06-203 Resolution No.06-203
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH
MOTOROLA, INC. FOR THE PURCHASE OF PORTABLE AND
MOBILE RADIOS FOR THE FIRE DEPARTMENT
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, 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 the purchase of portable and mobile radios for the fire department,a
copy of which is attached hereto and made a part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: August 23, 2006
Adopted: August 23, 2006
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Dolonna Mecum
Dolonna Mecum, City Clerk
}
Standard Terms and Conditions of Sale
✓ 1. Scope. Motorola,Inc.or Printrak International,Inc.,a Motorola company("Seller")will sell to Customer and Custo will purchase from Seller the
equipment,parts,software,or services related to the equipment(e.g.,installation)described in Seller's Proposal dated ne 06 2006. These terms
and conditions, together with the Proposal, comprise the "Agreement" Customer may indicate its acceptance of this Agreement by signing below or by
issuing a purchase order that refers to either the Proposal or to a Customer solicitation to which the Proposal responds. Only these terms and conditions apply
to the transaction,notwithstanding any inconsistent or additional terms and conditions contained in the purchase order or Customer solicitation.
2. Price and Payment Terms. The Contract Price is U.S. $13,492.67, excluding applicable sales, use, or similar taxes and freight. Seller will submit
invoices to Customer for products when they are shipped and,if applicable,for services when they are performed. Customer will make payments to Seller
within twenty(20)days after the invoice date. Seller will pre-pay and add all freight charges to the invoices. Title and risk of loss to equipment or parts will
pass to Customer upon shipment. Title to software will not pass to Customer at any time. Seller will pack and ship all equipment,parts or software in
accordance with good commercial practices.
3. Software. If this transaction involves software,any software owned by Seller("Motorola Software")is licensed to Customer solely in accordance with
Seller's Software License Agreement("SLA!'),which is attached as Exhibit A and incorporated herein by this reference. Any software owned by a third party
("Non-Motorola Software")is licensed to Customer in accordance with the standard license,terms,and restrictions of the copyright owner unless the owner
has granted to Seller the right to sublicense its software pursuant to the SLA,in which case the SLA applies and the owner will have all rights and protections
under the SLA as the Licensor. Seller makes no representations or warranties of any-kind regarding Non-Motorola Software.
4. Express Limited Warranty and Warranty Disclaimer. Motorola Software is warranted in accordance with the SLA. For one year from the date of
shipment, Seller warrants that the equipment and parts under normal use and service are free from material defects in material and workmanship. These
warranties do not apply to(i)defects or damage resulting from: use of the equipment,part,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 Seller;or 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 or parts 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. These express
limited warranties are extended by Seller to the original user purchasing the products for commercial, industrial, or governmental use only, and are not
assignable or transferable. If Customer gives notice of a valid warranty claim before the expiration of the warranty period,Seller will(at its option and at no
additional charge to Customer)repair the defective product,replace it with the same or equivalent product,or refund the price of the defective product. This
action will be the full extent of Seller's liability for a warranty claim. 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 Seller. THESE WARRANTIES ARE THE COMPLETE WARRANTIES AND
ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. SELLER DISCLAIMS ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING
THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. Delays and Disputes. Neither party will be liable for its non-performance or delayed performance if caused by an event,circumstance,or act of a third
party that is beyond a party's reasonable control (a"Force Majeure"). Each party will notify the other if it becomes aware of a Force Majeure that will
significantly delay performance. The parties will try to settle any dispute arising from this Agreement(except for a claim relating to intellectual property or
breach of confidentiality)through good faith negotiations. If necessary,the parties will escalate the dispute to their appropriate higher-level managers. If
negotiations fail,the parties will jointly select a mediator to mediate the dispute and will share equally the mediation costs. Neither party will assert a breach
of this Agreement without first giving the other party written notice and a thirty(30)day period to cure the alleged breach.
6. LIMITATION OF LIABILITY. Except for personal injury or death, Seller's total liability, whether for breach of contract, warranty,
negligence,strict liability in tort,or otherwise,will be limited to the direct damages recoverable under law,but not to exceed the purchase price of
the products or services for which losses or damages are claimed. SELLER 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 PRODUCTS,OR THE PERFORMANCE OF SERVICES BY SELLER PURSUANT TO THIS AGREEMENT. No action for contract
breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one year after the accrual of the cause
of action. This limitation of liability survives the expiration or termination of this Agreement.
7. Confidential Information and Preservation of Proprietary Rights. The SLA governs software confidentiality. As to any other information marked
"Confidential"and provided by one party to the other,the receiving party will maintain the confidentiality of the information and not disclose it to any third
party; take necessary and appropriate precautions to protect the information; and use the information only to further the performance of this Agreement.
Confidential information is and will remain the property of the disclosing party,and no grant of proprietary rights in the confidential information is given or
intended. Seller, any copyright owner of Non-Motorola Software, and any third party manufacturer own and retain all of their proprietary rights in the
equipment,parts and software,and nothing herein is intended to restrict their proprietary rights,. Except as explicitly provided in the SLA,this Agreement
does not grant any right,title or interest in Seller's proprietary rights,or a license under any Seller patent or patent application.
8. Miscellaneous:Each party will comply with all applicable laws, regulations and rules concerning the performance of this Agreement or use of the
products. Customer will obtain and comply with all FCC licenses and authorizations required for the installation,operation and use of the products. 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
installed. This Agreement constitutes the entire agreement of the parties regarding this transaction,supersedes all previous agreements and proposals relating
to this subject matter,and may be amended only by a written instrument executed by both parties. Seller is not making,and Customer is not relying upon,any
representation or warranty except those expressed herein. There are no certifications or commitments binding Seller applicable to this transaction unless they
are in writing and signed by an authorized signatory of Seller.
