Resolution 2009-38 RESOLUTION NO. 2009-38(R)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS, HEREBY AUTHORIZING THE CITY MANAGER OF THE
CITY OF WYLIE, TEXAS TO EXECUTE AN AGREEMENT BY AND
BETWEEN THE CITY OF PLANO, TEXAS, THE CITY OF ALLEN,
TEXAS, THE CITY OF WYLIE, TEXAS, THE CITY OF MURPHY,
TEXAS AND MOTOROLA, INC. TO PROVIDE, DESIGN, AND
IMPLEMENT A P25 TRUNKED RADIO SYSTEM FOR THE JOINT
RADIO COMMUNICATIONS SYSTEM.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WYLIE, TEXAS:
SECTION 1: The City Manager of the City of Wylie, Texas, is hereby authorized to
execute, on behalf of the City Council of the City of Wylie, Texas, an agreement by and between
the City of Plano, Texas, the City of Allen, Texas, the City of Wylie, Texas, the City of Murphy,
Texas, and Motorola, Inc. to provide, design, and implement a P25 Trunked Radio System for
the Joint Radio Communications System, attached hereto as Exhibit "A".
SECTION 2 This Resolution shall take effect immediately upon its passage.
DULY PASSED AND APPROVED by the City Council of the City of Wylie, Texas on
this the 8` day of December, 2009.
Eric Hogue, Mayor
ATTEST TO: QF y��
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Caro e Ehrlich, Cit Secretary
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1887�,
Resolution No. 2009-38(R)
Motorola for the Joint
Radio Communications System
563464.v1
Communications System Agreement
Motorola, Inc. ("Motorola") and the City of Plano, Texas, the City of Allen, Texas, the City of Wylie, Texas
and the City of Murphy, Texas who are parties to an Interlocal Agreement for the purchase of a radio
system (collectively referred to as "Cities" and individually as "City') enter into this "Agreement," pursuant
to which the Cities will purchase and Motorola will sell the System, as described below. Motorola and the
Cities may be referred to individually as a"Party" and collectively as the "Parties." For good and valuable
consideration, the Parties agree as follows:
Section 1 EXHIBITS
The exhibits listed below are incorporated into and made a part of this Agreement. In the event of an
inconsistency or conflict between the provisions of this Agreement and the Exhibits, the provisions in this
Communications System Agreement shall take precedence over the Exhibits, and any inconsistency or
conflicts between Exhibits A through M will be read and resolved in their listed order.
Exhibit A Approved changes to the Motorola Proposal including the following documents:
(1) Post-Proposal Changes to Motorola Point by Point Responses to RFP
(2) Redlined Proposed System Description dated December 4, 2009
(3) Redlined Proposed Implementation Plan Including a Preliminary Cutover Plan dated
12/4/09
(4) Redlined proposed System Pricing and Equipment List dated December 4, 2009
(5) Redlined Radio Coverage Analysis and Radio Coverage Maps dated December 4, 2009
(6) Coverage maps dated December 4, 2009
(7) Q&A Session 2 Follow-Up: PAWM Proposal Update (includes the updated pricing) dated
Decem ber 4, 2009
(8) System Drawings
Exhibit B Motorola's Response to the RFP
Exhibit C Motorola "Software License Agreement"
Exhibit D Payment Schedule as set forth in Section 8.2A of the RFP
Exhibit E Insurance Requirements
Exhibit F Insurance Certificate for the City of Plano, Texas
Exhibit G Insurance Certificate for the City of Allen, Texas
Exhibit H Insurance Certificate for the City of Wylie, Texas
Exhibit I Insurance Certificate for the City of Murphy, Texas
Exhibit J Affidavit of No Prohibited Interest
Exhibit K Payment and Performance Bonds
Exhibit L Enhanced System Support Statement of Work included in Motorola Response to the RFP
Exhibit M "System Acceptance Certificate"
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
2.1. "Acceptance Tests" means those tests described in the Acceptance Test Plan.
2.2. "Beneficial Use" means when the Cities first use the System or a Subsystem for operational
purposes (excluding training or testing).
2.3. "Confidential Information" means any information that is disclosed in written, graphic, verbal, or
machine-recognizable form, and is marked, designated, or identified at the time of disclosure as being
confidential or proprietary; or if the information is in verbal form, it is identified as confidential at the time
of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information
does not incfude any information that: is or becomes publicly known through no wrongful act of the
receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or
becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any
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obligation restricting disclosure; is independentiy developed by the receiving Party without breach of this
Agreement; or is explicitly approved for release by written authorization of the disclosing Party or
information that is required to be released as determined by a written decision from the Texas Attorney
General.
2.4. "Contract Price" means the price for the System, excluding applicable sales or similar taxes and
freight charges.
2.5. "Effective Date" means that date upon which the last Party executes this Agreement.
2.6. "Equipment" means the equipment that the Cities purchase from Motorola under this Agreement.
Equipment that is part of the System is described in the Equipment List.
2.7. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a Party's
reasonable control and affects the geographical area in which the system is manufactu�ed, staged, or
installed (e.g., an act of God, an act of the public enemy, an act of a government entity, strikes or other
labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots).
2.8. "Infringement Claim" means a third party claim alleging that the Motorola or Non-Motoro�a
Equipment or Software provided, sold or distributed by Motorola to the Cities infringes upon the third
party's United States patent or copyright.
2.9. "Motorola Software" means Software that Motorola or its affiliated company owns.
2.10. "Non-Motorola Software" means Software provided or sold by Motorola to the Cities that another
party owns.
2.11. "Open Source Software" (also called "freeware" or "shareware") means software that has its
underlying source code freely available to evaluate, copy, and modify.
2.12. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,
trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the
Equipment and Software, including those created or produced by Motorola under this Agreement and any
corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software
whether made by Motorola or another party.
2.13. "Software" means the Motorola Software and Non-Motorola Software, in object code format that
is furnished with the System or Equipment.
2.14. "Specifications" means the functionality and performance requirements that are described in the
Technical and Implementation Documents.
2.15. "Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in the Technical and Implementation Documents.
2.16. "System" means the Equipment, Software, and incidental hardware and materials that are
combined together into an integrated system; the System is described in the Technical and
Implementation Documents.
2.17. "System Acceptance" means the Acceptance Tests have been successfully completed.
2.18. "Warranty Period" means one (1) year from the date of System Acceptance or Beneficial Use,
whichever occurs first.
Section 3 SCOPE OF AGREEMENT, TERM AND DESIGNATION OF PROJECT MANAGER
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3.1. SCOPE OF WORK. Motorola will provide, install and test the System, and perform its other
contractual responsibilities, all in accordance with this Agreement. The Cities will perform their
contractual responsibilities in accordance with this Agreement.
3.2 SCHEDULE OF WORK. Motorola agrees to commence work immediately upon the execution of
this Agreement, and to proceed diligently with said work in accordance with the Performance Schedule
which provides that Motorola will achieve System Acceptance no later than December 31, 2010.
3.3. CHANGE ORDERS. Either Party may request changes within the general scope of this
Agreement. If a requested change causes an increase or decrease in the cost or time required to
perform this Agreement, the Parties will agree to an equitable adjustment of the Contract Price,
Performance Schedule, or both, and will reflect the adjustment in a written change order. Neither Party is
obligated to perf'orm requested changes unless both Parties execute a written change order.
All requests for change orders shall be made through the Project Manager. The individual City upon
whose behalf the request for that change order is made shall be responsible for all additional costs and/or
expenses associated with the change order.
"Extra" work or "claims" invoiced as such which have not been issued as a duly executed, written change
order by the appropriate City Manager, will not be authorized for payment. A duly executed written
change order shall be preceded by a request to the City Manager to execute said change order.
3.4. 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 Effective Date and continues
until the date of Final Project Acceptance or expiration of the Warranty Period, whichever occurs last.
3.5. ADDITIONAL EQUIPMENT OR SOFTWARE. During the term of this Agreement, the Cities may
purchase additional Equipment and Software under Section 3.3. In addition, for three (3) years after the
Effective Date, the Cities may order additional Equipment or Software if it is then available. Each order
must refer to this Agreement and must specify the pricing and delivery terms. Notwithstanding any
additional or contrary terms in the order, the applicable provisions of this Agreement (except for delivery,
passage of title and risk of loss to Equipment, warranty commencement, and payment terms) will govern
the purchase and sale of the additional Equipment or Software. The pricing will comply with Section
13.2.1YYY of the RFP, which provides for a firm percentage discount off of the current list price of the
Equipment or Software. Payment is due upon delivery and acceptance by the Cities in accordance with
the Texas Prompt Payment Act (Texas Government Code Section 2251. For Equipment and Software
purchased under this Section prior to System Acceptance which is intended to be incorporated into the
System, title, risk of loss, and warranty will be controlled by this Agreement. Concerning Equipment and
Software purchased under this Section that is not intended to be incorporated into the System or is
purchased after System Acceptance, title and risk of loss will pass upon delivery and warranty will
commence upon delivery. Motorola will send the Cities an invoice as the additional Equipment is shipped
or Software is licensed. Alternatively, the Cities may register with and place orders through Motorola
Online ("MOL"), and this Agreement will be the "Underlying Agreement" for those MOL transactions rather
than the MOL On-Line Terms and Conditions of Sale. MOL registration and other information may be
found at http:l/www.motorola.com/businessandqovernment/ and the MOL telephone number is (800) 814-
0601.
