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DATE: October 19, 2016
Citv Council Staff Report
Consent Calendar
SUBJECT: AUTHORIZING PURCHASE AND INSTALLATION OF ONE ADDITIONAL
RADIO CONSOLE FOR THE POLICE AND FIRE DISPATCH CENTER
FROM: David Ready, City Manager
BY: Police Department
SUMMARY
The Palm Springs Police Department's dispatch center received funding from the State
of California Department of General Services Telecommunications Division 9-1-1
Emergency Communications Office to update the 9-1-1 telephone system. The funds
received allowed the addition of one (1) 9-1-1 phone position/workstation to the City's
dispatch center. The purchase of an additional radio console was not paid for by the
State. The purchase of one additional radio console would update the dispatch center
to six (6) fully functional dispatch positions.
RECOMMENDATION:
1. Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET FOR FISCAL
YEAR 2016-17 TO TRANSFER $81,780 FOR AN ADDITIONAL RADIO CONSOLE
FOR THE POLICE AND FIRE DISPATCH CENTER."
2. Approve the sole -source purchase and installation of one (1) new Motorola
MCC7500 radio console in an amount not -to -exceed $81,780 from Motorola
Solutions, Inc.
3. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
Every five years, the Palm Springs Police Department's dispatch center receives
funding from the State of California Department of General Services
Telecommunications Division 9-1-1 Emergency Communications Office. The funding
amount each dispatch center receives is based upon the 9-1-1 call volume handled.
The funds may only be used to upgrade of the 9-1-1 phone system, and any items
directly related to the 9-1-1 phone system (furniture, chairs, and headsets).
ITEM NO. lQ
City Council Staff Report
October 19, 2016 Page 2
Purchase and Installation of One Radio Console
The funds received this period allowed the purchase of one additional 9-1-1 phone
position/workstation for the dispatch center. However, this is a workstation only and the
funds did not cover equipment for Computer Aided Dispatch (CAD) and Radio
equipment.
The purchase of one radio console would provide the dispatch center with a total of six
(6) fully functional dispatch positions/workstations (phone, CAD, and radio). There will
be five (5) fully functional dispatch positions/workstations on the dispatch "floor" and one
(1) fully functional dispatch position/workstation in the Dispatch Supervisor's office.
Together all six (6) will greatly enhance the City's ability to dispatch critical emergency
service during major incidents or disasters.
The City is a member of the Eastern Riverside County Interoperable Communications
Authority (ERICA) system and the sole -source provider of the approved
communications equipment for all participating agencies is Motorola Solutions, Inc.
Motorola is an authorized sub -contractor and the approved sole -source ERICA system
equipment installer and maintenance provider is ComSerCo Inc. of Riverside, CA. As
such, pursuant to the provisions of Procurement and Contracting Section 7.04.020 of
the Palm Springs Municipal Code, the City Council may authorize this sole -source
purchase and installation of the additional radio console to Motorola Solutions, Inc.
FISCAL IMPACT:
Sufficient funds are available in Fund Balance for Fund 136 (Emergency Response Fund)
for the purchase the radio console and related hardware which are restricted funds for the
9-1-1 Public Safety System. A resolution to appropriate funds for the purchase amount of
$81,780 has been prepared for approval by the City Council.
Bryan Reyes, Policecthief
David H. Ready, City Moore
Attachment:
1) Proposed BudgetAmendment
2) Motorola Proposal
02
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AMENDING THE BUDGET
FOR FISCAL YEAR 2016-17 TO TRANSFER $81,780 FOR
AN ADDITIONAL RADIO CONSOLE FOR THE POLICE
AND FIRE DISPATCH CENTER.
WHEREAS, Resolution No. 24034 approving the budget for the Fiscal Year
2016-17 was adopted on June 1, 2016; and
WHEREAS, the City Manager has recommended, and the City Council desires to
approve, certain amendments to said budget.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS
DOES HEREBY RESOLVE TO:
Authorize the Director of Finance to record inter -fund cash transfers as required in
accordance with this Resolution, and that Resolution No. 24034, adopting the Fiscal
Year 2016-17 budget is hereby amended as follows:
SECTION 1. ADDITIONS
Fund Activity Account
136 50338
Emergency Response 1291 Emergency
Fund Emergency Response Dispatch Console
Purpose: Establish funding for
SECTION 2. SOURCE
Fund Activity Account
136
Emergency Response 29301
Fund
ADOPTED THIS 191h DAY OF OCTOBER, 2016
ATTEST:
Amount
$81,780
Amount
$81,780
David H. Ready, City Manager
James Thompson, City Clerk
03
Resolution No
Page 2
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS)
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, hereby certify that
Resolution No. is a full, true and correct copy, and was duly adopted at a
regular meeting of the City Council of the City of Palm Springs on this 19`h day of
October, 2016, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
M
SECTION 1
System Description
MCC 7500 SOLUTION OVERVIEW
Motorola's proposed dispatch solution for the City of Palm Springs, CA is our MCC 7500 Dispatch Console,
offering IP-based seamless connectivity between Palm Spring's dispatch operators and field personnel. The MCC
7500 Dispatch Console will provide Palm Springs with a scalable and flexible system architecture, sophisticated
network management and security, and an easy migration to future capabilities.
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Figure 1 - 1: MCC 7500 Dispatch Console, including desktop PC, headset, speakers, display, keyboard, mouse,
microphone, and voice processor module
The proposed solution for Palm Springs includes one MCC 7500 Dispatch Console at Palm Springs Dispatch
Center. Table 1 - 1 summarizes the proposed console equipment and peripherals included in our proposal. All
licenses necessary for operation have also been included as part of the solution.
Table 1 -1: Proposed Equipment at Palm Springs Dispatch Center
I Personal Computerwith Windows 7
I Voice Processor Module (VPM)
I Computer Display with 22" Touch Screen
? Headset Jacks
I Headset
Desktop Speakers
I Footswitch
I Gooseneck Microphone
I I Dual Instant Recall Recorder Port
Dual Instant Recall Recorder
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CONSOLE CONNECTIVITY
7 he proposed MCC 7500 Dispatch Console will connect into the ASTRO 25 master site at ERICA ASTRO 25. A
conceptual diagram of the proposed console connectivity has been provided in Figure 1 - 2.
K�8 Eth�rne' 10 Ethernet IN" Console Site Link to
LAN Switch Console Site Router Master Site IWANI
Figure I.2: System connectivity for proposed solution.
The solution will rely on microwave Ethernet links provided by Palm Springs for backhaul connectivity.
City of Palm Springs, CA
MCC 7500 Addition
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Page 4 of 40
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ELEMENTS OF THE MCC 7500
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Figure t - 3: MCC 7500 Dispatch Console Components
As proposed to Palm Springs, each MCC 7500 Dispatch Console includes the following elements:
Personal Computer (PC)
The personal computer included with the console
position runs Microsoft Windows 7, and is certified by
Motorola to ensure that the dispatch software, voice
cards, and secure cards are properly installed and
configured.
Computer Display
A 22" Computer Display with Touch Screen is provided
with each MCC 7500 dispatch console.
Headset Jack
The dispatch console supports two headset jacks, both
push -to -talk (PTT) and non-PTT-enabled for
simultaneous use by the dispatch operator and a
supervisor. The headset jack contains two volume
controls for the separate adjustment of received radio
and telephone audio.
Headset
The proposed headset consists of two elements. The
headset base includes an audio amplifier, a push -to -talk
switch, and a long cord that connects with the dispatch
console. The headset top consists of the earpiece and
microphone, as well as a short cable that connects to the
headset base.
Gooseneck Microphone
The microphone controls the dispatch console's general
transmit and monitor features through two buttons on its
base. The microphone can be fastened down or left
loose. It can be used alone or in conjunction with a
headset.
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Voice Processor Module (VPM)
The secure VPM provides vocoding and audio
processing for the dispatch console, and also serves
as the hub for the console's speakers, microphone,
footswitch, headsetjacks, and recorders.
Footswitch
Each dispatch console includes a dual pedal
footswitch that can be configured to control general
transmit and monitor functions.
Headset Port
The telephone/headset port allows the connection of
an external telephone to the dispatch console,
allowing the operator to use a single headset to
communicate on both the radio system and a
telephone system
Desktop Speakers
Two audio speakers have been included with each
console position and can be configured to transmit
audio from a specific talkgroup or set of talkgroups.
Each speaker is a self-contained unit, with individual
volume controls and can be placed on a desktop, or
mounted on a rack or computer display.
Instant Recall Recorder (IRR) Port
The IRR port enables the connection of a short -tern
audio recorder, which allows the recording and
playback of recent audio received by the console.
