HomeMy WebLinkAboutContract 39281moronOLA
intelligence everywhere"
SECREyy
CONTRACT- C eZo
NO. ��
COMMUNICATIONS SYSTEM AGREEMENT
CITY OF FORT WORTH, TX
PD MDC IMAGE PROJECT
REVISION HISTORY:
8/14/09 Draft JP Draft
OFFICIAL RECORD
CITY SECRETARY
FT: WORTH, TX
•
City of Fort Worth, Texas
City of Fort Worth, Texas
COMMUNICATION SYSTEM AGREEMENT
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 labor to image the
MDC's for the Police Department.
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 HGAC 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.
"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
MOTOROLA
Page 2 Motorola
8/31/2009
City of Fort Worth, Texas
"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.
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.
0 MOTOROLA
Page 3 Motorola
8/31/2009
City of Fort Worth, Texas
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 3.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.B 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
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.
QMOTOROLA
Page 4 Motorola
8/31/2009
City of Fort Worth, Texas
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 $ $81,750.00 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 $ $81.750.00for 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
Motorola will provide on site training for proper use of new equipment.
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.
MOTOROLA
Page 5 Alotorola
8/31/2009
City of Fort Worth, Texas
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
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.
MOTOROLA
Page 6 Motorola
8/31/2009
City of Fort Worth, Texas
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 penod 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 Exhibit 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.
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
QMOTOROLA
Page 7 Motorola
8/31/2009
City of Fort Worth, Texas
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 wnting 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.
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.
0 MOTOROLA
Page 8 Motorola
8/31/2009
City of Fort Worth, Texas
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 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
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
("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
QMOTOROLA
Page 9 Motorola
8/31/2009
City of Fort Worth, Texas
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
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
CD MOTOROLA
Page 10 Motorola
8/31/2009
City of Fort Worth, Texas
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
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
QMOTOROLA
Page 11 Motorola
8/31/2009
City of Fort Worth, Texas
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 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.
S ection 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
O F TIME, INCONVENIENCE COMMERCIAL LOSS, LOST PROFITS OR SAVINGS,
O R 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.
S ection 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;
CD MOTOROLA
Page 12 Motorola
8/31/2009
City of Fort Worth, Texas
• 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)
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 it 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.
0 MOTOROLA
Page 13 Motorola
8/31/2009
City of Fort Worth, Texas
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 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 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.
QMOTOROLA
Page 14 Motorola
8/31/2009
City of Fort Worth, Texas
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
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, 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.
fa MOTOROLA
Page 15 Motorola
8/31/2009
City of Fort Worth, Texas
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 wntten
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, 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
QMOTOROLA
Page 16 Motorola
8/31/2009
City of Fort Worth, Texas
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.
0 AfOrOROLA
(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.
Page 17 Motorola
8/31/2009
City of Fort Worth, Texas
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 Fort Worth
By:
Name: Karen Lc Montgomery
Assistant City Manager
Title:
Date: 1 a 6
'M
Approved a tq c&arm and Legality:
� NI
Assistant City Attorney
M&cB fIoThEt
31i 7(C)�
Date Approved:
Attest:
By: AZ41
1)51 City Secretary
42) NrorORoLa
Motorola, Inc
By:
Z-311A-di ilteAf
Nam.,.
�
Title: PiCe
rr►
Date: ,M
I OFFIGIAi RECOR&
1TY SECIRETARI
ftWOPTH,TX
Page 18 A'Iotorola
8/31/2009
City of Fort Worth, Texas
EXHIBIT A
SOFTWARE LICENSE AGREEMENT
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 documentation that specifies
technical and performance features and capabilities and the user, operation and
training manuals for the Software (including all physical or electronic media upon which
such information is provided).
1.3 "Open Source Software" means software with either freely obtainable source
code, 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.
