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HomeMy WebLinkAbout153-01 RESOLUTION• RESOLUTION NO. 153-01 A RESOLUTION AWARDING A CONTRACT TO MOTOROLA INC. IN THE AMOUNT OF ONE HUNDRED TWENTY-FIVE THOUSAND THREE HUNDRED FORTY ONE DOLLARS AND NINETY-FIVE CENTS ($125,341.95) FOR THE PURCHASE OF RADIO REPEATER STATIONS; APPROVING A CHANGE ORDER TO PHASE I OF THE RADIO PROJECT TO ALLOW FOR SAID PURCHASE; AND APPROVING A PROJECT CONTINGENCY NOT TO EXCEED TEN THOUSAND DOLLARS ($10,000.00). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council hereby awards a contract to Motorola Inc. in the amount of One Hundred Twenty -Five Thousand Three Hundred Forty One Dollars and Ninety -Five Cents ($125,341.95) for the purchase of radio repeater stations. Section 2. That the City Council hereby approves a change order to Phase I of the radio project to allow for said purchase. Section 3. That the City Council hereby approves a project contingency not to exceed Ten Thousand Dollars ($10,000.00). Section 4. That the City Council hereby authorizes the Mayor to sign such a contract with Motorola Inc. PASSED and APPROVED this 20th day of November, 2001. By: APPROVED: By ATHER WOODRUFF, Ci Jerk NAME OF FILE: CROSS REFERENCE: Resolution No. 153-01 • 11/20/01 Resolution No. 153-01 Contract to Motorola, Inc. 11/01/01 Departmental Correspondence to Mayor Coody & Members of the City Council from Richard L. Watson, Chief of Police, regarding Radio System Upgrade - Change Order to Phase I 11/20/01 Staff Review Form 11/27/01 Memo to Richard L. Watson, Police Department, from Heather Woodruff, City Clerk NOTES: • Communications Products Agreement ORIGINAL. Motorola, Inc., a Delaware corporation, through its Commercial, Government, and Industrial Solutions Sector, North America Group ("Motorola"), having a place of business at 1301 E. Algonquin Rd., Schaumburg, IL 60196 and City of Fayetteville, ("Customer"), having a place of business at 100-A W. Rock, Fayetteville, AR 72701, enter into this Communications Products Agreement, pursuant to which Customer will purchase and Motorola will sell the Products, as described below. Seller and Customer may be referred to individually as "party" and collectively as "parties." For good and valuable consideration, the parties agree as follows: Section 1 EXHIBITS The Exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in the order in which they are listed below. Exhibit A Motorola "Software License Agreement" Exhibit B "Technical and Implementation Documents" B-1 "List of Products" dated _10/31/01_ B-2 "Statement of Work" dated _10/31/01_ Section 2 DEFINITIONS Capitalized terms used in this Agreement shall have the following meanings: "ADR" means alternative dispute resolution. "Agreement" means this document, the exhibits listed above, and any amendments to this Agreement. "Effective Date" means that date upon which the last party to sign this Agreement has executed the Agreement. "Equipment" means the hardware listed in the List of Products. "FCC" means the Federal Communications Commission. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a party's reasonable control, such as an act of God, an act of the public enemy, an act of a government entity, strikes or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, riots, or any other similar cause. "Infringement Claim" means a claim that the Equipment manufactured by Motorola or the Motorola Software infringes a United States patent or copyright. "Motorola Software" means Software that Motorola owns. "Non -Motorola Software" means Software that a party other than Motorola owns. "Products" mean the Equipment and Software provided by Motorola under this Agreement. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by Motorola under this Agreement and any CPA Set Rev. August 1, 2001 1 Motorola Contract No. Ca M In • • corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by Motorola or another party. "Purchase Price" means the price for the Products or for additional Products as permitted by Section 3.4 of this Agreement, exclusive of any applicable sales or similar taxes and freight charges. "Software" means the Motorola and Non -Motorola Software in object code format that is furnished with the Products and which may be listed on the List of Products. "Specifications" means the design, form, functionality, or performance requirements described in the Technical and Implementation Documents and any published descriptions of the Products. Section 3 SCOPE OF AGREEMENT AND TERM 3.1. SCOPE OF WORK. Motorola will provide, ship, and install (if applicable) the Products, and perform its other contractual responsibilities, all in accordance with this Agreement. Customer will perform its contractual responsibilities in accordance with this Agreement. 3.2. CHANGE ORDERS. Either party may request changes within the general scope of this Agreement. Neither party is obligated to perform requested changes unless both parties execute a written change order. 3.3. TERM. Unless otherwise terminated in accordance with the provisions of this Agreement or extended by mutual agreement of the parties, the term of this Agreement shall begin on the Effective Date and shall continue until the expiration of the warranty period or three (3) years from the Effective Date, whichever occurs last. 3.4. ADDITIONAL EQUIPMENT OR SOFTWARE During the Term of this Agreement, Customer may order additional Equipment or Software provided it is then available. Each order must refer to this Agreement. The applicable provisions of this Agreement (except for pricing, delivery, and payment terms) will govern the purchase and sale of the additional Equipment or Software. Unless otherwise expressly provided in this Agreement, the pricing and delivery terms will be Motorola's then published prices and standard delivery terms for such Equipment or Software, and payment is due within twenty (20) days after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped or Software is licensed. 