HomeMy WebLinkAbout20161032.tiff RESOLUTION
RE : APPROVE INTERGOVERNMENTAL AGREEMENT FOR CONSTRUCTION AND
MAINTENACE OF A RADIO TOWER AND AUTHORIZE CHAIR TO SIGN - MOUNTAIN
VIEW FIRE PROTECTION DISTRICT
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 Intergovernmental Agreement for
Construction and Maintenance of a Radio Tower 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 the Mountain View Fire Protection , commencing upon the
full execution of signatures , and ending March 21 , 2025 , 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 Intergovernmental Agreement for Construction and Maintenance of a
Radio Tower 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 the Mountain View Fire Protection , be , and hereby is , approved .
BE IT FURTHER RESOLVED by the Board that the Chair be , and hereby is , authorized
to sign said agreement .
The above and foregoing Resolution was , on motion duly made and seconded , adopted
by the following vote on the 21st day of March , A . D . , 2016 .
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY , COLORADO
ATTEST : afield& •
Mike Freeman , Chair
Weld County Clerk t the Board
Sean P . Conway , Pro-Tem
BY : N ,54/.1 ibLe%
Derpcity Clerk to the Board.
c a
Julie A . Cozad
Ollul.1%*
ED - M : J � t
06: rbara Kirkmeyer
I"
County Attorney , ,; 772<:-- eWPert,
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17 e Moreno
Date of signature : /o),_ tit On la
f‘al 144
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2016- 1032
+ ° CM0024
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BOARD OF COUNTY COMMISSIONERS
PASS-AROUND REVIEW/ WORK SESSION REQUEST
RE : Mtn View — Weld County Radio Tower IGA
DEPARTMENT : Communications DATE : 01 -27- 16
PERSON REQUESTING : Michael R Wallace
Brief description of the problem/issue :
Attached is a copy of the Mountain View IGA for the Radio tower in Niwot. This agreement was previously
approved by the BOCC , in a work session, but have since been updated with the new financials to include the
Grant that was received.
What options exist for the Board ? (Include consequences, impacts, costs, etc. of options)
Approve to bring to BOCC for formal approval
Recommendation :
Approve
E
}
Approve Schedule
Recommendation Work Session Other/Comments: 1,
f`��1�
Barbara Kirkmeyer, Chair Or " n�d,s e U
Mike Freeman
Sean P. Conway
Julie Cozad
Steve Moreno
2016- 1032
MOUNTAIN VIEW FIRE & WELD COUNTY
COMMUNITATIONS TOWER OVERVIEW
2016
PROJECT
DATE MVFPD WELD BALANCE
Motorola Contract Amount $ 490,404 . 50 $ 490,404 . 50 $ 980, 809 . 00
Pyramid Network Expenses $ 15, 659 .07 $ 15, 659 . 06 $ 31 , 318 . 13
Pyramid Network Expenses $ 4, 655 . 50 $ 4, 655 . 50 $ 9, 311 . 00
Land Title $ 437 . 50 $ 437 . 50 $ 875 . 00
TOTAL PROJECT COST: $ 1,022,313 . 13
CREDIT: EIG $ ( 295, 500 . 00) $ ( 295, 500 . 00 ) $ ( 591, 000 . 00 )
Balance due by each entity $ 215, 656 . 57 $ 215, 656 . 56 $ 431, 313 . 13
PROJECT EXPENSES Paid Directly by MV:
7/31/2015 Pyramid Network Serv. LLC, $ ( 31, 318 . 13 ) $ - $ ( 31, 318 . 13 )
10/31/2015 Land Title $ ( 875 . 00 ) $ - $ ( 875 . 00)
1/31/2016 Pyramid Network Serv. LLC $ ( 9, 311 . 00 ) $ - $ ( 9, 311 . 00 )
TOTALS $ 174, 152 .44 $ 215, 656 . 56 $ 389, 809 . 00
AiDis, yRAmiD
c ≥;& k Services , LLC 6519 Towpath Rd
East Syracuse, NY 13057
TELECOMMUNICATIONS CONSTRUCTION SERVICES AND CONSULTING Phone 315-701 - 1300
Fax 315-445 -0653
I Invoice # : 4796 Lawley, Mark
Date : 7/ 17/2015
Client Name : Mountain View Fire Protection District
03561 N . Stagecoach Rd #200
Longmont, CO 80504
Purchase Order # : 11939
Click Order : Mountan View Fire Protection District
Site : Boulder County CO
Location : NIWOT Site Tower
MOTCO1001 n/a
PHASE OF WORK COMPLETED
SCHEDULE OF0. AMOUNT OF WORK PREVIOUSLY AMOUNT DUE THIS
OF Wow. RETAINAGE
ITEM DESCRIPTION VALUE COMPLETED COMPLETE INVOICED BILLING
1 A&E Services ¶31 ,318 . 13 100% $31 ,318. 13 $0.00 $0.00 $31 ,318.13
•Grand Totals $31 , 318 . 13 1OO% S31 ,318. 13 X31 ,31 $ . 13
$0.00 $0,00
_ _ _: i)r 8 ;;;!: 1 :t
INVOICE
Land Title Guarantee Company
5975 Greenwood Plaza Blvd Suite 125
Land Title Greenwood Village, CO 80111
GUARANTEE COMPANY 303-270-0445
WWW LTGC COM
Reference
MOUNTAIN VIEW FIRE PROTECTION
DISTRICT Your Reference Number:
DONNA L . MULLISON Our Order Number: 70469750 a;
3561 N STAGECOACH RD Our Customer Number: 68179
LONGMONT, CO 80504 Invoice Requested by: DONNA L. MULLISON
Invoice (Process) Date: October 07 , 2015
Transaction Invoiced By: Ricky Finch
Email Address : rfinch@Itgc. com
Invoice Number: 70469750 Date : October 07 , 2015
Order Number: 70469750
Property Address : 6452 SOMERSET DR NIWOT 80544
Invoice Charges
Previous Amount Due : $ 0 . 00
Property Information Binder $ 875 . 00
Total Invoice Amount : $ 875 . 00
Current Balance Due : $ 875 . 00
Due and Payable upon receipt
Please make check payable to Land Title Guarantee Company and send to the address at the top of Page 1.
