HomeMy WebLinkAboutContract 39281 (2)m
� ,
��������
tnt�ll��er�c� ���r��h�r��"
���'v ������r���
�������� �� , �`�"i���.�,
, � _._�
CO�+IU�CATZONS �YSTEIV� 1�GREEMEI�T
CITY OF FQRT �,jVORTH, TX
PI� 1VII�C IlVIA.GE PROJECT
n
n
REViSION HI5TORY:
►�'Y�I�� r��; � �
1, R �, .
� .� "�
City of For� Worth, Texas
City of Fort Vllortl�, Texas
C�I�IiVY�f�ICATI��! SYSi�i�IIY AC�F���f�lYl��'i
�i� o� �o�fi VIIoPth, Te�as
Moforola, Inc., a Delaware carporation ("f�otarola"), and #he �City of fort Worth, Texas,
a municipal corporatian orgahized under the laws of th� stat� of Texas anci situated in
Tarrant county, Texas ("Cusfomer or the City") �n#er into this Communications
System Agreement (khe "Agreement" or "'Cammunicatians System Agreement"},
effective as of the last date signed below (the "�ffective Date"}, pursuant to which
C�stomar wil) purchase and Motorola will pravide Customer with labor to image the
MDCs for the Police Department.
Section 1 EXHIBITS
The �xhibits below are hereby incorporated into and made a part o�F this Agreement. In
in#erpreti�g this Agreement and resolvir�g any arnbiguiti�s, the main bocly of this
Agreement wiEl take pr�ced�nce ov�r the Exhibits and any inconsistency befween the
Exhibits will be resaEved in the order in which t�e Exhibi#s appear below.
Exhibit A
Exf�ib�t B
�xhibit C
Mo#orala 5oftware License Agreemeni
Payment Terms
Technical Documents
C-� System DescriptionlStatement of Wark
G2 Technical Docume�tation
C-3 HGAC Pricing
5ecfinn � D��IAII�IONS
Capi#alized terms used in this Agreement and not otherwise defined within the
Agreement ha�e the faflowing meanings:
"Communicati�ns System" or "System" is the communications system described in
Exhibit C, including, but r�of limited to, fhe Equipment, Soffware and all services
described in the, Statement ot Wark and Equiprn�nt List.
"Equipment" is the equi�ament specified in the Equipment Lists "Motorola Software" is
software whose copyrigY�t is owned by Motorala.
"Non-Matorola Sofiware" is software �rvhose copyright is owned by a party other ihan
Motorola.
� ������� �'CIgB 2 �Llotorola
8/37/2009
City of Fort Worth, Texas
"Software" includes Matorola and any Non-MotoroEa �Software that may be furnis�ed with
#he Communicatians System.
Sectian 3 SCOPE OF AGRI��ii��NT
A. SC�PE OF WORK. Motorola will as�emble and integrate the Equipment and
Saftware, and deli�er, install and test the Cornmunications System at designated
sites, as specified in Exhibit C and in accordance with this Agreement and,
specifically, wi�h the Project Timeline and Implementation Schedule, as speci�ied in
C-2, and �he Payment Terms, as specified in Exhibit B. Customer will perForm its
responsibilities as specified ir� Exhibit C and in accorc4ance with this Agreement.
Matorola shalf perform al[ work described in and pursuant to ti�is Agreement in a
profiessional manner ar�d in canformance to prafessional standards.
B. CHANGE ORDEFiS. Either party may request changes with�n the general scope af
t1�is Agr�em�nt. If a requested change causes an increase or decrease in fhe cost of
or time requireci for the performance af this Agreement, Motorola and Customer will
agree to an equitable adjustment in #he Agreement price ar performanc� schedule,
or bath, provided, however, that if Moiorola requests tMe change and Customer
consen�s, sUch change shall not result in or create any delay in any miiestone sQt
farih in the Proj�ect Schedule set forth in G2 unless otherwise specifically agreed to
in writing by Customer. Motorola is not obligated to comply with requested changes
unless and untif both parties execute a wri#ten change arder. Changes that Encrease
Customer's costs under this Agreement by more than $25,Q00.00 must be approved
by Customer's City Council prior to executian vf a written cf�ange order.
C. AD�ITIONAL PRODUCTS. For one (1) year after the date of Final System
Acc�ptance, Cusiomer may purchase additianal Equipment as add-ons to the
Commu�ications System ("Add-on Equipment"). If Customer and Motaroia ha�e
agreed to a convention for processing electronic daia interchange ("EDl")
transactions, purchase orders may be transmitted electronically. Each p�archase
order must specifically refer to this Agreement and will be an offer by Customer
subj�ct to Motoro[a's acceptance. Except for pricing and delivery terms, wi�ich must
be stated on the purchase order, Customer and Matorola agree that the applicable
terms af tt�is Agreement wil[ be t�e only terms and canditions thaf gavarn the
purchase and sale o# products identified fln such purchase orders. Customer and
Motorala agree that the procedure far payment of al[ addiiional products so
purchased will he in accordance with the procedure set forth in Section 5 this
Agresment.
D. MAINTENANCE SERVICE. After the first year following expiration of #�e Warranty
Period, Customer may purc�ase maintenance services and sof�ware suppart for the
Communications System pursuant to a separately execuied service agreemeni and
software subscription agreement between Motdrola and Customer.
� �,�y��� p�� Page 3 Motorola
8/31/2009
City of Fort Wor�h, Texas
E. MOTOROLA SOFTWARE. Any Motorola Sofiware fiurnisf�ed will be iicensed to
Customer salely accarding to the terms and r�strictions af the 5oftware License
Agreement attached as Exhibit A. Customer hereby accepts all of the terms and
restrictions of ihe Software Lic�nse Agreements as negotiated between Motorala
and the City of Fort Wor�h.
F. NON-MOTOROLA SO�TWARE. Non-Motorola Software #urnished by Motorola will
be subj�ct io #he terms and restrictions o# its co�yright owner unless such capyright
owner has granted ta Matorola the right to sublicens� such Non-Motorola �Softwar�,
in which case the Software License Agreement {incfuding any addendum fo satisfy
such copyright owner's �equirements) sha[I app[y; pro�ided, hawever, ti�at nothing in
this Section 3.F, the So�tware License Agreeme�t or any restrictions or requirements
of copyright awners of Non-Motorola Saftware, 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. PR�JECT MANAGEMENT. Matarola shall assign a project manager accepta�ale to
C�stomer, who is authorized to exercise technicai direction af all duties and
obliga#ions af Motorola and Motoro[a's suExontraetors under ihis Agreement.
Matarola agrees to meet and consult with Customer laefore designating a new ar
alternate project manager and allow Customer reasonable right of re�Fusal.
Motorola's project manager shall have authority to negotiate cF�anges in or
am�ndments ta this Agreement on behalf nf Motorola. In addition, ar�y and all of
Motarola's afficers, agents, employees, and subcontractors may, at the aption of
Customer, be subject to a sec�r+ty check at any time. Customer shalf have the right
fo require the removal fram Customer's premises any af Motorola's officers, agents,
employees ar subcontractors if Customer reasanably cfetermines, such individual's
presence is inap}�rapriate under the circumstances, and Mato�rala agr-ees that it will
immediately comply with and assist Customer in sUch remaval. At Customer's
request, Matorola shal[ pram�#ly provide Custamer with #he names, dates of birth,
drivers' license numbers and other identification documents required by Customer of
Motorola's officers, agenfs, employess or subcantractors that will be present on
C�stomer's premises in order for Motorola to fulfi[I its obligations under this
Agre�meni for the purpvse of standard backgroundlcriminal checEcs.
H. PROJ�CT STATUS MEETINGS. From the E�fective Date of this Agreement until
�inal System Acceptance, Matornla agrees ta conduct periodic project status
meetings at �ocations specified by Customer. These meetings shall be conducted
on not less ihan a monthly basis and may be conducted more frequently if the
parties agree.
Sectian 4 p�R�OR�ANC� SCH��UL�
A. Motorola and Custamer agree to perfarm their responsibilities in accordance with tha
Statement of Work and the Praject Timeline and Implementation Schedule.
Payments are to be activity based 1 related, not eumulati�e time based 1 related. If
payments are tied to deliverabEes, if the deli�erable mo�es so daes the payment.
� ��.��.��r � Page 4 Marorola�
8/3I/2p09
City of Fart Warth, Texas
B. By executing ti�is Agreement, Customer auff�orizes Motorola to proceed with the
manufacture, assembly, integration, delivery, installatian, and testing of the
Communications System. No further notice ta praceed, purchase order,
authorization, resolution, or any other action will be required unEess required by
applicable laws ar ardinances.
Section � PAYt��NT SCkEDU��
A. The to#al contract pric� far all equipment, saftware and services provided under this
Agreement is not to exceed $$81.750.00 for which Custamer agrees to make
payments in accordance with the Paymenf Terms in Exhibit B.
B. Freight charges #or all Equipment, software and any and all other p� oducts anci
suppEies provided hereunder are included in the Contract Pric�. All material to be
sf�ippec� ��B Destination.
