05-163 C—/Z
Resolution No. 05-163
RESOLUTION
AUTHORIZING EXECUTION OF A COMMUNICATIONS PRODUCTS AGREEMENT
WITH MOTOROLA, INC. FOR RADIOS FOR FIRE STATION#6
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that
pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an
exception to the requirements of the procurement ordinance is necessary and in the best interest of
the city; and
BE IT FURTHER RESOLVED that Olufemi Folarin, 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 radios for Fire Station#6,a copy of which is attached hereto and made
a part hereof by reference.
Ed Schock, Mayor
Presented: May 11, 2005
Adopted:
Vote: Yeas Nays:
Recorded:
Attest:
Dolonna Mecum, City Clerk
Resolution No. 05-163
RESOLUTION
AUTHORIZING EXECUTION OF A COMMUNICATIONS PRODUCTS AGREEMENT
WITH MOTOROLA, INC. FOR RADIOS FOR FIRE STATION#6
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that
pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an
exception to the requirements of the procurement ordinance is necessary and in the best interest of
the city; and
BE IT FURTHER RESOLVED that Olufemi Folarin, 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 radios for Fire Station#6,a copy of which is attached hereto and made
a part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: May 11, 2005
Adopted: May 11, 2005
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Dolonna Mecum
Dolonna Mecum, City Clerk
Communications Products Agreement
Motorola, Inc. ("Motorola"), and the Elgin Fire Department ("Customer") enter into this "Agreement,"
pursuant to which Customer will purchase and Motorola will sell the Products, as described below. Seller
and Customer may be referred to individually as a "Party" and collectively as the "Parties." For good and
valuable consideration, the Parties agree as follows:
Section 1 EXHIBITS
The exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this
Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the
exhibits and any inconsistency between the exhibits will be resolved in their listed order.
Exhibit A Motorola "Software License Agreement"
Exhibit B "Technical and Implementation Documents"
B-1 "List of Products"dated January 10, 2005.
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
2.1. "Confidential Information" means any information that is disclosed in written, graphic, verbal, or
machine-recognizable form, and is marked, designated, or identified at the time of disclosure as being
confidential or its equivalent; or if the information is in verbal form, it is identified as confidential at the time
of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information
does not include any information that: is or becomes publicly known through no wrongful act of the
receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or
becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any
obligation restricting disclosure; is independently developed by the receiving Party without breach of this
Agreement; or is explicitly approved for release by written authorization of the disclosing Party.
2.2. "Contract Price" means the price for the Products, excluding applicable sales or similar taxes and
freight charges.
2.3. "Effective Date" means that date upon which the last Party executes this Agreement.
2.4. "Equipment" means the equipment listed in the List of Products that Customer purchases from
Motorola under this Agreement.
2.5. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a Party's
reasonable control (e.g., an act of God, an act of the public enemy, an act of a government entity, strikes
or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots).
2.6. "Infringement Claim" means a third party claim alleging that the Equipment manufactured by
Motorola or the Motorola Software infringes upon the third party's United States patent or copyright.
2.7. "Motorola Software" means Software that Motorola or its affiliated company owns.
2.8. "Non-Motorola Software" means Software that another party owns.
2.9. "Open Source Software" (also called "freeware" or"shareware") means software that has its
underlying source code freely available to evaluate, copy, and modify.
2.10. "Products" mean the Equipment and Software provided by Motorola under this Agreement.
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2.11. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,
trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the
Equipment and Software, including those created or produced by Motorola under this Agreement and any
corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software
whether made by Motorola or another party.
2.12. "Software" means the Motorola Software and Non-Motorola Software in object code format that is
furnished with the Products.
2.13. "Warranty Period" means one (1)year from the date of shipment of the Products.
Section 3 SCOPE OF AGREEMENT AND TERM
3.1. SCOPE OF WORK. Motorola will provide and install (if applicable) the Products, and perform its
other contractual responsibilities, all in accordance with this Agreement. Customer will perform its
contractual responsibilities in accordance with this Agreement.
3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this
Agreement. Neither Party is obligated to perform requested changes unless both Parties execute a
written change order.
