HomeMy WebLinkAbout41-01 RESOLUTION(
RESOLUTION NO. 41 -n it,
A RESOLUTION AWARDING A CONTRACT MOTOROLA, INC. IN THE
AMOUNT OF ONE MILLION SEVEN HUNDRED AND SIXTY NINE
THOUSAND AND THIRTEEN DOLLARS AND FIFTY-FOUR
CENTS ($1,769,013.54) TO UPGRADE AND ENHANCE THE 800 MHz
RADIO SYSTEM, CONSTRUCT A RADIO BUILDING AT TOWER SITE
IN THE AMOUNT OF FORTY-EIGHT THOUSAND DOLLARS ($48,000.00)
WITH A PROJECT CONTINGENCY OF FORTY THOUSAND
DOLLARS ($40,000.00) AND APPROVAL OF A BUDGET
ADJUSTMENT
Whereas, after over a year of consultation and negotiation, City Staff including
police and fire department personnel recommend that the City contract with Motorola,
Inc. to upgrade the radios and radio network needed by city personnel.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council hereby Awards the contract to Motorola, Inc. in
the amount of One Million Seven Hundred and Sixty -Nine Thousand and Thirteen
Dollars and Fifty -Four Cents ($1,769,013.54) to upgrade and enhance the 800 MHz radio
system, construct a radio building at tower site in the amount of Forty -Eight Thousand
Dollars ($48,000.00) with a project contingency of Forty Thousand Dollars
($40,000.00).
Section 2. That the City Council authorizes the Mayor to sign such contract and
to enter into the contract with Motorola, Inc.
Section 3. That the City Council approves the budget adjustment for this project
which is attached as "Exhibit A".
if PASSED AND APPROVED thisab day of March, 2001.
• e
• /
r
ATTEST:
By: a?* Alert
Heather Woodruff, City Cle k
APPROVED:
By:
City of Fayetteville, Arkansas
Budget Adjustment Form
; Radio System
C. 2. Page 3
Budget Year
Air
111,
Department:
Division:
Program:
Police
Sales Tax Capital
Sales Tax Capital
Date Requested
March 6, 2001
Adjus ment #
EXHIBIT A
Project or ftem Requested:
$312,500 is requested in the Radio System
Improvements capital project funded in the
Sales Tax Fund.
$1,320,000 is requested in the Water/Sewer
Operations Building capital project funded
in the Water & Sewer Fund.
Project or hemi Deleted:
$249,000 from the Highway 62 West W/S
Improvements capital project.
$1,320,000 from the Water/Sewer Operations
Building capital project funded in the
Sales Tax Fund.
fitiac
Aatts
copl.
/meet
Justification of this Increase:
The additional funding is needed to cover
the cost of the contract for the Radio
System Upgrade.
The project budget for the Water/Sewer
Operations Building is being transferred
,from the Sales Tax Fund to the W&S Fund to
free up Sales Tax funding for future
project overruns.
Justification of this Decrease:
The Highway 62 West W/S Improvements
capital project is complete with funding
remaining.
A rebate received from the Beaver Water
District for water purchases was received
in the amount of $1,071,000. This amount
was placed back into the Water & Sewer Fund.
• Account Name
Increase Expen e (Decrease Revenue)
Amount
Fixed Assets 312,500
Use of Fund Balance 1,007,500
Building Costs
Account Name
1,320,000
Account Number Project Number
4470
9470 5801
00 99019 1
4470 0947 4999 99
5400 5600
5804 00 98076 20
Decrease Expense (Increase Revenue)
Amount Account Number
Building Costs 1,320,000
Waterline Improvements 249,000
Use of Fund Balance 1,071,000
4470
5400
5400
9470
5600
0940
5804
5806
4999
Project Number
00 98076 20
00 00026 20
99
Approval Signatures
Requested B
B d et 4anager
partr
ii
Date
Type: A
Date of Approval
Budget Office Use Only
Posted to General Ledger
Posted to Project Accounting
Entered in Category Log
Blue Copy: Budget & Research / Yellow Copy: Requester
EXHIBIT
-Er
Radio System
1 Page 4
•
•
NAME OF FILE: Resolution No. 41-01
•
CROSS REFERENCE:
03/20/01
Resolution No. 41-01
03/06/01
Exhibit "A" (Budget Adjustment)
03/20/01
Copy of Purchase Requisition on back of Budget Adjustment
03/20/01
Communications System Agreement
02/28/01
Departmental Memo to Mayor Dan Coody and Members of the City
Council from Rick Hoyt regarding Radio System Upgrade -Phase I
03/20/01
Staff Review Form
04/03/01
Departmental Memo from City Clerk
NOTES:
•
•
CAUNICATIONS SYSTEM AGREEMENT •
Motorola, Inc., a Delaware corporation ("Motorola"), by and through the United States & Canada Group of
its Commercial, Government, and Industrial Solutions Sector ("CGISS"), and the City of Fayetteville,
Arkansas ("Customer") enter into this Communications System Agreement (the "Agreement"), effective as
of the last date signed below (the "Effective Date"), pursuant to which Customer will purchase and
Motorola will provide Customer with a Communications System.
Section 1 EXHIBITS
The Exhibits below are hereby incorporated into and made a part of this Agreement. In
interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will
take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in
the order in which the Exhibits appear below.
Exhibit A Motorola software license agreement ("Software License Agreement")
Exhibit B Motorola system description ("System Description"), acceptance test plan
("Acceptance Test Plan" or "ATP" this will include the "Coverage Acceptance Test
Plan" or "CATP"), equipment list ("Equipment List"), and statement of work
("Statement of Work"), dated February 27, 2001.