C. Notwiths#anding anything to the contrary in this Agreement, Motoro[a unc�erstands
that Custamer has appropriated na more than ��81.750.40�or purposes of the
man�facture, asseml�ly, integrati�n, delivery, insta[lation ancf festing of the
Communications 5ys#em and all other wflrk or services provided by Motorofa ar its
subcontractors under this Agreement. Motorala understands and agrees that
Customer shal[ not be liable to Matorola or any of its subcontractors for any sums in
excess of such amount unlass Customer's City Cauncil first approves and
appropriates sums in excess of such amount, in which case such additional sums
shall also be included as part af the Contracf Price as defined and inYerpret�ed in this
Agr�ement.
D. A[I invoices fram Motoroia shall t�e submitted to Customer's Projeci Manager ar, �n
his ar her absence, the Director of Custorner's IT Solutions Department. Customer
sha[I pay in�oices for services and c�eliveraE�les recei�ed and appro�ed by Customer
within fhirty {30) days of receipt. If Customer has any questions or disputes
regarding such in�oices, Motorala shaH make Motorola personnel available as
needed to answer or resolve such, and Gustomer shall be allowed additional time to
pay the questioned ar disputed portian of those invoices.
Section 6 iRAfN1NC
Motorola will provide an site training for prop�r use of new equipment.
Sectior� i S1i�S
A. [n addition to i#s responsibilities described in the Statement o# Work, Gustomer
agrees to provide a designated project director, aisa known as the Project Manager,
procure any n�cessary construction permits, builc�ing permits, zoning variances and the
like, provicie access ta tt�e sites identified in the Exhi�its as requested �y Motorola, and
have such sites a�ailable for installation of the Equipment by Motorola in accordance
with the perFormar�ce scheciule and Statement of Work.
� fY�b'��lR��B
Pqrge S Mocorolal
8/31I2009
City of Fort Wor�h, Texas
B. If either Motorola ar Customer determines during the course of perForfnance of
this Agreement t1�at the si�es identified in the Exhibits are no longer availabl� or desired,
or, if 5ubsurface, s#r�ctural, advetse envEronmental or latent conditions at any siie differ
firom those indicated on �h� specificatians in the Exhibits, Motoroaa and Customer wi!!
pramptly [n�estigate the conditians and in good faith negotiate an equitable salution and,
based on such solution, executa any written amer�dments to this Agreement or the
Exhibits attached her�#o that may be deemed necessary by both parties.
C. I# Custom�er and Motorala determine tF�at any �change requested by Customer in
5ite a�ailabi[ity, installatian plans, or specifications may require an adjustment in the
Contrac� Price or in the tim� required for the performance of this Agreemenf, the parties
will in good faith negatiate an equitable solutian and, based on such solution, execute
any written amendments to this Agreement or the Exhibits at�ached hereto thai may be
deemed necessary by both par�ies. Amendments will be via the Chang� Order process
descrEbed in "Se�tion 3 Scope of Agreement, Paragraph B. Change Orc�ers."
S�CTI�f� � FIPlA� SYSiER�f ACCEPTANCE
A. Motorola will perform tests af various com�onents of the Communications System
and a final t�est of the fully int�egrated Commur�ications System in accardar�ce with
fih� Statement of Workl. Acc�ptance of the Communications System will occur upon
the successful completion of such final testing of #�e System as a fully integrated
Communications System, as outlined in and in accordance with the Siatement of
Work {"System Aeceptance"j, at whicf� time both parties shall promptly dacument
any deficiencies, faifures, o�` problems, in the form of a Punch List. fir�al System
Acceptance Certifiicates will not be issued by the Ciiy of For� Worth until all issues on
the Punch I�ist have been resolved to the sole satisfaction of the City af Fort Worth
("Final System Accep#a�ce"). Customer shall not unreasonably delay Finaf Syst�em
Acceptance. In addition, bath parties shall promptly execute certifiicates of
subsyst�m acceptance upon the successful completion of testing o� such
su�systems, as autlined in and in accordance with ihe Statement of work attached
hereto. Customer and Motorola will joirttly prepare a list of such amissior�s and
vanances which Moiorala wilf correct accarding to an agreed upon schedule with
clearly defined and agreed to due dates. R�eference to 'Systern Acceptance' SHALL
NOT equate to `Final System Acceptance'.
B. BENEFICIAL USE. Customer acknowledges tE�at Motorala's ability to perform its
implementatian and testing responsibilities may be impeded if Custom�r b�gins
using the Systerr� before System Acceptance. Therefore, Customer will not
commence Berteficial llse befare System Acce�tance without Motarola's priar
written autharization, which wi�l not be unreasonably withheld. Motorola is not
responsible for System perfarmance deficiencies that occur during unauth4rized
Beneficial Use. Upon commenc�mer�t of Beneficial llse, Customer assumes
responsiiaility for the use and aperatian af the System.
� �p,�y���� Page 6 h9otorola
8/31/2009
City of Fork Worth, Texas
Section 9 V�ARRAf�TY
A. WA�RANTY PERIOD. Upon Sysfem Acceptance or Beneficial Use, whichever
first occurs, fhe System Functional�ty representation ciescribed be�aw is fulfil�ed. The
Equipme�t and Motorola Software is warranted for a period of one (1} year after System
Acceptance in accordance with the app[icable limited warranties shown be{ow.
Customer must notify Motorola in writing if �qu�pment or soffr+vare does not confarm ta
these warrartties no fater than one month after the expiratian of t�e Warranty P-eriod.
B. SYSTEM �UNCTIONALITY WARRANTY. Motorola represents that fhe
Communications System will satisfy the functional requirements in Exhibit C. Upfln
System Acceptance, #his System functionality representation is fulfilled. After System
Acceptance, the Equi�ment Warranty set farth belaw and th� Saftware Warranty s�t
forth in the Software License Agreement wi[I apply in acco�dance with their terms and
conditions.
Motorola will not be respansible for perfarmance deficiencies af the System cau�d
by ancilfary equipment nat furnished or specified for use by Matorola or another
party in accardance with the provisions o� this Agreement tha# is attached to or us�d
in connection with the System pra�ided hereunder.
Aciditionally, Motarola w�11 not be responsibfe for System performance where the
�unctionaEity is reduced for r�asons beyond Motorola's control including but nof
limited to i) an earthquake, adverse atmospheric conditians ar ather natural causes;
ii) the consfruction of a building t�af acfversely affects the microwa�e path reliabi[ity
or Radio Frequency (RF} coverage; iii) the adciifion af additiona� frequencies at
Syst�em sites that cause RF interference or intermodulation; iv) Customer changes to
load usage andlor configuration outside the parameters specified in Exhibit C; v) any
other act outside the scape of the ordinary use of ihe Communications 5ystem by
parti�s wha are beyond Motorola's control, including Customer or its employees,
contractors, consultants or agents.
C. EQUIPMENT WARRANTY. Matorola
defects in material and workmaRship
Warranty Period. The Warranty Period
wi11 be stated in this section.
warrants the Equipment against material
under normal use and service during ihe
far nan-Matarala manufactured Equipment
At no additional charge and ai its option, Motorola will eiti�er repair the defective
Equipment, replace the defective Equipment with the same or equiva�ent Equipment
acce�table to Custom�r or refund the purchase price of the defective Equipment,
and such action on ti�e part of Motoro[a will be the fu1[ extent of Motorola's liability
hereunder. Repaired or repEaced �quipment is warranted far the balance of the
Warranty Period. All defective parts of the Equipment replaced unt�er warranty shal[
become the property of Motorola.
THIS WARRANTY DOES NOT APPLY TO
� 1i�'�5�C�06�.�
PRge 7 Motorala
8/31/2009
Gity of �ort Worth, Texas
a) Defects ar damage resulting from use of the �quipment in other than its r�ormal
and customary manner.
b) Defects or damage occurring from misuse, accident., water, or negEecf.
c) Defects or damage occurring from testing, operation, maintenance {except first
linelfrant line echelan maintenance provided by Customer), ir�staAation,
alteration, madification, or adjustment not (i) provided by Motorala pu�suant to
this Communications System Agr�emen# or (ii) ot�erwise authorized in writing by
Motorola.
d) Breakag� or damage ta antennas unless caused directly by defects in material
ar workmanship.
e) Equipment that has been subjected ta unauthorized Equipment modifications,
disassembly or repairs {including the addition to the Equipme�t of non-Motarola
supplied equipment if nat authorized by Motorola) which adversely affect
performance of th� �quipme�t or inter�ere with Mo#orafa's norma[ warranty
inspectian and testing of' the Equi�ment to verify any warranty claim.
f} Equ9pment that has had the seria� number removed or made illegible.
g) Ba#teries that carry a separate [imited warranty.
h) Equipment which, due to i[legal or unautharized alteratior� of fhe
saftwarelfirmvware in the Equipmenf, does not function in accordance vkrith
Motorola's published specificatiohs or witF� the FCG type acc�ptance Eabeling in
effect for the Equipment at the iim� the Equipment was initia[ly distributed from
Motorola.
i) Scratches or other cosmetic damage to Equipment surfaces tha# does not affect
the operation of the Equipment.
j) Software (whic� is co�ered by the Saftware License Agreement).
k) Narmal and customary wear and tear.
