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HomeMy WebLinkAboutResolution - 2008-R0265 - Contract For Mobile Digital Recorder Equipment - Motorola, Inc. - 08/12/2008Resolution No. 2008—RO265 August 12, 2008 Item No. 5.4 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute a Contract and any associated documents with Motorola, Inc., for mobile digital recorder equipment per H -GAC Contract, which Contract and any associated documents are attached hereto as Exhibit A and made a part hereof for all intents and purposes. Passed by the City Council this 12th day of August '2008. TOM MARTIN, MAYOR ATTEST: RebeccA Garza, City Secretary APPROVED A$ TO CONTENT: Dale Holton, Chief of Police APPROVED AS TO FORM: Vandiver, Assistant City Attorney DDres/MotorolaV ideoWon Res August 1, 2008 Contract. 8641 Resolution No. 2008—R0265 SYSTEM PURCHASE AGREEMENT THIS AGREEMENT ("Agreement"), made and entered into this A day of August, 2008 and between Motorola Inc., a Delaware corporation duly authorized to conduct business in the State of Texas ("Motorola" or "Seller"), the Houston -Galveston Area Council, a body corporate and politic ("H -GAC") and the City of Lubbock, TX, a body corporate and politic ("Purchaser"). WITNESSETH: WHEREAS, the Purchaser desires to purchase a Communications System; and WHEREAS, Motorola desires to sell a Communications System to Purchaser; and WHEREAS, H -GAC, acting as the agent for various local governmental entities who are "End Users" under interlocal agreements (including the Purchaser) has solicited quotations for radio communications equipment and conducted discussions with Motorola concerning its proposal and, where applicable, in accordance with the competitive procurement procedures of Texas law; and WHEREAS, H -GAC and Motorola entered into that certain Radio Communications Equipment & Systems Agreement dated as of January 1, 2008 (the "Contract"), which provided that End Users may purchase radio communications equipment from Motorola pursuant to certain terms contained therein; and WHEREAS, pursuant to Article 34 of the Contract, Purchaser, Motorola and Purchaser now wish to enter into this System Purchase Agreement to delineate the specific terms of the purchase of radio communications equipment from Motorola by the Purchaser. THEREFORE, the parties hereby enter into an agreement pursuant to which Motorola shall perform the work and furnish the equipment and services as more fully set forth herein and in the following exhibits, which are either attached hereto or incorporated by reference and hereby made a part of this Agreement: Exhibit A General Provisions. Exhibit B Motorola Software License. Exhibit C Motorola's Project Overview, Implementation Assistance Plan & Equipment List Exhibit D Motorola/H-GAC Radio Communications Equipment & Systems Agreement dated January 1, 2008. Exhibit E Workers' Corpensation and Employers Liability Insurance NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the parties agree as follows: Motorola/H-GAC/ - 1 System Purchase Agmt. Section 1 SCOPE OF WORK A. Motorola shall furnish all of the equipment as outlined in Exhibit C and provide the tools, supplies, labor and supervision necessary for the installation of the items purchased in accordance with Exhibit C. B. In addition to responsibilities described in the Implementation Assistance Plan, Purchaser shall perform the following coincident with the performance of this Agreement: (1) Provide a designated Project Director. (2) Provide ingress and egress to Purchaser's facilities and/or sites as requested by Motorola and have such facilities available for installation of the equipment to be installed. (3) Provide adequate telephone lines (including modem access and adequate interfacing networking capabilities) for the installation and operation of the equipment. (4) Provide adequate AC Power at 117 VAC + 10%, 60 Hz for the installation and operation of the equipment. (5) Provide a designated work area with adequate heat and light, and a secure storage area for equipment delivered to the Purchaser. The Purchaser shall be solely liable for loss or damage to equipment prior to, during and following installation when such equipment is on or within Purchaser's facilities and/or vehicles. Section 2 SITES This Agreement is predicated on the utilization of sites and site configurations, which have been selected either by the Purchaser or by Motorola as contained in the Motorola proposal. In either situation, should it be determined by either Motorola or Purchaser during the course of performance on this Agreement that the sites or configuration selected are no longer available or desired, new or replacement sites or configuration will be selected and approved by both Motorola and the Purchaser. If any price adjustments are necessary as a result of these new or replacement sites, such price adjustments will be added to this Agreement by change order in accordance with Section 4 of the General Provisions. Section 3 SUBSURFACE/STRUCTURAL CONDITIONS This Agreement and the Motorola proposal are predicated upon normal soil conditions defined by E.I.A. standard RS -222 (latest revision). Should Motorola encounter subsurface, structural, and/or latent conditions at any site differing from those, indicated on the specifications, or as used in the preparation of the bid price, the Purchaser will be given immediate notice of such conditions before they are further disturbed. Thereupon, Motorola and the Purchaser shall promptly investigate the conditions and, if found to be different, will adjust the plans and/or specifications as may be necessary. Any changes that cause an adjustment in the contract price or in time required for the performance of any part of the contract shall result in a contract modification in accordance with Section 4 of the General Provisions. Motorola/H-GAC/ - 2 - System Purchase Agmt. Section 4 PERIOD OF PERFORMANCE A. Whenever Motorola knows or reasonably should know that any actual or potential condition due to circumstances beyond its control is delaying or threatens to delay the timely performance of the work, Motorola shall within thirty (30) days give Purchaser notice thereof and may request an extension of time to perform the work. B. In order to successfully integrate and implement this project, shipments will be made F.O.B. Destination to Purchaser facilities, local Motorola staging facilities, warehousing facilities, or any combination thereof. It is agreed that this plan is acceptable to Purchaser and that Motorola will advise prior to shipment of actual destination and that purchaser will accept shipment, and make payment as required by this Agreement. C. It is also agreed that equipment shipping dates reflected in this agreement or in Motorola proposals are estimates only, and that shipment may be made at any time prior to, or subsequent to these estimated shipping dates. Section 5 ACCEPTANCE CRITERIA Acceptance of the Products will occur upon delivery to Customer unless the Implementation Assistance Plan 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 operational purposes will constitute acceptance. Section 6 PAYMENT SCHEDULE A. Motorola agrees to sell all of the equipment and perform the services as outlined in the Scope of Work, and Purchaser agrees to buy the aforementioned equipment and services for the sum of: One Million Five Hundred Seventy Seven Thousand Three Hundred Dollars and No Cents. ($1,577,300.00), including the H -GAC administration fee. Final price may be adjusted by change orders mutually approved pursuant to Implementation Assistance Plan attached hereto as Exhibit `°C" B. Payments to Motorola shall be made according to the following milestones: 1. 20% of the total contract price is due when Purchaser executes this Agreement; 2. 70% of the total contract price will be invoiced immediately after the Equipment is shipped from Motorola's facilities; 3. 10% of the total contract price will be invoiced immediately after contract services are completed. Motorola/H-GAC/ - 3 - System Purchase Agnt. C. In the event of failure or delay by the Purchaser in providing sites, space, approvals, licenses, or any other Purchaser obligations required preceding delivery of Motorola equipment, it is agreed that Motorola, at its sole discretion, may ship equipment as planned and that the Purchaser will accept the equipment and make payment in accordance with the terms of this Agreement. Any additional costs incurred by Motorola for storage of equipment will be invoiced and paid by Purchaser. D. Payments to Motorola shall be made as follows: (i) Motorola will post the delivery date into HGACbuy.com. (ii) Motorola shall immediately forward an invoice for the payment requested in Section 6(B) above to Purchaser. (iii) Purchaser shall pay the Motorola invoice within thirty (30) calendar days of receipt. E. Payment of H-GAC's administrative fee: Motorola will pay H -GAC in accordance with the payment terms of Contract No. RA01-08. F. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by mutual agreement of the Parties, the term of this Agreement begins on the date as set forth above and continues until the date of Final Project Acceptance or expiration of the Warranty Period, whichever occurs last. Section 7 PROJECT MANAGEMENT A. If the size or complexity of the project warrants, Motorola will assign a Project Manager, who is authorized to exercise technical direction of this project. Motorola, at any time, may designate a new or alternate Project Manager with written notice to Purchaser and H -GAC. B. All matters affecting the terms of this Agreement or the administration thereof shall be referred to Motorola's cognizant Contract Administrator who shall have authority to negotiate changes in or amendments to this Agreement. Section 8 NOTICE ADDRESSES A. Motorola, Inc. 6450 Sequence Drive San Diego, Ca 92121 Attn.: Law Department B. Houston -Galveston Area Council 3555 Timmons Lane, Suite 500 Houston, Texas 77027 Attn.: Public Services Manager Motorola/H-GAC/ - 4 - System Purchase Agmt. Section 9 ORDER OF PRECEDENCE In the event of an inconsistency in this Agreement, the inconsistency shall be resolved in the following order: Exhibit A General Provisions. Exhibit B Motorola Software License. Exhibit C Motorola's Project Overview, Implementation Assistance Plan & Equipment List Exhibit D Motorola/H-GAC Radio Communications Equipment & Systems Agreement dated January 1, 2008. Section 10 DISPUTES Motorola and the Purchaser will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If those attempts fail, then the dispute will be mediated by a mutually acceptable mediator to be chosen by Motorola and the Purchaser within thirty (30) days after written 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 the Purchaser will share the cost of the mediation equally. By mutual agreement, however, Motorola and Purchaser may postpone mediation until both parties have completed some specified but limited discovery about the dispute. The parties may also agree to replace mediation with some other form of non-binding alternate dispute resolution procedure ("ADR"). Any dispute which cannot be resolved between the parties through negotiation or mediation within two (2) months of the date of the initial demand for it by one of the parties may then be submitted to a court of competent jurisdiction in Texas. Both Motorola and Purchaser consent to jurisdiction over it by such a court. The use of any ADR procedures will not be considered under the doctrine of laches, waiver or estoppel to affect adversely the rights of either party. Nothing shall prevent either of the parties from resorting to the judicial proceedings mentioned in this paragraph 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 one of the parties or others. Section 11 SEVERABILITY If any portion of this Agreement or any exhibits hereto is held to be invalid, such provision or portion of such provision shall be considered severable, and the remainder of this Agreement shall not be affected. Section 12 HEADINGS AND SECTION REFERENCES Motorola/H-GAC/ - 5 - System Purchase Agmt. The headings given to the paragraphs are inserted for convenience only and are in no way to be construed as part of this Agreement or as a limitation of the scope of the particular paragraph to which the heading refers. Section 13 FULL AGREEMENT This Agreement and its Exhibits constitute the final expression of the agreement of the parties and supersedes all previous agreements and understandings, whether written or oral, relating to the work. This Agreement may not be altered, amended, or modified except by written instrument signed by duly authorized representatives of the parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as ofAe last day and year written below. MOTOROLA, INC. Name: G� u r &l Fu.,fr s -f (Print - Block Letters) PURCHASER - CITY OF LUBBOCK (Signature) Name: Tan Martin., (Print - Block Letters) Title: A 5 e. P,., ,'ode., Title: Mayor (Print -Block Letters) -:7);,, Ce tar 6� <'-ale 5 (Print - Block Letters) Date: rye% �y 8 Date: August 12, 2008 A a Garza, City Secretary APP D AS Dale-Holton,'Chief of Police AS TOFO': ndiv , sistan i A r Motorola/H-GAC/ - 6 - System Purchase Agmt. Resolution No. 2008—RO265 EXHIBIT A GENERAL PROVISIONS MOTOROLA, INC. Section 1 STANDARDS OF WORK Motorola agrees that the performance of work described in this Agreement and pursuant to this Agreement shall be done in a professional manner and shall conform to professional standards. All packaging and packing shall be in accordance with good commercial practice. Section 2 TAXES The prices set forth in the Agreement are exclusive of any amount for Federal, State or Local excise, sales, lease, gross income service, rental, use, property, occupation or similar taxes. If any taxes are determined applicable to this transaction or Motorola is required to pay or bear the burden thereof, the Purchaser agrees to pay to Motorola the amount of such taxes and any interest or penalty thereon no later than thirty (30) days after receipt of an invoice therefor. Section 3 SHIPPING, TITLE AND RISK OF LOSS All sales and deliveries are F.O.B. Destination. Motorola reserves the right to make deliveries in installments and the Agreement shall be severable as to such installments. Title to the equipment shall pass to the Purchaser upon receipt at the F.O.B. Destination. After delivery to the F.O.B. Destination, risk of loss and damage to the articles shall be borne by the Purchaser. The above notwithstanding, title to software and any third party supplied software shall not pass upon payment of the license fee therefor or under any circumstances. Section 4 CHANGES IN THE WORK A. The Purchaser may, at any time, by written order, make changes within the general scope of the work, including but not limited to revisions of, or additions to, portions of the work, or changes in method of shipment or packaging and place of delivery. B. If any order under this Section 4 causes an increase or decrease in the cost of or time required for the performance of any part of the work under this Agreement, an equitable adjustment shall be made in the Agreement price or delivery schedule, or both, and the Agreement shall be modified in writing accordingly. Motorola is not obligated to comply with any order hereunder unless and until the parties reach agreement as to the aforementioned equitable adjustment and same is reflected as an addendum to this Agreement. System Purchase Agmt Section 5 LIMITATION OF LIABILITY Except for personal injury or death, Motorola's total liability whether for breach of contract, warranty, negligence, indemnification, strict liability in tort or otherwise, is limited to the price of the particular products or services sold hereunder with respect to which losses or damages are claimed. Purchaser's sole remedy is to request Motorola at Motorola's option to either refund the purchase price, repair or replace product(s) that are not as warranted. 