2009-247ORDINANCE NO. _ 2M 1- 2117
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR,
AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE
PURCHASE OF A SECOND ANALOG SMARTNET SIMULCAST SYSTEM FROM
MOTOROLA, INC., WHICH IS AVAILABLE FROM ONLY ONE SOURCE IN
ACCORDANCE WITH THE PERTINENT PROVISIONS OF CHAPTER 252 OF THE
TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM
THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN
EFFECTIVE DATE (FILE 4404-PURCHASE OF MOTOROLA TWO SITE
SIMULCAST SYSTEM FOR DENTON MUNICIPAL ELECTRIC IN THE AMOUNT
OF $2,615,550).
WHEREAS, Section 252.022 of the Local Government Code provides that
procurement of items that are only available from one source, including; items that are
only available from one source because of patents, copyrights, secret processes or natural
monopolies; films, manuscripts or books; electricity, gas, water and other utility
purchases; captive replacement parts or components for equipment; and library materials
for a public library that are available only from the persons holding exclusive distribution
rights to the materials; need not be submitted to competitive bids; and
WHEREAS, the City Council wishes to procure one or more of the items
mentioned in the above paragraph; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The following purchase of materials, equipment or supplies, as
described in the "File" listed hereon, and on file in the office of the Purchasing Agent,
and the license terms attached are hereby approved:
FILE
NUMBER VENDOR AMOUNT
4404 Motorola, Inc. $2,615,550
SECTION 2. The acceptance and approval of the above items shall not
constitute a contract between the City and the person submitting the quotation for such
items until such person shall comply with all requirements specified by the Purchasing
Department.
SECTION 3. The City Manager is hereby authorized to execute any contracts
relating to the items specified in Section I and the expenditure of funds pursuant to said
contracts is hereby authorized.
SECTION 4. This ordinance shall become effective immediately upon its
passage and approval.
PASSED AND APPROVED this the (!i day of A~k6' 2009.
4"nz_
MARK A. U S, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
B
BY:
5-ORD-F 404
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
Communications System Agreement
(No ESS)
Motorola, Inc. ("Motorola"), and The City of Denton, Texas ("Customer") enter into this "Agreement",
pursuant to which Customer will purchase and Motorola will sell the System, as described below.
Motorola and Customer 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 interpreting this
Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the
exhibits and any inconsistency between Exhibits A through E will be resolved in their listed order.
Exhibit A Motorola "Software License Agreement"
Exhibit B "Payment Schedule"
B-1 "Pricing Summary" dated August 14, 2009
Exhibit C "Technical and Implementation Documents"
C-1 "System Description" dated August 14, 2009
C-2 "Equipment List" as shown in Section 2 of System Description dated August 14, 2009
C-3 "Statement of Work" dated October 12, 2008
C-4 "Acceptance Test Plan" or "ATP" dated September 9, 2009
Exhibit D "System Acceptance Certificate"
Exhibit E "Service Terms and Conditions"
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 Customer first uses 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 its equivalent; 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
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.
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 Customer purchases 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 (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).
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2.8. "Infringement Claim" means a third party claim alleging that the Equipment manufactured by
Motorola or the Motorola Software infringes upon the third party's United States patent or copyright.
2.9. "Motorola Software" means Software that Motorola or its affiliated company owns.
2.10. "Non-Motorola Software" means Software 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 more fully 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 AND TERM
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. Customer will perform its contractual
responsibilities in accordance with this Agreement.
3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this
Agreement. 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 change order. Neither Party is
obligated to perform requested changes unless both Parties execute a written change order.
3.3. 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.
3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. For three (3) years after the Effective Date,
Customer 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 pricing, 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. Title and risk of loss to additional Equipment
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will pass at shipment, warranty will commence upon delivery, and payment is due within twenty (20) days
after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped or
Software is licensed. Alternatively, Customer 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
htt?://www.motorola.com/businessandgovernment/ and the MOL telephone number is (800) 814-0601.
3.5. ABOVE WARRANTY SERVICES. During the Warranty Period for the Equipment, in addition to
warranty services, Motorola will provide maintenance services for the Equipment and support for the
Motorola Software pursuant to the terms of this Agreement, including the Above Warranty Services
Statement of Work and Service Terms and Conditions. Such services and support are included in the
Contract Price. If Customer wishes 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 such services will be set forth in a separate
document. If Customer wishes to purchase extended support for the Motorola Software after the
Warranty Period, it may do so by ordering software subscription services. Unless otherwise agreed by
the Parties in writing, the terms and conditions applicable to such maintenance, support or software
subscription services will be Motorola's standard Service Terms and Conditions, together with the
appropriate statements of work.
3.6. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
Customer solely in accordance with the Software License Agreement. Customer hereby accepts and
agrees to abide by all of the terms and restrictions of the Software License Agreement.
