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HomeMy WebLinkAbout05-309 Resolution No. 05-309 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH MOTOROLA, INC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Olufemi Folarin,City Manager,and Dolonna Mecum,City Clerk,be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with Motorola,Inc. for a design effort to modify the City's existing radio system as required by the Federal Communication Commission (FCC), a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock,Mayor Presented: November 9, 2005 Adopted: November 9, 2005 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk • Reconfiguration Planning and Negotiation Phase Agreement Motorola, Inc. , a Delaware Corporation, ("Motorola") and City of Elgin, Illinois, a Municipal Corporation("Licensee" or"Customer") enter into this Reconfiguration Planning and Negotiation Phase Agreement ("Agreement"), pursuant to which Licensee will purchase and Motorola will sell the Reconfiguration Planning and Negotiation Phase services described below. Motorola and Licensee may be referred to individually as a "Party" and collectively as the "Parties." This Agreement is made with reference to the following recitals: A. On August 6, 2004, the FCC issued Report and Order FCC 04-168 that modified its rules governing the 800 MHz band to minimize harmful interference to public safety communications systems. On December 22, 2004, the FCC issued a Supplemental Order and Order on Reconsideration FCC 04-294. The August 6 and December 22, 2004 orders, and any supplemental relevant orders the FCC issues after the Effective Date of this Agreement, are collectively referred to as the"Order." B. Pursuant to the Order, certain licensees of 800 MHz channels used in public safety or other systems must relinquish their existing channels and relocate their systems to other licensed channels("Replacement Channels"). Also pursuant to the Order, Nextel Communications Inc., a Delaware Corporation, ("Nextel"), must relinquish some of its existing channels and must provide and pay relocation funds ("Relocation Funds") to enable affected licensees to relocate their systems onto Replacement Channels and reconfigure their systems so that they are "Comparable Facilities" (as defined below). Relocation Funds are to be used to pay for the Licensee's rebanding costs, including reasonable transaction costs. C. The FCC has appointed a Transition Administrator(as defined in the Order), who is subject to the review and oversight of the FCC, to ensure that the rebanding initiative proceeds on schedule and in a planned and coordinated manner so that disruption to a licensee's system is minimized. On April 21, 2005, the Transition Administrator published a "Reconfiguration Handbook" and a "Quick Reference Guide," both of which describe the administrative procedures the Transition Administrator will follow to administer the reconfiguration process (including Nextel's responsibility to pay the Relocation Funds). In the Reconfiguration Guidebook, which was amended on June 3, 2005, the two major phases to accomplish the reconfiguration are described as the"Reconfiguration Planning and Negotiation Phase"and the"Reconfiguration Implementation Phase." D. Licensee is an affected licensee and has selected Motorola to provide Reconfiguration Planning and Negotiation Phase services. For good and valuable consideration, the sufficiency of which is hereby mutually acknowledged, the Parties hereto hereby agree as follows: Section 1 DEFINITIONS In addition to the defined terms above,capitalized terms in this Agreement have the following meanings: 1.1. "Comparable Facilities" means the Licensee's System (including the subscriber radio equipment) have the same operational capabilities that existed before relocation, specifically (1) equivalent channel capacity; (2) equivalent signaling capacity, baud rate, and access time; (3) coextensive geographical coverage; and (4) equivalent operating costs. 1.2. "Confidential Information" means any information that is disclosed in written, graphic, verbal, or machine- recognizable form, and is marked, designated, labeled 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 or proprietary 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: Licensee is required to disclose by law; is or becomes publicly known through no wrongful or negligent act of the receiving Party; is already known to the receiving Party without restriction when it is disclosed; is, or subsequently becomes, rightfully and without breach of this Agreement, any other agreement between the Parties or any applicable protective or similar order, in the receiving Party's possession without any obligation restricting Reconfiguration Planning and Negotiation Phase Services Agreement 1 10.21.05 revision • 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. 1.3. "Contract Price" means the price for the selected Reconfiguration Planning and Negotiation Phase services, excluding any applicable sales or similar taxes. 