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, OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. No action shall be brought for any breach of this contract more than one (1) year after the accrual of such cause of action except for money due upon an open account. Section 6 EXCUSABLE DELAYS A. Neither Motorola nor the Purchaser shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but are not be limited to, acts of God; fire; strikes; material shortages; compliance with laws or regulations; riots; acts of war; or any other conditions beyond the reasonable control of the party or parties. B. Delays as identified herein may cause an impact on the Period of Performance stated in the Agreement. Such delays will be subject to an Agreement addendum as described in Section 4. Section 7 DEFAULT A. If Motorola is wholly responsible for failure to make delivery or complete installation under the Agreement, the Purchaser may consider Motorola to be in default, unless such failure has been caused by the conditions set forth in Section 6 of these General Provisions. B. The Purchaser shall give Motorola written notice of such default and Motorola shall have thirty (30) days to provide a plan of action to cure the default. If Motorola fails to cure the default, the Purchaser may terminate any unfulfilled portion of this Agreement or complete the system through a third party. In the event the Purchaser completes the system through a third party, Motorola shall be responsible for an amount in excess of the Agreement price, not to exceed the value of the terminated portion, incurred by the Purchaser in completing the system to a capability not exceeding that specified in the Agreement. IN THE EVENT OF DEFAULT, MOTOROLA SHALL NOT BE LIABLE FOR ANY INCIDENTAL, LIQUIDATED, SPECIAL OR CONSEQUENTIAL DAMAGES. -2- System Purchase Agmt Section S DELAYS BY PURCHASER If the Purchaser is responsible for delays which cause the installation and acceptance of this system, to be rescheduled beyond the Period of Performance set forth in the Agreement, the Purchaser shall be liable for actual costs incurred by Motorola resulting from these delays. Such charges may include, but are not limited to, additional Engineering; rescheduling charges; storage charges; maintenance charges; and transportation charges. The Purchaser shall have the option to attempt to minimize actual costs incurred by storing and transporting equipment at its own expense. Section 9 LICENSES/AUTHORIZATION The Purchaser is solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission and for complying with FCC rules. Neither Motorola nor any of its employees is an agent or representative of the Purchaser in FCC matters or otherwise. Motorola, however, may assist in the preparation of the license application at no charge to the Purchaser. Purchaser acknowledges that project implementation is predicated on receipt of proper FCC licensing. Section 10 INDEMNIFICATION Motorola agrees to and hereby indemnifies and saves Purchaser and/or H -GAC harmless from all liabilities, judgments, costs, damages and expenses which may accrue against, be charged to, or recovered from the Purchaser and/or H -GAC by reason of or on account of damage to the tangible property of the Purchaser or the property of, injury to, or death of any person, to the extent and in the proportion that such damage or injury is caused by Motorola's negligent acts or omissions or that of its employees, subcontractors, or agents while on the premises of the Purchaser during the delivery and installation of the communications equipment. IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. Section 11 EQUIPMENT COMPATIBILITY; PRODUCT SUPPORT Motorola agrees that the equipment, will perform in accordance with the specifications and representations stated in Motorola's Proposal and Equipment List included in this Agreement. This Agreement does not extend to the performance of the equipment as a part of a larger system generally nor specifically to equipment in combination with products, elements or components not supplied by Motorola. Motorola will use commercially reasonable efforts to provide replacement parts for Motorola manufactured subscriber equipment for five (5) years and for Motorola manufactured fixed infrastructure equipment for seven (7) years, both from the date of last manufacture. Motorola reserves the right to supply either assemblies or piece parts. -3- System Purchase Agmt Section 12 WARRANTIES A. WARRANTY PERIOD. The Equipment and Motorola Software is warranted for a period of one (1) year after Installation ("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. Purchaser 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. 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, maintenance, installation, alteration, modification, or adjustment not provided by Motorola pursuant to this Communications System Agreement. d) Breakage of or damage to antennas unless caused directly by defects in material or workmanship. e) Equipment that has been subjected to unauthorized 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 that has had the serial number removed or made illegible. g) Batteries (because they carry their own separate limited warranty). h) Freight costs to the repair depot. -4- System Purchase Agmt i) Equipment that has been subject to illegal or unauthorized alteration of the software/firmware in the Equipment. j) Scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment. k) Software. 1) Normal or 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 B. 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 are 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 13 CONFIDENTIAL INFORMATION Motorola proprietary computer programs will be released in accordance with the Software License provisions set forth elsewhere, if applicable. All other material and information of confidential nature marked Motorola PROPRIETARY and CONFIDENTIAL will be released as necessary under the following conditions: (1) Purchaser shall exercise reasonable and prudent measures to keep these items in confidence. (2) Purchaser shall not disclose these items to third parties without prior written permission, unless Motorola makes them public or Purchaser learns them rightfully from sources independent of Motorola, or it is required by law to be disclosed. -5- System Purchase Agmt (3) Motorola, where necessary, retains the right to prescribe specific security measures for the Purchaser to follow to maintain the confidentiality. In the event disclosure of such information is necessary, a separate Non -Disclosure Agreement will be required. Section 14 SOFTWARE LICENSE A. Motorola Software. Any Motorola Software furnished will be licensed to Purchaser solely according to the terms and restrictions of the Software License Agreement attached as Exhibit B. Purchaser hereby accepts all of the terms and restrictions of the Software License Agreement. B. 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 15 PATENT INDEMNIFICATION Motorola will defend at its expense any suit brought against Customer to the extent it is based on a third party claim alleging that the Equipment manufactured by Motorola or the Motorola Software infringes upon the third party's United States patent or copyright ("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: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. 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 the 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 Motorola Software. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon the combination of the Equipment or Motorola Software with any software, apparatus or device not furnished by Motorola; 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; any Equipment that is not Motorola's design or formula; a modification of the Motorola Software by a party other than Motorola; or the failure by Customer to install an enhancement release to the Motorola Software that is 6- System Purchase Agmt 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, Motorola Software, or any of their parts. Section 16 DISCLAIMER OF PATENT LICENSE Nothing contained in this Agreement shall be deemed to grant, either directly or by implication, estoppel, or otherwise, any license under any patents or patent applications of Motorola, except that Purchaser shall have the normal non-exclusive royalty -free license to use that is implied, or otherwise arises by operation of law, in the sale of a product. Section 17 WAIVER Failure or delay on the part of Motorola or Purchaser to exercise right or power hereunder shall not operate as a waiver thereof. Section 18 GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Section 19 ASSIGNABILITY The Agreement may not be assigned by any party hereto other than Motorola may assign this order to one of its Subsidiaries as in the normal course of business. -7- system Purchase Agmt Resolution No. 2008—RO265 Exhibit B Software License Agreement This Exhibit B, Software License Agreement ("Agreement") is between Motorola, Inc., ("Motorola"), and CITY OF LcCB�oCLfi 7ZX,+5 ("Licensee"). For good and valuable consideration, the parties agree as follows: Section 1 DEFINITIONS 1.1 "Designated Products" means products provided by Motorola to Licensee with which or for which the Software and Documentation is licensed for use. 1.2 "Documentation" means product and software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which such information is provided). 1.3 "Open Source Software" means software with either freely obtainable source code, license for modification, or permission for free distribution. 1.4 "Open Source Software License" means the terms or conditions under which the Open Source Software is licensed. 1.5 "Primary Agreement" means the agreement to which this exhibit is attached. 1.6 "Security Vulnerability" means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach such that data is compromised, manipulated or stolen or the system damaged. 1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de - compilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement. Section 2 SCOPE Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary Software or products containing embedded or pre -loaded proprietary Software, or both. This Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee's use of the Software and Documentation. Section 3 GRANT OF LICENSE 3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants to Licensee a personal, limited, non -transferable (except as permitted in Section 7) and non- exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code. System Purchase Agmt 3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the terms and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine whether any Open Source Software is provided under this Agreement; (ii) identify the Open Source Software and provide Licensee a copy of the applicable Open Source Software License (or specify where that license may be found); and, (iii) provide Licensee a copy of the Open Source Software source code, without charge, if it is publicly available (although distribution fees may be applicable). Section 4 LIMITATIONS ON USE 4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting the general nature of these restrictions, Licensee will not make the Software available for use by third parties on a "time sharing," "application service provider," or "service bureau" basis or for any other similar commercial rental or sharing arrangement. 4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer, disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant any sublicense or other rights in the Software or Documentation to any third party, or take any action that would cause the Software or Documentation to be placed in the public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, back-up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software. 4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other device. Licensee may temporarily transfer Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary transfer is discontinued. 4.4. When using Motorola's Radio Service Software ("RSS"), Licensee must purchase a separate license for each location at which Licensee uses RSS. Licensee's use of RSS at a licensed location does not entitle Licensee to use or access RSS remotely. Licensee may make one copy of RSS for each licensed location. Licensee shall provide Motorola with a list of all locations at which Licensee uses or intends to use RSS upon Motorola's request. 4.5. Licensee will maintain, during the term of this Agreement and for a period of two years thereafter, accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an independent third party ("Auditor") may inspect Licensee's premises, books and records, upon reasonable prior notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any 2- System Purchase Agmt information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this Agreement. Section 5 OWNERSHIP AND TITLE Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Software -and Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de -compilations, disassemblies, emulations to or derivative works from the Software or Documentation, whether made by Motorola or another party, or any improvements that result from Motorola's processes or, provision of information services). No rights are granted to Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing the Software, Designated Products, Documentation or related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights. Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY 6.1. The commencement date and the term of the Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the "Warranty Period"). If Licensee is not in breach of any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted, error -free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee's particular requirements. Motorola makes no representations or warranties with respect to any third party software included in the Software. 6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct significant, demonstrable program or documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola's option, Motorola will replace the defective Software with functionally -equivalent Software, license to Licensee substitute Software which will accomplish the same objective, or terminate the license and refund the Licensee's paid license fee. 6.3. Warranty claims are described in the Primary Agreement. 6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other warranties (express or implied, oral or written) with respect to the Software or Documentation, including, without limitation, any and all implied warranties of condition, title, non - infringement, merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola disclaims any warranty to any person other than Licensee with respect to the Software or Documentation. -3- System Purchase Agmt Section 7 TRANSFERS Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee paying all applicable license fees and agreeing to be bound by this Agreement. If the Designated Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products to a third party, Licensee may assign its right to use the Software (other than RSS and Motorola's FLASHpor* software) which is embedded in or furnished for use with the radio products and the related Documentation; provided that Licensee transfers all copies of the Software and Documentation to the transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon request, obligating the transferee to be bound by this Agreement. Section 8 TERM AND TERMINATION 8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in which case this Agreement and Licensee`s right to use the Software and Documentation may be terminated immediately upon notice by Motorola. 8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer in use by Licensee. 8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non -embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Section 9 UNITED STATES GOVERNMENT LICENSING PROVISIONS This Section applies if Licensee is the United States Government or a United States Government agency. Licensee's use, duplication or disclosure of the Software and Documentation under Motorola's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software -Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless they are being provided to the Department of Defense. If the Software and Documentation are being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice, or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement transaction. Section 10 CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary Agreement concerning Confidential Information apply. - 4 - System Purchase Agmt Section 11 LIMITATION OF LIABILITY The Limitation of Liability provision is described in the Primary Agreement. Section 12 NOTICES Notices are described in the Primary Agreement. Section 13 GENERAL 13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software. 13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Motorola and the appropriate governmental authority of the United States, in any form export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval. Violation of this provision is a material breach of this Agreement. 13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or consent of Licensee. 13.4. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a sovereign government entity. The terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the Uniform Computer Information Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA") becomes applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA. 13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and Licensee. No third party has the right to make any claim or assert any right under this Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing, any licensor or supplier of third party software included in the Software will be a direct and intended third party beneficiary of this Agreement. 13.6. SURVIVAL. Sections 4, 5, 6.3, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement. 13.7. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the Primary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other subject matter. 