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HomeMy WebLinkAbout05-29 Resolution No. 05-29 RESOLUTION AUTHORIZING EXECUTION OF A COMMUNICATIONS PRODUCTS AGREEMENT WITH MOTOROLA, INC. FOR PORTABLE RADIOS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS, that Olufemi Folarin, Acting City Manager, be and is hereby authorized and directed to execute a Communications Products Agreement on behalf of the City of Elgin with Motorola,Inc. for portable radios for Ambulance 3, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: February 9, 2005 Adopted: February 9, 2005 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk Communications Products Agreement Motorola, Inc., a Delaware corporodnn, by and through its Commercial, Government, and Industrial Solutions Seobxr, North America Group (^K8obono|o^), having a place of business at 1309 East Algonquin Road, Schaumburg, IL 60196, and City of Elgin, UUnpin, a municipal corporation (~[}ushomer"), having a place of business at 150 Dexter Court, Elgin, IL 60130. enter into this Communications Products Agreement (^Agnee,nent"), pursuant to which Customer will purchase and Motorola will sell the Produots, as described below. Seller and Customer may be referred to individually as party" and collectively as "parties." In consideration of the promises and covenants contained horain, and other good and valuable consideration, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows, this day of , 2005: 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 will take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in the order in which they are listed. Exhibit A Motorola"Software License Agreement" | Exhibit B "Technical and Implementation Documents" - "List of Products"dated 12-10-2004. Exhibit C "Warranty Document" Section 2 DEFINITIONS Capitalized terms used in this Agreement shall have the following meanings: "Contract Price" means the price for the Produots, exclusive of any applicable sales or similar taxes and freight charges. "Effective Date" means that date upon which the last party to sign this Agreement has executed it. "Equipment" means the equipment listed in the List of Products that Customer is purchasing from Motorola under this Agreement. "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. "Motorola Software" means Software that Motorola or its affiliated company owns. "Non-Motorola Software" means Software that a party other than Motorola or its affiliated company owns. "Open Source Software" means software that has its underlying source code freely available to evaluate, copy, and modify. Open Source Software and the terms "freeware" or"shareware" are sometimes used interchangeably. "Products" mean the Equipment and Software provided by Motorola under this Agreement. "Proprietary Rights" means the potents, patent app|ioabona, invenbons, oopyrighto, trade aeorehs, tradomarks, trade nmnneo, mask vvorka, know'how, and other intellectual property rights in and to the Equipment and Sofbwaro, including those created or produced by Motorola under this Agreement and any cornaotiono, bug fixes, enhancementa, updates or modifications to or derivative works from the Software whether made by Motorola or another party. CPATINAL.Grtao1.03.uoo 1 Motorola Contract No. "Software" means the Motorola and Non-Motorola Software in object code format that is furnished with the Products and which may be listed on the List of Products. Section 3 SCOPE OF AGREEMENT AND TERM 3.1. SCOPE OF WORK. Motorola will prov)da, ship, and install (if applicable) the PrVduots, and perform its other contractual raoponsibi|iUes, 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, Neither party is obligated to perform requested changes unless both parties execute a written change order. 3.3. TERM. Unless otherwise terminated in accordance with the provisions of this Agreement or extended by mutual agreement of the padieo, the term of this Agreement shall begin on the Effective Date and shall continue until the expiration of the warranty period or three (3) years from the Effective Date, whichever occurs last. 3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. During the Term of this Agreement, Customer may order additional Equipment or Software provided 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 onder, the applicable provisions of this Agreement (except for phcing, de|ivery, and payment terms) will govern the purchase and sale of the additional Equipment or Software. Payment is due within thirty (30) days after the invoice date, and Motorola will send Customer an invoice as the additional Equipment is shipped or Software is licensed. Alternatively, [:uatome, may register with and place such orders through Motorola Online ("MOL"), and this Agreement will be the "Underlying Agreement" for such MOL transactions rather than the MOL On-Line Terms and Conditions of Sale. MOL registration and other information may be found athttpo://moton|ine.rnot.00nn and the MOL telephone number is (800) 814-0601. 3.5. MAINTENANCE SERVICE. This Agreement does not cover maintenance or support of the Products except as provided under the warranty. If Customer wishes to purchase maintenance or support, Motorola will provide a separate maintenance and support proposal upon request. 