3.3. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by
mutual agreement of the Parties, the term of this Agreement begins on the Effective Date and continues
until the 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 if it is then available. Each order must refer to this Agreement
and must specify the pricing and delivery terms. Notwithstanding any additional or contrary terms in the
order, the applicable provisions of this Agreement (except for pricing, delivery, and payment terms) will
govern the purchase and sale of the additional Equipment or Software. Payment is due within twenty(20)
days after the invoice date, and Motorola will send Customer an invoice as the additional Equipment is
shipped or Software is licensed. Alternatively, Customer may register with and place orders through
Motorola Online ("MOL"), and this Agreement will be the "Underlying Agreement" for those MOL
transactions rather than the MOL On-Line Terms and Conditions of Sale. MOL registration and other
information may be found at http://www.motorola.com/businessandgovernment/ 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 SOFTWARE. Any Non-Motorola Software is licensed to Customer in
accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date
unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software
pursuant to the Software License Agreement, in which case it applies and the copyright owner will have
all of Licensor's rights and protections under the Software License Agreement. Motorola makes no
representations or warranties of any kind regarding Non-Motorola Software. Non-Motorola Software may
include Open Source Software. All Open Source Software is licensed to Customer in accordance with,
and Customer agrees to abide by, the provisions of the standard license of the copyright owner and not
the Software License Agreement. Upon request by Customer, Motorola will use commercially reasonable
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efforts to determine whether any Open Source Software will be provided under this Agreement; and if so,
identify the Open Source Software and provide to Customer a copy of the applicable standard license (or
specify where that license may be found); and provide to Customer a copy of the Open Source Software
source code if it is publicly available without charge (although a distribution fee or a charge for related
services may be applicable).
3.8. OPTIONAL EQUIPMENT OR SOFTWARE. This paragraph applies only if a "Priced Options"
exhibit is shown in Section 1, or if the parties amend this Agreement to add a Priced Options exhibit.
During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one
(1)year after the Effective Date), Customer has the right and option to purchase the equipment, software,
and related services that are described in the Priced Options exhibit. Customer may exercise this option
by giving written notice to Seller which must designate what equipment, software, and related services
Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and
conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain
provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer
delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific
lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules,
payment terms, maintenance and support provisions, additions to or modifications of the Software
License Agreement, hosting terms, and modifications to the acceptance and warranty provisions.
Section 4 PERFORMANCE SCHEDULE
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 in U.S. dollars is$15,778.00.
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 twenty (20) days after the date of each invoice. Customer will make payments when due
in the form of a wire transfer, check, or cashier's check from a U.S. financial institution. Overdue invoices
will bear simple interest at the maximum allowable rate. For Customer's reference, the Federal Tax
Identification Number for Motorola, Inc. is 36-1115800.
5.3. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the
invoices. Title and risk of loss to the Equipment will pass to Customer upon shipment. 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: City of
Elgin, 150 Dexter Court, Elgin, IL 60120
The Equipment will be shipped to the Customer at the following address (insert if this information is
known):
The 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
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6.1. ACCESS TO SITES. If Motorola is providing installation or other services, Customer will provide
all necessary construction and building permits, licenses, 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 states to the contrary,
Customer will ensure that these work sites have adequate: physical space, air conditioning and other
environmental conditions; electrical power outlets, distribution and equipment and telephone or other
communication lines (including modem access and adequate interfacing networking capabilities), all for
the installation, use and maintenance of the Products.
Section 7 ACCEPTANCE
Acceptance of the Products will occur upon delivery to Customer unless the Statement of Work provides
for acceptance verification or testing, in which case acceptance of the Products will occur 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. During the Warranty Period, Motorola warrants that the Equipment
under normal use and service will be free from material defects in materials and workmanship.
8.2. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License
Agreement, during the Warranty Period, Motorola warrants the Motorola Software in accordance with the
terms of the Software License Agreement and the provisions of this Section 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 normal, customary, and authorized manner; accident, liquids, neglect, or acts of
God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not
provided or authorized in writing by Motorola; Customer's failure to comply with all applicable industry and
OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or
workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries
(because they carry their own separate limited warranty) or consumables; (v) freight costs to ship
Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does
not affect the operation of the Equipment; and (vii) normal or customary wear and tear.
8.4. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of
the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will
investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at its
option and at no additional charge to Customer) repair the defective Equipment or Motorola Software,
replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola
Software. That action will be the full extent of Motorola's liability for the warranty claim. If this
investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding
to the claim on a time and materials basis using Motorola's then current labor rates. Repaired or replaced
product is warranted for the balance of the original applicable Warranty Period. All replaced products or
parts will become the property of Motorola.