13.8 SECURITY. Motorola's Information Assurance Policy addresses the issue of security. Motorola uses reasonable means in the design and writing of its own Software and the acquisition of third party Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security -5- System Purchase Agmt Vulnerabilities, if a Security Vulnerability is discovered, Motorola will take the steps set forth in Section 6 of this Agreement. - 6 - System Purchase Agmt Resolution No. 2008—RO265 Exhibit C Technical and Implementation Documents and Price List -7- System Purchase Agmt EXHIBIT "C" City Of Lubbock DigitalPatroller DP -2 Mobile Digital Video System Motorola is proposing a "Mobile Digital Video System" solution for the City Of Lubbock for use by your Police Department. From routine traffic stops to events management and emergency response, there is no substitute for digital video optimized for harsh mobile environments. Digital Patroller (DP -2) was designed especially for law enforcement and is rugged enough to run continuously inside a moving police vehicle. The mobile digital video recorder automatically records and stores video and audio to a rugged hard drive. Once back at headquarters, video is stored and catalogued in a digital video library where it can be accessed and retrieved. City Of Lubbock Mobile Digital Video System (DP -2) System Description 816/2008 Project Overview Having thorough, well catalogued audio and video records discourages spurious accusations against the officer and frivolous lawsuits against your City, helping protect its reputation and maintain trust in the community. Suspects faced with video evidence are less likely to dispute charges against them in court. Your ability to produce such evidence may mean the difference between an officer having to sit and court and testify, and an officer able to stay on patrol. Your evidence is only as good as your chain of custody. DigitalPatroller DP -2's security features makes evidence tamper resistant — both in the vehicles where the hard drives are locked to prevent removal, and on the server, where access to video data is controlled, and all actions are automatically logged to provide proper audit trails. Within the department, video records allow more frequent and effective reviews of officers by more senior members of your Police Department, this acting as a very valuable training tool. Data Storage and Retrieval This is where analog and digital video mobile video capture systems part company. Digital systems give you near instant access to what ever type of information you need to receive, in a format that is durable, secure and tamper resistant. Video data can be viewed, searched for and retrieved using a number of user defined criteria, such as GPS location, radar speed, officer ID, incident ID, stop types and more. DigitalPatroller DP -2's data management system performs numerous functions and allow for department specific configurable settings. Easy To Use Recording automatically activates when triggered by an event such as the light bar being turned on, exceeding a speed threshold, opening the car door, or a crash. Because the system is on continuously, it can even be configured to retain video and audio from a few minutes before the triggering event. DigitalPatroller DP -2 requires no interaction, leaving your officer to concentrate on his or her job. City Of Lubbock Mobile Digital Video System (DP -2) System Description 8/6/2008 Built Tough There are no dress rehearsals in police work, and every frame of video is crucial. DigitalPatroller DP -2 cameras are built to capture accurate, high resolution images, even amid temperature and voltage fluctuations and vibrations inside a police cruiser. Cameras DigitalPatroller DP -2 cameras are built to capture accurate, high resolution images. Its technology zeros in then digitally expands pixel resolution to produce razor sharp images, so detail is not lost. Main Camera • LED for "on" verification from outside the car. • 22X optical zoom • 470,000 pixels • 480 TV lines of resolution • Built in heater/operating temperature -20c to 50c Rear Passenger Camera • Built-in IR array with 6 LEDs for capturing video in virtually total darkness. • 12 ft. range • 420 TV lines of resolution Display Unit • Ruggedized display units are optionally available and allows the system to be operated without an in car laptop or MDC unit. The LCD monitor can be mounted overhead, on the center console, or in any other convenient location. MDC -Laptop Interface • DP -2 client software offers a user-friendly and intuitive interface which is compatible with most laptops and MDCs. • Robust Functionality • One touch camera functions, video controls and file transfer operations • Easy playback and customized classifcation City Of Lubbock Mobile Digital Video System (DP -2) System Description 8/6/2008 3 4 Wireless Microphone • Audio evidence is every bit as crucial as video evidence. DigitalPatroller DP -2's wireless microphone is built to synchronize with the DigitalPatroller DP -2 MDVR, and is fully automated for maximum performance with minimal officer interaction. • Compact size • Rugged and lightweight • Built-in microphone — no wires • Any DP -2 wireless microphone can sync with any mobile receiver • Automatically triggers the DigitalPatroller DP -2 DVR into "record" mode • Auto -talk feature with extended transmit range • Fast battery recharge time Wireless Video Upload Capabilities DigitalPatroller DP -2 in car systems allow for the direct interface to mobile wireless bridges that transmit to LAN connected wireless access "hot spots." Optimal video uploads to the server and overall system throughput is best achieved by direct wired/tethered vehicle docking points. However, in locations where a "direct wire" to your Enterprise LAN & server is not practical, wireless video uploads are supported. Careful selection of wireless equipment and technology is an important design consideration. City Of Lubbock Mobile Digital Video System (DP -2) System Description 8/6/2008 In -Car Data Capture System SIP me�oxe '"'t MOTOROLA aonCa.aM. w�w.nnriep.Mauwn�p..y..wna � WYW K tLM Implementation & Assistance Plan • Back -End Servers, Video Storage Units and Uninterruptible Power Supply (UPS) for the Mobile Digital Video System (DP -2) to be provided by the City Of Lubbock. Motorola assumes that all electrical circuits will be backed up on UPS and Generator. Motorola has not included any UPS or Generators as part of this proposal. • Motorola has included the cost to provide the City Of Lubbock equipment to equip 275- Patrol Vehicles with front mounted video camera, rear mounted video camera, digital video recorder, wireless upload bridge, tethered, upload cabling, MDT interface software, mounts, accessories, spare equipment, etc. A complete listing of all equipment that will be provided may be found later in this document. • Motorola will provide implementation assistance to the City's IT Department in the form of loading and optimization of the Digital Video Server Software. • Motorola will provide an on-site technologist for period not to exceed 20 work days to assist the City's Radio Shop Personnel with the installation of the DigitalPatroller DP - 2 mobile equipment. • Motorola will provide an on-site technologist to assist with the initial set-up of the DigitalPatroller DP -2 Data Management System. City Of Lubbock Mobile Digital Video System (DP -2) System Description 8/6/2008 0 5 • Motorola will provide an on-site technologist to assist with the implementation of the wireless video upload component of the system. • Motorola will provide an on-site technologist that will facilitate the training of IT personnel on the use and operation of the server software package. • Motorola will provide an on-site instructor to prepare and deliver a comprehensive "train the trainer" training program. Assumptions & Dependencies • It is understood that the City Of Lubbock will be responsible for providing, installing, optimizing the server operating system and for the on going maintenance of the back- end server equipment. Rack mounts, cabinetry, bridges, switches, video storage drives and all associated wiring and installation of the server and peripheral equipment will be provided by and installed by the City. Motorola will provide the City with the DP2 system server software, data transfer software and data management software required for the operation and management of the system. • It is understood that the City Of Lubbock's "Radio Shop" and its personnel will be responsible for the installation of all DigitalPatroller DP -2 digital mobile video equipment that is being provided by Motorola to equip 275- police vehicles. This includes cameras, mounts, MDVRs, siren interface modules, crash sensors, marker switches, wireless microphones, wireless bridges, wireless access points and wireless point to point links. 6 City Of Lubbock Mobile Digital Video System (DP -2) System Description 8!6/2008 Proposed Equipment List DititalPatroller DP -2 Base System 275 ea. DigitalPatroller DP -2 Standard Unit Package 275 ea. DP View Deluxe Mobile Software Suite 275 ea. DP -2 MDC Application Client Software 275 ea. DP -2 Storage Blade 2X 100 GB HDD 275 ea. 22X High Resolution Camera 275 ea. IR Array Rear Passenger Camera 275 ea. Camera Visor Mounts 275 ea. Digital I/O Cable for Marker Interface 275 ea. Siren Interface Module 12 ea. Dual -Port Wired Dock 50 ea. Spare Storage Blade (2X100 GB) 50 ea. Spare DataTalker Wireless Microphone 50 ea. Wireless Transceiver Kits 1 Lot Implementation Assistance Services 1 Lot MSS Shop Support City Of Lubbock Mobile Digital Video System (DP -2) System Description 8/6/2008 7 Wireless Upload Svstem 1 ea. 24 Port Wireless Switch 1 ea. RF Management Software Package 2 ea. Point To Point — PTP Wireless Links 10 ea. Dual -Band Outdoor Access Points 275 ea. In -Vehicle Wireless Client Bridges w/Antenna 275 ea. MSS 1248 Conversion Kits 1 Lot MSS Shop Technologist 8 City Of Lubbock Mobile Digital Video System (DP -2) System Description 816/2008 Benefiting from Motorola's Experience... As we enter a new era of information and communication needs, Motorola is addressing critical demands by providing public safety customers with innovative solutions that include software, hardware, and services to improve operational performance. Our customers gain the benefit of our experience in many ways, such as: ♦ Peace of Mind - For over 70 years, Motorola has been a trusted source for mission -critical public safety communications systems and is a leading provider of two-way radio products, systems and services as well as large integrated communication and information technology systems for business and government applications. ♦ Presence - Motorola's sales force, combined with an extensive dealer and service center network, provides Motorola with over 7,000 points -of -presence worldwide, with solutions that cover a variety of commercial, government, and industrial communication needs. ♦ Innovative Solutions - Motorola provides more than just enabling technology. Motorola works with customers from concept to installation while continuously upgrading solutions to bring rapid mobile intelligence to customer operations. Motorola is committed to helping customers navigate the rapidly changing landscape to make their organizations the best that they can be, now and in the future. ♦ Established Resources and Processes - From our Customer Center for Solutions Integration (CCSi) and System Support Center (SSC), to our processes for site readiness, testing, and problem escalation, Motorola has made investments in facilities, people, and services to support project implementation and maintenance. ♦ Quality - Dedication to quality is a way of life at Motorola. The company's ongoing process of continuous improvement reaches out for change, refinement, and even revolution in pursuit of quality excellence as recognized through the Malcolm Baldrige Award in manufacturing for CGISS. Motorola was a recipient of the Baldrige Award in the award's inaugural year of 1988 and was again honored in November of 2002 by President George W. Bush and Commerce Secretary Don Evans. The Baldrige Award is the United State's premier award for performance excellence and quality achievement. Earning the Malcolm Baldrige National Quality Award acknowledges Motorola's CGISS' (Commercial, Government, and Industrial Solutions Sector) dedication to rigorous quality related processes and improvements over time. Motorola has been, and continues to be, the leading manufacturer and supplier of communications equipment and systems, both domestically and worldwide. City Of Lubbock Mobile Digital Video System (DP -2) System Description 8/6/2008 9 Committing to Your Success... As a trusted solution provider for numerous cities and counties in a public safety role for many years, Motorola is prepared to assist the City of Lubbock with its current communication dispatch needs. Supported by a Motorola implementation team dedicated to the success of the project and Motorola's responsive local services, the City of Lubbock can be assured of the timely implementation of its system. Motorola is committed to your success by: ♦ Delivering total, integrated communications solutions that empower your organization. ♦ Drawing on experience, skills, and an extensive portfolio of technologies, services, and capabilities to complete your project. Meeting our commitments so that you can be confident we will provide the right solution for your organization. Your community is depending on your ability to get the right information to the right people, in the right place, at the right time. Motorola is committed to working with the City of Lubbock to make that happen. Motorola looks forward to continuing our relationship with the City and continuing to be a positive presence in the community for generations to come. 10 City Of Lubbock Mobile Digital Video System (DP -2) System Description 8/6/2008 Lubbock Police Department rev. 8/6108 $ 250.00 Prepared By., DP2 Digital - In -Car Video System 2,700.00 TT05092AA BLADE 2X100GB (SPARE) $ Stu Hacken $ 779.00 50 $ 38,950.00 DDN9406 DATATALKER MIC (SPARE) $ Territory Mgr. BASE SYSTEM AS SPECIFIED $ 6,750.00 DDN9405 TRANS/RCVR KIT (FTOs) Motorola, Inc. Model Description DNUP HGAC Q HGAC EXT TT1983 DP2 STD BASE UNIT $ 3,705.00 $ 3,335.00 275 $ 917,125.00 TT05109AA DP VIEW DELUXE SW SUITE $ 330.00 $ 297.00 275 $ 81,675.00 TT05108AA MDT APPLICATION S/W $ 165.00 $ 149.00 275 $ 40,975.00 TT05092AA BLADE 2X 10OGB HDD $ 865.00 $ 779.00 275 $ 214,225.00 TT05094AA 22X FRONT CAMERA $ 745.00 $ 670.00 275 $ 184,250.00 TT05096AA REAR CAMERA $ 135.00 $ 122.00 275 $ 33,550.00 TT05099AA CAM VISOR MT (CROWN VIC) $ 60.00 $ 54.00 275 $ 14,850.00 TT05116AA DIGITAL 1/0 CABLE (MARKER) $ 50.00 $ 45.00 275 $ 12,375.00 TT05206AA SIREN INTERFACE MODULE $ 90.00 $ 81.00 275 $ 22,275.00 $ 6,145.00 $ 5,532.00 275 $ 1,521,300.00 SPECIFIED ACCESSORIE DDN9434 2 PORT WIRED DOCK $ 250.00 $ 225.00 12 $ 2,700.00 TT05092AA BLADE 2X100GB (SPARE) $ 865.00 $ 779.00 50 $ 38,950.00 DDN9406 DATATALKER MIC (SPARE) $ 150.00 $ 135.00 50 $ 6,750.00 DDN9405 TRANS/RCVR KIT (FTOs) $ 315.00 $ 284.00 50 $ 14,200.00 $ 1,580.00 $ 1,423.00 $ 62,600.00 SERVICES DDN9433 PROJECT MGMT DAY SVC $ 1,350.00 $ 1,215.00 20 $ 24,300.00 For DP2 MSS MSS Assistance $ 875.00 $ 875.00 20 $ 17,500.00 $ 41,800.00 SYSTEM TOTAL $ 1,577,300.00 Motorola MY Include The Following Wireless Upload Package At NO ADDITIONAL CHARGE, As An Added "System Discount" to the City Of Lubbock. NOTE. Final Wireless Design d Equipment Configuration will be determined following Detail Design Review and by mutual Agreement by the City Of Lubbock Staff and Motorola buat anria Resolution No. 2008—RO265 Exhibit D Motorola/H-GAC Radio Communications Equipment $ Systems Agreement I - System Purchase Agmt of 10 RADIO COMMUNICATION/EMERGENCY RESPONSE & MOBILE INTEROPERABLE EQUIPMENT A CONTRACT BETWEEN HOUSTON-GALVESTON AREA COUNCIL Houston, Texas U R7 MOTOROLA, INC. Farmers Branch, Texas This Contract is made and entered into by the Houston -Galveston Area Council of Governments, hereinafter referred to as H -GAC, having its principal place of business at 3555 Tinurtons Lane, Suite 120, Houston, Texas 77027, AND Motorola, Inc. hereinafter referred to as the CONTRACTOR, having its principal place of business at 1507 LBJ Freeway, Suite 700, Fanners Branch, Texas 75234. WITNESSETH WHEREAS: The H -GAC enters into this Contract as Agent for participating governmental agencies, hereinafter referred to as END USER, for the purchase of Radio Communication/Emergency Response & Mobile Interoperable Equipment offered by the CONTRACTOR; and WHEREAS: The CONTRACTOR offers to sell Radio Communication/Emergency Response & Mobile Interoperable Equipment through the H -GAC Contract to End Users; and WHEREAS: The Contract shall be in effect for a period beginning January 1, 2008 through December 31, 2009, subject to extension upon mutual agreement of the CONTRACTOR and H -GAC; and now THEREFORE: H -GAC and the CONTRACTOR do hereby agree as follows: • GENERAL PROVISION ARTICLES I - 23 - ARTICLE 1: IDENTIFICATION OF CONTRACT DOCUMENTS The Contract shall be in effect for Radio Communicatlon/Emergency Response & Mobile Interoperable Equipment listed in Proposal Specifications numbered RA01-08, including any relevant suffixes, and shall consist of the documents identified below in order of precedence: 1. The text of this Contract form, including Attachment A, and Attachment B (Motorola Standard Equipment Warranty) 2. CONTRACTOR'S Response to Proposal No.: RA01-08 3. Proposal Specifications No.: RAOI-08 4. System Purchase Agreements 5. Motorola Software License The terms and conditions, specifications, manufacture, delivery, warranty, training and service for H -GAC and the END USER shall be fulfilled in compliance with this Contract including, but not limited to Proposal Specifications, Terms and Conditions, and CONTRACTOR'S response opened October 4, 2007 unless specifically changed within the text of this Contract Form. ARTICLE Z: LEGAL AUTHORITY The CONTRACTOR and H -GAC wan -ants and assures one another that they have adequate legal counsel and authority to enter into this Contract. The governing bodies, where applicable, have authorized the signatory officials to enter