Please reference Invoice Number 70469750 on your Payment
Page 1
invoice.adt 14420 0712015 07/30/13 11 :06 43 AM
l
941 Dillon Way
Arne
Suite B
[i& ork Services , LLC Lebanon , OH 45036
Office: 513-228-2992
Mobile 513-518-9132
Fax 513-228-1596
November 3 , 2015 kglardonApyramidnetwQrkservices.com
Chief Mark Lawley
Mountainview FPD
3 561 Stagecoach North
Unit 200
Longmont, CO 80504
Re : Niwot Water Tank
Communication Tower Upgrade
Environmental
Chief Lawley ;
I am working with Motorola on your project at the Niwot Water Tank on the A&E concerns including
FAA and other environmentals. Currently we have a NEPA in progress . A number of tribes have
stepped forward to review the project and have submitted to me their review fees . Motorola asked that
these fees would be billed directly to your office . Before I can finalize the NEPA and make the
appropriate payments to the individual tribes, I will need your written consent for the charges. I have
captured below each tribe and their fees for your review and approval .
Apache Tribe of Oklahoma $ 650 . 00
Cheyenne-Arapaho Tribes of Oklahoma $ 650 . 00
Comanche Nation $ 650 . 00
Crow Tribe $ 455 . 00
Crow Creek Sioux Tribal Council $ 715 . 00
Eastern Shoshone Tribe $ 520 . 00
Fort Belknap Indian Community $ 520 . 00
Northern Arapaho $ 520 . 00
Northern Arapaho Ethnographic Report $ 572 .00
Northern Cheyenne Tribe $ 520 . 00
Pawnee Nation $ 1300 . 00
Ponca Tribe of Nebraska $ 260 . 00
Spirit Lake Nation $ 520 . 00
Archaeological/Architectural Survey $ 845 . 00
My consultant ' s processing fee $ 624 . 00
Total $9,311 . 00
Pyramid Network Services Corporate Office 1
6315 Towpath Rd
East Syracuse, NY 13057 5 - 701 . 13 't5
r
INTERGOVERNMENTAL AGREEMENT FOR CONSTRUCTION AND MAINTENANCE
OF A RADIO TOWER BETWEEN WELD COUNTY AND MOUNTAIN VIEW FIRE
PROTECTION DISTRICT.
s�
THIS AGREEMENT is made and entered into this 021 day of
12bat.a
2016, by and between the COUNTY OF WELD, COLORADO, by and through the Weld
County Board of Commissioners (hereinafter "Weld County"), and Mountain View Fire
Protection District (hereinafter "Fire District") .
RECITALS
WHEREAS , the parties, both have an interest in the construction and maintenance of a
radio tower for the purpose of enhancing emergency response services; and
WHEREAS , the parties have the authority to enter into agreements for the protection and
preservation of the public health and as may be necessary for the acquisition of equipment, and
for the provision of services ; and
WHEREAS , Weld County and the Fire District are authorized to enter into this
Agreement pursuant to § 29- 1 -203 , C.R. S . , Article II, § 2-3 of the Weld County Home Rule
Charter.
NOW, THEREFORE, in consideration of the following mutual agreements and
covenants, Weld County and the Fire District hereby agree as follows :
1 . Agreement: The terms of this Agreement are outlined below, and include the Motorola
proposal which is attached hereto as Exhibit A and hereby incorporated by reference.
This is the entire agreement.