Seller Cust CITY OF ELGIN
f �By: By'Name and Ti le: �d. CEI Vice President Name and Title: luf emi rin City Mana ex'
Date:Jul 21 2 Date: ust 2 2006
Short Form.FIN AL.1.10.05.revision.doc
WoTOROLA
r
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 Standard Terms and Conditions of Sale 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,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
Software License 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 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, Therefore,
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 this temporary transfer and it 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.
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 but 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, 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 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(i)the Warranty Period for
Printrak's LiveScan software will be 90 days;and(ii)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.
Short Form.FINAL.1.10.05.revision.doc
6:2. - During the applicable Warranty Period, Licensor warrants that the unmodified Software, when used properly and in accordance with 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.
Section 8 TRANSFERS
Licensee will not transfer Software 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 begins 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. In addition to
termination,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 an agency of the United States Government). Licensee acknowledges that its breach of this
Agreement will result in irreparable harm to Licensor for which monetary damages would be inadequate. 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 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(NNE 1987),if applicable,unless
they are being provided to the Department of Defense. If the Software and Documentation are being provided to the Department of Defense,
Licensee's use,duplication,or disclosure of Software and Documentation is subject to the restricted rights set forth in subparagraph(c)(1)(ii)of the
Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988),if applicable. The Software and Documentation
may or may not include a Restricted Rights notice,or other notice referring to this Agreement. The provisions of this Agreement will continue to
apply,but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned
above,as applicable to the particular procuring agency and procurement transaction.
Section 12 GENERAL
12.1. COPYRIGHT NOTICES.The existence of a copyright notice on the Software will not be construed as an admission or presumption that public
disclosure of the Software or any trade secrets associated with the Software has occurred.
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.
Short Form.FINAL.1.10.05.revision.doc
Agenda Item No.
a ° City of Elgin
August 4, 2006
TO: Mayor and Members of the City Council
FROM: Olufemi Folarin, City Manager
Michael Falese, Fire Chief
SUBJECT: Purchase of Radios from Motorola
PURPOSE
The purpose of this memorandum is to provide the Mayor and members of the City Council with
information to consider a purchase of mobile and portable radios from Motorola.
RECOMMENDATION
It is recommended that the Mayor and City Council authorize the purchase of one mobile and
three portable radios from Motorola in the amount of$13,495.
BACKGROUND
The purchase will be for one mobile and three portable radios to operate on three mutual aid fire
ground channels and to communicate with the South Elgin Fire Protection District and the Kane
County Office of Emergency Management. The one mobile radio will replace three outdated
radios that cannot be programmed on the frequencies currently used by other emergency
agencies. The three portables will be placed on two emergency response vehicles to allow for
interoperable communications with other emergency agencies when the crew is away from the
vehicle.
Motorola is the sole provider of this equipment. It is imperative that all of the mobile and
portable radio equipment is kept identical for the maintenance and updates of these units.
This is an exception to the procurement ordinance based on section 5.02.020 Section B.9, stating
that "contracts authorized by a vote of 2/3 of all members of the city council then holding office
upon a finding by the city council that an exception to the requirements of the procurement
ordinance is necessary and in the best interests of the city".
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None
David Hudik
Elgin Fire Department
550 Summit Street
Elgin,IL 60120
Phone: 847-931-6186
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s $1,726.40 $5,179.20
$412.00 $1,236.00
$1,200.00 $3,600.00
$240.00 $720.00
IN FIRE XTS5000 Di ital Portable Radio Model ID-:.VON o $180.00
O DIGITAL XTS5000 II 136-174MHZ 1-6W 850 CHAN LIMITEDKEYP 0
ELGIN PORTABLE ASTR $60.
3 H18KEF9PW6 N ADD:SOFTWARE AST RO DIGITAL CAI OPERATION $37.60 $112.80
3 0806 ADD:SMARTZONE SYSTEM SOFTWARE $0.00 $0.00
3 H38 ENH:PROJECT 25 9600 BAUD TRUNKING SOFTWARE $445.05
3 Q361 $148.35 $124.20
3 H14 ENH:ENHANCED DIGITAL ID DISPLAY $41,40 $341.55
ALT:BATTERY IMPREAL NIMH
VHF 150.8-162 MHZ�(NAD6 67) $113.85 $285.00 FM 175oMAH
3 0393 ALT:ANTENNA HE $95.00
3 H129 COMMANDER PLUS REMOTE SPEAKER MIC $7.59 $22.77
3 RMN5023 CASE CARRYING HIGH ACTIVITY 110V
3 NTN8381 CHARGER,IMPRESS SMART RAPID RATE, $12,246.57
3 NTN1873 BA RERY IMPRES SMART NICD 1525 MAH(-30C)FM
Subtotal
3 NNTN4436 BELT CLIP KIT EQUIPMENT&INSTALL pIION
3 NTN8266
$ 408.10 $ 1,224.30
$ 5.45 $ 21.80
ELGIN
FIRE CDM1250 VHF 136- 174 MHz 45 watts 64 Channels $ 19246-10
3 AAM25KKD9AA2 N CDM 1250 VHF Subtotal EGutPMENT&INSTKkCL ON
4 RLN4830A
710N $13,492.67
Total EQUIPMENT&INSTALLA