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Resolution - 4863 - Contract/License Agreements-Mototola-Emergency & General Communications System - 06/08/1995
Resolution No. 4863 June 8, 1995 Item #24 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Contract and associated license agreements with Motorola for the Emergency & General Communications System, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: etty X4. Johnson,cCity Secretary APPROVED AS TO CONTENT: 8th Thomas W. Tuning, Managing 1 for of Information & Communicatio s Services APPROVED AS TO FORM: Attorney DGV:js/M0T0R0LA.RES ccdocs/June 1, 1995 day of .Tune , 1995. Fm Th: Linda Mart Fax: 8061775-3307 Phone: 806/775-2028 No: Lubbock Texas Tower 4 I N N A C L E From: Pat Kosecher Pages: 7 (including cover) Date: December 28, 2000 CC: [Click here and type name] 0 Urgent ❑ For Review ❑ Please Comment 0 Please Reply ❑ Please Recycle • Comments, Linda, attached are the first We pages of the lease that I am reviewing and a copy of the audit report that shows what equipment the city has operating at this tower site. Thanks for your help. Pat 301 North Cattlemen Road - 5ara5QL9, FL - 34232 . 888.748.3482 • 941.364.8886 • far 911.364.8761 - pinnacletowers,corn TCC'd 6baG#3 LcSZT OOOZ,6Z'��Ci FROM :MOTOROLA CCNTRAICTS 615 630 8443 1595106-01 013:26 #Se3 P.02l28 Resolution leo. 4863 Communications System Agreement June 8, 1995 Item #24 Communications System Agroomont THIS AGREEMENT, made and entered into this _ day of June, 1995, by and between Motorola Inc., a Delaware corporation, hereinafter referred to as "MOTOROLA" or "Seller", and the City of Lubbock, Texas hereinafter referred to as "PURCHASER". WITNESSETH: WHEREAS, the PURCHASER desires to purchase a Communications System; and WHEREAS, MOTOROLA desires to sell a Communications System; and 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 dated January, 1987 consisting of seven (7) pages and hventy (20) sections. Exhibit B MOTOROLA Software License. Exhibit C MOTOROLA Proposal including Acceptance Test Plan, Equipment List and Statement of Work dated June 22, 1995. Exhibit D PURCHASER's Specification. NOW, 'THEREFORE, for and in consideration of the mutual promises and Covenants contained herein, the parties agree as follows: Section 1 SCOPE OF WORK A MOTOROLA shall furnish all of the equipment as outlined in Exhibit C, and provide such tools, supplies, labor and supervision necessary for the installation for those Items purchased to be installed as detailed in Exhibit C for a Communications System. B. PURCHASER shall in addition to responsibilities described in the Statement of Work included in Exhibit C of this Agreement perform the following coincident with the performance of this Agreement: { i) Provide a designated Project Director. (2) Provide ingress and egress to PURCHASER'S facilities and/or sites a$ requested by MOTOROLA and have such facilities available for installation of the equipment to be installed. (3) Provide adequate telephone lines 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. Motorda?Chy of Lubbock t - June i, 16 5 COMM. SySIOM A$tnt. Rev. 5 PROM : MCTOROL.A CONTRACTS 619 S30 SA43 1395. 06-01 05:26 #iSB3 P.03/28 28 Communications System Agreement (5) Provide a designated work area with adequate heat and light, and a secure storage area for equipment delivered to the PURCHASER. Once risk of loss has passed to the PURCHASER A accordance with Exhibit A, Section 3, 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 facilltles 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 which 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. Section 4 PERIOD OF PERFORMANCE A MOTOROLA shall complete the work in accordance with the following schedule; ( 1 ) Delivery date of equipment (2) Completion of installation (3) Final Acceptance/Completion of Acceptance Test 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 thereat and may request an extension of time to perform the work. CL 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. MokoroWe ty o! Lubbock 2 Juno 1. 1995 Gomm, SYS14M Agent. Rev. 6 FROM :MOTOROt-R QQNTRRQTS 619 530 8443 1995106-01 OS:26 4583 P.04128 Communications System 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 within fourteen (14) days prior to, or subsequent to these estimated shipping dates. Section 5 ACCEPTANCE CRITERIA A MOTOROLA has included an Acceptance Test Plan ("ATP") which is agreed to by both parties by execution of this Agreement and is a part of Exhibit C to this Agreement. The obligations set forth In the Statement of Work (SOW), Unit Level Maintenance Training, Mobile data Terminal (MDT) Installation Training, System Technical Description, System Performance, System' Quotation, OCS Statement of Work (SOW) which require performance before the ATP is conducted will be completed prior to conducting the ATP. The successful completion of the ATP will be the sole criterion for system acceptance. B. Should the PURCHASER commence use of the system or any sub -system thereof for their intended purposes, other than for the express purposes of training or testing, prior to system acceptance, final payment for said system or sub -system shall be due net thirty (30) days. The warranty or maintenance periods for such equipment put into use, unless warranty or maintenance has already begun, shall be deemed to have commenced concurrently with the use of the equipment for its intended purpose. The use of the equipment for its intended purpose shall be deemed to have occurred when the PURCHASER commences to use and rely primarily on the equipment for its communications. C. When MOTOROLA notifies PURCHASER that the System is ready for acceptance testing, if the acceptance testing of the System or any part of it is delayed for reasons beyond MOTOROLA's control for more than thirty days, final payment for the System or that part of it will become due net thirty days and warranty and maintenance periods for the System or that part of it will begin Immediately. 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 in Exhibit C, and PURCHASER agrees to buy the aforementioned equipment and services for the sum of Dine Hundred Fifty -One Thousand, Seven Hundred Eighty -Nine Dollars ($951,783.00)_ B_ The PURCHASER shall make payments to MOTOROLA as follows: pi#teen Percent (150%) of the total Contract value upon execution of this Agreement Thirty Percent (30%) of the total Contract value upon the shipment of the Fixed Network Equipment (FNE) to either MOTOROLA's Systems lest Factory or to the designated field staging area. Ten percent (10%) of the total Contract value upon installation of the FNE. Twenty -Five Percent (25%4) of the total Contract value upon delivery of the user equipment to either MOTOROLA's staging facility or the PURCHASER's facility. User equipment will include control stations and MI)Ts. Twenty percent (201%) of the total Contract value upon suooessful completion of the Acceptance Test Plan. M©lorola/City al Lubbock 3 June 1, 7995 Comm. System Agmt. Rev. 5 FROM :MOTOROLA CONTRACTS 619 530 6443 1995:05-01 09,27 k#S83 P.05/28 Communications System Agreement Payments for the completion of they above milestones are due and payable within thirty (30) days of receipt of MOTOROLA's invoice. to In the event of failure or delay (other than delays caused by an event of Force Majeure) 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 additlonal costs Incurred by MOTOROLA for storage of equipment will be invoiced and paid by PURCHASER. 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 now or alternate project Manager without written notice. 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. 