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HomeMy WebLinkAboutContract 45628 (2)(tm SYSTEM UPGRADE AGREEMENT q zi This System Upgrade Agreement ("Agreement") is entered into by and between Motorola Solutions, Inc. ("Motorola"), and the City of Fort Worth, Texas ("Customer" or "Licensee"), a Texas home rule municipality, pursuant to which Customer will purchase and Motorola will sell the Services, as described below. Motorola and Customer may be referred to individually as a "Party" and collectively as the "Parties." For good and valuable consideration, the Parties agree as follows: Section 1 EXHIBITS The exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the exhibits and any inconsistency between Exhibits A through D will be resolved in their listed order. Exhibit A Exhibit B Exhibit C Exhibit D-1 Exhibit D-2 Exhibit D-3 Exhibit D-4 Exhibit D-5 Software License Agreement SUA II Statement of Work Payment Schedule Johnson County Equipment List Tarrant County College Equipment List Forest Hill Equipment List North Richland Hills Equipment List Tarrant County Sheriff's Office Equipment List Section 2 DEFINITIONS AND INTERPRETATION 2.1. "Confidential Information" means any information that is disclosed in written, graphic, verbal, or machine -recognizable form, and is marked, designated, or identified at the time of disclosure as being confidential or its equivalent; or if the information is in verbal form, it is identified as confidential at the time of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information does not include any information that: is or becomes publicly known through no wrongful act of the receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any obligation restricting disclosure; is independently developed by the receiving Party without breach of this Agreement; is explicitly approved for release by written authorization of the disclosing Party; or is required to be disclosed by law, ruling, regulation or court order. 2.2. "Effective Date" means that date upon which the last Party executes this Agreement. 2 3 "Equipment" means the equipment that is specified in the attachments or is subsequently added to this Agreement. 2 4. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a Party's reasonable control (e.g., an act of God, an act of the public enemy, an act of a government entity, strikes or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots). 2.5. "Motorola Software" means Software that Motorola or its affiliated company owns. 2.6. "Non -Motorola Software" means Software that another party owns. 2 7. "Open Source Software" (also called "freeware" or "shareware") means software with either freely obtainable source code, license for modification, or permission for free distribution. City of Fort Worth_Motorola SUA II Agreement Page 1 of 32 OFFICIAL RECORD CITY SECRETARY Ire j j , \'i, r ? ; ,nibs TX 1.6 Issue Date: 5.14.2014 LMILIVEJ MAY 2 2 2.8 "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names mask works, know-how, and other intellectual property rights in and to the Equipment, and Software, including those created or produced by Motorola under this Agreement and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the S oftware whether made by Motorola or another party. 2.9 "Services" means those installation, maintenance, support, training, and other services described in this Agreement. 2.10 "Software" means the Motorola Software and Non -Motorola Software, in object code format that is furnished with the System or Equipment. S ection 3 ACCEPTANCE Customer accepts these Service Terms and Conditions and agrees to pay the prices set forth in the Agreement. The term of this Agreement begins on the Effective Date. Section 4 SCOPE OF SERVICES AND TERM 4.1. SCOPE OF WORK. Motorola will provide the Services described in this Agreement and Exhibit B, specifically Motorola will provide services for the listed equipment and rates for Johnson County as set forth in Exhibit D-1, for Tarrant County College as set forth in Exhibit D-2, for Forest Hill as set forth in Exhibit D-3, for North Richland Hills as set forth in Exhibit D-4, and for Tarrant County Sheriff's Office as set forth in Exhibit D-5. At Customer's request, Motorola may also provide additional services at Motorola's then -applicable rates for the services. 4 2 SUBSTITUTIONS. At no additional cost to Customer Motorola may substitute any Equipment, S oftware, or Services to be provided by Motorola, if the substitute meets or exceeds the specifications described in Exhibit B and D and is of equivalent or better quality to the Customer. Any substitution will be reflected in a change order. 4.3 MOTOROLA SOFTWARE Any Motorola Software, including subsequent releases, is licensed to Customer solely in accordance with the Software License Agreement. Customer hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement as set forth in Exhibit A. 4.4. NON-MOTOROLA SOFTWARE. Any Non -Motorola Software is licensed to Customer in accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date unless the copyright owner has granted to Motorola the right to sublicense the Non -Motorola Software pursuant to the Software License Agreement, in which case it applies and the copyright owner will have all of Licensor's rights and protections under the Software License Agreement. Motorola makes no representations or warranties of any kind regarding Non -Motorola Software. Non -Motorola Software may include Open Source Software All Open Source Software is licensed to Customer in accordance with, and Customer agrees to abide by, the provisions of the standard license of the copyright owner and not the Software License Agreement. Upon request by Customer Motorola will use commercially reasonable efforts to determine whether any Open Source Software will be provided under this Agreement and if so, identify the Open Source Software and provide to Customer a copy of the applicable standard license (or specify where that license may be found); and provide to Customer a copy of the Open Source Software source code if it is publicly available without charge (although a distribution fee or a charge for related services may be applicable). 4.5. INSTRINSICALLY SAFE EQUIPMENT. Customer must specifically identify any Equipment that is labeled intrinsically safe for use in hazardous environments. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 2 of 32 4.6 TERM. Unless terminated in accordance with other provisions of this Agreement or extended by mutual agreement of the Parties, the term of this Agreement begins on the Effective Date and shall expire 12/31/2014 ("Expiration Date"). .Section 5 EXCLUDED SERVICES U nless specifically included in this Agreement, Service excludes items that are consumed in the normal operation of the Equipment, such as batteries or magnetic tapes upgrading or reprogramming Equipment; accessories, belt clips, battery chargers, custom or special products, modified units, or software; and repair or maintenance of any transmission line, antenna, microwave equipment, tower or tower lighting, duplexer, combiner, or multicoupler. Motorola has no obligations for any transmission medium, such as telephone lines, computer networks, the internet or the worldwide web, or for Equipment malfunction caused by the transmission medium. Section 6 TIME AND PLACE OF SERVICE S ervice will be provided at the location specified in this Agreement. When Motorola performs Service at Customer's location, Customer will provide Motorola, at no charge, a non -hazardous work environment with adequate shelter, heat, light, and power and with full and free access to the Equipment. Waivers of liability from Motorola or its subcontractors will not be imposed as a site access requirement. Customer will provide all information pertaining to the hardware and software elements of any system with which the Equipment is interfacing so that Motorola may perform its Services. Unless otherwise stated in this Agreement, the hours of Service will be 8:30 a.m. to 4:30 p.m., local time, excluding weekends and holidays. Unless otherwise stated in this Agreement, the price for the Services exclude any charges or expenses associated with helicopter or other unusual access requirements; if these charges or expenses are reasonably incurred by Motorola in rendering the Services, Customer agrees to reimburse Motorola for those charges and expenses. S ection 7 CONTRACT PRICE, PAYMENT AND INVOICING 7.1. CONTRACT PRICE. The Contract Price in U S. dollars is $102,285.53. Contract Price includes the Equipment, Software and Services provided under this Agreement, excluding applicable sales or similar taxes and freight charges. Motorola has priced the Equipment, Software, and Services as defined in the Exhibits. Any change to the quantities or scope defined in the Exhibits may affect the overall Contract Price. 