Exhibit C Enhanced System Support Plan ("ESS Plan")
Exhibit D Section 2, Point by Point Response included in the City of Fayetteville Radio
Improvement Project Technical Proposal, dated October 31, 2000
Exhibit E Motorola service agreement ("Service Agreement") and Motorola Software
Subscription Agreement ("Subscription Agreement").
Exhibit F City of Fayetteville's Request for Proposal
Section 2 DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined within the Agreement have
the following meanings:
"Communications System" or "System" is the communications system described in Exhibit 13,
including the Equipment and Software described in the System Description, Statement of Work,
Acceptance Test Plan and Equipment List.
"Equipment" is the equipment specified in the Equipment List included in Exhibit B.
"Motorola Software" is software whose copyright is owned by Motorola.
"Non -Motorola Software" is software whose copyright is owned by a party other than Motorola.
"Software" includes Motorola and any Non -Motorola Software that may be furnished with the
Communications System.
Section 3 SCOPE OF AGREEMENT
A. SCOPE OF WORK. Motorola will assemble and integrate the Equipment and Software, and
deliver, install and test the Communications System at designated sites, as specified in
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CALUNICATIONS SYSTEM AGREEMENT •
Exhibit B and in accordance with this Agreement. Motorola & Customer will perform its
responsibilities as specified in Exhibit B and in accordance with this Agreement.
B. CHANGE ORDERS. Either party may request changes within the general scope of this
Agreement. If a requested change causes an increase or decrease in the cost of or time
required for the performance of this Agreement, Motorola and Customer will agree to an
equitable adjustment in the Agreement price or performance schedule, or both. Motorola is
not obligated to comply with requested changes unless and until both parties execute a
written change order.
C. ADDITIONAL PRODUCTS. For One (1) year after the Effective Date of this Agreement,
Customer may submit purchase orders for additional portable and mobile subscriber products
manufactured by Motorola's CGISS which are currently available at the time of order If
Customer and Motorola have agreed to a convention for processing electronic data
interchange ("EDI") transactions, purchase orders may be transmitted electronically. Each
purchase order must specifically refer to this Agreement and will be an offer by Customer
subject to Motorola's acceptance. Except for pricing and delivery terms, which must be stated
on the purchase order, Customer and Motorola agree that the applicable terms of the main
body of this Agreement will be the only terms and conditions that govern the purchase and
sale of products identified on such purchase orders. Customer and Motorola agree that
payment for all additional products so purchased will be due within thirty (30) days from date
of receipt of invoice.
D. MAINTENANCE SERVICE. During the first year after System Acceptance, maintenance
services and software support are provided pursuant to the terms of this Agreement, the ESS
Plan (Exhibit C) and the applicable provisions of the Service Agreement (Exhibit E). The
applicable provisions of the Service Agreement are those entitled "Service Defined" (but
excluding, for purposes of the ESS Plan, the first sentence of subparagraph B of "Service
Defined"), Excluded Services", "Right to Subcontract/Assignment", "Time and Place of
Service", and "Warranty". Such services are included in the Purchase Price. After the first
year following System Acceptance, Customer may purchase maintenance services and
software support for the Communications System pursuant to a separately executed Service
Agreement and Software Subscription Agreement.
E. MOTOROLA SOFTWARE Any Motorola Software furnished will be licensed to Customer
solely according to the terms and restrictions of the Software License Agreement attached as
Exhibit A. Customer hereby accepts all of the terms and restrictions of the Software License
Agreement.
F. NON -MOTOROLA SOFTWARE. Any Non -Motorola Software furnished by Motorola will be
subject to the terms and restrictions of its copyright owner unless such copyright owner has
granted to Motorola the right to sublicense such Non -Motorola Software, in which case the
Software License Agreement (including any addendum to satisfy such copyright owner's
requirements) shall apply.
Section 4 PERFORMANCE SCHEDULE
A. Motorola and Customer agree to perform their responsibilities in accordance with the
following performance schedule as supplemented by the schedule included in the Statement
of Work:
1. Motorola will ship the Equipment to designated Customer site(s) within 10 weeks after the
Effective Date of this Agreement.
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CAUNICATIONS SYSTEM AGREEMENT •
2. Motorola will install the Equipment within 3 weeks after the Equipment is delivered to
designated site(s).
3. Motorola and Customer will initiate acceptance testing within 3 weeks after installation is
completed. Acceptance testing will not be completed until Motorola successfully passes
all Acceptance tests in accordance with the Acceptance Test Plan set forth in Exhibit B of
this Agreement.
B. By executing this Agreement, Customer authorizes Motorola to proceed with the
manufacture, assembly, integration, delivery, installation, and testing of the Communications
System. No further notice to proceed, purchase order, authorization, resolution, or any other
action will be required.
Section 5 PAYMENT SCHEDULE
A. The total contract price is One Million Seven Hundred Sixty Nine Thousand Thirteen Dollars
and Fifty Four Cents (USD$1,769,013.54). Except for the first payment, which is due when
Customer executes this Agreement, Customer agrees to make payments to Motorola within
thirty (30) days after the date of receipt of invoices that will be submitted by Motorola
according to the following payment schedule:
1. 15 % of the total contract price is due when Customer executes this Agreement;
2. 50 % of the total contract price will be invoiced immediately after the Equipment is
delivered to the City of Fayetteville;
3. 10 % of the total contract price will be invoiced immediately after the Equipment is
installed at the sites specified in the Exhibits;
4. 10 % of the total contract price will be invoiced immediately after the completion of the
System Acceptance Test plan; and
5. 15 % of the total contract price will be invoiced immediately after System Acceptance.