8.5. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the Products for commercial, industrial, or governmental use
only, and are not assignable or transferable.
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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 CONDITIONS, 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.
A Party that becomes aware of a Force Majeure that will significantly delay performance will notify the
other Party promptly (but in no event later than fifteen days) after it discovers the Force Majeure. If a
Force Majeure occurs, the Parties will execute a change order to extend the performance schedule for a
time period that is reasonable under the circumstances.
Section 10 DISPUTES
10.1. SETTLEMENT PREFERRED. The Parties will attempt to settle any dispute arising from this
Agreement (except for a claim relating to intellectual property or breach of confidentiality) through
consultation and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher-level
managers of the Parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a
mediator chosen jointly by the Parties within thirty days after notice by one of the Parties demanding non-
binding mediation. The Parties will not unreasonably withhold their consents to the selection of a
mediator, will share the cost of the mediation equally, may postpone mediation until they have completed
some specified but limited discovery about the dispute, and may also replace mediation with some other
form of non-binding alternative dispute resolution ("ADR").
10.2. LITIGATION. A Party may submit to a court of competent jurisdiction in the state in which the
Products are delivered any claim relating to intellectual property or a breach of confidentiality provisions
and any dispute that cannot be resolved between the Parties through negotiation or mediation within two
(2) months after the date of the initial demand for non-binding mediation. Each Party consents to
jurisdiction over it by that court. The use of ADR procedures will not be considered under the doctrine of
laches, waiver, or estoppel to affect adversely the rights of either Party.
Section 11 DEFAULT AND TERMINATION
If either Party fails to perform a material obligation under this Agreement, the other Party may consider
the non-performing Party to be in default (unless a Force Majeure causes the failure) and may assert a
default claim by giving the non-performing Party a written and detailed notice of the default. Except for a
default by Customer for failing to pay any amount when due under this Agreement which must be cured
immediately, the defaulting Party will have thirty (30) days after receipt of the notice of default to either
cure the default or, if the default is not curable within thirty (30) days, provide a written cure plan. The
defaulting Party will begin implementing the cure plan immediately after receipt of notice by the other
Party that it approves the plan. If Customer is the defaulting Party, Motorola may stop work on the project
until it approves the Customer's cure plan. 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 Customer for an Infringement Claim. Motorola's duties to defend and indemnify
are conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola
having sole control of the defense of the suit and all negotiations for its settlement or compromise; and
Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the
defense of the Infringement Claim.
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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 Software,
replace or modify it so that it becomes non-infringing while providing functionally equivalent performance,
or grant Customer a credit for the Equipment or Motorola Software as depreciated and accept its return.
The depreciation amount will be calculated based upon generally accepted accounting standards for such
Equipment and Motorola Software.
12.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon
the combination of the Equipment or Motorola Software with any software, apparatus or device not
furnished by Motorola; the use of ancillary equipment or software not furnished by Motorola and that is
attached to or used in connection with the Equipment or Motorola Software; any Equipment that is not
Motorola's design or formula; a modification of the Motorola Software by a party other than Motorola; or
the failure by Customer to install an enhancement release to the Motorola Software that is intended to
correct the claimed infringement. The foregoing states the entire liability of Motorola with respect to
infringement of patents and copyrights by the Equipment, Motorola Software, or any of their parts.
Section 13 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty,
negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages
recoverable under law, but not to exceed the price of the Equipment, Software, or services with respect to
which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY
OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY
COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES,
PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE
OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA
PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the expiration or
termination of the Agreement and applies notwithstanding any contrary provision. No action for contract
breach or otherwise relating to the transactions contemplated by this Agreement may be brought more
than one (1)year after the accrual of the cause of action, except for money due upon an open account.
Section 14 CONFIDENTIALITY AND PROPRIETARY RIGHTS
14.1. CONFIDENTIAL INFORMATION.
During the term of this Agreement, the Parties may provide each other with Confidential Information.