2. Description of Tower Construction and Maintenance : Weld County will pay the
upfront cost of constructing the tower, $980, 809 .00. In addition to the construction costs,
the project also requires Pyramid Network Services costs in the sum of $40,629 . 13 and
Land Title Guaranty Company costs of $ 875 . 00 . Total project cost is $ 1 ,022 ,313 . 13 .
Both parties acknowledge that Mountain View Fire Protection District has been awarded
an Energy Impact Grant facilitated by the State of Colorado and the Department of Local
Affairs in the sum of up to $ 591 ,000 . The parties agree that Mountain View Fire
Protection District will apply for reimbursement of funds from the Department of Local
Affairs, and all reimbursement funds shall be divided equally between Weld County and
the Mountain View Fire Protection District. In addition, the Fire District has paid, prior
to the date of this Agreement, the sums owed to Pyramid Network Services and Land
Title Guaranty Company, in the sum of $41 , 504. 13 . Upon completion of the Tower, and
after applying all Energy Impact Grant funds received to the project, the Fire District
shall pay one-half of the remaining cost to Weld County, less amounts paid to Pyramid
/07io3o2C )
CM MIN a s a a
and Land Title, being approximately $ 174, 152 .44 as shown on the attached cost
overview, in equal installments over nine years, subject to the Fire District annually
appropriating sufficient funding for such installments.
Thus, assuming adequate funding has been annually appropriated, the Fire District agrees
to make payments each year beginning on the execution of this agreement by both
parties; with the final installment due in 2024 . In the event the Fire District desires to pay
off the remaining balance due at any time prior to 2024, there will be no prepayment
penalty assessed. The Fire District also agrees, subject to the addition of more users of
the tower, to pay to Weld County half of the annual maintenance cost for the tower,
subject to the Fire District annually appropriating sufficient funding for such maintenance
cost. The annual maintenance cost is $ 16,000. 00. Thus, assuming adequate funding has
been annually appropriated, the Fire District agrees to pay half of the annual
maintenance. Should the maintenance cost increase, that increase and cost shall be split
evenly among the parties . If in the future, additional districts, municipalities, or other
organizations utilize the tower, each will be responsible for a proportional share of the
maintenance fees. Weld County and Mountain View shall share any recovered costs
equally. The County shall be responsible for the payment and maintenance of the lease
of the land for the tower with Left Hand Water District. The County is assuming full
ownership of the tower, and shall be responsible for all oversight and coordination of all
construction and maintenance of said tower.
3 . Term: The Agreement becomes effective upon signature of the Weld County Board of
County Commissioners. The agreement shall continue for nine (9) years. It may be
reviewed annually by both parties. Upon the end of the nine (9) year period the parties
may elect to renew the contract through mutual agreement.
4. No Debt: It is hereby agreed and acknowledged by the parties that no provision of this
Agreement shall be construed or interpreted as creating an indebtedness or a multiple
fiscal year direct or indirect debt or other multiple-year financial obligation whatsoever of
the Fire District within the meaning of any constitutional or statutory debt limitation
provisions, including, without limitation, Article XI, Sections 1 , 2, and 6, and Article X,
Section 20 of the Colorado Constitution. The Fire District ' s payment obligations
hereunder are expressly subject to annual appropriation and budgeting of funds.
However, failure to appropriate the funds in a given year does not relieve Mountain View
of the obligation to pay the loan amount in full as soon as possible.
5. Termination : Each party has the right to terminate this agreement, with or without
cause, upon ninety (90) days written notice. Notwithstanding the preceding sentence, in
the event that the Fire District fails to appropriate sufficient funds to satisfy its payment
obligations under Section 2 of this Agreement, either party shall have the right to
terminate this Agreement as of the end of the fiscal year in which sufficient funds have
been appropriated and budgeted by the Fire District. In the event that funding is not
appropriated in a given year, Mountain View agrees to seek the additional funding
necessary in subsequent years to pay the balance of the loan off on schedule. The failure
to appropriate funds in any given year does not relieve Mountain View of the obligation
to pay the loan amount in full . If the agreement is terminated at any time, Mountain
View is obligated to pay the remaining balance in full .
6. Modification : Any amendments or modifications to this agreement shall be made in
writing and signed by all parties.
7. Indemnity: To the extent permitted by law, each party agrees to indemnify, defend, and
hold the other, its officers, employees, and agents, harmless from and against any and all
claims, suits, expenses, damages, or any injury to persons, entities, or property arising
from any and all acts, omissions, or failure to act during the provision of services by the
County pursuant to this Agreement.
8. Non-Liability: The parties agree that in no event shall Weld County be liable due to any
stoppage, delay, or any impairment in the construction or operation of the tower pursuant
to this Agreement where such stoppage, delay, or impairment result from acts of God,
fire, war, legal or equitable proceeding, or any other cause which is outside the control of
the County.