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ADDITIONAL EQUIPMENT
Per your request, we have included the following additional items to extend the functionality of the MCC 7500 to
meet Palm Springs needs.
Instant Recall Recorder
The Dual Instant Recall Recorder (IRR) software allows users to record two channels, radio, telephone, radio
and telephone conversations, digitally on a personal computer. The system uses an individual PC where the
recording tiles are stored on the PC's hard drive. The Instant Recall Recorder keeps a database of all recordings.
which allows for convenient "point and click" search and playback of any recordings. Once the software is
installed on your PC, the functions are controlled through a Graphical User Interface (GUI) icon.
In addition, the Instant Retrieval Recorder has numerous special features; such as the ability to attach text
documents to recordings, a security system, multiple playback (which allows the user to playback more than
one recording at the same time), and real time audio monitor (which allows the user to listen to the last ten
minutes of a recording in progress without being required to stop recording to be able to listen).
The Instant Retrieval window allows the user to immediately access the recordings. The Instant Retrieval
window initially opens on the newest recordings, but allows access to any recordings on the system. The
recording can also be saved to the . WA V file that the user specifies. This is useful if the user wants to save a
specific recording to a CD or hard disk.
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SECTION 2
Implementation Plan
STATEMENT OF WORK
Motorola will install and configure the proposed equipment. Table 2 - t describes the tasks involved with
installation and configuration.
Table 2-1: Project Tasks and Responsibilities
X Assign a Project Manager as a single point of contact.
X Conduct Kickoff meeting
Defined Project Team
X Review the operational requirements.
X Discuss the proposed cutover plan.
X Establish a defined baseline for the system design and identify any special product
requirements and their impact on system implementation.
X Review the System Design, Statement of Work, Project Schedule, and Acceptance Test
Plans, and update the contract documents accordingly.
X Conduct site evaluations to capture site details of the system design and to determine site
readiness.
X Determine each site's ability to accommodate proposed equipment based upon physical
capacity.
X Submit design review documents for approval These documents form the basis of the
system, which Motorola will manufacture, assemble, stage, and install
X Approve design review documents.
X Process equipment order.
X Manufacture equipment.
Design review document delivered to and approved.
Equipment ordered and manufactured ready to ship to destination
X Ship all equipment to the field
X Provide secure warehousing for Motorola -provided equipment, at a location central to the
sites.
X Coordinate receipt of Motorola -provided equipment.
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X Receive Motorola -provided equipment and store in warehouse. ✓
X Inventory Motorola -provided equipment. If
Equipment received and ready for installation
X Provide Site Access. I ✓
X Provide necessary buildings, equipment shelters, and towers for installation of the new
equipment. ✓
X Ensure adequate electrical power in proper phase and voltage at the sites ✓
X Ensure that sites meet space, grounding, power, and connectivity requirements for installation ✓
of equipment as required by R56 standards.
X Obtain all licensing and permitting for sites. ✓
Access, permitting, and licensing for sites of equipment installation
X Deliver equipment from warehouse to site
✓
X Provide network link resources for console connectivity to master site
✓
X Verify site link performance, prior to the interconnection of the Motorola -supplied equipment to
✓
the link equipment.
X Provide any required system interconnections that are not specifically outlined in the system
✓
design, including dedicated phone circuits, microwave links or other types of connectivity
X Install and brace equipment racks In accordance with R56 standards and statedocal codes
✓
X Install and terminate all network cables between site routers and network demarcation points,
✓
including microwave, leased lines, and Ethernet.
X Ensure that Type 1 and Type 2 AC suppression is installed to provide protection to the fixed
✓
network equipment and console operator positions.
X Install and terminate all power cabling from AC -powered equipment to surge suppression
✓
panels at the top of the rack.
X Connect the appropriate equipment to the ground system In accordance with Motorola's R56
✓
Site Installation standards
X Apply Motorola -provided labeling to field installed equipment, racks, and cables.
./
X Perform preliminary audit of installed equipment to ensure compliance with requirements.
✓
X Installation and performance of equipment and work not provided by Motorola.
✓
X Coordinate activities of Motorola subcontractors
✓
X Coordinate activities of non -Motorola subcontractors
✓
All equipment installed and ready for optimization
dentiiy circuits for connectio
X n to console and a demarcation point located within 25 feet of the
console interface.
X Connect console to circuit demarcation points ✓
X Ensure existing conventional stations are configured for 4 wire operation. ✓
X Install PC workstation w/ keyboard and mouse, and monitor. ✓
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X Install a Voice Processor Module (VPM), two speakers, dual PTT footswitch, and gooseneck
microphone in accordance with R56 Standards per position on desktop surface.
X Install all associated cabling in appropriately -sized split loom.
X Install extension jumpers for mouse, keyboard, and monitor.
X Install two headset jacks per position.
X Install 0 new equipment racks.
X Install a dedicated Local Area Network (LAN) to connect the proposed console positions.
X Develop templates for console programming.
X Perform console programming.
Console equipment installed and accepted
Specify frequencies for proposed consolettes and obtain FCC licenses as necessary.
X Note: Motorola is only responsible for interference caused by Motorola -provided transmitters
to the Motorola -provided receivers. Should the proposed equipment experience interference,
Motorola can be contracted to investigate the source and recommend solutions to mitigate the
issue
X Develop consolette programming template.
X Determine consolette locations.
Provide antenna -mounting location at each of the RF consolette points specified, while
providing an adequate means of feed -line routing and support
X
Note: Motorola assumes that there will be good RF coverage where the consolettes are
installed. No coverage guarantees are included with this offering.
Install RF local consolettes Identified in the equipment list Install line (not greater than 100
X feet in length) and antenna system (connectors, coax grounding kit, antenna, and surge
protection).
X Properly connectorize and ground the cabling, which will be run to the outdoor antenna
location using the least obtrusive method
X Supply a dedicated 115 VAC grounded electrical outlet rated at 15 A to power the consolette
and remote control device. Provide an outlet within 6 feet of the unit.
X Supply a ground point of 5 ohms or less located in the immediate vicinity (within six feet) of
the finalized location of the antenna and consolette.
X Program all consolettes according to the developed programming template, prior to delivery.
Consolette equipment installed and accepted
X Verify that all equipment is operating properly, and that all electrical and signal levels are set
accurately.
X Verify that all audio and data levels are at factory settings.
X Verify communication interfaces between devices for proper operation.
X Ensure that functionality meets manufacturers' specifications and complies with the final
configuration established during design review or system staging
X Set up the consoles to perform dispatching operations on the radio system.
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Completion of system optimization
X Verify the operational functionality and features of the consoles and the system supplied by ✓
Motorola, as contracted.
X Witness the functional testing
X If any major task as contractually described fails, repeat that particular task after Motorola ✓
determines that corrective action has been taken.
X Document the results of the acceptance tests and present for review. ✓
X Review and approve final acceptance test results.
Successful completion of functional testing, approval of functional testing, and System Acceptance
X Develop a mutually agreed upon cutover plan based upon discussions held during the Design
Review.
Conduct cutover meeting with user group representatives to address both how to mitigate
X technical and communication problem impacts to the users during cutover and during the
general operation of the system.
X Notify, the user groups affected by the cutover (date and time).
X During cutover, follow the written plan and implement the defined contingencies, as required
x Conduct a roll call of all users working during the cutover, in an organized and methodical
manner.
x Provide Motorola with the subscriber Information for input into the system database and
activation, as required.
Successful migration from old system to new system
Provide an electronic as -built system manual on CD The documentation will include the
following.
System, site, and rack diagrams
X • Equipment inventory list
Functional acceptance test plan test sheets and results
Console programming template
Service and operator manuals
Documentation will be delivered in Adobe PDF format
X Receive and approve documentation.
X Execute Final Project Acceptance
All required documents are provided and approved.
Final Project Acceptance
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SECTION 3
Lifecycle Support Services
To maintain Palm Spring's equipment, Motorola offers our standard commercial warranty as set forth in the
Communications System Agreement.
In addition to the standard warranty, Motorola is including customized services during the warranty, as summarized in Table
3- 1. Upon request, Motorola will provide detailed statements of work that fully describe these proposed services.
A description of the proposed services are included in this section.
Table 3-1: Overview of Proposed Services
Technical Support
Included
Included 6
Years
Infrastructure Repair
Included
Included 6
Years
Onsite Infrastructure Response
Included
Included 6
Years
Dispatch and Incident Management
Included
Included 6
Years
Security Update Service
Included
Included 6
Years
Lifecycle Planning
Included
Included 6
Years
System Upgrade Agreement II
Included
Included 6
Years
Technical Support
Technical support provides centralized remote telephone support for technical issues through the experienced
system technologists at Motorola's Solutions Support Center (SSC). Once Palm Spring's personnel call for
support, a support case will be opened and logged. The SSC technologists will use their experience, a
consolidated solutions database, in-house test labs, and development engineers to ensure the rapid resolution of
the issue. Incident management and escalation procedures are in place to ensure that contracted response and
restore times are met. Since each incident is monitored and recorded, the resulting metrics can be analyzed to
ensure ongoing system performance.