Each Party will: maintain the confidentiality of the other Party's Confidential Information and not disclose it
to any third party, except as authorized by the disclosing Party in writing or as required by a court of
competent jurisdiction; restrict disclosure of the Confidential Information to its employees who have a
"need to know" and not copy or reproduce the Confidential Information; take necessary and appropriate
precautions to guard the confidentiality of the Confidential Information, including informing its employees
who handle the Confidential Information that it is confidential and is not to be disclosed to others, but
these precautions will be at least the same degree of care that the receiving Party applies to its own
confidential information and will not be less than reasonable care; and use the such Confidential
Information only in furtherance of the performance of this Agreement. Confidential Information is and will
at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the
Confidential Information is given or intended, including any express or implied license, other than the
limited right of the recipient to use the Confidential Information in the manner and to the extent permitted
by this Agreement.
14.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS.
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Motorola, the third party manufacturer of any Equipment, and the copyright owner of any Non-Motorola
Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and
nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property
developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment,
Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to
Customer any shared development rights of intellectual property. Except as explicitly provided in the
Software License Agreement, Motorola does not grant to Customer, either directly or by implication,
estoppel, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Customer will not
modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse
engineer, derive source code or create derivative works from, adapt, translate, merge with other software,
reproduce, or export the Software, or permit or encourage any third party to do so. The preceding
sentence does not apply to Open Source Software which is governed by the standard license of the
copyright owner.
Section 15 GENERAL
15.1. TAXES. The Contract Price does not include excise, sales, lease, use, property, or other taxes,
assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola is
required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to
Motorola the amount of the taxes (including any interest and penalties) within twenty (20) days after the
date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property
tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth.
15.2. ASSIGNABILITY AND SUBCONTRACTING. Neither Party may assign this Agreement without
the prior written consent of the other Party, except that Motorola may assign this Agreement to any of its
affiliates or its right to receive payment without the prior consent of Customer. Motorola may subcontract
any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement.
15.3 WAIVER. Failure or delay by either Party to exercise any right or power under this Agreement
will not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a
writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either
a future or continuing waiver of that same right or power, or the waiver of any other right or power.
15.4. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or
unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and
effect.
15.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement only
as an independent contractor. The Parties and their personnel will not be considered to be employees or
agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right
or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or
be interpreted as a joint venture, partnership or formal business organization of any kind.
15.6. 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.
15.7. GOVERNING LAW. This Agreement and the rights and duties of the Parties will be governed by
and interpreted in accordance with the laws of the State in which the Products are delivered.
15.8. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement
of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements,
proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement
may be amended or modified only by a written instrument signed by authorized representatives of both
Parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment
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or other form will not be considered an amendment or modification of this Agreement, even if a
representative of each Party signs that 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 personally or sent to the address shown below by certified mail, return
receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express,
UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt:
Customer Motorola, Inc.
Attn: Gail Cohen Attn: Deborah Neil
150 Dexter Court 1301 E. Algonquin Rd. IL-02
Elgin IL Schaumburg, 11 60196
fax: 847-931-5689 fax: 847-538-2801
15.10. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal,
state, and local laws, regulations and rules concerning the performance of this Agreement or use of the
System. Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses
and authorizations required for the installation, operation and use of the System before the scheduled
installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC
license applications, neither Motorola nor any of its employees is an agent or representative of Customer
in FCC or other matters.
15.11. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all
necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties
under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon
execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in
accordance with its terms; and the execution, delivery, and performance of this Agreement does not
violate any bylaw, charter, regulation, law or any other governing authority of the Party.
15.12. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this
Agreement for any reason: Section 3.6 (Motorola Software), Section 3.7 (Non-Motorola Software); if any
payment obligations exist, Sections 5.1 and 5.2 (Contract Price and Invoicing and Payment); Subsection
9.7 (Disclaimer of Implied Warranties); Section 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
By. � By.
Name: _Kristie ing Name:
TitIe:MCEI Distr;ruti on �ntrol Title: Q_
Date: 4/28/05 Date:
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Exhibit A
Software License Agreement
In this Exhibit A, the term "Licensor" means Motorola, Inc., ("Motorola") or Printrak International,
Incorporated, a Motorola company ("Printrak"); "Licensee," means the Customer; "Primary Agreement"
means the agreement to which this exhibit is attached; and "Agreement" means this Exhibit and the
applicable terms and conditions contained in the Primary Agreement. The Parties agree as follows:
Section 1 SCOPE
Licensor will provide to Licensee proprietary software or radio communications, computer, or other
electronic products ("Products") containing embedded or pre-loaded proprietary software, or both.