into this Contract and bind both parties to the terms of this Contract and any subsequent amendments thereto. ARTICLE 3: APPLICABLE LAWS Both parties agree to conduct all activities under this Contract in accordance with all applicable rules, regulations, directives, issuances and ordinances, and laws in effect or promulgated during the term of this Contract. The CONTRACTOR agrees to conduct all activities under this Contract in accordance with all applicable rules, regulations, directives, standards, ordinances and laws in effect or promulgated during the term of this Contract G:IC0NTRACT1RA01-08.9Wctoro1al RADIO COMMIJATICATIONIEMERGENCY RESPONSE &MOBILE INTEROPERABLE EnUIPMFNf sig Initial: RADIO COMMUNICATION/EMERGENCY RESPONSE & MOBILE INTEROPERABLE EQUIPMENT Pane 2 of 10 ARTICLE 4: INDEPENDENT CONTRACTOR The execution of this Contract and the rendering of services prescribed by this Contract do not change the independent status of H GAC or the CONTRACTOR No provision of this Contract or act of H -GAC in performance of the Contract shall be construed as makingthe CONTRACTOR the agent, servant or employee of H -GAC, the State of Teas or the United States Government. Employees ofthe Conuactor are subject to the exclusive control and supervision of the Contractor. The Contractor is solely responsible for employee payrolls and claims arising therefrom. CONTRACTOR shall notify H -GAC of any law suits filed against it which involves products sold pursuant to this Contract, or which, if successfiti, would adversely affect its financial condition. A law suit which includes a specific demand for an amount in excess of $250,000 which would not be covered by insurance shall automatically be considered a law suit which, if successful, would adversely affect the financial condition of the sued party. ARTICLE 5: IMM NOT RESTRICTIVE The titles assigned to the various articles of this Contract are for convenience only and are generally descriptive of the matters following. Titles shall not be considered restrictive of the subject matter of any section, or part of this Contract. ARTICLE 6: SUBCONTRACTS The Contractor agrees not to subcontract, assign, transfer, convey, sublet or otherwise dispose of this Agreement or any right, title, obligation or interest it may have therein to any third party without prior written approval of H -GAC. H -GAC shall not unreasonably delay or withhold acceptance of a proposed assignment of a proposed subcontractor. The Contractor acknowledges that H -GAC is not liable to any subcontractor's of the Contractor. The Contractor shall ensure that the performance rendered under all subcontracts shall result in compliance with all the terns and provisions of this Contract as if the performance rendered was rendered by the Contractor. MEF s_�h . r1 �i� ; �1 Y •� r r 1 The CONTRACTOR shall maintain during the count of the work, complete and accurate records of all of the CONTRACTOR'S costs and documentation of items which are chargeable to END USER under this Contract. H -GAC, through its staff or designated public accounting firm, the State of Texas, and the United States Goverment shall have the right at any reasonable time to inspect copyand audit those records on or off the premises of the CONTRACTOR Failure to provide access to records may be cause for termination of the Contract. CONTRACTOR agrees that its books and records, as they pertain to work done or items supplied present to the purchase Otderor Contract shall at all reasonable hours be subject to audit and inspection at the CONTRACTOR'S facility by H -GAC and/or END USER This audit shall be limited to the verification of invoice quantities to shipments and shipment receipts. Except as otherwise provided by law, nothing contained herein shall authorize H -GAC and/or END USER to audit particular books or CONTRACTOR insofar as such particular books or records contain confidential information regarding product costs. The CONTRACTOR shall maintain all records pertinent to this Contract for a period of not less than five (5) calendaryears from the date of acceptance of the foal contract closeout and until any outstanding litigation, audit or claim has been resolved. The right of access to records is not limited to the required retention period, but shall last as long as the records aro retained. The CONTRACTOR fu Cher agrees to include in all subcontracts under this Contract, a provision to the effect that the subcontractor agrees that H-GAC'S duly authorized representatives, shall, until the expiration of five (S) calendar years after final payrmt under the subcontract or until all audit findings have been resolved, have access to and the right to examine and copy any directly pertinent books, documents, papers, invoices and records of such subcontractor involving transactions relating to the subcontract. ARTICLE 8: CHANGES AND AMENDMENTS Any alterations, additions, or deletions to the terns of this Contract which are required by changes in federal law or regulations are automatically incorporated into this Contract without written amendment hereto, and shall become effective on the date designated by such law or regulation; provided if the Contractor may not legally comply with such change, the Contractor may terminate its participation herein as authorized by Article IS. H -GAC may, from time to time, require changes in the scope of the services of the Contractor to be performed hereunder. Such changes that are mutually agreed upon by and between H -GAC and the Contractor in writing shall be incorporated into this Contract. ARTICLE 9: I FS G ICONTRACTVWI.08.81Motoroia% RADIO COMMUNICATION/EMERGENCY RESPONSE & MOBILE INTEROPERABLE EQUIPMENT Sig Initial: RADIO COMMUNICATIONIEMERGENCY RESPONSE & MOBILE INTEROPERABLE EQUIPMENT Page 3 of 10 Any and all disputes concerning questions of fact or of law arising under this Contract which are not disposed of by agnxrnent shall be decided by the Executive Director of H -GAC or his designee, who shall reduce his decision to writing and provide notice thereof to the Contractor. The decision of the Executive Director or his designee shall be final and conclusive unless, within thirty (30) days from the date of receipt ofsuch notice, the Contractor requests a rehearing from the Executive Director of H -GAC. In connection with any rehearing under this Article, the Contractor shall be afforded an opportunity to be heard and offer evidence in support of its position. The decision ofthe Executive Director aRexany such rehearing shall be final and conclusive. The Contractor may, if it elects to do so, appeal the final and conclusive decision of the Executive Director to a court of competent jurisdiction. Pending final decision of adispute hereunder, the Contractor shall proceed diligently with the performance of the Contract and in accordance with H-GAC'S final decision. ARTICLE 10: SEVERABILITY All parties agree that should any provision ofthis Contract be determined to be invalid or unenforceable; such ddmmhm6on shall not affect any other term of this Contract, which shall continue in full force and effect ARTICLE 11: FORCE MAJEURE To the extent that either party to this Agreement shall be wholly or partially prevented from the performance of any obligation or duty placed on such party by reason of or through strikes, stoppage of labor, riot, fire, flood, acts ofwar, insurnetion, accident, order ofany court, act of God, or specific cause reasonably beyond the party's control and not attributable to its neglect or nonfeasance, in such event, the time for the performance ofsuch obligation or duty shall be suspended until such disability to perform is removed. Determination of force majeure shall rest solely with H -GAC. ARTICLE 12: NON DISCRIMINATION AND EQUAL OPPORTUNITY The Contractor agrees to comply with all federal statutes relating to nondiscrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; (b) Title IX ofthe Education Amendments of 1972, as amended (20 U.S.C. §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis ofsex; (c) Section 504 ofthe Rehabilitation Act of 1973, as amended (29 U.S.C. f 794), which prohibits discrimination on the basis of handicaps and the Americans with Disabilities Act of 1990; (d) the Age Discrimination Act of 1974, as amended (42 U.S.C. §§ 6101.61071 which prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, mlatingto nondiscrimination on the basis ofdrug abuse; (i) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91- 616), as amended, relating to the nondiscrimination on the basis of alcohol abuse or alcoholism; (g) if 523 and 527 ofthe Public Health Service Act of 1912 (42 U.S.C. 290 dd-3 and 290 cc -31 as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing (1) any other nondiscrimination provisions in any specific statutes) applicable to any Federal funding for this Contract; and (7 the requirements of any other nondiscrimination statutes) which may apply to this Contract. ARTICLE 13: CRIMINAL PROVISIONS AND SANCTIONS The CONTRACTOR agrees that it will perform the Contract in conformance with safeguards against Saud and abuse as set forth by the H -GAC, the State ofTexas, and the acts and regulations ofthe fimding entity. The CONTRACTOR agrees to promptly notify H -GAC of suspected fraud, abuse or other criminal activity through the filing of a written report within twenty-four (24) hours of knowledge thereof Contractor shall notify H -GAC of any accident or incident requiring medical attention arising from its activities under this Contract within twenty-four(24) hours of such occurrence. Theft or willful damage to propertyon loan to the Contractor from H -GAC, ifany, shall be reported to local law enforcement agencies and H -GAC within two (2) hours of discovery of any such act. The CONTRACTOR firrdmer agrees to cooperate fully with H -GAC, local law enforcement agencies, the State of Texas, the Federal Bureau of investigation and any other duly authorized investigative unit in carrying out a full investigation of all such incidents. ARTICLE 14: PURCHASE ORDERS ISSUED PURSUANT TO CONTRACTS Through Interlocdl Contracts, H -GAC offers governmental agencies and qualifying non-profit corporations the opportunityto participate in the H -GAC Cooperative Purchasing Program. Therefore, purchase orders may be executed by END USERS throughout the State. In addition, through Interstate Interlocal Contracts the Program is now made available for possible participation by END USERS beyond Texas. ARTICLE 15: SCOPE OF SERVICES The services to be performed by CONTRACTOR in the State of Texas are outlined within this Contract, Proposal specifications, 0:1CONTRACT1RA01-08.9%Mowrola\ RADIO COMMUNICATION/EMERGENCY RESPONSE fit MOBILE INTEROPER"l EQUIPMENT Sig Initial: RADIO COMMI3DIICATION/EIVIERGENCY RESPONSE & MOBILE INTEROPERABLE EQUIPMENT Parte 4 of 10 any Attachment, and Proposal Response. Any Change Order shall be stated in complete detail and submitted by END USER to CONTRACTOR and copied to H -GAC. No verbal Change Order shall be accepted by CONTRACTOR from any END USER. ARTICLE 16: THE COMPLETE AGRE This Contract consists of the Contract text stated herein, the Proposal Specifications, including but not limited to Terms and Conditions, proposelces/proposaler's response, including but not limited to, prices and options offered all of which are incorporated within the ecetrack and constitute the complete agreement between the parties hereto. This Contract supersedes any and all oral or written agreements between the parties relating to matters herein. Except as otherwise provided herein, this Contract cannot be modified without the written consent of both parties. ARTICLE 17• LIMITATION_ONLLIB The CONTRACTOR understands and agrees that it shall be liable to repay and shall repay upon demand to END USER, any amounts determined by H -GAC, its independent auditors, or any agency of State or Federal government to have been paid in violation of the terms of this Contract. Excepifor personal Injury or death, Motorola's total liability whetherfor breach ofcontract, warranty, negligence, strict liability in tort or otherwise, is limited to the price of the particularproduets sold hereunder with respect to which either refund the purchase price repair or replace product(s) that are not as warranted. 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, or consequential damages to the full extent such may be disclaimed by law. ARTICLE IS: TERMINATION PROCEDURES CONTRACTOR acknowledges that this Contract may be terminated under the following circumstances: A. Convenience H -GAC may terminate this Contract in whole or in part without cause at any time by written notice by certified mail to CONTRACTOR whenever for any reason H -GAC determines that such termination is in the best interest ofH-GAC. Upon receipt of notice of termination, all services hereunder of CONTRACTOR and its employees and subcontractors shall cease to the extent specified in the notice of termination. In the event of termination in whole, CONTRACTOR shall prepare final invoices within 30 calendar days of such termination reflecting the services actually performed which have not appeared on any prior invoice. Such invoices shall be satisfactory to the Executive Director or his designee. END USER will pay CONTRACTOR, in accordance with the terms and conditions of this Contract, for services actually performed and accruing to the benefit of END USER less any compensation previously paid. H -GAC, in accordance with the terms and conditions of this Contrset, will invoice CONTRACTOR for any order processing charges due, and CONTRACTOR agrees to pay said order processing charges. CONTRACTOR may cancel or terminate this Contract upon thirty (30) days written notice by certified mail to H -GAC. CONTRACTOR may not give notice of cancellation after it has received notice of default from H -GAC. In the event of such termination prior to completion of this Contract provided for herein, END USER will pay CONTRACTOR, in accordencewith the terms and conditions of this Contract, for services actually performed and accruing to the benefit of END USER less any compensation previously paid. H -GAC, in accordance with the terms and conditions of this Contract, will invoice CONTRACTOR for any order processing charges due, and CONTRACTOR agrees to pay said order processing charges. B. Default 11 -GAC may, by written notice of default to CONTRACTOR, terminate the whole or any part of this Contract in any one of the following circumstances: (1) If CONTRACTOR fails to perform the services herein specified within the time specified herein or any extension thereof; or (2) If CONTRACTOR fails to perform any of the provisions of this Contract for any reason whatsoever, or so fails to make progress or otherwise violates this Contract that completion of services herein specified within the term of this Contract is significantly endangered, and in either of these two instances does not cure such failure within a period often (10) calendar days (or such longer period of time as may be authorized by H -GAC in writing) atter receiving written notice by certified mail of default from H -GAC. In the event of such termination, all services of CONTRACTOR and its employees and subcontractors shall cease and CONTRACTOR shall prepare a final invoice reflecting the services actually performed pursuant to this Contract which have not appeared on any prior invoice. Such invoice must be satisfactory to the END USER and to the Executive Director ofH-GAC or his designee. END USER reserves the right, in accordance with the terms and conditions of this Contract, to withhold from the payment G:IC0NTRACI1RAl114$.9lMotorolal RADIO COMMUNICAMON/EMERGENCY RESPONSE dr MOBILE INTEROPERABLE EQUIPMENT Sig Iaitisi RADIO COMMUNICATIONMAERGENCY RESPONSE & MOBILE WIMROPERABLE E UIPMENT Page 5 of 10 of said invoices for services actually performed and accruing to the benefit of END USER, as reflected on invoice, any compensation previously paid and any costs or damages incurred by END USER as a result of such default, including instal costs that END USER will incurto have Purchase Order(s) completed by a person other than CONTRACTOR. H -GAC, in accordance with the terms and conditions of this Contract, will invoice CONTRACTOR for any order processing charges due, and CONTRACTOR agrees to pay said order processing charges. C. Final BillingIn the Event of Tsarina ion CONTRACTOR shall fill all pending orders and then prepare final invoices reflecting the services actually performed pursuant to this Contract and to the satisfaction of H-GAC'S Executive Director or his designee. END USER will pay CONTRACTOR, in accordance with the terms and conditions of this Contract, for services actually performed and accruing to the benefit of END USER less any compaustion previously paid. H -GAC, in accordance with the terms and conditions of this Contract, will invoice CONTRACTOR for any order processing charges due, and CONTRACTOR agrees to pay said order processing charges. ARTICLE 19: GOVERNING LAW & VENUE This Contract shall be governed by the laws of the State of Texas. Venue and jurisdiction of any suit or cause ofaction arisingunderor in connection with the Contract shall lie exclusively in Harris County, Texas. Disputes between END USER and CONTRACTOR are to be resolved in accord with the law and venue rules of the state ofpurchase. CONTRACTOR shall brunediately notify H -GAC of such disputes. ART CLE 20• CDNMCTOR!S REPRESENTATIVE CONTRACTOR'S representative(s) shall