HomeMy WebLinkAbout20184151.tiffRESOLUTION
RE: APPROVE AGREEMENT FOR COMMUNICATIONS SYSTEM AND SERVICES AND
AUTHORIZE CHAIR PRO-TEM TO SIGN ALL NECESSARY DOCUMENTS -
MOTOROLA SOLUTIONS, INC.
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Agreement for Communications
System and Services between the County of Weld, State of Colorado, by and through the Board
of County Commissioners of Weld County, on behalf of the Department of Public Safety
Communications, and Motorola Solutions, Inc., commencing October 1, 2018, with further terms
and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Agreement for Communications Systems and Services between the
County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld
County, on behalf of the Department of Public Safety Communications, and Motorola Solutions,
Inc., be and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair Pro -Tern be, and hereby is,
authorized to sign all necessary documents.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 19th day of December, A.D., 2018, nunc pro tunc October 1, 2018.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: dactit4)C1 .C,Gto%tA
Weld County Clerk to the Board
BY:
Deputy to the Board
APP
Coun ttorney
Date of signature: Z. -)Z-19
Mike Freeman
CC:2 �cmw)
EXCUSED
St ye Moreno, Chair
arbara Kirkmeyer, Prq`r--Tem
EXCUSED
can P. onway
ie A. Cozad
2018-4151
CM0026
CAyt-\rcto t&)-301
Weld County Regional Communications Center
1950 O Street
GREELEY, CO 80632
Fax: 970-304-6501
WCRCC@WeldGov.com
www.co.weld.co.us
To: Board of County Commissioners
From: Michael R Wallace
The attached contract from Motorola is the development of the Timnath Tower into a Radio Site
covering 1-25 corridor from Hwy 14 to Loveland and east on Hwy 14 to Ault.
allar261-4-C2
Michael R Wallace, ENP
Weld County Director of Public Safety Communications
2018-4151
Grv) on<DCn
Communications System and Services Agreement
Motorola Solutions, Inc. ("Motorola") and Weld County ("Customer") enter into this "Agreement," pursuant
to which Customer will purchase and Motorola will sell the System and Services, 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 ATTACHMENTS
1.1. EXHIBITS. The Exhibits listed below are exhibits related to the System sale and
implementation. These Exhibits are incorporated into and made a part of this Agreement.
Exhibit A "Motorola Software License Agreement"
Exhibit B "Payment"
Exhibit C Technical and Implementation Documents
C-1 "System Description" dated October 1, 2018
C-2 "Pricing Summary & Equipment List" dated October 1, 2018
C-3 "Implementation Statement of Work" dated October 1, 2018
C-4 "Acceptance Test Plan" or "ATP" dated October 1, 2018
C-5 "Performance Schedule" dated October 1, 2018
Exhibit D "System Acceptance Certificate"
1,2. ADDENDUM (ADDENDA). Customer may elect to purchase professional or subscription
services in addition to the System and related services. Unless stated otherwise in the addendum, any
such services will be governed by the terms in the main body of the Agreement and an applicable
Addendum containing terms specific to such service. Such Addendums will be labeled with the name of
the service being purchased.
1.3 ORDER OF PRECEDENCE. In interpreting this Agreement and resolving any ambiguities: 1) the
main body of this Agreement takes precedence over the exhibits (unless otherwise specified in an
exhibit), and any inconsistency between Exhibits A through D will be resolved in their listed order, and 2)
The applicable service Addendum, unless stated otherwise in the addendum.
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
"Acceptance Tests" means those tests described in the Acceptance Test Plan.
"Addendum (Addenda)" is the title of the document(s) containing a specific set of terms and conditions
applicable to a particular service or other offering beyond the Communication System and System
implementation services. The terms in the Addendum are applicable only to the specific service or
offering described therein.
"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.
"Beneficial Use" means when Customer first uses the System or a Subsystem for operational purposes
(excluding training or testing).
"Confidential Information" means all information consistent with the fulfillment of this Agreement that is
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(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. Confidential Information that is disclosed orally must be identified as confidential at
the time of disclosure. However, Motorola recognizes that Customer is a Colorado governmental entity
which must comply with the provisions of C.R.S. 24-72-201, et seq., with regard to public records, and
cannot guarantee the confidentiality of all documents.