3.5. MAINTENANCE SERVICE. This Agreement does not cover maintenance or support of the Products except as provided under the warranty. If Customer wishes to purchase maintenance or support, Motorola will provide a separate maintenance and support proposal upon request. 3.6. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to Customer solely in accordance with the Software License Agreement. Customer hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement. 3.7. NON -MOTOROLA SOFTWARE. Any Non -Motorola Software is licensed to Customer in accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date unless the copyright owner has granted to Motorola the right to sublicense the Non -Motorola Software pursuant to the Software License Agreement, in which case it applies. Motorola makes no representations or warranties of any kind regarding Non -Motorola Software. Section 4 PERFORMANCE SCHEDULE If this Agreement includes the performance of services, the Statement of Work will describe the performance schedule. CPA Set Rev. August 1, 2001 2 Motorola Contract No. • • Section 5 PAYMENT OF PURCHASE PRICE 5.1. PURCHASE PRICE. The Purchase Price in U.S. dollars is $ 125,341.95. Motorola will submit to Customer invoices for Products when they are shipped and for services, if applicable, when they are performed. Customer will make payrnents to Motorola within thirty (30) days after the date of each invoice. Customer will make payrnents when due in the form of a check, cashier's check, or wire transfer drawn on a U.S. financial institution. 5.2. FREIGHT, TITLE, AND RISK OF LOSS. All freight charges will be pre -paid by Motorola and are included in the purchase price as indicated on Exhibit B-1. Title and risk of loss to the Equipment will pass to Customer upon receipt, except that title to Software will not pass to Customer at any time. Motorola will pack and ship all Equipment in accordance with good commercial practices. Section 6 SITES AND SITE CONDITIONS 6.1. ACCESS TO SITES. If Motorola is providing installation or other services, Customer will provide all necessary construction and building permits, licenses, and the like; and access to the work sites or vehicles as reasonably requested by Motorola so that it may perform its contractual duties. 6.2. SITE CONDITIONS. If Motorola is providing installation or other services at Customer's sites, Customer will ensure that these work sites be safe, secure, and in compliance with all applicable industry (including R-56) and OSHA standards. To the extent applicable and unless the Statement of Work specifically states to the contrary, Customer will ensure that these work sites will have (i) adequate physical space for the installation, use and maintenance of the Products; (ii) adequate air conditioning and other environmental conditions; (iii) adequate electrical power outlets, distribution and equipment for the installation, use and maintenance of the Products; and (iv) adequate telephone or other communication lines for the installation, use and maintenance of the Products. Section 7 ACCEPTANCE Acceptance of the Products will occur upon delivery to Customer unless the Statement of Work provides for acceptance verification or testing, in which case acceptance of the Products will occur upon successful completion of the acceptance verification or testing. Notwithstanding the preceding sentence, Customer's use of the Products for their intended purpose will constitute acceptance. Section 8 REPRESENTATIONS AND WARRANTIES 8.1. EQUIPMENT WARRANTY. For one (1) year from the date of shipment, Motorola warrants that the Equipment under normal use and service will operate in conformity with the manufacturer's published product specifications in all material respects and will be free from material defects in materials and workmanship. 8.2. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License Agreement, for one (1) year from the date of shipment, Motorola warrants the Motorola Software in accordance with the terms of the Software License Agreement and the provisions of this Section applicable to the Motorola Software. 8.3. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These warranties do not apply to: (i) defects or damage resulting from use of the Equipment or Motorola Software in other than its normal, customary, and authorized manner; (ii) defects or damage occurring from misuse, accident, liquids, neglect, or acts of God; (iii) defects or damage occurring from testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized in writing by Motorola; (iv) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (vi) defects or damage caused by Customer's failure to comply with all applicable industry and OSHA standards; (vii) Equipment that has had the serial number removed or made illegible; (viii) CPA Set Rev. August 1, 2001 3 Motorola Contract No. • • batteries (because they carry their own separate limited warranty); (ix) freight costs to ship Equipment to the repair depot; (x) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and (xi) normal or customary wear and tear. 8.4. WARRANTY CLAIMS. Before the expiration of the warranty period, Customer must notify Motorola in writing if Equipment or Motorola Software does not conform to these warranties. Upon receipt of such notice, Motorola will investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at its option and at no additional charge to Customer) repair the defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola Software. Such action will be the full extent of Motorola's liability hereunder. If this investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding to the claim on a time and materials basis using Motorola's current labor rates. Repaired or replaced product is warranted for the balance of the original applicable Warranty Period. All replaced products or parts will become the property of Motorola. 