1.4. "Customer Suitability Assessment" means the initial assessment services performed by Motorola (most likely in conjunction with performing an equipment inventory) to determine whether Licensee's System is suitable for updating using the Motorola Software that has been especially modified for purposes of the 800 MHz band reconfiguration. Depending on the needs of the Licensee, Motorola might perform a Customer Suitability Assessment for Motorola-manufactured infrastructure equipment and software, Motorola-manufactured subscriber equipment and software,or both. 1.5. "Effective Date"means that date upon which all Parties have executed this agreement. 1.6. "Force Majeure" means an event, circumstance, or act of a third party (including Nextel and the Transition Administrator) that is beyond a Party's reasonable control. An act of God, the public enemy, a government entity, or another party (including another party's failure to comply with the Order ); strikes or other labor disturbances; general unavailability of necessary materials; hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots are examples of a Force Majeure. 1.7. "Motorola Software" means software in object code format that Motorola or its affiliated company owns, including any releases or software kits to reprogram radios. This Agreement does not involve any source code. 1.8. "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 any documents delivered by Motorola under this Agreement or any Motorola Software or equipment. 1.9. "Reconfiguration Planning and Negotiation Phase Services" means those services to be provided by Motorola to Licensee under this Agreement, including the Statement of Work(Attachment A). 1.10. "System" means the hardware and software products that comprise the Licensee's existing 800 MHz radio communications system. Section 2 SCOPE OF PLANNING AND NEGOTIATION PHASE SERVICES 2.1. SCOPE OF WORK. The Parties will perform their respective contractual responsibilities in accordance with this Agreement. Any changes to this Agreement, including changes to the Statement of Work, must be in writing and executed by both Parties. This Agreement sets forth the Parties' rights and responsibilities with respect to each other concerning the agreed Reconfiguration Planning and Negotiation Phase activities only, and not the Reconfiguration Implementation Phase activities (which, if applicable, will be governed by a separate Reconfiguration Implementation Phase Agreement). Specifically,this Agreement does not involve the provision by Motorola of any hardware,software, or services to reconfigure the System or any part of it. Also, this Agreement sets forth the Parties' rights and responsibilities with respect to each other concerning only those Reconfiguration Planning and Negotiation Phase activities covered by the Order, and not the sale of products or services (or any other activities) that are not part of the 800 MHz Band Reconfiguration process. If the Parties wish to contract for these other activities, they will do so pursuant to a separate contract. 2.2. MOTOROLA RESPONSIBILITIES. Motorola will provide the Reconfiguration Planning and Negotiation Phase Services as described in Attachment A,"Statement of Work." 2.3. LICENSEE RESPONSIBILITIES. Licensee is ultimately responsible to perform all of the Reconfiguration Planning and Negotiation Phase activities, and all of the Reconfiguration Implementation Phase activities, that are reasonable, necessary and prudent to make the Licensee's system Comparable Facilities. Licensee has selected Motorola to assist it in performing the Reconfiguration Planning and Negotiation Phase activities. Prior to Motorola commencing work pursuant to this Agreement, Licensee will submit its cost estimate, any required certifications, and Reconfiguration Planning and Negotiation Phase Services Agreement 2 10.21.05 revision any amendments thereto (if applicable) to Nextel and the Transition Administrator. When Licensee submits its cost estimate to Nextel, it will also submit a copy of this Agreement. Licensee will employ commercially reasonable efforts to assist Motorola in its provision of the Reconfiguration Planning and Negotiation Phase services, including providing access to Licensee's equipment, facilities, personnel and relevant information. Licensee will designate a point of contact person. Licensee has sole responsibility to determine whether the Reconfiguration Planning and Negotiation Phase activities and the Reconfiguration Implementation Phase activities actually result in the Licensee's System satisfying the Comparable Facilities standard. 