"Software" means the proprietary software in object code format, and adaptations, translations, de-
compilations, disassemblies, emulations, or derivative works of the software, and may contain one or
more items of software owned by a third party supplier ("Third Party Software"). Product and Software
documentation that specifies technical and performance features and capabilities, and the user, operation
and training manuals for the Software (including all physical or electronic media upon which this
information is provided) are collectively referred to as "Documentation." This Agreement contains the
terms and conditions pursuant to which Licensor will license to Licensee, and Licensee may use, the
Software and Documentation.
Section 2 GRANT OF LICENSE
Subject to Section 1, Licensor hereby grants to Licensee a personal, non-transferable (except as
permitted in Section 8 below), limited, and non-exclusive license under Licensor's applicable proprietary
rights to use the Software and related Documentation for the purposes for which they were designed and
in accordance with the terms and conditions of this Agreement. The license does not grant any rights to
source code.
If the Software is or includes Integration Framework, Customer Service Request ("CSR"), or Cityworks
software, that Software is licensed pursuant to this Agreement plus a separate document entitled
"Software License Agreement Rider for Integration Framework, Customer Service Request, or Cityworks
Software" (which document is incorporated by this reference and is either attached to this Agreement or
will be provided upon Licensee's request).
Section 3 LIMITATIONS ON USE
3.1. Licensee may use the Software only for Licensee's internal business purposes and only in
accordance with the Documentation. Any other use of the Software is strictly prohibited. Licensee may
not for any reason modify, disassemble, peel components, decompile, otherwise reverse engineer or
attempt to reverse engineer, derive source code, create derivative works from, adapt, translate, merge
with other software, copy, reproduce, distribute, or export any Software or permit or encourage any third
party to do so, except that Licensee may make one copy of Software provided by Licensor to be used
solely for archival, back-up, or disaster recovery purposes. Licensee must reproduce all copyright and
trademark notices on all copies of the Software and Documentation.
3.2. Licensee may not copy onto or transfer Software installed in one Product device onto another
device. Notwithstanding the preceding sentence, Licensee may temporarily transfer Software installed on
one device onto another if the original device is inoperable or malfunctioning, if Licensee provides written
notice to Licensor of the temporary transfer and the temporary transfer is discontinued when the original
device is returned to operation. Upon Licensor's written request, Licensee must provide to Licensor a
written list of all Product devices in which the Software is installed and being used by Licensee.
CPA.FINAL.Set.1.10.05.revision.doc 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 authorized location. Upon Licensor's written
request, Licensee must provide to Licensor a written list of all locations where Licensee uses or intends to
use RSS.
Section 4 OWNERSHIP AND TITLE
Title to all copies of Software will not pass to Licensee at any time and remains vested exclusively in the
copyright owner. The copyright owner owns and retains all of its proprietary rights in any form concerning
the Software and Documentation, including all rights in patents, patent applications, inventions,
copyrights, trade secrets, trademarks, trade names, and other intellectual properties (including any
corrections, bug fixes, enhancements, updates, or modifications to or derivative works from the Software
whether made by Licensor or another party, or any improvements that result from Licensor's processes
or, if applicable, providing information services). Nothing in this Agreement is intended to restrict the
proprietary rights of Licensor or to grant by implication or estoppel any proprietary rights. All intellectual
property developed, originated, or prepared by Licensor in connection with providing to Licensee
Software, Products, Documentation, or related services remain vested exclusively in Licensor, and this
Agreement does not grant to Licensee any shared development rights of intellectual property.
Section 5 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation contain Licensor's valuable proprietary and
Confidential Information and are Licensor's trade secrets, and that the provisions in the Agreement
concerning Confidential Information apply.
Section 6 LIMITED WARRANTY
6.1. The commencement date and the term of the Software warranty will be as stated in the Primary
Agreement, except that the Warranty Period for Printrak's LiveScan software will be 90 days; and for
application Software that is provided on a per unit basis, the Warranty Period for subsequent units
licensed is the remainder (if any) of the initial Warranty Period or, if the initial Warranty Period has
expired, the remainder (if any) of the term of the applicable Software Maintenance and Support
Agreement.