3.7. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to Customer in
accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date
unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software
pursuant to the Software License Agreement, in which case it applies and the copyright owner will have
all of Licensor's rights and protections under the Software License Agreement. Motorola makes no
representations or warranties of any kind regarding Non-Motorola Software. Non-Motorola Software may
include Open Source Software. All Open Source Software is licensed to Customer in accordance with,
and Customer agrees to abide by, the provisions of the standard license of the copyright owner and not
the Software License Agreement. Upon request by Customer, Motorola will use commercially reasonable
efforts to determine whether any Open Source Software will be provided under this Agreement; and if so,
identify the Open Source Software and provide to Customer a copy of the applicable standard license (or
specify where that license may be found); and provide to Customer a copy of the Open Source Software
source code if it is publicly available without charge (although a distribution fee or a charge for related
services may be applicable).
3.8. SUBSTITUTIONS. At no additional cost to Customer, 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 Customer. Any substitution will be reflected in a change order.
Section 4 PERFORMANCE SCHEDULE
The Parties will perform their respective responsibilities in accordance with the Performance Schedule.
By executing this Agreement, Customer authorizes Motorola to proceed with contract performance.
Section 5 CONTRACT PRICE, PAYMENT AND INVOICING
5.1. CONTRACT PRICE. The Contract Price in U.S. dollars is $2,615,550.00. 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 the Software or Equipment quantities, or services,
may affect the overall Contract Price, including discounts if applicable.
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5.2. INVOICING AND PAYMENT. Motorola will submit invoices to Customer according to the
Payment Schedule. Except for a payment that is due on the Effective Date, Customer will make
payments to Motorola within twenty (20) days after the date of each invoice. Customer will make
payments when due in the form of a wire transfer, check, or cashier's check from a U.S. financial
institution. Overdue invoices will bear simple interest at the maximum allowable rate. For reference, the
Federal Tax Identification Number for Motorola, Inc. is 36-1115800.
5.3. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the
invoices. Title to the Equipment will pass to Customer upon shipment. Title to Software will not pass to
Customer at any time. Risk of loss will pass to Customer upon delivery of the Equipment to the
Customer. Motorola will pack and ship all Equipment in accordance with good commercial practices.
5.4. INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following
address: TO BE DETERMINED
5.5 The city which is the ultimate destination where the Equipment will be delivered to Customer is:
TO BE DETERMINED
The Equipment will be shipped to the Customer at the following address (insert if this information is
known): TO BE DETERMINED
Customer may change this information by giving written notice to Motorola.
Section 6 SITES AND SITE CONDITIONS
6.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement,
Customer 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 Customer in the local building permit process.
6.2. SITE CONDITIONS. Customer 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, Customer will ensure 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 and advise
Customer 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 Customer will be described in the Statement of Work.
Customer will notify Motorola immediately if a date change for a scheduled training program is required.
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If Motorola incurs additional costs because Customer reschedules a training program less than thirty (30)
days before its scheduled start date, Motorola may recover these additional costs.
Section 8 SYSTEM ACCEPTANCE
8.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer 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 the
Acceptance Tests. Upon System Acceptance, the Parties will memorialize this event by promptly
executing a System Acceptance Certificate. If the Acceptance Test Plan includes separate tests for
individual Subsystems or phases of the System, acceptance of the individual Subsystem or phase will
occur upon the successful completion of the Acceptance Tests for the Subsystem or phase, and the
Parties will promptly execute an acceptance certificate for the Subsystem or phase. If Customer believes
the System has failed the completed Acceptance Tests, Customer will provide to Motorola a written notice
that includes the specific details of the failure. If Customer does 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
or Subsystem acceptance, but will be corrected according to a mutually agreed schedule.
8.3. BENEFICIAL USE. Customer acknowledges that Motorola's ability to perform its implementation
and testing responsibilities may be impeded if Customer begins using the System before System
Acceptance. Therefore, Customer 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, Customer assumes responsibility for the use and operation of the
System.
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 or Beneficial Use, whichever
occurs first, this System functionality representation is fulfilled. Motorola is not responsible for System
performance deficiencies that are caused by ancillary equipment not furnished by Motorola which is
attached to or used in connection with the System or for reasons or parties beyond Motorola's control,
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 Customer changes to load usage or configuration outside the Specifications.
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 Equipment by events or causes within
Customer's 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 by events or causes within Customer's control, this warranty expires eighteen (18)
months after the shipment of the Motorola Software.
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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; Customer's 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, Customer must notify Motorola in writing of
the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will
investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at its
option and at no additional charge to Customer) repair the defective Equipment or Motorola Software,
replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola
Software. That action will be the full extent of Motorola's liability for the warranty claim. If this
investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding
to the claim on a time and materials basis using Motorola's then current labor rates. Repaired or replaced
product is warranted for the balance of the original applicable warranty period. All replaced products or
parts will become the property of Motorola.
9.6. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the System 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.
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 CUSTOMER. If Customer (including its
other contractors) delays 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 for
additional freight, warehousing and handling of Equipment; extension of the warranties; travel;
suspending and re-mobilizing the work; additional engineering, project management, and standby time
calculated at then current rates; and preparing and implementing an alternative implementation plan.