7 2 INVOICING AND PAYMENT. Motorola will submit invoices to Customer in advance of each payment period according to Exhibit C and Customer will make payments to Motorola within (30) days after the date of each invoice Customer will make payments when due in the form of a wire transfer, check or cashier's check from a U.S. financial institution. Overdue invoices will bear simple interest at the maximum allowable rate. For reference, the Federal Tax Identification Number for Motorola Solutions Inc. is 36-1115800. N otwithstanding any of the foregoing, in the event no funds or insufficient funds are appropriated by the Customer in any fiscal period for any payments due hereunder, Customer will notify Motorola of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the Customer of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 7.3 FREIGHT TITLE, AND RISK OF LOSS. Motorola will pre -pay and add all freight charges to the invoices Title to the Equipment will pass to Customer upon shipment. Title to Software will not pass to Customer at any time Risk of loss will pass to Customer upon delivery of the Equipment to the Customer. Motorola will pack and ship all Equipment in accordance with good commercial practices. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 3 of 32 S ection 8 WARRANTY 8.1 SERVICE WARRANTY. Motorola warrants that its Services under this Agreement will be free of defects in materials and workmanship for a period of ninety (90) days from the date the performance of the Services are completed. In the event of a breach of this warranty, Customer's sole remedy is to require Motorola to re -perform the non -conforming Service or to refund, on a pro-rata basis, the fees paid for the non -conforming Service 8.2 EQUIPMENT WARRANTY. Motorola warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship for a period of ninety (90) days from the date of shipment. 8.3 MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License Agreement, Motorola warrants the Motorola Software in accordance with the terms of the Software License Agreement and the provisions of this Section 8 that are applicable to the Motorola Software for a period of ninety (90) days from the date of successful installation of a software upgrade as described in Exhibit B. 8.4. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These warranties do not apply to: (i) defects or damage resulting from. use of the Equipment or Motorola S oftware in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of God testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized in writing by Motorola; Customer s failure to comply with all applicable industry and OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries (because they carry their own separate limited warranty) or consumables; (v) freight costs to ship Equipment to the repair depot (vi) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and (vii) normal or customary wear and tear 8.5. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at its option and at no additional charge to Customer) repair the defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola S oftware That action will be the full extent of Motorola's liability for the warranty claim. If this investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding to the claim on a time and materials basis using Motorola's then current labor rates. Repaired product is warranted for the balance of the original applicable warranty period. Replaced product is warranted for the balance of the original applicable warranty period or for 30 days from the date of installation, whichever is later.. All replaced products or parts will become the property of Motorola. 8.6. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original user purchasing the System for commercial, industrial, or governmental use only, and are not assignable or transferable 8.7. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 9 DEFAULT/TERMINATION 9.1 If either party defaults in the performance of this Agreement, the other party will give to the non- performing party a written and detailed notice of the default. The non -performing party will have thirty (30) days thereafter to provide a written plan to cure the default that is acceptable to the other party and City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 4 of 32 begin implementing the cure plan immediately after plan approval. If the non -performing party fails to provide or implement the cure plan, then the injured party, in addition to any other rights available to it u nder law, may immediately terminate this Agreement effective upon giving a written notice of termination to the defaulting party. 9.2 If a defaulting Party fails to cure the default as provided above in Section 9.1, unless otherwise agreed in writing, the non -defaulting Party may terminate any unfulfilled portion of this Agreement In the event of termination for default, the defaulting Party will promptly return to the non -defaulting Party any of its Confidential Information. Any termination of this Agreement will not relieve either party of obligations previously incurred pursuant to this Agreement, including payments which may be due and owing at the time of termination All sums owed by Customer to Motorola will become due and payable immediately u pon termination of this Agreement. Upon the effective date of termination, Motorola will have no further obligation to provide Services. Section 10 INDEMINIFICATION 10.1 GENERAL INDEMNITY BY MOTOROLA Motorola will indemnify and hold Customer harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, o r direct damage to tangible property which may accrue against Customer to the extent it is caused by the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties u nder this Agreement, if Customer gives Motorola prompt written notice of any claim or suit. Customer will cooperate with Motorola in its defense or settlement of the claim or suit This section sets forth the full extent of Motorola's general indemnification of Customer from liabilities that are in any way related to Motorola's performance under this Agreement. 10.2 INTELLECTUAL PROPERTY INDEMNITY 10.2.1 Motorola will defend at its expense any suit brought against Customer to the extent it is based on a third -party claim alleging that the Equipment manufactured by Motorola or the Motorola Software ("Motorola Product") directly infringes a United States patent or copyright (`Infringement 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 n egotiations 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 In addition to Motorola's obligation to defend, and subject to the same conditions, Motorola will pay all damages finally awarded against Customer by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing, by Motorola in settlement of an Infringement Claim. 10 2 2 If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its option and expense: (a) procure for Customer the right to continue using the Motorola Product; (b) replace or modify the Motorola Product so that it becomes non -infringing while providing functionally equivalent performance; or (c) accept the return of the Motorola Product and grant Customer a credit for the Motorola Product, less a reasonable charge for depreciation. The depreciation amount will be calculated based upon generally accepted accounting standards. 