9. Governmental Immunity: No portion of this Agreement shall be deemed a waiver,
express or implied, of any immunities, rights, benefits, protections, or other provisions
which a party, or its officers, employees, or agents, may possess pursuant to the Colorado
Governmental Immunity Act § 24- 10- 101 , et seq. , C .R. S . , as applicable now or hereafter
amended.
10. Choice of Law/Venue/Compliance with Law: Colorado law, and rules and regulations
established pursuant thereto, shall be applied in the interpretation, execution, and
enforcement of this Agreement. Any provision included or incorporated herein by
reference which conflicts with said laws, rules and/or regulations shall be null and void.
The proper venue for any action regarding this agreement shall be Weld County. All
parties agree to comply with any applicable federal, state, or local laws, rules, and
regulations.
11 . Severability: If any section, subsection, paragraph, sentence, clause or phrase of this
Agreement is for any reason held or decided to be invalid or unconstitutional, such a
a
decision shall not affect the validity of the remaining portions. The parties hereto declare
that they would have entered into this Agreement and each and every section, subsection,
paragraph, sentence, clause, and phrase thereof, irrespective of the fact that any one or
more sections, subsections, paragraphs, sentences, clauses, or phrases might be declared
to be unconstitutional or invalid.
12 . Third Party Beneficiary Enforcement : It is expressly understood and agreed that the
enforcement of the terms and conditions of this Agreement, and all rights of action
relating to such enforcement, shall be strictly reserved to the undersigned parties and
nothing in this Agreement shall give or allow any claim or right of action whatsoever by
any other person not included in this Agreement. It is the express intention of the
undersigned parties that any entity other than the undersigned parties receiving services
or benefits under this Agreement shall be an incidental beneficiary only.
13 . Confidentiality: Each party agrees to abide by the terms of C .R. S . 24-72-201 , et seq.
Each party shall be responsible for protecting the confidential information of its citizens,
and shall follow commonly accepted procedures and standards for maintaining such
confidentiality.
14. Employee Financial Interest/Conflict of Interest: The signatories to this Agreement
aver that to their knowledge, no employee, officer, or agent of any included party has any
personal, beneficial interest whatsoever in the distribution of the funds that are the subject
matter of this Agreement. No party' s employee, officer, or their immediate family shall
benefit financially from this Agreement or the distribution of the available funds.
15. Fund Availability: Nothing in this Agreement shall be construed to require the Weld
County Board of County Commissioners to provide funding for any purpose under this
Agreement that has not previously been budgeted.
16. Notice : Each party shall designate a representative, who shall make, within the scope of
his or her authority, all necessary decisions with respect to this Agreement. This
representative also shall serve as the contact point for communications regarding this
Agreement.
17. Service/Coverage : It is expressly understood and agreed that Weld County shall
continue to provide communications/dispatch service to the entire Fire District as it exists
as of the date of execution of this agreement. It is further expressly understood and
agreed that upon completion of the tower, Weld County shall work with the tower
contractor to ensure a 95% coverage band throughout the Fire District, based on the
coverage maps attached hereto as Exhibit B and incorporated herein by this reference. In
the event the Fire District expands its coverage area, it shall negotiate with Weld County
to provide communications/dispatch service to the expanded area.
ATTEST: dericti rL_•A
`"« BOARD OF COUNTY COMMISSIONERS
Weld County Clerk to the Board WELD COUNTY, COLORADO
BY:
Deputy Clerk to the Boar. 1 'ELM Mike Freeman, Chair MAR 2 1 2016
APPROVED AS TO FUNDI t 4O i, APPROVED AS TO SUBSTANCE:gastedat `� `• ' Elected Official or Department Head
Controller
APPROVED TO FORM: N14
Director of General Services
County Attorney
•UNTA VIEW FIRE OTECTION DISTRICT
aard ' - , - Date
ATTEST:
_ I t Ir
Secretary Date
(SEAL)
EX IB T
Communications System 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, 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 October 20th, 2015
C-2 "Equipment List"dated October 20th, 2015
C-3 "Statement of Work" dated October 20th, 2015
C-4 "Acceptance Test Plan"or"ATP"dated October 20th, 2015
C-5 "Performance Schedule"dated October 20th, 2015
Exhibit D Service Statement(s)of Work and"Service Terms and Conditions" (if applicable)
Exhibit E "System Acceptance Certificate"
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
2.1. "Acceptance Tests"means those tests described in the Acceptance Test Plan.
2.2. "Administrative User Credentials" means an account that has total access over the operating
system, files, end user accounts and passwords at either the System level or box level. Customer's
personnel with access to the Administrative User Credentials may be referred to as the Administrative
User.
2.3. "Beneficial Use" means when Customer first uses the System or a Subsystem for operational
purposes (excluding training or testing).