8.5. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original user purchasing the Products for commercial, industrial, or governmental use only, and are not assignable or transferable. 8.6. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 9 DELAYS Neither party will be liable for its non-performance or delayed performance if caused by a Force Majeure. Each party will notify the other if it becomes aware of any Force Majeure that will significantly delay performance. The notifying party will give such notice promptly (but in no event later than fifteen days) after it discovers the Force Majeure. If a Force Majeure occurs, the parties will execute a change order to extend the performance schedule for a time period that is reasonable under the circumstances. Section 10 DISPUTES 10.1. SETTLEMENT PREFERRED. Motorola and Customer will attempt to settle any claim or controversy arising from this Agreement (except for a claim relating to intellectual property) through consultation and negotiation in good faith and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher-level managers of the parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a mediator chosen jointly by Motorola and Customer within thirty days after notice by one of the parties demanding non-binding mediation. Motorola and Customer will not unreasonably withhold consent to the selection of a mediator, and they will share the cost of the mediation equally. The parties may postpone mediation until they have completed some specified but limited discovery about the dispute. The parties may also replace mediation with some other form of non-binding ADR. 10.2. LITIGATION. Any claim relating to intellectual property and any dispute that cannot be resolved between the parties through negotiation or mediation within two (2) months after the date of the initial demand for non-binding mediation shall then be submitted by either party to a court of competent jurisdiction in the state in which the Products are delivered. Each party consents to jurisdiction over it by such a court. The use of ADR procedures will not be considered under the doctrine of laches, waiver, or estoppel to affect adversely the rights of either party. Section 11 DEFAULT AND TERMINATION CPA Set Rev. August 1, 2001 4 Motorola Contract No. • • If a party fails to perform or otherwise breaches a material obligation under this Agreement, the other party may consider the non-performing party to be in default, unless a Force Majeure causes such failure. If the performing party asserts a default, it will give the non-performing party written and detailed notice of the default; and the non-performing party will have thirty (30) days thereafter either to dispute the assertion or provide a written plan to cure the default that is acceptable to the performing party. If the non-performing party provides a cure plan, it will begin implementing the cure plan immediately after receipt of the performing party's approval of the plan If the non-performing party fails to cure the default, the performing party may terminate any unfulfilled portion of this Agreement and recover damages as permitted by law and this Agreement. Section 12 PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION 12.1. Motorola will defend at its expense any suit brought against Customer to the extent that it is based on an Infringement Claim, and Motorola will indemnify Customer for those costs and damages finally awarded against Customer for an Infringement Claim. Motorola's duties to defend and indemnify are conditioned upon: (i) Customer promptly notifying Motorola in writing of such Infringement Claim; (ii) Motorola having sole control of the defense of such suit and all negotiations for its settlement or compromise; (iii) Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. 12.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its option and expense procure for Customer the right to continue using the Equipment or Motorola Software, replace or modify it so that it becomes non -infringing while providing functionally equivalent performance, or grant Customer a credit for such Equipment or Motorola Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and Software. 12.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon (i) the combination of the Equipment or Motorola Software with any software, apparatus or device not furnished by Motorola; (ii) the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Equipment or Motorola Software; (iii) any Equipment that is not Motorola's design or formula; (iv) a modification of the Motorola Software by a party other than Motorola; or (v) the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. The foregoing states the entire liability of Motorola with respect to infringement of patents and copyrights by the Equipment and Motorola Software or any parts thereof. Section 13 LIMITATION OF LIABILITY This limitation of liability provision shall apply notwithstanding any contrary provision in this Agreement. Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipment, Software, or services with respect to which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT 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, THE SALE OR USE OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability will survive the expiration or termination of this Agreement. No action for breach of this Agreement or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of such cause of action, except for money due upon an open account. Section 14 CONFIDENTIALITY AND PROPRIETARY RIGHTS CPA Set Rev. August 1, 2001 5 Motorola Contract No. • • 14.1. CONFIDENTIAL INFORMATION. 14.1.1. During the term of this Agreement, the parties may provide the other with Confidential Information. For the purposes of this Agreement, "Confidential Information" is any information disclosed in written, graphic, verbal, or machine -recognizable form, and is marked, designated, labeled or identified at the time of disclosure as being confidential or its equivalent; or if in verbal form is identified as confidential or proprietary at the time of disclosure and confirmed in writing within thirty (30) days of such disclosure. Notwithstanding any other provisions of this Agreement, confidential information shall not include any information that: (i) is or becomes publicly known through no wrongful act of the receiving party; (ii) is already known to the receiving party without restriction when it is disclosed; (iii) is, or subsequently becomes, rightfully and without breach of this Agreement, in the receiving party's possession without any obligation restricting disclosure; (iv) is independently developed by the receiving party without breach of this Agreement; or (v) is explicitly approved for release by written authorization of the disclosing party. 141 2 Conceming the Confidential Information provided to it by the other party, each party will: (i) maintain the confidentiality of such Confidential Information and not disclose it to any third party, except as authorized by the disclosing party in writing or as required by a court of competent jurisdiction; (ii) restrict disclosure of Confidential Information to its employees who have a "need to know" and not copy or reproduce such Confidential Information; (iii) take necessary and appropriate precautions to guard the confidentiality of Confidential Information, including informing its employees who handle such Confidential Information that it is confidential and not to be disclosed to others, but such precautions shall be at least the same degree of care that the receiving party applies to its own confidential information and shall not be less than reasonable care; and (iv) use such Confidential Information only in furtherance of the performance of this Agreement. Confidential Information is and shall at all times remain the property of the disclosing party, and no grant of any proprietary rights in the Confidential Information is hereby given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement. 14.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. 14.2.1. Motorola owns and retains all of its Proprietary Rights in the Equipment and Software. The third party manufacturer of any Equipment and the copyright owner of any Non -Motorola Software own and retain all of their Proprietary Rights in the Equipment and Software. Nothing in this Agreement is intended to restrict the Proprietary Rights of Motorola, any copyright owner of Non -Motorola Software, or any third party manufacturer of Equipment. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development rights of intellectual property. This Agreement does not involve any Software that is a "work made for hire." 14.2.2. Except as explicitly provided in the Software License Agreement, nothing in this Agreement will be deemed to grant, either directly or by implication, estoppel, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Concerning both the Motorola Software and the Non -Motorola Software, Customer agrees not to modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, or export the Software, or permit or encourage any third party to do so. Section 15 GENERAL 15.1. TAXES. The Purchase Price does not include any amount for federal, state, or local excise, sales, lease, service, rental, use, property, occupation, or other taxes, assessments or duties (other than federal, state, and local taxes based on Motorola's income or net worth), all of which will be paid by Customer except as exempt by law. If Motorola is required to pay or bear the burden of any such taxes, Motorola will send an invoice to Customer and Customer will pay to Motorola the amount of such taxes (including any applicable interest and penalties) within twenty (20) days after the date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property tax purposes. CPA Set Rev. August 112001 6 Motorola Contract No. • • 15.2. ASSIGNABILITY. Neither party may assign this Agreement without the prior written consent of the other party, except that Motorola may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. 15.3. SUBCONTRACTING. Motorola may subcontract any portion of the work, but such subcontracting will not relieve Motorola of its duties under this Agreement. 15.4 WAIVER. Failure or delay by either party to exercise any right or power under this Agreement will not operate as a waiver of such right or power. For a waiver of a right or power to be effective, it must be in writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either (i) a future or continuing waiver of that same right or power, or (ii) the waiver of any other right or power. 15.5. SEVERABILITY. If a court of competent jurisdiction renders any provision of this Agreement (or portion of a provision) to be invalid or otherwise unenforceable, that provision or portion of the provision will be severed and the remainder of this Agreement will continue in full force and effect as if the invalid provision or portion of the provision were not part of this Agreement. 