"Contract Price" means the price for the System and implementation Services, excluding applicable
sales or similar taxes and freight charges. Further, unless otherwise stated in Exhibit B, "Payment" or the
pricing pages of the proposal, recurring fees for maintenance, SUA, or subscription services are not
included in the Contract Price.
"Deliverables" means all written information (such as reports, specifications, designs, plans, drawings,
analytics, Solution Data, or other technical or business information) that Motorola prepares for Customer
in the performance of the Services and is obligated to provide to Customer under this Agreement. The
Deliverables, if any, are more fully described in the Statement of Work.
"Derivative Proprietary Materials" means derivatives of the Proprietary Materials that Motorola may
from time to time, including during the course of providing the Services, develop and/or use and/or to
which Motorola provides Customer access.
"Effective Date" means that date upon which the last Party executes this Agreement.
"Equipment" means the hardware components of the Solution that Customer purchases from Motorola
under this Agreement. Equipment that is part of the System is described in the Equipment List.
"Feedback" means comments or information, in oral or written form, given to Motorola by Customer in
connection with or relating to Equipment or Services, during the term of this Agreement.
"Force Majeure" means an event, circumstance, or act that is beyond a Party's reasonable control,
such as an act of God, an act of the public enemy, an act of a government entity, strikes, other labor
disturbances, supplier performance, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war,
riots, or any other similar cause.
"Motorola Software" means software that Motorola or its affiliated companies owns.
"Non -Motorola Software" means software that a party other than Motorola or its affiliated companies
owns.
"Open Source Software" (also called "freeware" or "shareware") means software with either freely
obtainable source code, license for modification, or permission for free distribution.
"Proprietary Materials" means certain software tools and/or other technical materials, including, but not
limited to, data, modules, components, designs, utilities, subsets, objects, program listings, models,
methodologies, programs, systems, analysis frameworks, leading practices and specifications which
Motorola has developed prior to, or independently from, the provision of the Services and/or which
Motorola licenses from third parties.
"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
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whether made by Motorola or another party.
"Services" means system implementation, maintenance, support, subscription, or other professional
services provided under this Agreement, which may be further described in the applicable Addendum
and/or SOW.
"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.
"Software Support Policy" ("SwSP") means the policy set forth at
httD://www.motorolasolutions.com/softwarepolicy describing the specific technical support that will be
provided to Customers under the Warranty Period and during any paid maintenance support period for
Motorola Software. This policy may be modified from time to time at Motorola's discretion.
"Solution" means the combination of the System(s) and Services provided by Motorola under this
Agreement.
"Solution Data" means Customer data that is transformed, altered, processed, aggregated, correlated or
operated on by Motorola, its vendors or other data sources and data that has been manipulated or
retrieved using Motorola know-how to produce value-added content to data consumers, including
customers or citizens which is made available to Customer with the Solution and Services.
"Specifications" means the functionality and performance requirements that are described in the
Technical and Implementation Documents.
"SUA" or "SUA II" means Motorola's Software Upgrade Agreement program.
"Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in the Technical and Implementation Documents.
"System" means the Equipment, including incidental hardware and materials, Software, and design,
installation and implementation services that are combined together into an integrated system; the
System(s) is (are) described in the Technical and Implementation Documents.
"System Acceptance" means the Acceptance Tests have been successfully completed.
"System Data" means data created by, in connection with or in relation to Equipment or the performance
of Services under this Agreement.
"Warranty Period" for System Hardware, Software, or services related to system implementation means
one (1) year from the date of System Acceptance or Beneficial Use, whichever occurs first. Unless
otherwise stated in the applicable Addendum, Warranty Period for other Services means ninety (90) days
from performance of the Service.
Section 3 SCOPE OF AGREEMENT AND TERM
3.1. SCOPE OF WORK. Motorola will provide, install and test the System(s), and perform its other
contractual responsibilities to provide the Solution, all in accordance with this Agreement. Customer will
perform its contractual responsibilities in accordance with this Agreement.
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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 or
applicable subscription fees, Performance Schedule, or both, and will reflect the adjustment in a change
order or Addendum. 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, or completion of the
Services, whichever occurs last. The term and the effective date of recurring Services will be set forth in
the applicable Addendum.