2,4. "Confidential Information" means any information that is disclosed in written, graphic, verbal, or
machine-recognizable form, and is marked, designated, or identified at the time of disclosure as being
confidential or its equivalent; or if the information is in verbal form, it is identified as confidential at the time
of disclosure and is confirmed in writing within thirty (30)days of the disclosure. Confidential Information
does not include any information that: is or becomes publicly known through no wrongful act of the
receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or
becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any
obligation restricting disclosure; is independently developed by the receiving Party without breach of this
Agreement; or is explicitly approved for release by written-authorization of the disclosing Party.
2.5. "Contract Price" means the price for the System, excluding applicable sales or similar taxes and
freight charges.
2.6. "Effective Date" means that date upon which the last Party executes this Agreement.
2.7. "Equipment" means the equipment that Customer purchases from Motorola under this
Agreement. Equipment that is part of the System is described in the Equipment List.
O2b7 ,fibG(()
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_
2.8. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a Party's
reasonable control (e.g., an act of God, an act of the public enemy, an act of a government entity, strikes
or other labor disturbances, hurricanes, earthquakes,fires,floods, epidemics, embargoes, war, and riots).
2.9. "Infringement Claim" means a third party claim alleging that the Equipment manufactured by
Motorola or the Motorola Software directly infringes a United States patent or copyright.
2.10. "Motorola Software"means Software that Motorola or its affiliated company owns.
2.11. "Non-Motorola Software" means Software that another party owns.
2.12. "Open Source Software"(also called"freeware"or"shareware")means software with either freely
obtainable source code, license for modification, or permission for free distribution.
2.13. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,
trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the
Equipment and Software, including those created or produced by Motorola under this Agreement and any
corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software
whether made by Motorola or another party.
2.14. "Software" means the Motorola Software and Non-Motorola Software, in object code format that
is furnished with the System or Equipment.
2.15. "Specifications" means the functionality and performance requirements that are described in the
Technical and Implementation Documents.
2.16. "Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in Exhibit C-Technical and Implementation Documents.
2.17. "System" means the Equipment, Software, and incidental hardware and materials that are
combined together into an integrated system; the System is described in the Technical and
Implementation Documents.
2.18. "System Acceptance"means the Acceptance Tests have been successfully completed.
2.19. "Warranty Period" means one (1) year from the date of System Acceptance or Beneficial Use,
whichever occurs first.
Section 3 SCOPE OF AGREEMENT AND TERM
3.1. SCOPE OF WORK. Motorola will provide, install and test the System, and perform its other
contractual responsibilities, all in accordance with this Agreement. Customer will perform its contractual
responsibilities in accordance with this Agreement.
3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this
Agreement. If a requested change causes an increase or decrease in the cost or time required to
perform this Agreement, the Parties will-agree-to an-equitable adjustment of the Contract Price,
Performance Schedule, or both, and will reflect the adjustment in a change order. Neither Party is
obligated to perform requested changes unless both Parties execute a written change order.
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
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terms in the order, the applicable provisions of this Agreement (except for pricing, delivery, passage of
title and risk of loss to Equipment, warranty commencement, and payment terms) will govern the
purchase and sale of the additional Equipment or Software. Title and risk of loss to additional Equipment
will pass at shipment, warranty will commence upon delivery, and payment is due within twenty(20)days
after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped or
Software is licensed. Alternatively, Customer may register with and place orders through Motorola Online
("MOL"), and this Agreement will be the "Underlying Agreement' for those MOL transactions rather than
the MOL On-Line Terms and Conditions of Sale. MOL registration and other information may be found at
httpsalbusinessonline.matorala.cam and the MOL telephone number is(800)814-0601.
3.5. MAINTENANCE SERVICE. During the Warranty Period, in addition to warranty services,
Motorola will provide maintenance services for the Equipment and support for the Motorola Software
pursuant to the Statement of Work set forth in Exhibit D. Those services and support are included in the
Contract Price. If Customer wishes to purchase additional maintenance and support services for the
Equipment during the Warranty Period, or any maintenance and support services for the Equipment
either during the Warranty Period or after the Warranty Period, the description of and pricing for the
services will be set forth in a separate document. If Customer wishes to purchase extended support for
the Motorola Software after the Warranty Period, it may do so by ordering software subscription services.
Unless otherwise agreed by the parties in writing, the terms and conditions applicable to those
maintenance, support or software subscription services will be Motorola's standard Service Terms and
Conditions, together with the appropriate statements of work.
3.6. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
Customer solely in accordance with the Software License Agreement. Customer hereby accepts and
agrees to abide by all of the terms and restrictions of the Software License Agreement.