B. If the total contract price does not include freight charges, all freight charges will be pre -paid
by Motorola and added to the invoices.
Section 6 INSTALLATION AND SITE CONDITIONS
A. In addition to its responsibilities described in the Statement of Work, Customer agrees to
provide a designated project director, procure any necessary construction permits, building
permits, zoning variances and the like, provide access to the sites identified in the Exhibits as
requested by Motorola, and have such sites available for installation of the Equipment by
Motorola in accordance with the performance schedule and Statement of Work.
B. If either Motorola or Customer determines during the course of performance of this
Agreement that the sites identified in the Exhibits are no longer available or desired, or, if
subsurface, structural, adverse environmental or latent conditions at any site materially differ
from those indicated on the specifications in the Exhibits, Motorola and Customer will
promptly investigate the conditions and jointly select replacement sites or adjust the
installation plans and specifications as necessary.
C. If Customer and Motorola determine that any material change in sites, site availability,
installation plans, or specifications will require an adjustment in the contract price or in the
time required for the performance of this Agreement, the parties will agree to an equitable
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C.MUNICATIONS SYSTEM AGREEMENT.
adjustment in the price, performance schedule, or both; and this Agreement will be modified
in accordance with Section 3.6 of this Agreement.
D. This Agreement is predicated upon normal soil conditions as defined by the version of E.I.A.
standard RS -222 in effect on the Effective Date of this Agreement.
Section 7 TRAINING
If training is included in this Agreement, Customer agrees to notify Motorola immediately if a date
change for a scheduled training program is required. A charge will apply to a training program
rescheduled by Customer less than thirty (30) days prior to its scheduled start date with such
charge not to exceed One Thousand Dollars and No Cents (USD$1,000.00). If Motorola
changes a training date less than seven days (7) from the scheduled date, Motorola will be
assessed a rescheduling fee not to exceed One Thousand Dollars and No Cents
(USD$1,000.00).
Section 8 SYSTEM ACCEPTANCE
A. Motorola will test the Communications System in accordance with the Acceptance Test Plan.
System acceptance will occur upon the successful completion of such testing ("System
Acceptance") at which time both parties shall promptly execute a certificate of system
acceptance. If the Acceptance Test Plan includes separate tests for individual subsystems,
both parties shall promptly execute certificates of subsystem acceptance upon the successful
completion of testing of such subsystems. Minor omissions or variances in performance
which do not materially affect the operation of the Communications System as a whole will
not postpone System Acceptance. Customer and Motorola will jointly prepare and approve a
list of such omissions and variances which Motorola will correct according to an agreed upon
schedule.
B. Motorola agrees to notify Customer when the Communications System is ready for
acceptance testing. Motorola and Customer agree to commence acceptance testing within
ten (10) business days after receiving such notification. 0 testing is delayed for reasons within
the control of Customer or its contractors, agents and consultants for more than ten (10)
business days after notification, final payrnent will be due within thirty (30) days after such
notification and the Warranty Period will commence immediately.
C. Motorola may, but is not obligated to, issue written authorization for Customer's use of the
Communications System or its subsystem(s) for limited training or testing purposes, prior to
the completion of testing by Motorola. Any use of the Communications System for its
intended purpose without prior written authorization by Motorola shall constitute System
Acceptance.
Section 9 WARRANTY
A. WARRANTY PERIOD. Upon System Acceptance, the System Functionality representation
described below is fulfilled. The Equipment and Motorola Software is warranted for a period
of one (1) year after System Acceptance ("Warranty Period") in accordance with the
applicable limited warranties shown below. In no event will the warranty period last longer
than eighteen (18) months after the Equipment and Software is shipped from Motorola.
Customer must notify Motorola in writing if Equipment or Motorola Software does not conform
to these warranties no later than one month after the expiration of the Warranty Period.
B. SYSTEM FUNCTIONALITY. Motorola represents that the Communications System will
satisfy the functional requirements in Exhibit B. Upon System Acceptance, this System
Functionality representation is fulfilled. After System Acceptance, the Equipment Warranty
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CAUNICATIONS SYSTEM AGREEMENT •
set forth below, the Software Warranty set forth in the Software License Agreement, and the
Enhanced System Support Plan described in Exhibit C will apply.
Motorola will not be responsible for performance deficiencies of the System caused by
ancillary equipment not furnished by Motorola attached to or used in connection with the
System provided hereunder. Additionally, Motorola will not be responsible for System
performance where the functionality is reduced for reasons beyond Motorola's control
including but not limited to i) an earthquake, adverse atmospheric conditions or other natural
causes; ii) the construction of a building that adversely affects the microwave path reliability
or RF coverage; iii) the addition of additional frequencies at System sites that cause RF
interference or intermodulation; iv) Customer changes to load usage and/or configuration
outside the parameters specified in Exhibit B; v) any other act of parties who are beyond
Motorola's control, including Customer or its employees, contractors, consultants or agents.
C. EQUIPMENT WARRANTY. Motorola warrants the Equipment against material defects in
material and workmanship under normal use and service during the Warranty Period. Unless
otherwise specified in writing, the Warranty Period for non -Motorola manufactured Equipment
will be as stated in this Section.
At no additional charge and at its option, Motorola will either repair the defective Equipment,
replace it with the same or equivalent Equipment, or refund the purchase price of the
defective Equipment, and such action on the part of Motorola will be the full extent of
Motorola's liability hereunder. Repaired or replaced Equipment is warranted for the balance
of the original applicable warranty period. All replaced parts of the Equipment shall become
the property of Motorola.