I} On site response, except where it pertains to specific r�ew 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 eq�ipment that is part of
this Agr��ment, will be billed at prevai[ing time and material rates.
� I�'�?t1�t ALJ�d
Page 8 Mororolce
8/3!/2009
City of Fort Warth, Texas
D_ MOTORO�A SOFTWARE WARRANTY. Ma#arola Software is warrant�d in
accardanca with the terms of the Software l.icense Agreement attached as Exhibit
A.
E. These express limited warranties as set forth in this Seciion are extended by
Motaraia to the original end user purchasing or leasing the System far commercial,
industr�al, or go�ernmental use only, and is nat assigrtable or transferable. These
are the complet� warranties far ihe Equipment and Software pra�ided pursuant io
this Agreement.
F. YHESE IdVARRANifES AR� CCV€N fN �1�11 OF AL� OiHER Idi!lARRAiVY1�5.
N10iOROLA 91SCLAIfi�S �►�L O�'H�R 'V�IARRANTf ES OR CONUITIOiVS,
E�PR�SS OR If1�F'LIED, [hlCLUDING THE IiU�P�I�� I�VARRAfVY��S OR
C4PlDITIOf�S �F f�ERCHA�ITABI�ITY AND FITiVESS FOR A PART�CULAR
PURP05E.
Section '10 DELAYS
A. Successful project implemer�tation wil[ require caoperation and fairness between the
parties. Because it is impract�cal to pro�ide for e�ery contingency that may arise
during the course of performance of this Agreement, the parties agree to notify the
other in wriiing ifi they become aware that any candition will significantly delay
performance. The par�ies will agree to r�asonaf�le exiensions of the project schedule
by executing a written change order that may, or may nat, have a financia� impact.
B. Under r►o circumstances wilf either party be responsibie for delays or lac[c of
performance resulting from events beyond the reasonable control of that party
("�xcusable Delays"). Such events include, but are nat limited to, acts of God,
weafher conditions, compliance with laws and regulations (excluding Customer's
failure to prop�rly and tim�ly apply for all r�quir�d FCC fieenses}, governmenta!
action, bid protests, fire, strikes, lock-outs, and other labar disruptions, materia!
shortages, riots, acts of war, and an Excusable Delay of a Mot�rala subcontractor.
C. If Customer (including its other cor�tractors) delays the Performance Schedu�e, it wi11
make the promised payments according to the Payment Schedule as if no delay
occurred; and the Parties will execute a change arder io extend the Perfarmance
Schedule and, if requested, compensate Motorola for al1 reasonable charges
incurred because of the delay. Delay charges may include costs incurred by
Ma#orola ar its subcantractors for additional freight, warehousing and handling of
Equipment; extension of the warranties; travef; suspending and re-mabilizing the
work; additional engineering, project managament, and standby time calcu�ated at
then current rates; and preparing and implementing an alternative implemen�ation
pEan.
Customer will make a�ailable to Moiorola the sites when scheduled and Customer
wiil not ofherwise unreasonably delay ar prevent Motorola's perFormance of its
� �,��,���b, � Page 9 Moto1•ola�
8/31/2009
City of Fort Wa�th, Texas
responsib�lities. ln the event of a Customer deEay during the time of shipment,
Motorola may ship the equipment as scheduled ta a location as desigr�ated by the
Customer or if no such locatian is d�signaied, a Motorola designated storage facility.
Motorola shall n�t ship equipment until ad�ised by the City thaf fhe site is ready. If
either par#y materialEy delays performance under this Agreement, Motor�la and
Customer shall discuss the reasons for the particular delay and negotia#e in good
faith a solution to address such delay and wili execute a writt�n change order that
may, or may not, have a financial impact, if apprapriate.
5ection 9'i D�FA.IlLT
A. If Matorola fails to complet� delivery, installation or acceptance testing in
accordance witF� this Agreement, Customer may cansider Motorola to be in default,
unless an Excusable De1ay has caused such failure. Customer agrees to give
Motorala written notice of such default. Motorola will have thirty (30) ca�endar days
from t�e receipt of such natice� to provide a written plan of action that is acceptable
to Customer to cure the de#ault. 5uch written plan af action shall include milestones
n�cessary to cure the default and timetables for achi�ving those milestanes and
shall �e sign�d by Motarala and Custamer.
B. If Motoroia fails to cure the default within the timetables and in accordance with t�e
pian of action that Custamer has accepted, Customer may (i) terminate any
unfulfilled portion of this Agreement and, at �Customer's saie option, complete the
Communications System at a quality and to a capa6ility equaiing, that specified in
this Agreement through a third party or (ii) if the Communications Sysiem or any
companent thereofi cannot be com�Eeted thraugh a third party as �arovided in
subsection (i} abave, demand and recei�e specific perfarmar�ce by Motorola. If
Cus#omer campletes tt�e Communicat�ons System through a tl�ird party, Customer
may recfl�ar all reasona�le costs and ex�enses incurred in the course of completing
the Gommunications System to a capability nai exceeding that speci�ied in the
Agreement, less the unpaicl portion of the Contraet Price. Customer agrees #o use its
best efforts to miiigate such costs. IWlatorola's liability under this Section is subject to
the limitations of the Section entitled L,imitation of Liability of this Agreement.
Section 1� LIA�IL[�1( AN� IND�f�IVIFICAYIOM
A. GEIV�RAL LIA�[LITY AI�D IND��dYNIYY. RdIOYOROLA SHALL BE R�S�ONSIBLE
FOR RNY Af�9 A�L TANCIB�� PROP�R�Y LOSS �R Dp►IVii4C� AND10R
P�RSOf�Ai. I�lJURY, IfVC�U�INC D�Ai'H, i0 ANY AN� ALL P�RSONS, O�
ARlY KIf�D OR CHARACi�R, F�Vki�TH�R REA� OR /�SS�Ri�D, i0 �H� �XT�NY
CAUSED BY THE f�EGLIC�R�i ACi{5) OR Of+�ISSION(S) OF� IiVTEhIiiONAL
N�ISCONDUCi OF 14dY0iORDLA, [i5 O�FICERS, AC�NTS, S�RVAiVTS,
�IV�f�LOY��S, ANDIOR SUBCOt�iRACiORS, IP! TF�E P�RFQRI4,fiANC� OF OR
R�LAi�D TO �'F;� PER�'ORII�ARlC� OF TFilS AGREE14�l�f�i. IN ADDIi[ON,
�flOiORO�I� SIiALL D���N�, iNI]��fiNIFY ARl�] HO�D CUST014,+1ER HARfqlYLESS
� ������� Page I (1 Motorola
si3rraaov
City of Fort Worth, Texas
FROIilN �►fl�D AGAIf�ST AhlY A�'D ALL LAIIVSUITS, CLAlI1�YS, ACTIONS, �E14�AND,
LI�►BILlTI�S OR OTFiER C05iS ARlD EXP�f�SES !�lHICH hfYAY ACCRUE
AGAIMS`I' CU570i9fiER TO YFi� �XY�R�T THAY' YH� SAIV�E /�R� CAUS�f� �Y YF9�
N�GLIGENY i4CT(S) OR O[�15SfON{S) QR INT�iVTION/�L �ISCON�UCT OF
fl�DiOROLA, ITS OFFICERS, A��NYS, SERV/•1NYS, E�PLOYEES, ANDlOR
SUBCOiVTRACiORS. THG �ERIVIS, CONDIiIONS AND PROVISlOt�S O� THIS
P/�aRGRAPH SHA�L. SURVIV� TH� �XPIRATIOP� Oa T�Rfl�INATION �F 1`FiIS
ACRE�f1���li.
B. PAYENY AN� COPYRIGhEY EN�RIMGE{4lII�NT. Motorola wili defend at its expe�se
any suit brought against Custamer to the extent it is basad on a claim that the
Equipment or Motorola Software infiringes a U.S. patent or copyright, and Motorvla
will indemnify for those costs and damages finally awarded against Customer which
are attributable to any sucl� claim. Matorola's du#ies #a defer�d and indemnify are
conditioned upon: Customer pramptly notifying Motorola in wr�ting af the
infringement claim; Motorola having sole control of the defenss of the suit and all
negotiations for its settfement or campromise; and Custamer pro�iding ta Motaroaa
cooperation and, if request�d by Motorola, reasonabEe assis#ance in the defense af
the infringement cfaim.
If a claim occurs, or in Motorola's opinion is fikely to occu�, Motorola may at its aption
and expense procure for Customer the right to continue using the Equipment or
Motorola Software, replace ar madify it so that it becomes nan-infringing while
�raviding funciionally equivalent perFormance, ar grant Customer a credif for the
Equipment or Motorola �oftwar� as depreciated and acc�pt its return. The
depreciation amounf wifl be calculated based upon generally accepted accaunting
standards far such Equipmeni and Motoroia Software.
Matarola will have r�o duty to defend ar indemnify for any claim that is based upon
th� combinafiion of the Equipment ar Motorola Software with any software, apparatus
o� de�ice not furnished by Motoraia; the use of ancillary equipment vr saftware not
furnished by Motorola and that is attached to or used in connection with the
Equipment or Motarola Software; any Equipment that is not Motorola's design or
farmula; a modifiication of the Motorola Software by a party o#her than Moto�ola; or
the failure by Customer ta install an enhancement release to the Motorola Software
that is intended ia correct the claimed infringement. The foregoing states the entire
liabiliiy of Moiorola with respect to infringement of patents and copyrights by the
Equipment, Motarola Software, or any of their parts.