10.2.3 Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon: (a) the combination of the Motorola Product with any software, apparatus or device not furnished by Motorola; (b) the use of ancillary equipment or software not furnished by Motorola and that is attached to o r used in connection with the Motorola Product; (c) Motorola Product designed or manufactured in accordance with Customers designs, specifications, guidelines or instructions, if the alleged infringement would not have occurred without such designs, specifications, guidelines or instructions (d) a modification of the Motorola Product by a party other than Motorola (e) use of the Motorola Product in a manner for which the Motorola Product was not designed or that is inconsistent with the terms of this Agreement; or (f) the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. In no event will Motorola's liability resulting from its indemnity obligation to Customer extend in any way to royalties payable on a per use basis or the City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 5 of 32 Customer's revenues, or any royalty basis other than a reasonable royalty based upon revenue derived by Motorola from Customer from sales or license of the infringing Motorola Product. 10 2 4 This Section 10 provides Customer's sole and exclusive remedies and Motorola's entire liability in the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to provide any other or further remedies, whether under another provision of this Agreement or any other legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies provided in this Section 10 are subject to and limited by the restrictions set forth in Section 11. S ection 11 LIMITATION OF LIABILITY Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipment Software, or Services with respect to which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT NEITHER PARTY SHALL BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE TIME, DATA, GOOD WILL REVENUES, P ROFITS OR SAVINGS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT OR THE P ERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. No action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than four (4) years after the accrual of the cause of action, except for money due upon an open account. This limitation of liability will survive the expiration or termination of this Agreement and applies notwithstanding any contrary provision. Section 12 EXCLUSIVE TERMS AND CONDITIONS 12.1 This Agreement supersedes all prior and concurrent agreements and understandings between the parties, whether written or oral related to the Services, and there are no agreements or representations concerning the subject matter of this Agreement except for those expressed herein. The Agreement may not be amended or modified except by a written agreement signed by authorized representatives of both parties. 12.2 Customer agrees to reference this Agreement on any purchase order issued in furtherance of this Agreement, however, an omission of the reference to this Agreement will not affect its applicability. In no event will either party be bound by any terms contained in a Customer purchase order, acknowledgement or other writings unless: the purchase order, acknowledgement, or other writing specifically refers to this Agreement; clearly indicate the intention of both parties to override and modify this Agreement; and the purchase order, acknowledgement, or other writing is signed by authorized representatives of both parties. S ection 13 CONFIDENTIALITY AND PROPRIETARY RIGHTS 13.1 CONFIDENTIAL INFORMATION. During the term of this Agreement, the parties may provide each other with Confidential Information. Each Party will. maintain the confidentiality of the other Party's Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential Information to its employees who have a "need to know' and not copy or reproduce the Confidential Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential Information, including informing its employees who handle the Confidential Information that it is confidential and is not to be disclosed to others, but these precautions will be at least the same degree of care that the receiving Party applies to its own confidential information and will not be less than reasonable care; and use the Confidential Information only in furtherance of the performance of this Agreement. Confidential Information is and will at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the Confidential Information is given or intended, including any City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 6 of 32 express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement. 13.2 PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola, the third party manufacturer of any Equipment and the copyright owner of any Non -Motorola Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development rights of intellectual property Except as explicitly provided in the Software License Agreement Motorola does not grant to Customer, either directly or by implication estoppel, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Customer will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell or export the Software, or permit or encourage any third party to do so. The preceding sentence does not apply to Open Source Software which is governed by the standard license of the copyright owner. Section 14 FCC LICENSES AND OTHER AUTHORIZATIONS Customer is solely responsible for obtaining licenses or other authorizations required by the Federal Communications Commission or any other federal, state, or local government agency and for complying with all rules and regulations required by governmental agencies. Neither Motorola nor any of its employees is an agent or representative of Customer in any governmental matters Section 15 DISPUTES The Parties will use the following procedure to address any dispute arising under this Agreement (a ' Dispute"). 15.1 GOVERNING LAW / VENUE. This Agreement and the rights and duties of the parties will be interpreted in accordance with the laws of the State of Texas. Venue for any claim or action arising under this Agreement shall lie in the State Courts in Tarrant County, Texas, or the United States District Court for the Northern District of Texas, Fort Worth Division. 15.2 NEGOTIATION Either Party may initiate the Dispute resolution procedures by sending a notice of Dispute ("Notice of Dispute"). The Parties will attempt to resolve the Dispute promptly through good faith negotiations including 1) timely escalation of the Dispute to executives who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for the matter and 2) direct communication between the executives. If the Dispute has not been resolved within ten (10) days from the Notice of Dispute, the Parties will proceed to mediation and either party may submit a notice to mediate to the other party ("Notice of Mediation"). 15.3 MEDIATION. The Parties will choose an independent mediator within thirty (30) days of a Notice of Mediation from either Party Neither Party may unreasonably withhold consent to the selection of a mediator If the Parties are unable to agree upon a mediator, either Party may request that American Arbitration Association nominate a mediator. Each Party will bear its own costs of mediation, but the Parties will share the cost of the mediator equally. Each Party will participate in the mediation in good faith and will be represented at the mediation by a business executive with authority to settle the Dispute. 15.4 LITIGATION, VENUE and JURISDICTION. If a Dispute remains unresolved for sixty (60) days after receipt of the Notice of Mediation, either Party may then submit the Dispute to a court of competent jurisdiction as set forth in Section 15.1. 15.5 CONFIDENTIALITY. All communications pursuant to subsections 14.2 and 14.3 will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence and any additional confidentiality protections provided by applicable law The use of these Dispute resolution City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 7 of 32 procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either Party. Section 16 GENERAL 16.1 TAXES. Customer is a tax exempt entity and shall not be liable for any taxes pursuant to this Agreement. 