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HomeMy WebLinkAbout00-282 Resolution No . 00-282 RESOLUTION AUTHORIZING EXECUTION OF A COMMUNICATIONS EQUIPMENT AGREEMENT WITH MOTOROLA, INC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Ed Schock, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a Communications Equipment Agreement on behalf of the City of Elgin with Motorola, Inc . , for the removal of an existing communications tower and the installation of new communications equipment , a copy of which is attached hereto and made a part hereof by reference . s/ Ed Schock Ed Schock, Mayor Presented: December 13 , 2000 Adopted: December 13 , 2000 Omnibus Vote : Yeas 6 Nays 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk COMMUNICATIONS EQUIPMENT AGREEMENT Motorola, Inc., a Delaware corporation ("Motorola"), by and through the United States & Canada Group of its Commercial, Government, and Industrial Solutions Sector ("CGISS") and The city Of Elgin, IL ("Customer") enter into this Communications Equipment Agreement (the "Agreement"), effective as of the last date signed below (the "Effective Date"), pursuant to which Customer will purchase and Motorola will provide Customer with the services and equipment specified in Exhibit B (the"Equipment"). Section 1 EXHIBITS The Exhibits below are hereby incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below. Exhibit A Motorola software license agreement("Software License Agreement") Exhibit B Motorola Proposal dated 9-26-2000 Exhibit C Motorola Standard Equipment Warranty Section 2 SCOPE OF AGREEMENT A. SCOPE OF WORK. Motorola will sell, deliver and install, if applicable, and Customer will purchase the goods and services specified in Exhibit B. B. CHANGE ORDERS. Either party may request changes within the general scope of this Agreement. If a requested change causes an increase or decrease in the cost of or time required for the performance of this Agreement, Motorola and Customer will agree to an equitable adjustment in the Agreement price or performance schedule, or both. Motorola is not obligated to comply with requested changes unless and until both parties execute a written change order. C. ADDITIONAL PRODUCTS. For three (3) years after the Effective Date of this Agreement, Customer may submit purchase orders for additional portable and mobile subscriber products manufactured by Motorola's CGISS which are currently available at the time of order. If Customer and Motorola have agreed to a convention for processing electronic data interchange ("EDI") transactions, purchase orders may be transmitted electronically. Each purchase order must specifically refer to this Agreement and will be an offer by Customer subject to Motorola's acceptance. Except for pricing and delivery terms, which must be stated on the purchase order, Customer and Motorola agree that the applicable terms of this Agreement will be the only terms and conditions that govern the purchase and sale of products identified on such purchase orders. Customer and Motorola agree that payment for all additional products so purchased will be due within twenty-five (25) days after the date of Mctorola's invoice for the products. Contract No. 00-16343/BK Page 1 (Rev. 01/15/99) COMMUNICATIONS EQUIPMENT AGREEMENT E. MOTOROLA SOFTWARE. Any Motorola Software furnished will be licensed to Customer solely according to the terms and restrictions of the Software License Agreement attached as Exhibit A. Customer hereby accepts all of the terms and restrictions of the Software License Agreement. F. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software furnished by Motorola will be subject to the terms and restrictions of its copyright owner unless such copyright owner has granted to Motorola the right to sub-license such Non-Motorola Software, in which case the Software License Agreement (including any addendum to satisfy such copyright owner's requirements) shall apply. Section 3 PRICE AND PAYMENT A. The total contract price is $97,011.00. Except for the first payment, which is due when customer executes this agreement, Customer agrees to make payments to Motorola within twenty-five (25) days after the date of invoices that will be submitted by Motorola according to the following payment schedule: 25%of the contract value upon contract execution; 70% of the contract value upon shipment of equipment; 5% of the contract value upon acceptance. B. If the total contract price does not include freight charges, all freight charges will be pre-paid by Motorola and added to the invoices. C. Upon contract execution, the Customer agrees to issue a Purchase Order in the full amount of the contract price. The terms and conditions on the reverse side of such Purchase Order(s) shall not apply. Section 4 EQUIPMENT ACCEPTANCE Motorola will test the Equipment in accordance with standard commercial practice, or in accordance with Exhibit B. Equipment acceptance will occur upon the successful completion of such testing. Any use of the Equipment without prior written authorization by Motorola shall constitute Acceptance. Section 5 YEAR 2000 EXPRESS WARRANTY During the warranty period stated in Motorola's Standard Equipment Warranty incorporated herein as Exhibit C, Motorola warrants that each hardware, software, and firmware product delivered under this Agreement ("Product") shall be able to accurately process date data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the year 