motorola upon reauest obliaatina the transferee to be bound by this Section 8 TERM AN®TERMINATI®N 8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation may be terminated immediately upon written notice by Motorola. 82 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer in use by Licensee. $� Licensee acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee Page 24 Motorola 8/13/2009 City of Fort Worth, Texas breaches this Agreement, Motorola may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non -embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Section 9 UNITED STATES GOVERNMENT LICENSING PROVISIONS This Section applies if Licensee is the United States Government or a United States Government agency. Licensee's use, duplication or disclosure of the Software and Documentation under Motorola's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software -Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless they are being provided to the Department of Defense. If the Software and Documentation are being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice, or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement transaction. Section 10 CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary Agreement concerning Confidential Information apply. Except for Agreement, Agreement. Section 11 LIMITATION OF LIABILITY Motorola's obligations to indemnify under Section 12B of the Primary Limitation of Liability shall be governed by Section 14 of the Primary Page 25 Mota•ola 8/13/2009 City of Fort Worth, Texas Section 12 NOTICES Procedures for notices shall be governed by Section 18K of the Primary Agreement. Section 13 GENERAL 13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software. 13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Motorola and the appropriate governmental authority of the United States, in any form export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval. Violation of this provision is a material breach of this Agreement. 13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its obligations under this Agreement, or encumber or sell its rights in any Software, without prior consent of Licensee. Motorola shall provide Licensee with at least ten (10) days written notice of any such assignment. 13.4. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a sovereign government entity. The terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the Uniform Computer Information Page 26 Motorola 8/13/2009 City of Fort Worth, Texas Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA") becomes applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA. 13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and Licensee. No third party has the right to make any claim or assert any right under this Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing, any licensor or supplier of third party software included in the Software will be a direct and intended third party beneficiary of this Agreement. 13 6 SURVIVAL Sections 4 5 6 3 7 8 9 10 11 and 13 survive the termination of this Agreement. 13 7 ORDER OF PRECEDENCE In the event of inconsistencies between this Exhibit nd the Primary Agreement, the parties agree that this Exhibit prevails, only_with respect to the specific subiect matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other subject matter. 13.8 SECURITY. Motorola's Information Assurance Policy addresses the issue of security. Motorola uses reasonable means in the design and writing of its own Software and the acquisition of third party Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will take the steps set forth in Section 6 of this Agreement. Page 27 Motorola 8/13/2009 City of Fort Worth, Texas EXHIBIT B PAYMENT TERMS 50%UPON EQUIPMENT SHIPMENT 40%UPON INSTALLATION 10% UPON PROJECT ACCEPTANCE Page 28 Motorola Confrdential Proprietary 8/13/2009 EXHIBIT C Technical Documents Exhibit C-1 System Description/Statement of Work /�\ !H'Ci'f"C7,i�i'pL� Page I b7otorola Confrdentia/ Proprietar}� ��J 8/13/2009 City of Ft Worth Bolt St to Eagle Mountain Statement of Work 1.0 PURPOSE This Statement of Work (SOW) defines the scope of the services and the deliverables that BearCom will provide to City of Ft Worth This SOW further identifies the tasks and services related to the supply, installation, and testing of new repeater equipment. 2.0 GENERAL SOW TASKS The following is a general description of the tasks and responsibilities associated with the total project and tasks performed at all facilities: 2.1 Inventory Control DAY 1 • BearCom will develop an inventory control system to track order date, order status, delivery date, destination facility, staging status, and testing status. • BearCom will provide warehouse space for the delivery and storage of all equipment. 2.2 Bill of Materials (BOM) DAY 1 • BearCom will develop the BON necessary to supply and install the required radio equipment for each facility covered under this SOW. 2.3 Frequency Spectrum • City of Ft Worth is responsible for appropriate licensing to support the project. • All current implementation plans and pricing assume that appropriate spectrum will be assigned to support this project. 