3.6. MAINTENANCE SERVICE. During the Warranty Period, Motorola will provide maintenance
senrices for the Equipment and support for the Motorola Software and Non-Motorola Software pursuant to
this Agreement, including the ESS Statement of Work. Those services and support are included in the
Contract Price. If the Cities wish to purchase additional maintenance and support services for the
Equipment during the Warranty Period, or any maintenance and support services for the Equipment after
the Warranty Period, the description of and pricing for the services will be set forth in a separate
document. If the Cities wish to purchase extended support for the Motorola Software or Non-Motorola
Software after the Warranty Period, it may do so by ordering software subscription services as described
in the Software Subscription section of the ESS Statement of Work. Unless otherwise agreed by the
parties in writing, the terms and conditions applicable to those maintenance, support or software
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subscription services will be Motorola's standard Service Terms and Conditions, together with the
appropriate statements of work.
3.7. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
the Cities solely in accordance with the Software License Agreement. The Cities hereby accept and
agree to abide by all of the terms and restrictions of the Software License Agreement.
3.8. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to the Cities in
accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date
unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software
pursuant to the Software License Agreement, in which case it applies and the copyright owner will have
all of Licensor's rights and protections under the Software License Agreement. Non-Motorola Software
may include Open Source Software. Motorola represents that, to the best of their knowledge, the Cities'
use of Non-Motorola Software as described and provided for in this Agreement is a legally authorized use
of said software, which does not constitute an infringement. The Cities enter into this Ag�eement relying
on this representation.
3.9. SUBSTITUTIONS. At no additional cost to the Cities, Motorola may substitute any Equipment,
Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications
and is of equivalent or better quality to the Cities. Any substitution will be reflected in a change order.
3.10 PROJECT MANAGER. The Parties agree that the City of Plano Radio System Manager shall be
the Project Manager for the duration of the project which is the subject of this Agreement. The Project
Manager shall be the liaison between the Cities and Motorola and all communication between the Cities
and Motorola shall be made by and through the Project Manager. The Project Manager shall be
responsible for project management services and technical expertise required to assure completion of the
Project. In this capacity, the Project Manager is responsible for the oversight and facilitation of the
successful completion of the Project.
Section 4 PERFORMANCE SCHEDULE AND PAYMENT AND PERFORMANCE BOND
4.1 The Parties will perform their respective responsibilities in accordance with the Performance
Schedule, included in the Motorola Response to the RFP. By executing this Agreement, the Cities
authorize Motorola to proceed with contract performance.
4.2 In the event this Agreement amount exceeds $25,000.00, a Payment bond in the amount of
not less than one hundred percent (100%) of the Agreement amount conditioned upon the payment of all
person supplying labor or furnishing materials pursuant to the Agreement is required upon a form a
provided by the Cities. In the event this Agreement exceeds $100,000.00, a Performance Bond in the
amount of not less than one hundred and fifteen percent (115%) of the Agreement amount, conditioned
upon the faithful performance of the Agreement, is required upon a form provided by the Cities. The
bonds are attached hereto and incorporated herein as Exhibit "K."
Section 5 CONTRACT PRICE, PAYMENT, INVOICING AND INSURANCE
5.1. CONTRACT PRICE. The Contract Price in U.S. dollars is in an amount not to exceed
$19,104,907.00. If applicable, a pricing summary is included with the Payment Schedule. Motorola has
priced the services, Software, and Equipment as an integrated system. A reduction in Software or
Equipment quantities, or services, may affect the overall Contract Price, including discounts if applicable.
Each City shall be responsible for an amount not to exceed the following:
City of Plano; $12,271,398.00
City of Allen: $3,564,589.00
City of Wylie: $2,370,359.00
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City of Murphy: $898,560.00
5.2. INVOICING AND PAYMENT. Motorola will submit invoices separately to each City according to
the Payment Schedule. Except for a payment that is due on the Effective Date, each City will make
payments to Motorola in accordance with the Texas Prompt Payment Act (Texas Government Code
Section 2251. Each City sha�l only be responsible for the individual charges/costs for their City and shall
not be responsible for any charges/costs for another City Each City will make payments when due in the
form of a wi�e transfer, check, or cashier's check from a U.S. financial institution. Each City will be
invoiced for the percentage of the full installment payment amount equal to the percentage of the total
Contract Price allocated to each in accordance with the Pricing Summary. For reference, the Federal Tax
Identification Number for Motorola, Inc. is 36-1115800.
5.3 FREIGHT, TITLE, AND RISK OF LOSS. Title, care, custody, control and risk of loss of the non-
subscriber Equipment will pass to the Cities upon complete installation of the Equipment at the sites. Title
and risk of loss of subscriber equipment will pass to the Cities upon delivery. Title to Software wilt not
pass to the Cities at any time.
5.4 INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to each City at the address
specified above. Software delivery shall be coordinated through the Project Manager. Storage, site
delivery, and installation of the Infrastructure Equipment are the responsibility of Motorola until complete
installation of the Equipment at the sites. Delivery and installation of any other Software and/or Equipment
not specified in this section shall be coordinated through the Project Manager.
Cities may change this information by giving written notice to Motorola.
5.5 INSURANCE AND CERTIFICATES OF INSURANCE. Motorola shall procure and maintain for
the duration of the Agreement for the benefit of the Cities (listing each City, and its council members,
officers, and employees as additional insureds on the general liability policy) insurance coverage as set
forth in the Insurance Requirements marked as Exhibit "E" attached hereto and incorporated herein by
reference. Motorola shall provide a signed insurance certificate fo� each City verifying that Motorola has
obtained the required insurance coverage for each City immediately following the execution of this
Agreement. Insurance Certificates for each City will be attached as follows:
Exhibit "F" City of Plano, Texas
Exhibit "G" City of Allen, Texas
Exhibit "H" City of Wylie, Texas
Exhibit "I" City of Murphy, Texas
Section 6 SITES AND SITE CONDITIONS
6.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement, the
Cities will provide a designated project manager; all necessary construction and building permits, zoning
variances, licenses, and any other approvals that are necessary to develop or use the sites; and access
to the work sites as reasonably requested by Motorola so that it may perform its duties in accordance with
the Performance Schedule and Statement of Work. If the Statement of Work so indicates, Motorola may
assist the Cities in the local building permit process. Nothing contained in this paragraph shall be
construed as the Cities' pre-approval or automatic approval of any type of permit or zoning application.
Nor shall it be construed as the Cities waiver of its application and/or public hearing process.
6.2. SITE CONDITIONS. The Cities will ensure that all work sites it provides will be safe, secure, and
in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the
Statement of Work states to the contrary, the Cities will ensure, to the extent possible, that these work
sites have adequate: physical space; air conditioning and other environmental conditions; electrical power
outlets, distribution and equipment; and telephone or other communication lines (including modem access
and adequate interfacing networking capabilities), all for the installation, use and maintenance of the
System. Before installing the Equipment or Software at a work site, Motorola will inspect the work site
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and advise the Cities of any apparent deficiencies or non-conformities with the requirements of this
Section. This Agreement is predicated upon normal soil conditions as defined by the version of E.I.A.
standard RS-222 in effect on the Effective Date.
6.3. SITE ISSUES. If a Party determines that the sites identified in the Technical and Implementation
Documents are no longer available or desired, or if subsurface, structural, adverse environmental or
latent conditions at any site differ from those indicated in the Technical and Implementation Documents,
the Parties will promptly investigate the conditions and will select replacement sites or adjust the
installation plans and specifications as necessary. If change in sites or adjustment to the installation
plans and specifications causes a change in the cost or time to perform, the Parties will equitably amend
the Contract Price, Performance Schedule, or both, by a change order.
Section 7 TRAINING
Any training to be provided by Motorola to the Cities will be described in the Statement of Work. The
Cities will notify Motorola immediately if a date change for a scheduled training program is required. If
Motorola incurs additional costs because the Cities reschedule a training program less than thirty (30)
days before its scheduled start date, Motorola may recover these additional costs from the individual City
requesting or receiving the training.
Section 8 SYSTEM ACCEPTANCE
8.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to the Cities at least ten
(10) days notice before the Acceptance Tests commence. System testing will occur only in accordance
with the Acceptance Test Plan.
8.2. SYSTEM ACCEPTANCE. System Acceptance will occur upon successful completion of all of the
Acceptance Tests, whether it is part of the System or an individual subsystem. Upon System
Acceptance, the Parties will memorialize this event by promptly executing a System Acceptance
Certificate for the entire System, including individual subsystems. If the Cities believe the System has
failed the completed Acceptance Tests, the Cities will provide to Motorola a written notice that includes
the specific details of the failure. If the Cities do not provide to Motorola a failure notice within thirty (30)
days after completion of the Acceptance Tests, System Acceptance will be deemed to have occurred as
of the completion of the Acceptance Tests. Minor omissions or variances in the System that do not
materially impair the operation of the System as a whole will not postpone System Acceptance but will
be corrected according to a mutually agreed schedule.