2.4. LICENSEE-NEXTEL RELATIONSHIP. The Reconfiguration Handbook indicates that the Licensee and Nextel will form a contract which, among other things, sets forth Nextel's obligation to pay the Relocation Funds. The Reconfiguration Handbook encourages a payment process by which Nextel pays Relocation Funds directly to a Licensee's selected vendor. Motorola agrees to accept direct payments from Nextel if they are unconditionally made and to apply them to the Contract Price for Planning and Negotiation Phase Services. It is intended by the parties hereto that Nextel assumes the payment obligation under this Agreement pursuant to the Assumption provision contained herein. This Agreement shall not be effective unless and until such time as Nextel executes the aforementioned Assumption provision. Licensee hereby assigns to Motorola all of Licensee's rights to receive payment from Nextel for the Contract Price and any other payment amounts owed under this Agreement; this assignment includes, with respect to the payment obligations assumed by Nextel, Licensee's rights to make a claim against the Letter of Credit that Nextel has obtained to secure its obligations to pay Relocation Funds. If requested by Motorola, Licensee will execute necessary documents to effectuate this assignment provision. Motorola's obligation to perform the Reconfiguration Planning and Negotiation Phase Services is contingent upon Nextel executing the Assumption provision. The Order and Reconfiguration Handbook indicate that Licensee will be required to provide to the Transition Administrator certain certifications. Although any written factual representation from Motorola that is signed by an authorized signatory of Motorola will be true to the best of Motorola's knowledge and belief,and Licensee may reasonably rely upon the written factual representation, nothing in this Agreement is intended to require Motorola to sign any Transition Administrator certifications. 2.5. OTHER SERVICES. Nothing in this Agreement is intended to prevent or hinder Motorola from contracting to perform or performing for Licensee any Reconfiguration Implementation Phase services, or any other kind of services, or selling any equipment or software. Nothing in this Agreement is intended to prevent or hinder Motorola from contracting to perform or performing for other Licensees Reconfiguration Planning and Negotiation Phase services, Reconfiguration Implementation Phase services,or any other kind of services,or selling any equipment or software. Section 3 PERFORMANCE SCHEDULE The Parties will perform their respective responsibilities in a reasonably diligent manner, taking into consideration the procedures and processes established in the Reconfiguration Handbook. The Parties acknowledge that any scheduled performance dates are estimates only, and various factors (such as resource availability, assistance from other parties, and product development) may cause the scheduled performance dates to change or be delayed. No Party will be liable for its non-performance or delayed performance if caused by a Force Majeure. A Party will notify the other if it becomes aware of a Force Majeure that will significantly delay performance. The notifying Party will give the notice promptly after it discovers the Force Majeure. Section 4 CONTRACT PRICE, PAYMENT AND INVOICING 4.1. CONTRACT PRICE. The Contract Price for Reconfiguration Planning and Negotiation Phase Services in U.S. dollars is the amount of$84,516.20; this price is a firm, fixed price, subject to any changes to the Reconfiguration Planning and Negotiation Phase Services caused by mutually executed change orders. The Contract Price excludes any taxes, assessments or duties, all of which will be added to the invoices and paid by Nextel except as exempt by law. Motorola is responsible for federal,state,and local taxes based on its income or net worth. 4.2. INVOICING AND PAYMENT. 4.2.1. Invoicing. Motorola will submit correct invoices to Licensee, with a copy to Nextel, as follows: 100% of the Contract Price on or promptly after the Effective Date. Licensee's invoice address is: 150 Dexter Court Elgin IL 60120. Licensee may change this address by written notice to Motorola. Upon receipt of the invoice, Licensee will promptly Reconfiguration Planning and Negotiation Phase Services Agreement 3 10.21.05 revision • • (but in no event longer than 7 calendar days) inspect the invoice, verify whether it correctly states the Contract Price (and any applicable taxes), and notify Nextel in writing (via facsimile or priority overnight carrier) that Licensee approves the invoice and accepts the Reconfiguration Planning and Negotiation Phase Services (the "Approval Notification"). Licensee will attach a copy of the invoice to the Approval Notification. When Licensee sends to Nextel the Approval Notification, Licensee will concurrently provide to Motorola a copy of the Approval Notification so that Motorola may know approximately when Nextel receives it. If for any reason Licensee disapproves the invoice, Licensee will give written notice to both Motorola and Nextel; the notice will explain the reasons for Licensee's disapproval. Motorola will promptly correct any inaccurate invoice that Licensee disapproves, and resubmit the corrected invoice using the same process as described above in this paragraph. 4.2.2. Direct Payment. Payment to Motorola for approved invoices is due thirty (30) days from the date Nextel receives the Approval Notification from Licensee. Payments will be made in the form of a wire transfer, check, or cashier's check from a U.S. financial institution. Payment that is overdue more than thirty (30) days will bear simple interest at the rate of ten percent(10%)per annum from the due date. Motorola's Federal Tax Identification Number is 36-1115800. 