3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. For three (3) years after the expiration date of the
Agreement, Customer may order additional Equipment or Software, if it is then available. Each purchase
order must refer to this Agreement, the expiration date of the Agreement, and must specify the pricing
and delivery terms. The Parties agree that, notwithstanding expiration of the Agreement, 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. Additional or contrary terms in the purchase order will be inapplicable, unless
signed by both parties. Title and risk of loss to additional Equipment will pass at shipment, warranty will
commence upon delivery, and payment is due within thirty (30) 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.motorolasolutions.com and the MOL telephone number is (800) 814-0601.
3.5. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
Customer solely in accordance with the Motorola Software License Agreement in Exhibit A ("Software
License Agreement"). Customer hereby accepts and agrees to abide by all of the terms and restrictions
of the Software License Agreement.
3.6. 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.
3.7. 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.
3.8. OPTIONAL EQUIPMENT OR SOFTWARE. This paragraph applies only if a "Priced Options"
exhibit is shown in Section 1, or if the parties amend this Agreement to add a Priced Options exhibit.
During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one
(1) year after the Effective Date), Customer has the right and option to purchase the equipment, software,
and related services that are described in the Priced Options exhibit. Customer may exercise this option
by giving written notice to Seller which must designate what equipment, software, and related services
Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and
conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain
provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer
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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 SERVICES
4.1. If Customer desires and Motorola agrees to continue Services beyond the Term, Customer's
issuance and Motorola's acceptance of a purchase order for Services will serve as an automatic
extension of the Agreement for purposes of the continuing Services. Only the terms and conditions
applicable to the performance of Services will apply to the extended Agreement.
4.2. 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 applicable
maintenance and support Statements of Work. Support for the Motorola Software will be in accordance
with Motorola's established Software Support Policy. Copies of the SwSP can be found at
http://www.motorolasolutions.com/softwarepolicy and will be sent by mail, email or fax to Customer upon
written request. Any change to the Software Support Policy by Motorola occurring after the effective date
of this Agreement which has the effect of decreasing Customer's rights under this Agreement shall not be
effective. Maintenance Services and support during the Warranty Period are included in the Contract
Price. Unless already included in the Contract Price, if Customer wishes to purchase 1) additional
maintenance or software support services during the Warranty Period; or 2) continue or expand
maintenance, software support, installation, and/or SUA services after the Warranty Period, Motorola will
provide the description of and pricing for such services in a separate proposal document. Unless
otherwise agreed by the parties in writing, the terms and conditions in this Agreement applicable to
maintenance, support, installation, and/or SUA Services, will be included in the Maintenance and Support
Addendum, SUA Addendum, the applicable Statements of Work, and the proposal, (if applicable). These
collective terms will govern the provision of such Services.
To obtain any such additional Services, Customer will issue a purchase order referring to this Agreement
and the separate proposal document. Omission of reference to this Agreement in Customer's purchase
order will not affect the applicability of this Agreement. Motorola's proposal may include a cover page
entitled "Service Agreement" or "Installation Agreement", as applicable, and other attachments. These
cover pages and other attachments are incorporated into this Agreement by this reference
4.3. PROFESSIONAL AND SUBSCRIPTION SERVICES. If Customer purchases professional or
subscription Services as part of the Solution, additional or different terms specific to such Service will be
included in the applicable Addendum and will apply to those Services. Customer may purchase
additional professional or subscription services by issuing a purchase order referencing this Agreement
and Motorola's proposal for such additional services.
4.4. Any information in the form of specifications, drawings, reprints, technical information or
otherwise furnished to Customer in providing Services under this Agreement or Motorola data viewed,
accessed, will remain Motorola's property, will be deemed proprietary, Confidential Information. This
Confidential Information will be promptly returned at Motorola's request.
4.5. TOOLS. All tools, equipment, dies, gauges, models, drawings or other materials paid for or
furnished by Motorola for the purpose of providing Services under 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, 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. Upon termination of the contract for any reason, Customer shall return to Motorola all
equipment delivered to Customer.
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4.6. Deleted.
4.7. CUSTOMER OBLIGATIONS. If the applicable Statement of Work or Addendum contains
assumptions that affect the Services or Deliverables, Customer will verify that they are accurate and
complete. Any information that Customer provides to Motorola concerning the Services or Deliverables
will be accurate and complete in all material respects. Customer will make timely decisions and obtain
any required management approvals that are reasonably necessary for Motorola to perform the Services
and its other duties under this Agreement. Unless the Statement of Work states the contrary, Motorola
may rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any
assumptions and Customer -provided information, decisions and approvals described in this paragraph.