Section 11 DISPUTES
11.1. SETTLEMENT PREFERRED. The Parties, by their project managers, will attempt to settle any
dispute arising from this Agreement (except for a claim relating to intellectual property or breach of
confidentiality) through consultation and a spirit of mutual cooperation. The dispute will be escalated to
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appropriate higher-level managers of the parties, if necessary. If cooperative efforts fail, the dispute will
be mediated by a mediator chosen jointly by the Parties within thirty (30) days after notice by one of the
parties demanding non-binding mediation. The Parties will not unreasonably withhold their consents to
the selection of a mediator, will share the cost of the mediation equally, may agree to postpone mediation
until they have completed some specified but limited discovery about the dispute, and may replace
mediation with some other form of non-binding alternative dispute resolution ("ADR").
11.2. LITIGATION. A Party may submit to a court of competent jurisdiction in the state in which the
System is installed any claim relating to intellectual property or a breach of confidentiality provisions and
any dispute that cannot be resolved between the parties through negotiation or mediation within two (2)
months after the date of the initial demand for non-binding mediation. Each Party consents to jurisdiction
over it by that court. The use of ADR procedures will not be considered under the doctrine of laches,
waiver, or estoppel to affect adversely the rights of either Party. Either Party may resort to the judicial
proceedings described in this section before the expiration of the two-month ADR period if good faith
efforts to resolve the dispute under these procedures have been unsuccessful; or interim relief from the
court is necessary to prevent serious and irreparable injury to the Party.
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 Customer 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. If Customer is the
defaulting Party, Motorola may stop work on the project until it approves the Customer's cure plan.
12.2. 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. In the event of termination for default, the defaulting Party will promptly return to the non-
defaulting Party any of its Confidential Information. If Customer is the non-defaulting Party, terminates
this Agreement as permitted by this Section, and completes the System through a third party, Customer
may as its exclusive remedy 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.
Customer will mitigate damages and provide Motorola with detailed invoices substantiating the charges.
Section 13 INDEMNIFICATION
13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify and hold Customer harmless
from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death,
or direct damage to tangible property which may accrue against Customer to the extent it is caused by
the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties
under this Agreement, if Customer gives Motorola prompt, written notice of any the claim or suit.
Customer will cooperate with Motorola in its defense or settlement of the claim or suit. This section sets
forth the full extent of Motorola's general indemnification of Customer from liabilities that are in any way
related to Motorola's performance under this Agreement.
13.2. GENERAL INDEMNITY BY CUSTOMER. Customer will indemnify and hold Motorola harmless
from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death,
or direct damage to tangible property which may accrue against Motorola to the extent it is caused by the
negligence of Customer, its other contractors, or their employees or agents, while performing their duties
under this Agreement, if Motorola gives Customer prompt, written notice of any the claim or suit.
Motorola will cooperate with Customer in its defense or settlement of the claim or suit. This section sets
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forth the full extent of Customer's general indemnification of Motorola from liabilities that are in any way
related to Customer's performance under this Agreement.
13.3. PATENT AND COPYRIGHT INFRINGEMENT.
13.3.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on
an Infringement Claim, and Motorola will indemnify Customer for those costs and damages finally
awarded against Customer for an Infringement Claim. Motorola's duties to defend and indemnify are
conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola
having sole control of the defense of the suit and all negotiations for its settlement or compromise; and
Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the
defense of the Infringement Claim.
13.3.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its
option and expense procure for Customer the right to continue using the Equipment or Motorola Software,
replace or modify it so that it becomes non-infringing while providing functionally equivalent performance,
or grant Customer a credit for the Equipment or Motorola Software as depreciated and accept its return.
The depreciation amount will be calculated based upon generally accepted accounting standards for such
Equipment and Motorola Software.
13.3.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon
the combination of the Equipment or Motorola Software with any software, apparatus or device not
furnished by Motorola; the use of ancillary equipment or software not furnished by Motorola and that is
attached to or used in connection with the Equipment or Motorola Software; any Equipment that is not
Motorola's design or formula; a modification of the Motorola Software by a party other than Motorola; or
the failure by Customer to install an enhancement release to the Motorola Software that is intended to
correct the claimed infringement. The foregoing states the entire liability of Motorola with respect to
infringement of patents and copyrights by the Equipment, Motorola Software, or any of their parts.
Section 14 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty,
negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages
recoverable under law, but not to exceed the price of the Equipment, Software, or services with respect to
which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY
OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY
COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES,
PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE
OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA
PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the expiration or
termination of this Agreement and applies notwithstanding any contrary provision. No action for contract
breach or otherwise relating to the transactions contemplated by this Agreement may be brought more
than one (1) year after the accrual of the cause of action, except for money due upon an open account.
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. 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 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 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
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Confidential Information only in furtherance of the performance of this Agreement. Confidential
Information is and shall at all times remain the property of the disclosing Party, and no grant of any
proprietary rights in the Confidential Information is 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.
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 Customer the Equipment, Software, or related services remain
vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development
rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola
does not grant to Customer, either directly or by implication, estoppel, or otherwise, any right, title or
interest in Motorola's Proprietary Rights. Customer 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
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.