9980 Carroll Canyon Road San Diego, Ca 92131-1186 Attention: Contracts And Compliance Department B. The City of Lubbock P. 0. Box 2060 Lubbock, Texas 79457 Attention: Thomas W. Tuning, Managing Director, Information & Communication Services 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 dated January, 1987 consisting of seven (7) pages and twenty (20) sections. Exhibit B MOTOROLA Software License. Exhibit G MOTOROLA Proposal including Acceptance Test Plan, Equipment List and Statement of Work dated ,lune 22, 1995. Exhibit D PURCHASER's Specification. section 10 INTENTIONALLY DELETED. MQIorolarcny of lLjhhnck 4 - June 1 , 1995 Comm_ Sysiem A9ML Rev. 5 FROM :MOTOROLA CONTRACTS 619 530 8443 1996,06-01 09:27 #1583 F.06/28 Communications System Agreement Section 11 SEVERABILITY If any portion of this Agreement or any exhibits hereto is held to be invalid, such provision shall be considered severable, and the remainder of this Agreement or any provision hereof shall not be affected. Section 12 HEADINGS AND SECTION REFERENCES The headings given to the paragraphs herein are inserted only for convenience 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 RESPONSE TO CITY OF LUBBOCK'S MEMORANDUM OF UNDERSTANDING 1 } Motorola Network Services has run a successful computer generated intermodulation study of the frequencies (transmit 860.98750 and receive 811.98750) and all frequencies currently in service or proposed to be installed on the Motorola tower. Motorola will be responsible for any intermodulation problems solely due to frequencies and equipment in use at the proposed site. Any interference caused by sources external to this tower site will be the responsibility of the City of Lubbock, Texas. 2) Motorola has quoted and included pricing for the installation of all equipment purchased as a part of this contract to the City of Lubbock. Equipment mounted in the passenger area of the vehicle shalt comply with dual air bag requirements and restriction. MDTs shall be mounted in a way as to be as operator accessible as possible. Approval of the mounting must be provided by the City prior to installation of MDTs in vehicles. A quick disconnect of power is provided. Keyboard covers are available through third party vendors. 3) All installation designs and configurations must be agreed on by Motorola and the City of Lubbock. Motorola will work with the City of Lubbock through a staging process for installation. The final installation design and configuration for the MDC system will be included as part of the contract within the Statement of Work. 4) The City of Lubbock may copy for its internal use any documentation provided as a subset to the complete manual. The complete manual cannot be copied for redistribution, but any subset may be coped for the internal use of the City of Lubbock. 5) Motorola agrees that no equipment or services shall be provided to the City or other agencies or organizations for use with the City of Lubbock's Mobile Luta Communications System for use within the City of Lubbock's Mobile Data Communications System without the written authorization from the City of Lubbock. This authorization may only be provided to Motorola by the City Manager or the City Manager's designee. Those designee's are to be: Thomas W. Tuning Managing Director Information & Communication Services 916 Texas Ave. Lubbock, TX 79401 Molorola/Clty of Lubbock 5 .funs 1. 1995 Comm. system Agmi. Rev, 5 FRAM :moTOROLP CON7RMCTS E19 E30 aA43 1996,06-01 09:2e k#593 P.07/29 Communications System Agreement Paul Thomas Radio Shop Supervisor 302 Municipal Drive Lubbock, TX 79403 Doug Davenport Communications Center Supervisor Information & Communications Services 916 Texas Ave. Lubbock, TX 79401 6) Application software services shall be provided by Motorola for the first year of warranty at no additional cost to the City of Lubbock from system acceptance. The following are maintenance quotes for the remainder of that five year period. 5x8 7x24 Hardware 2nd year- $13,104 $16,380 Included 3rd year: $13,759 $17,199 Jncluded 4th year: $14,447 $18,058 $910 51h year: $15,169 $18,961 $910 These prices apply if the City of Lubbock chooses to contract through Motorola for the maintenance of their application software and hardware. The City may choose to contract directly with the vendor for this maintenance package. 7) Motorola Mobile data Equipment is currently available for purchase through the H -GAC (Houston -Galveston Area Council of Governments) Cooperative Purchasing Program. 8) Motorola's Corporate policy is to provide parts availability for at] Motorola - manufactured products for a minimum of 7 years from the date of notice of product cancellation. Application software and hardware including parts will be supported for a minimum of 3 years. 9) Motorola's standard parts policy is shipment by 5:00 pm on orders received by 2:00 pm Monday through Friday by our parts department. Motorola cannot guarantee delivery times due to the possibility of any parts backorder at the time of an order by the City of Lubbock. The City of Lubbock can r®quest 2nd day air on shipment when necessary at the City of Lubbock's cost. 1 0) The City of Lubbock may request a change of a site manager, project manager, or contract manager with documented cause. Motorola will replace this individual if the situation dictates that it be necessary. 1 1 } Motorola agrees that all personnel assigned to the City of Lubbock will be capable of completing the tasks assigned. 1 2) Motorola agrees to provide operator training for the supplied equipment as described in the Statement of Work. A training attachment will be provided as a part of the contract outlining the training procedure. The City of Lubbock may videotape such training for sue in conducting its own future employee and system user training. This video training must be used for internal use only. MotorO1d7City of Lubbock - 6 - June 1, 1995 Comm- System Agmt. Rev' 5 FRDM :MOTOROLR CONTRRCTS 619 630 8443 1996.06-01 09:28 k#683 P.08f28 Communications System Agreement 1 3) During the 12 month warranty period, Motorola will repair under the provisions of Its warranty those Motorola products identified by the City of Lubbock to be malfunctioning and not operating in accordance with published Motorola specifications for that product. Motorola will provide a diagnostics test on the Radio Network Controller and Data Base Station within 90 days before warranty expiration. Motorola will make any repairs or adjustments necessary under the provisions of the warranty agreement. 1 4) Motorola will provide to the City of Lubbock a System Description, System Performance, and Acceptance Test plan for the proposed Mobile Data System. These sections describe the design and functionality of the proposed Mobile Data System and represent what the City of Lubbock may expect from their system purchase. 1 5) Acceptance test will be in accordance with Motorola's test plan. Motorola would recommend that the MDTs are installed in a manner that is following criteria of the training program. 1 6) Motorola has proposed the equipment list and system design contained in document #901.1018DTX for a completely installed and operation Mobile Data System, It is the complete and total package of goods and services to be provided for the bid price. 1 7) The application software provided by Motorola will provide at the minimum the existing functionality of the customer's existing CAD system and Record Management. The Message switch will provide the basic functionafily outlined in the OCS Message Switch Features and Benefits document. OCS Technologies Message Switch Features and Benefits ' System Startup, Program Loading, System Shutdown, and Recovery The message switch provides single command operator entry to bring the Message Switch system either up or down and provides the necessary controls to either initialize certain system files or resume processing with existing system files- All system queue files may be recovered at the point of system shutdown. This provides the facility to continue forwarding messages maintained in the system when the shutdown occurred. ' Communication Environment Control The Message Switch System provides and internal control of the associated communication network. The Messaga Switch automatically checks the functionality of the various communication lines attached to the Message Switch. Any error conditions detected are reported to the various tasks which comprise the system. In addition, the system displays the error condition on the system control terminal. Error messages are returned to their originating message terminals when the associated destination communication links are inoperable_ When communication is re-established for a communication link, notification is communicated to the system tasks and the transmission of any queued messages is continued. System Error Monitoring and Deporting The