THIS WARRANTY DOES NOT APPLY TO
a) Defects or damage resulting from use of the Equipment in other than its normal and
customary manner.
b) Defects or damage occurring from misuse, accident, water, or neglect.
c) Defects or damage occurring from testing, operation, maintenance, installation, alteration,
modification, or adjustment not provided by Motorola pursuant to this Communications
System Agreement
d) Breakage or damage to antennas unless caused directly by defects in material or
workmanship.
e) Equipment that has been subjected to unauthorized Equipment modifications,
disassembly or repairs (including the addition to the Equipment of non -Motorola supplied
equipment if not authorized by Motorola) which adversely affect performance of the
Equipment or interfere with Motorola's normal warranty inspection and testing of the
Equipment to verify any warranty claim.
f) Equipment which has had the serial number removed or made illegible.
g) Batteries (because they carry their own separate limited warranty).
h) Equipment which, due to illegal or unauthorized alteration of the software/firmware in the
Equipment, does not function in accordance with Motorola's published specifications or
with the FCC type acceptance labeling in effect for the Equipment at the time the
Equipment was initially distributed from Motorola.
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CAUNICATIONS SYSTEM AGREEMENT
i) Scratches or other cosmetic damage to Equipment surfaces that does not affect the
operation of the Equipment.
j) Software.
k) Normal and customary wear and tear.
D. MOTOROLA SOFTWARE WARRANTY. Motorola Software is warranted in accordance with
the terms of the Software License Agreement attached as Exhibit A.
E. These express limited warranties as set forth in this Section are extended by Motorola to the
original end user purchasing or leasing the System for commercial, industrial, or
governmental use only, and is not assignable or transferable. These are the complete
warranties for the Equipment and Software provided pursuant to this Agreement.
F. THESE WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA
DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL MOTOROLA BE LIABLE
FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE EQUIPMENT. IN NO
EVENT WILL MOTOROLA BE LIABLE FOR ANY LOSS OF USE, LOSS OF TIME,
INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS OR OTHER
INCIDENTAL SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF
THE USE OR INABILITY TO USE THE EQUIPMENT, TO THE FULL EXTENT SUCH MAY
BE DISCLAIMED BY LAW.
Section 10 FCC LICENSES AND AUTHORIZATIONS
Customer agrees to obtain all Federal Communications Commission ("FCC") licenses and
authorizations required for installation and use of the Communications System prior to the
scheduled installation of the Equipment. Although Motorola may assist in the preparation of
license applications, in no event will Motorola or any of its employees be an agent or
representative of Customer in FCC matters. Customer is solely responsible for obtaining all FCC
licenses and for complying with FCC rules.
Section 11 DELAYS
A. Successful project implementation will require cooperation and fairness between the parties.
Because it is impractical to provide for every contingency which may arise during the course
of performance of this Agreement, the parties agree to notify the other if they become aware
that any condition will significantly delay performance. The parties will agree to reasonable
extensions of the project schedule by executing a written change order.
B. Under no circumstances will either party be responsible for delays or lack of performance
resulting from events beyond the reasonable control of that party ("Excusable Delays") Such
events include, but are not limited to, acts of God, weather conditions, compliance with laws
and regulations (excluding Customer's failure to properly and timely apply for all required
FCC licenses), governmental action, bid protests, fire, strikes, lock -outs, and other labor
disruptions, riots, acts of war, and an Excusable Delay of a Motorola subcontractor. Material
shortages that could not have been reasonably foreseen by Motorola and thus beyond its
reasonable control, will be deemed an Excusable Delay. If material shortages are foreseen,
Motorola will do its best efforts to procure the required material to perform its responsibilities
herein so long as such procurement is economically feasible. If the procurement of material
that are in short supply is not economically feasible, then such material shortages will be
deemed an Excusable Delay.
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SUNICATIONS SYSTEM AGREEMENT •
C. Customer will make available to Motorola the sites when scheduled and Customer will not
otherwise unreasonably delay or prevent Motorola's performance of its responsibilities. In the
event of a Customer delay during the time of shipment, Motorola may ship the equipment as
scheduled to a location as designated by the Customer or if no such location is designated, a
Motorola designated storage facility for which Customer agrees to pay all fees. If Customer
delays Motorola's performance, the performance schedule will be extended, the Customer
will make the milestone payments as if no delay occurred, and the parties will execute a
Change Order to compensate Motorola for reasonable charges incurred because of such
delays Such charges include, but are not limited to, costs incurred by Motorola and/or its
subcontractors for additional freight, warehousing and handling; suspending and re-
mobilizing the work; additional engineering and standby time calculated at then current man -
day rates; and preparing and implementing a "work around" plan.
Section 12 DEFAULT
A. If Motorola fails to complete delivery, installation or acceptance testing in accordance with
this Agreement, Customer may consider Motorola to be in default, unless such failure has
been caused by an Excusable Delay. Customer agrees to give Motorola written notice of
such default. Motorola will have thirty (30) days from the receipt of such notice to provide a
plan of action that is acceptable to Customer to cure the default.
B. If Motorola fails to cure the default, Customer may terminate any unfulfilled portion of this
Agreement. If Customer completes the Communications System through a third party,
Customer may recover the reasonable costs of completing the Communications System to a
capability not exceeding that specified in the Agreement, less the unpaid portion of the
Contract Price. Customer agrees to use its best efforts to mitigate such costs. Motorola's
liability under this Section is subject to the limitations of the Section entitled Limitation of
Liability of this Agreement.
C. THE REMEDIES PROVIDED IN THIS SECTION OF THE AGREEMENT WILL BE THE FULL
EXTENT OF MOTOROLA'S LIABILITY IN THE EVENT OF DEFAULT.