16 2 ASSIGNABILITY AND SUBCONTRACTING. Except as provided herein, neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any attempted assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the foregoing, Motorola may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer, but shall provide Customer with thirty (30) days prior written notice of any such assignment, and Motorola shall execute, or cause to be executed, all necessary documents to effect such assignment or right to receive payment. In addition, in the event Motorola separates one or more of its businesses (each a "Separated Business"), whether by way of a sale, establishment of a joint venture, spin-off or otherwise (each a "Separation Event"), Motorola may, without the prior written consent of the other Party and at no additional cost to Motorola, assign this Agreement such that it will continue to benefit the Separated Business and its affiliates (and Motorola and its affiliates, to the extent applicable) following the Separation Event. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement. 16.3 WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will n ot be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a writing signed by the waiving Party. An effective waiver of a nght or power will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. 16.4. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or u nenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect. 16.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an independent contractor. The Parties and their personnel will not be considered to be employees or agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right o r authority to make commitments of any kind for the other. This Agreement will not constitute create, or be interpreted as a joint venture, partnership or formal business organization of any kind. 16.6. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party. 16.7. ENTIRE AGREEMENT This Agreement, including all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment o r other form will not be considered an amendment or modification of this Agreement, even if a representative of each Party signs that document. 16.8. NOTICES. Notices required under this Agreement to be given by one Party to the other must be in wnting and either personally delivered or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express, UPS or DHL), or by facsimile with verification of receipt and will be effective upon receipt: City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 8 of 32 Motorola Solutions, Inc. Attn: Law Department 1301 E. Algonquin Road IL01-8`h fl S chaumburg, IL 60196 fax: 847-576-0721 Customer, City of Fort Worth Attn Susan Alan's, Assistant City Manager 1000 Throckmorton St. Fort Worth, TX 76102 Fax: 817-392-6134 With copy to the City Attorney at the same address 16.9. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses and authorizations or those of any other federal state, or local government agency required for the installation, maintenance, or 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, n either Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters. 16.10. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties u nder this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. 16.11 MATERIALS TOOLS AND EQUIPMENT All tools, equipment, dies, gauges, models, drawings o r other materials paid for or furnished by Motorola for the purpose of this Agreement will be and remain the sole property of Motorola Customer will use commercially reasonable efforts to safeguard all such property while it is in Customer's custody or control, be liable for any loss or damage to this property and return it to Motorola upon request. This property will be held by Customer for Motorola's use without charge and may be removed from Customer's premises by Motorola at any time during Customer's n ormal business hours, provided that Motorola has complied with all service requirements as set forth in S ection 4 and any attached Statement of work. 16.12 FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance if caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers the Force Majeure. If a Force Majeure occurs, the Parties will execute a change order to extend the P erformance Schedule for a time period that is reasonable under the circumstances. 16.13 SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 4.3 (Motorola Software); Section 4 4 (Non -Motorola Software); if any payment obligations exist Section 7 (Contract Price, Payment and Invoicing); Subsection 8.7 (Disclaimer of Warranties); Section 11 (Limitation of Liability); and Section 13 (Confidentiality and Proprietary Rights); Section 15 (Disputes); and all of the General provisions in Section16. 16.14 COVENANT NOT TO EMPLOY During the term of this Agreement and continuing for a period of two (2) years thereafter, neither party shall hire, engage on contract, solicit the employment of, or recommend employment to any third party of any employee of either party or its subcontractors without the prior written authorization of the other party This provision applies only to those employees or subcontractors who are responsible for rendering services under this Agreement. If this provision is found to be overly broad under applicable law, it will be modified as necessary to conform to applicable law. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 9 of 32 16.15 RIGHT TO AUDIT Motorola agrees that Customer shall, until the expiration of three (3) years after final payment under this Agreement, 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 Agreement. 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 the paragraph above, involving transactions to the subcontract, and further, that Customer shall have access during normal working hours to all subcontractor facilities, and shall be provided adequate and appropriate workspace, in order to conduct audits in compliance with the provisions of this article together with subsection (3) hereof. Customer shall give subcontractor reasonable advance notice of intended audits. (b) Motorola and subcontractor agree to photocopy such documents as may be requested by Customer. Customer 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. 16.16 (a) City Network Access. If Motorola, and/or any of its employees, officers, agents, servants or subcontractors (for purposes of this section 'Motorola Personnel"), requires access to the City's computer network in order to provide the services herein, Motorola shall execute and comply with the City's Network Access Agreement. (b) Federal Law Enforcement Database Access. If Motorola, or any Motorola Personnel, requires access to any federal law enforcement database or any federal criminal history record information system, including but not limited to Fingerprint Identification Records System ("FIRS"), Interstate Identification Index System (' III System") National Crime Information Center ("NCIC") or National Fingerprint File ("NFF"), that is governed by and/or defined in Title 28, Code of Federal Regulations Part 20 ('CFR Part 20"), for the purpose of providing services for the administration of criminal justice as defined therein on behalf of the City under this Agreement Motorola shall comply with the Criminal Justice Information Services Security Policy and CFR Part 20 and shall separately execute the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum. 16.17 Reporting Requirements. For purposes of this section, the words below shall have the following meaning: Child shall mean a person under the age of 18 years of age. Child pornography means an image of a child engaging in sexual conduct or sexual performance as defined by Section 43.25 of the Texas Penal Code. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 10 of 32 Computer means an electronic, magnetic, optical, electrochemical, or other highspeed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device. Computer technician means an individual who, in the course and scope of employment or business, installs, repairs, or otherwise services a computer for a fee. This shall include installation of software, hardware, and maintenance services. if Motorola, or any employee of Motorola, meets the definition of Computer Technician as defined herein, and while providing services pursuant to this Agreement, views an image on a computer that is or appears to be child pornography, such employee of Motorola, or Motorola, shall immediately report the discovery of the image to the City and to a local or state law enforcement agency or the Cyber Tip Line at the National Center for Missing and Exploited Children. The report must include the name and address of the owner or person claiming a right to possession of the computer, if known, and as permitted by law. Failure by Motorola and/or its employee to make the report required herein may result in criminal and/or civil penalties. The Parties hereby enter into this Agreement as of the Effective Date. Motorola Solutions, Inc. By: Name: Title: ((5 yV1 Date: % V /t 7C1 t/ calf Attest: By: Name: Title: City of Fort Worth_Motorola SUA Jl Agreement Page 11 of 32 Customer: City of Fort Worth By: afer‘ Name. S ..an Alanis Title Assistarit City Manager Date: Isp)- (I art CT i Mary J. Kayser City Secretary Approved to Fon and Legality: Maleshia B. Farmer Sr. Assistant City Attorney Contract Authorization: M&C: P-ip-13t Date Approved: CJ • • • • Issue Date: 5.14.2014 OFFICIAL RECORD CITY SECRETARY FT. WORTHS TX Exhibit A SOFTWARE LICENSE AGREEMENT This Exhibit A Software License Agreement ("Agreement") is between Motorola Solutions, Inc., ("Motorola') and the City of Fort Worth, TX ("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. 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 Software to use the Software, in object code form, and the Documentation City of Fort Worth_Motorola SUA 11 Agreement Issue Date: 5.14.2014 Page 12 of 32 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 S oftware 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 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 S oftware 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). S ection 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 P roduct; or (ii) copy onto or transfer Software installed in one unit 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 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 using Motorola's Radio Service Software ("RSS"), Licensee must 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 RSS upon Motorola's request City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 13 of 32 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 notice to Licensee, 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 Agreement. Section 5 OWNERSHIP AND TITLE Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the S oftware 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 related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights. S ection 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 the date of installation (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 n o 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 u se 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 S oftware, 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 warranty to any person other than Licensee with respect to the Software or Documentation. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 14 of 32 S ection 7 TRANSFERS Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee paying 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 FLASHporto software) which is embedded in or furnished for use with the radio products and the related Documentations 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 request, obligating the transferee to be bound by this Agreement. S ection 8 TERM AND TERMINATION 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 notice by Motorola. 8 2 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. 8.3 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 breaches this Agreement, Motorola may terminate this Agreement and be e ntitled 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 S nited States Government). S ection 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, u nless 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)(1i) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. The S oftware 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. S ection 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. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 15 of 32 Section 11 LIMITATION OF LIABILITY The Limitation of Liability provision is described in the Primary Agreement. Section 12 NOTICES N otices are described in the Primary Agreement. S ection 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 notice to or consent of Licensee. 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 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 and the P rimary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject 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 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. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 16 of 32 EXHIBIT B SUA II STATEMENT OF WORK ASTRO 25 SYSTEM UPGRADE AGREEMENT II (SUA II) 1.0 Description of Service and Obligations 1.1 As major system releases become available, Motorola agrees to provide the system owner with the software, hardware and implementation services required to execute up to one system infrastructure upgrade in a two-year period for their ASTRO 25 system 1.2 The parties agree that the system owner will have, at their option, the choice of upgrading in e ither Year 1 or Year 2 of the coverage period. 1.3 The parties agree that ASTRO 25 system release upgrades are considered "major" upgrades if they include commercial OS and application software updates as well as Motorola system release software. System releases shall be pre -tested and certified in Motorola's Systems Integration Test lab. ASTRO 25 system releases shall improve the system functionality and o peration from previous releases and may include some minor feature enhancements. At Motorola's option, system releases may also include significant new feature enhancements as o ptional features. The SUA 11 does not include coverage for new optional feature software or hardware. Optional features may be offered for purchase. 1.4 The parties agree to the Eligible System Release Upgrade Paths available to the system owner as per the system release upgrade chart referenced and incorporated in Appendix A. 1.5 Motorola agrees that this Agreement entitles a Customer to past software versions for the purpose of downgrading product software to a compatible release version. 1.6 Motorola agrees that the following ASTRO 25 system release software for the following products are covered under this Agreement: base stations, site controllers, comparators, routers LAN switches, servers, dispatch consoles, NICE IP logging recorder, NICE replay stations (Scenario Replay and Inform Lite)„ network management terminals, Network Fault Management (NFM) products network security devices such as firewalls and intrusion detection sensors, and associated peripheral infrastructure software. 1.7 Product programming software such as Radio Service Software ("RSS' ), Configuration Service Software (` CSS"), and Customer Programming Software (' CPS") are also covered under this Agreement. 1.8 The parties agree that the SUA II makes available the subscriber radio software releases that are shipping from the factory during the SUA II coverage period. The parties further agree that n ew subscriber radio options and features not previously purchased are excluded from SUA 11 coverage. Additionally subscriber software installation and reprogramming are excluded from the ASTRO 25 SUA II coverage. 1.9 Motorola agrees to provide hardware version updates and/or replacements necessary to u pgrade the system to an eligible system release with an equivalent level of functionality up to o nce in a two-year period. Hardware will be upgraded and/or replaced if required to maintain the existing feature & functionality of the eligible system release. The parties agree that any u pdates to hardware versions and/or replacement hardware required to support new features o r those not specifically required to maintain existing functionality are not included. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 17 of 32 1.10 Motorola agrees that the following hardware components are eligible for full product replacement when necessary per the eligible system release upgrade and if originally provided by Motorola: 1.10.1 Servers 1.10.2 PC Workstations 1.10.3 Routers 1.10.4 LAN Switches 1.11 Motorola agrees that the following hardware components are eligible for board -level replacement when necessary per the eligible system release upgrade. The parties agree that 'board -level replacement" is defined as any Field Replaceable Unit ("FRU") for the products listed: 1.11.1 GTR 8000 Base Stations 1.11.2 GCP 8000 Site Controllers 1.11.3 GCM 8000 Comparators 1.11.4 MCC 7500 Console Operator Positions 1.11.5 PBX Switches for Telephone Interconnect 1.11.6 NFM/NFM XC/MOSCAD RTU 1.12 The ASTRO 25 SUA II does not cover all products. Refer to section 2.0 for exclusions and limitations. 1.13 Motorola agrees to provide implementation services necessary to upgrade the system to an e ligible system release with an equivalent level of functionality up to once in a two-year period. The parties agree that any implementation services that are not directly required to support the system upgrade are not included. The parties further agree that implementation services n ecessary for system expansions and/or new features or functionality that are implemented concurrent with the system upgrade are not included. 1.14 As major system releases become available, Motorola Agrees to provide the following software design and technical resources necessary to complete system release upgrades up to a maximum of one system release upgrade per two-year contract period.: 1.14.1 Review infrastructure system audit data as needed. 1.14.2 Identify additional system equipment needed to implement a system release, if applicable. 1.14.3 Complete a proposal defining the system release, equipment requirements, installation plan, and impact to system users. 1.14.4 Advise Customer of probable impact to system users during the actual field upgrade implementation. 1.14.5 Program management support required to perform the system upgrade. 1.14.6 Field installation labor required to perform the system upgrade. 1.14.7 Upgrade operations engineering labor required to perform the system upgrade. 1.15 The parties agree that the ASTRO 25 SUA II pricing is based on the system configuration o utlined in Appendix B. The parties further agree that this configuration is to be reviewed annually on the contract renewal date. Any change in system configuration may require an ASTRO 25 SUA II price adjustment. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 18 of 32 1.16 The parties agree and acknowledge that the ASTRO 25 SUA II applies only to system release upgrades within the ASTRO 25 7 x platform. 1.17 Motorola agrees to issue the Software Maintenance Agreement ("SMA") bulletin on an annual basis and post it in soft copy on a designated extranet site for Customer access. Standard and optional features for a given ASTRO 25 system release are listed in the SMA bulletin. 1.18 The parties agree that all services described in this SOW are available during the Standard Business Day unless otherwise agreed to by Motorola. 1.19 Coverage Continuity. 1.19.1 The parties acknowledge and agree that the ASTRO 25 SUA II requires continuous coverage beginning within (90) days after the expiration of system warranty. Should the Customer delay purchase of an ASTRO 25 SUA II beyond (90) days from system warranty expiration or elect to discontinue the ASTRO 25 SUA II and later decide to reinstate coverage, additional payment(s) will be necessary to cover the period for which coverage was discontinued or delayed. The total of payments for lapses in coverage will not exceed 3 years in equivalent ASTRO 25 SUA II coverage. 1 20 The Customer agrees that they shall: 1.20.1 Contact Motorola upon receiving the SMA bulletin to engage the appropriate Motorola resources for a system release upgrade.' 1.20.2 Purchase any additional software and hardware necessary to implement optional system release features or system expansions. 1.20.3 Provide or purchase labor to implement optional system release features or system expansions. 1.20.4 Provide high-speed Internet connectivity at the zone core site(s) for use by Motorola to perform remote upgrades and diagnostics during the upgrade period. 1.20.5 Properly store and make available hardware and software required to perform software upgrade services needed for installation of the system release. 1.20.6 If the Servicer is required to travel beyond two (2) hours or one hundred twenty (120) miles by vehicle from the prime site to a remote site to deliver this service, the Customer is responsible for incremental travel and expenses incurred. 1.20.7 Inform system users of software upgrade plans and scheduled system downtime. Perform appropriate system backups and make them readily available during the installation of the system release. 1.20.8 Assist Motorola in the preparation of a Customer Support Plan before system acceptance and provide all information necessary to complete the Customer Support Plan, 1.20.9 Cooperate with Motorola and perform all acts that are reasonable or necessary to enable Motorola to provide software upgrade services. 2.0 Exclusions and Limitations Should Solutions Manager be purchased through Motorola, this service shall be the responsibility of the Motorola Solutions Manager. City of Fort Worth_Motorola SUA II Agreement Page 19 of 32 Issue Date: 5.14.2014 2.1 The parties agree that Systems that have non-standard configurations that have not been certified by Motorola Systems Integration Testing are specifically excluded from the ASTRO 25 SUA II unless otherwise agreed in writing by Motorola and included in this SOW. 2.2 The parties agree that the ASTRO 25 SUA II does not include hardware replacement for all products. Version updates may be available in some cases, but complete product replacement is not covered for all products. 2.3 The parties acknowledge and agree that the ASTRO 25 SUA II does not cover the following products: • NICE Full Inform • MCC5500 Dispatch Consoles • MIP5000 Dispatch Consoles • Plant/E911 Systems • MOTOBRIDGE Solutions • ARC 4000 Systems • Motorola Public Sector Applications Software ("PSA") • Custom SW CAD, Records Management Software • Data Radio Devices • Mobile computing devices such as Laptops • Non -Motorola two-way radio subscriber products • Genesis Products • Point-to-point products such as Microwave terminals and association multiplex equipment 2.4 The parties further agree that the ASTRO 25 SUA II does not cover any hardware or software supplied to the system owner by any Motorola business sector other than Motorola Solutions and/or purchased directly from a third party, unless specifically included in this SOW. 2.5 The parties agree that the ASTRO 25 system release upgrades include limited security updates issued by Microsoft, Solaris and Red Hat certified with each individual system release. 2.6 The parties agree that the ASTRO 25 SUA II does not cover software support for virus attacks or other applications that are not part of the ASTRO 25 system, or unauthorized modifications or other misuse of the covered software. Motorola is not responsible for management of anti- virus or other security applications (such as Norton). Anti -virus and/or security application support may be covered under a separate agreement. 2.7 The parties agree that upgrades for equipment add-ons or expansions during the term of the contract are not included in the coverage of this SOW unless otherwise agreed to by Motorola. 