Sec#ion '!3 DfSPUiES
A. Motarola and Cus#omer will attempt #o settle any claim or contro�ersy arising from
this Agreement through consultation and negotiation in goad faith and a spirit of
mutual cooperation. lf those attempts fail, tF�e dispute may be mediated by a
mediator chosen jointly by Motorola and Customer within thirty (30) business days
after nfltice by one of the parties requasting non-t�inding mediatian. If both parties
� ��,p„��,��� Page 11 Molorole
8/31/�009
City of rorf Worth, Texas
consent to mediation, Motorola and Customer will share the cast af the m�diation
equally. The parties may postpone mediafion until #hey have completed some
specified but limited discovery about fhe dispufe. The parties may alsa replace
mediation wit� some other form of non-binding alternate dispute resalution ("ADR"}
procedure. Any mediation, ADR proced�re or ather negotiations or meetings
pertaining #o a claim, contra�ersy ar pro�alem arising under this Agreement shall iae
held ai a locatian in Fort Worth, Tarrant County, Texas.
B. Any dispute that cannot be resof�ed between the par�ies through negotiatio� or
mediation within two (2} months after the date of the initia! request #or non-binding
mediation may then be su�mitted by either party to a catart of competent jurisdiction
in accordance with Secfian 18.J of this Agreement. Each party consents ta
ju�'isdictian o�er it by such a court. The use of any ADR procedures will not be
considered under the doctrine af laches, waiver, ar estoppel to a#fect adveTsely th�
rights of eith�r party. Either party may resart to the judicial proceedings da�criiaed in
this paragraph prior to the expiration of the two-monih ADR period if (a) good faith
efforts to attempt resolutian of the dispute under these procedures have been
unsuccessful or (b) ir�terim refief from the court is necessary to prevent serious and
irreparable injury to such party or any of its affiliat�s, a�ents, emplay�es, customers,
supp[iers, �r subcontractors.
Sec#ion 14 L��I�ATIOW OF LIA�ILITY
Except for personal injury or deaih, Motoroia's total liability to Customer for c[aims or
damages asserted by Custamer, whether for breach of contract, warrar�ty, negligence,
strict liability in tort, indemnification, or otherwise, will be iimited to ihe total Contract
Price. Ild 1�0 EVERlT 1l�ILL I�IOTOR�LA B� L.IABLE FOR ANY �OSS OF US�, �OSS
O�' TIIV��, 1NCONVEi�I�WG�, COl�ll4l99ERCIAL LOSS, I.OSi PR�FIiS OR SAVII�CS,
OR OTIi�R SPECIAL, INCIDEfVT'AL OR COfVSEQUENTIAL D�►l4�AC�S If� ANY lii�AY
R�LAiED TO OR ARISIN� FROIV� THIS AGR��I�Ef�T, THE SAL� ()R IJSE OF TH�,
EG�UI�i1��RlY, Of� 7HE P�R�O�IMA[dC� OF SERVICES BY NYOT'OROLA PURSU�►fVT
TO i'HlS l�CREEf�AENT. This Limitation af Liability will survive the expiration or
termination of this Agreement.
Section 15 INSURANCE
From ihe Effective Dat� af this Agr�ement until Fina1 System Acceptance, Matarv�a shalf
maintain, in full force and effect, a policy or policies of insurance as sp�cified in this
Section 15 to co�er risks related to Motorala's scope of work under this Agreement. At
a minimum, Motorola shall pro�ide coverage of the types and at the limits specified
h�r�i+�:
� Commercial General Liability: $1,OOD,000.00 per occurrence; $2,000,000 annual
aggregate;
� ��,����� Page 12 Molarola
8137/20R9
City of Fart Worth, Texas
o Business Automobile Liability: $�,OOO,OOD combined single limit
• Worker's Compensatian: Applicab[e Statutory Limits
The insurers for. all policies must be ap�roved ta do business in the State of Texas.
Certificates of Insurance provided by Motorola under this A�reement shall (i) list
Customer as an additional insured on fhe commercial general liability policy, anci (ii)
pro�ide t�at the res�ective policy shall not b� canceled, limited in scope or coverage, or
non-r�newed until after thirty (30) days prior wriiten notice has been gi�e ta the Risk
Manager, City af Fort Worth, 1000 Throckmorton Street, Fort Warth, Texas 76102.
Motorola shal! provic{e Customer with a copy of its Certifi�cate(s) of Insurance {�rior to the
�ff�ctive dake of this Agreement.
Seciian 4G T'ermi�ation
Customer may terminate this Agreement, in whole or in part, at any time and for any
reason fallowi�g at least thirty (30) ca�endar ciays` advance written natice to Motorola.
Custamer shall pay Motorola for {i) a![ Equi{�ment pro�ided and servir.es and other work
performed by Motorola through the effective date of termination; (ii) ac#ual and
reasonab[e expenses incurred hy Motorola in the removal of installatian and test
equipmen# from Customer's prem[ses; and (iii) any actual and reasonable costs which
may b� borne by Motorola in the early and a�arupt termination for convenience vf
subcontracts, provided that Customer has approvecf in writing the provisions of such
subcontracts that relate to termination by Moiorola or liquidated damages or other
financial obligations of Matorola due to termination by Motorola, whicfi� appro�al shall not
unreasonably be withheld.
Section � � FCC �icenses
Customer will obtai� and comply wifh al1 Fecieral Communications Commission ("F'CC")
licenses and authorizations required for the installation, aperation ar�d use of the System
before the scheduled installation of the Equipment. Although Matorola might assist
Cusfomer i� the preparation of its �CC ficense applications, neither Motorola nor any of
its emplayess is an ageni or representative of Customer in FCC or other matters.
Section 18 C��I�ERAL
A. TiTLE AND RISK OF LOSS. Title to r�espective Equipment will pass to Customer
upon delivery ta Customer's facilifies. Full risk o�F loss, however, shall not pass to
Customer until completion of t�e Installation of Equipment MiEestone set forth in
Exhibit B pro�ided, hawaver, that after deli�ery af Equipment ta Customer's facilities
�ut before payment by Customer to Motora[a for that �quipment, Customer shall be
responsible for any losses or damages to Equipment to the �extent that such are
directly caused by th� negligent act(s} or omission{s) ar intentional misconduct of
Customer, its afficers, agents, servants andlor employees. Title to Software will not
pass to Customer at any time.
� ����p�� l�age 13 Motorola
8/31/2009
Ciky of Fort Warth, Texas
B. TAXES. The purchase price does not include any amount far federal, stafe, or local
�xcise, sal�s, lease, setvice, r�ntal, us�, property, occupatian, or other taxes, all af
which �other #han federal, state, and locai taxes based on Motoroia's income or net
worth) will be paid by Customer except as exempt by Eaw.
C. CONFIDENTIAL. INFORMATI�N. Customer and Matorola wi11 nat disclose to third
parFies any material or infarmation that is identified by ei#her party to the other as
praprietary and cor�fidential ("Confidential Information") without the ather party's
prior written permission unless required by law; provided, however, that Custamer
may disclvse Confidential Infarmation of Motorola ta Customer's employees, agents,
consultants and other contractors, in wi�ich case Custom�r shall identify to such
parties the nature and obligations of Custamer with respect ta that Confidential
Informat�on. Notwithstanding the foregoing, Motorafa understands and
acknawledges that the C�stomer is a public eniity under the laws of the Staie o�
Texas, and as suei�, all information held by Customer or that customer has a rigY�t of
access to is subject tQ public disclasure under Chapter �52 of the Texas
Government Code. Customer may be required to disclose information that may
reveal Mnforola proprietary infnrmation to third parties ur�der the Texas Government
Code or by a�y other legal process, law, rule ar judicial arder by a court of
competent jurisdiction. If either Customer or Matorola is r�quired by law to disclos�
such material or information, the disciosing pa�ty will notify the other party prior to
such disclosure.
D. DIS:CLAIMER OF LIC�NSE. Except as explicitly pra�ided in the Motorola Software
License Agreemeni included in Exhibit A, nothing in this Agreement will be deemed
to grant, either directly ar by im�lication, estoppel, or otherwise, any lic�nse or right
under any patents, patent applications, copyrighis, trade marks, trade secrets or
other inteflectuaf property af Mntarola.
E. ASSIGNABILITY. This Agreement may not be assigned by either party without the
prior written car�s�nt of the other party except that Motorola may assign this
Agreement to any of its affiliates or its r�ght to receive payment following at least
fhirty (30) days' advance wri#ten natice ta Custamer.
F WAlVfR. Failure vr deEay by either party ta exercise any right or power under this
Agreement wil! r�ot operate as a waiver of sueY� right or power.
G. SEVERABILITY. If any partion of this Agreement is held to be invalid or
unenforceable, that �rovision will be consid�r�d severable and the remaind�r ofi this
Agreement will remain in full force and effact as if the invaiid provision were nat part
of this Agreemeni.