4.2.3. Mutual Cooperation. Because payment for services will be made by Nextel pursuant to the Assumption provisions below,the payment process will require greater cooperation by the Parties than normal circumstances would require. The Parties will cooperate with each other and provide to each other, and to Nextel and the Transition Administrator, such information (other than Confidential Information, which is governed by Section 9.1) as is reasonable or necessary to facilitate the prompt payment of the Contract Price. If at any time it reasonably appears to Motorola that payment for the services covered by this Agreement might not be made by Nextel, Motorola may request from Nextel further assurances that payment will be made. If Nextel fails to provide these further assurances in writing within five(5)work days,Motorola may suspend performance of its duties under this Agreement. Section 5 REPRESENTATIONS AND WARRANTIES 5.1. RECONFIGURATION PLANNING AND NEGOTIATION PHASE SERVICES WARRANTY. For thirty (30) days from the completion of the Reconfiguration Planning and Negotiation Phase Services,Motorola warrants that these services were performed in a good and workmanlike manner. This services warranty does not cover any services or duties performed or owed by Nextel, Licensee, or any other contractor hired by them, and it does not guaranty that Licensee's System will be Comparable Facilities after the reconfiguration work is completed. 5.2. WARRANTY CLAIMS. To assert a warranty claim, Licensee 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 no additional charge to Licensee) re-perform the Reconfiguration Planning and Negotiation Phase services. This action will be the full extent of Motorola's liability hereunder and constitutes Licensee's sole remedy. If this investigation indicates the warranty claim is invalid or"out of scope,"then Motorola may invoice Licensee for responding to the claim on a time and materials basis using Motorola's then current labor rates. Notwithstanding any reimbursement claim Licensee may have against the Relocation Funds, Licensee will pay the invoice for invalid warranty claims within thirty(30)days from the invoice date. 5.3. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original end user and are not assignable or transferable. 5.4. POTENTIAL DAMAGE TO EXISTING EQUIPMENT. Licensee acknowledges that Motorola, Licensee's employees, or others might unintentionally cause damage to equipment that is part of Licensee's System when performing the Reconfiguration Planning and Negotiation Phase Services (the inventory, inspection or assessment services, etc.). Other than damage to equipment caused by Motorola's intentional wrong doing or gross negligence, Licensee bears this risk of damage to equipment(unless Motorola damages the equipment and the equipment is covered by a pre-existing Motorola warranty or maintenance agreement, in which case Motorola at its option will repair or replace the damaged equipment or refund its fair market value). If unintentional damage as described in this paragraph occurs and it is not covered by Motorola, Licensee should request that Nextel reimburse Licensee for the cost to repair or replace the damaged equipment. Reconfiguration Planning and Negotiation Phase Services Agreement 4 10.21.05 revision 5.5. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE RECONFIGURATION PLANNING AND NEGOTIATION PHASE SERVICES PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. EXCEPT FOR THE FOREGOING WARRANTIES, THE SERVICES ARE PROVIDED "AS IS" AND MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE IS RESPONSIBLE FOR, AND MOTOROLA MAKES NO WARRANTY CONCERNING, THE BACK- UP AND DISASTER RECOVERY PROCEDURES, FACILITIES AND EQUIPMENT, OR DATA ENTRY AND LOADING. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. Section 6 DEFAULT AND TERMINATION If a 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 Licensee default for failing to pay an amount when due (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, 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 Licensee is the defaulting Party, Motorola may stop work on the Agreement until it approves the cure plan. If a defaulting Party fails to cure the default, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of this Agreement and the defaulting Party will promptly return to the non- defaulting Party any of its Confidential Information. The non-defaulting Party will mitigate damages. Section 7 LIMITATION OF LIABILITY Licensee acknowledges that the limitations in this Section are integral to the Contract Price being charged by Motorola under this Agreement, and that if Motorola assumed further liability other than as set forth in this Section 8, the Contract Price would be substantially higher. This limitation of liability provision applies notwithstanding any contrary provision in this Agreement. Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, contribution, or otherwise, will be limited to the direct damages incurred by Licensee and recoverable under law, but not to exceed the Contract Price. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA (AND ITS SUBCONTRACTORS AND SUPPLIERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES) WILL NOT BE LIABLE TO LICENSEE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS, OPPORTUNITIES OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION), THE SALE OR USE OF PRODUCTS, EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. ALL CLAIMS BY A PARTY AGAINST ANOTHER PARTY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, MUST BE BROUGHT WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES. Some states do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages,so the above limitations or exclusions may not apply in those states. Section 8 CONFIDENTIALITY AND PROPRIETARY RIGHTS 8.1. CONFIDENTIAL INFORMATION. During the term of this Agreement, the Parties may provide each other with Confidential Information. Any inventory report or Customer Suitability Assessment concerning Licensee's System, and any other document concerning the reconfiguration of Licensee's System that Motorola prepares specifically for and is a promised deliverable to Licensee under this Agreement (collectively, "Documentary Deliverable")shall be the Confidential Information of Licensee unless otherwise agreed by the Parties in writing, 8.1.1. Non-Disclosure. 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, or as may be required by law; restrict disclosure of Confidential Information to its employees Reconfiguration Planning and Negotiation Phase Services Agreement 5 10.21.05 revision who have a "need to know" and not copy or reproduce the Confidential Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential Information, including informing its employees who have access to it that it is confidential and not to be disclosed to others,but those 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. The confidentiality restrictions and obligations contained herein shall be in addition to any confidentiality restrictions or obligations contained in any other agreement (whether prior to, contemporaneous or subsequent to the date of this Agreement) between Motorola on the one hand and the Transition Administrator,Nextel or Licensee on the other hand, as well any protective order or confidentiality restrictions or rules issued by the FCC or the Transition Administrator. 8.1.2. Use. Unless otherwise provided in this Agreement, a Party may use the Confidential Information of the other Party only in furtherance of the performance of this Agreement or any other agreement between the Parties. Notwithstanding the preceding sentence,Motorola may use the information in any Documentary Deliverable for its own business purposes or to assist Licensee or its other contractors or consultants in the overall effort to plan and reconfigure Licensee's System. Confidential Information is and will at all times remain the property of the disclosing Party,and no grant of any proprietary rights in the Confidential Information is hereby 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 or any other agreement between the Parties. 8.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola owns and retains all of its Proprietary Rights, and nothing in this Agreement is intended to restrict its Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Licensee the services remain vested exclusively in Motorola, and this Agreement does not grant to Licensee any shared development rights of intellectual property. This Agreement does not involve the license of any software. Section 9 GENERAL 9.1 ASSIGNABILITY AND SUBCONTRACTING; WAIVER. No Party may assign this Agreement without the prior written consent of the other Party. Motorola may subcontract any part of the work, but subcontracting will not relieve Motorola of its duties under this Agreement. Failure or delay by a Party to exercise a right or power under this Agreement will not be a waiver of the right or power. An effective waiver of a right or power must be in writing signed by the waiving Party and 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. 9.2 INDEPENDENT CONTRACTORS. Each Party is an independent contractor with respect to the other Party, and a Party and its personnel will not be considered to be employees or agents of the other. Nothing in this Agreement grants a Party the right or authority to make commitments of any kind for the other Party. This Agreement will not constitute, create, or in any way be interpreted as a joint venture, partnership or foi nial business organization of any kind. 9.3 INTERPRETATION OF AGREEMENT. This Agreement, including any attachments, constitutes the entire agreement of the Parties regarding the subject matter of this Agreement and supersedes all previous agreements, proposals,and understandings,whether written or oral,relating to that subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of the Parties. The preprinted teims and conditions found on any Licensee 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 the document. The attachments 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 attachments. 