Section 13 INDEMNIFICATION
A. GENERAL INDEMNITY. Motorola agrees to and hereby indemnifies and saves Customer
harmless from all liabilities which may accrue against Customer on account of direct physical
damage to tangible property or personal injury to the extent the damage or injury is caused
by Motorola's negligence or recklessness, or that of its employees, subcontractors, or agents
while on the Customer's premises during the delivery, installation, or testing of the
Communications System pursuant to this Agreement
B. PATENT AND COPYRIGHT INFRINGEMENT. Motorola will defend, at its own expense, any
suit brought against the Customer to the extent that it is based on a claim that the Equipment
or Motorola Software infringe a United States patent or copyright, and Motorola will pay those
costs and damages finally awarded against the Customer in any such suit which are
attributable to any such claim, but such defense and payments are conditioned on the
following: i) Motorola must be notified promptly in writing by Customer of any notice of such
claim; ii) Motorola will have sole control of the defense of such suit and all negotiations for its
settlement or compromise; and iii) should the Equipment or Motorola Software become, or in
Motorola's opinion be likely to become, the subject of a claim of infringement of a United
States patent or copyright, Customer will permit Motorola, at its option and expense, either to
procure for Customer the right to continue using the Equipment or Motorola Software or to
replace or modify the same so that it becomes non -infringing or to grant Customer a credit for
the Equipment or Motorola Software as depreciated and accept its return. The depreciation
amount will be based upon generally accepted accounting standards for such Equipment and
Software. Motorola will have no liability with respect to any claim of patent or copyright
Contract No. 00-13232/mcd
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CAUNICATIONS SYSTEM AGREEMENT •
infringement which is based upon the combination of the Equipment or Motorola Software
furnished hereunder with software, apparatus or devices not furnished by Motorola, nor will
Motorola have any liability for the use of ancillary equipment or software not fumished by
Motorola which is attached to or used in connection with the Equipment. 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.
C. Motorola's indemnification of Customer under this Section will be the full extent of Motorola's
indemnification of Customer from liabilities that are in any way related to Motorola's
performance under this Agreement.
Section 14 DISPUTES
A. Motorola and Customer will attempt to settle any claim or controversy arising from this
Agreement through consultation and negotiation in good faith and a spirit of mutual
cooperation. If those attempts fail, the dispute 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. Neither party may unreasonably withhold consent to the selection of a
mediator, and Motorola and Customer will share the cost of the mediation equally. The
parties may postpone mediation until they have completed some specified but limited
discovery about the dispute. The parties may also replace mediation with some other form of
non-binding alternate dispute resolution (ADR") procedure.
B. Any dispute that cannot be resolved between the parties through negotiation or mediation
within two months after the date of the initial demand for non-binding mediation may then be
submitted by either party to a court of competent jurisdiction in the State in which the
Communications System is installed. Each party consents to jurisdiction over it by such a
court. The use of any ADR procedures will not be considered under the doctrine of !aches,
waiver, or estoppel to affect adversely the rights of either party. Either party may resort to the
judicial proceedings described in this paragraph prior to the expiration of the two-month ADR
period if (a) good faith efforts to attempt resolution of the dispute under these procedures
have been unsuccessful or (b) interim relief from the court is necessary to prevent serious
and irreparable injury to such party or any of its affiliates, agents, employees, customers,
suppliers, or subcontractors.
Section 15 LIMITATION OF LIABILITY
Notwithstanding any other provision to 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 Total Contract Price. IN NO EVENT WILL MOTOROLA BE LIABLE FOR ANY
LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS
OR SAVINGS, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY
WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE
EQUIPMENT, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO
THIS AGREEMENT. This Limitation of Liability will survive the expiration or termination of this
Agreement. No action for a breach of this Agreement or otherwise relating to the transactions
contemplated by this Agreement may be brought more than five (5) years after the accrual of
such cause of action except for money due upon an open account.
Section 16 GENERAL
A. TITLE AND RISK OF LOSS. Title to the Equipment will pass to Customer upon delivery of
the Equipment, except that title to Software will not pass to Customer at any time. Risk of loss
will pass to Customer upon delivery of the Equipment to the facilities designated by
Customer.
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SUNICATIONS SYSTEM AGREEMENT •
B. TAXES. The purchase price does not include any amount for federal, state, or local excise,
sales, lease, service, rental, use, property, occupation, or other taxes, all of which (other than
federal, state, and local taxes based on Motorola's income or net worth) will be paid by
Customer except as exempt by law. 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 interest and penalties) within thirty days after the date of
the invoice. Customer will be solely responsible for reporting the Equipment for personal
property tax purposes.
C. CONFIDENTIAL INFORMATION. Customer or Motorola will not disclose any material or
information identified as either Customer or Motorola proprietary and confidential to third
parties without the non -disclosing party's prior written permission, unless the non -disclosing
party makes such material or information public or disclosure is required by law. If Customer
or Motorola is required by law to disclose such material or information, Customer will notify
Motorola prior to such disclosure.
D. DISCLAIMER OF LICENSE. Except as explicitly provided in the Motorola Software License
Agreement included in Exhibit Al nothing in this Agreement will be deemed to grant, either
directly or by implication, estoppel, or otherwise, any license or right under any patents,
patent applications, copyrights, trade marks, trade secrets or other intellectual property of
Motorola.
E. ASSIGNABILITY. This Agreement may not be assigned by either party without the prior
consent of the other party. However, Motorola may assign this Agreement to any of its
affiliates or its right to receive payment with the prior consent of Customer, with such consent
not unreasonably withheld.