15.6. INDEPENDENT CONTRACTORS. Each party shall perform its activities and duties hereunder only as an independent contractor. The parties and their personnel shall not be considered to be an employee or agent of the other party. Nothing in this Agreement shall be interpreted as granting either party the right or authority to make commitments of any kind for the other. This Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. 15.7. HEADINGS AND SECTION REFERENCES; CONSTRUCTION. The section headings in this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either party. 15.8. GOVERNING LAW. This Agreement and the rights and duties of the parties will be governed by and interpreted in accordance with the laws of the State in which the System is installed. 15.9. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement of the parties regarding the subject matter hereof and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to such subject matter. This Agreement may be altered, amended, or modified only by a written instrument signed by authorized representatives of both parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even If a representative of each party signs such document. 15.10.. NOTICES. Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in person or sent to the address shown below by certified mail, retum receipt requested and postage prepaid (or by a recognized courier service with an asset tracking system, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and shall be effective upon receipt: City of Fayetteville Attn: _Ms. Kathy Stocker 100-A W. Rock Fayetteville, AR 72701 fax: Motorola, Inc. Attn: Steve Kumrow _2212 W. Nashville St. _Broken Arrow, OK 74012 fax: 15.11. COMPLIANCE WITH APPLICABLE LAWS. Each party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Customer will obtain and comply with all FCC licenses and authorizations required for the installation, operation and use of the System before the scheduled installation of the Equipment. Although CPA Set Rev. August 1, 2001 7 Motorola Contract No. • • Motorola might assist Customer in the preparation of its FCC license applications, neither Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters. 15.12. AUTHORITY TO EXECUTE AGREEMENT. Each party represents to the other that (i) it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; (ii) the person executing this Agreement on its behalf has the authority to do so; (iii) upon execution and delivery of this Agreement by the parties, it is a valid and binding contract, enforceable in accordance with its terms; and (iv) the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the party. 15.13. SURVIVAL OF TERMS. The following provisions shall survive the expiration or termination of this Agreement for any reason: Sections 3.6 and 3 7 (concerning Software licensing); Section 10 (Disputes); Section 13 (Limitation of Liability); 14.1 (Confidential Information); and 14.2 (Preservation of Motorola's Proprietary Rights). The parties hereby enter into this Agreement as of the Effective Date. Motorola, Inc. Customer By: Q ! By: Name Title: Date: Name: STEVFN 1 PALM Title: AREA CONTRQLLER //— 7— / , CPA Set Rev. August 1, 2001 8 Motorola Contract No. • • Exhibit A Software License Agreement CPA Set Rev. August 1, 2001 1 Motorola Contract No. • • Software License Agreement Motorola, Inc., a Delaware corporation, through its Commercial, Government, and Industrial Solutions Sector ("Motorola" or "Licensor") or Printrak International, Incorporated, a Motorola company ("Printrak" or "Licensor"), and City of Fayetteville ("Licensee"), hereby enter into this Software License Agreement ("Agreement"). Motorola and Printrak are each authorized to execute this Agreement on behalf of the other. For good and valuable consideration, the parties agree as follows: Section 1 SCOPE Licensor will provide proprietary software and/or radio communications, computer, or other electronic products ("Products") containing embedded or pre -loaded proprietary software to Licensee. All such software that is owned by . Motorola or Printrak is referred to as "Software." Product and Software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which this information is provided) are collectively referred to as "Documentation" This Agreement contains the terms and conditions pursuant to which Licensor will license, and Licensee may use, the Software and Documentation. Section 2 GRANT OF LICENSE Licensor hereby grants to Licensee a personal, non -transferable (except as permitted in Section 8 below), and non-exclusive license under Licensor's applicable proprietary rights to use the Software and related Documentation for the purposes for which they were designed and in accordance with the terms and conditions of this Agreement. The license granted authorizes Licensee to use the Software only in object code format and does not grant any rights to source code. Section 3 LIMITATIONS ON USE 3.1. Licensee may use the Motorola Software only for Licensee's intemal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Licensee may not for any reason modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code, create derivative works from, adapt, translate, merge with other software, copy, reproduce, or export any Software or permit or encourage any third party to do so, except that Licensee may make one copy of Software provided by Licensor to be used solely for archival or back-up purposes. Licensee must reproduce all copyright and trademark notices on all copies of the Software and Documentation. 