Message Switch system includes error detection diagnostics which are displayed on the system control terminal as the errors occur. The error log which is created as a result of this procedure may be reviewed to determine system failure conditions. This log is also a useful too] in determining the cause of system communication tailures. Molorola/Glty of Lubbock -7 - June 1, 1685 comm. Syslem Agent. Rev. 5 FROM :MOTOROLR CONTRPCTS 619 530 8443 1995.06-01 09:29 k#S83 P.09/28 Communications System Agreement ' Message Log Facility All messages logged by this facility are date and time stamped. This provides a chronological tracing of incidents and actions, The Message Switch system controls as many log files as disk space will allow. The system automatically switches log files at midnight. The current log file at the Shift time may be printed or archived, Two additional routines are performed at shift time; 1) delete all log files older than a configurable age and 2) compress all log files older than a week. ( That age is also configurable) System Access Management The Message Switch system provides access validation processing for the MDT network and for any Message Switch attached terminals. ' Optimized use of Radio Network MDC -use wildcards and variable Q messages for all and group messages HOLAP use LLI's for putting MDT's in broadcast groups ' Graphical User Interface (GUI) using X -Windows ` Customer definable Broadcast Groups ' Customer definable Action on receipt of hit Message Multi -Agency Capability The Message Switch can be configured to serve many agencies. These agencies can have a CAD system, but do not need one. Without a CAD system the Switch can provide mobiles with ability 10 communicate to one another and to the State and National Crime Information and Law Pnforcemcnt Systems. If the agency has a CAD system the mobile users can also receive dispatches, communicate with dispatchers, perform their own unit status updates and many other commands that the CAD system allows from the mobile computers. This Multi -Agency approach can also allow the costs of the system to be shared among all the agencies that use the system. 1 8) The message switch quoted as part of the Lubbock proposal has the capability to log alt transactions or only the transactions identified by the City for a minimum of a 180 day retention period. it also has the off-line archive capability, however, the City has been informed that their current 525 MB hard drive is inadequate to handle these capabilities. The City of Lubbock will need to purchase 1 Ga of additional disk space which has not been included with Motorola's proposal. 1 9) Sections 6.19 through 6.22 of City of Lubbock's RFP#13040, pages 6-25 through 6- 30 are incorporated into the Agreement with the following clarifications. 6.19 Clarifleation Audible Alarm Volume is controlled within the software of the MDT and does not have manual adjustment available. Matwola;CBy o1 Lubbock a - Juno 1, 199$ Comm. System A9mt. Rev. 5 FROM :MOTOROLR CCNTRACTS 619 530 0443 1996.06-01 09:30 use3 P.10/28 Communications System Agreement Procurement of an FCC license is the responsibility of the City of Lubbock. However, Motorola will help assemble the forms, technical data and site information to aid in the request. 6.22 Clarification There is not a page indicator on the MDT (9100-T). The MDT cannot be polled by dispatcher for a message that has been prepared but not sent by the field user. The MDT is capable of energizing an external output relay and printing, however, additional hardwara including an external relay and printer will have to be purchased and is not Included in the proposed equipment. The MDT automatically performs sell -diagnostic tests when the unit is turned on. The self-diagnostic routine is not able to be initiated from the central controller. The MDT operates on a heavy duty vehicle battery supply voltage of 13.8 Vdc. The MDT must be disconnected when jump-starting the vehicle. MDT to MDT messaging is done with the assistance of the message switch or CAD system. Radio coverage for the MDT system is defined by the Acceptance Test Plan. 2 0) Training will be as outlined and specified In the Statement of Work. 2'1) Motorola's hardware warranty named in this section is for one year from system acceptance. Ongoing System Maintenance following the one year warranty period will be facilitated via a Motorola System Support Agreement, with annual rates as follows: 5 X 8 7X24 Year #2 $36,588 $38,736 Year #3 $38,052 $40,284 Year #4 $39,576 $41,898 Year #5 $41 ,1 60 $43,572 7X24 maintenance includes 24 hour call -out via Motorola Dispatch Operations and on- site response from Motorola's local service center for fixed station equipment only. Mobile Data Terminals will be serviced in -shop Monday through Friday, 8:00 AM to 5:00 PM. RNC Software Support is only available Monday through Friday. These rates are based on a system comprised of one each L1881 RNC, DSSII, and seventy-five Mobile Data Terminals and do not include the Message Switch/Application Software and Hardware listed in item (6) above. 2 2 ) Motorola requests that item (22) be replaced with the following: Motorola Network Services department agrees to charge the City of Lubbock $100.00 per month ($1,240 annually) for the use of the tower, building space and olectrical power required by the proposed data system at the following location: 1,040 feet south of the intersection of Loop 289 and Highway 331. This represents one antenna system on the tower, enough spike and AC power for the proposed data base station, and Is in lieu of the space on the tower for the three antennas listed on the Antenna Site License agreed Mrrior WCily ai Lubbock 4 - June t, 1985 Rev_ 5 Comm, $yslem agmt FROM :MOTOROLA CONTRPCTS 619 S30 5443 1995,06-01 09:30 #Se3 P.11/29 Communications System Agreement on 5/16/94. All other terms and condiiioi-is of lie nniErnna ^iiC uGeilye reiiiai(l ilt eiiec:i as agreed on 5/16194. Motorola will work with the City to allow the City to secure their equipment. 23) The Motorola Communications System Agreement is subject to satisfactory completion and mutual agreement of the Statement of Work (SOW), Acceptance Test Flan (ATP), System Description and System Performance Documents. These documents should be completed and agreed upon by June 22, 1995. 2 4) A. Section 2.7 Taxes, and Addendum #1 contractor insurance requirements, and current wage determination for the City of Lubbock, all part of RFP#13040, are incorporated into this Agreement. (While MOTOROLA does not directly employ any persons for the Craft trades set out in the current wage determinations, we will ensure that these determJnatlons are complied with for any subcontractors that may be hired for this project.) B. Any and all legal disputes arising under the Agreement or out of the proposal herein shall be tried according to the laws of the State of Texas, and Motorola agrees that the venue of any such action shall be in the State of Texas. Motorola shall at all times observe and comply with all applicable laws which in any manner effect the Agreement or the work to be performed, and shall Indemnify and save the City harmless against any claims arising from the violation of any such laws by Motorola or Motorola's employees. Section 14 FULL. AGREEMENT This Agreement and Exhibits hereto 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 the duly authorized representatives of both parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the last day and year written below. MotoroWClty of Lubbock 1p - .lune 1, 1995 Comm System Ag"- Flev. 5 Communications System Agreement MOTOROLA INC. By: —67v� lk (Authorized Signature) Name: Ernie Tate (Print - Block Letters) Title: Vi rP Pras i cunt (Print - Block Letters) Name: David R. Langston Title: Mayor Attest:. Betty K4. 