be the contact person(s) concerning all matters pertaining to END USERordes. Any change of representation shall be immediately communicated in written form to H -GAC by CONTRACTOR END USER will remit all payments to CONTRACTOR under this Contract. Under no circumstances shall checks be made paimble to a renresartative. Should a representative submit invoices to END USER for reimbursement of costs relating to an END USER Purchase Order for products/services, the Invoice shall be forwarded to CONTRACTOR ARTICLE 21• REPORTING REOUMAW-11 TS Upon request by H -GAC, CONTRACTOR shall provide monthly written reports to H -GAC. Such reports may include, but are not limited to the following; detailing of all orders received, scheduled production, and scheduled delivery under this contract. If CONTRACTOR fails to submit to H -GAC in a timely and satisfactorymanner any report or other documentation required by this Contract, or otherwise fails to satisfactorily render performances hereunder, such faihu+e nay be considered cause for termination ofthis Contract. ARTICLE 22: iWOST FAVORED CUSTOMER CLAUSE IfMOTOROLA at any time during a contract period, routinely enters into agreements with other governmental customers within the State of Texas, and offers the same or substantially the same products offered to H -GAC on a basis that provides prices more favorable than those provided to H -GAC, MOTOROLA shall within ten (10) business days thereafter notify H -GAC of that offering. The contract with H -GAC shall be deemed to be automatically amended and effective retroactively to the effective date of the most favorable contract, wherein MOTOROLA shall provide the same quantity discount to H -GAC and its End Users for equal or larger orders purchased the same quantity and under the some circumstances. H -GAC shall have the right and option at any time to decline to accept any such change, in which case the amendment shall be deemed null and void. If MOTOROLA believes any apparently more favorable price charged and/or offered a customer during the term of this agreement is not in fact most favored treatment, MOTOROLA shall within ten (10) business days notify H - GAC in writing, setting forth the detailed reasons MOTOROLA believes aforesaid offer which has been deemed to be a most favored treatment, is not in fact most favored treatment. H -GAC, after due consideration of such written explanation, may decline to accept such explanation and thereupon the contract between H -GAC and MOTOROLA shall be automatically amended, effective retroactively, to the effective date of the most favored agreement, to provide the same prices to H -GAC. The most favored price structure set forth in this paragraph shall not apply to any pre-existing contracts Motorola has in the State of Texas. The term "Pre-existing contracts" shall refer to contracts in existence as of the original effective date of the HGAC contract, i.e.111/08. The Parties agree that the above MFC provision shall not apply to the sale of large communications systems (one million dollars ($1,000,000.00) and above). The tam "Communications System" shall refer to a project that includes the sale of infrastructure hardware and/or software, user devices, and Motorola engineering and installation service. The contract for a "Communication System" will always have a Statement of Work and an Acceptance Test Plan. 0ICONMUCnRA01-08.81Motorolal_RADIO COMMUNICATION/EMERGENCY RFSMNSE & MOBILE INTEROPERABLE EQUIPMENT Sig Initial: RADIO COMMUNICATION/EMERGENCY RESPONSE & MOBILE INTEROPERABLE EOUIPMENT Page 6 of 10 The Parties accept the following definition of routine. A prescribed, detailed course ofacxion to be followed regularly; a standard procedure. ARTICLE 23: INDEMNIFICATION IU CONTRACTOR agrees, to the extent permitted by law, to defend and hold harmless H -GAC, the State of Texas, the United States Government and their respective board members, officers, agents, officials, and employees from any and all claims, costs, expenses (including reasonable attorney fees), actions, causes of action, judgments, and liens arising as a result of and to the extent caused by the CONTRACTOR'S negligent acts or omissions under this Contract, the CONTRACTOR'S non-performance of this Contract, or the CONTRACTOR'S violation of any law, regulation or other standard incorporated herein. The CONTRACTOR shall notify H -GAC of the threat of lawsuit or of any actual suit filed against the CONTRACTOR relating to this Contract • PRODUCT SPECIFIC ARTICLES 2446 • 1. All Cooperative Purchasing business will be processed in accordance with H -CAC's policies and procedures, at contracted prices, and shall include approved order processing charges. 2. END USER will access the Cooperative Purchasing Program through the H -GAC website and /or by submission of any duly executed purchase order to a contractor having a valid contract with H -GAC and in a format acceptable to H -GAC. 3. END USER will submit order(s) electronically through CONTRACTOR'S on-line ordering process or issue Purchase Order(s) directly to CONTRACTOR at contract prices, and also submit a copy to H -GAC. 4. The H -GAC CONTRACTOR will deliver products/services as specified by the contract between CONTRACTOR and H -GAC, and invoice each END USER for (1) products/services purchased and (2) H-GAC'S applicable order processing charge. S. Upon delivery, acceptance, and receipt of an H -GAC CONTRACTOR's,documented invoice, END USER shall pay the H -GAC CONTRACTOR the full amount of the invoice. 6. For orders of less than $100,000, CONTRACTOR will promptly pay to H -GAC any order processing charges due, and in any case, not later than sixty (60) calendar days after End User order is processed. Payments will be processed to H -GAC on a monthly basis. For orders of $ 100,000 or more, CONTRACTOR will promptly pay to H -GAC any order processing charges due, and in any case, not later than forty-five (45) calendar days after receipt of End User payment by Motorola. 7. Failure to promptly remit H -CAC's order processing charges may result in sanctions including, but not limited to, contract termination. 8. CONTRACTOR shall be responsible for deliveryand acceptance of each unit by END USER, according to the requirements of the specifications, this Contract, and purchase order issued to CONTRACTOR by an END USER. All required equipment tests shall be bome by CONTRACTOR. 9. CONTRACTOR shall promptly provide H -GAC and END USER with all information pertaining to delivery schedules. CONTRACTOR shall also use its best efforts to expedite unit deliveries on shorter notice than set forth in its verification for any specific purchase order when requested. 10. All prices am F.O.B. END USER'S location with all transportation charges prepaid and included in any invoice. 11. All pricing shall be based on the current contract unless the H -GAC CONTRACTOR prior to receipt of END USER's purchase order for delivery of any products/services has received H -CAC's prior written approval for any price increases. 12. The H -GAC CONTRACTOR agrees to accept the terms of this agreement and to conduct all transactions based on pricing and other terms of the contract including, but not limited to, the applicable H -GAC order processing charge. The CONTRACTOR agrees to encourage END USERS to execute authorizing Interlocal contracts with H -GAC. ARTICLE 27: PRE -PAYMENTS AND DISCOUNTS 0:1CONTRACIViA01.08.81Motorelat RADIO COMMUNICA770MEMOENCY RESPONSE & MOBILE INTEROPERABLE EOLIPMENT Sig Initw' RADIO COMMUNICATIONM ERGENCY RESPONSE & MOBILE IIVTEROPERABLE EQUIPMENT Page 7 of 10 1. Progress and pre -payment discounts offered by CONTRACTOR` shall be fully disclosed to END USER by CONTRACTOR'S representative and subsequently listed on the END USER'S purchase order to CONTRACTOR ARTICLE 29, Discounts may be offered by CONTRACTOR based on similarly constructed products and quantity purchases. Discounts may be stated in either dollar amount or percentage and shall be applicable to CONTRACTOR defined number of similar units. CONTRACTOR shall be the sok source of determination as to similar designation. LIABQ.TI'Y INSURANCE CONTRACTOR shall maintain proof of liability insurance in minimum amounts listed below and shall provide proof of said insurance to H -GAC upon request. General liability $11000,000 per single occurrence Product liability $1,000,000 per single occurrence Insurance coverage shall be in effect for the length of the contract and any extensions thereof, plus the number of months or days required to deliver any outstanding order after the close of the contract. Contractor shall promptly notify H -GAC of cancellation or changes in insurance coverage during the contract period. ARTICLE 29: COMPLETION AND LIQUIDATED DAMAGES (7M Article does na apply to thk Coatrrrcx) ARTICLE A COMPLIANCE WITH PROPOSAL SPECIFICATIONS The contract herein provides certain details emphasizing the intent of the proposal specifications: Warranties: CONTRACTOR'S standard equipment warranty, as revised 4-1-00, shall be made a part of this Contract, a copy of which shall be attached to this Document. H -GAC reserves the right to examine the language in this standard warranty and to accept or reject any changes made after this date. H -GAC shall hold the CONTRACTOR responsible for the execution and effectiveness of glli product warranty. H -GAC shall look only to the CONTRACTOR as the sole source for solution to problems arising from warranty claims. The CONTRACTOR agrees to respond directly to correction ofwarranty claims and to ensure reconciliation of warranty claims which have been assigned to ahri party. Selection of Commnents• The selection of qualitycomponents shall be determined by the CONTRACTOR Since durability and warranty provisions are an inherent consideration in the selection process, H -GAC and the END USERS subject themselves to a trust relationship with the CONTRACTOR to deliver a product which will comply with standards set for the specified product detail in the proposal specifications. Contractor's Default: Should the contractor default in providing the equipment as specified in the specifications, and in this contract, recourse may be exercised through the performance bond or other legal remedies. Delivery_to End User. CONTRACTOR shall schedule delivery to END USER sites in coordination with the relevant END USER's site. Accessories and Options: All accessories and options listed in the Option Table shall become part of this contract. FAN V y FWM CONTRACTOR will provide END USER Agency complete operating manuals on all equipment ordered. ARTICLE 32: MANUFACTU FR PRICE DEC FASFSflNCREASES 1. Except as provided in ARTICLE 35, No price increases shall be allowed during the first twelve (12) months of this Contract period. 2. Any request for a price change must be submitted to H -GAC on CONTRACTOR'S letterhead, must be signed by a corporate officer, and must be received by H -GAC at least forty five (45) calendar days prior to the requested effective Gg laidi RACt1RA01-Og.8lMotorolal RADIO COMMUTIICATION/EMERGENCY RBSPONSE do MOBILE INTEROPERABLE EQUIPMENT Sig Initial: RADIO COMMUMCATION/EMERGENCY R99PONSE & MOhUX INTEROPERABLE EQUWAFNT Page 8 of 10 date of the increase. 3. Price increase requests MUST be supported by documentation, acceptable to H -GAC, concerning CONTRACTOR'S actual cost increase. 4. H -GAC reserves the right to accept or reject any price change request. In cases involving contract extensions exceeding sixty-one (6 1) days beyond the stated expiration date of this Contract, CONTRACTOR may request a price change based on the same conditions as stated above. However, the forty-five (45) day prior notice is waived and H - GAC will consider the request immediately on receipt CONTRACTOR provides firmware/software only under license. END USER agencies will not own such firmware/software and will be authorized for its use only after proper completion of the CONTRACTOR'S Software Agreement Documentation except as CONTRACTOR agrees to sell the Source Code to the END USER ARTICLE 34: SYSTEM PURCHASE AGREEMENT It is agreed that the scope of this Contract is limited to the procurement of equipment and services defined in Motorola's Proposal Response opened October 4, 2007 in response to the Proposal Specifications. It is ftirther agreed that END USERS may use this Contract to purchase systems and/or services. In such event, a separate agreement, making reference to this Contract, may be negotiated between the CONTRACTOR, and the END USER Said document shall be entitled, "System PurrhaseAgreement': Using prices for products and services established in the Proposal Response opened October 4, 2007, each "System Purchase AgreenfeW shall define the associated costs for all such services. The "System PurchaseAgreemad" shall set forth all specific details of the negotiated agreement. It may include, but is not limited to the following: a division of responsibilities, • sites, • surface/subsurfac e conditions, • system design technical requirements, • performance and schedules, a coverage, • warranties, • installation and implementation, • list ofdeliverables, • Title and Risk of Loss, • FCC Licensing, • software licensing, • acceptance criteria, • payment terms, • documentation requirements, a changes, • customer delay, • termination for convenience/default, • limitation of liability, • training, • bonds, and • maintenance. ARTICLE 35: SUBSTITUTIONS ANDD ViATIONS H -GAC agrees to the substitution of Contractor's new published list prices to include new offerings. Along with the price book, Contractor will continue to provide a static discount structure to each part using published APC's (assigned product codes) consistent with current discounts. The new pricing, submitted in CD format, will be updated bi-monthly and provide a published sheet containing any changes within the CD format. Upon receipt of the CD, H -GAC will notify Contractor within five (5) business days if the price increases are not acceptable, or if H -GAC requires more information to make the determination. ARTICLE 36: BLANKET PERFORNLANCE BOND (This AnIck does not apply to this Coutrad) ARTICLE 37: PERFORMANCE BOND ISSUED TO END USER Optional Performance Bonds may be purchased and issued to the relevant END USER for an amount equal to the value of each purchase order. ARTICLE 38: INSPECTIONS BY H -GAC CONTRACTOR_ agrees to provide access to H -GAC authorized personnel for inspection of facilities and audit ofpurchase orders during the Contract period and for a period extending to the completion of any and all equipment ordered under the terms of this oontracL Site inspections shall be arranged not less than ten (1 o) calendar days before said inspections and shall state the name(s) of persons who will conduct the inspections. CONTRACTOR shall not incur expenses relating thereto. ARTICLE 39: PROPOSAL PRICES OFFERED BY COMItACTOR The pricing listed in CONTRACTOR'S Proposal Response as stated on Forms D through Fshall be applicable to all products ordered under the terms ofthis Contract. Additional discounts maybe offered at the discretion and sole liability of the CONTRACTOR ARTICLE 40: CHANGE ORDER PROVISIONS Texas statutes limit change orders to an amount not exceeding twemy-five (25%) ofthe proposal price. A decrease of like amount Is also provided. For the purpose of H -GAC procedures, the proposal price includes the base proposal amount and all priced options submitted with the proposal response. G:ICONPRACJtA01-08.81Motorolal RADIO COMMUNICA7IONlEMEROENCY RESPONSE & MOBILE INTEROPERABLE EQUIPMENT Sig Initial: RADIO COMMUNICATIONA90 RGENCY RESPONSE & MOBILE INTEROPERABLE EQUIPMENT Pave 9 of 10 ARTICLE 41: ORDER CANCELLATIO In the event CONTRACTOR is unable to deliver a product/service by the scheduled delivery date, and the delay is caused by factory production delays exceeding one hundred twenty (120) days from the delivery date set in the purchase order, said product/service shall be subject to possible cancellation by END USER. CONTRACTOR shall notify END USER and H -GAC ofany conditions of Force Majaue that might cause delay in delivery of products/services. (See Article 11: "Force Majeure") ARTICLE 42• ASSIGNMENT OR SUBLEASE OF RIGHTS Neither party shall assignor sublease any rights under this contract without the written consent of the other party. (See Article; "Subcontracts"] ARTICLE 43: CHANGE OF OWNERSHIP The CONTRACTOR shall notify H -GAC ofany material change in name, ownership or control. Such notification shall be supplied within ten (10) business days of such change. ARTICLE 44: NON -COMPETITION CLAUSE A CONTRACTOR'S published or unpublished options may not compete with another CONTRACTOR'S base proposal award. ARTICLE 45: PRODUCER PRICE INDEX APPLIED TO CONTRACT EXTENSIONS Consideration of any contract extension exceeding sixty-one (6 1) days beyond the stated expiration date ofthe original contract period, may be subject to possible increases/decreases in the original proposal prices offered by the CONTRACTOR The price increases/decram shall notexceed the Producer Price Index (PPI) for the latest available reporting period prior to expiration ofthe original contract. The relevant product code, as defined by the criteria ofthe U. S. Department of Labor's latest reporting period, shall be used to determine the maximum price increase/decrease for the length of the contract extension. H -GAC shall establish the date of the latest available report in determining the rate of increase/decrease based on direct communication with the U. S. Department of Labor. ARTICLE 46• CONTRACT PERFORMANCE CONTRACTOR must meet the following performance criteria at all times, and to H-GAC's complete satisfaction. Failure to do so may be considered to be non-compliant performance and may result in contract termination at H -CAC's sole discretion. I . CONTRACTOR shall maintain sufficient qualified staff to process Purchase Orders, and to respond promptly by telephone, fax, and email. 