1999 and the year 2000, including leap year calculations, when used in accordance with the Product documentation provided by Motorola, provided that all products (e.g., hardware, software, firmware) used in combination with such Product properly exchange date data with it. All Product manufactured by parties other than Motorola are warranted hereunder based upon Year 2000 statements, representations, and warranties made by these parties to Motorola. Motorola has not verified the content of those Year 2000 statements but is merely republishing those statements, representations, and warranties for purposes of this warranty. For any Product that utilizes third party computer operating system software, such as Microsoft Windows NT 4.0 or Windows 95, that third party software is warranted only with respect to the specific functions of it that Contract No. 00-16343/BK Page 2 (Rev. 01/15/99) COMMUNICATIONS EQUIPMENT AGREEMENT are necessary in the performance of the Communication Equipment provided under this Agreement. The remedies available for breach of this warranty shall be as defined in, and subject to, the terms and limitations of Motorola's Standard Equipment Warranty incorporated herein as Exhibit C. Except as provided herein, nothing in this warranty statement shall be construed to limit any rights or remedies provided elsewhere in this Agreement with respect to matters other than Year 2000 performance. Section 6 DELAYS A. Under no circumstances will either party be responsible for delays or lack of performance resulting from events beyond the reasonable control of that party ("Excusable Delays"). Such events include, but are not limited to, acts of God, weather conditions, compliance with laws and regulations (excluding Customer's failure to properly and timely apply for all required FCC licenses), governmental action, bid protests, fire, strikes, lock-outs, and other labor disruptions, material shortages, riots, acts of war, and an Excusable Delay of a Motorola subcontractor. B. Customer will make available to Motorola the sites when scheduled and Customer will not otherwise unreasonably delay or prevent Motorola's performance of its responsibilities. In the event of a Customer delay during the time of shipment, Motorola may ship the equipment as scheduled to a location as designated by the Customer or if no such location is designated, a Motorola designated storage facility for which Customer agrees to pay all fees. Section 7 DEFAULT If either party fails to perform this Agreement, that party may be considered to be in default, unless such failure has been caused by an Excusable Delay. It is required of both parties to give written notice of such default. Either party will have thirty (30) days from the receipt of such notice to provide a plan of action that is acceptable to each party to cure the default. Section 8 INDEMNIFICATION AND INSURANCE A. Motorola agrees to and hereby indemnifies and saves Customer harmless from all liabilities which may accrue against Customer on account of direct physical damage to tangible property or personal injury to the extent the damage or injury is caused by Motorola's negligence or recklessness, or that of its employees, subcontractors, or agents while on the Customer's premises during the delivery, installation, or testing of the Communications System pursuant to this Agreement. Motorola's indemnification of Customer under this Section will be the full extent of Motorola's indemnification of Customer from liabilities that are in any way related to Motorola's performance under this Agreement. B. Motorola maintains General Liability and Automobile Liability insurance coverage in the following amounts: general aggregate, $5,000,000; products and completed operations aggregate, $5,000,000; workers' compensation and employers' liability, $1,000,000 per accident; and automobile liability, $1,000,000 per accident. Upon written request, Motorola will provide to Purchaser a certificate of insurance. Section 9 LIMITATION OF LIABILITY Notwithstanding any other provision to this Agreement, except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Contract No. 00-16343/BK Page 3 (Rev. 01/15/99) COMMUNICATIONS EQUIPMENT AGREEMENT Equipment or services with respect to which losses or damages are claimed. IN NO EVENT WILL MOTOROLA BE LIABLE FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This Limitation of Liability will survive the expiration or termination of this Agreement. No action for a breach of this Agreement or otherwise relating to the transactions contemplated by this Agreement may be brought more than one year after the accrual of such cause of action except for money due upon an open account. Section 10 GENERAL A. TITLE AND RISK OF LOSS. Title to the Equipment will pass to Customer upon shipment of the Equipment, except that title to Software will not pass to Customer at any time. Risk of loss will pass to Customer upon delivery of the Equipment to the facilities designated by Customer. B. TAXES. The purchase price does not include any amount for federal, state, or local excise, sales, lease, service, rental, use, property, occupation, or other taxes, all of which (other than federal, state, and local taxes based on Motorola's income or net worth) will be paid by Customer except as exempt by law. If Motorola is required to pay or bear the burden of any such taxes, Motorola will send an invoice to Customer and Customer will pay to