Section 16 GENERAL
16.1. TAXES. The Contract Price does not include any excise, sales, lease, use, property, or other
taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola
is required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to
Motorola the amount of the taxes (including any interest and penalties) within twenty (20) days after the
date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property
tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth.
16.2. ASSIGNABILITY AND SUBCONTRACTING. Neither Party may assign this Agreement without
the prior written consent of the other Party, except that Motorola may assign this Agreement to any of its
affiliates or its right to receive payment without the prior consent of Customer. Motorola may subcontract
any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement.
16.3 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.
16.4. 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.
16.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement only
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.
16.6. 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.
16.7. GOVERNING LAW. This Agreement and the rights and duties of the Parties will be governed by
and interpreted in accordance with the laws of the State in which the System is installed.
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16.8. 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 the 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 Customer purchase order, acknowledgment
or other form will not be considered an amendment or modification of this Agreement, even if a
representative of each Party signs that document.
16.9. NOTICES. Notices required under this Agreement to be given by one Party to the other must be
in writing and either delivered personally 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:
fax:
Customer
Attn:
fax:
16.10. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal,
state, and local laws, regulations and rules concerning the performance of this Agreement or use of the
System. Customer will obtain and comply with all 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 Customer in the preparation of its FCC
license applications, neither Motorola nor any of its employees is an agent or representative of Customer
in FCC or other matters.
16.11. 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.
16.12. SURVIVAL OF TERMS. The following provisions shall 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.
The Parties hereby enter into th)f Agreement as of the Effective Date.
Motorola, Inc.
By:
Name:
Title: _
Date:
Customer
By: L:
Name:
Title: _
Date:
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Exhibit A
Software License Agreement
In this Exhibit A, the term "Licensor" means Motorola, Inc., ("Motorola") or Printrak International,
Incorporated, a Motorola company ("Printrak"); "Licensee," means the Customer; "Primary Agreement"
means the agreement to which this exhibit is attached; and "Agreement" means this Exhibit and the
applicable terms and conditions contained in the Primary Agreement. The Parties agree as follows:
Section 1 SCOPE
Licensor will provide to Licensee proprietary software, or radio communications, computer, or other
electronic products, or both ("Products") containing embedded or pre-loaded proprietary software.
"Software" means proprietary software in object code format, and adaptations, translations, de-
compilations, disassemblies, emulations, or derivative works of the software, and may contain one or
more items of software owned by a third party supplier (`Third Party Software"). Product and Software
documentation that specifies technical and performance features and capabilities, and the user, operation
and training manuals for the Software (including all physical or electronic media upon which this
information is provided) are collectively referred to as "Documentation." This Agreement contains the
terms and conditions pursuant to which Licensor will license to Licensee, and Licensee may use, the
Software and Documentation.
Section 2 GRANT OF LICENSE
Subject to Section 1, Licensor hereby grants to Licensee a personal, non-transferable (except as
permitted in Section 8 below), limited, and non-exclusive license under Licensor's applicable proprietary
rights to use the Software and related Documentation for the purposes for which they were designed and
in accordance with the terms and conditions of this Agreement. The license does not grant any rights to
source code.
If the Software is or includes Integration Framework, Customer Service Request ("CSR"), or Cityworks
software, that Software is licensed pursuant to this Agreement plus a separate document entitled
"Software License Agreement Rider for Integration Framework, Customer Service Request, or Cityworks
Software" (which document is incorporated by this reference and is either attached to this Agreement or
will be provided upon Licensee's request).
Section 3 LIMITATIONS ON USE
3.1. Licensee may use the Software only for Licensee's internal business purposes and only in
accordance with the Documentation. Any other use of the Software is strictly prohibited. Licensee may
not for any reason modify, disassemble, peel components, decompile, otherwise reverse engineer or
attempt to reverse engineer, derive source code, create derivative works from, adapt, translate, merge
with other software, copy, reproduce, distribute, or export any Software or permit or encourage any third
party to do so, except that Licensee may make one copy of Software provided by Licensor to be used
solely for archival, back-up, or disaster recovery purposes. Licensee must reproduce all copyright and
trademark notices on all copies of the Software and Documentation.
3.2. Licensee may not copy onto or transfer Software installed in one Product device onto another
device. Notwithstanding the preceding sentence, Licensee may temporarily transfer Software installed on
one device onto another if the original device is inoperable or malfunctioning, if Licensee provides written
notice to Licensor of the temporary transfer and the temporary transfer is discontinued when the original
device is returned to operation. Upon Licensor's written request, Licensee must provide to Licensor a
written list of all Product devices in which the Software is installed and being used by Licensee.
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3.3. Concerning Motorola's Radio Service Software ("RSS"), if applicable, Licensee must purchase a
copy for each location at which Licensee uses RSS. Licensee's use of RSS at an authorized location
does not entitle Licensee to use or access the RSS remotely. Licensee may make one additional copy
for each computer owned or controlled by Licensee at each authorized location. Upon Licensor's written
request, Licensee must provide to Licensor a written list of all locations where Licensee uses or intends to
use RSS.