6.2. During the applicable Warranty Period, Licensor warrants that the unmodified Software, when
used properly and in accordance with the Documentation and this Agreement, will be free from a
reproducible defect that eliminates the functionality or successful operation of a feature critical to the
primary functionality or successful operation of the Software. Whether a defect occurs will be determined
solely with reference to the Documentation. Licensor does not warrant that Licensee's use of the
Software or Products will be uninterrupted or error-free or that the Software or the Products will meet
Licensee's particular requirements. Warranty claims are described in the Primary Agreement.
6.3. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE TRANSACTION COVERED BY THIS AGREEMENT IS A LICENSE AND NOT A SALE
OF GOODS.
Section 7 LIMITATION OF LIABILITY
The Limitation of Liability provision is described in the Primary Agreement.
CPA.FINAL.Set.1.10.05.revision.doc 2
Motorola Contract No.
Section 8 TRANSFERS
Licensee will not transfer Software or the related Documentation to any third party without Licensor's prior
written consent, which consent may be withheld in Licensor's reasonable discretion and which may be
conditioned upon the transferee paying all applicable license fees and agreeing to be bound by this
Agreement. Notwithstanding the preceding sentence, if Licensee transfers ownership of radio Products to
a third party, Licensee may assign its rights to use the Software (other than Radio Service Software and
Motorola's FLASHport® Software) embedded in or furnished for use with those radio Products; if
Licensee transfers all copies of the Software and the related Documentation to the transferee, and the
transferee executes a transfer form to be provided by Licensor upon request (which form obligates the
transferee to be bound by this Agreement).
Section 9 TERM AND TERMINATION
Licensee's right to use the Software and Documentation will begin when this Agreement is mutually
executed by both parties and will continue during the life of the Products in which the Software is used,
unless Licensee breaches this Agreement in which case it will be terminated immediately upon notice by
Licensor. Licensee acknowledges that Licensor has made a considerable investment of resources in the
development, marketing, and distribution of its proprietary Software and Documentation and that
reasonable and appropriate limitations on Licensee's use of the Software and Documentation are
necessary for Licensor to protect its investment, trade secrets, and valuable intellectual property rights
concerning the Software and Documentation, Licensee also acknowledges that its breach of this
Agreement will result in irreparable harm to Licensor for which monetary damages would be inadequate.
In the event of a breach of this Agreement and in addition to termination of this Agreement, Licensor will
be entitled to all available remedies at law or in equity (including immediate injunctive relief and
repossession of all non-embedded Software and associated Documentation unless Licensee is a Federal
agency of the United States Government). Within thirty (30) days after termination of this Agreement,
Licensee must certify in writing to Licensor that all copies of the Software and Documentation have been
returned to Licensor or destroyed and are no longer in use by Licensee.
Section 10 NOTICES
Notices are described in the Primary Agreement.
Section 11 UNITED STATES GOVERNMENT LICENSING PROVISIONS
If Licensee is the United States Government or a United States Government agency, then this section
also applies. Licensee's use, duplication or disclosure of the Software and Documentation under
Licensor's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1)
and (2) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 (JUNE 1987),
if applicable, unless they are being provided to the Department of Defense. If the Software and
Documentation are being provided to the Department of Defense, Licensee's use, duplication, or
disclosure of Software and Documentation is subject to the restricted rights set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT
1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice,
or other notice referring to this Agreement. The provisions of this Agreement will each continue to apply,
but only to the extent that they are consistent with the rights provided to the Licensee under the
provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and
procurement transaction.
Section 12 GENERAL
12.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be
construed as an admission or presumption that public disclosure of the Software or any trade secrets
associated with the Software has occurred.
CPA.FINAL.Set.1.10.05.revision.doc 3
Motorola Contract No.
12.2. COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regulations,
including export laws and regulations of the United States. Licensee will not, without the prior
authorization of Licensor and the appropriate governmental authority of the United States, in any form
export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or
technical data or direct or indirect products sold or otherwise furnished to any person within any territory
for which the United States Government, or any of its agencies, at the time of the action, requires an
export license or other governmental approval. Violation of this provision will be a material breach of this
Agreement, permitting immediate termination by Licensor.
12.3. ASSIGNMENTS. Licensor may assign any of its rights or subcontract any of its obligations under
this Agreement, or encumber or sell any of its rights in any Software, without prior notice to or consent of
Licensee.