Infrastructure Repair
Infrastructure Repair service provides for the repair of all Motorola -manufactured equipment, as well as
equipment from third -party infrastructure vendors. All repair management is handled through a central location
eliminating your need to send equipment to multiple locations.
Comprehensive test labs replicate your network in order to reproduce and analyze the issue. State-of-the-art,
industry -standard repair tools enable our technicians to troubleshoot, analyze, test, and repair your equipment.
Our IS09001 and TL9000-certified processes and methodologies ensure that your equipment is quickly returned
maintaining the highest quality standards.
Service agreements allow you to budget your maintenance costs on an annual basis. Equipment covered under
service agreements also receives higher service priority, which results in quicker repair times.
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Onsite Infrastructure Response
Onsite Infrastructure Response provides local qualified technicians who arrive at your location to diagnose and
restore the system. Following proven response and restore processes, Motorola's Call Center contacts the local
authorized service center in Palm Spring's area and dispatches a qualified technician. Our case management and
escalation process ensures that arrival of the technician on -site and system restoration comply with contracted
response times. If the technician is unable to resolve the issue on site, the case is escalated to the Solutions
Support Center (SSC) or product engineering teams for support as needed.
Dispatch and Incident Management
Dispatch ensures that local, trained and qualified technicians will arrive at the customer's location to diagnose
and restore their communications network. When a notification occurs from an automatic alarm or through a
scheduled maintenance notification, Motorola's Call Center assigns a number to the incident and triages the issue
with the appropriate support team. The Call Center oversees all aspects of the event and incident management
process during repair and restoration, tracking open issues to ensure that they are managed to resolution within
the required time frame. This continuous oversight provides a record of events associated with each case that can
be presented in the form of incident activity reports. This incident management system can also be accessed
remotely via Motorola Online portal.
Security Update Service
Security updates appropriate for the commercial environment are often designed without mission -critical systems
in -mind. Motorola will ensure that commercial anti -virus definitions and operating system software patches are
compatible with the proposed dispatch consoles. Our expert network security technologists analyze, test, and
validate the latest security software updates in a dedicated test lab and will provide Palm Springs with regular
electronic updates of compatible updates.
Lifecycle Planning
The proposed dispatch console solution integrates equipment from both Motorola and third -party manufacturers.
Since it leverages products from multiple original equipment manufacturers (OEM), individual components will
require update and replacement due to normal advancements in technology. Planning for these regular updates
and upgrades will make the system easier to repair, enable consistent optimization, and maintain network
security, In addition, it will enable Palm Springs to identify the need for various services to maintain Palm
Spring's consoles: e.g., weekly anti -virus definition updates, monthly or quarterly patches, quarterly information
assurance remediation, and annual major system releases.
System Upgrade Agreement II
Motorola's system upgrade agreement (SUA 11) provides up to one system upgrade of Palm Spring's equipment
every two contract ) ears. The SUA 11 is a complete package of hardware, software and implementation services
required to update the proposed dispatch consoles to an eligible system release with an equivalent level of
functionality. These system updates will ensure the availability of repair services support to OEM components,
optimization of system expansion, and may include operational enhancements if included with a system release
upgrade. The SUA service includes the professional implementation services necessary to guarantee that the
system upgrades cause minimal interruption to system operation, and as little reliance on Palm Spring's
resources as possible.
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Motorola Solutions Confidential Restricted
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to the restrictions on the cover page. Page f2 of 40 14
SECTION. 4
PRICING
The following table provides a pricing breakdown for the proposed equipment and services.
Table 4-1: Pricina breakdown for proposed equipment and services
Equipment $ 61,344
Engineering and Installation Services $ 31,176
Project Management Services $3,034
System Discount ($7,702)
Tax (9%) $3,928
TOTAL SYSTEM $81,780
The following table provides a pricing breakdown for Post Warranty/Maintenance Years 2-7. The services
included are a limited suite of Post Warranty/Maintenance services provided on the ERICA AsTRO 25.
The following table provides a pricing breakdown for SUA II Years 2-7.
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SECTION 5
Contractual Documentation
Below please find attached our Communications System Agreement, including a standard Software License
Agreement, a Payment Schedule for the proposed solution, and Service Agreement Terms and Conditions for the
included above -warranty services.
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Communications System Agreement
Motorola Solutions, Inc. ("Motorola") and City of Palm Springs, CA ("Customer") enter into this "Agreement,"
pursuant to which Customer will purchase and Motorola will sell the System, as described below. Motorola 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 Exhibits A, B. D, and E will be resolved in their listed order.
Exhibit A Motorola "Software License Agreement"
Exhibit B "Payment Schedule"
Exhibit D Service Statement(s) of Work and "Service Terms and Conditions" (If applicable)
Exhibit E "System Acceptance Certificate"
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
2.1. "Acceptance Tests" means those tests described in the Acceptance Test Plan.
2.2. "Administrative User Credentials" means an account that has total access over the operating system,
files, end user accounts and passwords at either the System level or box level. Customer's personnel with
access to the Administrative User Credentials may be referred to as the Administrative User
2.3. "Beneficial Use" means when Customer first uses the System or a Subsystem for operational purposes
(excluding training or testing).
2.4 "Confidential Information" means all information consistent with the fulfillment of this Agreement that is
(i) disclosed under this Agreement in oral, written, graphic, machine recognizable, and/or sample form, being
clearly designated, labeled or marked as confidential or its equivalent or (ii) obtained by examination, testing or
analysis of any hardware, software or any component part thereof provided by discloser to recipient. The nature
and existence of this Agreement are considered Confidential Information Confidential information that is
disclosed orally must be identified as confidential at the time of disclosure and confirmed by the discloser by
submitting a written document to the recipient within thirty (30) days after such disclosure. The written document
must contain a summary of the Confidential Information disclosed with enough specificity for identification
purpose and must be labeled or marked as confidential or its equivalent.
2.5 "Contract Price" means the price for the System, excluding applicable sales or similar taxes and freight
charges.
2.6. "Effective Date" means that date upon which the last Party executes this Agreement.
2.7. "Equipment" means the equipment that Customer purchases from Motorola under this Agreement.
Equipment that is part of the System is described in the Equipment List
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2.8 "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).
2.9. "Infringement Claim" means a third party claim alleging that the Equipment manufactured by Motorola or
the Motorola Software directly infringes a United States patent or copyright.
2.10. "Motorola Software" means Software that Motorola or its affiliated company owns.
2.11. "Non -Motorola Software" means Software that another party owns.
2.12. "Open Source Software' (also called "freeware" or "shareware") means software with either freely
obtainable source code, license for modification, or permission for free distribution
2.13. "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.
2.14. "Software' means the Motorola Software and Non -Motorola Software, in object code format that is
furnished with the System or Equipment.
2.15. "Specifications" means the functionality and performance requirements that are described in the
Technical and Implementation Documents.
2.16. "Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in the Technical and Implementation Documents.
2.1T "System" means the Equipment, Software, and incidental hardware and materials that are combined
together into an integrated system, the System is described in the Technical and Implementation Documents.
2.18. "System Acceptance' means the Acceptance Tests have been successfully completed
2.19. "Warranty Period" means one (1) year from the date of System Acceptance or Beneficial Use, whichever
occurs first.
Section 3 SCOPE OF AGREEMENT AND TERM
3.1. SCOPE OF WORK. Motorola will provide, Install and test the System, 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. If a
requested change causes an increase or decrease in the cost or time required to perform this Agreement, the
Parties will agree to an equitable adjustment of the Contract Price, Performance Schedule, or both, and will
reflect the adjustment in a change order. Neither Party is obligated to perform requested changes unless both
Parties execute a written change order.
33. 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 date of
Final Project Acceptance or expiration of the Warranty Period, whichever occurs last.
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3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. For three (3) years after the Effective Date, 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, passage of title and risk of loss to
Equipment, warranty commencement, and payment terms) will govern the purchase and sale of the additional
Equipment or Software. Title and risk of loss to additional Equipment will pass at shipment, warranty will
commence upon delivery, and payment is due within twenty (20) days after the invoice date. 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 https://businessonline.motorola.com and the MOL telephone
number is (800) 814-0601.