4.8. ASSUMPTIONS. If any assumptions or conditions contained in this Agreement, applicable
Addenda or Statements of Work prove to be incorrect or if Customer's obligations are not performed,
Motorola's ability to perform under this Agreement may be impacted and changes to the Contract Price,
subscription fees, project schedule, Deliverables, or other changes may be necessary.
4.9. NON -PRECLUSION. If, as a result of the Services performed under this Agreement, Motorola
recommends that Customer purchase products or other services, nothing in this Agreement precludes
Motorola from participating in a future competitive bidding process or otherwise offering or selling the
recommended products or other services to Customer. Customer represents that this paragraph does
not violate its procurement or other laws, regulations, or policies.
4.10. PROPRIETARY MATERIALS. Customer acknowledges that Motorola may use and/or provide
Customer with access to Proprietary Materials and Derivative Proprietary Materials. The Proprietary
Materials and the Derivative Proprietary Materials are the sole and exclusive property of Motorola and
Motorola retains all right, title and interest in and to the Proprietary Materials and Derivative Proprietary
Materials.
4.11. ADDITIONAL SERVICES. Any services performed by Motorola outside the scope of this
Agreement at the direction of Customer will be considered to be additional Services which are subject to
additional charges. Any agreement to perform additional Services will be reflected in a written and
executed change order, Addendum or amendment to this Agreement.
Section 5 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 6 CONTRACT PRICE, PAYMENT AND INVOICING
6.1. Customer affirms that a purchase order or notice to proceed is not required for contract performance
or for subsequent years of service, if any, and that sufficient funds have been appropriated in accordance
with applicable law. The Customer will pay all invoices as received from Motorola and any changes in
scope will be subject to the change order process as described in this Agreement. At the time of
execution of this Agreement, the Customer will provide all necessary reference information to include on
invoices for payment in accordance with this Agreement.
6.2. CONTRACT PRICE. The Contract Price in U.S. dollars is $ 527,705.00. If applicable, a pricing
summary is included with the Payment schedule in Exhibit B. Motorola has priced the Services, Software,
and Equipment as an integrated System. A change in Software or Equipment quantities, or Services,
may affect the overall Contract Price, including discounts if applicable. Fees for professional, SUA, and/or
subscription services which are not included in the Contract Price may be listed in Exhibit B, the pricing
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pages of the proposal, or the applicable Addendum.
6.3. INVOICING AND PAYMENT. Motorola will submit invoices to Customer according to the
Payment schedule in Exhibit B. 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 twelve percent (12%) annually. For reference, the
Federal Tax Identification Number for Motorola is 36-1115800.
6.4. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre -pay and add all freight charges to the
invoices. Title and risk of loss to the Equipment will pass to Customer upon receipt. Title to Software will
not pass to Customer at any time. Motorola will pack and ship all Equipment in accordance with good
commercial practices.
6.5. INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following
address:
Name:
Address: 1551 North 17'" Avenue, Greeley, CO 80631
Phone:
Email:
The address which is the ultimate destination where the Equipment will be delivered to Customer is:
Name:
Address:1551 North 17"' Avenue, Greeley, CO 80631
The Equipment will be shipped to the Customer at the following address (insert if this information is
known):
Name: Weld County
Address: 1551 North 17"' Avenue, Greeley, CO 80631
Phone:
Customer may change this information by giving written notice to Motorola.
Section 7 SITES AND SITE CONDITIONS
7.1. 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 worksites 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.
7.2. 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; 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.
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7.3. 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 8 TRAINING
Any training to be provided by Motorola to Customer will be described in the applicable 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 9 SYSTEM ACCEPTANCE
9.1. 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.
9.2. 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.
9.3. 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.
9.4. 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 10 REPRESENTATIONS AND WARRANTIES
10.1. 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
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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.
10.2. 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
beyond Motorola's control, this warranty expires eighteen (18) months after the shipment of the
Equipment.
10.3. SOFTWARE WARRANTY. Except as described in the SwSP and unless otherwise stated in the
Software License Agreement, during the Warranty Period, Motorola warrants the Software in accordance
with the warranty terms set forth in the Software License Agreement and the provisions of this Section
that are applicable to the Software. If System Acceptance is delayed beyond six (6) months after
shipment of the Motorola Software by events or causes beyond Motorola's control, this warranty expires
eighteen (18) months after the shipment of the Motorola Software. Nothing in this Warranty provision
is intended to conflict or modify the Software Support Policy. In the event of an ambiguity or
conflict between the Software Warranty and Software Support Policy, the Software Support Policy
governs.