8.3. BENEFICIAL USE. The Cities acknowledge that Motorola's ability to perform its implementation
and testing responsibilities may be impeded if the Cities begin using the System before System
Acceptance. Therefore, the Cities will not commence Beneficial Use before System Acceptance without
Motorola's prior written authorization, which will not be unreasonably withheld. Motorola is not
responsible for System performance deficiencies that occur during unauthorized Beneficial Use. Upon
commencement of Beneficial Use, the Cities assume responsibility for the use and operation of the
System. The term Beneficial Use will not include the use of any subscriber radios shipped under this
Agreement and put into use on the current Cities' systems.
8.4 FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance
when all deliverables and other work have been completed. When Final Project Acceptance occurs, the
Parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate.
Section 9 REPRESENTATIONS AND WARRANTIES
9.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance
with the Specifications in all material respects. Upon System Acceptance this System functionality
representation is fulfilled. Motorola is not responsible for System performance deficiencies that are
caused by anciflary equipment or software not furnished by Motorola pursuant to this Agreement which is
attached to or used in connection with the System or for reasons or parties beyond Motorola's control,
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such as natural causes; the construction of a building that adversely affects the microwave path reliability
or radio frequency (RF) coverage; the addition of frequencies at System sites that cause RF interference
or intermodulation; or the Cities change to load usage or configuration outside the Specifications.
If the Cities provide a notice under Section 8.2 that they believe the System has failed an Acceptance
Test, then Motorola shall address and remedy the failure as soon as practicable and at no additional cost
to the Cities. Such remedy shall include all equipment, systems, and services necessary to pass the
Acceptance Test. When Motorola believes it has successfully remedied the failure, Motorola shall so
notify the Cities in a writing that specifies the measures taken by Motorola to remedy the failure. Upon the
receipt of such notice by Motorola, the Parties shall repeat the portion of the previously failed Acceptance
Test, unless the test that fails is the 30 day reliability test discussed in the RFP, in which case the full test
will be repeated in the event of a major failure as defined in the RFP. The re-testing shalt commence as
promptly as practical on a date reasonably acceptable to both the Cities and Motorola. Execution of the
appropriate "System Acceptance Certificate" will constitute acceptance by the Cities.
9.2. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment
under normal use and service will be free from materiat defects in materials and workmanship. If System
Acceptance is delayed beyond six (6) months after shipment of the infrastructure Equipment (excluding
expressly the shipment of any subscriber radios) by events or causes within the Cities' control, this
warranty expires eighteen (18) months after the shipment of the Equipment.
9.3. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License
Agreement, during the Warranty Period, Motorola warrants the Motorola Software in accordance with the
terms of the Software License Agreement and the provisions of this Section 9 that are applicable to the
Motorola Software. If System Acceptance is delayed beyond six (6) months after shipment of the
Motorola Software (excluding any Software shipped with subscriber radios) by events or causes within
the Cities control, this warranty expires eighteen (18) months after the shipment of the Motorola Software.
9.4. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These
warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Motorola
Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of
God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not
provided or authorized in writing by Motorola; the Cities' failure to comply with all applicable industry and
OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or
workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries
(because they carry their own separate limited warranty) or consumables; (v) freight costs to ship
Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does
not affect the operation of the Equipment; and (vii) normal or customary wear and tear.
9.5. WARRANTY CLAIMS. To assert a warranty claim, the Cities must notify Motorola in writing of
the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will (at its
option and at no additional charge to the Cities) perform one of the following three options: repair the
defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the
price of the defective Equipment or Motorola Software. That action will be the full extent of Motorola's
liability for the warranty claim. Repaired or replaced product is warranted for the balance of the original
applicable warranty period. All replaced products or parts will become the property of Motorola.
9.6. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the System (including all Cities) for commercial, industrial, or
governmental use only, and are not assignable or transferable.
9.7. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE
WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS
AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS
ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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Section 10 DELAYS
10.1. FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance if
caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay
performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers
the Force Majeure. If a Force Majeure occurs, the Parties will execute a change order to extend the
Pe�formance Schedule for a time period that is reasonable under the circumstances.
10.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY THE CITIES. If the Cities (including their
other contractors) delay the Performance Schedule, it will make the promised payments according to the
Payment Schedule as if no delay occurred; and the Parties will execute a change order to extend the
Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred
because of the delay. Delay charges may include costs incurred by Motoro�a or its subcontractors for
additional extension of the warranties; suspending and re-mobilizing the work; and preparing and
implementing an alternative implementation plan. Delay charges shall not include freight, travel, additional
engineering, project management or handling of Equipment or standby time. If the Parties agree that the
System must be redesigned as a result of a delay, then such engineering costs to redesign the System
will be included.
Section 11 DISPUTES
11.1 In the event of a dispute regarding any aspect of this Agreement, the Parties shall refer the
dispute to outside non-binding mediation for resolution prior to engaging in litigation. All Parties shall
share equally in the costs of a certified mediator and each Party shall be responsible for their own
attorney fees. Any mediation between the Parties shall be in Texas.
11.2 Disputes among the Cities that are independent of any dispute with Motorola shall be resolved
according to the terms and provision of the interlocal agreement passed by resolution and adopted by
each of the Cities titled: AGREEMENT BETWEEN THE CITY OF PLANO, TEXAS, AND THE CITY OF
ALLEN, TEXAS, THE CITY OF WYLIE, TEXAS AND THE CITY OF MURPHY, TEXAS FOR JOINT
RADIO COMMUNCIATIONS SYSTEM.
Section 12 DEFAULT AND TERMINATION
12.1 DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this
Agreement, the other Party may consider the non-performing Party to be in default (unless a Force
Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written
and detailed notice of default. Except for a default by the Cities for failing to pay any amount when due
under this Agreement which must be cured immediately, the defaulting Party will have thirty (30) days
after receipt of the notice of default to either cure the default or, if the default is not curable within thirty
(30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan
immediately after receipt of notice by the other Party that it approves the plan. During any period of
default by Motorola, the Cities will be relieved of any obligation to make any payment associated with the
Motorola default. If the Cities are the defaulting Party, Motorola may stop work on the project until it
approves the Cities' cure plan.
12.2 TERMINATION BY CITIES. Unilateral termination by any individual City is prohibited.
12.3. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section
12.1, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of
this Agreement, subject to Sections 11.1 and 12.2 herein. In the event of termination for default, the
defaulting Party will promptly return to the non-defaulting Party any of its Confidential Information. If the
Cities are the non-defaulting Party, terminate this Agreement as permitted by this Section, and complete
the System through a third Party, Customer may recover from Motorola reasonable costs incurred to
complete the System to a capability not exceeding that specified in this Agreement less the unpaid
portion of the Contract Price. To the extent required by law, the Cities will take reasonable actions to
mitigate their respective damages and provide Motorola with detailed invoices substantiating the charges.
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SECTION 13 INDEMNIFICATION
13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola shall release, defend, indemnify and hold
harmless the Cities and their officers, agents and employees from and against all damages, injuries
(including death), claims, property damages (including loss of use), losses, demands, suits, judgments
and costs, including reasonable attorney's fees and expenses, in any way arising out of, related to, or
resulting from and to the extent caused by the negligent performance of the work or caused by the
negligent act or omission or intentional acts of Motorola, its officers, agents, employees, subcontractors,
licensees, invitees or any third parties for whom Motorola is legally responsible (hereinafter "claims").
In their sole discretion, Cities shall have the right to reasonably approve defense counsel to be retained
by Motorola in fulfilling its obligation hereunder to defend and indemnify the Cities, unless such right is
expressly waived by Cities in writing. Cities reserve the right to provide a portion or all of their own
defense; however, Cities are under no obligation to do so. Any such action by Cities is not to be
construed as a waiver of Motorola's obligation to indemnify Cities pursuant to this contract.
Motorola shall retain defense counsel approved by Cities within seven (7) business days of the Cities
written notice that they are invoking their right to indemnification under this Agreement. If Motorola fails to
retain counsel within such time period and after providing reasonable notice, Cities sha�l have the right to
retain defense counsel on their own behalf, and Motorola shall be liable for all costs incurred by Cities.
13.2. PATENT AND COPYRIGHT INFRINGEMENT.
13.2.1. Motorola will defend, indemnify and hold harmless at its expense any claim/suit brought against
the Cities to the extent it is based on an Infringement Claim, and Motorola will indemnify the Cities for
those costs and damages finally awarded against the Cities for an Infringement Claim. Motorola's duties
to defend and indemnify are conditioned upon: the Cities promptly notifying Motorola in writing of the
Infringement Claim; Motorola having sole control of the defense of the claim/suit and all negotiations for
its settlement or compromise; and the Cities providing to Motorola cooperation and, if requested by
Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to Motorola's
obligation to defend, and subject to the same conditions, Motorola will pay all damages finally awarded
against the Cities by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing,
by Motorola in settlement of an Infringement Claim.
13.2.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola shall, at its
expense: (a) procure for the Cities the right to continue using the Product; (b) replace or modify the
Product so that it becomes non-infringing while providing functionally equivalent performance; or (c)
accept the return of the Product and grant the Cities a credit for the Product, less a reasonable charge for
depreciation. The depreciation amount will be calculated based upon generally accepted accounting
standards. Motorola will proceed under Subsection (c) above only if Subsections (a) and (b) prove to be
commercially unreasonable.