Section 4 OWNERSHIP AND TITLE
Title to all copies of Software will not pass to Licensee at any time and remains vested exclusively in the
copyright owner. The copyright owner owns and retains all of its proprietary rights in any form concerning
the Software and Documentation, including all rights in patents, patent applications, inventions,
copyrights, trade secrets, trademarks, trade names, and other intellectual properties (including any
corrections, bug fixes, enhancements, updates, or modifications to or derivative works from the Software
whether made by Licensor or another party, or any improvements that result from Licensor's processes
or, if applicable, providing information services). Nothing in this Agreement is intended to restrict the
proprietary rights of Licensor or to grant by implication or estoppel any proprietary rights. All intellectual
property developed, originated, or prepared by Licensor in connection with providing to Licensee
Software, Products, Documentation, or related services remain vested exclusively in Licensor, and this
Agreement does not grant to Licensee any shared development rights of intellectual property.
Section 5 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation contain Licensor's valuable proprietary and
Confidential Information and are Licensor's trade secrets, and that the provisions in the Agreement
concerning Confidential Information apply.
Section 6 LIMITED WARRANTY
6.1. The commencement date and the term of the Software warranty will be as stated in the Primary
Agreement, except that the Warranty Period for Printrak's LiveScan software will be 90 days; and for
application Software that is provided on a per unit basis, the Warranty Period for subsequent units
licensed is the remainder (if any) of the initial Warranty Period or, if the initial Warranty Period has
expired, the remainder (if any) of the term of the applicable Software Maintenance and Support
Agreement.
6.2. During the applicable Warranty Period, Licensor warrants that the unmodified Software, when
used properly and in accordance with the Documentation and this Agreement, will be free from a
reproducible defect that eliminates the functionality or successful operation of a feature critical to the
primary functionality or successful operation of the Software. Whether a defect occurs will be determined
solely with reference to the Documentation. Licensor does not warrant that Licensee's use of the
Software or Products will be uninterrupted or error-free or that the Software or the Products will meet
Licensee's particular requirements. Warranty claims are described in the Primary Agreement.
6.3. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE TRANSACTION COVERED BY THIS AGREEMENT IS A LICENSE AND NOT A SALE
OF GOODS.
Section 7 LIMITATION OF LIABILITY
The Limitation of Liability provision is described in the Primary Agreement.
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Section 8 TRANSFERS
Licensee will not transfer Software or the related Documentation to any third party without Licensor's prior
written consent, which consent may be withheld in Licensor's reasonable discretion and which may be
conditioned upon the transferee paying all applicable license fees and agreeing to be bound by this
Agreement. Notwithstanding the preceding sentence, if Licensee transfers ownership of radio Products
to a third party, Licensee may assign its rights to use the Software (other than Radio Service Software
and Motorola's FLASHport® Software) embedded in or furnished for use with those radio Products; if
Licensee transfers all copies of the Software and the related Documentation to the transferee, and the
transferee executes a transfer form to be provided by Licensor upon request (which form obligates the
transferee to be bound by this Agreement).
Section 9 TERM AND TERMINATION
Licensee's right to use the Software and Documentation will begin when this Agreement is mutually
executed by both parties and will continue during the life of the Products in which the Software is used,
unless Licensee breaches this Agreement in which case it will be terminated immediately upon notice by
Licensor. Licensee acknowledges that Licensor has made a considerable investment of resources in the
development, marketing, and distribution of its proprietary Software and Documentation and that
reasonable and appropriate limitations on Licensee's use of the Software and Documentation are
necessary for Licensor to protect its investment, trade secrets, and valuable intellectual property rights
concerning the Software and Documentation, Licensee also acknowledges that its breach of this
Agreement will result in irreparable harm to Licensor for which monetary damages would be inadequate.
In the event of a breach of this Agreement and in addition to termination of this Agreement, Licensor will
be entitled to all available remedies at law or in equity (including immediate injunctive relief and
repossession of all non-embedded Software and associated Documentation unless Licensee is a Federal
agency of the United States Government). Within thirty (30) days after termination of this Agreement,
Licensee must certify in writing to Licensor that all copies of the Software and Documentation have been
returned to Licensor or destroyed and are no longer in use by Licensee.
Section 10 NOTICES
Notices are described in the Primary Agreement.
Section 11 UNITED STATES GOVERNMENT LICENSING PROVISIONS
If Licensee is the United States Government or a United States Government agency, then this section
also applies. Licensee's use, duplication or disclosure of the Software and Documentation under
Licensor's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1)
and (2) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 (JUNE 1987),
if applicable, unless they are being provided to the Department of Defense. If the Software and
Documentation are being provided to the Department of Defense, Licensee's use, duplication, or
disclosure of Software and Documentation is subject to the restricted rights set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT
1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice,
or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, but
only to the extent that they are consistent with the rights provided to the Licensee under the provisions of
the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement
transaction.
Section 12 GENERAL
12.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be
construed as an admission or presumption that public disclosure of the Software or any trade secrets
associated with the Software has occurred.