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 SOF-MARE. 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 (i) determine whether any Open Source Software will be provided under this Agreement; and if so, (ii) identify the Open Source Software and provide to Customer a copy of the applicable standard license (or specify where such license may be found); and (iii) 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). Section 4 PERFORMANCE SCHEDULE CpA.p|NAL.Got.9.01.03.uoc 2 Motorola contract No. If this Agreement includes the performance of services, the Statement of Work will describe the performance schedule. Section 5 CONTRACT PRICE, PAYMENT, AND INVOICING 5.1. CONTRACT PRICE. The Contract Price inU.G. dollars )ss24.888.OD. PAYMENT TERMS: 25% of the contract value upon execution; 75% of the contract value upon receipt of equipment; 5.2. INVOICING AND PAYMENT. Motorola will submit invoices to Customer for Products when they are shipped and for services, if applicable, when they are performed. Customer will make payments to Motorola within thirty (30) 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 rate of ten percent(10%) per annum, unless such rate exceeds the maximum allowed by law, in which case it will be reduced to the maximum allowable rate. For Customer's reference, the Federal Tax Identification Number for Motorola, Inc. is 36-1115800. 5.3. FRE|GHT, T|TLE, AND RISK OF LOSS. All freight charges will be pre-paid by Motorola and added to the invoices. Title and risk of loss to the Equipment will pass to Customer upon neoaipt, except that title to Software will not pass to Customer at any time. 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: Fire Department, City of Elgin, 150 Dexter Court, Elgin, IL 60120 The city which is the ultimate destination where the Equipment will be delivered to Customer is: Elgin, IL The Equipment will be shipped to the Customer at the following address (insert if this information is known): City of Elgin, 150 Dexter Court, Elgin, IL 60120 Customer may change this information by giving written notice to Motorola. Section 6 SITES AND SITE CONDITIONS 6.1. ACCESS TO SITES. If Motorola is providing installation or other aarvi000. Customer will provide all necessary construction and building permits, |ioensos, and the like; and access to the work sites or vehicles as reasonably requested by Motorola so that it may perform its contractual duties. 6.2. SITE CONDITIONS. If Motorola is providing installation or other services at Customer's sites, Customer will ensure that these work sites be safe, secure, and in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the Statement of Work specifically states to the controry. Customer will ensure that these work sites will have (i) adequate physical space for the insbw||aUon, use and maintenance of the Products; (ii) adequate air conditioning and other environmental conditions; (iii) adequate electrical power outlets, distribution and equipment for the inntoUedon, use and maintenance of the Products; and (iv) adequate telephone or other communication lines for the installation, use and maintenance of the Products. Section 7 ACCEPTANCE Acceptance of the Products will occur upon written acceptance by Customer unless the Statement of Work provides for acceptance verification or testing, in which case acceptance of the Products will occur CPA.F|mxL8ot.eD1D3.uuc 3 Motorola contract No. upon successful completion of the acceptance verification or testing. Notwithstanding the preceding sentence, Customer's use of the Products for their operational purposes will constitute acceptance. Section 8 REPRESENTATIONS AND WARRANTIES 8.1. EQUIPMENT WARRANTY. For one (1) year from the date of oh(pment. Motorola warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. 8.2. MOTOROLA SOF-MARE WARRANTY. Unless otherwise stated in the Software License Agreement, for one (1) year from the date of ohipnnont, Motorola warrants the Motorola Software in accordance with the terms of the Software License Agreement and the provisions of this Section that are applicable to the Motorola Software. 8.3. 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 norma|, customary, and authorized manner; (ii) defects or damage occurring from misuse, accident, |iquido, neg\aot, or acts of God; (iii) defects or damage occurring from tambng, nnointenonce, dioaanemb|y, papair, inmtaUmUon, m|terotion, rnodifioobon, or adjustment not provided or authorized in writing by Motorola; (iv) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (v) defects or damage caused by Customer's failure to comply with all applicable industry and OSHA standards; (vi) Equipment that has had the serial number removed or made illegible; (vii) batteries (because they carry their own separate limited warranty); (viii) freight costs to ship Equipment to the repair depot; (ix) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and (x) normal or customary wear and tear. 8.4. WARRANTY CLAIMS. For Customer to assert a claim that the Equipment or Motorola Software does not conform to these vvarrantios. Customer must notify Motorola in writing of the claim before the expiration of the warranty period. Upon receipt of such nohoe. Motorola will investigate the warranty claim. If this investigation confirms a valid warranty c|oim. Motorola will (at its option and at no additional charge to Customer) repair the defective Equipment or Motorola 8ofbwmne, replace it with the same or equivalent pvoduot, or refund the price of the defective Equipment or Motorola Software. Such action will be the full extent of Motorola's liability hereunder. 