13.2.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon:
(a) the combination of the Equipment, Motorola Software or Non-Motorola Software with any software,
apparatus or device not furnished by Motorola; (b) the use of ancillary equipment or software not
furnished by Motorola and that is attached to or used in connection with the Equipment, Motorola
Software or Non-Motorola Software; (c) Equipment, Motorola Software or Non-Motorola Software
designed or manufactured in accordance with the Cities' designs, specifications, guidelines or
instructions, if the alleged infringement would not have occurred without such designs, specifications,
guidelines or instructions; (d) a modification of the Equipment, Motorola Software or Non-Motorota
Software by a party other than Motorola; (e) use of the Equipment, Motorola Software or Non-Motorola
Software in a manner for which the Equipment, Motorola Software or Non-Motorola Software was not
designed or that is inconsistent with the terms of this Agreement; or (f) the failure by the Cities to install
an enhancement release to the Motorola Software that is intended to correct the claimed infringement. In
no event will Motorola's liability resulting from its indemnity obligation to the Cities extend in any way to
royalties payable on a per use basis or or Cities' revenues, or any royalty basis other than a reasonable
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royalty based upon revenue derived by Motorola from the Cities from sales or license of the infringing
Equipment, Motorola Software or Non-Motorola Software.
13.2.4. This Section 13 provides the Cities' sole and exclusive remedies and Motorola's entire liability in
the event of an Infringement Claim. The Cities do not have a right to recover and Motorola has no
obligation to provide any other or further remedies, whethe� under another provision of this Agreement or
any other legal theory or principle, in connection with an Infringement Claim. In addition, the rights and
remedies provided in this Section 13 are subject to and limited by the restrictions set forth in Section 14.
Section 14 LIMITATION OF LIABILITY
Motorola and the Cities acknowledge that they have negotiated the Price (among other things) in
consideration of their agreement to limit certain of Motorola's liabilities. Except for the obligations set
forth is Section 13.2.1, in no event is Motorola or any of its suppliers or licensors liable for any indirect,
special, exemplary, consequential or incidental damages (including lost profits, lost revenues and other
economic fosses), however caused and regardless of whether such damages are foreseeable or whether
Motorola has been advised of their possibility.
EXCEPT FOR A CLAIM FOR PERSONAL INJURY, LOSS OF LIFE, OR DAMAGE TO REAL OR
TANGIBLE PROPERTY CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY BY
MOTOROLA, MOTOROLA'S TOTAL LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO
DIRECT DAMAGES NOT EXCEED ONE AND ONE-HALF TIMES THE TOTAL CONTRACT PRICE.
Section 15 CONFIDENTIALITY AND PROPRIETARY RIGHTS
15.1. CONFIDENTIAL INFORMATION. During the term of this Agreement, the parties may provide
each other with Confidential Information. Subject to any obligations of the Cities under Texas law
including the Open Records laws, each Party will: maintain the confidentiality of the other Party's
Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party
in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential
Information to its employees who have a"need to know" and not copy or reproduce the Confidential
Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential
Information, including informing its employees who handle the Confidential Information that it is
confidential and is not to be disclosed to others, but these precautions will be at least the same degree of
care that the receiving Party applies to its own confidential information and will not be less than
reasonable care; and use the Confidential Information only in furtherance of the performance of this
Agreement. Confidential Information is and will at all times remain the property of the disclosing Party,
and no grant of any proprietary rights in the Confidential Information is given or intended, including any
express or implied license, other than the limited right of the recipient to use the Confidential Information
in the manner and to the extent permitted by this Agreement. If an Open Records request is submitted to
the Cities requesting documents marked by Motorola as confidential, the Cities will provide Motorola
reasonable notice of the request, but Motorola will be required to take whatever steps are necessary
under the Open Records Act to protect the documents. If the Attorney General rules pursuant to written
determination that the confidential information is subject to disclosure, the Cities shall release such
information.
15.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola, the third party
manufacturer of any Equipment, and the copyright owner of any Non-Motorola Software own and retain
all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is
intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by
Motorola in connection with providing to the Cities the Equipment, Software, or related services remain
vested exclusively in Motorola, and this Agreement does not grant to the Cities any shared development
rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola
does not grant to the Cities, either directly or by implication, estoppel, or otherwise, any right, title or
interest in Motorola's Proprietary Rights. The Cities will not modify, disassemble, peel components,
decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create
derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell
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or export the Software, or permit or encourage any third party to do so. The preceding sentence does not
apply to Open Source Software which is governed by the standard license of the copyright owner. If an
Open Records request is submitted to the Cities requesting documents marked by Motorola as
proprietary, the Cities will provide Motorola reasonable notice of the request, but Motorola will be required
to take whatever steps are necessary under the Open Records Act to protect the documents. If the
Attorney General rules pursuant to written determination that the proprietary information is subject to
disclosure, the Cities shall release such information.
Section 16 GENERAL
16.1. TAXES. The Cities have represented that they are exempt from federal manufacturer's excise,
state sales tax and state property taxes. Based upon such representation, Motorola has not included any
taxes in the Contract Price. Motorola will be solely responsible for reporting taxes on its income or net
worth.
16.2. ASSIGNABILITY AND SUBCONTRACTING. Motorola may subcontract any of the work, but
subcontracting will not relieve Motorola of its duties under this Agreement. Except as provided herein,
neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior
written consent of the other Party, which consent will not be unreasonably withheld. Any attempted
assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the
foregoing, Motorola may assign this Agreement to any of its affiliates to the extent Motorola owns at least
50% of the affiliate or its right to receive payment without the prior consent of the Cities. In addition, in the
event Motorola separates one or more of its businesses (each a"Separated Business"), whether by way
of a sale, estabtishment of a joint venture, spin-off or otherwise (each a"Separation Event"), Motorola
may, without the prior written consent of the other Party and at no additional cost to Motorola, assign this
Agreement such that it will continue to benefit the Separated Business and its affiliates (and Motorola and
its affiliates, to the extent applicable) following the Separation Event provided that the Government and
Public Safety business which submitted the RFP response is included in the Separated Business.
16.3 SUCCESSOR AND ASSIGNS. The Cities and Motorola, and their partners, assigns, successors,
subcontractors, executors, officers, agents, employees, representatives, and administrators are herby
bound to the terms and conditions of this Agreement.
16.4 WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will
not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a
writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either
a future or continuing waiver of that same right or power, or the waiver of any other right or power.
16.5. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or
unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and
effect.
16.6. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an
independent contractor. The Parties and their personnel will not be considered to be employees or
agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right
or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or
be interpreted as a joint venture, partnership or formal business organization of any kind.
16.7. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are
inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of
the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in
accordance with its terms and conditions and not for or against either Party.
16.8. GOVERNING LAW. This entire Agreement is performable in Collin County, Denton County and
Rockwall County, Texas and the venue for any action related directly or indirectly, to this Agreement or in
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any manner connected therewith shall be in Collin County, Texas, and this Agreement shall be construed
under the laws of the State of Texas.
16.9. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement
of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements,
proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement
may be amended or modified only by a written instrument signed by authorized representatives of both
Parties. The preprinted terms and conditions found on any the Cities purchase order, acknowledgment or
other form will not be considered an amendment or modification of this Agreement, even if a
representative of each Party signs that document.
16.10. NOTICES. Notices required under this Agreement to be given by one Party to the other must be
in writing and either personally delivered or sent to the address shown below by certified mail, return
receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express,
UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt:
Motorola, Inc.
Attn: Commercial Law Dept.
6450 Sequence Drive
San Diego, CA 92121
fax: 858 404-2594
City of Wylie
Attn: Chief Randy Corbin
2000 Highway 78 North
Wylie, Texas 75098
Fax:
With a copy to:
Attn: Courtney Kuykendall
Abernathy, Roeder, Boyd Joplin P.C.
1700 Redbud Blvd. Suite 300
McKinney, Texas 75069
Fax: 214-544-4044
16.11. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal,
state, and local laws, regulations and rules concerning the performance of this Agreement or use of the
System. The Cities will obtain and comply with all Federal Communications Commission ("FCC") licenses
and authorizations required for the installation, operation and use of the System before the scheduled
installation of the Equipment. Although Motorola might assist the Cities in the preparation of its FCC
license applications, neither Motorola nor any of its employees is an agent or representative of the Cities
in FCC or other matters.
16.12. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all
necessary approvals, consents and authorizations to enter into this Agreement and to perForm its duties
under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon
execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in
accordance with its terms; and the execution, delivery, and performance of this Agreement does not
violate any bylaw, cha�ter, regulation, law or any other governing authority of the Party.
16.13. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this
Agreement for any reason: Section 3.6 (Motorola Software); Section 3.7 (Non-Motorola Software); if any
payment obligations exist, Sections 5.1 and 5.2 (Contract Price and Invoicing and Payment); Subsection
9.7 (Disclaimer of Implied Warranties); Section 11 (Disputes); Section 14 (Limitation of Liability); and
Section 15 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 16.
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16.14 AUDIT: The Cities reserve the right to audit the records and performance of Motorola during the
term of the Agreement and for three years thereafter. The inspection will be limited to the verification of
shipment to invoice quantities and shipment receipts.
16.15 SOVEREIGN IMMUNITY. The parties agree that the Cities have not waived their sovereign
immunity by entering into and performing its obligations under this Agreement.
16.16 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be construed to create any
right in any third party not a signatory to this Agreement, and the parties do not intend to create any third
party beneficiaries by entering into this Agreement.