Motorola the amount of such taxes (including any interest and penalties) within thirty days after the date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property tax purposes. C. CONFIDENTIAL INFORMATION: Customer will not disclose any material or information identified as Motorola proprietary and confidential to third parties without Motorola's prior written permission, unless Motorola makes such material or information public or disclosure is required by law. If Customer is required by law to disclose such material or information, Customer will notify Motorola prior to such disclosure. D. LICENSES. Motorola is not responsible for obtaining any license or other authorizations, including FCC license(s), necessary for the acquisition or use of any product purchased hereunder. E. SITES. In addition to its responsibilities described in Exhibit B, Customer agrees to procure any necessary construction permits, building permits, zoning variances and the like, provide access to the sites identified in Exhibit B as requested by Motorola, and have such sites available for installation of the Equipment by Motorola in accordance with the performance schedule. F. DISCLAIMER OF LICENSE. Except as explicitly provided in the Motorola Software License Agreement included in Exhibit A, nothing in this Agreement will be deemed to grant, either directly or by implication, estoppel, or otherwise, any license or right under any patents, patent applications, copyrights, trade marks, trade secrets or other intellectual property of Motorola. G. ASSIGNABILITY. This Agreement may not be assigned by either party without the prior 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. Contract No. 00-16343/BK Page 4 (Rev. 01/15/99) COMMUNICATIONS EQUIPMENT AGREEMENT H. WAIVER. Failure or delay by either party to exercise any right or power under this Agreement will not operate as a waiver of such right or power. I. SEVERABILITY. If any portion of this Agreement is held to be invalid or unenforceable, that provision will be considered severable and the remainder of this Agreement will remain in full force and effect as if the invalid provision were not part of this Agreement. J. ENTIRE AGREEMENT. This Agreement (including the Exhibits) constitutes the entire agreement of the parties regarding the subject matter of this Agreement and supersedes all previous agreements and understandings, whether written or oral, relating to such subject matter. This Agreement may be altered, amended, or modified only by a written instrument signed by the duly authorized representatives of both parties. K. REPRESENTATIONS AND COMMITMENTS. Motorola is not making, and Customer is not relying upon, any representations or commitments except for those expressed in this Agreement. L. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois and venue of any action relative to this Agreement will be in Kane County, Illinois. M. NOTICES: Notices authorized or required under this Agreement must be in writing and sent to the below addresses: Customer Motorola, Inc. Attn: Attn: Contract and Compliance Manager In witness whereof, the parties have caused duly authorized representatives to execute this Agreement on the dates set forth below. IN WITNESS WHEREOF: Customer Motorol•, Inc. li fir/ Name: E-10 WA*e_t9 S oc Name: Wi iam . Ri•enour Title: /yl f} tid/Z, Date: 12/26/00 Contract No. 00-16343/BK Page 5 (Rev.01/15/99) MOTOROLA SOFTWARE LICENSE AGREEMENT- EXHIBIT A This Software License Agreement is between Motorola, Inc., a Delaware corporation ("Motorola"), and The City Of Elgin, IL ("Licensee"). Section 1 SCOPE Licensee may acquire from Motorola's Commercial, Government, and Industrial Solutions Sector ("CGISS") radio communication products ("Products") that contain embedded or pre-loaded Motorola software such as in a ROM, PROM, or EPROM, or other Motorola software provided on media such as a floppy disk, tape, diskette, or CD-ROM. All such software (including Radio Service Software and FLASHport® Software) is referred to as "Motorola Software." In addition, third party software may be included which Motorola does not own but is licensed to distribute. The terms of this Agreement apply to any such third party software unless an additional license agreement pertaining to the third party software is enclosed, in which case the terms of such license apply to said third party software. This Agreement contains the terms under which Licensee may use Motorola Software acquired from CGISS. Section 2 GRANT OF LICENSE Motorola hereby grants to Licensee a personal, non-exclusive license under Motorola's applicable proprietary rights to use Motorola Software in accordance with the terms of this Agreement. Section 3 LIMITATIONS ON USE Licensee may use Motorola Software only for Licensee's internal business purposes and only as described in the Motorola Software or Product documentation. Any other use of Motorola Software is strictly prohibited and will be deemed a breach of this Agreement. Licensee may not copy, modify, adapt, merge with other software, reverse engineer, prepare derivative works of, or disassemble any Motorola Software for any reason, except that Licensee may make at most two copies of Motorola Software provided with infrastructure equipment for back-up purposes. Licensee must purchase a copy of Radio Service Software for each site at which Licensee uses Radio Service Software; Licensee may make one additional copy for each computer