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12.2. COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regulations,
including export laws and regulations of the United States. Licensee will not, without the prior
authorization of Licensor and the appropriate governmental authority of the United States, in any form
export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or
technical data or direct or indirect products sold or otherwise furnished to any person within any territory
for which the United States Government, or any of its agencies, at the time of the action, requires an
export license or other governmental approval. Violation of this provision will be a material breach of this
Agreement, permitting immediate termination by Licensor.
12.3. ASSIGNMENTS. Licensor may assign any of its rights or subcontract any of its obligations under
this Agreement, or encumber or sell any of its rights in any Software, without prior notice to or consent of
Licensee.
12.4. GOVERNING LAW. This Agreement will be governed by the laws of the United States to the
extent that they apply and otherwise by the laws of the State to which the Software or Products are
shipped if Licensee is a sovereign government entity, or the laws of the State of Illinois if Licensee is not a
sovereign government entity.
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Exhibit B
Payment Schedule
20% due upon contract award
60% due upon shipment of equipment
15% due upon installation of equipment
5% due upon final acceptance
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OOH
CITY OF DENTON, TEXAS
SIMULCAST PROJECT
PRICING SUMMARY
Exhibit B-1
August 14, 2009
EQUIPMENT TOTAL $1,521,357.00
Identified in Equipment List dated 8/14/2009
Identified in System Description dated 8/14/2009
SERVICES TOTAL $1,115,756.00
Identified in System Description dated 8/14/2009
Additional scope changes since October, 2008 $ 109,000.00
Proposal
PROJECT TOTAL $ 2,746,113.00
Incentive Offering: Award of Project to
Motorola by 10/15/2009 -109,000.00)
Additional Incentive: Budget Assistance for - 21,563,00)
Award of Project to Motorola by 10/15/2009
Project Total $ 2,615,550.00
Motorola is also providing, as an additional incentive, a 12' x 10' equipment shelter
for use by Denton County at the Denton County EOC Tower site at NO COST to
The City of Denton.
Incentives totaling $130,563.00 valid through 10/15/2009.
Exhibit C
Technical and Implementation Documents
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A copy of each of the following documents is attached to the original
ordinance -
Analog SMARTNET Simulcast System Description
Statement of Work
Acceptance Test Plan
Service Terms and Conditions
Motorola, Inc. ("Motorola") and the customer named in this Agreement ("Customer") hereby agree as
follows:
Section 1 APPLICABILITY
These Service Terms and Conditions apply to service contracts whereby Motorola will provide to
Customer either (1) maintenance, support and/or other services under a Motorola Service Agreement, or
(2) installation services under a Motorola Installation Agreement.
Section 2 DEFINITIONS AND INTERPRETATION
2.1. "Agreement" means these Service Terms and Conditions; the cover page for the Service
Agreement or the Installation Agreement, as applicable; and any other attachments, all of which are
incorporated herein by this reference. In interpreting this Agreement and resolving any ambiguities, these
Service Terms and Conditions take precedence over any cover page, and the cover page takes
precedence over any attachments, unless the cover page or attachment states otherwise.
2.2. "Equipment" means the equipment that is specified in the attachments or is subsequently added
to this Agreement.
2.3. "Services" means those installation, maintenance, support, training, and other services described
in this Agreement.
Section 3 ACCEPTANCE
Customer accepts these Service Terms and Conditions and agrees to pay the prices set forth in the
Agreement. This Agreement becomes binding only when accepted in writing by Motorola. The term of
this Agreement begins on the "Start Date" indicated in this Agreement.
Section 4 SCOPE OF SERVICES
4.1. Motorola will provide the Services described in this Agreement or in a more detailed statement of
work or other document attached to this Agreement. At Customer's request, Motorola may also provide
additional services at Motorola's then-applicable rates for the services.
4.2. If Motorola is providing Services for Equipment, Motorola parts or parts of equal quality will be
used; the Equipment will be serviced at levels set forth in the manufacturer's product manuals; and
routine service procedures that are prescribed by Motorola will be followed.
4.3. If Customer purchases from Motorola additional equipment that becomes part of the same
system as the initial Equipment, the additional equipment may be added to this Agreement and will be
billed at the applicable rates after the warranty for the additional equipment expires.
4.4. All Equipment must be in good working order on the Start Date or when additional equipment is
added to the Agreement. Upon reasonable request by Motorola, Customer will provide a complete serial
and model number list of the Equipment. Customer must promptly notify Motorola in writing when any
Equipment is lost, damaged, stolen or taken out of service. Customer's obligation to pay Service fees for
such Equipment will terminate at the end of the month in which Motorola receives the written notice.
4.5. Customer must specifically identify any Equipment that is labeled intrinsically safe for use in
hazardous environments.
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4.6. If Equipment cannot, in Motorola's reasonable opinion, be properly or economically serviced for
any reason, Motorola may modify the scope of Services related to such Equipment; remove that
Equipment from the Agreement; or increase the price to Service such Equipment.