H. HEADfNGS AND SECTION REFER�NCES. The headings given to the sectians
of this Agreement are inser�ed only for eflnvenience and are not fo be construed as
part af this Agraement or as a limitation ofi th� scop� af the particular Section ta
which the heading refers.
� ��,����� Page I4 Motorola
8I31/2009
City of Forf Vllarth, Texas
�NTIRE AGREEMENT. This Agreemant �including th� Exhibits} constiiutes the
enfiire agreement of the parties regarding the subject matter of this Agresment and
supersedes a11 previous agreements and understandings, whe#her written or oral,
relating to such subject matfer. This Agreement may be a[tered, amended, ar
madified only by a writt�n instrum�nt signad by the duly authorizec� representatives
of both par�ies.
J. GOVERNING LAW AND V�NU�. This Agreement will be governed �y and
construecf in accordance with the laws af the State of Texas. Venue #or any action
arising under or related to the terms and cor�ditions of this Agreement shall lie in
state courts locateci in Tarrant County, Texas ar in the United �ta#es District CQu�
for the Northern Distric# of Texas, Fart Warth DivEsion.
K. NOTICES AND CORRESPONDENCE. Natices authorized or required under this
Agreement must be in writing and, along with all written c�rrespondence, mailed �ia
Unit�d States Mail, certifiiad, return receip� requested, to the below addresses:
City o# Fort Wo�fh
Attn: Projeci Manager
lT Radio & Infirastructur�
S�NIC�S
100D Throckmorton
�ort Warth, TX 76102
Motorola, Inc.
Attn: Law Department
6450 Sequence Drive
San Diego, CA 92121
As t� written carrespondence from one party ta the ather that concems or is refat�d
to the clarification, praposed solution or any other situatian requiring a written
respanse from fhe ather party, both Motorola and Customer shall have a maximum
of ten (10) busir��ss days from receipt to respond in writing to such corres}�ondence.
If the receiving party befie�es that the contents of such corresponcience do�s not
canform to the requirements of this Agreem�nt, ar otherwise disagrees with such
carrespondence, it shall notify the sending party in writing within the above-stated
ien {�0) business days, ciefining in detail such non�acceptance.
In the e�ent that the recaiving party finds ihe content af ihe correspondence in
conformance to the requirements of this Agreement, it shall, within the abave stated
ten (10) business days, notify sending par#y in vuriting of ihis fact, and such
notification shall constitute acceptar�ce of the content of the correspondence
delivered.
Because certain Agreement deliverab[e dacuments 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 re�iew and approve
documents and manuals relating to the furtctional s�ecification and administration of
th� System or any portion thereof.
� ����,�b� Pag2 15 Motorala
8/31/2049
Ciiy of Fort Worth, Texas
L. COPIES. Customer shall hav� the right ta make as many cop�es of Motor�ola's
writ�en a{�plicatian system documentation as necessary for Customer's own internal
use {including, but not limited to, any consultants ar ather contraetors re#ained by
Custom�r for assistance related to this Agreement or the Communicatians System)
except as prohibited by copyright restri�tion. C�stomer ag�ees that authorized
copies wi1[ contain any trad� secret natic� found in II►'lotorola's original document. Ir�
additian, Custamer shall have the right to make as many capies of any user
manuals, technica! manuals, mainfenance manuals or other similar types of
documents provided by Motorola under this Agreement as necessary for Custamer's
own internal use. Customer shall aiso have the right to make copies of Motorala's
software pragrams and documentatian except as may be specifically prohibited
under th� Soffware License Agreement.
M. MOTrJR�LA SUBCONTRACTORS AND SUPPLIERS. Motorola may not
subcontract with a third party for #he pravision of any servicds or materials whase
value or cost axceeds $1,000.00 without the advance written cansent of Custom�r
which conse�t will not be unr�asonably withheld. Motorola will enter into written
contracts with all subcontractors that are apprflved by Customer, which cantracts
shall incorporate this Agreement for afl purposes. In no event shall Custamer's
approvaf of any subcontractor of Motorofa relieve Motorola of its responsibilities anci
obligations under this Agreemer�t. Throughou# this Agreement anci a1E Exhibits
attached hereto, r�ferenees ta �h� d�ties and obEigatians af a specific subcantractar
af Motarola shall also be fully binding on and enforceable against Motarala as if
Motorola itself were providing the senrices or suppiies pravided by the subcontractor.
N. DISASTER RECOVERY. Cn the event a disasfier or accident beyond Customer's
control impairs the operation of the System, Motorola shal[ use its best efforts to
help Cusfomer restore operatians as quickly as possible at rates not to exceed those
set forth in or calculated in accordance with t�ose in ihe Service Agreement or those
last paid by Custamer �or similar services.
O. SECTIONS SURVIVING TERMINATION OR FINAL SYSTEM ACCEPTANCE. The
terms and canditions of Sections 8, 1 D, 1 �, 12, 13, 18.J shall sur►rive the termination
date of andlor date af Final System Acceptance under this Agreement.
P. RIGHT TO AUDIT. Motorola agrees that Custamer shall, until the expiration of three
�(3) years after fina[ payment under t�is contract, have access io and �he right to
examine and photocopy any directiy pertiR�nt books, documents, papers and
r�cards of Matorola invalving transactians relating to this contract. Gustamer may
send a representative to a Matorola facility during normal business hours to conduct
such limited review, or at Customer's request Motorola will provide copies of the
specifie documents ta Custamer's locatian for its re�iew. Matorala boaks and
records provided to Customer pursuant #fl #his prfl�ision shall not be used,
duplicated or disclosed to any other third party without the express written
permission of Motorola, unless required by law. [n no circumstances wilf Motorofa
be required ta create or maintain document� not kept in t�e ordinary course of
� �� �,�� ,�� Page 16 Mo1or'ala�
8/31/2009
City of Fort Worth, Texas
Motarola's business operation�, nor wifl Mo#orola be requi�ed to disclose any
in#ormation, including but rtot limited �to product cost data, whieh it considers
confiden#ial or proprietary to Motorola. Motarola agrees that Customer shall have
access during normal working hours to al[ necessary Motorola facilities and shall ba
pra�icted ad�quate and appropriate workspace in order to conduct audits in
compliance with th� pro�isions of this section. Customer shalf give Motarala
reasonabfe advance natice of intended audits.
(a) Mo#orola further agrees to inclucie in a11 its subcon#rac#or agreements hareunder
a provision to the effect that t�e subcontractor agrees that Customer shall, until
the expiration of three (3) years after fiinal payme�t under the suEacontract, have
acce5s to and the right ta examine and phofiocapy any directiy pertinent boaks,
documents, papers and records Qf such subcontractor, subject ta the pro�isions
of Paragraph P abave, involving transactions to the subcontract, and fur�her,
t�at C�tsfomer shalE have access during normal working ha�rs ta aEl
sut��ontractar facilities, and shall be provid�d adequate and appropriate
workspace, in order ta conduct audits in compliance with the provisions of this
article together with subsection (3) her�eof. Customer shall give subcontractor
reasonable advance notice of intended audits.
(b) Matorola and subcontractar agree ta phoiocapy such documen#s as
may be requested by the City. The City agrees ta reimburse Motorola
and or subcontractar for t�e cost af copies at the rate pulalished in the
Texas Administrative Code in effect as of the time copying is
pertormed.
� �,������� Page I7 Mororo�a
s�31i2ao9
City of Fn�t Worth, Texas
In witness whereof, the parkies have caused duly authorized representatir�s to execute
this A�reement in multiales on the dates set forth below.
�
IN WITNESS WHEREOF:
City of Fopt �lorth
�. ' «
By: � �.: � ' � • � �-• ,�-� � �c,�
Name: Karen L. Montgomery
Assistani City Manager
Title: �
Date: / ,' �,�' �i` • �
. - _ �.
Appro�ed a�tq�"''rm d Legality:
'� , � , -
87�� � �^'r'�' - -
.
Assistant City A#torney
-, _ �
M&C: I � I C,�
Date Appro�ed; � �i 8 r�
Attesi:
By: �
, ,
i� � City Secretary
_'
� Iii'�7F��1�E,.�
I�lotoroia, Inc
By: �
Name: ��� ���
TitEe: /1�,(Sl Yi � �1�d. ��,T
Da#e: r/����
„
��`��,:j,�,
�. ,
. „ _� _, .
� � �
Page 18 Motorola
8/3!/2009
City of For� Worth, Texas
�XF11�IT A
SOF'T!�lAR� LICENS� ACR��14lYENT
This Exhibit A, Software License Agreement {"Agreement"} is between Mofiorola, Inc.,
("Motorala"), and The City of Fort Workh �"L.icensee").
For good and valuable cansideration, the parties agre� as follows:
Section '[ D��INIiiONS
1.� "D�esignated Products" means products pra�ided by Moiorola to Licensee wifh
which or far which th� Software and Documentation is licensed for use.
1.� "Documentation" m�ans product and software documeniatian that s�ecifies
technica{ and performance features and capabili#ies, and the user, operation and
training manu�ls for fhe Software (including all physical or electronic media upon which
such information is provided).