2. CONTRACTOR shall participate in orientation and training as may be required by H -GAC. 3. H -GAC reserves the right to request that a new Sales Representative be assigned to the contract (Proposal Specifications, General Terms and Conditions). 4. CONTRACTOR shall provide toll fine lines) for access by H -CAC's End Users. 5. Motorola will use commercially reasonable efforts to encourage H -GAC End User Participants to purchase contracted items through the H -GAC Contract. 6. All Products/services sold and delivered will include all current manufacturer's standard features at no additional charge, and meet all H -GAC requirements and specifications in all respects. 7. Scheduled delivery dates will be met in all cases unless prevented by Force Majeure. 0:1CONfRACINRA01-08.81MoWmla\ RADIO COMMUNICA710NIEMERGENCY RESPONSE do MOBILE INTEROPERABLE PnUIPMENT Sig Inti: RADIO COM RMCATION/EMERGENCY RESPONSE do MOBILE NUROPERABLE EOUIPMENc P29@ ie Af 10 This contract, signed in two originals by both parties, shall become effective on the First day of January, 2009 and shall remain in effect for a period ending on the Thirty Fust day of December, 2009 at Midnight Central Time. The incorporated copies of Proposal Specifications numbered RAOI-W Tenors and Conditions, and Proposalces Response documents as identified in Article 1. shall become part of this contract. Signed for Houstoa Galveston Area Council Houston, TX Attest for Houston Galveston Area Council Houston, TX Signed for Motorola, Inc. Farmers Branch, TX Printed Name & Title:"WIff-W }KCI $ Attest for Motorola, lee. I/ Az rc—Si LIt� Farmers Branch, TX Date: _20 _20_ Printed Name & Title: �G! r �/_ d/pJ/Ii 7aft R 7tO r G:ICONTRACT1RA0l-0g.SkMotorolal RADIO COMMUNICATION/EMERGENCY RESPONSE & MOBILE INTEROPERABLE BOUIPMENT Sig Initial: This warranty applies within the fifty (50) United States, the District of Columbia and Canada. LIMITED WARRANTY MOTOROLA COMMUNICATION PRODUCTS If the affected product is being purchased pursuant to a written Communications System Agreement signed by Motorola, the warranty contained in that written agreement will apply. Otherwise, the following warranty applies. I. WHAT THIS WARRANTY COVERS AND FOR HOW LONG: Motorola Inc. or, if applicable, Motorola Canada Limited ("Motorola") warrants the Motorola manufactured radio communications product, including original equipment crystal devices and channel elements ("Product"), against material defects in material and workmanship under normal use and service for a period of One (1) Year from the date of shipment. Motorola, at its option, will at no charge either repair the Product (with new or reconditioned parts), replace it with the same or equivalent Product (using new or reconditioned Product), or refund the purchase price of the Product during the warranty period provided purchaser notifies Motorola according to the terms of this warranty. Repaired or replaced Product is warranted for the balance of the original applicable warranty period. All replaced parts of the Product shall become the property of Motorola. This express limited warranty is extended by Motorola to the original end user purchaser purchasing the Product for purposes of leasing or for commercial, industrial, or governmental use only, and is not assignable or transferable to any other party. This is the complete warranty for the Product manufactured by Motorola. Motorola assumes no obligations or liability for additions or modifications to this warranty unless made in writing and signed by an officer of Motorola. Unless made in a separate written agreement between Motorola and the original end user purchaser, Motorola does not warrant the installation, maintenance or service of the Product. Motorola cannot be responsible in any way for any ancillary equipment not furnished by Motorola which is attached to or used in connection with the Product, or for operation of the Product with any ancillary equipment, and all such equipment is expressly excluded from this warranty. Because each system which may use the Product is unique, Motorola disclaims liability for range, coverage, or operation of the system as a whole under this warranty. U. GENERAL PROVISIONS: This warranty sets forth the full extent of Motorola's responsibilities regarding the Product. Repair, replacement or refund of the purchase primo at Motorola's option, is the exclusive remedy. THIS WARRANTY IS GIVEN IN LIEU OF ALL 07HM EXPRESS WARRANTIES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRFSS OR I1 MLTED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN NO EVENT SHALL MOTOROLA BE LIABLE FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE PRODUCT, FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS OR OTHER INCIDENTAL, SPECIAL, N INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE SUCH PRODUCT, TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. M. HOW TO GET WARRANTY SERVICE Purchaser must notify Motorola's representative or call Motorola's Customer Response Center at 14MO-247-2346 within the applicable warranty period for information regarding warranty service. IV. WHAT THIS WARRANTY DOES NOT COVER: A) Defects or damage resulting from use of the Product in other than its normal and customary manner. 8) Defects or damage from misuse, accident water, or neglect. C) Defects or damage from improper testing, operation, maintenance, installation, alteration, modification, or adjustment. D) Breakage or damage to antennas unless caused directly by defects in material workmanship. E) A Product subjected to unauthorized Product modifications, disassemblies or repairs (including, without limitation, the addition to the Product of non- Motorola supplied equipment) which adversely affect performance of the Product or interfere with Motorola's normal warranty inspection and testing of the Product to verify any warranty claim. F) Product which has had the serial number removed or made illegible. G) Batteries (they carry their own separate limited warranty). H) Freight costs to the repair depot. 1) A Product which, due to illegal or unauthorized alteration of the software/firmware in the Product, does not function in accordance with Motorola's published specifications or with the FCC type acceptance labeling in effect for the Product at the time the Product was initially distributed from Motorola. J) Scratches or other cosmetic damage to Product surfaces that does not affect the operation of the Product. In That the software in the Product will meet the purchaser's requirements or that the operation of the software will be uninterrupted or error -free. L) Normal and customary wear and tear. M} Non -Motorola manufactured equipment unless bearing a Motorola Part Number in the form of an alpha numeric number (Le., TDE6030B). V. GOVERNING LAW In the case of a Product sold in the United States and Canada, this Warranty is governed by the laws of the State of Illinois and the Province of Ontario, respectively. VL PATENT AND SOPIWARE PROVISIONS: Motorola will defend, at its own expense, any suit brought against the end user purchaser to the extent that it is based on a claim that the Product or its parts infringe a United States patent, and Motorola will pay those costs and damages finally awarded against the end user purchaser to arty such suit which are attributable to any such claim, but such defense and payments are conditioned on the following: M A) that Motorola will be notified promptly in writing by such purchaser of any notice of such claim; B) that Motorola will have sole control of the defense of such suit and all negotiations for its settlement or compromise; and C) should the Product or its parts become, or in Motorola's opinion be likely to become, the subject of a claim of infringement, of a United States patent, that such purchaser will permit Motorola, at its option and expense, either to procure for such purchaser the right to continue using the Product or its parts or to replace or modify the same so that it becomes non -infringing or to grant such purchaser a credit for the Product or its parts as depreciated and accept its return. The depreciation will be an equal amount per year over the lifetime of the Product or its parts as established by Motorola. Motorola will have no liability with respect to any claim of patent infringement which is based upon the combination of the Product or its parts 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 furnished by Motorola which is attached to or used in connection with the Product. The foregoing states the entire liability of Motorola with respect to infringement of patents by the Product or any its parts thereof. Laws in the United States and other countries preserve for Motorola certain exclusive rights for copyrighted Motorola software such as the exclusive rights to reproduce in copies and distribute copies of such Motorola software. Motorola software may be used in only the Product in which the software was originally embodied and such software in such Product may not be replaced, copied, distributed, modified in any way, or used to produce any derivative thereof. No other use including, without limitation, alteration, modification, reproduction, distribution, or reverse engineering of such Motorola software or exercise of rights in such Motorola software is permitted. No license is granted by implication, estoppel or otherwise under Motorola patent rights or copyrights. 46W' Attachment A MOTOROLA, INC. Radio Communication/Emergency Response &Mobile Interoperable Equipment Contract No.: RA01-08 Product Code Manufacturer Description Base Offered Price A&B Per the RFP Motorola has included an Electronics Catalogue CA ,Aril 2007 Edition, on a CD media in lien of listiong each individual product and Its options. In addition, the discount APC(Accounting Product Code shat detailed below is to be used to calculate all individual prices within the SCAT disk. D Service Motorola Integration Services Motorola offers wide range of services including Integration, Installation and Training. D The cost of these services is regional in nature. Samples below are listed for reference only, D Project Management Daily Rate* $1 ,500 D System Engineering Daily Rate* 51500 D System Technoloptist Daily Rate* $I800 D Standard Shop Installation: Hourly Rate* $125 D Standard Shop Installation: Daily Rate* $850 D Mobile Radio Installation* $1504350 D Radio Proin $45-5100 D Data installation* 51504350 D *Prices may vary by Region and Stated Scope. Travel Not Included O o/ 153 Data Applications 15% 297 Data Applications 0*/* 333 Data iications 00/* 339 Data Applications 00/* 879 Data Applications 00/0 87 Data Subscriber Devices 00A 137 Data Subscriber Devices 5*io 170 Data Subscriber Devices 5% 171 Data Subscriber Devices 106A Data 225 Devices Subscriber 109'* Data 312 Devices Subscriber 20*/e Data 343 Devices Subscriber 22% Data 508 Devices Subscriber 100/9 Data 708 Devices Subscriber _ 10% 736 Data Subscriber Devices Me 855 Data Subscriber Devices 100A 214 Fixed Data Products 100/0 275 Fixed Data Products 10% 224 Fixed Data Products 10% 403 Fixed Data Products 100/• 469 Fixed Data Products 10% 499 Fixed Data Products 100/0 222 Fixed Network Equipment 00/0 381 Fixed Network Equipment 5% 403 Fixed Network :,Equipment 100/0 218 Fixed Stations 20% 281 Fixed Stations 18.5056 301 Fixed Stations 20% 360 Fixed Stations 15% 448 Fixed Stations 20% 509 Fixed Stations 20% 512 Fixed Stations 23% 537 Fixed Stations 20% 590 Fixed Stations 20% 595 Fixed Stations 15% 675 Fixed Stations 206A 676 Fixed Stations 20% 680 Fixed Stations 20% 780 Fixed Stations 00/o 793 Fixed Stations 10% 207 Fixed Station Accessories 105'0 273 Fixed Station Accessories 100/0 Fixed 277 Station Accessories 200A Fixed 301 Accessories Station 20% Fixed 524 Accessories Station 15% Fixed 525 Accessories Station 15% Fixed 687 Accessories Station 18% Fixed 207 Antenna Station System 10% Fixed 118 Controls Station 15% 124 Fixed Station Controls 15% 129 Fixed Station Controls 200/9 202 Fixed Station lControls 15% 207 Fixed Station Controls 100/0 228 Fixed Station Controls 30% 229 Fixed Station Controls 5% 261 Fixed Station Controls 5% 322 Fixed Station Controls 15% 377 Fixed Station Controls 10% 404 Fixed Station Controls 20% 443 Fixed Station Controls 18.50'/0 448 Fixed Station Controls 20% 454 Fixed Station Controls 15% 708 Fixed Station Controls 100/0 729 Fixed Station Controls a/0 740 Fixed Station Controls 100/4 291 Mobile Accessories 15% 554 Mobile Accessories 15% 644 Mobile Accessories 15% 103 Mobile Stations 20% 109 Mobile Stations 15% 185 Mobile Stations 00/0 189 Mobile Stations 15% 276 Mobile Stations 18.50% 287 Mobile Stations 10.000/0 374 Mobile Stations 15010 412 Mobile Stations 106/0 500 Mobile Stations 20% 514 Mobile Stations 18% 518 Mobile Stations 18% 672 Mobile Stations 20% 775 Mobile Stations 15% 776 Mobile Stations 20% 792 Mobile Stations 00/0 869 Mobile Stations 200/6 131 Network Products 10% 147 Network Products 101YO 207 Network Products 100/0 136 Pager/Receiver 10% 169 Pagers 100/0 Portable Radiophone 15(Portables) 15% Portable Radiophone 177 ortebles 15% Portable Radiophone 185(Portables) 0/0 Portable Radiophone 205 Portables 25% Portable Radiophone 276(Portables) I8.501% Portable Radiophone 320(Portables) 20% Portable Radiophone 355 ortalsles 0% Portable Radiophone 407(Portables) 25% Portable Radiophone 453(Portables) 20% Portable Radiophone 476(Portables) 20% Portable Radiophone 672 Portables 200/0 Portable Radiophone 687 Portables 18% Portable Radiophone 721(Portables) 20% Portable Radiophone 749(Portables 15% Portable Radiophone 841(Portables) 15% Radioware 232 Solutions 20% 129 Radius Products 20% 159 Radius Products 200A 169 Radius Products 20% 185 Radius Products 00/0 262 Radius Products 20% 271 Radius Products 20% 291 Radius Products 20% 362 Radius Products 20% 372 Radius Products 20% 417 Radius Products 20% 433 Radius Products 20% 456 Radius Products 20% 457 Radius Products 200A 459 Radius Products 200A 476 Radius Products 20% 515 Radius Products 200/6 $47 Radius Products 200/* 554 Radius Products 200.6 555 Radius Products 20% 577 Radius Products 20% 644 Radius Products 200A 682 Radius Products 2(1% 706 Radius Products 206/6 742 Radius Products 20'/0 744 Radius Products 200A 780 Radius Products 209'0 785 Radius Products 20% 793 Radius Products 200/a 795 Radius Products 20% 136 Receivers 100/0 509 Receivers 2096 512 Receivers 23% 743 Receivers 15% 137 Secure Solutions 50A 201 Secure Solutions 5% 229 Secure Solutions 5010 424 Secure Solutions 15% 443 Secure Solutions 15% 462 Secure Solutions 5% 524 Secure Solutions 15% 525 Secure Solutions 15% 195 Software UpgmdmTWhport 0% 371 Software UmadaMlashport 00/0 430 Software Up es/Flashport 20% 647 Software UmmWesMashport 0•/0 729 software UpgmdaffllashpM 0% 823 Software U es/Blash 00/0 39 Trunking Products and Systems 100/0 40 Trunking Products and System 150/0 f Trunking Products s 41 and S 10% Trunking Products 85 and System 15% Tr u king Products 112 and System 15% Trunking Products 115 and System 100/0 Trunking Products 152 and System 5% Trunking Products 277 and Systetw 20% Trunking Products 280 and Systerm 18.50% Trunking Products 281 and Systerm 18.50% Trunking Products 377 and Systms 100/0 Trunking Products 495 and qyst= 15% Trunking Products 593 and Systems 23% Trunking Products 647 and System 00/0 Trunking Products 708 and S 100/0 Trunking Products 877 and System 19.50016 37 Wireless Mobil' 5% 38 Wireless Mobility 5% 484 Wireless Mobili 5% 563 Wireless Mobility 5016 606 Wireless Mobility-15% 683 Wireless Mobility 15% 832 Wireless Mobility_100/0 977 Wireless Mobility__ 5% SYSTEM PURCHASE AGREEMENT THIS AGREEMENT ("Agreement"), made and entered into this day of by and between Motorola Inc., a Delaware corporation duly authorized to conduct business in the State of Texas ("Motorola" or "Seller"), the Houston -Galveston Area Council, a body corporate and politic ("H -GAC") and , a body corporate and politic ("Purchaser"). WITNESSETH: WHEREAS, the Purchaser desires to purchase a Communications System; and WHEREAS, Motorola desires to sell a Communications System to Purchaser; and WHEREAS, H -GAC, acting as the agent for various local governmental entities who are "End Users" under interlocal agreements (including the Purchaser) has solicited quotations for radio communications equipment and conducted discussions with Motorola concerning its proposal and, where applicable, in accordance with the competitive procurement procedures of Texas law; and WHEREAS, H -GAC and Motorola entered into that certain Radio Communications Equipment & Systems Agreement dated as of January 1, 2008 (the "Contract"), which provided that End Users may purchase radio communications equipment from Motorola pursuant to certain terms contained therein; and WHEREAS, pursuant to Article 34 of the Contract, Purchaser, Motorola and Purchaser now wish to enter into this System Purchase Agreement to delineate the specific terms of the purchase of radio communications equipment from Motorola by the Purchaser. THEREFORE, the parties