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HomeMy WebLinkAboutContract 46735 CITY SECRETAW L4nq COMPACT WO. ift MOrORQLA SOLUTIONS SERVICES AGREEMENT wo Attn:National Service Support/4th fl Contract Number: S00001021980 1301 East Algonquin Road Contract Modifier: RN 18-AUG-14 10:48:00 (800)247-2346 Date: 11/20/2014 Company Name: Fort Worth, City Of Required P.O.: Yes Attn: Customer#: 1012858843 Billing Address: 1000 Throckmorton St Bill to Tag#: 0004 City, State, Zip: Fort Worth,TX,76102 Contract Start Date: 07/01/2015 Customer Contact: Contract End Date: 06/30/2016 Phone: Anniversary Day: Jun 30th Payment Cycle: ANNUAL PO#: TBD QTY MODEL/OPTION SERVICES DESCRIPTION MONTHLY EXTENDED EXT AMT Recurring Services ***** SVCO2SVCO226A SUBSCRIBER DIAGNOSTICS $814.37 $8,191.80 2 SUBSCRIBER SPECIAL INSTRUCTIONS-ATTACH Subtotal-Recurring Services $814.37 $8,191.80 STATEMENT OF WORK FOR PERFORMANCE DESCRIPTIONS Subtotal-One-Time Event Services $ .00 $ .00 Total $814.37 $8,191.80 Taxes - - Grand Total $814.37 $8,191.80 THIS SERVICE AMOUNT IS SUBJECT TO STATE AND LOCAL TAXING JURISDICTIONS WHERE APPLICABLE,TO BE VERIFIED BY MOTOROLA Subcontractor(s) City State LOCUS DIAGNOSTICS LLC WEST FL MELBOURN E I received Statements of Work that describe the services provided on this Agreement. Motorola's Service Terms and Cond' 'ons, a copy of which is attached to this Service Agreement, is incorporated herein by this reference. Lp ;10 A HOR ED CUSTOMER SIGNATURE-- TITLE bATE m Alanis C-) Fjsista nt City II1624Q" < CUSTOMER (PRINT NAME) M z MOTOROLA REPRESENTATIVE(SIGNATURE) TITLE OFFICIAL ORD C" Kevin Lamb 336-529-3024 1 CITY SECRETARY FT-WOK04 9 MOTOROLA REPRESENTATIVE(PRINT NAME) PHONE Company Name: Fort Worth, City Of Contract Number: S00001021980 Contract Modifier: RN18-AUG-14 10:48:00 Contract Start Date: 07/01/2015 Contract End Date: 06/30/2016 MOTOROLA Statement of Work Subscriber Diagnostics 1.0 Description Subscriber Diagnostics will coverage for any hardware, software or firmware defects, in addition to any software updates released to the Model DX-I000c DiagnostX Over-the-Air Waveform Analyzer. 2.0 Motorola has the following responsibilities: 2.1 Cover any hardware defects that arrise during the the Maintenance period. 2.2 Cover any software defects that arrise during the the Maintenance period. 2.3 Cover any firmware defects that arrise during the the Maintenance period. 2.4 Provide software updates released during the Maintenance period. 2.5 Cover any shipping cost incurred in sending a faulty product in for repairs. 2.6 Repair or replace the unit after examination. 3.0 Customer has the following responsibilities: 3.1 Notify the Motorola Customer Support Manager of any defect discovered. 4.0 Exclusions: 4.1 Subscriber Diagnostics is only available in the market and to the customer whom it was sold. 4.2 Subscriber Diagnostics does not cover damage by Acts of God, power surge, misuse, abuse, negligence, accident, wear and tear, mishandling, misapplication, intrusion or exposure to liquids or other causes unrelated to defective materials or workmanship. Page I 1 Motorola Services Agreement Service Terms and Conditions This Services Agreement ("Agreement") is entered into by and between Motorola Solutions, Inc. ("Motorola") and the City of Fort Worth ("City" or "Customer"), a Texas home rule municipality, individually referred to as a "party," collectively referred to as the"parties," and hereby agree as follows: Section 1 APPLICABILITY These Service Terms and Conditions apply to service contracts whereby Motorola will provide to Customer either (1) maintenance, support, or other services under a Motorola Service Agreement, or (2) installation services under a Motorola Installation Agreement. Section 2 DEFINITIONS AND INTERPRETATION 2.1. "Agreement" means these Service Terms and Conditions; the cover page for the Service Agreement or the Installation Agreement, as applicable; and any other attachments, all of which are incorporated herein by this reference. In interpreting this Agreement and resolving any ambiguities, these Service Terms and Conditions take precedence over any cover page, and the cover page takes precedence over any attachments, unless the cover page or attachment states otherwise. 2.2. "Equipment" means the equipment that is specified in the attachments or is subsequently added to this Agreement. 2.3. "Services" means those installation, maintenance, support, training, and other services described in this Agreement. Section 3 ACCEPTANCE AND TERM Customer accepts these Service Terms and Conditions and agrees to pay the prices set forth in the Agreement. This Agreement becomes binding only when accepted in writing by both Motorola and the Customer("Start Date") and shall expire June 30, 2016 ("Expiration Date"). Section 4 SCOPE OF SERVICES 4.1. Motorola will provide the Services described in this Agreement or in a more detailed statement of work or other document attached to this Agreement. At Customer's request, Motorola may also provide additional services at Motorola's then-applicable rates for the services. 