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City Council Staff Report
DATE: NOVEMBER 19, 2008 UNFINISHED BUSINESS
SUBJECT: APPROVE THE PURCHASE AND FINANCING OF THE MOTOROLA
P25 800MHZ RADIO SYSTEM AS THE CITY'S PORTION OF THE
EASTERN RIVERSIDE COUNTY INTEROPERABILITY REGIONAL
AUTHORITY (E.R.I.C.A.)
FROM: David Ready, City Manager
BY: Police Department and the Finance Department
SUMMARY
On July 30, 2008, the City Council authorized joining the Eastern Riverside County
Interoperability Regional Authority (E.R.I.C.A.), in order to implement the safety radio
Motorola "backbone" communications system. Further, Council directed staff to explore
and recommend financing ajternatives for E.R.I.C.A capital start up expenses and
additional equipment required for the City's 911 Emergency Center, Police, Fire, Airport
and Public Works.
This action requests City Council's authorization to enter into the appropriate
purchasing and financing agreements to complete the new radio communication
system.
RECOMMENDATION:
1. Waive the competitive bid requirements of Palm Springs Municipal Code Section
07.03.040.
2. Approve a purchase agreement with Motorola in an amount not-to-exceed
$3,367,000 for 911 Emergency Dispatch equipment and mobile/handheld radio
units, subject to final review and approval by the City Attorney.
3. Approve a financing agreement with Municipal Finance Corporation for a period
of 10 years, in an annual amount not-to-exceed $422,400 subject to final review
and approval by the City Attorney.
ITEM NO.
City Council Staff Report
November 19, 2008— Page 2
Approve Motorola Radio System
4. Adopt Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF PALM SPRINGS, CALIFORNIA, AUTHORIZING THE
EXECUTION AND DELIVERY OF A LEASE WITH OPTION TO PURCHASE
PUBLIC SAFETY COMMUNICATIONS EQUIPMENT, AND AUTHORIZING
CERTAIN ACTIONS IN CONNECTION THEREWITH.
5. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
Due to the age of our current 911 Emergency Operations Equipment and safety radios,
the vendor, Motorola, has indicated they cannot support our system beyond mid 2009.
Moreover, during the past several years, the City's aging radio system has resulted in
increased maintenance and malfunctions requiring emergency repair service. Although
we have been able to maintain our radio communications system, it is imperative that
we plan to replace this equipment within the next year.
On July 30, 2008, the City Council authorized joining the Eastern Riverside County
Interoperability Regional Authority (E.R.I.C.A.), in order to implement a new safety radio
system with interoperability capability. This new system includes two parts: the
"backbone," which consists of the shared infrastructure that the E.R.I.C.A. jurisdictions
will use, and the "operating system" equipment that each city requires for their specific
needs. Motorola was selected as the sole source vendor, per the E.R.I.C.A. agreement
for interoperability and continuity between jurisdictions, including the County of
Riverside, which has indicated their future usage of the same system.
The backbone system is being purchased by the City of Indio, and each of the four
ERICA member cities, Indio, Palm Springs, Desert Hot Springs and Cathedral City, will
pay 25% of the cost.
Palm Springs' operating system, which includes the 911 Emergency Center and radio
equipment for several departments, is $3,367,000, which will be financed by the City for
ten years through the Municipal Finance Corporation,
FISCAL IMPACT:
The City's share of the ERICA Infrastructure (25% of backbone capital expense) is
$1,389,400 and will be paid in fifteen (15) annual installments of $136,500 beginning
October 1, 2009, through Indio's lease agreement with Motorola, for a total cost
including interest of $2,047,420. The cities of Indio, Cathedral City, and Desert Hot
Springs have previously committed to the same financing arrangement for their share of
the capital expenses.
Additional radio and 911 Emergency Center communication equipment required by
Palm Springs has been priced at $3,366,477. Subsequent to a review of possible
02
City Council Staff Report
November 19, 2008- Page 3
Approve Motorola Radio System
financing mechanisms by our Financial Consultant, Harrell and Company, staff's
recommendation is the Municipal Finance Corporation, a company that specializes in
securing equipment financing, with an annual lease cost proposal, beginning December
1, 2009, of $422,319, for ten (10) years with a total cost, including interest, of
$4,223,194.
The overall costs of the new radio system will be allocated between the General Fund
(82.5%) and the Airport General Operations Fund (17.5%), based upon usage and
required equipment.
The General Funds' portion of both annual lease payments will be funded through the
following:
1) E.R.I.C.A.'s "backbone" capital expense of $136,000 annually, for 15 years, will be
paid from the City's 911 Fee, collected since the original fee inception in 2005. The
current balance in that account is approximately $1,300,000.