12.4. GOVERNING LAW. This Agreement will be governed by the laws of the United States to the
extent that they apply and otherwise by the laws of the State to which the Software or Products are
shipped if Licensee is a sovereign government entity, or the laws of the State of Illinois if Licensee is not a
sovereign government entity.
CPA.FINAL.Set.1.10.05.revision.doc 4
Motorola Contract No.
Exhibit B
Technical and Implementation Documents
Exhibit B-1
Please see the attached equipment list dated January 10, 2005.
CPA RNAL.Set.1.10.05.revision.doc 5
Motorola Contract No.
David Hudik
Elgin Fire Department
10-Jan-05
550 Summit Street
Elgin, IL 60120
Dear Dave,
Please find the pricing you requested for the equipment at the new fire station.
Model # Description Extended List Price Price
XTL5000 Diaital Console - W7
1 L20URS9PW 1 N 10-35W 762-870MHZ XTL 5000 CONSOLETTE $2,580.00 $2,064.00
1 G806 ENH: SOFTWARE ASTRO DIGITAL CAI OPERATION $515.00 $412.00
1 G51 ENH:SMARTZONE OPERATION $1,500.00 $1,200.00
1 G361 ENH:ASTRO PROJECT 25 TRUNKING SOFTWARE $300.00 $240.00
1 G114 ENH: DIGITAL ID DISPLAY $75.00 $60.00
1 G80 ADD:W7 HW SETUP CONSOLETTE $589.00 $471.00
1 L146 ADD:TONE REMOTE CONTROL XTL5000 $475.00 $380.00
1 SVC209 PROGRAMMING AND OPTIMIZATION $75.00 $75.00
Handsets
10 L3213 MC1000 BASIC TONE DESKSET $ 499.00 $4,491.00
Installation
INSTALLATION AND LABOR $ 6,385.00 $6,385.00
This installation price includes the Yagi Antenna, CAT5 cable,
installation of the desksets throughout the fire station, and running
the CAT5 cable throughout the fire station.
ITOTAIL FOR EQUIPMENT AND INSTALLATION $15,778.00
February 4, 2005
TO: Mayor and Members of the City Council .
FROM: Olufemi Folarin, Acting City Manager sAFF �MMUN��,r
Michael Falese, Fire Chief
SUBJECT: Purchase of a Motorola XLT5000 Digital Consolette Radio, Ten MC1000
Deskset Radios, and CAT 5 Wiring for Fire Station 6.
PURPOSE
The purpose of this memorandum is to provide the Mayor and members of the City Council with
information to consider an exception to the procurement ordinance with Motorola for the
purchase of a Motorola XLT5000 Digital Consolette radio, 10 MC1000 deskset radios and CAT
5 wiring for Fire Station 6.
RECOMMENDATION
It is recommended that the purchase of a Motorola XLT5000 Digital Consolette radio, 10
MCI 000 deskset radios, and CAT 5 wiring be authorized from Motorola in the amount of
$15,778.20.
BACKGROUND
During 2004, the City Council authorized the construction of Fire Station 6. Each fire station is
equipped with a similar base station radio and remote handsets for communication with fire
dispatch and other Elgin Fire Department radios. This purchase will authorize the City Manager
to place an order for a Motorola XLT5000 Digital Consolette radio, 10 MC1000 deskset radios
and CAT 5 wiring for Fire Station 6.
Motorola is the sole provider of this equipment. It is imperative that all of the terminals and radio
equipment are kept identical for the maintenance and updates of these units.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None
r
Exception to procurement ordinance-Motorola
February 4, 2005
Page 2
FINANCIAL IMPACT
The total purchase price of a Motorola XLT5000 Digital Consolette radio, 10 MCI 000 deskset
radios, and CAT 5 wiring will be $15,778.20. The total budget for this project is $3.77 million
with approximately$3.57 million spent and encumbered to date. There are sufficient funds
budgeted and available ($17,508) in account number 380-0000-795.92-36 (2000 G.O. Bond
Projects), project number 289505 (Fire Station 6), to make this purchase.
LEGAL IMPACT
The proposed contract is an exception to the procurement ordinance and requires a two thirds
vote by Council for approval.
ALTERNATIVES
1. Purchase the base station and handset radios from Motorola.
2. Solicit bids for similar products and have a mix of equipment for this use.
Respectfully submitted for Council consideration.
MWF/wmb
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