10.4. EXCLUSIONS TO EQUIPMENT AND SOFTWARE WARRANTIES. These warranties do not
apply to: (i) defects or damage resulting from: use of the Equipment or 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.
10.5. SERVICE WARRANTY. During the Warranty Period, Motorola warrants that the Services will be
provided in a good and workmanlike manner and will conform in all material respects to the applicable
Statement of Work. Services 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. Customer acknowledges that
the Deliverables may contain recommendations, suggestions or advice from Motorola to Customer
(collectively, "recommendations"). Motorola makes no warranties concerning those recommendations,
and Customer alone accepts responsibility for choosing whether and how to implement the
recommendations and the results to be realized from implementing them.
10.6. 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 Equipment or Software 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. These actions will be the full extent of Motorola's liability for the
warranty claim. In the event of a valid Services warranty claim, 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. 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.
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10.7. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the System or Services for commercial, industrial, or
governmental use only, and are not assignable or transferable.
10.8. 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, NON -INFRINGEMENT, AND FITNESS FOR A PARTICULAR
PURPOSE.
Section 11 DELAYS
11.1. 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 or applicable Addenda for a time period that is reasonable under the
circumstances.
11.2. 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 12 DISPUTES
The Parties will use the following procedure to address any dispute arising under this Agreement (a
"Dispute").
12.1. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the
laws of the State in which the System is installed.
12.2. 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.
12.3. Reserved.
12.4. 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.
12.5. CONFIDENTIALITY. All communications pursuant to subsections 12.2 and 12.3 will be treated
as compromise and settlement negotiations for purposes of applicable rules of evidence and any
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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 13 DEFAULT AND TERMINATION
13.1. 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.
13.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section
13.1, 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.
In the event Customer elects to terminate this Agreement for any reason other than default, Customer
shall pay Motorola for the conforming Equipment and/or Software delivered and all services performed.
Section 14 INDEMNIFICATION
14.1. 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.
14.2. GENERAL INDEMNITY BY CUSTOMER. Deleted.
14.3. PATENT AND COPYRIGHT INFRINGEMENT.
14.3.1. 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.
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14.3.2 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.
14.3.3 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 event 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.
14.3.4. This Section 14 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 14 are subject to and limited by the restrictions set forth in Section 15.
Section 15 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 implementation and
other one time Services with respect to which losses or damages are claimed. With respect to all
subscription or other ongoing Services and unless as otherwise provided under the applicable Addenda,
Motorola's total liability will be limited to the direct damages recoverable under law, but not to exceed the
price of twelve (12) months of Services preceding the incident giving rise to the claim. 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, LOSS TIME, DATA, GOODWILL, 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 16 CONFIDENTIALITY AND PROPRIETARY RIGHTS
16.1. CONFIDENTIAL INFORMATION.
16.1.1. During the term of this the Parties may provide each other with Confidential Information. To the
extent allowed by Colorado law, each Party will: maintain the confidentiality of the other Party's
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Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party
in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential
Information to its employees who have a 'need to know' and not copy or reproduce the Confidential
Information, take necessary and appropriate precautions to guard the confidentiality of the Confidential
Information, including informing its employees who handle the Confidential Information that it is
confidential and 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 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.
16.2. 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.
16.3 VOLUNTARY DISCLOSURE. Except as required to fulfill its obligations under this Agreement,
Motorola will have no obligation to provide Customer with access to its Confidential Information and/or
proprietary information. Under no circumstances will Motorola be required to provide any data related to
cost and pricing.
16.4 DATA AND FEEDBACK.
16.4.1 To the extent permitted by law, Customer owns all right, title and interest in System
Data created solely by it or its agents (hereafter, "Customer Data"), and grants to Motorola
the right to use, host, cache, store, reproduce, copy, modify, combine, analyze, create
derivatives from, communicate, transmit, publish, display, and distribute such Customer
Data.
16.4.2 Motorola owns all right, title and interest in data resulting from System Data that is
or has been transformed, altered, processed, aggregated, correlated or operated on
(hereafter, "Derivative Data").