2) Motorola's lease amount for the City's 'Operating system" of $422,319 for ten years
will be paid from the 911 Opt-Out Fee program established in 2008. The annual
revenue to support this payment is estimated at $390,000. Any costs not covered from
this fee will be paid by the General Fund.
Finally, Motorola's ongoing E.R.I.C.A. maintenance costs, after installation and warranty
periods have expired, are estimated to be approximately $30,000 annually, per
jurisdiction. However, these costs will be set by the JPA's voting members, in which
Palm Springs has one vote. Maintenance costs for the E.R.I.C.A. "backbone" and the
Palm Springs "operating system" will be-paid from General Fund and Airport operating
funds, proportionately.
David G. Dominguez, Po ce ief Geoffrey' &Kiehl, Finance Director
David H. Ready, Ci freer
Attachments:
1. Equipment List Summary
Fy r,
MEMORANDUM
PALM SPRINGS POLICE DEPARTMENT,OFFICE OF OF POLICE
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DATE: November 18, 2008
TO: City Manager David Ready
FROM: Police Chief David Dominguez
SUBJECT: Motorola Hardware Costs
The equipment list provided by Motorola included costs for each radio, software and
hardware. The hardware costs would be split among the various departments as
follows:
Airport $ 335,382.41
Fire $ 60,107.83
Fire Rescue $ 29,598.55
Police $ 863,458.27
Public Works $ 97,347.75
Dispatch Center $ 777,478,66
Subtotal for Equipment Costs $ 2,163,373.47
System Integration Services $ 1,007,089.00
Freight $ 28,354.00
Estimated Sales Tax on Equipment $ 167,661.44
Total $3,366,477.91
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AUTHORIZING THE
EXECUTION AND DELIVERY OF A LEASE WITH OPTION TO
PURCHASE PUBLIC SAFETY COMMUNICATIONS
EQUIPMENT, AND AUTHORIZING CERTAIN ACTIONS IN
CONNECTION THEREWITH
WHEREAS, the City of Palm Springs (the "City") is a municipal corporation duly
organized and existing under and pursuant to the constitution and laws of the State of
California; and
WHEREAS, the City desires to provide for financing in the approximate amount
of $3,366,477.91 for the acquisition of Motorola communications equipment (the
"Property"); and
WHEREAS, Municipal Finance Corporation (the "Corporation") has proposed a
cost-effective ten year lease purchase financing arrangement at a 4.35%" interest rate;
NOW, THEREFORE, it is resolved by the City Council of the City of Palm
Springs as follows:
SECTION 1. Lease with Option to Purchase and Acquisition Fund Agreement.
The City Manager is hereby authorized to enter into a Lease with Option to Purchase
and Acquisition Fund Agreement (collectively, the "Financing Agreements") with the
Corporation to finance the Property, subject to approval as to form by the City Attorney.
SECTION 2. Attestations. The City Clerk is hereby authorized and directed to
attest the signature of the City Manager or of such other person or persons as may
have been designated by the City Manager, and to affix and attest the seal of the City,
as may be required or appropriate in connection with the execution and delivery of the
Financing Agreements,
SECTION 3. Other Actions. The City Manager and other officers of the City are
each hereby authorized and directed, jointly and severally, to take any and all actions
and to execute and deliver any and all agreements, documents and certificates which
they may deem necessary or advisable in order to carry out, give effect to and comply
with the terms of this Resolution and the Financing Agreements. Such actions are
hereby ratified, confirmed and approved.
SECTION 4. Qualified Tax-Exempt Obligations. The Lease is hereby designated
as "qualified tax-exempt obligations" within the meaning of Section 265(b)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"). The City, together with all
subordinate entities of the City, do not reasonably expect to issue during the calendar
Resolution No.
Page 2
year in which the Lease is issued more than $10,000,000 of obligations which it could
designate as "qualified tax-exempt obligations" under Section 265(b) of the Code.
SECTION 5. Reimbursement of Prior Expenditures. The City declares its official
intent to be reimbursed from the proceeds of the Lease approved hereby for a
maximum principal amount of $3,366,477.91 of expenditures occurring no earlier than
sixty days prior to the adoption of this Resolution. All reimbursed expenditures will be
capital expenditures as defined in Section 1.150-1(b) of the Federal Income Tax
Regulations.
SECTION 6. Effect. This Resolution shall take effect immediately upon its
passage.