2.4 Stage Equipment DAY 2, 3, 4 AND 5 • All staging activities will occur at facilities provided by BearCom. • BearCom will power up equipment observing for signs of failure or improper operation. • BearCom will label equipment and cabling as necessary to ensure efficient installation at City of Ft Worth facilities. • BearCom will repack equipment for shipment to City of Ft Worth facilities. 2.5 Shipping of Equipment DAY 6 • BearCom will transport equipment from the staging location to City of Ft Worth facilities. 2.6 Access to Facilities DAY 6, 7, 8, 9 AND 10 • City of Ft Worth will be responsible for providing BearCom with reasonable access to all facilities as necessary to perform installation and testing. 2.7 Install Equipment DAY 6, 7, 8, 9 AND 10 • BearCom and approved sub contractors will physically place all equipment in the specified City of Ft Worth Locatiopns. • BearCom will install all radio equipment per Motorola R-56 standards and consistent with industry practices. All installations will also comply with NEC 2002 National Electrical Code, Uniform Fire Code, and NFPA 78 Lightning Protection Code. 1 City of Ft Worth Bolt St to Eagle Mountain Statement of Work • BearCom will mount radios and associated equipment in equipment racks or cabinets as mutually agreed upon by BearCom and City of Ft Worth Project Manager. Modifications to the equipment mounting and installation plans may occur under the direction of the City of Ft Worth Project Manager, 2.8 Equipment Programming &Alignment DAY 2, 39 4 AND 5 • BearCom will program, tune, and align the radios as specified by the manufacture's installation procedures, and SOW documents. 2.9 Post -Installation Inspection DAY 10 • BearCom will accompany and support the City of Ft Worth Project Manager or appointed representative with a post -installation inspection. All installations will be physically inspected for completeness, professional appearance, compliance with R- 56 standards, and consistency with industry practices. • City of Ft Worth will prepare a punch -list to document any discrepancies and necessary corrections identified during the Post -Installation Inspection. • BearCom will correct all punch -list items to the reasonable satisfaction of the City of Ft Worth Project Manager, 2.10 Installation Testing DAY 10 • BearCom will execute a pre -approved test plan and documentation procedure to ensure that all equipment is properly installed, aligned, programmed, and functioning. Test items will include functional demonstrations. All testing will be witnessed by the City of Ft Worth Project Manager or appointed representative. • BearCom will be responsible for repairing any installation failures discovered during testing. • BearCom will document any equipment failures discovered during the test and assist with warranty repair service. • BearCom will submit the documented test results to City of Ft Worth for final approval. City of Ft Worth will review the test results and provide approval or request reasonable changes within 14 days of receipt. • Once all testing is complete and verified BearCom WILL NOT BE RESPONSIBLE FOR THE MIGRATION TO NEW SYSTEMS AND EQUIPMENT. THIS IS THE RESPONSIBILITY OF THE CITY OF FT WORTH STAFF. 2.11 Final System Acceptance DAY 10 • BearCom shall submit As -built Documentation to City of Ft Worth Project Manager prior to Final System Acceptance. • Following successful completion of all installations, punch -list modifications, and testing, the system shall be considered accepted. 3.0 SITE -SPECIFIC SOW TASKS The Followingdescription of the 50W tasks to be performed. The equipment descriptions are general in nature. A detailed listing of the equipment provided at each facility is included in the respective BUM for that facility. 2 City of Ft Worth Bolt St to Eagle Mountain Statement of Work 3.1 Eagle Mountain Tower • On the self supporting tower located at32-41-24.0 LON: 097-21-40.0 Bearcom will mount a Motorola PTP600 Outdoor unit at the 199.8' mark. • In the building next to the tower the PTP600 indoor unit will be mounted in a rack to be determined during install. • The indoor unit and outdoor unit will be connected with armored cat 5 cable. Existing building penetrations will be utilized. 3.2 Bolt St Tower • On the self supporting tower located at LAT: 32-51-30.2 LON: 097-25-12.6 Bearcom will mount a Motorola PTP600 Outdoor unit at the 224.1' mark. • In the building next to the tower the PTP600 indoor unit will be mounted in a rack to be determined during install. • The indoor unit and outdoor unit will be connected with armored cat 5 cable. Existing building penetrations will be utilized. EXHIBIT C Technical Documents Exhibit C-2 Technical Documentation IYXQTORfJi' A Page I Motorola Confidential Proprietary 8/13/2009 ® MOTOROLA bolt to EM Equipment: Motorola PTP58600 Connectorised Radio Waves 3ft High Performance Dual -Polar Parabolic HPD3-5.2NS 1050 1000 v 950 900 850 800 750 n° 700 Q 650 rn v 600 550 500 Untitled 1 Radio Waves aft High Performance Dual -Polar Parabolic HPD3-5.2NS 1 2 3 4 5 6 7 Range on path (miles) 8 9 10 11 12 Throughput to bolt Throughput to EM Mean IP Predicted 74.2 Mbps 74.2 Mbps Mean IP Required 5.0 Mbps 5.0 Mbps Min IP Required 1.0 Mbps 1.0 Mbps Min IP Availability Predicted 99,9994 % 9909994 % Min IP Availability Required 99,9900 % 99.9900 % Link Summary System Gain Margin 21.54dB Total Path Loss 133.51dB Free Space Path Loss 133.51dB Mean Aggregate