hereby enter into an agreement pursuant to which Motorola shall perform the work and furnish the equipment and services as more fully set forth herein and in the following exhibits, which are either attached hereto or incorporated by reference and hereby made a part of this Agreement: Exhibit A General Provisions. Exhibit B Motorola Software License. ........... Exhibit C Motorola's Statement of Work, System Description, Acceptance Test Plan, and Equipment List all dated Exhibit D Motorola/H-GAC Radio Communications Equipment & Systems Agreement dated January 1, 2008. Exhibit E Motorola Enhanced System Support Statement of Work ("ESS Plan") NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the parties agree as follows: Mou rola/H-GAG -1- System Purchase Agmt. Section 1 SCOPE OF WORK A. Motorola shall furnish all of the equipment as outlined in Exhibit C and provide the tools, supplies, labor and supervision necessary for the installation of the items purchased in accordance with Exhibit C. B. In addition to responsibilities described in the Statement of Work, Purchaser shall perform the following coincident with the performance of this Agreement: (1) Provide a designated Project Director. (2) Provide ingress and egress to Purchaser's facilities and/or sites as requested by Motorola and have such facilities available for installation of the equipment to be installed. (3) Provide adequate telephone lines (including modem access and adequate interfacing networking capabilities) for the installation and operation of the equipment. (4) Provide adequate AC Power at 117 VAC + 10%, 60 Hz for the installation and operation of the equipment. (5) Provide a designated work area with adequate heat and light, and a secure storage area for equipment delivered to the Purchaser. The Purchaser shall be solely liable for loss or damage to equipment prior to, during and following installation when such equipment is on or within Purchaser's facilities and/or vehicles. Section 2 SITES This Agreement is predicated on the utilization of sites and site configurations, which have been selected either by the Purchaser or by Motorola as contained in the Motorola proposal. In either situation, should it be determined by either Motorola or Purchaser during the course of performance on this Agreement that the sites or configuration selected are no longer available or desired, new or replacement sites or configuration will be selected and approved by both Motorola and the Purchaser. If any price adjustments are necessary as a result of these new or replacement sites, such price adjustments will be added to this Agreement by change order in accordance with Section 4 of the General Provisions. Section 3 SUBSURFACE/STRUCTURAL CONDITIONS This Agreement and the Motorola proposal are predicated upon normal soil conditions defined by E.I.A. standard RS -222 (latest revision). Should Motorola encounter subsurface, structural, and/or latent conditions at any site differing from those, indicated on the specifications, or as used in the preparation of the bid price, the Purchaser will be given immediate notice of such conditions before they are further disturbed. Thereupon, Motorola and the Purchaser shall promptly investigate the conditions and, if found to be different, will adjust the plans and/or specifications as may be necessary. Any changes that cause an adjustment in the contract price or in time required for the performance of any part of the contract shall result in a contract modification in accordance with Section 4 of the General Provisions. Motorola/H-GAC! - 2 - System Purchase Agmt. Section 4 PERIOD OF PERFORMANCE A. Motorola projects that it will be able to obtain final acceptance and completion of the Acceptance Test Plan within days after the contract is signed by all parties. A more detailed timeline shall be provided to Purchaser after the design review and customer kick-off meeting. B. Whenever Motorola knows or reasonably should know that any actual or potential condition due to circumstances beyond its control is delaying or threatens to delay the timely performance of the work, Motorola shall within thirty (30) days give Purchaser notice thereof and may request an extension of time to perform the work. C. In order to successfully integrate and implement this project, shipments will be made F.O.B. Destination to Purchaser facilities, local Motorola staging facilities, warehousing facilities, or any combination thereof. It is agreed that this plan is acceptable to Purchaser and that Motorola will advise prior to shipment of actual destination and that purchaser will accept shipment, and make payment as required by this Agreement. D. It is also agreed that equipment shipping dates reflected in this agreement or in Motorola proposals are estimates only, and that shipment may be made at any time prior to, or subsequent to these estimated shipping dates. Section 5 ACCEPTANCE CRITERIA 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. Purchaser and Motorola will jointly prepare a list of such omissions and variances which Motorola will correct according to an agreed upon schedule. B. Motorola agrees to notify Purchaser when the Communications System is ready for acceptance testing. Motorola and Purchaser agree to commence acceptance testing within ten (10) business days after receiving such notification. If testing is delayed for reasons within the control of Purchaser or its employees, contractors, agents or consultants for more than ten (10) business days after notification, final payment 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 Purchaser to use 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 without prior written authorization by Motorola shall constitute System Acceptance. MowolaiH-GAC! -3- System Purchase Agmt. Section 6 PAYMENT SCHEDULE A. Motorola agrees to sell all of the equipment and perform the services as outlined in the Scope of Work, and Purchaser agrees to buy the aforementioned equipment and services for the sum of ($ ), including the H -GAC administration fee of $ The final price may be adjusted by change orders approved pursuant to Statement of Work attached hereto as Exhibit "C". B. Payments to Motorola shall be made according to the following milestones: 1. 20% of the total contract price is due when Purchaser executes this Agreement; 2. 60% of the total contract price will be invoiced immediately after the Equipment is shipped from Motorola's facilities; 3. 10% of the total contract price will be invoiced immediately after the Equipment is installed at the sites specified in the Exhibits; and 4. 10% of the total contract price will be invoiced immediately after System Acceptance. C. In the event of failure or delay by the Purchaser in providing sites, space, approvals, licenses, or any other Purchaser obligations required preceding delivery of Motorola equipment, it is agreed that Motorola, at its sole discretion, may ship equipment as planned and that the Purchaser will accept the equipment and make payment in accordance with the terms of this Agreement. Any additional costs incurred by Motorola for storage of equipment will be invoiced and paid by Purchaser. D. Payments to Motorola shall be made as follows: (i) Motorola will post the delivery date into HGACbuy.com. (ii) Motorola shall immediately forward an invoice for the payment requested in Section 6(B) above to Purchaser. (iii) Purchaser shall pay the Motorola invoice within thirty (30) calendar days of receipt. E. Payment of H-GAC's administrative fee: OS. Motorola will pay H -GAC in accordance with the payment terms of Contract No. RA01- F. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by mutual agreement of the Parties, the term of this Agreement begins on the date as set forth above and continues until the date of Final Project Acceptance or expiration of the Warranty Period, whichever occurs last. Section 7 PROJECT MANAGEMENT MoWrola/H-GAC/ -4- System Purchase Agmt A. If the size or complexity of the project warrants, Motorola will assign a Project Manager, who is authorized to exercise technical direction of this project. Motorola, at any time, may designate a new or alternate Project Manager with written notice to Purchaser and H -GAC. B. All matters affecting the terms of this Agreement or the administration thereof shall be referred to Motorola's cognizant Contract Administrator who shall have authority to negotiate changes in or amendments to this Agreement. Section 8 NOTICE ADDRESSES A. Motorola, Inc. 6450 Sequence Drive San Diego, Ca 92121 Attn.: Law Department B. C. Houston -Galveston Area Council 3555 Timmons Lane, Suite 500 Houston, Texas 77027 Attn.: Public Services Manager Section 9 ORDER OF PRECEDENCE In the event of an inconsistency in this Agreement, the inconsistency shall be resolved in the following order: Exhibit A General Provisions. Exhibit B Motorola Software License. Exhibit C Motorola's Statement of Work, System Description, Acceptance Test Plan and Equipment List. Exhibit E Motorola Enhanced System Support Statement of Work ("ESS Plan" Exhibit D Motorola/H-GAC Radio Communications Equipment & Systems Agreement dated January 1, 2008. Section 10 DISPUTES Motorola and the Purchaser will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If those attempts fail, then the dispute will be mediated by a mutually acceptable mediator to be chosen by Motorola and the Purchaser within thirty (30) days after written 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 the Purchaser will share the cost of the mediation MotoroldH-GAC/ -5. System Purchase Agent. equally. By mutual agreement, however, Motorola and Purchaser may postpone mediation until both parties have completed some specified but limited discovery about the dispute. The parties may also agree to replace mediation with some other form of non-binding alternate dispute resolution procedure ("ADR"). Any dispute which cannot be resolved between the parties through negotiation or mediation within two (2) months of the date of the initial demand for it by one of the parties may then be submitted to a court of competent jurisdiction in Texas. Both Motorola and Purchaser consent to jurisdiction over it by such a court. The use of any ADR procedures will not be considered under the doctrine of laches, waiver or estoppel to affect adversely the rights of either party. Nothing shall prevent either of the parties from resorting to the judicial proceedings mentioned in this paragraph 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 one of the parties or others. Section 11 SEVERABILITY If any portion of this Agreement or any exhibits hereto is held to be invalid, such provision or portion of such provision shall be considered severable, and the remainder of this Agreement shall not be affected. Section 12 HEADINGS AND SECTION REFERENCES The headings given to the paragraphs are inserted for convenience only and are in no way to be construed as part of this Agreement or as a limitation of the scope of the particular paragraph to which the heading refers. Motorola/H-GAC/ -6- System Purchase Agmt. Section 13 FULL AGREEMENT This Agreement and its Exhibits constitute the final expression of the agreement of the parties and supersedes all previous agreements and understandings, whether written or oral, relating to the work. This Agreement may not be altered, amended, or modified except by written instrument signed by duly authorized representatives of the parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the last day and year written below. MOTOROLA, INC. PURCHASER 0 (Signature) Name: (Print - Block Letters) By: (Signature) Name: (Print - Block Letters) Title: Title: (Print - Block Letters) Date: Date: (Print. Block Letters) Motorola/H-GAG -7- System Purchase Agmt. EXHIBIT A GENERAL PROVISIONS MOTOROLA, INC. Section 1 STANDARDS OF WORK Motorola agrees that the performance of work described in this Agreement and pursuant to this Agreement shall be done in a professional manner and shall conform to professional standards. All packaging and packing shall be in accordance with good commercial practice. Section 2 TAXES The prices set forth in the Agreement are exclusive of any amount for Federal, State or Local excise, sales, lease, gross income service, rental, use, property, occupation or similar taxes. If any taxes are determined applicable to this transaction or Motorola is required to pay or bear the burden thereof, the Purchaser agrees to pay to Motorola the amount of such taxes and any interest or penalty thereon no later than thirty (30) days after receipt of an invoice therefor. Section 3 SHIPPING, TITLE AND RISK OF LOSS All sales and deliveries are F.O.B. Destination. Motorola reserves the right to make deliveries in installments and the Agreement shall be severable as to such installments. Title to the equipment shall pass to the Purchaser upon receipt at the F.O.B. Destination. After delivery to the F.O.B. Destination, risk of loss and damage to the articles shall be borne by the Purchaser. The above notwithstanding, title to software and any third party supplied software shall not pass upon payment of the license fee therefor or under any circumstances. Section 4 CHANGES IN THE WORK A. The Purchaser may, at any time, by written order, make changes within the general scope of the work, including but not limited to revisions of, or additions to, portions of the work, or changes in method of shipment or packaging and place of delivery. B. If any order under this Section 4 causes an increase or decrease in the cost of or time required for the performance of any part of the work under this Agreement, an equitable adjustment shall be made in the Agreement price or delivery schedule, or both, and the Agreement shall be modified in writing accordingly. Motorola is not obligated to comply with any order hereunder unless and until the parties reach agreement as to the aforementioned equitable adjustment and same is reflected as an addendum to this Agreement. - 1 - SYMM Pie Agent Section 5 LIMITATION OF LIABILITY Except for personal injury or death, Motorola's total liability whether for breach of contract, warranty, negligence, indemnification, strict liability in tort or otherwise, is limited to the price of the particular products or services sold hereunder with respect to which losses or damages are claimed. Purchaser's sole remedy is to request Motorola at Motorola's option to either refund the purchase price, repair or replace product(s) that are not as warranted 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, OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. No action shall be brought for any breach of this contract more than one (1) year after the accrual of such cause of action except for money due upon an open account. Section 6 EXCUSABLE DELAYS A. Neither Motorola nor the Purchaser shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but are not be limited to, acts of God; fire; strikes; material shortages; compliance with laws or regulations; riots; acts of war•, or any other conditions beyond the reasonable control of the party or parties. B. Delays as identified herein may cause an impact on the Period of Performance stated in the Agreement. Such delays will be subject to an Agreement addendum as described in Section 4. Section 7 DEFAULT A. If Motorola is wholly responsible for failure to make delivery or complete installation under the Agreement, the Purchaser may consider Motorola to be in default, unless such failure has been caused by the conditions set forth in Section 6 of these General Provisions. B. The Purchaser shall give Motorola written notice of such default and Motorola shall have thirty (30) days to provide a plan of action to cure the default. If Motorola fails to cure the default, the Purchaser may terminate any unfulfilled portion of this Agreement or complete the system through a third party. In the event the Purchaser completes the system through a third party, Motorola shall be responsible for an amount in excess of the Agreement price, not to exceed the value of the terminated portion, incurred by the Purchaser in completing the system to a capability not exceeding that specified in the Agreement. IN THE EVENT OF DEFAULT, MOTOROLA SHALL NOT BE LIABLE FOR ANY INCIDENTAL, LIQUIDATED, SPECIAL OR CONSEQUENTIAL DAMAGES. 