16.4.3 Any Feedback given by Customer is and will be entirely voluntary and, even if designated as
confidential, will not create any confidentiality obligation for Motorola. Motorola will be free to use,
reproduce, license or otherwise distribute and exploit the Feedback without any obligation to Customer.
Customer acknowledges that Motorola's receipt of the Feedback does not imply or create recognition by
Motorola of either the novelty or originality of any idea. The parties further agree that all fixes,
modifications and improvements made to Motorola products or services conceived of or made by
Motorola that are based, either in whole or in part, on the Feedback are the exclusive property of
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Motorola and all right, title and interest in and to such fixes, modifications or improvements to the
Motorola product or service will vest solely in Motorola.
Section 17 GENERAL
17.1. 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 thirty (30) 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.
17.2. 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.
17.3. 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.
17.4. 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.
17.5. 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.
17.6. 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.
17.7. 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 provided by the other Party 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.
17.8. 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
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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.
17.9 FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an
evolving technological area and therefore, laws and regulations regarding Services and use of Solution
may change. Changes to existing Services or the Solution required to achieve regulatory compliance
may be available for an additional fee. Any required changes may also impact the price for Services.
17.10. 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.
17.11. ADMINISTRATOR LEVEL ACCOUNT ACCESS. If applicable to the type of System purchased by
Customer, Motorola will provide Customer with Administrative User Credentials. Customer agrees to only
grant access to the Administrative User Credentials to those personnel with the training and experience to
correctly use them. 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 personnel. 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 using the Administrative User Credentials may impact Motorola's
ability to perform Services or other obligations under the 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.
17.12. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this
Agreement for any reason: Section 3.5 (Motorola Software); Section 3.6 (Non -Motorola Software); if any
payment obligations exist, Sections 6.2 and 6.3 (Contract Price and Invoicing and Payment); Subsection
10.8 (Disclaimer of Implied Warranties); Section 12 (Disputes); Section 15 (Limitation of Liability); and
Section 16 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 17.
17.13 FUNDING CONTINGENCY. No portion of this Agreement shall be deemed to create an obligation
on the part of the Customer to expend funds not otherwise appropriated or budgeted for. Customer shall
provide evidence of appropriated funds prior to the shipment of equipment or the performance of services
associated with this agreement. Motorola shall also be entitled to receive just and equitable compensation
for work in progress, work completed and materials accepted by the Customer. Financial obligations of
the County payable after the current fiscal year are contingent upon funds for that purpose being
appropriated, budgeted and otherwise made available. Execution of this Agreement by County does not
create an obligation on the part of County to expend funds not otherwise appropriated in each succeeding
year.
17.14 GOVERNMENTAL IMMUNITY. No portion of this Agreement shall be deemed to constitute a
waiver of any immunities the Customer or its officers or employees may possess under federal or state
constitutional, statutory or common law.
17.15. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement
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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 or
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.
The Parties hereby enter into this Agreement as of the Effective Date.
Motorola So Inc.
Name: Iv Cr-e Scc
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Motorola Solutions, Inc.
Weld CAunty
B
Name: Barbara Kirkmeyer
Pro-Tem, Board of Weld
Title: County Commissioners
Date: DEC 19 2818
16
020/g- *52()
Exhibit A
MOTOROLA SOFTWARE LICENSE AGREEMENT
This Exhibit A Motorola Software License Agreement ("Agreement") is between Motorola Solutions, Inc.,
("Motorola"), and Weld County ("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 proprietary software and affiliated 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
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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 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; and (ii) identify the Open Source
Software (or specify where that license may be found).
3.3 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 SUPERSEDES THE SOFTWARE LICENSE AGREEMENT AS TO THE END USER OF
EACH SUCH PRODUCT.
Section 4 LIMITATIONS ON USE
4.1. Licensee may use the Software only for Licensee's internal business purposes and only in
accordance with the Documentation. Any other use of the Software is strictly prohibited. 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 (vi) 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 (ii) 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 Licensee will maintain, during the term of this Agreement and for a period of two years thereafter,
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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.
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. Unless otherwise stated in the Primary Agreement, 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. Notwithstanding, any warranty provided by a
copyright owner in its standard license terms will flow through to Licensee for third party software
provided by Motorola.
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
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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 may be withheld at its discretion and may be 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 CPS 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.
Section 8 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.