ADOPTED THIS 19TH DAY OF NOVEMBER, 2008.
David H. Ready, City Manager
ATTEST:
James Thompson, City Clerk
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 November 19, 2008, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
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Communications System Agreement
Motorola, Inc. ("Motorola") and The City of Palm Springs ("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 through E will be resolved in their listed order.
Exhibit A Motorola"Software License Agreement"
Exhibit B "Payment Schedule"
Exhibit C 'Technical and Implementation Documents"
C-1 "System Description" dated August 11, 2008
C-2 "Equipment List"dated August 11, 2008
0-3 "Statement of Work"dated August 11, 2008
C-4 "Acceptance Test Plan" or"ATP" dated March A, 2008
C-5 "Performance Schedule"dated TBD
Exhibit D Enhanced System Support Statement of Work ("ESS Statement of Work")
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. "Beneficial Use" means when Customer first uses the System or a Subsystem for operational
purposes (excluding training or testing).
2.3. "Confidential Information" means any information that is disclosed in written, graphic, verbal, or
machine-recognizable form, and is marked, designated, or identified at the time of disclosure as being
confidential or its equivalent; or if the information is in verbal form, It is identified as confidential at the time
of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information
does not include any information that: is or becomes publicly known through no wrongful act of the
receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or
becomes, rightfully and without breach of this Agreement, in the receiving Partys possession without any
obligation restricting disclosure; is independently developed by the receiving Party without breach of this
Agreement; or is explicitly approved for release by written authorization of the disclosing Party.
2.4. "Contract Price" means the price for the System, excluding applicable sales or similar taxes and
freight charges.
2.5. "Effective Date"means that date upon which the last Party executes this Agreement.
2.6. "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.
2.7. "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).
2.8, "Infringement Claim" means a third party claim alleging that the Equipment manufactured by
Motorola or the Motorola Software infringes upon the third party's United States patent or copyright.
Motorola.CSA.FINAL.1.10 05.revision.doo 1 "
2.9. "Motorola Software"means Software that Motorola or its affiliated company owns.
2.10. "Non-Motorola Software"means Software that another party owns.
2.11. "Open Source Software"(also called"freeware° or"shareware") means software that has its
underlying source code freely available to evaluate, copy, and modify.
2.12. "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.
2.13. "Software" means the Motorola Software and Non-Motorola Software, in object code format that
is furnished with the System or Equipment.
2.14, "Specifications" means the functionality and performance requirements that are described in the
Technical and Implementation Documents.
2.15. "Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in the Technical and Implementation Documents.
2.16. "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.
2.17. "System Acceptance"means the Acceptance Tests have been successfully completed.
2.18. "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 bath, 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.
3.3. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by
mutual agreement of the Parties, the term of this Agreement begins on the Effective Date and continues
until the date of Final Project Acceptance or expiration of the Warranty Period, whichever occurs last.
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 less 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
Motorola.CSA.FINAL.1.10.05.revision doo 2 �y
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("MOL"), and this Agreement will be the "Underlying Agreement" for those MOL transactions rather than
the MOL On-Line Terms and Conditions of Sale. MOL registration and other information may be found at
http://www.motorola.com/Ousinessandgovernment/and the MOL telephone number is (800) 814-0601.
3.5. MAINTENANCE SERVICE_ During the Warranty Period, Motorola will provide maintenance
services for the Equipment and support for the Motorola Software pursuant to this Agreement, including
the ESS Statement of Work. 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 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 as described in the Software Subscription section of the ESS Statement of
Work. 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)-
3-8- 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 OF 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 bate), Customer has the right and option to purchase the equipment, software,
and related services that are described in the Priced Options exhibit. Customer may exercise this option
by giving written notice to Seller which must designate what equipment, software, and related services
Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and
conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain
provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer
delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific
lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules,
payment terms, maintenance and support provisions, additions to or modifications of the Software
License Agreement, hosting terms, and modifications to the acceptance and warranty provisions.
Section 4 PERFORMANCE SCHEDULE
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.
Motorola.CSA.FINAL 1 10.05 revision.doc 9 (Q
Section 5 CONTRACT PRICE, PAYMENT AND INVOICING
5.1, CONTRACT PRICE. The Contract Price in U.S. dollars is $3,366,477.91 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.
5.2. 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 thirty (30) days after the date of each invoice. Customer will make payments
when due in the form of a wire transfer, check, or cashier's check from a U-S. financial institution.
Overdue invoices will bear simple interest at the maximum allowable rate. For reference, the Federal Tax
Identification Number for Motorola, Inc. is 36-1115800.