3.7. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to Customer in
accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date
unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software
pursuant to the Software License Agreement, in which case it applies and the copyright owner will have
all of Licensor's rights and protections under the Software License Agreement. Motorola makes no
representations or warranties of any kind regarding Non-Motorola Software. Non-Motorola Software may
include Open Source Software. All Open Source Software is licensed to Customer in accordance with,
and Customer agrees to abide by, the provisions of the standard license of the copyright owner and not
the Software License Agreement. Upon request by Customer, Motorola will use commercially reasonable
efforts to determine whether any Open Source Software will be provided under this Agreement; and if so,
identify the Open Source Software and provide to Customer a copy of the applicable standard license (or
specify where that license may be found); and provide to Customer a copy of the Open Source Software
source code if it is publicly available without charge (although a distribution fee or a charge for related
services may be applicable).
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 OR SOFTWARE. This paragraph applies only if a "Priced Options"
exhibit is shown in Section 1,or if the parties amend this Agreement to add a Priced Options exhibit,
During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one
(1)year after the Effective Date), Customer has the right and option to purchase the equipment, software,
and related services that are described in the Priced Options exhibit. Customer may exercise this option
by giving written notice to Seller which must designate what equipment, software, and related services
Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and
conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain
provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer
delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific
lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules,
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payment terms, maintenance and support provisions, additions to or modifications of the Software
License Agreement, hosting terms, and modifications to the acceptance and warranty provisions.
Section 4 PERFORMANCE SCHEDULE
The Parties will perform their respective responsibilities in accordance with the Performance Schedule.
By executing this Agreement, Customer authorizes Motorola to proceed with contract performance,
Section 5 CONTRACT PRICE,PAYMENT AND INVOICING
5.1. CONTRACT PRICE. The Contract Price in U.S. dollars is $ 980,809.00. 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 Solutions, 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
1 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:
1551 N. 171h Ave
Greeley,CO 80631
The address which is the ultimate destination where the Equipment will be delivered to Customer is:
Same as above
The Equipment will be shipped to the Customer at the following address (insert if this information is
known):
Wireless Advanced Communications
3901 East Service Road
Evans, CO 80620
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 respons1biiities—described elsewhere in this_Agreement,
Customer will provide a designated project manager; all necessary construction and building permits,
zoning variances, licenses, and any other approvals that are necessary to develop or use the sites and
mounting locations; and access to the work sites or vehicles identified in the Technical and
Implementation Documents as reasonably requested by Motorola so that it may perform its duties in
accordance with the Performance Schedule and Statement of Work. If the Statement of Work so
indicates, Motorola may assist Customer in the local building permit process.
6.2. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and
in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the
Statement of Work states to the contrary, Customer will ensure that these work sites have adequate:
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physical space; air conditioning and other environmental conditions; adequate and appropriate electrical
power outlets, distribution, equipment and connections; and adequate telephone or other communication
lines (including modem access and adequate interfacing networking capabilities), all for the installation,
use and maintenance of the System. Before installing the Equipment or Software at a work site, Motorola
may inspect the work site and advise Customer of any apparent deficiencies or non-conformities with the
requirements of this Section. This Agreement is predicated upon normal soil conditions as defined by the
version of E.I.A. standard RS-222 in effect on the Effective Date,
6.3. SITE ISSUES. If a Party determines that the sites identified in the Technical and Implementation
Documents are no longer available or desired, or if subsurface, structural, adverse environmental or
latent conditions at any site differ from those indicated in the Technical and Implementation Documents,
the Parties will promptly investigate the conditions and will select replacement sites or adjust the
installation plans and specifications as necessary. If change in sites or adjustment to the installation
plans and specifications causes a change in the cost or time to perform, the Parties will equitably amend
the Contract Price, Performance Schedule, or both, by a change order.
Section 7 TRAINING
Any training to be provided by Motorola to Customer will be described in the Technical and
Implementation Documents. 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
a 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.
I 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
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9.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance
with the Specifications in all material respects. Upon System Acceptance or Beneficial Use, whichever
occurs first, this System functionality representation is fulfilled, Motorola is not responsible for System
performance deficiencies that are caused by ancillary equipment not furnished by Motorola which is
attached to or used in connection with the System or for reasons or parties beyond Motorola's control,
such as natural causes; the construction of a building that adversely affects the microwave path reliability
or radio frequency (RF) coverage; the addition of frequencies at System sites that cause RF interference
or intermodulation; or Customer changes to load usage or configuration outside the Specifications.
9.2. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment
under normal use and service will be free from material defects in materials and workmanship. If System
Acceptance is delayed beyond six (6) months after shipment of the Equipment by events or causes within
Customer's control, this warranty expires eighteen (18) months after the shipment of the Equipment.