3.5 MAINTENANCE SERVICE. During the Warranty Period, in addition to warranty services, Motorola will
provide maintenance services for the Equipment and support for the Motorola Software pursuant to the
Statement of Work set forth in Exhibit D Those services and support are included in the Contract Price. If
Customer wishes to purchase additional maintenance and support services for the Equipment during the
Warranty Period, or any maintenance and support services for the Equipment either during the Warranty Period
or after the Warranty Period, the description of and pricing for the services will be set forth in a separate
document. If Customer wishes to purchase extended support for the Motorola Software after the Warranty
Period, it may do so by ordering software subscription services Unless otherwise agreed by the parties in
writing, the terms and conditions applicable to those maintenance, support or software subscription services will
be Motorola's standard Service Terms and Conditions, together with the appropriate statements of work.
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 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).
38. SUBSTITUTIONS At no additional cost to Customer, Motorola may substitute any Equipment,
Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications and is of
equivalent or better quality to the Customer. Any substitution will be reflected in a change order.
3.9. 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
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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
The Parties will perform their respective responsibilities in accordance with the Performance Schedule. By
executing this Agreement, Customer authorizes Motorola to proceed with contract performance.
Section 5 CONTRACT PRICE, PAYMENT AND INVOICING
5.1. CONTRACT PRICE. The Contract Price in U.S. dollars Is $<ContractPdce> If applicable, a pricing
summary is included with the Payment Schedule. Motorola has priced the services, Software, and Equipment as
an integrated system. A reduction in Software or Equipment quantities, or services, may affect the overall
Contract Price, including discounts if applicable
52. INVOICING AND PAYMENT. Motorola will submit invoices to Customer according to the Payment
Schedule. Except for a payment that is due on the Effective Date, 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 reference, the Federal Tax Identification Number for Motorola
Solutions, Inc. is 36-1115800.
53. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre -pay and add all freight charges to the
invoices. Title to the Equipment will pass to Customer upon shipment. Title to Software will not pass to
Customer at any time. Risk of loss will pass to Customer upon delivery of the Equipment to the Customer.
Motorola will pack and ship all Equipment in accordance with good commercial practices.
54 INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following
address:
The address which is the ultimate destination where the Equipment will be delivered to Customer is:
The Equipment will be shipped to the Customer at the following address (insert if this information is known):
Section 6 SITES AND SITE CONDITIONS
6.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement, Customer
will provide a designated project manager; all necessary construction and building permits, zoning variances,
licenses, and any other approvals that are necessary to develop or use the sites and mounting locations; and
access to the work sites or vehicles identified in the Technical and Implementation Documents as reasonably
requested by Motorola so that it may perform its duties in accordance with the Performance Schedule and
Statement of Work. If the Statement of Work so indicates, Motorola may assist Customer in the local building
permit process.
6.2. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and in
compliance with all applicable industry and OSHA standards To the extent applicable and unless the Statement
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of Work states to the contrary, Customer will ensure that these work sites have adequate: physical space; air
conditioning and other environmental conditions; adequate and appropriate electrical power outlets, distribution,
equipment and connections; and adequate telephone or other communication lines (Including modem access
and adequate Interfacing networking capabilities), all for the Installation, use and maintenance of the System.
Before installing the Equipment or Software at a work site, Motorola may inspect the work site and advise
Customer of any apparent deficiencies or non -conformities with the requirements of this Section This
Agreement is predicated upon normal soil conditions as defined by the version of E I.A. standard RS-222 in
effect on the Effective Date.
6.3. SITE ISSUES. If a Party determines that the sites identified in the Technical and Implementation
Documents are no longer available or desired, or if subsurface, structural, adverse environmental or latent
conditions at any site differ from those indicated in the Technical and Implementation Documents, the Parties will
promptly Investigate the conditions and will select replacement sites or adjust the installation plans and
specifications as necessary If change in sites or adjustment to the installation plans and specifications causes a
change in the cost or time to perform, the Parties will equitably amend the Contract Price, Performance
Schedule, or both, by a change order.
Section 7 TRAINING
Any training to be provided by Motorola to Customer will be described in the Statement of Work. Customer will
notify Motorola immediately if a date change for a scheduled training program is required. If Motorola incurs
additional costs because Customer reschedules a training program less than thirty (30) days before its
scheduled start date, Motorola may recover these additional costs.
Section 8 SYSTEM ACCEPTANCE
8.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer at least ten (10)
days notice before the Acceptance Tests commence. System testing will occur only in accordance with the
Acceptance Test Plan.
8.2. SYSTEM ACCEPTANCE. System Acceptance will occur upon successful completion of the Acceptance
Tests. Upon System Acceptance, the Parties will memorialize this event by promptly executing a System
Acceptance Certificate. If the Acceptance Test Plan includes separate tests for individual Subsystems or phases
of the System, acceptance of the individual Subsystem or phase will occur upon the successful completion
of the Acceptance Tests for the Subsystem or phase, and the Parties will promptly execute an acceptance
certificate for the Subsystem or phase. If Customer believes the System has failed the completed Acceptance
Tests, Customer will provide to Motorola a written notice that includes the specific details of the failure.
If Customer does not provide to Motorola a failure notice within thirty (30) days after completion of the
Acceptance Tests, System Acceptance will be deemed to have occurred as of the completion of the Acceptance
Tests. Minor omissions or variances In the System that do not materially impair the operation of the System as a
whole will not postpone System Acceptance or Subsystem acceptance, but will be corrected according to a
mutually agreed schedule.
8.3. BENEFICIAL USE. Customer acknowledges that Motorola's ability to perform its implementation and
testing responsibilities may be impeded if Customer begins using the System before System Acceptance.
Therefore, Customer will not commence Beneficial Use before System Acceptance without Motorola's prior
written authorization, which will not be unreasonably withheld. Motorola is not responsible for System
performance deficiencies that occur during unauthorized Beneficial Use. Upon commencement of Beneficial
Use, Customer assumes responsibility for the use and operation of the System.
8.4 FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance when
all deliverables and other work have been completed. When Final Project Acceptance occurs, the parties will
promptly memorialize this final event by so indicating on the System Acceptance Certificate
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Section 9 REPRESENTATIONS AND WARRANTIES
9.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform In accordance with the
Specifications in all material respects. Upon System Acceptance or Beneficial Use, whichever occurs first, this
System functionality representation Is fulfilled. Motorola is not responsible for System performance deficiencies
that are caused by ancillary equipment not furnished by Motorola which is attached to or used in connection with
the System or for reasons or parties beyond Motorola's control, such as natural causes; the construction of a
building that adversely affects the microwave path reliability or radio frequency (RF) coverage, the addition of
frequencies at System sites that cause RF interference or intermodulation: or Customer changes to load usage
or configuration outside the Specifications.
9.2 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. If System Acceptance
is delayed beyond six (6) months after shipment of the Equipment by events or causes within Customer's
control, this warranty expires eighteen (18) months after the shipment of the Equipment
9.3. 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 9 that are applicable to the Motorola Software. If System
Acceptance is delayed beyond six (6) months after shipment of the Motorola Software by events or causes
within Customer's control, this warranty expires eighteen (18) months after the shipment of the Motorola
Software TO THE EXTENT, IF ANY, THAT THERE IS A SEPARATE LICENSE AGREEMENT PACKAGED
WITH, OR PROVIDED ELECTRONICALLY WITH, A PARTICULAR PRODUCT THAT BECOMES EFFECTIVE
ON AN ACT OF ACCEPTANCE BY THE END USER, THEN THAT AGREEMENT SUPERCEDES THIS
SOFTWARE LICENSE AGREEMENT AS TO THE END USER OF EACH SUCH PRODUCT.
9.4. 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.
9.5. 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.
9.6. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to
the original user purchasing the System for commercial, Industrial, or governmental use only, and are not
assignable or transferable
9.7. 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
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OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FORA PARTICULAR PURPOSE.
Section 10 DELAYS
10.1. FORCE MAJEURE. 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.
10.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If Customer (including its other
contractors) delays the Performance Schedule, it will make the promised payments according to the Payment
Schedule as if no delay occurred, and the Parties will execute a change order to extend the Performance
Schedule and, if requested, compensate Motorola for all reasonable charges incurred because of the delay.
Delay charges may include costs incurred by Motorola or its subcontractors for additional freight, warehousing
and handling of Equipment; extension of the warranties, travel; suspending and re -mobilizing the work,
additional engineering, project management, and standby time calculated at then current rates; and preparing
and implementing an alternative implementation plan
Section 11 DISPUTES
The Parties will use the following procedure to address any dispute arising under this Agreement (a "Dispute")
11.1. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of
the State in which the System is installed.