'JohnsorY, City Secretary Approved as to Content: Thomas W. Tuning, Director, I ation $ Communication Services ved as to Form: Dolvald G. Vandiver, First Assistant ' City Attorney MotoroWCity of Lubbock 11 - .lune 1, 1995 Comm. System Agmt. Rev. 5 FROM :MtOTOROLG CONiTRPCTS Gig 930 8443 1995,05-01 09:31 #583 P.13!28 Exhibit A EXHIBIT A GENERAL PROVISIONS DATED MOTOROLA, INC. Section 1 STANDARDS OF WORK JANUARY, 1987 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 PURCHASER represents that it is exempt from payment of taxes under Certificate No. 1-75- 8400 and none are to be charged to the PURCHASER unless there is a subsequent change In the tax laws and PURCHASER becomes a taxable entity. Section 3 SHIPPING, TITLE ANIS H1SK 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 delivery to the F.O.B. point. After installation, risk of loss and damage to the equipment 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. Section 5 LIMITATION OF LIABILITY; MOTOROLA'S INSURANCE Except for personal injury or death, MOTOROLA's total liability whether for breach of contract, warranty, negligence, strict Ilabllity in tort or otherwise, is limited to the price of the particular products 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 preduct(s) that are not as warranted. In no event will MOTOROLA be liable for any loss of use, lass 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. MOTOROLA shall procure and carry at its sole cost and expense through the life of this Agreement, insurance protection as hereinafter specified. Coverage in excess of that specified herein also shall be acceptable. Such insurance shall be carried with an insurance company MotorolatCity of Lubbock - 1 - June 1, 1995 Comm. System Agmt - EA. A Rev. 5 FROM : MOTOROL..R C;C7NTRRCTS 619 530 8443 1996,06-01 09:31 ##583 P.14/23 Exhibit A authorized to transact business in the State of Texas and shall cover all operations in connection with this Agreement, whether performed by the Contractor or a subcontractor, or separate policies shall be provided covering the operation of each subcontractor. A certificate of insurance specifying each and all coverages shalt be submitted prior to contract execution. A Comprehensive General Liability Insurance MOTOROLA shall have Comprehensive General Liability Insurance with limits of $500,000.00 Combined Single Limit in the aggregate and per occurrence to include: (i) Premises and Operations; (ii) Explosion & Collapse Hazard; (iii) Underground Damage Hazard; (iv) Products & Completed Operations Hazard; (v) Contractual Liability; (v) Independent Contractors Coverage;. and (vi) Personal Injury (with exclusion "c" waived). PURCHASER Is to be named as an additional insured on this policy for this specific job, and copy of the endorsement doing so is to be attached to the Certificate of Insurance. B. Owner's Protective or Contingent Public Liability Insurance and Property Damage Liability Insurance MOTOROLA shall obtain an Owner's Protective or Contingent Public Liability insurance policy naming the City of Lubbock as insured and the amount of such policy shall be as follows: For bodily injuries, including accidental death and/or property damage, $500,000 Combined Single Limit. This policy shall be submitted prior to contract execution. O Comprehensive Automobile Liability Insurance MOTOROLA Shall have Comprehensive Automobile Liability Insurance with limits of not less than: For Bodily Injury/Property Damage, $500,004.00 Combined Single Limit, to include all owned and non owned cars including: Employers Non -ownership Liability Hired and Non -owned Vehicles. PURCHASER is to be named as an additional insured on this policy for this specific job and copy of the endorsement doing so is to be attached to the Certificate of Insurance. D. Builder's Risk Insurance MOTOROLA shall obtain an Builder's Risk policy in the amount of 10011/c of the total contract price naming PURCHA PR as insured. E Umbrella Liability Insurance MOTOROLA shall have Umbrella Liability Insurance in the amount of $1,000,000.00 on all contracts with coverage to correspond with Comprehensive General Liability and Comprehensive Automobile Liability coverages. F. Workers Compensation and Employers Liability Insurance Worker's Compensation Insurance covering all employees whether employed by the Contractor or any Subcontractor on the job with Employers Liability of at least $500,000.00. Motorola/City of t-Libboek - 2 - June 1, 1995 Comm, Syslerr Agmt. - Exh. A Rev. 5 FROM :MCTOROLP CCNTRRCTS 619 530 8443 1995.06-01 09:32 1#593 P.15/2B Exhibit A G Proof of Coverage 13efore work on this Agreement is commenced, MOTOROLA and each subcontractor shall submit to PURCHASER for approval five Certificates of Insurance covering each insurance policy carried and offered as evidence of compliance with the above Insurance requirements, signed by an authorized representative of the insurance company setting forth: (1) the name and address of the insured; (2.) the location of the operations to which the insurance applies; (3) the name of the policy and type or types of insurance in force thereunder on the date borne by such certificate; (4) the expiration date of the policy and the limit or limits of liability thereunder on the date borne by such certificate; (5) a provision that the policy may be canceled only by mailing written notice to the named insured at the address shown in the bid specifications; (6) a provision that written notice shall be given to the City ten days prior to any change in or cancellation of the policies shown on the certificate; (7) the certificate of certificates shall be on the form (or identical copies thereof) contained in the job specifications. No substitute of nor amendment thereto will be acceptable; and (8) If policy limits are paid, new policy must be secured for new coverage to complete project. 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 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 said default. If MOTOROLA fails to cure said default, the PUHCHASE=R may terminale 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. Section B DELAYS BY PURCHASER If the PURCHASER is responsible for delays (other than delays caused by an event of Force Majeure) which cause the installation and acceptance of this system as defined in the Agreement, 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 M9lorolaXily of Lubbock .3 - June 1, 1995 Comm. Sysiom Agml. • Exh. A Rev. 5 RROH : NOTOROLP CONTRRCT.= 619 S3- 6443 1995,06-01 09:33 #1583 P.16/28 Exhibit A 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. MOTOROLA reserves the right to modify payment terms in the event of such delays. IN THE EVENT OF DELAY, PURCHASER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, LIQUIDATED, SPECIAL OR CONSEQUENTIAL DAMAGES. Sectlon 9 LICENSESIAUTHORIZATION The PURCHASER is solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission and for complying with FCO 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 INDEMN]FICATION MOTOROLA agrees to and hereby indemnifies and saves PURCHASER harmless from all liabilities, judgments, costs, damages and expenses which may accrue against, be charged to, or recovered from the PURCHASER by reason of or on account of damage to the property of the PURCHASER or the property of, injury to, or death of any person, when such damage or injury is caused by MOTOROLA's sole negligence 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 MOTOROLA agrees that the equipment, including the OCS software and Message Switch, will perform in accordance with the technical 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 MOTOK) A. Section 12 WARRANTIES A MOTOROLA represents and warrants that all products, software, and items delivered under this Agreement conform in design, materials and workmanship to the appropriate MOTOROLA Technical Specifications, as outlined in the System Technical Description. MOTOROLA further warrants that their products, software, and other items will Interact according to the specifications contained in Exhibits 0 and D. Successful completion of the ATP shall constitute full compliance with and fulfillment of this warranty. B. Hardware Warranty: MOTOROLA radio communications products are warranted to be free from defects in material and workmanship for a period of ONE (1) YEAR, except for crystal devices, channel elements, high stability oscillators Gather than reference oscillators used for frequency synthesis which are warranted for one (1) year) and crystal filters, which are warranted for a period of TEN (10) YEARS from the date of shipment. Parts, including crystals and channel elements, will be replaced free of charge for the full warranty period and the labor to replace defective parts will be provided