16.17 APPROPRIATION OF FUNDS. Funds are not presently budgeted for the Cities performance
under this Agreement beyond the end of the Customer's 2009-2010 fiscal year. The Cities will give
Motorola sixty (60) days written notice if funds for Cities' performance are not budgeted to continue
beyond that time. To the extent the Cities have provided the notice required above, the Cities shall not
have liability for payment of any money for services performed after the end of Customer's 2009-2010
fiscal year unless and until such funds are budgeted.
The Parties hereby enter into this Agreement as of the Effective Date.
Motorola, Inc. City of Plano, Texas
By: By:
Name: Name:
Title: Title:
Date: Date:
City of Allen, Texas City of Murphy, Texas
By: By:
Name: Name:
Title: Title:
Date: Date:
City of Wylie, Texas
By:
Mindy Manson, City Manager
Date:
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Communications System Agreement
Motorola, Inc. ("Motorola") and the City of Plano, Texas, the City of Allen, Texas, the City of Wylie, Texas
and the City of Murphy, Texas who are parties to an Interlocal Agreement for the purchase of a radio
system (collectively referred to as "Cities" and individually as "City") enter into this "Agreement," pursuant
to which the Cities will purchase and Motorola will sell the System, as described below. Motorola and the
Cities may be referred to individually as a"Party' and collectively as the "Parties." For good and �aluable
consideration, the Parties agree as follows:
Section 1 EXHIBITS
The exhibits listed below are incorporated into and made a part of this Agreement. In the event of an
inconsistency or conflict between the provisions of this Agreement and the Exhibits, the provisions in this
Communications System Agreement shall take precedence over the Exhibits, and any inconsistency or
conflicts between Exhibits A through M will be read and resolved in their listed order.
Exhibit A Approved changes to the Motorola Proposal including the following documents:
(1) Post-Proposal Changes to Motorola Point by Point Responses to RFP
(2) Redlined Proposed System Description dated December 4, 2009
(3) Redlined Proposed Implementation Plan Including a Preliminary Cutover Plan dated
12/4/09
(4) Redlined proposed System Pricing and Equipment List dated December 4, 2009
(5) Redlined Radio Coverage Analysis and Radio Coverage Maps dated December 4, 2009
(6) Coverage maps dated December 4, 2009
(7) Q&A Session 2 Follow-Up: PAWM Proposal Update (includes the updated pricing) dated
December 4, 2009
(8) System Drawings
Exhibit B Motorola's Response to the RFP
Exhibit C Motorola "Software License Agreement"
Exhibit D Payment Schedule as set forth in Section 8.2A of the RFP
Exhibit E Insurance Requirements
Exhibit F Insurance Certificate for the City of Plano, Texas
Exhibit G Insurance Certificate for the City of Allen, Texas
Exhibit H Insurance Certificate for the City of Wylie, Texas
Exhibit I Insurance Certificate for the City of Murphy, Texas
Exhibit J Affidavit of No Prohibited Interest
Exhibit K Payment and Performance Bonds
Exhibit L Enhanced System Support Statement of Work included in Motorola Response to the RFP
Exhibit M "System Acceptance Certificate"
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
2.1. "Acceptance Tests" means those tests described in the Acceptance Test Plan.
2.2. "Beneficial Use" means when the Cities first use the System or a Subsystem for operational
purposes (excluding training or testing).
2.3. "Confidential Information" means any information that is disclosed in written, graphic, verbal, or
machine-recognizabte form, and is marked, designated, or identified at the time of disclosure as being
confidential or proprietary; or if the information is in verbal form, it is identified as confidential at the time
of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information
does not include any information that: is or becomes publicly known through no wrongful act of the
receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or
becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any
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obligation restricting disclosure; is independently developed by the receiving Party without breach of this
Agreement; or is explicitly approved for release by written authorization of the disclosing Party or
information that is required to be released as determined by a written decision from the Texas Attorney
General.
2.4. "Contract Price" means the price for the System, excluding applicable sales or similar taxes and
freight charges.
2.5. "Effective Date" means that date upon which the last Party executes this Agreement.
2.6. "Equipment" means the equipment that the Cities purchase from Motorola under this Agreement.
Equipment that is part of the System is described in the Equipment List.
2.7. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a Party's
reasonable control and affects the geographical area in which the system is manufactured, staged, or
installed (e.g., an act of God, an act of the public enemy, an act of a government entity, strikes or other
labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots).
2.8. "Infringement Claim" means a third party claim alleging that the Motorola or Non-Motorola
Equipment or Software provided, sold or distributed by Motorola to the Cities infringes upon the third
party's United States patent or copyright.
2.9. "Motorola Software" means Software that Motorola or its affiliated company owns.
2.10. "Non-Motorola Software" means Software provided or sold by Motorola to the Cities that another
party owns.
2.11. "Open Source Software" (also called "freeware" or "shareware") means software that has its
underlying source code freely available to evaluate, copy, and modify.
2.12. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,
trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the
Equipment and Software, including those created or produced by Motorola under this Agreement and any
corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software
whether made by Motorola or another party.
2.13. "Software" means the Motorola Software and Non-Motorola Software, in object code format that
is furnished with the System or Equipment.
2.14. "Specifications" means the functionality and performance requirements that are described in the
Technical and Implementation Documents.
2.15. "Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in the Technical and Implementation Documents.
2.16. "System" means the Equipment, Software, and incidental hardware and materials that are
combined together into an integrated system; the System is described in the Technical and
Implementation Documents.
2.17. "System Acceptance" means the Acceptance Tests have been successfully completed.
2.18. "Warranty Period" means one (1) year from the date of System Acceptance or Beneficial Use,
whichever occurs first.
Section 3 SCOPE OF AGREEMENT, TERM AND DESIGNATION OF PROJECT MANAGER
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3.1. SCOPE OF WORK. Motorola will p�ovide, install and test the System, and perform its other
contractual responsibilities, all in accordance with this Agreement. The Cities will perform their
contractual responsibilities in accordance with this Agreement.
3.2 SCHEDULE OF WORK. Motorola agrees to commence work immediately upon the execution of
this Agreement, and to proceed diligently with said work in accordance with the Performance Schedule
which provides that Motorola will achieve System Acceptance no later than December 31, 2010.
3.3. CHANGE ORDERS. Either Party may request changes within the general scope of this
Agreement. If a requested change causes an increase or decrease in the cost or time required to
perform this Agreement, the Parties will agree to an equitable adjustment of the Contract Price,
Performance Schedule, or both, and will reflect the adjustment in a written change orde�. Neither Party is
obligated to perform requested changes unless both Parties execute a written change order.
All requests for change orders shall be made through the Project Manager. The individual City upon
whose behalf the request for that change order is made shall be responsible for all additional costs and/or
expenses associated with the change order.
"Extra" work or "claims" invoiced as such which have not been issued as a duly executed, written change
order by the appropriate City Manager, will not be authorized for payment. A duly executed written
change order shall be preceded by a request to the City Manager to execute said change order.
3.4. 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 Effective Date and continues
until the date of Final Project Acceptance or expiration of the Warranty Period, whichever occurs last.
3.5. ADDITIONAL EQUIPMENT OR SOFTWARE. During the term of this Agreement, the Cities may
purchase additional Equipment and Software under Section 3.3. In addition, for three (3) years after the
Effective Date, the Cities may order additional Equipment or Software if it is then available. Each order
must refer to this Agreement and must specify the pricing and delivery terms. Notwithstanding any
additional or contrary terms in the order, the applicable provisions of this Agreement (except for delivery,
passage of title and risk of loss to Equipment, warranty commencement, and payment terms) will govern
the purchase and sale of the additional Equipment or Software. The pricing will comply with Section
13.2.1YYY of the RFP, which provides for a firm percentage discount off of the current list price of the
Equipment or Software. Payment is due upon delivery and acceptance by the Cities in accordance with
the Texas Prompt Payment Act (Texas Government Code Section 2251. For Equipment and Software
purchased under this Section prior to System Acceptance which is intended to be incorporated into the
System, title, risk of loss, and warranty will be controlled by this Agreement. Concerning Equipment and
Software purchased under this Section that is not intended to be incorporated into the System or is
purchased after System Acceptance, title and risk of loss will pass upon delivery and warranty will
commence upon delivery. Motorola will send the Cities an invoice as the additional Equipment is shipped
or Software is licensed. Alternatively, the Cities may register with and place orders through Motorola
Online ("MOL"), and this Agreement will be the "Underlying Agreement" for those MOL transactions rather
than the MOL On-Line Terms and Conditions of Sale. MOL registration and other information may be
found at http:/lwww.motorola.com/businessandqovernment/ and the MOL telephone number is (800) 814-
0601.
3.6. MAINTENANCE SERVICE. During the Warranty Period, Motorola will provide maintenance
services for the Equipment and support for the Motorola Software and Non-Motorola Soffinrare pursuant to
this Agreement, including the ESS Statement of Work. Those services and support are included in the
Contract Price. If the Cities wish to purchase additional maintenance and support services for the
Equipment during the Warranty Period, or any maintenance and support services for the Equipment after
the Warranty Period, the description of and pricing for the services will be set forth in a separate
document. If the Cities wish to purchase extended support for the Motorola Software or Non-Motorola
Software after the Warranty Period, it may do so by ordering software subscription services as described
in the Software Subscription section of the ESS Statement of Work. Unless otherwise agreed by the
parties in writing, the terms and conditions applicable to those maintenance, support or software
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subscription services will be Motorola's standard Service Terms and Conditions, together with the
appropriate statements of work.