11.2. NEGOTIATION. Either Party may initiate the Dispute resolution procedures by sending a notice of
Dispute ("Notice of Dispute") The Parties will attempt to resolve the Dispute promptly through good faith
negotiations including 1) timely escalation of the Dispute to executives who have authority to settle the Dispute
and who are at a higher level of management than the persons with direct responsibility for the matter and 2)
direct communication between the executives. If the Dispute has not been resolved within ten (10) days from
the Notice of Dispute, the Parties will proceed to mediation.
11.3 MEDIATION The Parties will choose an independent mediator within thirty (30) days of a notice to
mediate from either Party ("Notice of Mediation"). Neither Party may unreasonably withhold consent to the
selection of a mediator. If the Parties are unable to agree upon a mediator, either Party may request that
American Arbitration Association nominate a mediator Each Party will bear its own costs of mediation, but the
Parties will share the cost of the mediator equally. Each Party will participate in the mediation in good faith and
will be represented at the mediation by a business executive with authority to settle the Dispute.
11.4 LITIGATION, VENUE and JURISDICTION. If a Dispute remains unresolved for sixty (60) days after
receipt of the Notice of Mediation, either Party may then submit the Dispute to a court of competent jurisdiction in
the state in which the System is installed. Each Party irrevocably agrees to submit to the exclusive jurisdiction of
the courts in such state over any claim or matter arising under or in connection with this Agreement.
11.5. CONFIDENTIALITY All communications pursuant to subsections 11.2 and 11.3 will be treated as
compromise and settlement negotiations for purposes of applicable rules of evidence and any additional
confidentiality protections provided by applicable law The use of these Dispute resolution procedures will not be
construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either Party.
Section 12 DEFAULT AND TERMINATION
12.1 DEFAULT BY A PARTY. 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)
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and may assert a default claim by giving the non -performing Party a written and detailed notice of 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.
12.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above In Section 12.1,
unless otherwise agreed in writing, the non -defaulting Party may terminate any unfulfilled portion of this
Agreement. In the event of termination for default, the defaulting Party will promptly return to the non -defaulting
Party any of its Confidential Information. If Customer is the non -defaulting Party, terminates this Agreement as
permitted by this Section, and completes the System through a third Party, Customer may as its exclusive
remedy recover from Motorola reasonable costs incurred to complete the System to a capability not exceeding
that specified in this Agreement less the unpaid portion of the Contract Price. Customer will mitigate damages
and provide Motorola with detailed invoices substantiating the charges.
Section 13 INDEMNIFICATION
13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify and hold Customer harmless from
any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct
damage to tangible property which may accrue against Customer to the extent it is caused by the negligence of
Motorola, its subcontractors, or their employees or agents, while performing their duties under this Agreement, if
Customer gives Motorola prompt, written notice of any claim or suit. Customer will cooperate with Motorola in its
defense or settlement of the claim or suit. This section sets forth the full extent of Motorola's general
indemnification of Customer from liabilities that are in any way related to Motorola's performance under this
Agreement.
13.2. GENERAL INDEMNITY BY CUSTOMER. Customer will indemnify and hold Motorola harmless from
any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct
damage to tangible property which may accrue against Motorola to the extent it is caused by the negligence of
Customer, Its other contractors, or their employees or agents, while performing their duties under this
Agreement, if Motorola gives Customer prompt, written notice of any the claim or suit. Motorola will cooperate
with Customer In its defense or settlement of the claim or suit. This section sets forth the full extent of
Customer's general indemnification of Motorola from liabilities that are In any way related to Customer's
performance under this Agreement.
13.3. PATENT AND COPYRIGHT INFRINGEMENT.
13.3.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on a third -
party claim alleging that the Equipment manufactured by Motorola or the Motorola Software ("Motorola Product")
directly infringes a United States patent or copyright ("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. In addition to Motorola's obligation to defend, and subject to the same conditions,
Motorola will pay all damages finally awarded against Customer by a court of competent jurisdiction for an
Infringement Claim or agreed to, in writing, by Motorola in settlement of an Infringement Claim.
13.3.2 If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its option and
expense: (a) procure for Customer the right to continue using the Motorola Product, (b) replace or modify the
Motorola Product so that It becomes non -infringing while providing functionally equivalent performance; or (c)
accept the return of the Motorola Product and grant Customer a credit for the Motorola Product, less a
reasonable charge for depreciation. The depreciation amount will be calculated based upon generally accepted
accounting standards.
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13.3.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon: (a) the
combination of the Motorola Product with any software, apparatus or device not furnished by Motorola; (b) the
use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection
with the Motorola Product; (c) Motorola Product designed or manufactured in accordance with Customer's
designs, specifications, guidelines or instructions, if the alleged infringement would not have occurred without
such designs, specifications, guidelines or Instructions; (d) a modification of the Motorola Product by a party
other than Motorola, (e) use of the Motorola Product in a manner for which the Motorola Product was not
designed or that is inconsistent with the terms of this Agreement; or (f) the failure by Customer to install an
enhancement release to the Motorola Software that is Intended to correct the claimed infringement. In no even)
will Motorola's liability resulting from its indemnity obligation to Customer extend in any way to royalties payable
on a per use basis or the Customer's revenues, or any royalty basis other than a reasonable royalty based upon
revenue derived by Motorola from Customer from sales or license of the infringing Motorola Product.
13.3.4. This Section 13 provides Customer's sole and exclusive remedies and Motorola's entire liability in the
event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to provide any
other or further remedies, whether under another provision of this Agreement or any other legal theory or
principle, in connection with an Infringement Claim. In addition, the rights and remedies provided in this Section
13 are subject to and limited by the restrictions set forth in Section 14.
Section 14 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 15 CONFIDENTIALITY AND PROPRIETARY RIGHTS
15.1. CONFIDENTIAL INFORMATION.
15.1.1 Each party is a disclosing party ("Discloser") and a receiving party ("Recipient") under this agreement.
During the term of this Agreement and for a period of three (3) years from the expiration or termination of this
agreement, Recipient will (i) not disclose Confidential Information to any third party, (ii) restrict disclosure of
Confidential Information to only those employees (including, but not limited to, employees of any wholly owned
subsidiary, a parent company, any other wholly owned subsidiaries of the same parent company), agents or
consultants who must be directly involved with the Confidential Information for the purpose and who are bound
by confidentiality terms substantially similar to those in this agreement; (iii) not copy, reproduce, reverse
engineer, de -compile or disassemble any Confidential Information; (iv) use the same degree of care as for its
own information of like importance, but at least use reasonable care, in safeguarding against disclosure of
Confidential Information; (v) promptly notify Discloser upon discovery of any unauthorized use or disclosure of
the Confidential Information and take reasonable steps to regain possession of the Confidential Information and
prevent further unauthorized actions or other breach of this agreement, and (vi) only use the Confidential
Information as needed to fulfill this agreement.
15.1.2. Recipient Is not obligated to maintain as confidential, Confidential Information that Recipient can
demonstrate by documentation (i) Is now available or becomes available to the public without breach of this
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agreement, (ii) is explicitly approved for release by written authorization of Discloser; (iii) Is lawfully obtained
from a third party or parties without a duty of confidentiality; (iv) is known to the Recipient prior to such
disclosure; or (v) is independently developed by Recipient without the use of any of Discloser's Confidential
Information or any breach of this agreement.
15.1 3. All Confidential Information remains the property of the discloser and will not be copied or reproduced
without the express written permission of the Discloser, except for copies that are absolutely necessary in order
to fulfill this Agreement. Within ten (10) days of receipt of Discloser's written request, Recipient will return all
Confidential Information to Discloser along with all copies and portions thereof, or certify In writing that all such
Confidential Information has been destroyed. However, Recipient may retain one (1) archival copy of the
Confidential Information that it may use only to case of a dispute concerning this Agreement. No license, express
or implied, in the Confidential Information is granted other than to use the Confidential Information in the manner
and to the extent authorized by this Agreement. The Discloser warrants that it is authorized to disclose any
Confidential Information it discloses pursuant to this Agreement.
15.2. PRESERVATION OF MOTORCLA'S PROPRIETARY RIGHTS. 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,
distribute, sublicense, sell 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 16 GENERAL
16.1. TAXES. The Contract Price does not include any 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.
16.2. ASSIGNABILITY AND SUBCONTRACTING. Except as provided herein, neither Party may assign this
Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which
consent will not be unreasonably withheld. Any attempted assignment, delegation, or transfer without the
necessary consent will be void. Notwithstanding the foregoing, Motorola may assign this Agreement to any of its
affiliates or its right to receive payment without the prior consent of Customer. In addition, in the event Motorola
separates one or more of its businesses (each a "Separated Business"), whether by way of a sale,
establishment of a joint venture, spin-off or otherwise (each a "Separation Event"), Motorola may, without the
prior written consent of the other Party and at no additional cost to Motorola, assign this Agreement such that it
will continue to benefit the Separated Business and its affiliates (and Motorola and its affiliates, to the extent
applicable) following the Separation Event. Motorola may subcontract any of the work, but subcontracting will
not relieve Motorola of its duties under this Agreement.