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 is an arm's length transaction and will be fairly interpreted in accordance with its terms and conditions and not for or against a Party. If a court of competent jurisdiction renders any part of this Agreement to be invalid or otherwise unenforceable, it will be severed and the remainder of this Agreement will continue in full force and effect as if the invalid part was not part of this Agreement. This Agreement and the rights and duties of the parties will be governed by and interpreted in accordance with the laws of the State of Illinois. Reconfiguration Planning and Negotiation Phase Services Agreement 6 10.21.05 revision 9.4. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with the Order and all other applicable federal, state,and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Licensee will obtain and comply with all FCC licenses and authorizations required for the installation,operation and use of the System. 9.5. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and 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. Each Party represents that it is fully aware of the terms contained in this Agreement and has voluntarily and without coercion or duress of any kind entered into this Agreement, having had a full and fair opportunity to seek the advice of counsel and other professionals or consultants as its considers necessary. This Agreement may be executed in separate counterparts,which together constitute a single agreement. 9.6. SURVIVAL OF TERMS. The following provisions survive the expiration or termination of this Agreement for any reason: if any payment obligations exist, all of Section 4 (Contract Price, Payment and Invoicing); Section 7 (Limitation of Liability); and Section 8 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 9. The Parties hereby enter into this Agreement as of the Effective Date. Motorola Licensee By: By: elLik\ v.:,.�.. Name: S af:1/ /17k./ Name: OLUF I FOL 'Il,t Title:,e , 7j ?/67 g1gA7 t51—/ 67r- Title: ITY it4,k_' ER Date: (O. 2-/— 0 S Date: `I:ER ' 2005 Assumption of Payment Obligations Nextel Communications, Inc. ("Nextel") hereby assumes Licensee's payment obligations under Sections 2.4,4.1, and 4.2 of the Reconfiguration Planning and Negotiation Phase Agreement and agrees to pay to Motorola the Contract Price (and, if applicable, taxes and interest) as described therein. If Nextel fails to perform the payment obligation, either Licensee or Motorola may consider Nextel to be in default and may assert a default claim by giving Nextel a written notice of default. Nextel will have ten (10) days from receipt of the notice of default (the "Cure Period) to cure or dispute the default. If Nextel disputes the default claim, then Nextel will notify in writing both Licensee and Motorola of the reasons for the dispute and will give such notice within this Cure Period. Upon receipt of the dispute notice from Nextel, managers from all parties will meet and make good faith efforts to resolve the dispute as quickly as possible. Nextel will pay any undisputed portion of assumed payment obligation. If Nextel neither cures nor disputes the claimed default within the Cure Period, then either Licensee or Motorola (or both) may demand payment under the Letter of Credit which Nextel has posted to secure its obligations to pay the Relocation Funds. Nextel will provide to Licensee accurate payment records concerning any payments it makes to Motorola on Licensee's behalf. Nextel acknowledges that Motorola's obligation to perform the Reconfiguration Planning and Negotiation Phase Services is contingent upon Nextel executing this Assumption provision. Nextel Communications,Inc: By: Name: Title: Date: Reconfiguration Planning and Negotiation Phase Services Agreement 7 10.21.05 revision .4 OF c C /4' City of Elgin Agenda Item No. .1: pl September 9, 2005 • TO: Mayor and Members of the City Council SAFE COMMUNITY FROM: Olufemi Folarin, City Manager Deputy Chief James Burns SUBJECT: Contract with Motorola for Re-Banding Study PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider a contract with Motorola for a design effort to modify our existing radio system as required by the Federal Communication Commission (FCC). RECOMMENDATION Pie• It is recommended that the City Council authorize the Mayor to sign this agreement. BACKGROUND On August 6, 2004, the FCC issued Report and Order FCC-04-168 that modified its rules governing the 800 MHz band to minimize interference with public safety communications. The City of Elgin operates an 800 MHz public safety radio system for all City departments. Pursuant to this ruling and later modifications, the City must prepare a detailed plan for presentation to the Transition Administrator appointed by the FCC detailing how the City of Elgin intends to comply with the orders to vacate some of the frequencies currently in use by our radio system. The FCC issued the above ruling due to numerous complaints from public safety that the Nextel system was