3.7. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
the Cities solely in accordance with the Software License Agreement. The Cities hereby accept and
agree to abide by all of the terms and restrictions of the Software License Agreement.
3.8. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to the Cities in
accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date
unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software
pursuant to the Software License Agreement, in which case it applies and the copyright owner will have
all of Licensor's rights and protections under the Software License Agreement. Non-Motorola Software
may include Open Source Software. Motorola represents that, to the best of their knowledge, the Cities'
use of Non-Motorola Software as described and provided for in this Agreement is a legally authorized use
of said software, which does not constitute an infringement. The Cities enter into this Agreement relying
on this representation.
3.9. SUBSTITUTIONS. At no additional cost to the Cities, Motorola may substitute any Equipment,
Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications
and is of equivalent or better quality to the Cities. Any substitution will be reflected in a change order.
3.10 PROJECT MANAGER. The Parties agree that the City of Plano Radio System Manager shall be
the Project Manager for the duration of the project which is the subject of this Agreement. The Project
Manager shall be the liaison between the Cities and Motorola and all communication between the Cities
and Motorola shall be made by and through the Project Manager. The Project Manager shall be
responsible for project management services and technical expertise required to assure completion of the
Project. In this capacity, the Project Manager is responsible for the oversight and facilitation of the
successful completion of the Project.
Section 4 PERFORMANCE SCHEDULE AND PAYMENT AND PERFORMANCE BOND
4.1 The Parties will perform their respective responsibilities in accordance with the Performance
Schedule, included in the Motorola Response to the RFP. By executing this Agreement, the Cities
authorize Motorola to proceed with contract performance.
4.2 In the event this Agreement amount exceeds $25,000.00, a Payment bond in the amount of
not less than one hundred percent (100%) of the Agreement amount conditioned upon the payment of all
person supplying labor or furnishing materials pursuant to the Agreement is required upon a form a
provided by the Cities. In the event this Agreement exceeds $100,000.00, a Performance Bond in the
amount of not less than one hundred and fifteen percent (115%) of the Agreement amount, conditioned
upon the faithful performance of the Agreement, is required upon a form provided by the Cities. The
bonds are attached hereto and incorporated herein as Exhibit "K."
Section 5 CONTRACT PRICE, PAYMENT, INVOICING AND INSURANCE
5.1. CONTRACT PRICE. The Contract Price in U.S. dollars is in an amount not to exceed
$19,104,907.00. If applicable, a pricing summary is included with the Payment Schedule. Motorola has
priced the services, Software, and Equipment as an integrated system. A reduction in Software or
Equipment quantities, or services, may affect the overall Contract Price, including discounts if applicable.
Each City shall be responsible for an amount not to exceed the following:
City of Plano; $12,271,398.00
City of Allen: $3,564,589.00
City of Wylie: $2,370,359.00
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City of Murphy: $898,560.00
5.2. INVOICING AND PAYMENT. Motorola will submit invoices separately to each City according to
the Payment Schedule. Except for a payment that is due on the Effective Date, each City will make
payments to Motorola in accordance with the Texas Prompt Payment Act (Texas Government Code
Section 2251. Each City shall only be responsible for the individual charges/costs for their City and shall
not be responsible for any charges/costs for another City Each City will make payments when due in the
form of a wire transfer, check, or cashier's check from a U.S. financial institution. Each City will be
invoiced for the percentage of the full installment payment amount equal to the percentage of the total
Contract Price allocated to each in accordance with the Pricing Summary. For reference, the Federal Tax
Identification Number for Motorola, Inc. is 36-1115800.
5.3 FREIGHT, TITLE, AND RISK OF LOSS. Title, care, custody, control and risk of loss of the non-
subscriber Equipment will pass to the Cities upon complete installation of the Equipment at the sites. Title
and risk of loss of subscriber equipment will pass to the Cities upon delivery. Title to Software will not
pass to the Cities at any time.
5.4 INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to each City at the address
specified above. Software delivery shall be coordinated through the Project Manager. Storage, site
delivery, and installation of the Infrastructure Equipment are the responsibility of Motorola until complete
installation of the Equipment at the sites. Delivery and installation of any other Software and/or Equipment
not specified in this section shall be coordinated through the Project Manager.
Cities may change this information by giving written notice to Motorola.
5.5 INSURANCE AND CERTIFICATES OF INSURANCE. Motorola shall procure and maintain for
the duration of the Agreement for the benefit of the Cities (listing each City, and its council members,
officers, and employees as additional insureds on the general liability policy) insurance coverage as set
forth in the Insurance Requirements marked as Exhibit "E" attached hereto and incorporated herein by
reference. Motorola shall provide a signed insurance certificate for each City verifying that Motorola has
obtained the required insurance coverage for each City immediately following the execution of this
Agreement. Insurance Certificates for each City will be attached as follows:
Exhibit "F" City of Plano, Texas
Exhibit "G" City of Allen, Texas
Exhibit "H" City of Wylie, Texas
Exhibit "I" City of Murphy, Texas
Section 6 SITES AND SITE CONDITIONS
6.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement, the
Cities will provide a designated project manager; all necessary construction and building permits, zoning
variances, licenses, and any other approvals that are necessary to develop or use the sites; and access
to the work sites as reasonably requested by Motorola so that it may perform its duties in accordance with
the Performance Schedule and Statement of Work. If the Statement of Work so indicates, Motorola may
assist the Cities in the local building permit process. Nothing contained in this paragraph shall be
construed as the Cities' pre-approval or automatic approval of any type of permit or zoning application.
Nor shall it be construed as the Cities waiver of its application and/or public hearing process.
6.2. SITE CONDITIONS. The Cities will ensure that all work sites it provides will be safe, secure, and
in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the
Statement of Work states to the contrary, the Cities will ensure, to the extent possible, that these work
sites have adequate: physical space; air conditioning and other environmental conditions; electrical power
outlets, distribution and equipment; and telephone or other communication lines (including modem access
and adequate interfacing networking capabilities), all for the installation, use and maintenance of the
System. Before installing the Equipment or Software at a work site, Motorola will inspect the work site
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and advise the Cities of any apparent deficiencies or non-conformities with the requirements of this
Section. This Agreement is predicated upon normal soil conditions as defined by the version of E.I.A.
standard RS-222 in effect on the Effective Date.
6.3. SITE ISSUES. If a Party determines that the sites identified in the Technical and Implementation
Documents are no longer available or desired, or if subsurface, structural, adverse environmental or
latent conditions at any site differ from those indicated in the Technical and Implementation Documents,
the Parties will promptly investigate the conditions and will select replacement sites or adjust the
installation plans and specifications as necessary. If change in sites or adjustment to the installation
plans and specifications causes a change in the cost or time to perform, the Parties will equitably amend
the Contract Price, Performance Schedule, or both, by a change order.
Section 7 TRAINING
Any training to be provided by Motorola to the Cities will be described in the Statement of Work. The
Cities will notify Motorola immediately if a date change for a scheduled training program is required. If
Motorola incurs additional costs because the Cities reschedule a training program less than thirty (30)
days before its scheduled start date, Motorola may recover these additional costs from the individual City
requesting or receiving the training.
Section 8 SYSTEM ACCEPTANCE
8.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to the Cities at least ten
(10) days notice before the Acceptance Tests commence. System testing will occur only in accordance
with the Acceptance Test Plan.
8.2. SYSTEM ACCEPTANCE. System Acceptance will occur upon successful completion of all of the
Acceptance Tests, whether it is part of the System or an individual subsystem. Upon System
Acceptance, the Parties will memorialize this event by promptly executing a System Acceptance
Certificate for the entire System, including individual subsystems. If the Cities believe the System has
failed the completed Acceptance Tests, the Cities will provide to Motorola a written notice that includes
the specific details of the failure. If the Cities do not provide to Motorola a failure notice within thirty (30)
days after completion of the Acceptance Tests, System Acceptance will be deemed to have occurred as
of the completion of the Acceptance Tests. Minor omissions or variances in the System that do not
materially impair the operation of the System as a whole will not postpone System Acceptance but will
be corrected according to a mutually agreed schedule.
8.3. BENEFICIAL USE. The Cities acknowledge that Motorola's ability to perform its implementation
and testing responsibilities may be impeded if the Cities begin using the System before System
Acceptance. Therefore, the Cities will not commence Beneficial Use before System Acceptance without
Motorola's prior written authorization, which will not be unreasonably withheld. Motorola is not
responsible for System performance deficiencies that occur during unauthorized Beneficial Use. Upon
commencement of Beneficial Use, the Cities assume responsibility for the use and operation of the
System. The term Beneficial Use will not include the use of any subscriber radios shipped under this
Agreement and put into use on the current Cities' systems.
8.4 FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance
when all deliverables and other work have been completed. When Final Project Acceptance occurs, the
Parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate.
Section 9 REPRESENTATIONS AND WARRANTIES
9.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance
with the Specifications in all material respects. Upon System Acceptance this System functionality
representation is fulfilled. Motorola is not responsible for System performance deficiencies that are
caused by ancillary equipment or software not furnished by Motorola pursuant to this Agreement which is
attached to or used in connection with the System or for reasons or parties beyond Motorola's control,
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such as natural causes; the construction of a building that adversely affects the microwave path reliability
or radio frequency (RF) coverage; the addition of frequencies at System sites that cause RF interference
or intermodulatio�; or the Cities change to load usage or configuration outside the Specifications.