4.2. If Motorola is providing Services for Equipment, Motorola parts or parts of equal quality will be used; the Equipment will be serviced at levels set forth in the manufacturer's product manuals; and routine service procedures that are prescribed by Motorola will be followed. 4.3. If Customer purchases from Motorola additional equipment that becomes part of the same system as the initial Equipment, the additional equipment may be added to this Agreement and will be billed at the applicable rates after the warranty for that additional equipment expires. 4.4. All Equipment must be in good working order on the Start Date or when additional equipment is added to the Agreement. Upon reasonable request by Motorola, Customer will provide a complete serial and model number list of the Equipment. Customer must promptly notify Motorola in writing when any Equipment is lost, damaged, stolen or taken out of service. Customer's obligation to pay Service fees for this Equipment will terminate at the end of the month in which Motorola receives the written notice. City of Fort Worth_Motorola Services Agreement,Terms and Conditions Issue Date Valid through December 31,2017 Page 1 of 7 4.5. Customer must specifically identify any Equipment that is labeled intrinsically safe for use in hazardous environments. 4.6. If Equipment cannot, in the parties' reasonable opinion, be properly or economically serviced for any reason, the parties may mutually agree to modify the scope of Services related to that Equipment; remove that Equipment from the Agreement; or increase the price to Service that Equipment. 4.7. Customer must promptly notify Motorola of any Equipment failure. Motorola will respond to Customer's notification in a manner consistent with the level of Service purchased as indicated in this Agreement. Section 5 EXCLUDED SERVICES 5.1. Service excludes the repair or replacement of Equipment that has become defective or damaged from use in other than the normal, customary, intended, and authorized manner; use not in compliance with applicable industry standards; excessive wear and tear; or accident, liquids, power surges, neglect, acts of God or other force majeure events. 5.2. Unless 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 Service 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. Section 7 CUSTOMER CONTACT Customer will provide Motorola with designated points of contact (list of names and phone numbers) that will be available twenty-four (24) hours per day, seven (7) days per week, and an escalation procedure to enable Customer's personnel to maintain contact, as needed, with Motorola. Section 8 PAYMENT Payment under this Agreement shall not exceed $8,191.80. Unless alternative payment terms are stated in this Agreement, Motorola will invoice Customer in advance for each payment period. All other charges will be billed monthly, and Customer must pay each invoice in U.S. dollars within thirty (30) days of the invoice date. Customer is a tax exempt entity and shall not be liable for any taxes pursuant to this Agreement. City of Fort Worth_Motorola Services Agreement,Terms and Conditions Issue Date Valid through December 31,2017 Page 2 of 7 Notwithstanding 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. Section 9 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. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 10 DEFAULT/TERMINATION 10.1. 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 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 under law, may immediately terminate this Agreement effective upon giving a written notice of termination to the defaulting party. 10.2. 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 upon termination of this Agreement. Upon the effective date of termination, Motorola will have no further obligation to provide Services. Section 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 twelve (12) months of Service provided under this Agreement. 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, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. MOTOROLA AGREES TO DEFEND, INDEMNIFY AND HOLD CUSTOMER HARMLESS TO THE EXTENT SET FORTH HEREIN IN THIS SECTION 11. 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 City of Fort Worth_Motorola Services Agreement,Terms and Conditions Issue Date Valid through December 31,2017 Page 3 of 7 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 indicates 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. Section 13 PROPRIETARY INFORMATION; CONFIDENTIALITY; INTELLECTUAL PROPERTY RIGHTS 13.1. Any information or data in the form of specifications, drawings, reprints, technical information or otherwise furnished to Customer under this Agreement will remain Motorola's property, will be deemed proprietary, will be kept confidential, and will be promptly returned at Motorola's request. Customer may not disclose, without Motorola's written permission or as required by law, rule, regulation or court order, any confidential information or data to any person, or use confidential information or data for any purpose other than performing its obligations under this Agreement. The obligations set forth in this Section survive the expiration or termination of this Agreement. 