8.2 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 Commercial Computer Software
9.1 This Section 9 only applies to U.S. Government end users. The Software, Documentation and
updates are commercial items as that term is defined at 48 C.F.R. Part 2.101, consisting of "commercial
computer software" and "computer software documentation" as such terms are defined in 48 C.F.R. Part
252.227-7014(a)(1) and 48 C.F.R. Part 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48
C.F.R. Part 227.7202, as applicable. Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-
7015, 48 C.F.R. Part 227.7202-1 through 227.7202-4, 48 C.F.R. Part 52.227-19, and other relevant
sections of the Code of Federal Regulations, as applicable, the Software, Documentation and Updates
are distributed and licensed to U.S. Government end users: (i) only as commercial items, and (ii) with only
those rights as are granted to all other end users pursuant to the terms and conditions contained herein.
9.2 If Licensee is licensing Software for end use by the United States Government or a United States
Government agency, Licensee may transfer such Software license, but only if: (i) Licensee transfers all
copies of such Software and Documentation to such United States Government entity or interim
transferee, and (ii) Licensee has first obtained from the transferee (if applicable) and ultimate end user an
enforceable end user license agreement containing restrictions substantially identical to the ones
contained in this Agreement. Except as stated in the foregoing, Licensee and any transferee(s)
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authorized by this subsection 9.2 may not otherwise use or transfer or make available any Motorola
software to any third party nor permit any party to do so.
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.
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 FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an
evolving technological area and therefore, laws and regulations regarding Services and use of Solution
may change. Changes to existing Services or the Solution required to achieve regulatory compliance
may be available for an additional fee. Any required changes may also impact the price for Services.
13.4. 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.
13.5. 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.
13.6. 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,
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Exhibit B
PAYMENT
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. If Customer has purchased
additional Professional or Subscription services, payment will be in accordance with the applicable
addenda. Payment for the System purchase will be in accordance with the following milestones.
System Purchase (excluding Subscribers, if applicable)
1. 25% of the Contract Price due upon contract execution (due upon effective date);
2. 60% of the Contract Price due upon shipment of equipment from Staging;
3. 10% of the Contract Price due upon installation of equipment; and
4. 5% of the Contract Price due upon Final Acceptance.
If Subscribers are purchased, 100% of the Subscriber Contract Price will be invoiced upon
shipment (as shipped).
Motorola shall make partial shipments of equipment and will request payment upon shipment of such
equipment. In addition, Motorola shall invoice for installations completed on a site -by -site basis or when
professional services are completed, when applicable. The value of the equipment shipped/services
performed will be determined by the value shipped/services performed as a percentage of the total
milestone value. Unless otherwise specified, contract discounts are based upon all items proposed and
overall system package. For invoicing purposes only, discounts will be applied proportionately to the FNE
and Subscriber equipment values to total contract price. Overdue invoices will bear simple interest at the
maximum allowable rate by state law.
For Lifecycle Support Plan and Subscription Based Services:
Motorola will invoice Customer annually in advance of each year of the plan.
The chart below outlines the hourly labor rates for Motorola System Integration resources to be used. The staffing
requirements shall be multiplied by the appropriate rate per resource in the table below. The hourly labor rates are
fully burdened. The hourly rates per resource type and level are listed in Table 1.
Resource T r¢es
Project
System
System
Project
Levels
Management
Engineering
Technologist
Administration
4
$ 290.00
S 300.00
$ 280.00
5 200.00
3
5 240.00
$ 250 00
5 240.00
$ 180.00
2
$ 220.00
S 220.00
5 220.00
$ 170 00
1
5 190.00
$ 210.00
$ 210.00
$ 150.00
Table 1 Hourly Rates
These rates apply to ordinary days and times (Monday to Friday during the hours 8am to 5pm). Additional
surcharges may apply to work done outside these timeframes. The minimum charge for any resource will be 4 hours.
Travel expenses are not included in these rates and may be charged separately. The qualifications of each type and
level of resource are defined in the tables found at
https:l/w+iw:motorota utons.corr c tertt/d msilsecure nti r-rates-exhibit-160408.pddf. All
Motorola System Integration personnel assigned to this project will be classified according these levels. Project
Administrative roles are varied and their specific duties and qualifications will be determined by the complexity and
requirements of each project.
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EXHIBIT D
System Acceptance Certificate
Customer Name:
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: Motorola Representative:
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: 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: Motorola Representative:
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
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