If the Cities provide a notice under Section 8.2 that they believe the System has failed an Acceptance
Test, then Motorola shall address and remedy the failure as soon as practicable and at no additional cost
to the Cities. Such remedy shall include all equipment, systems, and services necessary to pass the
Acceptance Test. When Motorola believes it has successfully remedied the failure, Motorola shall so
notify the Cities in a writing that specifies the measures taken by Motorola to remedy the failure. Upon the
receipt of such notice by Motorola, the Parties shall repeat the portion of the previously failed Acceptance
Test, unless the test that fails is the 30 day reliability test discussed in the RFP, in which case the full test
will be repeated in the event of a major failure as defined in the RFP. The re-testing shall commence as
promptly as practical on a date reasonably acceptable to both the Cities and Motorola. Execution of the
appropriate "System Acceptance Certificate" will constitute acceptance by the Cities.
9.2. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment
under normal use and service will be free from material defects in materials and workmanship. If System
Acceptance is delayed beyond six (6) months after shipment of the infrastructure Equipment (excluding
expressly the shipment of any subscriber radios) by events or causes within the Cities' control, this
warranty expires eighteen (18) months after the shipment of the Equipment.
9.3. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License
Agreement, during the Warranty Period, Motorola warrants the Motorola Software in accordance with the
terms of the Software License Agreement and the provisions of this Section 9 that are applicable to the
Motorola Software. If System Acceptance is delayed beyond six (6) months after shipment of the
Motorola Software (excluding any Software shipped with subscriber radios) by events or causes within
the Cities control, this warranty expires eighteen (18) months after the shipment of the Motorola Software.
9.4. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These
warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Motorola
Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of
God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not
provided or authorized in writing by Motorola; the Cities' failure to comply with all applicable industry and
OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or
workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries
(because they carry their own separate limited warranty) or consumables; (v) freight costs to ship
Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does
not affect the operation of the Equipment; and (vii) normal or customary wear and tear.
9.5. WARRANTY CLAIMS. To assert a warranty claim, the Cities must notify Motorola in writing of
the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will (at its
option and at no additional charge to the Cities) perform one of the following three options: repair the
defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the
price of the defective Equipment or Motorola Software. That action will be the full extent of Motorola's
liability for the warranty claim. Repaired or replaced product is warranted for the balance of the original
applicable warranty period. All replaced products or parts will become the property of Motorola.
9.6. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the System (including all Cities) for commercial, industrial, or
governmental use only, and are not assignable or transferable.
9.7. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE
WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS
AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS
ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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Section 10 DELAYS
10.1. FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance if
caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay
performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers
the Force Majeure. If a Force Majeure occurs, the Parties will execute a change order to extend the
Performance Schedule for a time period that is reasonable under the circumstances.
10.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY THE CITIES. If the Cities (including their
other contractors) delay the Performance Schedule, it will make the promised payments according to the
Payment Schedule as if no delay occurred; and the Parties will execute a change order to extend the
Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred
because of the delay. Delay charges may include costs incurred by Motorola or its subcontractors fo�
additional extension of the warranties; suspending and re-mobilizing the work; and preparing and
implementing an alternative implementation plan. Delay charges shall not include freight, travel, additional
engineering, project management or handling of Equipment or standby time. If the Parties agree that the
System must be redesigned as a result of a delay, then such engineering costs to redesign the System
will be included.
Section 11 DISPUTES
11.1 In the event of a dispute regarding any aspect of this Agreement, the Parties shall refer the
dispute to outside non-binding mediation for resolution prior to engaging in litigation. All Parties shall
share equally in the costs of a certified mediator and each Party shall be responsible for their own
attorney fees. Any mediation between the Parties shall be in Texas.
11.2 Disputes among the Cities that are independent of any dispute with Motorola shall be resolved
according to the terms and provision of the interlocal agreement passed by resolution and adopted by
each of the Cities titled: AGREEMENT BETWEEN THE CITY OF PLANO, TEXAS, AND THE CITY OF
ALLEN, TEXAS, THE CITY OF WYLIE, TEXAS AND THE CITY OF MURPHY, TEXAS FOR JOINT
RADIO COMMUNCIATIONS SYSTEM.
Section 12 DEFAULT AND TERMINATION
12.1 DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this
Agreement, the other Party may consider the non-performing Party to be in default (unless a Force
Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written
and detailed notice of default. Except for a default by the Cities for failing to pay any amount when due
under this Agreement which must be cured immediately, the defaulting Party will have thirty (30) days
after receipt of the notice of default to either cure the default or, if the default is not curable within thirty
(30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan
immediately after receipt of notice by the other Party that it approves the plan. During any period of
default by Motorola, the Cities will be relieved of any obligation to make any payment associated with the
Motorola default. If the Cities are the defaulting Party, Motorola may stop work on the project until it
approves the Cities' cure plan.
12.2 TERMINATION BY CITIES. Unilateral termination by any individual City is prohibited.
12.3. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section
12.1, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of
this Agreement, subject to Sections 11.1 and 12.2 herein. In the event of termination for default, the
defaulting Party will promptly return to the non-defaulting Party any of its Confidential Information. If the
Cities are the non-defaulting Party, terminate this Agreement as permitted by this Section, and complete
the System through a third Party, Customer may recover from Motorola reasonable costs incurred to
complete the System to a capability not exceeding that specified in this Agreement less the unpaid
portion of the Contract Price. To the extent required by law, the Cities will take reasonable actions to
mitigate their respective damages and provide Motorola with detailed invoices substantiating the charges.
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SECTION 13 INDEMNIFICATION
13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola shall release, defend, indemnify and hold
harmless the Cities and their officers, agents and employees from and against all damages, injuries
(including death), claims, property damages (including loss of use), losses, demands, suits, judgments
and costs, including reasonable attorney's fees and expenses, in any way arising out of, related to, or
resulting from and to the extent caused by the negligent performance of the work or caused by the
negligent act or omission or intentional acts of Motorola, its officers, agents, employees, subcontractors,
licensees, invitees or any third parties for whom Motorola is legally responsible (hereinafter "claims").
In their sole discretion, Cities shall have the right to reasonably approve defense counsel to be retained
by Motorola in fulfilling its obligation hereunder to defend and indemnify the Cities, unless such right is
expressly waived by Cities in writing. Cities reserve the right to provide a portion or all of their own
defense; however, Cities are under no obligation to do so. Any such action by Cities is not to be
construed as a waiver of Motorola's obligation to indemnify Cities pursuant to this contract.
Motorola shall retain defense counsel approved by Cities within seven (7) business days of the Cities
written notice that they are invoking their right to indemnification under this Agreement. If Motorola fails to
retain counsel within such time period and after providing reasonable notice, Cities shall have the right to
retain defense counsel on their own behalf, and Motorola shall be liable for all costs incurred by Cities.
13.2. PATENT AND COPYRIGHT INFRINGEMENT.
13.2.1. Motorola will defend, indemnify and hold harmless at its expense any claim/suit brought against
the Cities to the extent it is based on an Infringement Claim, and Motorola will indemnify the Cities for
those costs and damages finally awarded against the Cities for an Infringement Claim. Motorola's duties
to defend and indemnify are conditioned upon: the Cities promptly notifying Motorola in writing of the
Infringement Claim; Motorola having sole control of the defense of the claim/suit and all negotiations for
its settlement or compromise; and the Cities providing to Motorola cooperation and, if requested by
Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to Motorola's
obligation to defend, and subject to the same conditions, Motorola will pay all damages finally awarded
against the Cities by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing,
by Motorola in settlement of an Infringement Claim.
13.2.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola shall, at its
expense: (a) procure for the Cities the right to continue using the Product; (b) replace or modify the
Product so that it becomes non-infringing while providing functionally equivalent performance; or (c)
accept the return of the Product and grant the Cities a credit for the Product, less a reasonable charge for
depreciation. The depreciation amount will be calculated based upon generally accepted accounting
standards. Motorola will proceed under Subsection (c) above only if Subsections (a) and (b) prove to be
commercially unreasonable.
13.2.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon:
(a) the combination of the Equipment, Motorola Software or Non-Motorola Software with any software,
apparatus or device not furnished by Motorola; (b) the use of ancillary equipment or soffinrare not
furnished by Motorola and that is attached to or used in connection with the Equipment, Motorola
Software or Non-Motorola Software; (c) Equipment, Motorola Software or Non-Motorola Software
designed or manufactured in accordance with the Cities' designs, specifications, guidelines or
instructions, if the alleged infringement would not have occurred without such designs, specifications,
guidelines or instructions; (d) a modification of the Equipment, Motorola Software or Non-Motorola
Software by a party other than Motorola; (e) use of the Equipment, Motorola Software or Non-Motorola
Software in a manner for which the Equipment, Motorola Software or Non-Motorola Software was not
designed or that is inconsistent with the terms of this Agreement; or (f) the failure by the Cities to install
an enhancement release to the Motorola Software that is intended to correct the claimed infringement. In
no event will Motorola's liability resulting from its indemnity obligation to the Cities extend in any way to
royalties payable on a per use basis or or Cities' revenues, or any royalty basis other than a reasonable
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royalty based upon revenue derived by Motorola from the Cities from sales or license of the infringing
Equipment, Motorola Software or Non-Motorola Software.