for ONE (1) YEAR from the date of acceptance. Thereafter, the PURCHASER must pay for the labor involved in repairing the product or replacing the parts at the MotorolelChy of Lubbock - a - June 1, 5995 Comm. Syslem Agmt • Exh. A Rev. 5 FROM :MOTOROLA CCNTRRCTS 619 530 8443 199S.06-01 09:33 k#S83 P.17i"28 Exhibit A prevailing rates together with any transportation charges to or from the place where warranty Service is provided. This express warranty is extended by MOTOROLA, Inc., 1301 E. Algonquin Road, Schaumburg, Illinois 60196, to the original purchaser only, and only to those purchasing for purpose of leasing or solely for commercial, industrial, or governmental use. CL Software Warranty: The warranty for software, if any, shall be governed by the separate software license agreement set forth in Section 14. D. THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION OF THIS AGREEMENT ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. E. In the event of a defect, malfunction or failure to conform to specifications established by MOTOROLA. or if appropriate, to specifications accepted by MOTOROLA in writing, during the period shown, MOTOROLA, at its option, will either repair or replace the product or refund the purchase price thereof, and such action an the part of MOTOROLA shall be the full extent of MOTOROLA's liability hereunder. This warranty is void if: (a) the product is used in other than its normal and customary manner; ( b ) the product has been subject to misuse, accident, neglect or damage; (c) unauthorized alterations or repairs have been made, or unapproved parts used In the equipment. F. This warranty extends only to individual products; batteries are excluded but carry their own separate limited warranty. Because each radio system is unique, MOTOROLA disclaims liability for range, coverage, or operation of the system as a whole under this warranty. Non -MOTOROLA manufactured products are excluded from this warranty, but subject to the warranty provided by their manufacturers, a copy of which will be supplied to the PURCHASER on specific written request. G In order to obtain performance of this warranty, the PURCHASER must contact its MOTOROLA salesperson or MOTOROLA at the address first above shown attention Quality Assurance Department. 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 confidennA. Molorolalcity of Lubbock 5 - June 1, 1995 Comm. System Agmt. - Ekh. A R9v. 5 FROM :MOTOROLA CCNTRACTS 615 530 8443 1856,06-01 08:34 #583 P.18/28 Exhibit A (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. MOTOROLA acknowledges that PURCHASER is subject to requests for Information under the Texas Open Records Act, Art. 6252, 17a V.A.T.S. (the "Act"), and that PURCHASER may receive requests for information about this contract, and the software, equipment and other materials furnished by MOTOROLA to PURCHASER. PURCHASER agrees that it will, in all cases where information is requested and said information falls within the terms of this Section 13, apply to the Attorney General of Texas for an opinion under Section 7(c) of the Act to determine if such information request is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested information shall be on MOTOROLA.. In any case where PURCHASER has requested an opinion from the Attorney General of Texas as to whether or not requested information is public under the Act, it discharges its obligation to MOTOROLA under this Section 13 of the Agreement with respect to that request. MOTOROLA further agrees to pursue the protection of its property rights on its own behalf and to bear all costs associated therewith. In the event PURCHASER is noiltled by the Attorney General that the requested information is public, it shall release such information subject to any order of any court having jurisdiction over the premises obtained by MOTOROLA. In every case where MOTOROLA obtains such an order, it shall bear all costs and save PURCHASER harmless from any cost, attorneys' fees or damages. Section 14 SOFTWARE LICENSE AND WARRANTY MOTOROLA, will, in the course of the transaction for the items of equipment identified in the Agreement, deliver to PURCHASED, on a licensed basis, one or more computer programs (Product Program). Delivery of all Product Programs by MOTOROLA and acceptance of same by PURCHASER shall be made only under the terms and conditions as Contained in Exhibit B attached hereto and made a part hereof. The terms and conditions of the License Agreement contained in Exhibit B shall survive the completion of the Agreement. Section 15 PATENT INDEMNIFICATION MOTOROLA agrees to defend, at its expense, any shits against PURCHASER based upon a claim that any products furnished hereunder directly infringes a U.S. patent or copyright, and to pay costs and damages finally awarded in any such suit, provided that MOTOROLA is notified in writing within twenty (20) days and at MOTOROI.A's request and expense is given control of said suit and all requested assistance for defense of same. If the use or sale of any such product(s) furnished hereunder is enjoined as a result such suit, MOTOROLA, at its option and at no expense to PURCHASER, shall obtain PURCHASER the right to use or sell. said product(s) or shall substitute an equivalent product or products reasonably acceptable to PURCHASER and extend this indemnity thereto or shall accept the return of said product(s) and reimburse PURCHASER the full purchase price therefor, less a reasonable charge for reasonable wear and tear. This indemnity does not extend to any suit based upon any infringement or alleged infringement of any patent or copyright by the ccmbination of any product(s) furnished by MOTOROLA and other elements nor does it extend to any product(s) of PURCHASER'S design or formula. MolofolahUy o1 Lubbock 6 • June 1, 1685 Comm, System Agmt. - Exh. A Rev. 5 FROM MOTOROLP COPJTRPCTS G19 5301 2A43 1996,06-01 09:34 #1583 P.19/29 Exhibit A Section 15 DISCLAIMER OF PATENT LICENSE Nothing contained in this Agreement shall be deemed to grant, either directly or by implication, estoppei, 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 PURCHASE=R to exercise rlght or power hereunder shall not operate as a waiver thereof. Section 18 GOVERNING LAIN 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 either party hereto other than MOTOROLA may assign this order to one of its Subsidiaries as in the normal course of business. Section 20 FORCE MAJEURE Neither party shall be liable for delays in delivery or performance, or for failure to manufacture, deliver or perform when caused by any of the following which are beyond the actual control of the delayed party, including, but not limited to: (i) acts of God, acts of the public enemy, acts or failures to act by the other party, acts of civil or military authority, governmental priorities, strikes or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, riots, delays in transportation, and loss or damage to goods in transit; or (ii) inability on account of causes beyond the reasonable control of the delayed party or its suppliers to obtain necessary products, components, services or facilities. Motorola[Cily of Lubbock 7 - June 1, 1995 Comm. System Agmt. - Fxh_ A Rev. 5 FRDM !MOTOROLA CONTRGCTS 619 530 8.443 199SIOG-01 09:35 #S83 P.20/28 Exhibit B SOFTWARE LICENSE AGREEMENT This License Agreement is between MOTOROLA, INC., a Delaware Corporatlen, by and through its Land Mobile Products Sector, having an office at 1301 East Algonquin dead, Schaumburg, Illinois 60196 ("Motorola") and the licensee named below ("Licensee"). BACKGROUND Motorola has developed or acquired, or will develop or acquire Programs (as hereinafter defined). The Licensee wishes, either now and/or in the future, to obtain the right to use such Programs. Motorola is willing to allow such use, provided the Licensee agrees to observe certain terms and conditions governing such use. The Licensee is willing to be so bound. Pursuant to this Software License Agreement, the Licensee can obtain a right to use Programs. NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter expressed, Licensee and Motorola agree as follows: SECTION 1 - DEFINITIONS 1.1 "Licensee" shall mean the licensee set forth at the end of this Agreement. 1.2 "Licensee's Personnel" shall mean any person who is directly employed by the Licensee. 