5.3. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the
invoices- Title 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.
5.4. INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following
address:
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The city 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):
Customer may change this information by giving written notice to Motorola.
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
access to the work sites 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 of Work states to the contrary, Customer will ensure that these work sites have adequate-
physical space; air conditioning and other environmental conditions; electrical power outlets, distribution
and equipment; and telephone or other communication lines (including modem access and adequate
interfacing networking capabilities), all for the installation, use and maintenance of the System. Before
installing the Equipment or Software at a work site, Motorola will 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
s
Motorola.CSA.FINAL.7.10.05.revision.doc 4 br
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.
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 (RP) 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
Motorola.CSA.FINAL.1,10.05.revision.doo 5
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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.
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; (In) 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 OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 10 DELAYS
101. 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 Farce 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 it 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;
2
Moto Yola.GSA.FI NgL.1.1 0.05.rewsi0n.doc
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
11.1, SETTLEMENT PREFERRED. The Parties, by their project managers, will attempt to settle any
dispute arising from this Agreement (except for a claim relating to intellectual property or breach of
confidentiality) through consultation and a spirit of mutual cooperation. The dispute will be escalated to
appropriate higher-level managers of the Parties, if necessary. If cooperative efforts fail, the dispute will
be mediated by a mediator chosen jointly by the Parties within thirty (30) days after notice by one of the
Parties demanding non-binding mediation. The Parties will not unreasonably withhold their consents to
the selection of a mediator, will share the cost of the mediation equally, may agree to postpone mediation
until they have completed some specified but limited discovery about the dispute, and may replace
mediation with some other form of non-binding alternative dispute resolution ("ADR").
11.2. LITIGATION. A Party may submit to a court of competent jurisdiction in the state in which the
System is installed any claim relating to Intellectual property or a breach of confidentiality provisions and
any dispute that cannot be resolved between the Parties through negotiation or mediation within two (2)
months after the date of the initial demand for non-binding mediation. Each Party consents to jurisdiction
over it by that court. The use of ADR procedures will not be considered under the doctrine of lathes,
waiver, or estoppel to affect adversely the rights of either Party. Either Party may resort to the judicial
proceedings described in this section before the expiration of the two-month ADR period if good faith
efforts to resolve the dispute under these procedures have been unsuccessful; or interim relief from the
court is necessary to prevent serious and irreparable injury to the 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) 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
1$.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 the 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.
Motorola.CSA.FINAL.1.10.05.revision.doc 7 %..
132. 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
an Infringement Claim, and Motorola will indemnify Customer for those costs and damages finally
awarded against Customer for an Infringement Claim. Motorola's duties to defend and indemnify are
conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola
having sole control of the defense of the suit and all negotiations for its settlement or compromise; and
Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the
defense of the Infringement Claim.
15.32. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its
option and expense procure for Customer the right to continue using the Equipment or Motorola Software,
replace or modify it so that it becomes non-infringing while providing functionally equivalent performance,
or grant Customer a credit for the Equipment or Motorola Software as depreciated and accept Its return.
The depreciation amount will be calculated based upon generally accepted accounting standards for such
Equipment and Motorola Software.
13.3.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that Is based upon
the combination of the Equipment or Motorola Software with any software, apparatus or device not
furnished by Motorola; the use of ancillary equipment or software not furnished by Motorola and that is
attached to or used in connection with the Equipment or Motorola Software; any Equipment that is not
Motorola's design or formula; a modification of the Motorola Software by a party other than Motorola; or
the failure by Customer to install an enhancement release to the Motorola Software that is intended to
correct the claimed infringement. The foregoing states the entire liability of Motorola with respect to
infringement of patents and copyrights by the Equipment, Motorola Software, or any of their parts.
Section 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. During the term of this Agreement, the parties may provide
each other with Confidential Information. Each Party will: maintain the confidentiality of the other Party's
Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party
in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential
Motorola.CSA,FINAL 1.10.05.revislon doc 8 h I1
Information to its employees who have a "need to know" and not copy or reproduce the Confidential
Information; take necessary and appropriate precautions to guard the confidentiality of the Confidential
Information, including informing its employees who handle the Confidential Information that it is
confidential and is not to be disclosed to others, but these precautions will be at least the same degree of
care that the receiving Party applies to its own confidential information and will not be less than
reasonable care; and use the Confidential Information only in furtherance of the performance of this
Agreement. Confidential Information is and will at all times remain the property of the disclosing Party,
and no grant of any proprietary rights in the Confidential Information is given or intended, including any
express or implied license, other than the limited right of the recipient to use the Confidential Information
in the manner and to the extent permitted by this Agreement-
15.2. PRESERVATION OF MOTOROLA'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. Neither Party may assign this Agreement without
the prior written consent of the other Party, except that Motorola may assign this Agreement to any of its
affiliates or its right to receive payment without the prior consent of Customer. Motorola may subcontract
any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement.