9.3. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License
Agreement, during the Warranty Period, Motorola warrants the Motorola Software in accordance with the
terms of the Software License Agreement and the provisions of this Section 9 that are applicable to the
Motorola Software. If System Acceptance is delayed beyond six (6) months after shipment of the
Motorola Software by events or causes within Customer's control, this warranty expires eighteen (18)
months after the shipment of the Motorola Software. TO THE EXTENT, IF ANY, THAT THERE IS A
SEPARATE LICENSE AGREEMENT PACKAGED WITH, OR PROVIDED ELECTRONICALLY WITH, A
PARTICULAR PRODUCT THAT BECOMES EFFECTIVE ON AN ACT OF ACCEPTANCE BY THE END
USER, THEN THAT AGREEMENT SUPERCEDES THE ATTACHED SOFTWARE LICENSE
AGREEMENT AS TO THE END USER OF EACH SUCH PRODUCT,
9.4. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These
warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Motorola
Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of
God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not
provided or authorized in writing by Motorola; Customer's failure to comply with all applicable industry and
OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or
workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries
(because they carry their own separate limited warranty) or consumables; (v) freight costs to ship
Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does
not affect the operation of the Equipment; and (vii) normal or customary wear and tear.
9.5. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of
the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will
investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at Its
option and at no additional charge to Customer) repair the defective Equipment or Motorola Software,
replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola
Software. That action will be the full extent of Motorola's liability for the warranty claim. If this
investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding
to the claim on a time and materials basis using Motorola's then current labor rates. Repaired or replaced
product is warranted for the balance of the original applicable warranty period. All replaced products or
parts will become the property of Motorola.
9.6. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the System for commercial, industrial, or governmental use only,
and are not assignable or transferable.
9.7. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE
WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS
AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS
ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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Section 10 DELAYS
10.1. FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance if
caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay
performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers
the Force Majeure. If a Force Majeure occurs, the Parties will execute a change order to extend the
Performance Schedule for a time period that is reasonable under the circumstances.
10.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If Customer (including its
other contractors)delays the Performance Schedule, it will make the promised payments according to the
Payment Schedule as if no delay occurred; and the Parties will execute a change order to extend the
Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred
because of the delay. Delay charges may include costs incurred by Motorola or its subcontractors for
additional freight, warehousing and handling of Equipment; extension of the warranties; travel;
suspending and re-mobilizing the work; additional engineering, project management, and standby time
calculated at then current rates; and preparing and implementing an alternative implementation plan.
Section 11 DISPUTES
The Parties will use the following procedure to address any dispute arising under this Agreement (a
"Dispute").
11.1. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the
laws of the State in which the System is installed.
11.2. NEGOTIATION. Either Party may initiate the Dispute resolution procedures by sending a notice
of Dispute ("Notice of Dispute"). The Parties will attempt to resolve the Dispute promptly through good
faith negotiations including 1) timely escalation of the Dispute to executives who have authority to settle
the Dispute and who are at a higher level of management than the persons with direct responsibility for
the matter and 2) direct communication between the executives. If the Dispute has not been resolved
within ten(10)days from the Notice of Dispute, the Parties will proceed to mediation.
11.3 MEDIATION. The Parties will choose an independent mediator within thirty (30) days of a notice
to mediate from either Party ("Notice of Mediation"). Neither Party may unreasonably withhold consent to
the selection of a mediator. If the Parties are unable to agree upon a mediator, either Party may request
that American Arbitration Association nominate a mediator. Each Party will bear its own costs of
mediation, but the Parties will share the cost of the mediator equally. Each Party will participate in the
mediation in good faith and will be represented at the mediation by a business executive with authority to
settle the Dispute.
11.4. LITIGATION, VENUE and JURISDICTION If a Dispute remains unresolved for sixty (60) days
after receipt of the Notice of Mediation, either Party may then submit the Dispute to a court of competent
jurisdiction in the state in which the System is installed. Each Party irrevocably agrees to submit to the
exclusive jurisdiction of the courts in such state over any claim or matter arising under or in connection
with this Agreement.
11.5. CONFIDENTIALITY. All communications pursuant to subsections 11.2 and 11.3 will be treated
as compromise and settlement negotiations for purposes of applicable rules of evidence and any
additional confidentiality protections provided by applicable law. The use of these Dispute resolution
procedures will not be construed under the doctrines of lathes, waiver or estoppel to affect adversely the
rights of either Party.
Section 12 DEFAULT AND TERMINATION
12.1 DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this
Agreement, the other Party may consider the non-performing Party to be in default (unless a Force
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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.
12.3 TERMINATION FOR CONVENIENCE. Customer may terminate this Agreement for its
convenience in whole or in part. To exercise this right, Customer must provide to Motorola formal written
notice at least thirty (30) days in advance of the effective date of the termination. If Customer exercises
this right to terminate for convenience, it will be liable to pay Motorola for services performed and
Software and/or equipment delivered up to the date of termination.
Section 13 INDEMNIFICATION
13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify and hold Customer harmless
from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death,
or direct damage to tangible property which may accrue against Customer to the extent it is caused by
the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties
under this Agreement, if Customer gives Motorola prompt, written notice of any 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.