1.3 "Motorola Products" shall mean bona fide Motorola products designed, manufactured, acquired and/or sold by Motorola's Land Mobile Products Sector, as identified in purchase contracts or as otherwise identified. "Motorola Products" shall not include products that were originally "Motorola Products," but that have been modified in such a way that the products no longer comply with Motorola's published specifications for such products as of the time of manufacture of such products by Motorola. 1.4 "Embedded" shall mean object code that is resident in an unalterable media, such as, for example, in a masked microprocessor, ROM, or PROM, or in an alterable media that is not ordinarily altered during ordinary use of a Motorola Product that includes the alterable media, such as, for example, EPROM of EEPROM_ 1.5 "Program," "Programs," and "Program(s)" shall all mean Motorola abject code that is provided by Motorola for use in conjunction with Motorola Products of for use within Motorola Products, and shall include later -provided object code supplements and updates to any item of Motorola object code. 1.6 "Site" refers to a specified' geographic location where usage of Programs is allowed. To the extent that Motorola shall, in a particular instance, specifically identify a particular Motorola Product or other platform as a "Site" for a particular identified Program or Programs, then that particular Motorola Product or other platform shall, fvr purposes of this Agreement, be a "Site." Mutorala/City of Lublaock 1 .lune 1, 1995 Comm. System Agmt. - Exh. 8 Rev. 5 FROM :MOTOROLA CONTRACTS E19 530 e443 199S,06-01 09:3S #iS83 P.21/28 Exhibit B SECTION 2 - LICENSE AND CONDITIONS OF USE 2.1 Motorola hereby grants to Licenseo a personal, non-exclusive license under Motorola's applicable patents, copyrights, and trade secret rights to use Program(s) under the following terms and provisions. 2.1.1 Licensee may only use the Programs) at a Site, or 'Sites, expressly stated in purchase contracts pertaining to the Programs, or at a Site, or Sites that are otherwise identified in a writing that is provided to Motorola at the time the Licensee originally requests to use the particular Program or Programs. If a Site is not so specified, the Licensee may use the Program(s) only at the business address where the Program(s) was initially delivered by Motorola, or to such other business address where the Program(s) was initially installed with Motorola's knowledge and written acknowledgment, unless otherwise provided herein. The Parties acknowledge that these site limitations do not apply to Programs included in MOTs, which are mobile in nature. 2.1.2 Licensee acknowledges Motorola's claim that the Program(s) contain valuable proprietary information and trade secrets, and that unauthorized dissemination, distribution, modification, reverse engineering, disassembly, or unauthorized use of the Program(s) could cause irreparable harm to Motorola, and thus Licensee agrees not to reverse engineer, disassemble, disclose, transfer, provide, or otherwise make available in any form whalsoever the Program(s), the information therein, or any portion thereof, to any person or organization other than Licensee's Personnel without the prior written consent of Motorola_ 2.1.3 licensee shall not modify, adapt, or merge any Program, or alter the operability of any Program, except as specifically authorized In writing by Motorola in advance of any such modification, adaptation, merge, or alteration. 2.1,4 Since unauthorized use of such Program(s) can greatly diminish the value of such trade secrets and cause irreparable harm to Motorola, Licensee agrees that Motorola, in addition to any other remedies it may have, shall be entitled to equitable relief to protect such trade secrets, including without limitation, temporary and permanent injunctive relief without the proving of damages by Motorola. 2.1.5 Licensee will take appropriate action, by instruction, agreement or otherwise, with any persons, including Licensee's Personnel, permitted access to the Program(s), such that Licensee satisfies its confidentiality obligations under this License Agreement. 2.1.6 The Licensee shall include all copyright notices, trademark notices, and other proprietary legends in accordance with Motorola's instructions on all copies of the Program(s). 2.1.7 Title to the Program(s) and any copies thereof, in whole or in part, and all rights in patents, copyrights, trade secrets, and other intellectual properties in such Program(s) are vested in, and shall remain vested in, Motorola. 2.1 .8 Licensee acknowledges and agrees that the existence of any copyright notice on any Program shall not be construed as an admission or presumption that public disclosure of trade secrets, or publication of such Program, has occurred. 2.1.9 Licensee Administration for Programs_ shall comply with the export regulations of the Office of Export the United States Department of Commerce with respect to the Mo,or*WClty of Lubbock 2 - June 1, 1995 comm_ Syslam Agmt. • W. i3 Rev. 5 FROM :MOTOROLA CONTRACTS 619 630 8443 1998106-01 09:36 4583 P.22/28 Exhibit B 2.1.10 Unless otherwise provided herein, the rights provided in this License Agreement shall not be assigned or otherwise transferred by the Licensee to a third party, and any such attempt shall be null and void. 2.1.11 Motorola reserves the right to assign this License Agreement, encumber or sell any Program, or subcontract any of its obligations hereunder, either in whole or in part, without notice to or the consent of Licensee. 2.1.12 The Parties acknowledge that this Program license and conditions of use are subject to the provisions of the Texas Open Records Act, as further detailed In Section 5.3 below. 2.2 Licensee may transfer a Program(s) in its entirety to a Transferee, but only if the Program(s) is transferred as Embedded in a corresponding Motorola Product, and only if the Transferee agrees in writing to use the Program(s) under license terms and provisions that are at least as restrictive as those set forth herein, and Motorola is provided with a copy of such writing. 2.4 The rights granted herein pursuant to this License Agreement shall be effective: (A) after the Licensee has signed this Software License Agreement and returned this Software License Agreement to Motorola at an address specified by Motorola; and (B) the earlier occurrence of either: (i) Motorola acknowledges to Licensee Motorola's acceptance of this Software License Agreement in writing; or (ii) Motorola ships to the Licensee Programs as ordered by the Licensee. (C) THE BANKING, NEGOTIATION, OR OTHER USE OF ANY PAYMENT MAIDE BY THE LICENSEE, IF ANY, SHALL NOT CONSTITUTE AN ACCEPTANCE OF THIS SOFTWARE LICENSE AGREEMENT BY MOTOROLA. 2.5 If the Licensee wishes to use a particular version of a Program at more than one location, then the Licensee shall obtain from Motorola at least one copy of the Program for each such location. Provided such sufficient number of copies are so obtained, the Licensee may make additional copies of such Progmm(s) to service a Site, or Sites, which Sites shall be expressly identified in purchase contracts pertaining to the Programs or otherwise identified in a written agreement at the time of sale that is signed by at least Motorola. Within ten (10) business days of Motorola's written request, the Licensee shall provide to Motorola a written identification of all locations where the Licensee has the Program(s). 2.6 The Licensee shall not use any Program, or files that are accessed, created, or maintained by a Program, to modify a Motorola Product, or cause a Motorola Product to be modified, in any manner that: (A) constitutes an illegal, unfair, or deceptive trade practice under any applicable federal, state, or local law, rule, or regulation; or (B) constitutes an infringement of any of Motorola's intellectual property rights, including Motorola's patent rights, trademark rights, copyrights, and/or trade Moloro[Wr,hy of Lubbock 3 - Juno 1, 1895 Comm. $ysiem Agmt. - Exh_ B Rs,r. 5 FROM :MOTOROLG CONTRGCTS 619 530 8443 1996,06-01 09:37 #S83 8.23/28 Exhibit B secret rights, subject to the provisions of the Texas Open Records Act, as further detailed in Section 5.3 below. 