owned or controlled by Licensee at each such site. Licensee may temporarily use Radio Service Software on portable or lap-top computers at other sites. Prior to acquiring any Radio Service Software or upon Motorola's request, Licensee must provide a written list of all sites where Licensee uses or intends to use Radio Service Software. Licensee must reproduce all Motorola copyright and trademark notices on all copies of Motorola Software. Section 4 TRANSFERS If Licensee transfers ownership of Products to a third party, Licensee may assign its rights to use Motorola Software (other than Radio Service Software and FLASHport® Software) embedded in or furnished for use with those Products provided that (a) Licensee transfers all copies of such Motorola Software to the new owner and (b) Motorola receives a transfer form (which Motorola will provide upon request) completed and signed by the new owner. Otherwise, Licensee may not transfer or make available any Motorola Software to any third party. Section 5 OWNERSHIP AND TITLE Title to all copies of Motorola Software in any form, including all rights in patents, copyrights, trade secrets, and other intellectual properties, remains vested exclusively in Motorola. Contract No. 00-16343/BK Page 1 (Rev. 01/15/99) MOTOROLA SOFTWARE LICENSE AGREEMENT-EXHIBIT A Section 6 CONFIDENTIALITY Licensee acknowledges that all Motorola Software contains valuable proprietary information and trade secrets and that unauthorized dissemination, distribution, modification, reverse engineering, disassembly, or other improper use of Motorola Software will result in irreparable harm to Motorola for which monetary damages would be inadequate. Accordingly, Licensee will limit access to Motorola Software to those of its employees and agents who need to use Motorola Software for Licensee's internal business purposes, and Licensee will take appropriate action with those employees and agents to preserve the confidentiality of Motorola Software. Section 7 LIMITED WARRANTY For the first 120 days after initial shipment of Motorola Software, or, if the Motorola Software is provided pursuant to a Communications System Agreement or Communications Equipment Agreement between Motorola and Licensee, for the Warranty Period specified in such Agreement, Motorola warrants that the Motorola Software, when used properly, will be free from reproducible defects that eliminates the functionality of a feature critical to the primary functionality of a system. The primary functionality of a voice communication system is subscriber-to-subscriber, subscriber-to-dispatcher, and dispatcher-to- subscriber voice communication. The primary functionality of a data system is point-to-point data transmission. Motorola does not warrant that Licensee's use of the Motorola Software or the Products will be uninterrupted or error-free or that the Motorola Software or the Products will meet Licensee's particular requirements. MOTOROLA'S TOTAL LIABILITY, AND LICENSEE'S SOLE REMEDY, FOR ANY BREACH OF THIS WARRANTY WILL BE LIMITED TO, AT MOTOROLA'S OPTION, REPAIR OR REPLACEMENT OF THE MOTOROLA SOFTWARE OR PAYMENT OF LICENSEE'S DIRECT DAMAGES UP TO THE AMOUNT PAID TO MOTOROLA FOR THE MOTOROLA SOFTWARE OR THE INDIVIDUAL PRODUCT IN WHICH THE MOTOROLA SOFTWARE IS EMBEDDED OR FOR WHICH IT WAS PROVIDED. THIS WARRANTY EXTENDS ONLY TO THE FIRST LICENSEE; SUBSEQUENT TRANSFEREES MUST ACCEPT THE MOTOROLA SOFTWARE "AS IS" AND WITH NO WARRANTIES OF ANY KIND. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 8 LIMITATION OF LIABILITY IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Section 9 TERM AND TERMINATION Licensee's right to use Motorola Software will begin when Licensee sends a duly executed copy of this Agreement to Motorola, and either (a) Motorola returns a fully executed Agreement to Licensee or (b) Motorola ships Motorola Software or a Product containing Motorola Software to Licensee, and will continue in perpetuity unless terminated as follows. Licensee's right to use Motorola Software will terminate without notice upon a breach of this Agreement by Licensee. In addition, if Licensee breaches this Agreement with respect to Radio Service Software or FLASHport®Software, Motorola may, by notice to Licensee, terminate Licensee's right to use such Motorola Software. Upon termination, Motorola will be entitled to immediate injunctive relief without proving damages and, unless Licensee is a sovereign government entity, Motorola will have the right to repossess all Radio Service Software and FLASHport® Software in Licensee's possession. Within thirty days after termination of Licensee's right to use any Contract No. 00-16343/BK Page 2 (Rev. 01/15/99) MOTOROLA SOFTWARE LICENSE AGREEMENT-EXHIBIT A Motorola Software, Licensee must certify in writing to Motorola that all copies of such Motorola Software have been returned to Motorola or destroyed. Section 10 NOTICES All notices, consents, and waivers permitted or required under this Agreement will be deemed given upon receipt and must be delivered in writing to the below addresses. Change of address must be in writing to the other party. Customer Motorola,Inc. Attn: Attn: Contract and Compliance Manager Section 11 GENERAL A. COPYRIGHT NOTICES. The existence of a copyright notice on Motorola Software will not be construed as an admission or presumption that public disclosure of Motorola Software or any trade secrets associated with Motorola Software has