16.3 WAIVER. Failure or delay by either Party to exercise a 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.
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16.4. 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
16.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement 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.
16.6 HEADINGS AND SECTION REFERENCES. 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.
16.7. 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 executed in
multiple counterparts, and shall have the same legal force and effect as if the Parties had executed it as a single
document. The Parties may sign in writing, or by electronic signature, including by email. An electronic
signature, or a facsimile copy or computer image, such as a PDF or tiff image, of a signature, shall be treated as
and shall have the same effect as an original signature. In addition, an electronic signature, a true and correct
facsimile copy or computer image of this Agreement shall be treated as and shall have the same effect as an
original signed copy of this document. 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 or other form will not be considered an amendment or
modification of this Agreement, even if a representative of each Party signs that document.
16.8. NOTICES. Notices required under this Agreement to be given by one Party to the other must be in
writing and either personally delivered 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:
Motorola Solutions, Inc Customer
Attn Attn:
Fax: Fax
169 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.
16.10. 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.
16.11. ADMINISTRATOR LEVEL ACCOUNT ACCESS. Motorola will provide Customer with Administrative
User Credentials. Customer agrees to only grant Administrative User Credentials to those personnel with the
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training or experience to correctly use the access. Customer is responsible for protecting Administrative User
Credentials from disclosure and maintaining Credential validity by, among other things, updating passwords
when required. Customer may be asked to provide valid Administrative User Credentials when in contact with
Motorola System support. Customer understands that changes made as the Administrative User can
significantly Impact the performance of the System. Customer agrees that it will be solely responsible for any
negative impact on the System or Its users by any such changes. System issues occurring as a result of
changes made by an Administrative User may impact Motorola's ability to perform its obligations under the
Agreement or its Maintenance and Support Agreement. In such cases, a revision to the appropriate provisions of
the Agreement, including the Statement of Work, may be necessary. To the extent Motorola provides assistance
to correct any issues caused by or arising out of the use of or failure to maintain Administrative User Credentials,
Motorola will be entitled to bill Customer and Customer will pay Motorola on a time and materials
basis for resolving the issue.
16.12 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 11 (Disputes), Section 14 (Limitation of Liability); and Section 15
(Confidentiality and Proprietary Rights), and all of the General provisions in Section 16.
The Parties hereby enter into this Agreement as of the Effective Date.
Motorola Solutions, Inc. Customer
By: By:
Name: Name:
Title: Title:
Date: Date:
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Exhibit A
SOFTWARE LICENSE AGREEMENT
This Exhibit A Software License Agreement ("Agreement") is between Motorola Solutions, Inc., ("Motorola"), and
("Licensee').
For good and valuable consideration, the parties agree as follows:
Section 1 DEFINITIONS
1.1 "Designated Products' means products provided by Motorola to Licensee with which or for which the
Software and Documentation is licensed for use.
1.2 "Documentation" means 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 such information is provided).
1.3 "Open Source Software" means software with either freely obtainable source code, license for
modification, or permission for free distribution
1.4 "Open Source Software License" means the terms or conditions under which the Open Source Software
is licensed.
1.5 "Primary Agreement" means the agreement to which this exhibit is attached.
1.6 "Security Vulnerability" means a flaw or weakness in system security procedures, design,
implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and
result in a security breach such that data is compromised, manipulated or stolen or the system damaged.
1.7 "Software' (i) means proprietary software in object code format, and adaptations, translations, de -
compilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications,
enhancements, new versions and new releases of the software provided by Motorola, and (iii) may contain one
or more items of software owned by a third party supplier The term "Software" does not include any third party
software provided under separate license or third party software not licensable under the terms of this
Agreement
Section 2 SCOPE
Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary
Software or products containing embedded or pre -loaded proprietary Software, or both. This Agreement
contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee's use of the
Software and Documentation
Section 3 GRANT OF LICENSE
3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants
to Licensee a personal, limited, non -transferable (except as permitted in Section 7) and non-exclusive license
under Motorola's copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the
Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's
use of the Designated Products. This Agreement does not grant any rights to source code
3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the
terms and conditions governing the use of such Open Source Software are in the Open Source Software
Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions
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of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee's
use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source
Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee,
Motorola will use commercially reasonable efforts to: (i) determine whether any Open Source Software is
provided under this Agreement; (il identify the Open Source Software and provide Licensee a copy of the
applicable Open Source Software License (or specify where that license may be found), and, (ii1) provide
Licensee a copy of the Open Source Software source code, without charge, if it is publicly available (although
distribution fees may be applicable).
Section 4 LIMITATIONS ON USE
41 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. Without limiting the general nature
of these restrictions, Licensee will not make the Software available for use by third parties on a "time sharing,"
"application service provider," or "service bureau" basis or for any other similar commercial rental or sharing
arrangement.
4.2. Licensee will not, and will not allow or enable any third party to. (i) reverse engineer, disassemble, peel
components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form
or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the
Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant
any sublicense or other rights In the Software or Documentation to any third party, or take any action that would
cause the Software or Documentation to be placed in the public domain; (Iv) remove, or in any way alter or
obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit,
disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any
third party or on any machine except as expressly authorized by this Agreement; or (vl) use, or permit the use of,
the Software in a manner that would result in the production of a copy of the Software solely by activating a
machine containing the Software. Licensee may make one copy of Software to be used solely for archival,
back-up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the
same time as the original Software Is being operated Licensee may make as many copies of the
Documentation as it may reasonably require for the internal use of the Software.
4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any
third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (u)
copy onto or transfer Software installed in one unit of a Designated Product onto one other device. Licensee
may temporarily transfer Software Installed on a Designated Product to another device if the Designated Product
is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and
identifies the device on which the Software is transferred. Temporary transfer of the Software to another device
must be discontinued when the original Designated Product is returned to operation and the Software must be
removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary
transfer is discontinued.
4.4. When using Motorola's Radio Service Software ("RSS"), Licensee must purchase a separate license for
each location at which Licensee uses RSS. Licensee's use of RSS at a licensed location does not entitle
Licensee to use or access RSS remotely. Licensee may make one copy of RSS for each licensed location.
Licensee shall provide Motorola with a list of all locations at which Licensee uses or intends to use RSS upon
Motorola's request.
4.5 Licensee will maintain, during the term of this Agreement and for a period of two years thereafter,
accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an
independent third party ("Auditor') may inspect Licensee's premises, books and records, upon reasonable prior
notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and security
regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any information
obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used
solely for the purpose of verifying Licensee's compliance with the terms of this Agreement
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Section 5 OWNERSHIP AND TITLE
Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Software and
Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights,
trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and
Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations,
translations, de -compilations, disassemblles, emulations to or derivative works from the Software or
Documentation, whether made by Motorola or another party, or any improvements that result from Motorola's
processes or, provision of information services). No rights are granted to Licensee under this Agreement by
implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this
Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing
the Software, Designated Products, Documentation or related services, remains vested exclusively In Motorola,
and Licensee will not have any shared development or other Intellectual property rights.
Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY
6.1. The commencement date and the term of the Software warranty will be a period of ninety (90) days from
Motorola's shipment of the Software (the "Warranty Period"). If Licensee Is not In breach of any of Its obligations
under this Agreement, Motorola 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 by Motorola solely with reference to the Documentation.
Motorola does not warrant that Licensee's use of the Software or the Designated Products will be uninterrupted,
error -free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet
Licensee's particular requirements. Motorola makes no representations or warranties with respect to any third
party software included In the Software.
6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to use
reasonable efforts to remedy any material Software defect covered by this warranty These efforts will involve
either replacing the media or attempting to correct significant, demonstrable program or documentation errors or
Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola's option,
Motorola will replace the defective Software with functionally -equivalent Software, license to Licensee substitute
Software which will accomplish the same objective, or terminate the license and refund the Licensee's paid
license fee
6.3. Warranty claims are described In the Primary Agreement.
6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other
warranties (express or implied, oral or written) with respect to the Software or Documentation, Including, without
limitation, any and all Implied warranties of condition, title, non -infringement, merchantability, or fitness for a
particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised,
or Is otherwise aware of any such purpose or use), whether arising by law, by reason of custom or usage of
trade, or by course of dealing. In addition, Motorola disclaims any warranty to any person other than Licensee
with respect to the Software or Documentation.