1.3 "Open 5ource Software" means software with either #r�ely obtainable source
code, license for madificatian, or permission for free distribution.
1.4 "Open 5ource Saftware License" means the terms or conditions un�der which the
Open So�rce Software is licensed.
1.5 "Primary Agreement" means t�ie agreement to which this �exhibit is aftached.
� ��,����, � Page 19 Molorola
8/31/2009
City of Fart Worth, Texas
1.6 "Sacurity Vulnerabi�ity" means a flaw or weakness in system security procedures,
design, implementation, or internal con#rols that cauld be exercised (aeciden�ally
triggered or intentionaUy exploited) and result in a security breach such that data is
campramised, manipuEated or stc�len or the system damaged.
1.7 "Software" (i} means proprietary software in vbject code farmat, and adaptations,
translations, c!e-compilations, disassemblies, emulations, or derivat�ve works of such
saftware; (ii) means any modifications, enhaneements, new versians and new re[eases
of the software pro�ided by Motarola; and (iii) may contain one or more items of
saftware owned by a third party sup�lier. The ierm "Software" does no# include any third
parky so�tware provided under saparate license or third party sofkware noi licensable
under the #erms of this Agreement.
Section � SCOPE
Motorola and �ic�nsee enter into this Agr�ement in connection with Motarola's deliwery
of cer#ain proprietary Software or products containing embedded or pre-loaded
proprietary Software, or both. This Agreemen# contains the ierms and conditions of the
license Motorola is providing to Licensee, and Licensee's use of the Software and
Docurnentation.
5ectivh 3 �RAiVi OF �iC�P�S�
3.�. Subject to ihe provisions of t�tis Agreement and the payrnent ofi appli�able
license fees, Motorola grants to Licensee a persona[, �imited, nan-transferable (exce�t
as permitted in Section 71 and nor�-exclusive license under Motorola's copyrights and
Confidential lnformation {as detined irt fhe Primary Agr�ement) embadied in the
Software to use the Software, in object code form, and the Dacumentation salefy in
connection with l.icensee's use of the DesignatecE Products. This Agreement does not
grant any rights ta source cade.
3.2. If the Software licensed under thi� Agreement contains or is derived from Open
Source Software, the terms and conditions governing the use of such Open Source
5oftware are in the Open Source Software Licenses of the copyright awr�er and not this
Agreement. If there is a conflict between the terms a�d conditians of this Agreement
and the terms and conditiQns of the Open Source Software Licenses governing
�Age 20 Ma�orola{
� ������� 813112009I
Ciry of F'ort Worth, Texas
Licensee's use o# the Open Source Software, the terms and conditions of the licer�se
grant of the applicable Open Source Saftware Licer�ses will take precedence over the
license grants in this Agreement. If reques#ed by Licensee, Motorola wii� use
commercially reasanable efforts to: (i) determine w�ether any O}aen Saurce Saftware is
provided under this Agreement; {ii) identify th� Open Source Software and provide
Licensee a copy of the applicable �pen Saurce 5aftware License (or specify where that
license may be found); and, (iii} pravide Licensee a copy of ihe Open Source Saftware
saurce code, without charge, if it is pubficly availa�le (although distribu#ian fees may be
applicable).
Section 4 LII�ITATIOfVS ON US�
4.1. Licensee may use the 5oftware only for Licensee's internal �usiness purposes
and only ir� accordance with the Documentation. Any other �ase of the Soffinrare is strEctly
prohibited. Withaut limiting the general nature o# thsse restric#ior�s, Licensee will not
make the Software available for use by third parties on a"iime sharing," "application
service Qrovider," or "servi�e bureau" basis or for any other similar commerc�al rental or
sharing arrangement.
�4.2. Licensee will nat, and will not allow or enable any third party to: (i) re��rse
engineer, disassemble, peel components, decvmpile, reprogram ar atherwise reduce
the Software or any portion to a numan perceptible farm or otherwise attempt io
recreat� th� source code; (ii) modify, adapt, create deri�a#ive works of, or merge the
Software; (iii} copy, reproduce, distribute, lend, ar Cease tf�e Software or pocumeniation
to any third party, grant any su�license or other rights in th� Soft►�are or pocumentation
to any third party, or take any action #hai would cause the �oftware or pocumentation io
be placed in #he �ublic domain; (iv} remo�e, or in any way alter or obscure, any
copyright notice or other notice of Motarola's proprietary righks; (v} pra�ide, copy,
transmit, discfose, divulge or make the Softwar� or pocumentation availa�le ta, or
permit #he use of the Software by any third party or on any machine except as expressly
authorized by this Agreement; or {vi} use, or permit fhe use ofi, fhe 5oftware in a manner
that would res�lt in the productian of a copy of the Saftware sofely by activating a
machine containing the Software. Licet�see may rr�ake ane cvpy of Saftware io be used
solely for archival, back-up, or disaster recovery purposes; provided that Licensee may
not ope�ate that copy of the Software at the same t�me as the original Software is bei�g
operated. Licensee may make as many copies of th� Documeniatian as it may
reas�nably require for the internal use of the Software.
4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will nof
enable or allow any third party to: (i) install a licensed copy of the Software on more than
� �,������ Page 2I Motorvla
8/31/2009
City af �art Worth, 7exas
one unit of a Designated Product; or (ii) copy onto or transf�r Saftware installed in one
unit of a Designated Product onto on� other ci�vic�. L[censee may temporarily fransfer
5oftware installed on a Dasignated Praduct ta another device if the Designaied Praduct
is inaparable ar malfunctioning, if Licensee provides written notice to Motorola of the
temporary transfer and identifies the device on which the Software is transferred.
Tamporary transfer ofi th� Software to another devi.ce musi be discontinued when the
original Designated Praduct is returr�d to operation artd ihe �ofkware must be removed
from the ather device. l,icensee must pro�ide �rompt wriften notice ta Motorala at the
time temporary transfer is discontinued.
4.4. When usina Matorola's Radio Service Software f"R5S"l_ Licensee mus#
qurchase a senarate license for each location at which �icensee uses RSS. Licensee's
use of R5S at a licensed location does not entikle Licensee to use or access RS5
remotelv, Licensee mav make one con� of RSS for each licensed lacatio�. Licensee
shall nro�ide Motarola with a list of afl locations at which �.icensee uses or intends to u�p
RSS unon Motorola's reauest.
4.5. l.icensee wElf mainiain, during the ferm of this Agreement and for a period of two
years thereafter, accurate records relating to this ficense grant to �erify �omplia�ce with
fhis Agreement. Motarola or an indep�ndent #hird par�y ("Auditor") may ir�spect
Lic�nsee's premises, baoks and records, upon reasonable prior written notice to
Licensee not [ess than ten (10) business days, and duri�g Licensee's normal businsss
hatars and subjeci to Licensee's facility a�d security regulations. Motorola is responsible
for the payment of a[I expenses and costs of ihe Auditor. Any infarmation obtained by
Motorala and the Auditor wi[I be kept in stric� confidence by Matorola and the Auditor
and used solely for the purpose of verifying Licensee's combliance with the terms of this
Aareemerlt.
Section a OINNERSHIP AND �'I�L�
Motarola, its licensors, and its suppliers retain all of their proprietary rights in any form in
and to the Software and Documentatio�, including, 6ut not limited to, all rights in
patents, pat�nt applications, in�entions, copyrights, trademarks, trade secrets, trade
names, and other proprietary rights in or relating to the Software and �ticumentation
(including any carrections, bug fixes, enhancements, updat�s, modifications,
adaptatians, translatians, de-compilations, disass�mblies, emulations ta or da�ivative
works from the 5aftware or pocumen#ation, whether made by Motorflla or another party,
or any �mpro�ements that result from Motorola's processes or, provision of information
services). No rights are granted to Licensee under this Agreement by implication,
astappel or ot�erwise, except for those rights which are expressly granted to Licens�e in
� ������� Page 22 Molorola
8/31/2009
City of Fort Warth, Texas
tt�is Agreement. A1f inteliectua[ property developed, origin�ted, or prepared by Motorola
in conneetion with providing the Software, Designa#ecI Praducfs, Docur�entatio� or
rslated services, remains �ested exclusively in Mataro�a, and Licensee wili not have any
shared develapment or other intellectual property rights.
Section 6 LIf�VI��� 11VARRAN�Y; DISCL/�If�IIER OF' 1dVARRANYY
6.1. The commencement date anci the term of the Software warranty will be a period
af ninety (90) days from installation of the Software (the "Warranty Period"}. ff
Licensee is no# in breach of any of its obfigations und�r this Agr�ement, Motorala
warrants that the unmodified Software, when used properly and in accordance with the
Documentation and this Agreemenf, wifl be free from a reproducible defect that
elirriinates the functionality or successful operatian �f a featufe critical t� the primary
functianality or successful operation of the Software. Whet�er a defeef occurs wil[ be
��termined bv Motorola solely with reference to ihe Dac�mentation. Motorola doss nat
warrant that Lice�see's use of the Software or the Designated Praducts wil[ be
uninferrupted, error-free, completely free of Security Vulnerabilities, or that the Software
or the Designat�d Products will meet Licensee's particular requirements. Motorc��
makes na renresentations or warranties with respect to anv third aartv software inciuded
in ti�e Software.