2.7 In the event of any failure by the Licensee to observe the terms and conditions set forth ... iin:n I :K .. ��•,� A.��f _—c. =L=-. ..� s1.I _li=-. '�4 "4::. y' –:� �. _ ��.� .�..-.� -�--.��.�.. .. ..... �..� _ _ _.__. available to Motorola under law or equity; Motorola may - (A) withhold performance hereunder; or (B) Carminate the entire license under this Section; or (C) demand and be entitled to the immediate return all Programs; or (D) repossess, by any appropriate means, with notice to the Licensee, all Programs. Such remedies shall be cumulative and without any obligation upon Motorola to exercise any particular remedy. 2.8 Licensee shall not enable, disable, or otherwise add or delete feature functionality with respect to a Motorola Product by accessing, altering, or reconfiguring the operability of a Program(s) except by a prior written agreement with Motorola and with Motorola's prior knowiedge of the specific feature functionality to be enabled, disabled, or otherwise added or deleted. SECTION 3 - MAINTENANCE DISCLAIMED 3.1 Motorola shall not be responsible for support or field service of any [grogram under this License Agreement. Any maintenance by Motorola, if available, shall be by separate agreement on Motorola's then current terms and conditions and at Motorola's then current prevailing rates for such maintenance. SECTION 4 - TERM OF LICENSE AGREEMENT 4.1 This ,Agreement shall be effective from the date of Motorola's approval as set forth below. The Licensee shall be able to acquire rights, subject to this Agreement, to use a Program(s) subsequently acquired from Motorola, provided that such Program(s) is acquired from Motorola at a time during the three (3) year term following the effective date of this Agreement. 4.2 The Licensee shall be perp8tually entitled to use the Programs so acquired pursuant to the terms of this License Agreement for so long as the Licensee shall continue to use the corresponding Motorola Products. Licensee's obligations under Section 2 shall continue past termination except insofar as the exceptions of Section 5 are applicable. 4.3 The right to use Programs under this License Agreement may be earlier terminated for the reasons set forth in Section S hereinbelow. SECTION 5 - EXCEPTIONS 5.1 The Licensee's obligations with respect to confidentiality under this Agreement shall not apply to those parts of a Program(s) that 5.1 A Is or becomes publicly known through no wrongful act on the part of Licensee; MoloroLa/Cily ai Lubbock . a . June 1, 1995 Comm. Syst6m Agml.. EA. 6 Rev. 5 FROM :MOTOROLA CONTRACTS 619 S30 8443 1995.06-01 09:37 ##se3 P.24f29 Exhibit B 5.1.2 Is already known to Licensee at the time of disclosure; 5.1.3 Is rightfully received by Licensee from a third party without breach of this License Agreement; or 5.1.4 Is explicitly approved for public release by written authorization of Motorola. 5.2 That an exception under Section 5.1 may be applicable shall not diminish in any way any other obligations the Licensee may have, such as those obligations that are based upon patent and copyright interests of Motorola. 5.3 MOTOROLA acknowledges that PURCHASER is subject to requests for information under the Texas Open Records Act, Art, 6252, 17a V.A.T,S. (the "Act"), and that PURCHASER may receive requests for information about the Programs furnished by MOTOROLA to PURCHASER. PURCHASER agrees that it will, in all cases where information is requested and said information falls within the terms of this Section 13, apply to the Attorney General of Texas for an opinion under Section 7(c) of the Act to determine if such information request is exempt from public disclosure. In each case, however, the burden to establish the exempt nature of the requested information shall be on MOTOROLA. In any case where PURCHASER has requested an opinion from the Attorney General of Texas as to whether or not requested information is public under the Act, it discharges its obligation to MOTOROLA under this Section 13 of the Agreement with respect to that request. MOTOROLA further agrees to pursue the protection of its property rights on its own behalf and to bear all costs associated therewith. In the event PURCHASER is notified by the Attorney General that the requested information is public, it shall release such information subject to any order of any court having jurisdlctlon over the premises obtained by MOTOROLA. In every case where MOTOROLA obtains such an order, it shall bear all costs and save PURCHASER harmless from any cost, attorneys' fees or damages. SECTION 6 - TERMINATION FOR CAUSE 6.1 A party to this Agreement may give written notice of termination to a breaching party if the breaching party commits a material breach of any of its obligations: (1) as set forth herein, (2) as set forth in a purchase contract for a Program(s); or (3) as set forth in any other agreement between the parties regarding such Program(s). The written notice of termination shall specify the material breach and must specify whether the entire License Agreement is being terminated or whether the License Agreement is being terminated with respect to a particular Program, or particular Programs. Upon receipt of the written notice of lernlination, the breaching party shall have ten (10) business days to cure the material breach. In the event that the material beach is not cured during the ten (10) working days, the License Agreement is terminated as specified In the written notice of termination. 6.2 Upon termination of this License Agreement in its entirety or termination of this License Agreement for any particular Program(s) by Motorola for cause, Licensee shall promptly forward to Motorola, or to Motorola's designee, all copies of Programs for which this License Agreement is terminated. In the event a Program is Embedded In a Motorola Product, the Licensee shall either return the Motorola Product (or that portion of the Motorola Product that contains the Program), or verify destruction of the Embedded Program. Mwl®roWcRy o1 Lubbock - S _ June i, 1995 Comm. System Agml. - Exh. 15 Rev. 6 FROM :MCTORDLA CONTRACTS r_=.VD F=0 944.J 1995.06-01 09:38 #583 P.2S/28 Exhibit B SECTION 7 - WARRANTY 7.1 For the first one (1) year following its initial shipment, Motorola warrants that, when properly used, its Programs will be free from reproducible defects that cause a material variance from its published specification. Motorola does not warrant that Program operation will be uninterrupted or error -free, that each defect will be corrected, or that any Program will meet Licensee's particular requirements; however, Motorola will exercise its best efforts to correct all reproducible Program errors and defects which cause the Program to operate at variance from its published specification. This warranty complies with Motorola's document 4901.1018DTX. 7.2 MOTOROLA'S TOTAL LIABILITY AND LICENSEE'S SOLE= RE=MEDY FOR ANY WARRANTED PROGRAM SHALL ESE LIMITED TO, AT MOTOROLA'S OPTION, PROGRAM REPLACEMENT OR THE PAYMENT OF LICENSEES ACTUAL DAMAGES, NOT TO EXCEED THE SUMS PAID TO MOTOROLA FOR THE MOTOROLA PRODUCT INCORPORATING THE DEFECTIVE PROGRAM. THIS WARRANTY EXTENDS ONLY TO THE FIRST LICE=NSEE; SUBSEQUENTTRANSFEREES ACCEPT THESE PROGRAMS "AS IS" AND WITHOUT WARRANTIES OF ANY KIND. THIS WARRANTY REPLACES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SECTION 8 - LIMITATION OF LIABILITY 8.1 The entire Motorola liability to Licensee for damages concerning performance or nonperformance by Motorola under the license Agreement or in any way related to the subject matter of the License Agreement, regardless of whether the claim for such damages is based in contract, tort or otherwise, and Licensee's sole and exclusive remedy shall be limited to the payment by Motorola of actual damages not to exceed the total License fee paid by Licensee for the Program, or Programs that caused the damages or is the subject matter of or is directly related to such claim. 