4.7. Customer must promptly notify Motorola of any Equipment failure. Motorola will respond to
Customer's notification in a manner consistent with the level of Service purchased as indicated in this
Agreement.
Section 5 EXCLUDED SERVICES
5.1. Service excludes the repair or replacement of Equipment that has become defective or damaged
from use in other than the normal, customary, intended, and authorized manner; use not in compliance
with applicable industry standards; excessive wear and tear; or accident, liquids, power surges, neglect,
acts of God or other force majeure events.
5.2. Unless specifically included in this Agreement, Service excludes items that are consumed in the
normal operation of the Equipment, such as batteries or magnetic tapes.; upgrading or reprogramming
Equipment; accessories, belt clips, battery chargers, custom or special products, modified units, or
software; and repair or maintenance of any transmission line, antenna, microwave equipment, tower or
tower lighting, duplexer, combiner, or multicoupler. Motorola has no obligations for any transmission
medium, such as telephone lines, computer networks, the internet or the worldwide web, or for Equipment
malfunction caused by such transmission medium.
Section 6 TIME AND PLACE OF SERVICE
Service will be provided at the location specified in this Agreement. When Motorola performs service at
Customer's location, Customer will provide Motorola, at no charge, a non-hazardous work environment
with adequate shelter, heat, light, and power and with full and free access to the Equipment. Waivers of
liability from Motorola or its subcontractors will not be imposed as a site access requirement. Customer
will provide all information pertaining to the hardware and software elements of any system with which the
Equipment is interfacing so that Motorola may perform its Services. Unless otherwise stated in this
Agreement, the hours of Service will be 8:30 a.m. to 4:30 p.m., local time, excluding weekends and
holidays. Unless otherwise stated in this Agreement, the price for the Services exclude any charges or
expenses associated with helicopter or other unusual access requirements; if these charges or expenses
are reasonably incurred by Motorola in rendering the Services, Customer agrees to reimburse Motorola
for those charges and expenses.
Section 7 CUSTOMER CONTACT
Customer will provide Motorola with designated points of contact (list of names and phone numbers) that
will be available twenty-four (24) hours per day, seven (7) days per week, and an escalation procedure to
enable Customer's personnel to maintain contact, as needed, with Motorola.
Section 8 PAYMENT
Unless alternative payment terms are stated in this Agreement, Motorola will invoice Customer in
advance for each payment period. All other charges will be billed monthly, and Customer must pay each
invoice in U.S. dollars within twenty (20) days of the invoice date. Customer will reimburse Motorola for
all property taxes, sales and use taxes, excise taxes, and other taxes or assessments that are levied as a
result of Services rendered under this Agreement (except income, profit, and franchise taxes of Motorola)
by any governmental entity.
Section 9 WARRANTY
Motorola warrants that its Services under this Agreement will be free of defects in materials and
workmanship for a period of ninety (90) days from the date the performance of the Services are
completed. In the event of a breach of this warranty, Customer's sole remedy is to require Motorola to re-
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perform the non-conforming Service or to refund, on a pro-rata basis, the fees paid for the non-
conforming Service. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
Section 10 DEFAULT/TERMINATION
10.1. If either party defaults in the performance of this Agreement, the other party will give to the non-
performing party a written and detailed notice of the default. The non-performing party will have thirty
(30) days thereafter to provide a written plan to cure the default that is acceptable to the other party and
begin implementing the cure plan immediately after plan approval. If the non-performing party fails to
provide or implement the cure plan, then the injured party, in addition to any other rights available to it
under law, may immediately terminate this Agreement effective upon giving a written notice of termination
to the defaulting party.
10.2. Any termination of this Agreement will not relieve either party of obligations previously incurred
pursuant to this Agreement, including payments which may be due and owing at the time of termination.
All sums owed by Customer to Motorola will become due and payable immediately upon termination of
this Agreement. Upon the effective date of termination, Motorola will have no further obligation to provide
Services.
Section 11 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty,
negligence, strict liability in tort, or otherwise, will be limited to the direct damages recoverable under law,
but not to exceed the price of twelve (12) months of Service provided under this Agreement. ALTHOUGH
THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE
THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS
OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING
FROM THIS AGREEMENT OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO
THIS AGREEMENT. No action for contract breach or otherwise relating to the transactions contemplated
by this Agreement may be brought more than one (1) year after the accrual of such cause of action,
except for money due upon an open account. This limitation of liability will survive the expiration or
termination of this Agreement and applies notwithstanding any contrary provision.
Section 12 EXCLUSIVE TERMS AND CONDITIONS
12.1. This Agreement supersedes all prior and concurrent agreements and understandings between
the parties, whether written or oral, related to the Services, and there are no agreements or
representations concerning the subject matter of this Agreement except for those expressed herein. The
Agreement may not be amended or modified except by a written agreement signed by authorized
representatives of both parties.