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 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. 8.5. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original user purchasing the Products for oonnmancia|, induatha/, or governmental use only, and are not assignable or transferable. 8.6. 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 COND|T|ONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 9 DELAYS Neither party will be liable for its non-performance or delayed performance if caused by a "Force Majeure" which means an event, cinounnstanoe, or act of a third party that is beyond a party's reasonable control, such as an act of God, an act of the public ennmy, an act of a government ondty, strikes or other labor d/aturbancea, hurriooneo, aarthqumkeo, fires, f}oodo, epidemicm, embarQoeo, war, rioto, or any other similar cause. Each party will notify the other if it becomes aware of any Force Majeure that will CPA.F|NxLGot.9.01.03dox 4 Motorola contract No. significantly delay performance. The notifying party will give such notice promptly (but in no event late than fifteen days) after it discovers the Force Mjauno. 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. Section 10 DISPUTES 10.1. LITIGATION AND VENUE This agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be in the Circuit Court of Kane County, Illinois. The parties hereto each respectively agree to the jurisdiction of such court. Section 11 DEFAULT AND TERMINATION If either party fails to perform a material obligation under this Aonaement, the other party may consider the non-performing party to be in default (unless a Force Majeure causes such failure) and may assert a default claim by giving the non-performing party a written and detailed notice of the default. Except for a default by Customer for failing to pay any amount when due under this Agreement which must be cured immediaba|y, the defaulting party will have thirty (30) days after receipt of the notice of default to either (i) cure the default or (ii) if the default is not curable within thirty (30) days, to 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 porty. Motorola may stop work on the project until it approves the Customer's cure plan. If the non-performing party fails to cure the default, the performing party may terminate any unfulfilled portion of this Agreement and recover damages as permitted by law and this Agreement. Section 12 PATENT AND COPYRIGHT INFRINGEMENT INDEMNIFICATION 12.1. Motorola will defend at its expense any suit brought against Customer to the extent that it is based on an Infringement Claim, and Motorola will indemnify Customer for those costs and damages finally awarded against Cuoton`e, for an Infringement Claim. Motorola's duties to defend and indemnify are conditioned upon: (i) Customer promptly notifying Motorola in writing of such Infringement Claim; (ii) Motorola having sole control of the defense of such suit and all negotiations for its settlement or compromise; (iii) Customer providing to Motorola cooperation and, if requested by Motono|m, reasonable assistance in the defense of the Infringement Claim. 12.2. 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 Sofbwana, replace or modify it so that it becomes non-infringing while providing functionally equivalent performonoe, or grant Customer a credit for such 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. 12.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon (i) the combination of the Equipment or Motorola Software with any mofbwmre, apparatus or device not furnished by Motorola; (ii) 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; (iii) any Equipment that is not Motorola's design or formula; (iv) a modification of the Motorola Software by a party other than Motorola; or (v) 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 and Motorola Software or any parts thereof. Section 13 LIMITATION OF LIABILITY CPA.F|NALOouo.01.03.duc 5 Motorola Contract No. This limitation of liability provision shall apply notwithstanding any contrary provision in this Except for personal injury or death. Motorola's total (iobi|hx, whether for breach of oonbact, wananb/, negligence, strict liability in tort, \ndomnifioabon, or othemvisw, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipnnant. Gofbwarm, or services with respect to which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGE8, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, T|KAE, DATA, GOOD VV|LL, REVENUEG, 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 SOFlVVARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability will survive the expiration or termination of | this Agreement. Section 14 CONFIDENTIALITY AND PROPRIETARY RIGHTS 14.1. CONFIDENTIAL INFORMATION. 