occurred. B. WAIVERS. No waiver of a right or remedy of a party will constitute a waiver of another right or remedy of that party. C. ENTIRE AGREEMENT AND AMENDMENT. This Agreement contains the parties' entire agreement regarding Licensee's use of Motorola Software and may be amended only in a writing signed by both parties, except that Motorola may modify this Agreement as necessary to comply with applicable laws and regulations including FCC regulations. D. GOVERNING LAW. This Agreement will be governed by the laws of the State of Illinois and the venue of any action relative to this Agreement will be in Kane County, Illinois. In witness whereof, the parties have caused duly authorized representatives to execute this Agreement on the dates set forth below. Licensee Motor. a Inc. Mr4," By: By: / Name: L Q ceA /t Q S c p C Name: William P. Ridenour Title: /1 A- (/0 /2- Title: Vice President, Sales Date: /0-A0v Date: 12/26/00 Contract No. 00-16343/BK Page 3 (Rev. 01/15/99) `0,rsoFE4. 0 ' City of Elgin Agenda Item No. L pip October 5, 2000 G TO: Mayor and Members of the City Council SAFE COMMUNITY FROM: Joyce A. Parker, City Manager SUBJECT: Removal of Radio Tower at 150 Dexter Court PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City council information to consider approval of a contract with Motorola to relocate the equipment on the current radio tower at 150 Dexter Court and removal of the tower. BACKGROUND In January of 2001, the City will begin construction of a parking deck behind 150 Dexter Court. There is currently a radio tower located behind 150 Dexter Court that holds backup radio equipment for the Police and Fire Departments . The tower is unsightly and it has begun to lean, apparently due to settling of the base over the last 40 years . All of the radio equipment currently installed on this tower is original equipment, installed when the "new" City Hall was constructed in the 1960s. All of the primary equipment was removed from this tower in 1996, with the construction of the current City-wide radio system. The equipment has served the City well, but is now in need of replacement. The radios have vacuum tubes and can no longer be repaired in the event of a failure. Left undisturbed, the equipment would likely operate for many more years, but the desire to remove this tower makes the replacement of this equipment optimal . The City has contacted the City' s radio vendor, Motorola, and asked them to recommend a relocation and demolition plan. Attached is a proposal from Motorola outlining a plan to replace and relocate the existing radio equipment to an existing City radio site on State Street and onto the Illinois State Police antenna tower at 777 S. State Street, Elgin. Motorola has met with various members of the City staff and done a site walk and inspection of the existing tower and both proposed relocation sites. The attached proposal (Pk is in keeping with the recommendations of both the Police and Fire Departments and will allow for no interruption in the emergency 1 r Removal of Radio Tower October 5, 2000 Page 2 backup operations for either department . Upon completion, the project will greatly enhance our current backup abilities by separating the components into different physical locations, minimizing the chance of both systems being disabled by the same natural disaster and replacing the aging equipment with the current best technology. It is Motorola' s recommendation that their contractor be hired to remove the existing tower and radio equipment to ensure a smooth transition. The location of the tower in relation to City Hall also makes this a highly specialized destruction job, best left to companies specializing in this type of work. The removal of the tower is incorporated into this proposal, with only the concrete pad left for removal by the City' s contractor. The removal of the tower at this time is optimal, before a new parking structure is built, making future demolition difficult and likely much more expensive. The removal of the concrete pad will be included as an element of work with the parking deck construction. Motorola is a sole source vendor for this project . This equipment is closely integrated with the City' s primary 800 MHz Motorola system. The radios must be installed and made operational with the City' s Motorola consoles. The City has enjoyed a long relationship with this vendor and currently Motorola does all of our system maintenance and is familiar with all operations of our system. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED Members of the Police Department, Fire Department, Illinois State Police and the Emergency Communications Division have been consulted about this project and all concur with this recommendation. (yA.— FINANCIAL IMPACT This expenditure of $97, 011. 00 was not anticipated and is not budgeted. It will be necessary to use Contingency Monies for this expense. L GAL IMPACT The agreement must be submitted to the Legal Department for review. r Removal of Radio Tower October 5, 2000 Page 3 ALTERNATIVES The radio tower at 150 Dexter Court can remain at its current location, requiring a modification to the current plans for the planned parking structure. RECOMMENDATION It is recommended that the proposal from Motorola be accepted and construction begin immediately to allow the parking structure to proceed as planned in January of 2001 . Respectfully submitted, (2,721/ILL._, J.fce Al Parker City Manager