F WAIVER. Failure or delay by either party to exercise any right or power under this Agreement
will not operate as a waiver of such right or power.
G. SEVERABILITY. If any portion of this Agreement is held to be invalid or unenforceable, that
provision will be considered severable and the remainder of this Agreement will remain in full
force and effect as if the invalid provision were not part of this Agreement.
H. HEADINGS AND SECTION REFERENCES. The headings given to the sections of this
Agreement are inserted only for convenience and are not to be construed as part of this
Agreement or as a limitation of the scope of the particular Section to which the heading
refers.
I. ENTIRE AGREEMENT. This Agreement (including the Exhibits) constitutes the entire
agreement of the parties regarding the subject matter of this Agreement and supersedes all
previous agreements and understandings, whether written or oral, relating to such subject
matter. This Agreement may be altered, amended, or modified only by a written instrument
signed by the duly authorized representatives of both parties
J. GOVERNING LAW. This Agreement will be governed by and construed in accordance with
the laws of the State of Arkansas.
Contract No. 00-13232/mcd
Page 9 Final ver. 03/09/01
CCOUNICATIONS SYSTEM AGREEMENT •
K. NOTICES. Notices authorized or required under this Agreement must be in writing and sent
to the below addresses:
City of Fayetteville, AR Motorolatinc.
Attn: Kathy Stocker Attn: Contract and Compliance Manager
Fayetteville Police Department 9980 Carroll Canyon Road
100-A West Rock San Diego, CA 92131
Fayetteville, AR 72701
IN WITNESS WHEREOF, the parties have caused duly authorized representatives to execute this Agreement
on the dates set forth below.
CITY OF FAYETTEVILLE, AR (CUSTOMER) MOTOROLA, INC,
Title: /0•40#1ig_
Date:
Contract No. 00-13232/mcd
By:
Name: R44/6 ROD /1/
Title: 0.et 40/004 (WO
Date: i3/01/100/
REVIEWED AND APPROVED AS TO 10:1/
M NYEEN • 114ni ATE
k11it/go/
MOTOROL/ 379 0
CONTRACTS AND COMPLIANCE DEPT.
Page 10 Final ver. 03/09/01
EXHIP A — SOFTWARE LICENSE AGREEMEN1P
This Software License Agreement is between Motorola, Inc., a Delaware corporation ("Motorola")
and the City of Fayetteville, Arkansas ("Licensee").
Section 1 SCOPE
Licensee may acquire from Motorola's Commercial, Government, and Industrial Solutions Sector
("CGISS") radio communication products ("Products") that contain embedded or pre -loaded
Motorola software such as in a ROM, PROM, or EPROM, or other Motorola software provided on
media such as a floppy disk, tape, diskette, or CD-ROM. All such software (including Radio
Service Software and FLASHporte Software) is referred to as "Motorola Software." In addition,
third party software may be included which Motorola does not own but is licensed to distribute.
The terms of this Agreement apply to any such third party software unless an additional license
agreement pertaining to the th rd party software is enclosed, in which case the terms of such
license apply to sad third party software. This Agreement contains the terms under which
Licensee may use Motorola Software acquired from CGISS.
Section 2 GRANT OF LICENSE
Motorola hereby grants to Licensee a personal, non-exclusive license under Motorola's applicable
proprietary rights to use Motorola Software in accordance with the terms of this Agreement.
Section 3 LIMITATIONS ON USE
Licensee may use Motorola Software only for Licensee's internal business purposes and only as
described in the Motorola Software or Product documentation. Any other use of Motorola Software
is strictly prohibited and will be deemed a breach of this Agreement. Licensee may not copy,
modify, adapt, merge with other software, reverse engineer, prepare derivative works of, or
disassemble any Motorola Software for any reason, except that Licensee may make at most two
copies of Motorola Software provided with infrastructure equipment for back-up purposes.
Licensee must purchase a copy of Radio Service Software for each site at which Licensee uses
Radio Service Software; Licensee may make one additional copy for each computer owned or
controlled by Licensee at each such site. Licensee may temporarily use Radio Service Software
on portable or lap -top computers at other sites. Prior to acquiring any Radio Service Software or
upon Motorola's request, Licensee must provide a written list of all sites where Licensee uses or
intends to use Radio Service Software. Licensee must reproduce all Motorola copyright and
trademark notices on all copies of Motorola Software.
Section 4 TRANSFERS
If Licensee transfers ownership of Products to a third party, Licensee may assign its rights to use
Motorola Software (other than Radio Service Software and FLASHporte Software) embedded in
or fumished for use with those Products provided that (a) Licensee transfers all copies of such
Motorola Software to the new owner and (b) Motorola receives a transfer form (which Motorola will
provide upon request) completed and signed by the new owner. Otherwise, Licensee may not
transfer or make available any Motorola Software to any third party.
Section 5 OWNERSHIP AND TITLE
Title to all copies of Motorola Software in any form, including all rights in patents, copyrights, trade
secrets, and other intellectual properties, remains vested exclusively in Motorola.
Section 6 CONFIDENTIALITY
Licensee acknowledges that all Motorola Software contains valuable proprietary information and
trade secrets and that unauthorized dissemination, distribution, modification, reverse engineering,
disassembly, or other improper use of Motorola Software will result in irreparable harm to
Motorola for which monetary damages would be inadequate. Accordingly, Licensee will limit
Contract No. 00-13232/mcd Page 1 Final ver. 03/09/01
EXHIIII A — SOFTWARE LICENSE AGREEME.
access to Motorola Software to those of its employees and agents who need to use Motorola
Software for Licensee's internal business purposes, and Licensee will take appropriate action with
those employees and agents to preserve the confidentiality of Motorola Software.