QMOTOROLA
Page 19 Motorola
8/31/2009
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 (except
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
S oftware 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
S ource Software, the terms and conditions governing the use of such Open Source
S oftware 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
42) MOTOROLA
Page 20 Motorola
8/31/2009
City of Fort Worth, Texas
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
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
QMOTOROLA
Page 21 Motorola
8/31/2009
City of Fort Worth, Texas
o ne unit of a Designated Product; or (ii) copy onto or transfer Software installed in one
u nit of a Designated Product onto one other device Licensee may temporarily transfer
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
o riginal 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") Licensee must
purchase a separate license for each location at which Licensee uses RSS. Licensee's
u se 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
RSS upon Motorola's request..
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
MOTOROLA
Page 22 Motorola
8/31/2009
City of Fort Worth, Texas
this Agreement. All intellectual property developed, originated, or prepared by Motorola
in connection with providing the Software, Designated Products, Documentation or
related services, remains vested exclusively in Motorola, and Licensee will not have any
shared development or other intellectual property rights.
Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY
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 anv third oartv 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
MOTOROLA
Page 23 Motorola
8/31/2009
City of Fort Worth, Texas
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
warranty to any person other than Licensee with respect to the Software or
Documentation.
Section 7 TRANSFERS
Licensee will not transfer the Software or Documentation to anv third party without
Motorola's prior written consent. which may not be unreasonably withheld but ma 1 be
conditioned upon transferee paving all applicable license fees and aareeina to be bound
bv this Aareement. If the Desianated Products are Motorola's radio products and
Licensee transfers ownership of the Motorola radio products to a third party. Licensee
may assign its riaht to use the Software (other than RSS and Motorola's FLASHoort
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 bv Motorola upon reauest. oblio_ ating the transferee to be bound by this
Aareement.
Section 8 TERM AND TERMINATION
8.1 Licensee's right to use the Software and Documentation will begin when the
Prmary 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.
8.2 Within thirty (30) days after termination of this Agreement Licensee must certify
'n 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.
8.3 Licensee acknowledges that Motorola made a considerable investment of
resources in the development, marketing, and distribution of the Software and
MOTOROLA
Page 24 Motorola
8/31/2009
City of Fort Worth, Texas
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
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.
Section 11 LIMITATION OF LIABILITY
MOTOROLA
Page 25 Motorola
8/31/2009
City of Fort Worth, Texas
Except for Motorola's obligations to indemnify under Section 12B of the Primary
Agreement, Limitation of Liability shall be governed by Section 14 of the Primary
Agreement.
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 pnor 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
QMOTOROLA
Page 26 Motorola
8/31/2009
City of Fort Worth, Texas
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
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 Aareement.
13.7. ORDER OF PRECEDENCE In the event of inconsistencies between this Exhibit
and the Pnmary Aareement the parties agree that this Exhibit prevails only with
respect to the specific subiect matter of this Exhibit. and not the Primary Aareement 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.
MOTOROLA
Page 27 Motorola
8/31/2009
City of Fort Worth, Texas
QI'YMOTORO A
EXHIBIT B
PAYMENT TERMS
50% UPON EQUIPMENT SHIPMENT
40% UPON INSTALLATION
10% UPON PROJECT ACCEPTANCE
Page 28 Motorola Confidential Proprietary
8/31/2009
EXHIBIT C
Technical Documents
Exhibit C-1
System Description/Statement of Work
0 MOTOROLR
Page 1 Motorola Confidential Proprietary
8/31/2009
MOTOROLA
•
City of Fort Worth, Texas
MW 800NRM Re -Image Proposal
MOTOROLA, INC.
Government and Public Safety
Enterprise Mobility Solutions
August 21, 2009
2007 Motorola, Inc. All rights reserved.
!WI MOTOROLA
City of Fort Worth, Texas
MW 800NRM Re -Image Proposal
MOTOROLA, INC.
Government and Public Safety
Enterprise Mobility Solutions
August 21, 2009
2007 Motorola, Inc. All rights reserved.
Table cu Contents
Table of Contents 2
Motorola Understanding 3
Statement of Work 3
40 MOTOROLA
Use or disclosure of this proposal is subject to the restrictions on the title page.
2
Motorola Understanding
The City of Forth Worth has requested Motorola to provide services which include the re -
flashing of no more than six hundred and fifty Motorola MW800 mobile data computers
owned by the City of Fort Worth (hereinafter referred to as "the City").