3.0 Special provisions 3.1 Customer acknowledges that if its System has a Special Product Feature, additional engineering may be required to prevent an installed system release from overwriting the Special Product Feature. Upon request, Motorola will determine whether a Special Product Feature can be incorporated into a system release and whether additional engineering effort is required. If additional engineering is required Motorola will issue a change order for the change in scope and associated increase in the price for the ASTRO 25 SUA II. 3.2 Customer acknowledges that they may use the software (including any System Releases) only in accordance with the applicable Software License Agreement The SUA II Statement of Work City of Fort Worth_Motorola SUA 11 Agreement Issue Date: 5.14.2014 Page 20 of 32 is not intended to modify or terminate an existing Software License Agreement, The SUA II or services rendered by Motorola does not alter Motorola's software intellectual property rights. 3.3 Customer acknowledges that SUA II services do not include repair or replacement of hardware or software necessary clue to defects that are not corrected by the system release, nor does it include repair or replacement of defects resulting from any nonstandard or improper use or conditions or from unauthorized installation of software. 3.4 The parties agree that ASTRO 25 SUA II coverage and the parties' responsibilities described in this Statement of Work will automatically terminate if Motorola no longer supports the ASTRO 25 7.x software version in the Customer's system or discontinues the SUA II program, in either case, Motorola will refund to Customer any prepaid fees for System Upgrade Agreement services applicable to the terminated period 3.5 Motorola may suspend or terminate the ASTRO 25 SUA II if the following conditions apply: • Customer fails to pay Motorola any fees for the ASTRO 25 SUA II when due • Customer breaches the Software License Agreement or other applicable agreement • Customer's rights to use the software under the Software License Agreement expire or are terminated • Customer replaces its Motorola System with a system from another manufacturer 4.0 WARRANTIES AND DISCLAIMER: Motorola warrants that its services will be free of defects in materials and workmanship for a period of ninety (90) days following completion of the service ("Warranty Period"). Your sole remedies are to require Motorola to re -perform the affected service or at Motorola's option to refund on a pro-rata basis, the service fees paid for the affected service. 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 this information is provided) are collectively referred to as 'Documentation." During the applicable Warranty Period, Motorola warrants that the tested anti -virus definitions, intrusion detection sensor signatures, and operating system security updates/patches do not degrade or compromise System functionality, and that after incorporation of the recommended remediation action the System Software, when used properly and in accordance with the Documentation, 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 solely with reference to the Documentation. Motorola does not warrant that Customer's use of the software or products will be uninterrupted or error -free or that the software or the products will meet Customer's particular requirements. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO PRETESTED ANTI -VIRUS DEFINITIONS, DATABASE SECURITY UPDATES OPERATING SYSTEM SOFTWARE PATCHES, AND INTRUSION DETECTION SENSOR SIGNATURE FILES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT FURTHER, MOTOROLA DISCLAIMS ANY WARRANTY CONCERNING THE NON-MOTOROLA SOFTWARE AND DOES NOT GUARANTEE THAT CUSTOMER S SYSTEM WILL BE ERROR -FREE OR IMMUNE TO VIRUSES OR WORMS AS A RESULT OF THESE SERVICES. City of Fort Worth_Motorola SUA 11 Agreement Issue Date: 5.14.2014 Page 21 of 32 Exhibit C PAYMENT SCHEDULE Total Contract Price of $102,285.53 will be due upon execution of this agreement. Payments are due within thirty (30) days after the date of each invoice. Customer will make payments when due in the form of a check, cashier's check or wire transfer drawn on a U.S. financial institution and in accordance with the following payment schedule. City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 22 of 32 Exhibit D-1 Johnson County Equipment List Core Master Site Configuration Zones in Operation (including DSR and Dark Master Sites) Zone Features: IV&D, OTAR, TDMA, Telephone Interconnect, CNI, HPD, ISSI, CSMS, IA, POP25, Text Messaging, Outdoor Location, ... RF System Voice RF Sites & RF Simulcast Sites Repeaters/Stations (FDMA) Repeaters/Stations (TDMA) I-IPD RF Sites HPD Stations Dispatch Console System Dispatch Sites Gold Elites Operator Positions MCC 7500 Operator Positions (GPIOM) MCC 7500 Operator Positions (VPM) Conventional Channel Gateways (CCGW) Conventional Site Controllers (GCP 8000 Controller) Logging System Number of AIS Servers Number of Voice Logging Recorder Number of Logging Replay Clients Network Management and MOSCAD NFM Network Management Clients MOSCAD NFM Systems MOSCAD NFM RTUs MOSCAD NFM Clients Fire Station Alerting (FSA) City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 23 of 32 FSA Systems FSA RTUs FSA Clients Subscribers Voice Subscribers non-APX Voice Subscribers APX HPD Subscribers Computing and Networking Hardware (for SUA / SUA H, actual replacement qty may be less than shown) Workstations — High Perfonnance Workstations — Mid Performance Servers — High Performance Servers — Mid Performance LAN Switch— High Performance LAN Switch — Mid Performance Routers City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 24 of 32 Exhibit D-2 Tarrant County College Equipment List Core Master Site Configuration Zones in Operation (including DSR and Dark Master Sites) Zone Features: IV&D, OTAR, TDMA, Telephone Interconnect, CNI, HPD, ISSI, CSMS, IA, POP25, Text Messaging, Outdoor Location, ... RF System Voice RF Sites & RF Simulcast Sites Repeaters/Stations (FDMA) Repeaters/Stations (TDMA) HPD RF Sites HPD Stations Dispatch Console System Dispatch Sites Gold Elites Operator Positions MCC 7500 Operator Positions (GPIOM) MCC 7500 Operator Positions (VPM) Conventional Channel Gateways (CCGW) Conventional Site Controllers (GCP 8000 Controller) Logging System Number of AIS Servers Number of Voice Logging Recorder Number of Logging Replay Clients Network Management and MOSCAD NFM Network Management Clients MOSCAD NFM Systems MOSCAD NFM RTUs MOSCAD NFM Clients City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 25 of 32 Fire Station Alerting (FSA) FSA Systems FSA RTUs FSA Clients Subscribers Voice Subscribers non-APX Voice Subscribers APX HPD Subscribers Computing and Networking Hardware (for SUA / SUA II, actual replacement qty may be less than shown) Workstations — High Performance Workstations — Mid Performance Servers — High Performance Servers — Mid Performance LAN Switch — High Performance LAN Switch — Mid Performance Routers City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 26 of 32 Exhibit D-3 Forest Hill Equipment List Core Master Site Configuration Zones in Operation (including DSR and Dark Master Sites) Zone Features: IV&D, OTAR, TDMA, Telephone Interconnect, CNI, HPD, ISSI, CSMS, IA, POP25, Text Messaging, Outdoor Location, ... RF System Voice RF Sites & RF Simulcast Sites Repeaters/Stations (FDMA) Repeaters/Stations (TDMA) HPD RF Sites HPD Stations Dispatch Console System Dispatch Sites Gold Elites Operator Positions MCC 7500 Operator Positions (GPIOM) MCC 7500 Operator Positions (VPM) Conventional Channel Gateways (CCGW) Conventional Site Controllers (GCP 8000 Controller) Logging System Number of AIS Servers Number of Voice Logging Recorder Number of Logging Replay Clients Network Management and MOSCAD NFM Network Management Clients MOSCAD NFM Systems MOSCAD NFM RTUs MOSCAD NFM Clients Fire Station Alerting (FSA) City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 27 of 32 FSA Systems FSA RTUs FSA Clients Subscribers Voice Subscribers non-APX Voice Subscribers APX HPD Subscribers Computing and Networking Hardware (for SUA / SUA II, actual replacement qty may be less than shown) Workstations — High Performance Workstations — Mid Performance Servers — High Performance Servers — Mid Performance LAN Switch — High Performance LAN Switch — Mid Performance Routers City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 28 of 32 Exhibit D-4 North Richland Hills Equipment List Core Master Site Configuration Zones in Operation (including DSR and Dark Master