interfering with our emergency frequencies. The City of Elgin is currently experiencing Nextel interference. After months of hearings and negotiations, the FCC agreed that the problem was serious and agreed to a plan to re-locate the public safety frequencies away from the Nextel frequencies and to re-assign the frequencies to Nextel. This entire move must be accomplished with no loss of use or money from the affected public safety users. The City of Elgin has several frequencies in our current system that must be relocated and all of our 800 MHz equipment must be either modified or replaced as needed. The City of Elgin does not have the resources to prepare the required detailed plan and budget that this moves requires. Motorola offers a service that will inspect our current system and prepare the needed documents #0- for the Transition Administrator, thereby allowing us to make the required moves with minimal interruption of our system. Since our current system is a Motorola product and has been maintained by Motorola since it was purchased, it is only logical and prudent to have Motorola k Contract for study with Motorola fek September 9, 2005 Page 2 perform this work. The Chicago metropolitan area will be the first area in the nation to be relocated due to the severity of the Nextel interference and lack of an international border concern. This requires that we prepare and present our plan to the Transition Administrator by early 2006. Only Motorola is prepared to conduct the needed study and budget in the time allocated. The entire cost of this study and the eventual cost of the changes must be borne by Nextel, per FCC order. The FCC has required Nextel to post significant bonds to cover the total costs, which are anticipated to be in excess of $2.8 billion. This agreement contains a clause allowing Motorola to bill Nextel directly for this service, with no City of Elgin funds required. The Police Department has been the administrator of the City-wide radio system since it was purchased. The Police Department has worked with Motorola for many years and is comfortable with Motorola's ability to perform this work in a timely and accurate manner. Since the radio system must stay active throughout this process, it is preferable that only qualified Motorola technicians are involved in the inventory and upgrade estimates of the City-owned Motorola equipment. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED elibk None. 96A" FINANCIAL IMPACT The proposed cost of the work to be performed by Motorola totals $84,516.20. Nextel will be responsible for making payment to Motorola for work performed and therefore will require no outlay of City of Elgin funds. EGAL IMPACT vvi None. ALTERNATIVES 1. The City may choose to not enter into this contract and attempt to prepare the required inventory and upgrade budget for the Transition Administrator. 2. The City may choose to prepare a request for bid to attempt to find another qualified vendor to perform this work. Respectfully submitted for Council consideration. Contract for study with Motorola September 9, 2005 Page 3 MOTOROLA August 30,2005 James J.Burns City of Flgin 151 Douglas Avenue Elgin,IL 60120-5503 Dear Mr.Burns. Motorola is pleased to present this proposal to assist you with estimating the design effort required to modify your radio system to comply with the Federal Communication Commission's Rebanding Report& Order. The FCC mandates that City of Elgin move their 8O0MHz System frequencies as part of an overall effort by the FCC to reduce interference in the SOOMHz band_ Motorola will work closely with City of Elgin to ensure that we have a complete understanding of your current operational needs and how they need to be considered while reconfiguring your operational, mission critical commwurication system We will provide a complete evaluation of your system which will include the impact of the necessary changes to the newly assigned frequencies. These considerations will be incorporated into our preparation of the estimate to reband the 800MHz radio system Since the reconfiguration of your system will be performed while your system is on the air,it is critical that the proper evaluation and planning be completed During the work required to estimate the design of the rebanding effort we will capture all necessary data to ensure successful rebanding. As a result, the final output of this design effort will include our design to reband your 800MHz system. This design will provide a complete system description and impact analysis, a detailed cut over plan, and any unique requirements that have to be considered and accommodated. However,the first step in this total effort is to accurately evaluate your requirements. Motorola is prepared to commence this preparation of estimate for the City of Elgin system once this proposal is agreed to by Nextel and the rebanding Transition Administrator. If you have any questions regarding this proposal,please contact Darwin Lind at(815)236-1355. Regards, ltnw.Je inonn Marc Johnson Motorola Rebottling Lead—Systems Integration tsOt E.Algonquin Road,Schaumburg.IL 501%