14.1.1. During the term of this Agnsement, the parties may provide each other with Confidential Information. For the purposes of this Agreement, "Confidential Information" is any information disclosed in written, gnaphic, verba|, or machine-recognizable form, and is marked, designated, labeled or identified at the time of disclosure as being confidential or its equivalent; or if in verbal form is identified as confidential or proprietary at the time of disclosure and confirmed in writing within thirty (30) days of such disclosure. Notwithstanding any other provisions of this Agreement, Confidential Information shall not include any information that: (i) is or becomes publicly known through no wrongful act of the receiving party; (ii) is already known to the receiving party without restriction when it is disclosed; (iii) is, or subsequently beconnos, rightfully and without breach of this Amnawnnant, in the receiving party's possession without any obligation restricting disclosure; (iv) is independently developed by the receiving party without breach of this Agreement; or (v) is explicitly approved for release by written authorization of the disclosing party. 14.1.2. Each party will: (i) 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 law; (ii) restrict disclosure of Confidential Information to its employees who have a "need to know" and not copy or reproduce such Confidential Information; (iii) take necessary and appropriate precautions to guard the confidentiality of Confidential |nformmadon, including informing its employees who handle such Confidential Information that it is confidential and not to be disclosed to otherm, but such precautions shall be at least the same degree of care that the receiving party applies to its own confidential information and shall not be less than reasonable care; and (iv) use such 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 hereby given or inbanded, including any express or implied /icense, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement. 14.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. 14.2.1. N1otoroia, the third party manufacturer of any Equipmmnt, and the copyright owner of any Non- Motorola Software own and retain all of their respective Proprietary Rights in the Equipment and Software. Nothing in this Agreement is intended to restrict the Proprietary Rights of K8oboro|a, any copyright owner of Non-Motorola Spfbwmre, or any third party manufacturer of Equipment. All intellectual property deve|oped, o,iQinoted, or prepared by Motorola in connection with providing to Customer the Equipment, 8ofbwany, or related services remain vested exclusively in yNotopo\a, and this Agreement does not grant to Customer any shared development rights of intellectual property. 14.2.2. Except as explicitly provided in the Software License Agreement, nothing in this Agreement will be deemed to gnant, either directly or by imp}inetion, astoppa|, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Customer agrees not to nnodifv, disaasemb|e, peel components, CpA.F|w*L.Get.9.01.03.uou 6 Motorola contract No. decompile, otherwise reverse engineer or attempt to reverse anginaer, derive source code or create derivative works from, adapt, bans\ata, merge with other sofbwmna, reproduce, or export the 8ofbwana, or permit or encourage any third party to do so. The preceding sentence shall not apply to Open Source Software which is governed by the standard license of the copyright owner. Section 15 GENERAL 15.1. TAXES. The Contract Price does not include any amount for federal, state, or local excise, sales, \eaoe, sen/ioo, nento|, use, pnoperty, 000upaUon, or other taxao, assessments or duties (other than federa|, state, and local taxes based on Motorola's income or net worth), all of which 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 applicable 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. 15.2. ASSIGNABILITY. 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. 15.3. SUBCONTRACTING. Motorola may subcontract any portion of the vvorh, but such subcontracting will not relieve Motorola of its duties under this Agreement. 15.4 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. Fore waiver of a right or power to be effeotive, it must be in writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either (i) a future or continuing waiver of that same right or power, or (ii) the waiver of any other right or power. 15.5. SEVERABILITY. If a court of competent jurisdiction renders any provision of this Agreement (or portion of a provision) to be invalid or otherwise unanfonomab|e, that provision or portion of the provision will be severed and the remainder of this Agreement will continue in full force and effect as if the invalid provision or portion of the provision were not part of this Agreement. 15.6. INDEPENDENT CONTRACTORS. Each party shall perform its activities and duties hereunder only as an independent contractor. The parties and their personnel shall not be considered to be employees or agents of the other party. Nothing in this Agreement shall be interpreted as granting either party the right or authority to make commitments of any kind for the other. This Agreement shall not cnnobtuha, oneate, or in any way be interpreted as a joint ventuna, partnership or formal business organization of any kind. 15.7. HEADINGS AND SECTION REFERENCES; CONSTRUCTION. 