8.2 IN NO EVENT SHALL MOTOROLA BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, TIME OR DATA, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS) TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW EVEN IF MOTOROLA HAS BEEN ADVISED OF THE POSSIBIL17Y OF SUCH DAMAGES OR FOR ANY CLAIM AGAINST LICENSEE BY ANY OTHER PARTY_ SECTION 9 - PATENTS, COPYRIGHTS, & TRADE SECRETS It notified in writing within twenty (20) days, Motorola will defend any suit against Licensee that claims that United States patents, copyrights, or trade secrets of another have been infringed solely by Motorola's unaltered Programs and will pay any associated costs or damages finally awarded. Upon Motorola's request, Licensee agrees to reasonably assist in any defense and surrender control of the suit to Motorola. Motoroia may elect, at any time, to modify or replace these Programs with equivalent non - infringing items, obtain the right to continue using the Programs or, if these remedies are not reasonably available, to terminate this License Agreement with respect to such Programs. Motorola shall have no liability for infringement that arises from any modification of Motorola's Programs by Licensee or from Licensee's combination of Motorola's Programs with another's. Motorofa/Chy of Lubbock - 5 June 1, 1995 CQnm. System AVt. • Exh. 8 Rev. 5 FROM :MCTOROLR CONTRACTS 619 S30 8443 1995.06-01 09:38 #583 P.26/28 Exhibit B SECTION 10 - UNITED STATES GOVERNMENT LICENSE PROVISIONS 10.1 In the event that the Licensee is the United States Government or a United States Government agency, then the provisions of this Section 10 shall also apply. 1 f1.2 All Programs were developed at private expense. Programs and associated documentation may or may not include a Resirictad Flights notice, or other notice referring specifically to the terms and conditions of this Agreement. 10.3 Use, duplication, or disclosure of Programs and associated documentation under Motorola's copyrights and/or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software --Restricted Flights clause at FAR 52227-19. This FAR clause shall apply unless the Licensee is the Department of Defense, in which case subparagraph (e)(1)(1i) of the Rights in Technical Data and Computer Software clause at DFARS 252.2277013 shall apply. 10.4 Provided that Motorola brings the terms and conditions of this License Agreement, in writing, to the attention of the purchasing agent of the procuring agency, the terms and Conditions other than those set forth in Section 10 of this License Agreement shall each continue to apply, but only to the extent that such terms and conditions are not inconsistent with the aforementioned provisions of the FAR or DFARS, as applicable to the particular procuring agency and procurement transaction. SECTION 11 - GENERAL PROVISIONS 11.1 This License Agreement constitutes the complete and exclusive statement of the agreement between Motorola. and Licensee, and supersedes all oral or written proposals, prior agreements and other prior communications between the parties, concerning the subject matter of the License Agreement. 11.2 All formal notices, consents and other communications required or permitted under this License Agreement shall be in writing and shall be sent in such a way as to assure receipt by the other party. Either party may change its address for formal notices by written notice to the other party. 11.3 This License Agreement shall be governed by and construed in accordance with the laws of the United States of America to the extent to which they apply, and, where they do not apply, in accordance with the laws of the State of Texas. 1 1 .4 No representation or promise relating to, and no amendment of, this License Agreement shall be binding unless it is in writing and signed by both parties. 1 1 .5 The terms and conditions of this License Agreement shall prevail notwithstanding any variance with the terms and conditions of any order submitted by Licensee. Notwithstanding the foregoing, when this License Agreement is specifically incorporated by direct reference as an exhibit into another written agreement that has been signed by both parties hereto and that- includes terms that are directly inconsistent with terms included in Section 7 of this Agreement regarding the commencement or duration of warranty, or with terms included in Section 8.1 of this Agreement, then the directly inconsistent terms in the other written agreement shall prevail. 11 .6 Motorola shall not be liable for any failure to perform due to an event of Force Majeuro. MatoralalCity of Lubbock 7 - June 1, 1495 Comm. System Agmi. - Exh. 8 Rev, 5 FROM :MOTOROLA CONTRACTS iS19 S30 8443 199E,OE-01 09:39 4583 P.27/28 Exhibit B 11.7 No waiver by a party of any breach of any provision of this License Agreement shall constitute a waiver of any other breach of that or any other provision of this License Agreement. 11 .8 Licensee recognizes that applicable Federal Communications Act and other statutes, laws, ordinances, rules, and regulations may change from time to time and that accordingly Motorola has the right without liability and following notice to and consultation with Licensee to modify this License Agreement to comply with such change. 11.9 In the event that any of the provisions contained in this License Agreement are held to be unenforceable, this License Agreement shall be construed without such provisions. 11 .10 Any Program provided in machine-readable form may be copied in machine-readable form to implement adequate back-up andior archival procedures. Mworola/City of Lubbock ��ne 1995' Gomm. System Agmt• - Exh. 6 Rev. 5 Exhibit B ACCEPTED AND APPROVED AS OF 06/08/ '1995. MOTOROLA MOTOROLA INC. By : ,f "t— (Authorized Signature) Name: Ernie Tate (Print - Block Letters) Title: V i cP President (Print - Block Letters) T Name: Title David R. Langston Mayor Attest: &-tt' P—CaL etty . Johnson, City Secretary Approved as to Content: Z Thomas W. Tuning, Director, ! r ation & Communication Services Approved as to Form* D ald G. Vandiver, First Assistant City Attorney Motorola/City of Lubbock 9 - June 1, 1995 Comm. System Agmt. - Exh. 8 Flev. 5 Communications System Agreement MOTOROLA INC. By: (Authorized Signature) Name: Ernie Tate (Print - Block Lelle(s) Title: Vice president (Print - Block Letters) Name: David R. Langston Title: Mayor Attest: &'t'- a Betty M. 'Johns-&, City Secretary Approved as to Content: Thomas VV, Tuning, Director�Inftion & Communication Services Approved as to Form: Do ald G. Vandiver, First Assistant City Attorney Motorola/City of Lubbock 11 June 1, 1995 Comm. System Agmt. Rev. 5 Exhibit B ACCEPTED AND APPROVED AS OF 06 -08 - MOTOROLA' MOTOROLA INC. By: (Authorizers Signature} Name: Ernie Tate (Print - Block Letters) Name: David R. Langston Title: Vice President; Title: Mayor (Print - Mock Letters) Attest: IL betty M. J'O'hnsor4 City Secretary Approved as to Content: Thomas W. Tuning, Director, ormation & Communication Services Ap roved as to Form: Donald G. Vandiver, First Assistant City Attorney Motorola/City of Lubbock - 9 - June 1, 1995 Comm. system Agmt. - Exh. B Rev. 5 CITY OF LUBBOCK Amendrne t. CF712-001 t9 Staterpent of Work V1-12122/95 CHANGE ORDER Purchaser: City of Lubbock, TX Name: City ofLubbock, TX Change Order No. CF712-001 Date: December 22, 1995 In accordance with the terms and conditions of the .Agreement dated June 13, 1995 the foiiewing changes are approved: Contract Price Adjustments: Original Contract Value $ 951,739.00 This Change Order *CF712-001 which Includes 1. Delete memory upgrade ($ 3,139.00) 2. OCS hardware upgrade from Compaq Prolinea MT 486165 to a $0.00 Compaq Prollnea MT Pentinlum 486175 3. Delelte Laptop PC from equpment list ($3,029.00) 4. Add 2 each Forte portable terminals, contract price of $5335.00 ea $6335.00 To be delivered after the first of the year. $94fi,956.00 New Contract Value Except as specifically stated in this Change Order, the Statement of Work is In all respects ratified, confirmed, and continues In full force and effect. IN WITNESS WHEREOF, the said parties have caused this Agreement to be executed as of the day and year signed below. Purch ser Motorola, In .. (signed) (sgned) Name 64zvlao sok /o Title C110, Date: / - 9}' Name. KM,44ACL LJG6.� Title I'� M "~ c�✓� Datp, Z� S CG6 f(a-Cf CaQvp-e 0-jei- 0(' /eso/vf,a.v a -4t7 y S16.3 6rS_17�5, /'te-v % 'V Commun)c aabons & EIectrows, Inc. (23 6 6 Doi; kin, tech nGal and prtN inkxm Mon contained in th5 oft Ong is cons demd proprietanr and mw not be shared w1h any person or agency not dtlecly assmiaied wrtA the aldiessee vydhout the empless written consenl of raotoroA-d, Inc., or Its desgnees