Section 7 TRANSFERS
Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written
consent Motorola's consent maybe withheld at its discretion and maybe conditioned upon transferee paying all
applicable license fees and agreeing to be bound by this Agreement If the Designated Products are Motorola's
radio products and Licensee transfers ownership of the Motorola radio products to a third party, Licensee may
assign its right to use the Software (other than RSS and Motorola's FLASHport® software) which Is embedded in
or furnished for use with the radio products and the related Documentation; provided that Licensee transfers all
copies of the Software and Documentation to the transferee, and Licensee and the transferee sign a transfer
form to be provided by Motorola upon request, obligating the transferee to be bound by this Agreement
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Section TERM AND TERMINATION
8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement is
signed by both parties and will continue for the life of the Designated Products with which or for which the
Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in
which case this Agreement and Licensee's right to use the Software and Documentation may be terminated
immediately upon notice by Motorola.
82 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola
that all copies of the Software have been removed or deleted from the Designated Products and that all copies
of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer
in use by Licensee.
8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the development,
marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will
result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches
this Agreement, Motorola may terminate this Agreement and 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)
Section 9 UNITED STATES GOVERNMENT LICENSING PROVISIONS
This Section applies if Licensee is the United States Government or a United States Government agency.
Licensee's use, duplication or disclosure of the Software and Documentation under Motorola'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 the 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 10 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary and
Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary Agreement
concerning Confidential Information apply.
Section 11 LIMITATION OF LIABILITY
The Limitation of Liability provision is described in the Primary Agreement.
Section 12 NOTICES
Notices are described in the Primary Agreement.
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Section 13 GENERAL
13.1. COPYRIGHT NOTICES The existence of a copyright notice on the Software will not be construed as an
admission or presumption of publication of the Software or public disclosure of any trade secrets associated with
the Software.
132. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and
regulations of the United States and 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 Motorola
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 is a material breach of this Agreement.
13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its
obligations under this Agreement, or encumber or sell Its rights in any Software, without prior notice to or
consent of Licensee.
13.4. GOVERNING LAW This Agreement is governed by the laws of the United States to the extent that they
apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is
a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a
sovereign government entity. The terms of the U.N. Convention on Contracts for the International Sale of Goods
do not apply. In the event that the Uniform Computer Information Transaction Act, any version of this Act, or a
substantially similar law (collectively 'UCITA") becomes applicable to a party's performance under this
Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement,
or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to
the applicability of UCITA
13.5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and
Licensee. No third party has the right to make any claim or assert any right under this Agreement, and no third
party is deemed a beneficiary of this Agreement Notwithstanding the foregoing, any licensor or supplier of third
party software included in the Software will be a direct and intended third party beneficiary of this Agreement.
13.6 SURVIVAL. Sections 4, 5, 6 3, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement.
13.7. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the Primary
Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject matter of this
Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other subject matter
13.8 SECURITY. Motorola uses reasonable means in the design and writing of its own Software and the
acquisition of third party Software to limit Security Vulnerabilities. While no software can be guaranteed to be
free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will take the steps set forth in
Section 6 of this Agreement.
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Exhibit B
Payment Schedule
Except for a payment that is due on the Effective Date, Customer will make payments to Motorola within thirty
(30) days after the date of each invoice. Customer will make payments when due in the form of a check,
cashier's check, or wire transfer drawn on a U.S. financial institution and in accordance with the following
milestones.
1 25% of the Contract Price for mobilization due at contract execution (Effective Date);
2. 65% of the Contract Price upon shipment of equipment;
3 5% of the Contract Price upon System Acceptance or start of beneficial use; and
4. 5% of the Contract Price upon Final Acceptance.
Overdue invoices will bear simple interest at the rate of ten percent (10%) per annum, unless such rate exceeds
the maximum allowed by law, in which case it will be reduced to the maximum allowable rate. Motorola reserves
the right to make partial shipments of equipment and to request payment upon shipment of such equipment. In
addition, Motorola reserves the right to invoice for installations or civil work completed on a site -by -site basis,
when applicable.
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Exhibit D
Service Statements of Work
and
Service Terms and Conditions
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Service Terms and Conditions
Motorola Solutions, Inc ("Motorola") and the customer named in this Agreement ("Customer') hereby agree as
follows:
Section 1 APPLICABILITY
These Service Terms and Conditions apply to service contracts whereby Motorola will provide to Customer
either (1) maintenance, support, or other services under a Motorola Service Agreement, or (2) installation
services under a Motorola Installation Agreement.
Section DEFINITIONS AND INTERPRETATION
2.1. "Agreement" means these Service Terms and Conditions; the cover page for the Service Agreement or
the Installation Agreement, as applicable; and any other attachments, all of which are incorporated
herein by this reference. In interpreting this Agreement and resolving any ambiguities, these Service
Terms and Conditions take precedence over any cover page, and the cover page takes precedence
over any attachments, unless the cover page or attachment states otherwise
2.2. "Equipment' means the equipment that is specified in the attachments or Is subsequently added to this
Agreement.
2.3. "Services' means those installation, maintenance, support, training, and other services described in this
Agreement.
Section 3 ACCEPTANCE
Customer accepts these Service Terms and Conditions and agrees to pay the prices set forth in the Agreement.
This Agreement becomes binding only when accepted in writing by Motorola. The term of this Agreement
begins on the "Start Date' indicated in this Agreement
Section 4 SCOPE OF SERVICES
4.1. Motorola will provide the Services described in this Agreement or in a more detailed statement of work
or other document attached to this Agreement. At Customer's request, Motorola may also provide
additional services at Motorola's then -applicable rates for the services.
4.2 If Motorola is providing Services for Equipment, Motorola parts or parts of equal quality will be used; the
Equipment will be serviced at levels set forth in the manufacturer's product manuals; and routine service
procedures that are prescribed by Motorola will be followed.
4.3. If Customer purchases from Motorola additional equipment that becomes part of the same system as
the initial Equipment, the additional equipment may be added to this Agreement and will be billed at the
applicable rates after the warranty for that additional equipment expires.
44. All Equipment must be in good working order on the Start Date or when additional equipment is added
to the Agreement. Upon reasonable request by Motorola, Customer will provide a complete serial and
model number list of the Equipment. Customer must promptly notify Motorola in writing when any
Equipment is lost, damaged, stolen or taken out of service. Customer's obligation to pay Service fees
for this Equipment will terminate at the end of the month In which Motorola receives the written notice.
4.5. Customer must specifically identify any Equipment that is labeled intrinsically safe for use in hazardous
environments.
4.6. If Equipment cannot, in Motorola's reasonable opinion, be properly or economically serviced for any
reason, Motorola may modify the scope of Services related to that Equipment; remove that Equipment
from the Agreement, or increase the price to Service that Equipment
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4.7 Customer must promptly notify Motorola of any Equipment failure. Motorola will respond to Customer's
notification In a manner consistent with the level of Service purchased as indicated in this Agreement.
Section 5 EXCLUDED SERVICES
5.1. Service excludes the repair or replacement of Equipment that has become defective or damaged from
use in other than the normal, customary, intended, and authorized manner, use not in compliance with
applicable Industry standards; excessive wear and tear, or accident, liquids, power surges, neglect, acts
of God or other force majeure events.
5.2. Unless specifically included in this Agreement, Service excludes items that are consumed in the normal
operation of the Equipment, such as batteries or magnetic tapes.: upgrading or reprogramming
Equipment; accessories, belt clips, battery chargers, custom or special products, modified units, or
software, and repair or maintenance of any transmission line, antenna, microwave equipment, tower or
tower lighting, duplexer, combiner, or multicoupler. Motorola has no obligations for any transmission
medium, such as telephone lines, computer networks, the internet or the worldwide web, or for
Equipment malfunction caused by the transmission medium.
Section 6 TIME AND PLACE OF SERVICE
Service will be provided at the location specified in this Agreement. When Motorola performs service at
Customer's location, Customer will provide Motorola, at no charge, a non -hazardous work environment with
adequate shelter, heat, light, and power and with full and free access to the Equipment Waivers of liability from
Motorola or its subcontractors will not be imposed as a site access requirement. Customer will provide all
Information pertaining to the hardware and software elements of any system with which the Equipment is
interfacing so that Motorola may perform its Services. Unless otherwise stated in this Agreement, the hours of
Service will be 8:30 a.m. to 4.30 p.m., local time, excluding weekends and holidays Unless otherwise stated in
this Agreement, the price for the Services exclude any charges or expenses associated with helicopter or other
unusual access requirements, if these charges or expenses are reasonably incurred by Motorola in rendering
the Services, Customer agrees to reimburse Motorola for those charges and expenses.