Sites) Zone Features: IV&D, OTAR, TDMA, Telephone Interconnect, CNI, HPD, ISSI, CSMS, IA, POP2S, Text Messaging, Outdoor Location, ... RF System Voice RF Sites & RF Simulcast Sites Repeaters/Stations (FDMA) Repeaters/Stations (TDMA) HPD RF Sites HPD Stations Dispatch Console System Dispatch Sites Gold Elites Operator Positions MCC 7500 Operator Positions (GPIOM) MCC 7500 Operator Positions (VPM) 6 Conventional Channel Gateways (CCGW) 4 Conventional Site Controllers (GCP 8000 Controller) Logging System Number of AIS Servers Number of Voice Logging Recorder Number of Logging Replay Clients Network Management and MOSCAD NFM Network Management Clients l MOSCAD NFM Systems MOSCAD NFM RTUs MOSCAD NFM Clients Fire Station Alerting (FSA) City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 29 of 32 FSA Systems FSA RTUs FSA Clients Subscribers Voice Subscribers non-APX Voice Subscribers APX HPD Subscribers Computing and Networking Hardware (for SUA / SUA H, actual replacement qty may be less than shown) Workstations — High Performance Workstations — Mid Performance Servers — High Performance Servers — Mid Performance LAN Switch — High Performance LAN Switch —Mid Performance Routers City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 30 of 32 Exhibit D-5 Tarrant County Sheriff's Office Equipment List Core Master Site Configuration Zones in Operation (including DSR and Dark Master Sites) Zone Features: IV&D, OTAR, TDMA, Telephone Interconnect, CNI, HPD, ISSI, CSMS, IA, POP25, Text Messaging, Outdoor Location, ... RF System Voice RF Sites & RF Simulcast Sites Repeaters/Stations (FDMA) Repeaters/Stations (TDMA) I-IPD RF Sites HPD Stations Dispatch Console System Dispatch Sites Gold Elites Operator Positions MCC 7500 Operator Positions (GPIOM) MCC 7500 Operator Positions (VPM) 5 Conventional Channel Gateways (CCGW) 2 Conventional Site Controllers (GCP 8000 Controller) Logging System Number of AIS Servers Number of Voice Logging Recorder Number of Logging Replay Clients Network Management and MOSCAD NFM Network Management Clients MOSCAD NFM Systems MOSCAD NFM RTUs MOSCAD NFM Clients Fire Station Alerting (FSA) City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 31 of 32 FSA Systems FSA RTUs FSA Clients Subscribers Voice Subscribers non-APX Voice Subscribers APX HPD Subscribers Computing and Networking Hardware (for SUA / SUA II, actual replacement qty may be less than shown) Workstations — High Performance Workstations — Mid Performance Servers — High Performance Servers — Mid Performance LAN Switch — High Performance LAN Switch — Mid Performance Routers City of Fort Worth_Motorola SUA II Agreement Issue Date: 5.14.2014 Page 32 of 32 0 MOTOROLA SOLUTIONS Attn: National Service Support/4th Fl 1301 East Algonquin Road (800) 247-2346 Company Name. Attn: Billing Address: City, State, Zip: Customer Contact: Phone: Date: 08/02/2013 Fort Worth, City Of 1000 Throckmorton St Fort Worth,TX,76102 MODEL/OPTION SERVICES DESCRIPTION ***** Recurring Services ***** SVCO4SVC0178A SYSTEM UPDGRADE AGREEMENT II Johnson County (01-Dec-13 start) SERVICES AGREEMENT Contract Number: S00001022068 Contract Modifier: Required P.O.: Customer # : Bill toTag #: Contract Start Date: Contract End Date: Anniversary Day: Payment Cycle: PO#: SVCO4SVC0178A SYSTEM UPGRADE AGREEMENT II Tarrant County College (01-Aug-13 start) SVCO4SVC0178A SYSTEM UPGRADE AGREEMENT II Forest Hill (01-Apr-14 start) SVCO4SVC0178A SYSTEM UPGRADE AGREEMENT II North Richland Hills (01-Apr-14 start) SVCO4SVC0178A SYSTEM UPGRADE AGREEMENT II Tarrant County Sheriffs Office (01-Apr-14 start) SPECIAL INSTRUCTIONS - ATTACH STATEMENT OF WORK FOR PERFORMANCE DESCRIPTIONS Subtotal - Recurring Services Subtotal - One -Time Event Services Total Taxes Grand Total Yes 1012858843 0004 08/01/2013 12/31/2014 Jul 31st ANNUAL TBD MONTHLY EXTENDED EXT AMT $ 4,951.92 $ 1,194.70 $ 427.50 $ 825.00 $ 703.13 $8,102.25 $ .00 $8,102.25 $8,102.25 THIS SERVICE AMOUNT IS SUBJECT TO STATE AND LOCAL TAXING JURISDICTIONS WHERE APPLICABLE, TO BE VERIFIED BY MOTOROLA. Subcontractor(s) MOTOROLA NIO SSA TEAM $ 64,374.96 $ 20,309.90 $ 3,847.50 $ 7,425.00 $ 6,328.17 $102,285 53 $ .00 $102,285 53 $102,285.53 City State SCHAUMBU IL RG MOTOROLA SOLUTIONS - T6 SYSTEMS I AUSTIN I TX UPGRADE (CB706) I received Statements of Work that describe the services provided on this Agreement. Motorola's Service Terms and Conditions, a copy of which is attached to this Service Agreement is incorporated herein by this reference. AUTHZED CUSTOMER SIGNATURE AUTHORIZED CUSTOMER SIGNATURE AUTHORIZED CUSTOMER SIGNATURE AUTHORIZED CUSTOMER SIGNATURE MOTOROLA REPRESENTATIVE (SIGNATURE) gecflL ni ta MOTOROLA REPRESENTATIVE (PRINT NAME) Company Name. Contract Number. S00001022068 Contract Modifier: Contract Start Date: 08/01/2013 Contract End Date: 12/31/2014 Fort Worth, City Of Sass Maim ha TITLE TITLE TITLE e TITLE (3t7-Q y- 07•Z PHONE slat (0-0let DATE ' DATE DATE DATE I LI /Y `ataitM t DAT 1 M&C Review 1 Official site of the City of Fort Worth, Texas CITY COUNCIL AGENDA FORT WORTEI COUNCIL ACTION: Approved on 9/25/2012 DATE: 2 12 REFERENCE P-11436 LOG NAME: 13P12-0258 MOTOROLA 9/25/ 0 SOLUTIONS, .. , INC. P TYPE: NON- PUBLIC NO CODE:CONSENT HEARING: SUBJECT: Authorize Purchase Agreement with Motorola Solutions, Inc., for Radio Parts, Equipment and Related Services Using a Cooperative Contract for the Information Technology Solutions Department in the Amount Up to $1,535,000.00 (ALL COUNCIL DISTRICTS) E. _a. a .1Et .I uY a •. La& j .a a. RECOMMENDATION: It is recommended that the City Council authorize a Purchase Agreement with Motorola Solutions, Inc., for radio parts, equipment and related services using the Houston -Galveston Area Council Contract No. RA05-12 for the Information Technology Solutions Department in the amount up to $1,535,000.00 for the first year. DISCUSSION: The Telecom Division will utilize Houston -Galveston Area Council Contract (HGAC) RAO5-12 to purchase Motorola accessories, parts and repair services for mobile and handheld radios on an as -needed basis. The City 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: Cateaorv. Approximate Annual Expenditures Radio Parts $ 295,000.00 Voice Radios (Mobile and Handheld) $ 625,000.00 Infrastructure Equipment $ 490,000.00 Repair Services (Radio and Other) $ 125.000.00 Total $ 1,535,000.00 PRICE ANALYSIS -Discount percentages for most items the City purchases are the same as current discounts. Radio related items, however, will be discounted an additional five percent. The last Agreement was approved by City Council on March 18, 2008 (M&C P-10570). COOPERATIVE PURCHASE - State law provides that a local government purchasing an item under a Cooperative Purchasing Agreement satisfies any state law requiring that the local government seek competitive bids for purchase of the item. H-GAC contracts were competitively bid to increase and simplify the purchasing power of government entities. http://apps.cfwnet.org/counciljacket/mc_review.asp?ID=17288&councildate=9/25/2012[3/19/2014 3:56:17 PM] M&C Review M/WBE - A waiver of the goal for MBE/SBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. ADMINISTRATIVE CHANGE ORDER - An Administrative Change Order or increase may be made by the City Manager for the Purchase Agreement in the amount up to $50,000.00 and does not require specific City Council approval as long as sufficient funds have been appropriated. AGREEMENT TERMS - This purchase Agreement will be effective September 12, 2012, and expire on April 30, 2015 to align with the H-GAC and Motorola Solutions, Inc., contract. RENEWAL OPTIONS - This Agreement may be renewed at the City's option, in accordance with the terms of the (HGAC) contract. 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 Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Information Systems Fund. BQN\12-0258\CBR TO Fund/Account/Centers Submitted for Citv Manaaer's Office bv: Oriainatina Department Head: Additional Information Contact: ATTACHMENTS FROM Fund/Account/Centers Susan Alanis (8180) Lena Ellis (8517) Angela Gonzales (7648) Jack Dale (8357) http://apps.cfwnet.org/council packet/mc_review.asp?ID=17288&councildate=9/25/2012[3/19/2014 3:56:17 PM]