Data Rate 148.5Mbps Excess Path Loss O.00dB Link Availability 99,999367 % 08 June 2009 I ® MOTOROLA Link Name Link Type Link Distance User IP Throughput Expectation Aggregate RF Frequency Band License RF Channel Bandwidth Mean IP Throughput Required Mean IP Throughput Predicted Percentage of Required IP Throughput Link Symmetry Link Availability Untitled 1 Summary bolt to EM Line -of -Sight 12.130 miles Aggregate 148.47 Mbps assuming PTP-600 Series running the 600-08-01 software 5.8 GHz (5725 to 5850 MHz) FCC USA, Canada, Taiwan, Brazil 30 MHz Link IP Throughput &Availability 5.00 Mbps 74.23 Mbps 1484.68 % Adaptive 9969994 % Motorola Inc. assumes no responsibility for the accuracy of the information produced by the Motorola PTP LINKPIanner. Reference to products or services which are not provided by Motorola Inc. is for information purposes only and constitutes neither an endorsement nor a recommendation. All information provided by the Motorola PTP LINKPIanner is provided without warranty of any kind, either expressed or implied. MOTOROLA and the Stylized M Logo are registered in the US Patent and Trademark Office. All other product or service names are the property of their respective owners. ©Motorola, Inc. 2008 08 June 2009 2 EXHIBIT C Technical Documents Exhibit �-3 Equipment List and Pricing MC?TOROX,A PCtge 1 Motorola Cw fdential Proprietary 8/13/2009 G O L J O 0 0 a` co ca d 0) a .5 O a` 0) U) l4 d a O co � 0) m � Q a� o p z w •• WIr a z x O W a w U cc c -T Ci m O O � LO NT 0000. N N cm 0 CM C O O O TM OD T Ch d' N co N T N LI'� ('Q r (A (A 69 Efl fA U) U) to 69 EA o 0 o coo m y L 6 (O O (O to r m ((00 N V m C T r v C J a r U H F0- p H d E Q> cU .(D. Q UI Q 0 j, (7 O O Cl CD N N r _ D U S W w � U U) U Q m Q d O m LU W U z LL w m W W > z O p d Q OU p O0 z od x< Y m Q U) z Z J m Q O Uj J J < 2 .. F LU N p p p U Y O LLIW o X Wp M p N U 0 W Z p Z IL Cc zW O Q O m~ Z fL 06 U m a Lu = U J J w LL Z m LL w W= Q Cl) O m F oo r Z p J O z C mO w ¢ Q y, LL 2 W m= H Ur 2 W p U m Z O U o g O V ow o Z Z o 2 m d`n -- = d (o U z O a� a a U m d (y) J3 LL d 2 j U U N Q m o Q Lo � 00 y m M Ln N •V N p n 2 m Z m U Z U M&C Review I I I MLL• .,• proved on 11 AT 3/18/2008 C o. **P-10750 L G NAME: 13P08-0053 CODE: P TYPE. CONSENTPUBLIC HEARING: NO SUBJECT: Authorize a Purchase Agreement with Motorola Communications, Inc., for Radios, Radio Parts, Radio Equipment and Repair Services Using a Houston -Galveston Area Council Contract for the Information Technology Solutions Department It is recommended that the City Council authorize a purchase agreement with Motorola Communications, Inc., for radios, radio parts, radio equipment and repair services using a Houston -Galveston Area Council Contract for the Information Solutions Department, DISCUSSION The City will utilize Houston -Galveston Area Council Contract (HGAC) contract RA01-08 to purchase Motorola accessories, parts and repair services on an as -needed basis. The City of Fort Worth uses Motorola's SmartNet II Trunked Radio Platform for its voice radio communications and Motorola RD-LAP Radio Platform for its mobile data communications. Due to the proprietary nature of the City's two existing systems, radios, parts and equipment must be compatible with the infrastructure components. The majority of the goods and services purchased will be to support the Police and Fire Public Safety systems. The following table shows the approximate dollar expenditures during the past year by four major categories: Category Radio Parts Voice Radios (Mobile and Handheld) Infrastructure Equipment Repair Services (Radio and Other) Total Approximate Annual Expenditures $ 295000.00 $ 625000.00 $ 490000.00 $125,000.00 $ 1535000.00 PRICE ANALYSIS -The annual cost to purchase new radios will decrease approximately 3% from purchases completed under the prior Motorola/H-GAC contract that expired in October of 2007. The annual cost for parts will decrease on some parts at an average of 2% to 4%. Radio repair services has the same flat labor cost as the prior H-GAC contract. http://apps.cfwnet.org/council packet/mc_review.asp?ID=9284&councildate=3/18/2008 (1 of 2) [8/18/2009 2:42:51 PM] M&C R?view HGAC is authorized to offer cooperative purchasing contracts to its members. Under Section 791 w025 (C) of the Texas Government Code, a local government that purchases goods and services under the Interlocal Cooperation Act satisfies otherwise applicable competitive bidding requirements. AGREEMENT TERMS - This purchase agreement will begin March 18, 2008, and expire on March 17, 2009. RENEWAL OPTIONS —This agreement may be renewed per the conditions established in the contract between HGAC and the Motorola Communications, Inc., for two additional one-year terms at the City's option. If HGAC enters into a new contract with the vendor, then the option terms established by the new contract will be the term the City follows. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligation. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the participating departments. BON\085-0053\LAS Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: P168 539120 0046020 Karen Montgomery (6222) Lena Ellis (8517) Jack Dale (8357) $1,535,000.00 http://apps.cfwnet.org/council packet/mc_review.asp?ID=9284&councildate=3/18/2008 (2 of 2) [8/18/2009 2:42:51 PM]