A secondary service to be performed by Motorola will be to reprogram the City's
Vehicular Radio Modems (VRM's).
These services shall be provided within a schedule provided by the City and shall follow
the guidelines below.
Statement of Work
City of Fort Worth Responsibilities
• The City agrees to provide Motorola with a fully prepared image for the
MDC's which will be loaded on two partitions of the MDC.
• The city will provide the WINRSS program on thumb drives to be used for the
reprogramming of the VRM's.
• The City shall remove the MW800 (CPU) and VRM's from the City -owned
vehicles and deliver to the DFW Communications Arlington location.
• Once work is completed by Motorola / DFW, the City shall re -install the
MDC's and VRM's in the City vehicles.
• If necessary upon further research, the City shall provide a VLAN to our
network in case login scripts are necessary once the image is completed.
Motorola / DFW Communications, Inc Responsibilities
•
Motorola / DFW Communications will perform the following functions:
o Shall perform the basic functions of re -image from the City -prepared
image on the MDC s. A reboot and login with a special id for DFW will
be required to perform a basic functionality test after the MDC has been
re -flashed.
o Shall perform the reprogramming of the VRM' s. The City foresees these
0 MOTOROLA
Use or disclosure of this proposal is subject to the restrictions on the title page.
3
steps as happening (to be preformed by the City of Fort Worth):
■ Pull power from the back of the VRM, unscrew DB-9 cable from
the front of the VRM, unscrew clamps from sides of VRM, remove
VRM, connect VRM to a power supply, connect PC with WINRSS
(850 version) to the DB-9 port, write profile, unplug DB-9, unplug
power from VRM.
o This process will be followed until all 650 devices have been completed.
• If a unit is damaged, Motorola / DFW Communications will be responsible to
repair the unit first. If unable to repair, Motorola / DFW Communications will
then forward the unit to Motorola repair depot. The City will require a timeline of
the repair.
• Motorola / DFW Communications are responsible for replacing the unit with a
city's current configuration if it is damaged beyond repair by either Motorola /
DFW Communications or Motorola while in their possession.
• Motorola / DFW Communications shall return all parts and/or pieces removed
and replaced to the City. Each piece must be tagged with the unit serial number it
was pulled from.
• Motorola / DFW Communications will complete the 40 MDC's and VRM's
within 3 days from the time they are delivered from the City.
® MOTOROLA
Use or disclosure of this proposal is subject to the restrictions on the title page.
4
HGAC Pricing Summary
Project $81,750.00
Total Installation $81,750.00
® MOTOROLA
Use or disclosure of this proposal is subject to the restrictions on the title page.
0 MoroRoca
EXHIBIT C
Technical Documents
Exhibit C-2
Technical Documentation
No Supporting Documentation needed for this Proposal
Page 1 Motorola Confidential Proprietary
8/31 /2009
EXHIBIT C
Technical Documents
Exhibit C-3
HGAC Pricing
0 MQTQRAL.A
Page I Motorola Confidential Proprietary
8/31 /2009
HGAC Pricing Summary
Project $81,750.00
Total Installation $81,750.00
® MOTOROLA
Use or disclosure of this proposal is subject to the restrictions on the title page.
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 3/18/2008
DATE• Tuesday, March 18, 2008
LOG NAME: 13P08-0053
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
REFERENCE NO.: **P-10750
RECOMMENDATION
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 Approximate Annual Expenditures
Radio Parts $ 295000.00
Voice Radios (Mobile and Handheld) $ 625000.00
Infrastructure Equipment $ 490000.00
Repair Services (Radio and Other) $125,000.00
Total $ 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.
HGAC is authorized to offer cooperative purchasing contracts to its members. Under Section 791.025 (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.
Logname: 13P08-0053 Page 1 of 2
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.
BQN\085-0053\LAS
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
PI68 539120 0046020 $1.535.000.00
CERTIFICATIONS:
Submitted for Citv Manaaer's Office bv:
Oriainatina Department Head:
Additional Information Contact:
ATTACHMENTS
No attachments found.
Karen Montgomery (6222)
Lena Ellis (8517)
Jack Dale (8357)
Logname: 13P08-0053 Page 2 of 2