3.2. Licensee may not copy onto or transfer Software installed in one Product device onto another device. Notwithstanding the preceding sentence, Licensee may temporarily transfer Software installed on one device onto another if the original device is inoperable or malfunctioning, provided that Licensee provides written notice to Licensor of such temporary transfer and such temporary transfer is discontinued when the original device is returned to operation. Upon Licensor's written request, Licensee must provide to Licensor a written list of all Product devices in which the Software is installed and being used by Licensee. 3.3. Licensee must purchase a copy for each site at which Licensee uses Motorola's Radio Service Software (if applicable). Licensee may make one additional copy for each computer owned or controlled by Licensee at each such site. Upon written Motorola's request, Licensee must provide a written list of all sites where Licensee uses or intends to use Radio Service Software. CPA Set Rev. August 1, 2001 2 Motorola Contract No. • • Section 4 OWNERSHIP AND TITLE Title to all copies of Software will not pass to Licensee at any time but remains vested exclusively in Licensor. Licensor owns and retains all of its proprietary rights in any form concerning the Software and Documentation, including all rights in patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, and other intellectual properties (including any corrections, bug fixes, enhancements, updates, or modifications to or derivative works from the Software whether made by Licensor or another party). Nothing in this Agreement is intended to restrict the proprietary rights of Licensor or to grant by implication or estoppel any proprietary rights. All intellectual property developed, originated, or prepared by Licensor in connection with providing to Licensee Software, Products, or related services remain vested exclusively in Licensor, and this Agreement does not grant to Licensee any shared development rights of intellectual property. This Agreement does not involve any software that is a "work made for hire." Section 5 CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain Licensor's proprietary and confidential information and trade secrets. Licensee will take necessary and appropriate precautions to maintain and guard the confidentiality of the Software and Documentation, using at least the same degree of care that Licensee applies to its own confidential information but not less than reasonable care. Precautions will include informing Licensee's employees and agents who are authorized to use the Software and Documentation that such information is confidential and may not to be disclosed to others. Licensee will not disclose the Software and Documentation to any third party except as permitted by this Agreement or expressly in writing by Licensor Licensee will limit access to the Software and Documentation to Licensee's employees and agents who need to know and are authorized to use the Software and Documentation as permitted by this Agreement. Section 6 LIMITED WARRANTY 6.1. If the Software is provided pursuant to a Communications System Agreement, Printrak-Suncoast System Agreement, Communications Products Agreement, or Printrak-Suncoast Products Agreement between Licensor and Licensee, the warranty period for the Software shall commence as stated in such agreement and will continue for one (1) year except as otherwise provided in this Section. For all other transactions, the warranty period will commence upon shipment of the Software and will continue for 120 days. For Software that is owned by Suncoast Scientific Incorporated, a Motorola company; Printrak's Law Records Management System software products; and Printrak's Premier CAD SETM software products, the warranty period for such Software shall commence as stated in the applicable agreement and will continue for 120 days. For Software that is application software, the warranty period for subsequent units licensed is the remainder (if any) of the initial warranty period or, if the initial warranty perod has expired, the remainder (if any) of the term of the applicable Software Maintenance and Support Agreement. 6.2. During the applicable warranty period, Licensor warrants that the Software, when used properly and in accordance with this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the system. For Software owned by Printrak, whether such defect occurs will be determined solely with reference to the Documentation. For Software involving radio frequency systems and Products, the primary functionality of a voice communication system is subscriber -to -subscriber, subscriber -to -dispatcher, and dispatcher -to -subscriber voice communication; and the primary functionality of a data communication system is point-to-point data transmission. Licensor does not warrant that Licensee's use of the Software or Products will be uninterrupted or error -free or that the Software or the Products will meet Licensee's particular requirements. 6.3. Before the expiration of the applicable warranty period, Licensee must notify Licensor in writing if the Motorola Software does not conform to this warranty. Upon receipt of such notice, Licensor will investigate the warranty claim. If this investigation confirms a valid warranty claim, Licensor will (at its option and at no additional charge to Licensee) repair the defect, replace the defective Software with the CPA Set Rev. August 1, 2001 3 Motorola Contract No. • • same or equivalent software, or refund the price of the defective Software or individual Product in which the Software is embedded or for which it was provided. Such action will be the full extent of Licensor's liability and Licensee's sole remedy for a breach of this warranty. If the investigation indicates the warranty claim is not valid, then Licensor may invoice Licensee for responding to the claim on a time and materials basis using Licensor's current labor rates. 