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.
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
Moterola.0SA,FINAL 1.10.05.revision.doc 9 i
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. GOVERNING LAW, This Agreement and the rights and duties of the Parties will be governed by
and interpreted in accordance with the laws of the State in which the System is installed.
16.8. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement
of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements,
proposals, and understandings, whether written-or oral, relating to this subject matter. This Agreement
may be amended or modified only by a written instrument signed by authorized representatives of both
Parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment
or other form will not be considered an amendment or modification of this Agreement, even if a
representative of each Party signs that document.
16.9. 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, Inc. Customer cfrYa��/<�' S�/z%i✓
Attn:_Mark Herzog Attn: �GG'L�lLfC
fax: 909-862-0298 fax: 7',6O w
16-10, COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal,
state, and local laws, regulations and rules concerning the performance of this Agreement or use of the
System. Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses
and authorizations required for the installation, operation and use of the System before the scheduled
installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC
license applications, neither Motorola nor any of its employees is an agent or representative of Customer
in FCC or other matters.
16.11. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all
necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties
under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon
execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in
accordance with its terms; and the execution, delivery, and performance of this Agreement does not
violate any bylaw, charter, regulation, law or any other governing authority of the Party.
16.12. SURVIVAL OF TERMS. The fallowing 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, Inc. Customer
By: By:
Name: Ar 6"ict I Name: _
Title: MSS- ctx pr¢SicAer't Title:
Date: -U I l y l z) Date: _
Motorola.CSA.FINAL.1.10.05.revision.doc 10
Exhibit A
SOFTWARE LICENSE AGREEMENT
This Exhibit A Software License Agreement("Agreement")Is between Motorola, Inc., ("Motorola"), and
("Licensee").
For good and valuable consideration, the parties agree as fellows,
Section 1 DEFINITIONS
11 "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 awned by a third party supplier. The term "Software"does
not include any third party software provided under separate license or third parry 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.
Motorola G&PS Exhibit SLA 010308
1'
!`l'a
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.
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, disassemblies, 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.
62 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.
Motorola G&PS Fxhiblt SLA 010305
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.
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.
13.2, 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
I 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 Ad, 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 parry 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's Information Assurance Policy addresses the issue of security. Motorola
uses reasonable means in the design and writing of its own Software and the acquisition of third party
Motorola G&PS Exhibit SLA 010308
T U
Exhibit B--Payment Schedule
August 11, 2008
Payment Schedule for the Contract Value of the Equipment and Services
excluding Subscribers
25% upon execution of the Contract
55% upon shipment of equipment from staging
15%upon installation completion
5%upon Acceptance Test Completion by Motorola
Payment of each milestone is due N30 from invoice Date
Pent Schedule for the Contract Value of the Subscriber Units
N30 upon shipment
20
4.B. APPROVE THE PURCHASE AND FINANCING OF THE MOTOROLA P25
800MHZ RADIO SYSTEM AS THE CITY'S PORTION OF THE EASTERN
RIVERSIDE COUNTY INTEROPERABILITY REGIONAL AUTHORITY
(E.R.I.C.A.):
RECOMMENDATION: 1) Waive the competitive requirements pursuant to Palm
Springs Municipal Code Section 7.03.040: 2) Approve the purchase agreement
with Motorola in an amount not-to-exceed $3,367,000 for 911 Emergency
Dispatch equipment and mobile/handheld radio units, subject to final review and
approval by the City Attorney; 3) Approve the financing agreement with Municipal
Finance Corporation for the purchase for a period of 10 years, in an annual
amount not to exceed $422,400 subject to final review and approval by the City
Attorney; 4) Adopt Resolution No. , "A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA AUTHORIZING
THE EXECUTION AND DELIVERY OF A LEASE WITH OPTION TO
PURCHASE OF PUBLIC SAFETY COMMUNICATIONS EQUIPMENT, AND
AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH; 5) Adopt
Resolution No. , "A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA, AMENDING THE. BUDGET FOR FISCAL
YEAR 2008 09 FOR EMERGENCY RESPONSE FUNDING;" and 6) Authorize
the City Manager to execute all necessary documents. A�
MATERIALS TO FOLLOW
Item No. T. B •