6.2 Motorola's sole obligation #o Licensee anci l.icensee's exclusive remedy under
this warranty is ta use reasonable effarts to remedy any material Software defect
covered by this warran#y, Thes� efforts will involve either replacing the media or
attempting to correct significant, demanstrable program or documentation errors or
Security Vulnerabifities. If Motorola cannot eorrect the defect within a reasanable time,
th�n at Motorola's option, Matarola will replace the defective Software with functionally-
equivalent Saftware, license to Licensee substit�te Software which will accomplish the
same ob}ective, or terminate the license and refund the l.icensee's paid license fee.
6.3. Warranty claims are descri�eci in the Primary Agreement.
6.4. ihe express warranties set forfh in this Section 6 are in lieu of, and
fl�otorola disclaims, any and all other warranfies (express op implied, oral o�
written� with resp�ct to the 5ofitwar�e or Dacumentation, including, wifhout
limitation, any and all implied warranties of condition, title, nnn�infringement,
merchantability, or fitness for� a particula� purpose or use by Licensee (whether or
not MotoroCa knows, has reasan to �now, has been advised, oe is otherwise aware
� �a,������ Pcige 23 Moloroda
8/31/2D09
City of Fort Worth, 7exas
of any such purpose or usej, whether arising by law, by reaso� of custom or
usage of trade, or by course of dealing. [n addition, Nlotorola disclaims any
warranty ta any person other than Licensee with respeet to the Software or
Documentation.
5ection 7 TRAF�SFERS
Licensee will not transfer the Saftware or pocumentation to anv third qartv wi#hou�
Motorola's�rior written consent. which mav not be unreasonablv withheld. buf mav be
conditianed uoon transferee navina a1I aoplica�le lieense fees and aareeina to be bound
bv ihis Aareerneni. Ifi the Desianated Products are Motorola's raciio products and
Licensee tra�sfers ownershin of the Mo�orala radio �roducts to a third nartv. Lic�nsee
mav assian its ria�t to use the Software lother than RSS and Matorola's FLASHportQ
saftwarel w�ich is embedded ir� or furnished for use witF� the radio uroducts and the
related Documentation: provided that 1_icensee fir�nsfer5 all c,onies of the Software and
Documentation to the transf�ree. and Lieensee and the transf�ree sian a traRsfer form
to be nrovided bv Motorala uqon reauest, obliaatina the transferee to be bound bv this
Aareemenf_
5ection S iERl4lY AND T�RA,�YI�lAT'ION
8 1 Licensee's right to use the Software and Documentatian will begin when the
Primary Agreement is signed by both part�s and wili continue for the life of the
Designated Products with which flr for wnich the Software and Documentation have
been pro�ided by Motorola, unless Licensee breaches this Agreement, in which case
this Agreement and Licensee's right to use the Software and Documentation may be
termir�afed immee�iatefy upon written notice by Motorola.
$� Within thirty (30) days after�#erminatian of this Agreement, L�censee must certify
in writing to Motorola that all copies of the Software ha�e bee� removed or deleted fram
the Designated Products and that all copies af the Software and Documentation have
�een returned to Motarola or destroyed by Licensee and are na longer ir� use by
Licer�see.
8� Licensee ackn�wledges that Motorola made a considerable in�estment of
resources in the develapment, marketing, and distribution of fhe Software and
� ��,������ Page 2� Motorola
8/31/2Q09
City of Fort Worth, Tex�s
Documentation and that Licensee's breach of this Agreement will result in irre�arable
harm to Motorola for which manetary damages would be inadequa�e. If l.ic�nsee
breaches this Agreement, Motarola may terminate this Agreemen# and be entitled to all
availabl� r�m�cfies at law or in equity (including immediate injunctive relief and
�-epossession af all non-em�aedded Software and associated Documentation unless
Licensee is a Federal agency of the United S#ates Governmeni).
Section 9 UN1T�D S7ATES GOVERNM�N� L[C�NSiNC PROVISIONS
This Section applies if L.icensee is tha United States Gavernment or a United States
Government agency. Licensee's use, du�lication or disclosure of the Saffware and
Documentation under Motorala's capyrights or trade secrat rights is subject to the
restrictions set fort� in subparagraphs (c}(�} and (2) of the Commercial Camputer
Software-Restricted Rights clause at �AR 52.227-19 (JUNE 1987), if applicable,
unfess #hey are being pravided to the Department of Defense. If the Saftware and
�ocumenkation are being pravided to the Department af Defense, Licensee's use,
duplication, or disclosure of the Soffware and Dacumentation is subject to tha
festricted rights set forth in subparagraph (c}(1)(i�) of the Rights irt Technical �ata
and Computer �o�tware clause at DFARS 252.227-70'f 3{OCT 1988), if appl�cab�e.
Th� Softwar� and Dacumentatian may or may not include a Restricfed Rights notice,
or other noti�e referring #o this Agreement. The provisians afi this Agreement will
continue to apply, buf only to the extent that th�y ar� consistent with the rights
�rovided io the Licensee under the pravisions of the FAR ar DFARS mentioned
above, as appiica�le to the particuiar pracuri�g agency and procurement
transaction.
Section 10 COIVFI�ENYIALIYY
Licensee acknowledges that the 5oftware and Documentation contain Motorola's
valuable proprietary and Confidentiaf Informatian and are Motarola's trade secrets, ar�d
that the provisions in the Primary Agreement cnncerning Canfidential lnformation apply.
Section 11 l,l�l[TATIOi� �� LIABILfTY
� ��,�,��p� Page 25 Mo[arola
$/31/2Q09
City of Fort Worth, Texas
Except for Moforola's ob[igations to ind�mnify under Section 1�B of tfi�e Primary
Agr�ement, Limitatio� of Liability shall be goverr�ed by Section 14 of the Primary
Agreement.
Secfion 1� NOYICES
Procedures for r�otices shall �e governed by Section 18K of the Primary Agreement.
Section 13 GEWERAL.
13.1. CQPYRIGHT N�TICjES. The axistence of a copyright nofice on the Software wilf
not be construed as an admission or presumption af publi�cation of the Saftware or
public disclasure of any trade secrets associated witf� the Software.
13.2. COMPLIANCE WITH LAWS. E.icensee acknowlsdges that #he Software is
sub�ect to the laws and r�gulations of the United States and Licensee will comply with al{
applicable laws and regu[ations, including export laws and regulations of the Unitec{
States. Licensee will not, without the prior auihoriza#ion �f Motorola and the appropriate
governmental authority o� the United 5tates, in any �orm expor� or re-export, s�ll ar
r�eself, ship or r�ship, or divert, through direct or indirect means, any item ar technical
data or direci or indirect products sold or otherwise furnished to any person within any
territory for whicl� the United States Gor�ernment ar any of its agencies at the tirne of the
action, requires an export license or other go�ernm�nta[ approval. Violatian of this
provision is a material breach of this Agreemer�t.
13.3. ASSIGNMENTS AND SUBC�NTRACTING. Matarola may assign its rights or
s�abcontract its obligations under this Agreement, ar encumber or sel� its rights in any
Software, witi�out prior consent of License�. Motorola shalf provide Licensee witn at
least ten (10} days written notice af any such assignmenf.
13.4. GOVERNING LAW. This Agreement is gov�rned by fihe laws of the United
States fo the �xteni that they apply and otherwise �y the in#ernal substantive laws of the
� ��,���,p�, � Page 2G Motorala
8/3I/2009
City of fart Worth, Texas
State to which the Software is shipped if �icensee is a soveraign government entity, or
the internal substantive laws o# the State of Illinois if Licensee is not a sovereign
gavernment entity. The terms of the U.N. Gonvention on Contracts for the �ntemational
Sa[e af Goods do not apply. in the even# that the Uniform Computer Informatian
Transaction Act, any �ersion of this Act, ar a subs#antially similar law (col[ectivaly
"UCITA"} becomes app[icable to a party's performance under #his Agreement, UCITA
does not govern any aspect of this Agreement ar any lic�nse granted under this
Agre�ment, or any of the par�ies' rignts or obligations under this Agreem�nt. The
governing law will be that in effecf prior ta the applicability of UCITA.
13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered intfl solely for the
benefit of Motorola and Licensee. No third party has the right to make any claim or
asser# any right under this Agreement, and na third party is deemed a beneficiary af this
Agreement. Notwithstanding the #oregoing, any licensor or sup�alier af third party
saftware incEuded in the 5oftware will be a direci and intended third party beneficiary of
this Agreement.
13.6. SURVIVAL. Sections 4. 5. '6.3. 7. 8. 9. 14. 11 and 13 survi�e the termination of
this Aareement�
13.7. ORDER O� PRECEDENCE. In the eveni of inconsistencies between this Exhibi
and the Prirriar� Aareement, the nartiPs a�1r�g that thls Exhihit nreva�ls, nnlY with
resoect to the snecifc subiect matter of this Exhibit. and not the Primary Aareement ar
anv ather exhibit as it aqolies to anv other subiect mat�er.