6.4. THIS WARRANTY EXTENDS ONLY TO THE FIRST LICENSEE. SUBSEQUENT TRANSFEREES MUST ACCEPT THE SOFTWARE "AS IS" AND WITH NO WARRANTIES OF ANY KIND. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 7 LIMITATION OF LIABILITY EXCEPT FOR PERSONAL INJURY OR DEATH, LICENSOR'S TOTAL LIAIBLITY, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILTY IN TORT, OR OTHERWISE, WILL BE LIMITED TO LICENSEE'S DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT TO EXCEED THE PRICE FOR THE SOFTWARE, THE PRODUCTS PROVIDED BY LICENSOR IN WHICH THE SOFTWARE IS EMBEDDED OR INSTALLED, OR THE SERVICES SPECIFICALLY RELATED TO THE SOFTWARE WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT LICENSOR WILL NOT 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 ARISING FROM THIS AGREEMENT OR THE SALE OR USE OF ANY SOFTWARE OR PRODUCTS. This Limitation of Liability provision will survive the termination of this Agreement. Licensee must bring any action under this Agreement within one (1) year after the cause of action arises. Section 8 TRANSFERS Licensee may not transfer Software to any third party without Licensor's prior written consent, which consent may be withheld in Licensor's reasonable discretion and may be conditioned upon the transferee paying all applicable license fees and agreeing to be bound by this Agreement. Notwithstanding the preceding sentence, if Licensee transfers ownership of radio Products to a third party, Licensee may assign its rights to use the Software (other than Radio Service Software and Motorola's FLASHport® Software) embedded in or furnished for use with those radio Products; provided that Licensee transfers all copies of such Software and the related Documentation to the transferee, and the transferee executes a transfer form to be provided by Licensor upon request (which form obligates the transferee to be bound by this Agreement). Section 9 TERM AND TERMINATION Licensee's right to use the Software will begin when this Agreement is mutually executed by both parties and will continue in perpetuity unless terminated without notice by Licensor upon Licensee's breach of this Agreement. Licensee acknowledges that its breach of this Agreement will result in irreparable harm to Licensor for which monetary damages would be inadequate. Upon termination of this Agreement, Licensor will be entitled to immediate injunctive relief. Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Licensor that all copies of the Software and Documentation have been returned to Licensor or destroyed and are no longer in use by Licensee. Section 10 NOTICES Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service with an asset tracking system, such as Federal CPA Set Rev. August 1, 2001 4 Motorola Contract No • • Express, UPS, or OHL), and shall be effective upon receipt. Change of address must be in writing to the other party. Licensee Licensor Attn: Attn: Section 11 GENERAL 11.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption that public disclosure of the Software or any trade secrets associated with the Software has occurred. 11.2. COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Licensor and the appropriate governmental authority of the United States, in any form export or re- export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or. direct or indirect products sold or otherwise fumished to any person within any territory for which the Unites States Government, or any agency thereof, at the time of such action, requires an export license or other govemmental approval. Violation of this provision shall be a material breach of this Agreement, permitting immediate termination by Licensor. 11.3. WAIVERS. Failure or delay by either party to exercise any right or power under this Agreement will not operate as a waiver of such right or power. For a waiver of a right or power to be effective, it must be in writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. 11.4. ASSIGNMENTS. Licensor may assign any of its rights or subcontract any of its obligations under this Agreement, or encumber or sell any of its rights in any Software, without prior notice to or consent of Licensee. 11.5. ENTIRE AGREEMENT AND AMENDMENT. This Agreement constitutes the entire agreement of the parties regarding Licensee's use of the Software and may be altered, amended, or modified only by a written instrument signed by an authorized representative of each party, except that Licensor may modify this Agreement as necessary to comply with applicable laws and regulations. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either party. 11.6. GOVERNING LAW. This Agreement will be governed by the laws of the United States to the extent that they apply and otherwise by the laws of the State to which the Software or Products are shipped. 11.7. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. In witness whereof, the parties have caused duly authorized representatives to execute this Software License Agreement on the dates set forth below. Licensee Licensor By: Name Title: Date: CPA Set Rev. August 1, 2001 Motorola Contract No. NamAL e: VEN J. PM Title: AREA CONTROLLER Date: 7/- 7— o/ 5 • • Exhibit B Technical and Implementation Documents CPA Set Rev. August 1, 2001 1 Motorola Contract No. Exhibit B-1 Lis of Products • Qty Description Price 2 Quantar Repeater Station, Analog 3 Quantar Repeater Station, Astro Mixed Mode 2 52" Modular Equipment Rack Repeater Station Subtotal* $ 51,644.00 1 Quantar Conventional Repeater Station, Analog $ 15,291.00 with combiner expansion kit. 2 Surge Protection for Quantar Rack $ 1,530.00 1 AC Line Conditioner for Controller $ 980.00 1 Data Broadcast Box for Astro Mixed Mode $ 607.00 1 Astro Mixed Mode Central Site Controller board $ 12,704.00 and spare, with codeplugs 1 RF Cables for Quantar Stations $ 2,103.00 Site Support Equipment Subtotal $ 17,924.00 Equipment Total $ 84,859.00 Installation and Technical Support Services $ 33,159.00 Project Total $118,018.00 Freight $ 1,142.00 Tax ( 5.125 %+$ 75) $ 6,181.95 Grand Total $125,341.95 Option : Analog Operation instead of Astro Mixed Mode — deduct ($ 15,627.00) *The proposal includes the trade-in of the City of Fayetteville's five (5) Micor repeater stations. Pricing reflects a $ 6,000 trade-in allowance per station. Orders must be shippable by December 31, 2001. 11/01/01 • Exhibit B-2 Statement of Work Project Overview 11/01/01 The proposed Micor replacement project includes the equipment, installation, and services to replace the City of Fayetteville's five (5) Micor trunked repeaters and add one (1) conventional repeater for OMI. The replacement trunked repeaters and new conventional repeater will be located at the City's Mt. Robinson radio site. The proposed replacement and new stations will be Quantar repeaters. The existing 5 trunked frequencies will be reused in replacement equipment. The frequency of 859 7375Mhz will be used for the new conventional repeater. The City's existing trunked central controller will be retained. New cabling will be provided between the replacement repeaters and the central controller. New RF cabling will be provided between the five (5) replacement trunked repeaters and one (1) conventional repeater to the existing transmitter combiner and receiver multicoupler. The replacement stations will not be factory staged. The installation service shop will be required to transport the stations from a central receiving location to the Mt. Robinson site. The existing transmit and receive antenna systems will continue to be used. The five (5) replacement trunked repeaters and one (1) conventional repeater will be connected to the existing TXRX transmitter combiner and receiver multicoupler. Motorola will use one (1) of the available 3 prots on the existing Md1-42-85-12 TXRX 8 -port Multicoupler. The existing TXRX Transmit T -Pass combiner Md1-73-87-02-05-60, is a 5 channel combiner. Motorola will install a single (1) channel expansion cavity to facility the conventional repeater addition to the transmit system. The new frequency to be used for this expansion is 859.7375Mhz Due to the nature of the installation of the TXRX expansion kit to an older existing cavity style combiner, approximately 0.3 to 0.4dB of additional insertion loss is anticipated on channels one (860.2375Mhz) and two (859.2375Mhz). Since the anticipated additional loss on channels 1 and 2 is negligible, no coverage impact is expected however no coverage guarantee is included in this proposal. No outside antenna installation work is included with this project. No coverage guarantee for the convential repeater system is part of this proposal. Any existing issues with the site's antenna systems will not be corrected with this project. The proposed project will include the following: • Exhibit B-2 Statement of Work • 1. Five (5) Quantar trunked repeaters. 2. One (1) Quantar conventional repeater. 3. Transmit and Receive station to antenna system cabling 4. One (1) single channel cavity combiner expansion kit. 5. Equipment shipping and installation. 6. Interface to the existing MOSCAD Site Switching equipment. 7. System optimization. MOTOROLA SYSTEM RESPONSIBILITIES (GENERAL) Motorola will be responsible for the performance of all equipment provided by Motorola under this contract. The City of Fayetteville will assume responsibility for the performance of all other equipment necessary for completion of this project not provided by Motorola. Motorola's general responsibilities include the following: 11/01/01 :• Provide an Account Manager as a primary point of contact. Provide a project implementation team to implement the City of Fayetteville's system as defined in this SOW. • Schedule the system upgrades and cutover in agreement with the City of Fayetteville so as to minimize the downtime of the system and the impact to the City of Fayetteville. Coordinate the activities of all Motorola subcontractors under this contract :• Administer safety work procedures for construction and installation. C• Install and optimize five (5) new trunked Quantar repeater stations at Mount Robinson :• Install and optimize one (1) new conventional Quantar repeater station at Mount Robinson :• Upgrade existing 6809 Controller at Mount Robinson C• Perform functional site test to include site switching between Mt. Robinson and Mt Sequoyah • • Exhibit B-2 Statement of Work CITY OF FAYETTEVILLE SYSTEM RESPONSIBILITIES (GENERAL) The City of Fayetteville responsibilities include: :• Provide a designated project manager for system implementation. •:• Host all project meetings. Supply primary commercial power, wiring, and cable terminations. 11/01/01 4 Obtain all FCC, FAA, zoning, site access, and other permits (including, but not limited to, easements, impact studies, planning commission approval, variances, etc) necessary for this project and any other agreements required to gain use of sites. Post the RF license for radio sites prior to testing. :• Provide temporary storage of all equipment shipped. :• Provide a City Electrician to support implementation of the Mount Robinson site equipment if required.