Section 7 LIMITED WARRANTY
For the first 120 days after initial shipment of Motorola Software, or, if the Motorola Software is
provided pursuant to a Communications System Agreement or Communications Equipment
Agreement between Motorola and Licensee, for the Warranty Period specified in such Agreement,
Motorola warrants that the Motorola Software, when used properly, w'll be free from reproducible
defects that eliminates the functionality of a feature critical to the primary functionality of a system.
The primary functionality of a voice communication system is subscriber -to -subscriber,
subscriber -to -dispatcher, and dispatcher -to -subscriber voice communication. The primary
functionality of a data system is point-to-point data transmission. Motorola does not warrant that
Licensee's use of the Motorola Software or the Products will be uninterrupted or error -free or that
the Motorola Software or the Products will meet Licensee's particular requirements. This limited
software warranty does not include any warranty covering the processing of date data from, into,
and between the year 1999 and the year 2000. Any such warranty would be provided expressly in
a separately executed agreement. MOTOROLA'S TOTAL LIABILITY, AND LICENSEE'S SOLE
REMEDY, FOR ANY BREACH OF THIS WARRANTY WILL BE LIMITED TO, AT MOTOROLA'S
OPTION, REPAIR OR REPLACEMENT OF THE MOTOROLA SOFTWARE OR PAYMENT OF
LICENSEE'S DIRECT DAMAGES UP TO THE AMOUNT PAID TO MOTOROLA FOR THE
MOTOROLA SOFTWARE OR THE INDIVIDUAL PRODUCT IN WHICH THE MOTOROLA
SOFTWARE IS EMBEDDED OR FOR WHICH IT WAS PROVIDED. THIS WARRANTY
EXTENDS ONLY TO THE FIRST LICENSEE; SUBSEQUENT TRANSFEREES MUST ACCEPT
THE MOTOROLA SOFTWARE "AS IS" AND WITH NO WARRANTIES OF ANY KIND.
MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
Section 8 LIMITATION OF LIABILITY
IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 9 TERM AND TERMINATION
Licensee's right to use Motorola Software will begin when Licensee sends a duly executed copy of
this Agreement to Motorola, and either (a) Motorola returns a fully executed Agreement to
Licensee or (b) Motorola ships Motorola Software or a Product containing Motorola Software to
Licensee, and will continue in perpetuity unless terminated as follows. Licensee's right to use
Motorola Software will terminate without notice upon a breach of this Agreement by Licensee. In
addition, if Licensee breaches this Agreement with respect to Radio Service Software or
FLASHporte Software, Motorola may, by notice to Licensee, terminate Licensee's right to use
such Motorola Software. Upon termination, Motorola will be entitled to immediate injunctive relief
without proving damages and, unless Licensee is a sovereign government entity, Motorola will
have the right to repossess all Radio Service Software and FLASHport5 Software in Licensee's
possession. Within thirty days after termination of Licensee's right to use any Motorola Software,
Licensee must certify in writing to Motorola that all copies of such Motorola Software have been
returned to Motorola or destroyed.
Section 10 NOTICES
All notices, consents, and waivers permitted or required under this Agreement will be deemed
given upon receipt and must be delivered in writing to the below addresses. Change of address
must be in writing to the other party.
Contract No. 00-13232/mcd
Page 2 Final ver. 03/09/01
EXHIOA — SOFTWARE LICENSE AGREEME.
City of Fayetteville, AR Motorola,Inc.
Attn: Kathy Stocker Attn: Contracts and Compliance Department
Fayetteville Police Department 9980 Carroll Canyon Road
100-A West Rock San Diego, CA 92131
Fayetteville, AR 72701
Section 11 GENERAL
A. COPYRIGHT NOTICES. The existence of a copyright notice on Motorola Software will not be
construed as an admission or presumption that public disclosure of Motorola Software or any
trade secrets associated with Motorola Software has occurred.
B. CAUSES OF ACTION. Licensee must bring any action under this Agreement within one year
after the cause of action arises.
C. WAIVERS. No waiver of a right or remedy of a party will constitute a waiver of another right or
remedy of that party.
D. ASSIGNMENTS. Motorola 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 Motorola Software, without
prior notice to or consent of Licensee.
E. ENTIRE AGREEMENT AND AMENDMENT. This Agreement contains the parties' entire
agreement regarding Licensee's use of Motorola Software and may be amended only in a
writing signed by both parties, except that Motorola may modify this Agreement as necessary
to comply with applicable laws and regulations including FCC regulations.
F. GOVERNING LAW. This Agreement will be governed by the laws of the United States of
America to the extent that they apply and otherwise by the laws of the State to which the
Equipment is shipped.
IN WITNESS WHEREOF, the parties have caused duly authorized representatives to execute this
Agreement on the dates set forth below.
CITY OF FAYETTEVILLE, AR (LICENSEE)
MOTOROLA, INC.
By: By: Aid Alani
Name: Name: I4MA6 /LVOV
Title: Title: Oet Afrxedize; SZ?/4-
Date: Date: .57619/1°V/
.vREVIEWED AND APPROVED AS TO FORM
3/9A/
PAYEE . DRURII DATE
MOTOROL
CONTRACTS AND COMPLIANCE DEPT.