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. 15.8. ENTIRE AGREEMENT. This Agreement, including all Erhibita, constitutes the entire agreement of the parties regarding the subject matter hereof and supersedes all previous agnae,nents, propoaa/o, and undarsbandingo, whether written or oral, relating to such subject matter. This Agreement may be m/termd, omended, 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 such document. 15.9. NOTICES. Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service with an asset tracking system, CPA.F|NAL8m.9.01.03.gm: 7 Motorola Contract No. such as Federal Express, UPS, or DHL), or by facsimile with correct answerback receivad, and shall be effective upon receipt: Customer K8donola. /no. Attn: Gail Cohen Attn: Deborah Neil 150 Dexter Court 1301 E. Algonquin Rd. IL-02 Elgin IL Schaumburg, U8O196 | fax: 847-931-5689 fax: 847-538-2801 15.10. COMPLIANCE WITH APPLICABLE LAWS. Each party will comply with all applicable federal, otabo, 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 inata||odion, 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 opp(ioedono, neither Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters. 15.11. AUTHORITY TO EXECUTE AGREEMENT. Each party represents to the other that (i) it has obtained all necessary approve|o, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; (ii) the person executing this Agreement on its behalf has the authority to do so; (iii) upon execution and delivery of this Agreement by the padias, it is a valid and binding ountrmct, enforceable in accordance with its terms; and (iv) the axacudon, de/ivery, and performance of this Agreement does not violate any by|mw, charter, regulation, law or any other governing authority of the party. 15.12. 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); Section 10 (Disputes); Section 13 (Limitation of Liability); Section 14 (Confidentiality and Proprietary Rights; and all of the General terms in this Section 15. The parties hereby enter into this Agreement as of the Effective Date. Motorola, Inc. Customer 4)/124--;y7 By� �r�� --- By: Nome:Willi am P.c.' 'king III Name: le T--gaLAO.^1.4 Title:MCEI V.P. & Dir. of FioaooeTiUe: « M. age Date: 1/25/05 Date: kitoo O*": *«p Cp*.p|m*LOety01.03.uvc 8 Motorola Contract No. Exhibit A Software License Agreement In this Exhibit A. the term "Licensor" means Motorola, Inc., ("Motorola") or Printrak International, Incorporated, a Motorola company (^Phnhak^); "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 proprietary software and/or radio oonnnnunicaUono, oomputer, or other electronic products ("Products") containing embedded or pre-loaded proprietary software to Licensee. "Software" means such proprietary software in object code format, and adaptaUono, tnans|adons, de-compi|aUona, diaomaernbUao, emu|abons, or derivative works thereof; such software 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 cmpabi|itiea, 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 ^Oocunnentodon." 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), |imited, 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 (^C8R''). or Cityworks software, such 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 nnndifv, dimoosomnb|e, peel uornponento, deconnpi|e, otherwise reverse engineer or attempt to reverse enginwar, derive source code, create derivative works from, adapt, trano|o0a, merge with other aofbwana, copy, peproduca, diatribute, 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 avohiva|, bock'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 aentence. Licensee may temporarily transfer Software installed on one device onto another if the original device is inoperable or rna|funcdoning, provided that Licensee provides written notice to Licensor of such temporary transfer and such temporary transfer is discontinued when the original device is returned to operation. Upon Licensor's written noquest. Licensee must provide to Licensor a written list of all Product devices in which the Software is installed and being used by Licensee. CPA.F|N*L.Sam.01.08.onc 1 Motorola contract No. 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 such location. Upon Licensor's written requeot. 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 Ooournontobon, including all rights in patenta, patent app|iooUonn, invonUons, oopyrighta, trade oecnata, tnadwrnmrks, trade narnoo, and other intellectual properties (including any corrections, bug fixes, enhancennento, updatmm, 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 opp|icob/o, 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 deve|opod. Vriginob»d, or prepared by Licensor in connection with providing to Licensee Softwona, Products, Doounmentabon, or related services remain vested exclusively in Lioenaor, 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 seonabo, 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 shall be as stated in the Primary Agreement, except that (i) the warranty term for Printrak's LiveScan software shall be 90 days; and (ii) for application Software that is provided on a per unit basio, the warranty period for subsequent units licensed is the