13.2.4. This Section 13 provides the Cities' sole and exclusive remedies and Motorola's entire liability in
the event of an Infringement Claim. The Cities do not have a right to recover and Motorola has no
obligation to provide any other or further remedies, whether under another provision of this Agreement or
any other legal theory or principle, in connection with an Infringement Claim. In addition, the rights and
remedies provided in this Section 13 are subject to and limited by the restrictions set forth in Section 14.
Section 14 LIMITATION OF LIABILITY
Motorola and the Cities acknowledge that they have negotiated the Price (among other things) in
consideration of their agreement to limit certain of Motorola's liabilities. Except for the obligations set
forth is Section 13.2.1, in no event is Motorola or any of its suppliers or licensors liable for any indirect,
special, exemplary, consequential or incidental damages (including lost profits, lost revenues and other
economic losses), however caused and regardless of whether such damages are foreseeable or whether
Motorola has been advised of their possibility.
EXCEPT FOR A CLAIM FOR PERSONAL INJURY, LOSS OF LIFE, OR DAMAGE TO REAL OR
TANGIBLE PROPERTY CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY BY
MOTOROLA, MOTOROLA'S TOTAL LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO
DIRECT DAMAGES NOT EXCEED ONE AND ONE-HALF TIMES THE TOTAL CONTRACT PRICE.
Section 15 CONFIDENTIALITY AND PROPRIETARY RIGHTS
15.1. CONFIDENTIAL INFORMATION. During the term of this Agreement, the parties may provide
each other with Confidential Information. Subject to any obligations of the Cities under Texas law
including the Open Records laws, each Party will: maintain the confidentiality of the other Party's
Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party
in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential
Information to its employees who have a"need to know" and not copy or reproduce the Confidential
Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential
Information, including informing its employees who handle the Confidential Information that it is
confidential and is not to be disclosed to others, but these precautions will be at least the same degree of
care that the receiving Party applies to its own confidential information and will not be less than
reasonable care; and use the Confidential Information only in furtherance of the performance of this
Agreement. Confidential Information is and will at all times remain the property of the disclosing Party,
and no grant of any proprietary rights in the Confidential Information is given or intended, including any
express or implied license, other than the limited right of the recipient to use the Confidential Information
in the manner and to the extent permitted by this Agreement. If an Open Records request is submitted to
the Cities requesting documents marked by Motorola as confidential, the Cities will provide Motorola
reasonable notice of the request, but Motorola will be required to take whatever steps are necessary
under the Open Records Act to protect the documents. If the Attorney General rules pursuant to written
determination that the confidential information is subject to disclosure, the Cities shall release such
information.
15.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola, the third party
manufacturer of any Equipment, and the copyright owner of any Non-Motorola Software own and retain
all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is
intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by
Motorola in connection with providing to the Cities the Equipment, Software, or related services remain
vested exclusively in Motorola, and this Agreement does not grant to the Cities any shared development
rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola
does not grant to the Cities, either directly or by implication, estoppel, or otherwise, any right, title or
interest in Motorola's Proprietary Rights. The Cities will not modify, disassemble, peel components,
decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create
derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell
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or export the Software, or permit or encourage any third pa�ty to do so. The preceding sentence does not
apply to Open Source Software which is governed by the standard license of the copyright owner. If an
Open Records request is submitted to the Cities requesting documents marked by Motorola as
proprietary, the Cities will provide Motorola reasonable notice of the request, but Motorola will be required
to take whatever steps are necessary under the Open Records Act to protect the documents. If the
Attorney General rules pursuant to written determination that the proprietary information is subject to
disclosure, the Cities shall release such information.
Section 16 GENERAL
16.1. TAXES. The Cities have represented that they are exempt from federal manufacturer's excise,
state sales tax and state property taxes. Based upon such representation, Motorola has not included any
taxes in the Contract Price. Motorola will be solely responsible for reporting taxes on its income or net
worth.
16.2. ASSIGNABILITY AND SUBCONTRACTING. Motorola may subcontract any of the work, but
subcontracting will not relieve Motorola of its duties under this Agreement. Except as provided herein,
neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior
written consent of the other Party, which consent will not be unreasonably withheld. Any attempted
assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the
foregoing, Motorola may assign this Agreement to any of its affiliates to the extent Motorola owns at least
50% of the affiliate or its right to receive payment without the prior consent of the Cities. In addition, in the
event Motorola separates one or more of its businesses (each a"Separated Business"), whether by way
of a sale, establishment of a joint venture, spin-off or otherwise (each a"Separation EvenY'), Motorola
may, without the prior written consent of the other Party and at no additional cost to Motorola, assign this
Agreement such that it will continue to benefit the Separated Business and its affiliates (and Motorola and
its affiliates, to the extent applicable) following the Separation Event provided that the Government and
Public Safety business which submitted the RFP response is included in the Separated Business.
16.3 SUCCESSOR AND ASSIGNS. The Cities and Motorola, and their partners, assigns, successors,
subcontractors, executors, officers, agents, employees, representatives, and administrators are herby
bound to the terms and conditions of this Agreement.
16.4 WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will
not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a
writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either
a future or continuing waiver of that same right or power, or the waiver of any other right or power.
16.5. SEVERABI�ITY. If a court of competent jurisdiction renders any part of this Agreement invalid or
unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and
effect.
16.6. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an
independent contractor. The Parties and their personnel will not be considered to be employees or
agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right
or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or
be interpreted as a joint venture, partnership or formal business organization of any kind.
16.7. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are
inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of
the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in
accordance with its terms and conditions and not for or against either Party.
16.8. GOVERNING LAW. This entire Agreement is performable in Collin County, Denton County and
Rockwall County, Texas and the venue for any action related directly or indirectly, to this Agreement or in
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any manner connected therewith shall be in Collin County, Texas, and this Agreement shall be construed
under the laws of the State of Texas.
16.9. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement
of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements,
proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement
may be amended or modified only by a written instrument signed by authorized representatives of both
Parties. The preprinted terms and conditions found on any the Cities purchase order, acknowledgment or
other form will not be considered an amendment or modification of this Agreement, even if a
representative of each Party signs that document.
16.10. NOTICES. Notices required under this Agreement to be given by one Party to the other must be
in writing and either personally delivered or sent to the address shown below by certified mail, return
receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express,
UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt:
Motorola, Inc.
Attn: Commercial Law Dept.
6450 Sequence Drive
San Diego, CA 92121
fax: 858 404-2594
City of Wylie
Attn: Chief Randy Corbin
2000 Highway 78 North
Wylie, Texas 75098
Fax:
With a copy to:
Attn: Courtney Kuykendall
Abernathy, Roeder, Boyd Joplin P.C.
1700 Redbud Blvd. Suite 300
McKinney, Texas 75069
Fax: 214-544-4044
16.11. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal,
state, and local laws, regulations and rules concerning the performance of this Agreement or use of the
System. The Cities will obtain and comply with all Federal Communications Commission ("FCC") licenses
and authorizations required for the installation, operation and use of the System before the scheduled
installation of the Equipment. Although Motorola might assist the Cities in the preparation of its FCC
license applications, neither Motorola nor any of its employees is an agent or representative of the Cities
in FCC or other matters.
16.12. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all
necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties
under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon
execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in
accordance with its terms; and the execution, delivery, and performance of this Agreement does not
violate any bylaw, charter, regulation, law or any other governing authority of the Party.
16.13. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this
Agreement for any reason: Section 3.6 (Motorola Software); Section 3.7 (Non-Motorola Software); if any
payment obligations exist, Sections 5.1 and 5.2 (Contract Price and Invoicing and Payment); Subsection
9.7 (Disclaimer of Implied Warranties); Section 11 (Disputes); Section 14 (Limitation of Liability); and
Section 15 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 16.
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16.14 AUDIT: The Cities reserve the right to audit the records and performance of Motorola during the
term of the Agreement and for three years thereafter. The inspection will be limited to the verification of
shipment to invoice quantities and shipment receipts.
16.15 SOVEREIGN IMMUNITY. The parties agree that the Cities have not waived their sovereign
immunity by entering into and performing its obligations under this Agreement.
16.16 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be construed to create any
right in any third party not a signatory to this Agreement, and the parties do not intend to create any third
party beneficiaries by entering into this Agreement.
16.17 APPROPRIATION OF FUNDS. Funds are not presently budgeted for the Cities performance
under this Agreement beyond the end of the Customer's 2009-2010 fiscal year. The Cities will give
Motorola sixty (60) days written notice if funds for Cities' performance are not budgeted to continue
beyond that time. To the extent the Cities have provided the notice required above, the Cities shall not
have liability for payment of any money for services performed after the end of Customer's 2009-2010
fiscal year unless and until such funds are budgeted.
The Parties hereby enter into this Agreement as of the Effective Date.
Motorola, Inc. City of Plano, Texas
By: By:
Name: Name:
Title: Title:
Date: Date:
City of Allen, Texas City of Murphy, Texas
By: By:
Name: Name:
Title: Title:
Date: Date:
City of Wylie, Texas
By:
Mindy Manson, City Manager
Date:
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