Contract No. 00-13232/mcd
Page 3 Final ver. 03/09/01
orIlBIT C - ENHANCED SYSTEM SUPPORT Ft
MOTOROLA ENHANCED SYSTEM SUPPORT PLAN
INTRODUCTION
Motorola places great emphasis on ensuring that its communications systems meet high
standards for design, manufacture, and performance. When communications system failures do
occur, Motorola provides support to its customers through a network of service providers including
the System Support Center ("SSC"), Motorola Authorized Service Stations ("MSS"),
Dealer/Servicer/Preferred Subcontractors ("Subcontractors"), and Company Owned Service
Centers ("COSC") for repair service. The Motorola Enhanced System Support Plan ("ESS")
describes how repair services will be provided during the warranty period specified in your
Communications System Agreement with Motorola. All services described in the ESS will be
provided in accordance with the terms of Motorola's Service Agreement and will cover only the
Equipment and Software specified on the Service Agreement Order Form.
Enhanced System Support will only be provided for those communications systems which have
been staged at Motorola's Customers Center for System Integration ("CCSI") located in
Schaumburg, Illinois and sold through the Commercial Government and Industrial Solutions
Sector (CGISS). Enhanced System Support fees for the warranty period specified in the
Communications System Agreement with Motorola are included in the price of the
communications system. Additional periods of such support may be purchased at Motorola's then
current rates. Unless explicitly noted otherwise, the Motorola Enhanced System Support Plan
does not cover any non -Motorola software, non-CGISS software, Radio Service Software or Data
product software or those hardware items not specifically staged at CCSI that may be included
with the communications system.
This Statement of Work provides a general description of how Motorola and the Customer will
proceed to perform the services presented. Prior to system Acceptance, a Customer Support Plan
will be prepared jointly by Motorola and the Customer. The Customer Support Plan details the
specific steps within the support process, and any Customer specific informaton.
The Motorola Enhanced System Support Plan is comprised of the following services which will be
described in greater detail elsewhere in this document:
Infrastructure Equipment Services
• On -Site Infrastructure Repair Service
• Preventative Maintenance -SSC Scheduled
• Call Management
• Infrastructure Board Advanced Replacement
• Technical Support
• SiteSentry Remote Monitoring/Remote Diagnostics (Smartnet Systems)
• FullVision Remote Monitoring/Remote Diagnostics (SmartZone/OmniLink Systems)
Subscriber Equipment Repair Service
• Subscriber Repair Coverage
Contract No. 00-13232/mcd
Page 1 Final ver. 03/09/01
UrIIBIT C - ENHANCED SYSTEM SUPPORT it
Software Services
• Software Subscription Services
INFRASTRUCTURE EQUIPMENT SERVICES
On -Site Infrastructure Repair Service
Description
Dispatch of technicians to Customer site(s) in response to Customer requests for
service
Motorola Responsibilities
• Repair defective Equipment which does not conform to Motorola's
specifications.
• Repair defective Equipment which as a result of normal wear and usage and
gradual deterioration of components or drifting of levels. Set appropriate level
settings and perform minor system adjustments.
• On-site repair service will be provided during regular business hours which
are defined as Monday - Friday 8:00 AM to 4:30 PM local business time, excluding
holidays. Emergency after hours service will be provided only for Severity 1
issues. Severity One (1) is defined as a complete loss of communication to a site
Customer Responsibilities
• Provide full and free access to the Equipment.
• Furnish shelter, heat, light and power at no charge.
• Control temperature, humidity, and other environmental conditions in
accordance with the hardware manufacturer's specifications.
• Cooperate fully with Motorola and provide all information pertaining to the
hardware and software elements of any system with which •the Equipment is
interfacing.
• Customer is responsible for any site defects including, but not limited to,
building shelters, heaters, air conditioners, fans, alarm sensors (smoke detectors,
hi -lo temp, entry, AC failure, etc.).
• All equipment sites must meet or exceed Motorola's grounding standards
found in the R-56 Motorola Site Grounding Manual. Costs associated with
meeting this requirement are the responsibility of the Customer.
• Customer is responsible for all costs associated with any unusual method of
conveyance required to gain access to a service location and/or any fees by a site
owner to provide an escort.
• Provide information required to complete the Customer Support Plan.
Contract No. 00-13232/mcd Page 2 Final ver. 03/09/01
1141BIT C - ENHANCED SYSTEM SUPPORT •N
Preventative Maintenance -System Support Center Scheduled
Description
Annual Preventative Maintenance ("PM") check, on the Equipment/System
Motorola Responsibildies
• Schedule PM visits through the System Support Center's Call Center, on an
automatic pre -determined schedule.
• Inspect Equipment for compliance with Motorola specifications.
• Retain PM records on file for quality control purposes.
Customer Responsibilities
Provide Motorola with the preferred schedule to perform Preventative Maintenance
checks.
Call Management
Description
Motorola's Call Center is staffed with trained Customer Support Representatives that
provide a central point of contact for all service requests (1-800-448-3245). The Call
Center will receive all calls and dispatch or coordinate appropriate technical support.
All requests are tracked and monitored from beginning to end through an electronic
Customer Service Request (CSR) number.
Motorola Responsibilities
• Receive Customer requests for service on a seven day per week/twenty-four
hour per day (7x24) basis.
• Prompt for information necessary to understand the situation, open a
Customer Service Request (CSR) and determine the next steps to take.
• Dispatch qualified technical resource and assign the CSR as required.
• Notify Customer of technicians arrival at Customer's site (site arrival).
• Verify with Customer that repair is complete and system is fully operational. If
verification by Customer cannot be completed within 20 minutes, the CSR will be
closed, and the technician will be released.
• Ensure the required personnel have access to Customer information as
needed.
• Notify the Customer when work is completed.
• Retain records of Customer's Equipment, including performance history and
site access requirements.
• Provide period performance reports as defined in the Customer Support Plan.
Contract No. 00-13232/mcd
Page 3 Final ver. 03/09/01