2 _ Syd- PW d— Agent Section 8 DELAYS BY PURCHASER If the Purchaser is responsible for delays which cause the installation and acceptance of this system, to be rescheduled beyond the Period of Performance set forth in the Agreement, the Purchaser shall be liable for actual costs incurred by Motorola resulting from these delays. Such charges may include, but are not limited to, additional Engineering; rescheduling charges; storage charges; maintenance charges; and transportation charges. The Purchaser shall have the option to attempt to minimize actual costs incurred by storing and transporting equipment at its own expense. Section 9 LICENSES/AUTHORIZATION The Purchaser is solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission and for complying with FCC rules. Neither Motorola nor any of its employees is an agent or representative of the Purchaser in FCC matters or otherwise. Motorola, however, may assist in the preparation of the license application at no charge to the Purchaser. Purchaser acknowledges that project implementation is predicated on receipt of proper FCC licensing. Section 10 INDEMNIFICATION Motorola agrees to and hereby indemnifies and saves Purchaser and/or H -GAC harmless from all liabilities, judgments, costs, damages and expenses which may accrue against, be charged to, or recovered from the Purchaser and/or H -GAC by reason of or on account of damage to the tangible property of the Purchaser or the property of, injury to, or death of any person, to the extent and in the proportion that such damage or injury is caused by Motorola's negligent acts or omissions or that of its employees, subcontractors, or agents while on the premises of the Purchaser during the delivery and installation of the communications equipment. IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. Section 11 EQUIPMENT COMPATIBILITY; PRODUCT SUPPORT Motorola agrees that the equipment, will perform in accordance with the specifications and representations stated in Motorola's Proposal and Equipment List included in this Agreement. This Agreement does not extend to the performance of the equipment as a part of a larger system generally nor specifically to equipment in combination with products, elements or components not supplied by Motorola. Motorola will use commercially reasonable efforts to provide replacement parts for Motorola manufactured subscriber equipment for five (5) years and for Motorola manufactured fixed infrastructure equipment for seven (7) years, both from the date of last manufacture. Motorola reserves the right to supply either assemblies or piece parts. -3- System Purchase Agent Section 12 WARRANTIES 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. Purchaser 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 C. Upon System Acceptance, this System Functionality representation is fulfilled. After System Acceptance, the Equipment Warranty set forth below, the Software Warranty set forth in the Software License Agreement, and the ESS Plan 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 when 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) Purchaser changes to load usage and/or configuration outside the parameters specified in Exhibit C; v) any other act of parties who are beyond Motorola's control, including Purchaser or its employees, contractors, consultants or agents. C. EQUIPMENT WARRANTY. Motorola wan -ants 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. .4. System Pwdhm Agit C) Defects or damage occurring from testing, maintenance, installation, alteration, modification, or adjustment not provided by Motorola pursuant to this Communications System Agreement. d) Breakage of or damage to antennas unless caused directly by defects in material or workmanship. e) Equipment that has been subjected to unauthorized 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 that has had the serial number removed or made illegible. g) Batteries (because they carry their own separate limited warranty). h) Freight costs to the repair depot. i) Equipment that has been subject to illegal or unauthorized alteration of the software/firmware in the Equipment. j) Scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment. k) Software. 1) Normal or 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 B. 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 are 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 5- system Purchase .%Fnt ARISING OUT OF THE USE OR INABILITY TO USE THE EQUIPMENT, TO THE FULL EXTENT SUCH MAY BE DISCLAMIED BY LAW. Section 13 CONFIDENTIAL INFORMATION Motorola proprietary computer programs will be released in accordance with the Software License provisions set forth elsewhere, if applicable. All other material and information of confidential nature marked Motorola PROPRIETARY and CONFIDENTIAL will be released as necessary under the following conditions: (1) Purchaser shall exercise reasonable and prudent measures to keep these items in confidence. (2) Purchaser shall not disclose these items to third parties without prior written permission, unless Motorola makes them public or Purchaser learns them rightfully from sources independent of Motorola, or it is required by law to be disclosed. (3) Motorola, where necessary, retains the right to prescribe specific security measures for the Purchaser to follow to maintain the confidentiality. In the event disclosure of such information is necessary, a separate Non -Disclosure Agreement will be required Section 14 SOFTWARE LICENSE A. Motorola Software. Any Motorola Software furnished will be licensed to Purchaser solely according to the tenons and restrictions of the Software License Agreement attached as Exhibit B. Purchaser hereby accepts all of the terms and restrictions of the Software License Agreement. B. 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. -6- System Purchase Agmt Section 15 PATENT INDEMNIFICATION Motorola will defend at its expense any suit brought against Customer to the extent it is based on a third party claim alleging that the Equipment manufactured by Motorola or the Motorola Software infringes upon the third party's United States patent or copyright ("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: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. 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 the 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 Motorola Software. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon the combination of the Equipment or Motorola Software with any software, apparatus or device not furnished by Motorola; 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; any Equipment that is not Motorola's design or formula; a modification of the Motorola Software by a party other than Motorola; or 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, Motorola Software, or any of their parts. Section 16 DISCLAIMER OF PATENT LICENSE Nothing contained in this Agreement shall be deemed to grant, either directly or by implication, estoppel, or otherwise, any license under any patents or patent applications of Motorola, except that Purchaser shall have the normal non-exclusive royalty -free license to use that is implied, or otherwise arises by operation of law, in the sale of a product. Section 17 WAIVER Failure or delay on the part of Motorola or Purchaser to exercise right or power hereunder shall not operate as a waiver thereof. Section 18 GOVERNING LAW T - System Auchase Agmt This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Section 19 ASSIGNABILITY The Agreement may not be assigned by any party hereto other than Motorola may assign this order to one of its Subsidiaries as in the normal course of business. - g - System Pwd ase Agmt Exhibit B Software License Agreement This Exhibit B, Software License Agreement ("Agreement") is between Motorola, Inc., ("Motorola"), and ("Licensee'l. For good and valuable consideration, the parties agree as follows: Section 1 DEFINITIONS 1.1 "Designated Products" means products provided by Motorola to Licensee with which or for which the Software and Documentation is licensed for use. 1.2 "Documentation" means product and software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which such information is provided). 1.3 "Open Source Software" means software with either freely obtainable source code, license for modification, or permission for free distribution. 1.4 "Open Source Software License" means the terms or conditions under which the Open Source Software is licensed 1.5 "Primary Agreement" means the agreement to which this exhibit is attached. 1.6 "Security Vulnerability" means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach such that data is compromised, manipulated or stolen or the system damaged. 1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de - compilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement. Section 2 SCOPE Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary Software or products containing embedded or pre -loaded proprietary Software, or both. This Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee's use of the Software and Documentation. Section 3 GRANT OF LICENSE 3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants to Licensee a personal, limited, non -transferable (except as permitted in Section 7) and non-exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code. System Pumbase Agmt 3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the teems and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to: (i) determine whether any Open Source Software is provided under this Agreement; (ii) identify the Open Source Software and provide Licensee a copy of the applicable Open Source Software License (or specify where that license may be found); and, (iii) provide Licensee a copy of the Open Source Software source code, without charge, if it is publicly available (although distribution fees may be applicable). Section 4 LIMITATIONS ON USE 4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting the general nature of these restrictions, Licensee will not make the Software available for use by third parties an a "time sharing," "application service provider," or "service bureau" basis or for any other similar commercial rental or sharing arrangement. 4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer, disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant any sublicense or other rights in the Software or Documentation to any third party, or take any action that would cause the Software or Documentation to be placed in the public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, back-up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software. 4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (ii) copy onto or transfer Software installed in one unit of a Designated Product onto only one other device. Licensee may temporarily transfer Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary transfer is discontinued. 4.4. When using Motorola's Radio Service Software ("RSS"), Licensee must purchase a separate license for each location at which Licensee uses RSS. Licensee's use of RSS at a licensed location does not entitle Licensee to use or access RSS remotely. Licensee may make one copy of RSS for each licensed location. Licensee shall provide Motorola with a list of all locations at which Licensee uses or intends to use RSS upon Motorola's request. 4.5. Licensee will maintain, during the term of this Agreement and for a period of two years thereafter, accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an independent third party ("Auditor") may inspect Licensee's premises, books and records, upon reasonable prior notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any -2- System Pu dsm Agmt information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this Agreement. Section 5 OWNERSHIP AND TITLE Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Softwareand Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de -compilations, disassemblies, emulations to or derivative works from the Software or Documentation, whether made by Motorola or another party, or any improvements that result from Motorola's processes or, provision of information services). No rights are granted to Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing the Software, Designated Products, Documentation or related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights. Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY 6.1. The commencement date and the term of the Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the "Warranty Period"). If Licensee is not in breach of any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted, error -free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee's particular requirements. Motorola makes no representations or warranties with respect to any third party software included in the Software. 6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct significant, demonstrable program or documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola's option, Motorola will replace the defective Software with functionally -equivalent Software, license to Licensee substitute Software which will accomplish the same objective, or terminate the license and refund the Licensee's paid license fee. 6.3. Warranty claims are described in the Primary Agreement. 6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other warranties (express or implied, oral or written) with respect to the Software or Documentation, Including, without limitation, any and all implied warranties of condition, title, non - Infringement, merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola disclaims any warranty to any person other than Licensee with respect to the Software or Documentation. Section 7 TRANSFERS Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee -3- System Purchue AS= paying all applicable license fees and agreeing to be bound by this Agreement. If the Designated Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products to a third party, Licensee may assign its right to use the Software (other than RSS and Motorola's FLASHport® software) which is embedded in or furnished for use with the radio products and the related Documentation; provided that Licensee transfers all copies of the Software and Documentation to the transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon request, obligating the transferee to be bound by this Agreement. Section 8 TERM AND TERMINATION 8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation may be terminated immediately upon notice by Motorola. 8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer in use by Licensee. 8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non -embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Section 9 UNITED STATES GOVERNMENT LICENSING PROVISIONS This Section applies if Licensee is the United States Government or a United States Government agency. Licensee's use, duplication or disclosure of the Software and Documentation under Motorola's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (cxl) and (2) of the Commercial Computer Software -Restricted Rights clause at FAR 52227-19 (JUNE 1987), if applicable, unless they are being provided to the Department of Defense. if the Software and Documentation are being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph (cx lxii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice, or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement transaction. Section 10 CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary Agreement concerning Confidential Information apply. Section 11 LIMITATION OF LIABILITY .4- System Pmchme Agntt The Limitation of Liability provision is described in the Primary Agreement. Section 12 NOTICES Notices are described in the Primary Agreement. Section 13 GENERAL 13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software. 13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Motorola and the appropriate governmental authority of the United States, in any forth export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval. Violation of this provision is a material breach of this Agreement. 13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or consent of Licensee. 13.4. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a sovereign government entity. The terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the Uniform Computer Information Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA") becomes applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA. 13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and Licensee. No third parry has the right to make any claim or assert any right under this Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing, any licensor or supplier of third party software included in the Software will be a direct and intended third party beneficiary of this Agreement. 13.6. SURVIVAL. Sections 4, 5, 6.3, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement. 13.7. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the Primary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other subject matter. 13.8 SECURITY. Motorola's Information Assurance Policy addresses the issue of security. Motorola uses reasonable means in the design and writing of its own Software and the acquisition of third party Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will take the steps set forth in Section 6 of this Agreement. .5- System P=base Agmt Exhibit C Technical and Implementation Documents -6- System PwChue Agent Exhibit D Motorola/H-GAC Radio Communications Equipment & Systems Agreement - I - Systm Pumhau Agmt Exhibit E F . I . Sysum Pmd aw Agmt Resolution No. 2008-R0265 Exhibit E Workers' Compensation and Employers Liability Insurance: Seller shall elect to obtain workers' compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Seller shall maintain said coverage throughout the term of this Agreement and shall comply with all provision of Title 5 of the Texas Labor Code to ensure that the Seller maintains said coverage. Any termination of workers' compensation insurance coverage by Seller or any cancellation or non -renewal of workers' compensation insurance coverage for the Seller shall be a material breach of this contract. The seller may maintain Occupational Accident and Disability Insurance in lieu of Worker' Compensation. Seller shall issue its COI evidencing this coverage and to include the Waiver of Subrogation in favor of the City of Lubbock. Employer's Liability with limits of at least $500,000 each accident, $500,000 by disease policy limit, and $500,000 by disease each employee shall also be obtained and maintained throughout the term of this Agreement.