13.2. Unless otherwise agreed in writing, or otherwise required to be disclosed by law, all information disclosed in any manner or at any time by Customer to Motorola will be deemed confidential. Except as provided in Section 17.9 herein, Motorola will have no obligation to provide Customer with access to its confidential and proprietary information, including cost and pricing data. 13.3. This Agreement does not grant directly or by implication, estoppel, or otherwise, any ownership right or license under any Motorola patent, copyright, trade secret, or other intellectual property, including any intellectual property created as a result of or related to the Equipment sold or Services performed under this Agreement. 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 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. Section 16 MATERIALS, TOOLS AND EQUIPMENT All tools, equipment, dies, gauges, models, drawings or 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, City of Fort Worth_Motorola Services Agreement,Terms and Conditions Issue Date Valid through December 31,2017 Page 4 of 7 be liable for any loss or damage to this property caused by Customer, and return it to Motorola upon request. This property will be held by Customer for Motorola's use without charge and, with the exception of drawings and other documentation, may be removed from Customer's premises by Motorola at any time during Customer's normal business hours, provided that Motorola has complied with all service requirements as set forth in Section 4 and any attached Statement of Work. Motorola shall provide Customer with a copy of all drawings and documentation prior to removal. Section 17 GENERAL TERMS 17.1. If any court renders any portion of this Agreement unenforceable, the remaining terms will continue in full force and effect. 17.2. 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, FortWorth Division. 17.3. Failure to exercise any right will not operate as a waiver of that right, power, or privilege. 17.4. Neither party is liable for delays or lack of performance resulting from any causes that are beyond that party's reasonable control, such as strikes, material shortages, or acts of God. 17.5. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement. 17.6. 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. 17.7. THIS AGREEMENT MAY BE RENEWED, FOR ONE (1) ADDITIONAL TERM OF ONE (1) YEAR EACH, UPON MUTUAL WRITTEN CONSENT OF THE PARTIES. PRIOR TO THE RENEWAL EITHER PARTY MAY NOTIFY THE OTHER IN WRITING OF ITS INTENTION TO DISCONTINUE THE AGREEMENT NOT LESS THAN THIRTY (30) DAYS PRIOR TO THE EFFECTIVE DATE OF THE RENEWAL. At the time of renewal, Motorola may adjust the price of the Services to reflect an increase in rates; however such rates shall not exceed 3% of the previous year's rate under this Agreement. 17.8. If Motorola provides Services after the termination or expiration of this Agreement, the terms and conditions in effect at the time of the termination or expiration will apply to those Services and Customer agrees to pay for those services on a time and materials basis at Motorola's then effective hourly rates. 17.9 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 City of Fort Worth_Motorola Services Agreement,Terms and Conditions Issue Date Valid through December 31,2017 Page 5 of 7 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. 17.10 (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. 17.11 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. Computer means an electronic, magnetic, optical, electrochemical, or other high-speed 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. City of Fort Worth_Motorola Services Agreement,Terms and Conditions Issue Date Valid through December 31,2017 Page 6 of 7 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the last day and year written below. MOTOROLA SOLUTIONS, INC. CITY OF FORT WORTH �� By;� By: ok-01— Name:J,JtVV'%,, t--Ib Sn Tanis Title: Culk/lrr� Su(�1`�'4'��NG��v usAssis nt City Manager Date: �G ' ` O Date: (0I s- ATTEST: CONTRACT AUTHORIZATION: By: Mary J. Kayser, City Secretary M&C: G-17303 Date Approved: _6/14/2011 ROVED T ORM AND LEGALITY: AU@ff d by �-- 8 0.1 JCM Maleshia B. Farmer 1010- noo. K 4r)City C1�6t8Yy r Xp►�` Sr. Assistant City Attorney OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth_Motorola Services Agreement,Terms and Conditions Issue Date Valid through December 31,2017 Page 7 of 7