remainder (if any) of the initial warranty period or, if the initial warranty period has expined, 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 8ofbwapo, 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 such 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. CPAT|NALSet.9.01o3.doc 2 Motorola contract No. Section 8 TRANSFERS Licensee shall not transfer Software or the related Documentation to any third party without Licensor's prior written uonment, 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 FLA8Hport11) Software) embedded in or furnished for use with those radio Products; provided that Licensee transfers all copies of such 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 shall be terminated immediately upon notice by Licensor. Licensee acknowledges that Licensor has made a considerable investment of resources in the deve|oprnent, nnmrkabnQ, 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 investnnent, trade secrets, and valuable intellectual property rights concerning the Software and Donurnontodon. 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 shall 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 A0reemant. 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 In the event that the Licensee is the United States Government or a United States Government agency, then the provisions of this section also apply. Use, duplication or disclosure of the Software and associated Documentation under Licensor's copyrights and/or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at FAR 52.23749 (JUNE 1987). if applicable, unless being provided to the Department of Defense. If being provided to the Department of Defense, use, duplication, or disclosure of Software and associated 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. Software and associated Documentation may or may not include a Restricted Rights noUoe, or other notice referring specifically to the terms and conditions of this Agreement. The terms and conditions of this Agreement shall each continue to apply, but only to the extent that such terms and conditions are not inconsistent with the rights provided to the Licensee under the aforementioned provisions of the FAR or OFARS, 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. CPA.F|mALGo^.9.01.03.duc 3 Motorola Contract No. 12.2. COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regu|oUono, 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 Gtabeo, in any form export or re-export, sell or nesaU, ship or reship, or divert, through direct or indirect meano, 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 agency thereof, at the time of such antion, requires an export license or other governmental approval. Violation of this provision shall 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. Governing law is described in the Primary Agreement, Section 10.1. CPA.F|mALSet.9.01.03.uoc 4 Motorola contract No. Exhibit B Technical and Implementation Documents CPA.FINAL.Set.9.01.03.doc 1 Motorola Contract No. c>„1, City of Elgin Agenda Item No. G• I I 4TED L January 7,2005 I TO: Mayor and Members of the City Council NI Kit Li 1,41 TY FROM: David M. Dorgan, City Manager Michael Falese, Fire Chief SUBJECT: Sole Source Procurement from Motorola for Six Motorola Portable Radios PURPOSE The purpose of this memorandum is to provide the Mayor and members of City Council with information to consider a sole source contract with Motorola for the purchase of six (6) Motorola XTS5000 Portable Radios for the new firefighters assigned to Ambulance 3. RECOMMENDATION It is recommended to purchase six Motorola XTS5000 portable radios from Motorola in the amount of$24,888.00. BACKGROUND All City of Elgin Fire Department personnel are issued portable radios in order to allow communications between themselves, other units, and the Emergency Communications Center. During 2004, the fire department was authorized to purchase and staff an additional ambulance and required accessory equipment and supplies. The ambulance has been received and is currently being readied for service. This purchase will authorize the City Manager to place an order for six Motorola XTS5000 portable radios for issuance to the personnel assigned to this ambulance. Motorola is the sole provider of this equipment. It is imperative that all of the portable radio equipment is kept identical for the maintenance and updates of these units. The Motorola units were selected as the best for service within the Fire Department. Telecommunication tax revenue is funding the purchase of required accessory equipment and supplies. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None r Purchase of 6 Motorola Portable Radios January 7, 2005 Page 2 tk_____ FINANCIAL IMPACT The purchase price of these six portable radios from Motorola totals $24,888.00. There are sufficient funds budgeted ($25,000) and available ($25,000) in the General Fund, Fire Department, account number 010-2802-735.91-47 "Capital Replacement — Communications Equipment",to make this purchase. AL IMPACT None ALTERNATIVES 1. Purchase the portable radios from Motorola. 2. Solicit bids for similar products and have a mix of equipment for this use. rk Respectfully submitted for Council consideration. MWF/rch r