13.8 SECURITY. Motorola's Information Assurance F'olicy addresses tl�e issue of
security. Motorola uses reasonable means in fhe design and writing of i#s own Saftware
and #he acquisition of third party Software to I[mit Security Vulnerabiiiti�s. While no
software can be g�aranteed to be free from Security Vulnerab�lities, if a Security
Vulnerability is discovered, Motarala wil{ take the steps set forth in Section 6 of this
Agreement.
Page 27 Moiorola
� l�d�l��� 8I3I/20D9
Ci�y of Fart Wor#h, Texas
�XHIBfT B
PAYfliiEiVT' i�Rf�YS
50% iJPON EQUIPMENT�SHIPMENT
�40% L1PON WSTALLATION
10% �JPON PRdJ�CT ACC�PTANC�
��a����� Page 28 Molarala Confrelerrtial Praprvetary
sis� izoas
ExHi�rT c
Technical Documents
EXhibit C-1
System DescripttonlSta#ement of Work
� ��,����� Page I MotorodaCanfrde,afialPropr�erary
$13 i 12009
� ��������
�
�
�lT�T
C�ty of ��r� �or�l�� `�e�r��
I�T �4l-�0�/!!��ll �e�lr���e Pro�os�l
MOTOROLa, nvc.
Government and Public Safety
Enterprise Mobility Solutions
A�gust 21, zaa9
� 2007 Motorola, Inc. All rights reserved.
iabl� �# C�n�ent�
Tableof Contents ........................................................................................ ........... 2
MotorolaUnderstanding ..................................................................................................... 3
Statementof Work .............................................................................................................. 3
i'
i
.
� ��a����.� 2
[Ise or drsclosure of this proposal is subject to the restrictions on iJte tdtle page.
�o�or�ola �nd��s�andin�
The City of Forth Worth has requested Motorola to pro�ide services vcrhich include the r�-
flashing of no more than six hundred and fifky Motarola MW800 mnbile data camputers
owned by the City of Fart Worth {hereinaiter refexred to as "the City").
A secondary ser�+ice to be perfarmed by Motarola vvill be to reprogram the City's
Vehicular Radio Modems (VRM's).
These services shall be �rovided within a schedule provided by the City and shall follow
the guidelines below.
�t�ternent of 'lf�llo�k
Cify of ���� �'�r�h �����n�ibilifi�s
� The City agrees to provide Motorola with a fully prepared image for the
MDC's vvhich will i�e loaded or� two partitions of the MDC.
o 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 locatione
� Once w�rk is completed by Motorola / DFW, the City shall re-install the
MDC's and VRM's in ihe City vehicIes.
� If neeessary upon further research, the City shall provide a VLAN to our
natwork in case login scripts are necessary onccti: the image is eompleted.
N9ete��la 1 ��If� �omm�ni�afi�n�, Inc �es�onsibilitie�
• Motorola 1 DFW Communieatians will perform the following functions:
a Shall perform the basic functions of re-image from the City-prepared
image on the MDC's. A reboot and lagin with a special id for DFW wiIl
be r�quir�d to perform a ba�ic functionality test af'ter the MDC has been
re-flashed.
o Shall perform the reprogramming of the VRM's. The City foresees these
� �e��r���s� 3
Use or discloswre of this proposcal is subject to the r estrictions on the [itle p¢ge.
steps as happening (to be preformed by the City of Fort Worth):
� Pull power fram the back �f the VRM, unscrew DB-9 cable fram
the front af the VRM, u�ascrew clamps from sides af VRM, remave
VRM, connect VR.M to a power sup�ly, connect PC with WINRSS
{850 �ersion) to the DB-9 port, write profile, unplug DB-9, unpiug
power from VRM.
o This process will be fallawed ur�til all b50 davices have been completed.
o If a unit is damaged, Motorola / DFW Communications wi11 be responsible to
repair the unit firsi. If t�nable to r�pair, Motorola 1 DFW Communications will
then forward the unit to Motorola repair depot. The City will require a tirneli�e af
the re�air.
� Motornla / DFW Communications are respansible for replacing the unit with a
cit�'s current eonfiguratian if it is damaged beyond repair by either Motorala /
DFW Communieations or Motorola while in their possession.
� Motorola / DFW Communications shall return a11 parts andlor pieces removed
and replaced to the City. Each piece must be tagged with the unit serial number it
was puiled from.
+ Motorola 1 DFW Communications will cornplete the 40 MDC's and VRM's
witlun 3 days from the time they are delivered from the City.
� �r��,t���.� 4
Use or• discicrsure of fhis praposal as subject lo [he restrietaons on the ditle pcage.
�GAC Pricin� Summary
Project
�si,7sa.00
Total Installation ��1,i�0.00
� �������
rlse or rlisclasure af this proposal ss subject io the resdrictions on the tidle page,
EXHIBIT C
Technical Documents
Exhibit C-2
Technical Doc�amentation
No �Supportir�g Documentatior� needed far this Proposal
���,���� Page I Motorola Car�dentral Proprietmy
Sl3112009
�XHIBIi C
iechnica� Documenfs
���xhibit C-3
MGAC Prieing
� ����;���� .�Ctge 1 Matorola Confrdenlrctl Proprretary
8/31/2009
HGA� Pricing Summary
Project
��x,��o.ao
Total Installation ��9 ,�50.00
� �e�r����c,�s
Use or diseLosure of dhis proposal is su6ject da the restrictior2s on the tidle page.
�1� O� �Of� �OY��7, ����S
�ayor� ��� C������ �o���ni���ior�
��E.i�+,1�IL A�TI�C+i: A�pproved on �!'18���U8
DATE: Tuesday, 1Vlarch 18, 2Q08 F����R�i�+C� P�O.: *�`P-10750
LOC NAf�I�: 13P08-4053
SU�J���:
Authorize a Purchase Agreement with Mo#orola Cammunications, Inc., for Rad�as, Radio Parts, Radio
Equipment and Repair Services Using a Houston-Ga[veston Area Cauncil Cantract far the Information
Technology Solutions Department
F3L�COIVYIVf �IVI�A�IQN:
It is recorr�mended that tF�e City Council authorize a purchase agreement with Motorola Communications,
ln�., for radios, radio parts, radio equipment and repair services using a Houston-Galvesfon Area Caur�cil
Contract for the Information Salutions Departmenf.
L�ISCUSS[OAl:
The City will utilize Houston-Galveston Area Council Cantraci (HGAC) cantract RA09-D8 to pUrcF�ase
Motorola accessories, parts and repair services on an as-needed basis. The City of Fort Worth uses
Motorofa's SmartNet Il Trunked Radio Platform for its voice radio cammunications an� Mo#orola RD-LAP
Radio Pfatform for its mobile data communications. Due ta ihe praprietary nature of the City's two existing
systerris, radios, parts and equipment must be compatible with the infrastructure components. The
majority of the goods and s�rrrices purchased will be io support the Police and Fire Public Safety systems.
The foflowing table shows the approximate dollar expenditures cfuring the past year by four major
categories:
Caiegory
Radio Parts
Voice Radios (Mobile and Har�dheld)
Infrastructure Equipment
Repair Services (Radia and Other)
iotal
App�oximat� Annual �xpendifiures
$ 295000.00
$ 6250a0.Qq
$ 490Q�0.00
$125,OQ0.00
$ 1535000.00
PRfCE ANALYSIS - The annuai cost to purchase new radios will decreasE approximately 3%
from purchases completed under the prior MotorolalH-GAC contract that expired in October af 20D7. The
annual cost for parts will decrease on some parts at an average of 2% ia 4%. Radio repair services has
the same flaf labor cost as the prior H-GAC contract.
HGAC is autharized to offer cooperati�e purchasing contrac#s to its members. Under Seetion 799 .025 {C)
of the Texas Go�ernment Code, a local ga�ernmenf that purchases goods and services under the
Interlocal Cooperafion Act safisfies otherwise applicable competiti�e bidding requirements.
Logname: 13P08-0053 Page 1� of 2
AGREEMENT TERMS - This purchase agreement will begin March 98, 2008, and expire on March '[7,
24D9.
RENEWAL OPTIONS — This agreement rnay be renew�d per th� conditions �stablished in the cflntract
between HGAC and the Motorala Communications, Inc., for two additional one-year terms at the Gity's
aptian. 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 spacific City Council appro�al
provided that the Gity Council has appropriated sufficient funds to satisfy the City's obligation.
�ISCAL IN�ORI�Y�.iiOW I �ERiIFICAiIQ1�:
The Finance Director certifies that funds ar� available in the current op�rating budget, as appropriated, vf
the participating departments.
BQN1085-OQ531LAS
Fl1ND CEPlTERS:
i0 �undli4ccaun�lCenteps
��R�I�lCA�fON5:
Submitted for Citv IVdYanaaer's Office bv:
�riaina�inq ���ar�menf Head:
Additional lnformaiion Confiacfi:
/��i�4CH[Vl�'NiS
No aftachments found.
�ROfw �undli4ccaun�ICeniers
PIfi8 539120 0�46020
Karen Montgomary {6222)
Lena Ellis (8517)
.fack Dale (8357)
$1.535, 000.00
Logx�ame: 13P08-0053 Page 2 of 2