12.2. Customer agrees to reference this Agreement on any purchase order issued in furtherance of this
Agreement, however, an omission of the reference to this Agreement will not affect its applicability. In no
event will either party be bound by any terms contained in a Customer purchase order,
acknowledgement, or other writing unless: the purchase order, acknowledgement, or other writing
specifically refers to this Agreement; clearly indicate the intention of both parties to override and modify
this Agreement; and the purchase order, acknowledgement, or other writing is signed by authorized
representatives of both parties.
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Section 13 PROPRIETARY INFORMATION; CONFIDENTIALITY; INTELLECTUAL PROPERTY
RIGHTS
13.1. Any information or data in the form of specifications, drawings, reprints, technical information or
otherwise furnished to Customer under this Agreement will remain Motorola's property, will be deemed
proprietary, will be kept confidential, and will be promptly returned at Motorola's request. Customer may
not disclose, without Motorola's written permission or as required by law, any confidential information or
data to any person, or use confidential information or data for any purpose other than performing its
obligations under this Agreement. The obligations set forth in this Section survive the expiration or
termination of this Agreement.
13.2. To the extent authorized by the constitution and laws of the State of Texas, including but
not limited to the provisions of Article 3 Section 52 and Article 11 Section 7 of the Texas
Constitution, Unless otherwise agreed in writing, no commercial, financial or technical information
disclosed in any manner or at any time by Customer to Motorola will be deemed secret or confidential.
Motorola will have no obligation to provide Customer with access to its confidential and proprietary
information, including cost and pricing data.
13.3. This Agreement does not grant directly or by implication, estoppel, or otherwise, any ownership
right or license under any Motorola patent, copyright, trade secret, or other intellectual property including
any intellectual property created as a result of or related to the Equipment sold or Services performed
under this Agreement.
Section 14 FCC LICENSES AND OTHER AUTHORIZATIONS
Customer is solely responsible for obtaining licenses or other authorizations required by the Federal
Communications Commission or any other federal, state, or local government agency and for complying
with all rules and regulations required by such agencies. Neither Motorola nor any of its employees is an
agent or representative of Customer in any governmental matters.
Section 15 COVENANT NOT TO EMPLOY
During the term of this Agreement and continuing for a period of two (2) years thereafter, Customer will
not hire, engage on contract, solicit the employment of, or recommend employment to any third party of
any employee of Motorola or its subcontractors without the prior written authorization of Motorola. This
provision applies only to those employees of Motorola or its subcontractors who are responsible for
rendering services under this Agreement. If this provision is found to be overly broad under applicable
law, it shall be modified as necessary to conform to such law.
Section 16 MATERIALS, TOOLS AND EQUIPMENT
All tools, equipment, dies, gauges, models, drawings or other materials paid for or furnished by Motorola
for the purpose of this Agreement will be and remain the sole property of Motorola. Customer will
safeguard all such property while it is in Customer's custody or control, be liable for any loss or damage
to this property, and return it to Motorola upon request. This property will be held by Customer for
Motorola's use without charge and may be removed from Customer's premises by Motorola at any time
without restriction.
Section 17 GENERAL TERMS
17.1. If any court renders any portion of this Agreement unenforceable, the remaining terms will
continue in full force and effect.
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17.2. This Agreement and the rights and duties of the parties will be governed and interpreted in
accordance with the laws of the State in which the Services are performed.
17.3. Failure to exercise any right will not operate as a waiver of that right, power, or privilege.
17.4. Neither party is liable for delays or lack of performance resulting from any causes that are beyond
that party's reasonable control, such as strikes, material shortages, or acts of God.
17.5. Motorola may assign its rights and obligations, and may subcontract any portion of its
performance, under this Agreement.
17.6. THIS AGREEMENT WILL RENEW, FOR AN ADDITIONAL ONE (1) YEAR TERM, ON EVERY
ANNIVERSARY OF THE START DATE UNLESS EITHER THE COVER PAGE SPECIFICALLY STATES
A TERMINATION DATE OR ONE PARTY NOTIFIES THE OTHER IN WRITING OF ITS INTENTION TO
DISCONTINUE THE AGREEMENT NOT LESS THAN THIRTY (30) DAYS OF THAT ANNIVERSARY
DATE. At the anniversary date, Motorola may adjust the price of the Services to reflect its current rates.
17.7. If Motorola provides Services after the termination or expiration of this Agreement, the terms and
conditions in effect at the time of the termination or expiration will apply to those Services and Customer
agrees to pay for those services on a time and materials basis at Motorola's then effective hourly rates.
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Exhibit D
System Acceptance Certificate
Customer Name:
Project Name:
This System Acceptance Certificate memorializes the occurrence of System Acceptance. Motorola and
Customer acknowledge that:
1. The Acceptance Tests set forth in the Acceptance Test Plan have been successfully completed.
2. The System is accepted.
Customer Representative: Motorola Representative:
Signature: _
Print Name:
Title:
Date:
Signature: _
Print Name:
Title:
Date:
FINAL PROJECT ACCEPTANCE:
Motorola has provided and Customer has received all deliverables, and Motorola has performed all other
work required for Final Project Acceptance.
Customer Representative: Motorola Representative:
Signature: _
Print Name:
Title:
Date:
Signature: _
Print Name:
Title:
Date:
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