Section 7 CUSTOMER Contact
Customer will provide Motorola with designated points of contact (list of names and phone numbers) that will be
available twenty-four (24) hours per day, seven (7) days per week, and an escalation procedure to enable
Customer's personnel to maintain contact, as needed, with Motorola.
Section 8 PAYMENT
Unless alternative payment terms are stated in this Agreement, Motorola will invoice Customer In advance for
each payment period. All other charges will be billed monthly, and Customer must pay each invoice in U.S.
dollars within twenty (20) days of the invoice date. Customer will reimburse Motorola for all property taxes, sales
and use taxes, excise taxes, and other taxes or assessments that are levied as a result of Services rendered
under this Agreement (except income, profit, and franchise taxes of Motorola) by any governmental entity.
Section 9 WARRANTY
Motorola warrants that its Services under this Agreement will be free of defects in materials and workmanship for
a period of ninety (90) days from the date the performance of the Services are completed In the event of a
breach of this warranty, Customer's sole remedy is to require Motorola to re -perform the non -conforming Service
or to refund, on a pro-rata basis, the fees paid for the non -conforming Service. MOTOROLA DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 10 DEFAULTITERMINATION
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10.1. If either party defaults in the performance of this Agreement, the other party will give to the non-
performing party a written and detailed notice of the default. The non -performing party will have thirty
(30) days thereafter to provide a written plan to cure the default that is acceptable to the other party and
begin implementing the cure plan Immediately after plan approval. If the non -performing party fails to
provide or implement the cure plan, then the injured party, in addition to any other rights available to it
under law, may immediately terminate this Agreement effective upon giving a written notice of
termination to the defaulting party.
10.2. Any termination of this Agreement will not relieve either party of obligations previously incurred pursuant
to this Agreement, including payments which maybe due and owing at the time of termination All sums
owed by Customer to Motorola will become due and payable immediately upon termination of this
Agreement Upon the effective date of termination, Motorola will have no further obligation to provide
Services
Section 11 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola'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 price of twelve (12) months of Service provided under this Agreement. 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 OR THE PERFORMANCE OF SERVICES BY
MOTOROLA 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 (1) year after the accrual of the
cause of action, except for money due upon an open account. This limitation of liability will survive the expiration
or termination of this Agreement and applies notwithstanding any contrary provision
Section 12 EXCLUSIVE TERMS AND CONDITIONS
12.1. This Agreement supersedes all prior and concurrent agreements and understandings between the
parties, whether written or oral, related to the Services, and there are no agreements or representations
concerning the subject matter of this Agreement except for those expressed herein. The Agreement
may not be amended or modified except by a written agreement signed by authorized representatives of
both parties
12.2. Customer agrees to reference this Agreement on any purchase order issued in furtherance of this
Agreement, however, an omission of the reference to this Agreement will not affect its applicability In
no event will either party be bound by any terms contained in a Customer purchase order,
acknowledgement, or other writings unless: the purchase order, acknowledgement, or other writing
specifically refers to this Agreement, clearly indicate the intention of both parties to override and modify
this Agreement; and the purchase order, acknowledgement, or other writing is signed by authorized
representatives of both parties.
Section 13 PROPRIETARY INFORMATION; CONFIDENTIALITY; INTELLECTUAL PROPERTY RIGHTS
13.1. Any Information or data in the form of specifications, drawings, reprints, technical information or
otherwise furnished to Customer under this Agreement will remain Motorola's property, will be deemed
proprietary, will be kept confidential, and will be promptly returned at Motorola's request. Customer may
not disclose, without Motorola's written permission or as required by law, any confidential information or
data to any person, or use confidential information or data for any purpose other than performing its
obligations under this Agreement. The obligations set forth in this Section survive the expiration or
termination of this Agreement.
13 2. Unless otherwise agreed in writing, no commercial or technical Information disclosed in any manner or
at any time by Customer to Motorola will be deemed secret or confidential. Motorola will have no
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obligation to provide Customer with access to its confidential and proprietary information, including cost
and pricing data.
13.3 This Agreement does not grant directly or by implication, estoppel, or otherwise, any ownership right or
license under any Motorola patent, copyright, trade secret, or other intellectual property, including any
intellectual property created as a result of or related to the Equipment sold or Services performed under
this Agreement.
Section 14 FCC LICENSES AND OTHER AUTHORIZATIONS
Customer is solely responsible for obtaining licenses or other authorizations required by the Federal
Communications Commission or any other federal, state, or local government agency and for complying with all
rules and regulations required by governmental agencies. Neither Motorola nor any of its employees is an agent
or representative of Customer in any governmental matters.
Section 15 COVENANT NOT TO EMPLOY
During the term of this Agreement and continuing for a period of two (2) years thereafter, Customer will not hire,
engage on contract, solicit the employment of, or recommend employment to any third party of any employee of
Motorola or Its subcontractors without the prior written authorization of Motorola. This provision applies only to
those employees of Motorola or its subcontractors who are responsible for rendering services under this
Agreement. If this provision is found to be overly broad under applicable law, it will be modified as necessary to
conform to applicable law.
Section 16 MATERIALS, TOOLS AND EQUIPMENT
All tools, equipment, dies, gauges, models, drawings or other materials paid for or furnished by Motorola for the
purpose of this Agreement will be and remain the sole property of Motorola. Customer will safeguard all such
property while it is in Customer's custody or control, be liable for any loss or damage to this property, and return
it to Motorola upon request. This property will be held by Customer for Motorola's use without charge and may
be removed from Customer's premises by Motorola at any time without restriction.
Section 17 GENERAL TERMS
17.1. If any court renders any portion of this Agreement unenforceable, the remaining terms will continue in
full force and effect
17.2. This Agreement and the rights and duties of the parties will be interpreted in accordance with the laws of
the State in which the Services are performed.
17.3. Failure to exercise any right will not operate as a waiver of that right, power, or privilege.
17.4. Neither party is liable for delays or lack of performance resulting from any causes that are beyond that
parry's reasonable control, such as strikes, material shortages, or acts of God.
17.5. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under
this Agreement.
17.6. Except as provided herein, neither Party may assign this Agreement or any of its rights or obligations
hereunder without the prior written consent of the other Party, which consent will not be unreasonably
withheld. Any attempted assignment, delegation, or transfer without the necessary consent will be void.
Notwithstanding the foregoing, Motorola may assign this Agreement to any of its affiliates or its right to
receive payment without the prior consent of Customer. In addition, In the event Motorola separates one
or more of its businesses (each a "Separated Business'), whether by way of a sale, establishment of a
joint venture, spin-off or otherwise (each a "Separation Event"), Motorola may, without the prior written
consent of the other Party and at no additional cost to Motorola, assign this Agreement such that it will
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continue to benefit the Separated Business and its affiliates (and Motorola and its affiliates, to the extent
applicable) following the Separation Event.
17.7. THIS AGREEMENT WILL RENEW, FOR AN ADDITIONAL ONE (1) YEAR TERM, ON EVERY
ANNIVERSARY OF THE START DATE UNLESS EITHER THE COVER PAGE SPECIFICALLY
STATES A TERMINATION DATE OR ONE PARTY NOTIFIES THE OTHER IN WRITING OF ITS
INTENTION TO DISCONTINUE THE AGREEMENT NOT LESS THAN THIRTY (30) DAYS OF THAT
ANNIVERSARY DATE. At the anniversary date, Motorola may adjust the price of the Services to reflect
its current rates.
17.8. If Motorola provides Services after the termination or expiration of this Agreement, the terms and
conditions In effect at the time of the termination or expiration will apply to those Services and Customer
agrees to pay for those services on a time and materials basis at Motorola's then effective hourly rates.
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Exhibit E
System Acceptance Certificate
Customer Name: <CustomerName>
Project Name:
This System Acceptance Certificate memorializes the occurrence of System Acceptance. Motorola and
Customer acknowledge that
1. The Acceptance Tests set forth in the Acceptance Test Plan have been successfully completed
2. The System is accepted.
Customer Representative:
Signature:
Print Name
Title:
Date:
Motorola Representative:
Signature
Print Name:
Title.
Date:
FINAL PROJECT ACCEPTANCE:
Motorola has provided and Customer has received all deliverables, and Motorola has performed all other work
required for Final Project Acceptance.
Customer Representative:
Signature:
Print Name:
Title:
Date.
City of Palm Springs, CA
MCC 7500 Addition
Motorola Solutions Conhdenhal RestrVed
Motorola Representative:
Signature:
Print Name:
Title.
Date:
September 28. 2016
Use or disclosure of this proposal is subject
to the restric0ons on the cover page 41
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