13.2. GENERAL INDEMNITY BY CUSTOMER. (Deleted)
13.3. PATENT AND COPYRIGHT INFRINGEMENT.
13.3.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on
a third-party claim alleging that the Equipment manufactured by Motorola or the Motorola Software
("Motorola Product") directly infringes a United States patent or copyright ("Infringement Claim").
Motorola's duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in
writing of the Infringement Claim, Motorola having sole control of the defense of the suit and all
negotiations for its settlement or compromise: and Customer providing to Motorola cooperation and, if
requested by Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to
----.. Motorola's obligation to defend, and subject to the same conditions; Motorola will pay all damages finally
awarded against Customer by a court of competent jurisdiction for an Infringement Claim or agreed to, in
writing, by Motorola in settlement of an Infringement Claim.
13.3.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its
option and expense: (a) procure for Customer the right to continue using the Motorola Product; (b)
replace or modify the Motorola Product so that it becomes non-infringing while providing functionally
equivalent performance; or (c) accept the return of the Motorola Product and grant Customer a credit for
the Motorola Product, less a reasonable charge for depreciation. The depreciation amount will be
calculated based upon generally accepted accounting standards.
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13.3.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon:
(a) the combination of the Motorola Product with any software, apparatus or device not furnished by
Motorola; (b)the use of ancillary equipment or software not furnished by Motorola and that is attached to
or used in connection with the Motorola Product, (c) Motorola Product designed or manufactured in
accordance with Customer's designs, specifications, guidelines or instructions, if the alleged infringement
would not have occurred without such designs, specifications, guidelines or instructions; (d) a
modification of the Motorola Product by a party other than Motorola; (e) use of the Motorola Product in a
manner for which the Motorola Product was not designed or that is inconsistent with the terms of this
Agreement; or(f) the failure by Customer to install an enhancement release to the Motorola Software that
is intended to correct the claimed infringement. In no 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.
13.3.4. This Section 13 provides Customer's sole and exclusive remedies and Motorola's entire liability in
the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to
provide any other or further remedies, whether under another provision of this Agreement or any other
legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies
provided in this Section 13 are subject to and limited by the restrictions set forth in Section 14.
Section 14 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty,
negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages
recoverable under law, but not to exceed the price of the Equipment, Software, or services with respect to
which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY
OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY
COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES,
PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE
OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA
PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the expiration or
termination of the Agreement and applies notwithstanding any contrary provision. No action for contract
breach or otherwise relating to the transactions contemplated by this Agreement may be brought more
than one(1)year after the accrual of the cause of action, except for money due upon an open account.
Section 15 CONFIDENTIALITY AND PROPRIETARY RIGHTS
15.1. CONFIDENTIAL INFORMATION. During the term of this Agreement, 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 Confidential Information and not disclose it to any third party, except
as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction; restrict
disclosure of the Confidential Information to its employees who have a "need to know" and not copy or
reproduce the Confidential Information; take necessary and appropriate precautions to guard the
confidentiality of the Confidential Information, including informing its employees who handle the
Confidential Information that it is confidential and is not to be disclosed to others, but these precautions
will be at least the same degree of care that the receiving Party applies to its own confidential information
and will not be less than reasonable care; and use the 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
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a ..„� � � , V a aura as r- t �. a .. �.. ,.
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 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.
16.2. ASSIGNABILITY AND SUBCONTRACTING. Except as provided herein, neither Party may
assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the
other Party, which consent will not be unreasonably withheld. Any attempted assignment, delegation, or
transfer without the necessary consent will be void. Notwithstanding the foregoing, Motorola may assign
this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer.
In addition, in the event Motorola separates one or more of its businesses(each a'Separated Business"),
whether by way of a sale, establishment of a joint venture, spin-off or otherwise (each a "Separation
Event"), Motorola may, without the prior written consent of the other Party and at no additional cost to
Motorola, assign this Agreement such that it will continue to benefit the Separated Business and its
affiliates (and Motorola and its affiliates, to the extent applicable) following the Separation Event.
Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under
this Agreement.
16.3 WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will
not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a
writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either
a future or continuing waiver of that same right or power, or the waiver of any other right or power.
16.4. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or
unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and
effect.
16.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an
independent contractor. The Parties and their personnel will not be considered to be employees or
agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right
or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or
be interpreted as a joint venture, partnership or formal business organization of any kind.
16.6. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are
inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of
the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in
accordance with its terms and conditions and not for or against either Party.
16.7. ENTIRE AGREEMENT, This Agreement, including all Exhibits, constitutes the entire agreement
of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements,
proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement
may be executed in multiple counterparts, each of which shall be an original and all of which shall
constitute one and the same instrument. A facsimile copy or computer image, such as a PDF or tiff
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image, or a signature shall be treated as and shall have the same effect as an original signature. In
addition, a true and correct facsimile copy or computer image of this Agreement shall be treated as and
shall have the same effect as an original signed copy of this document. This Agreement may be
amended or modified only by a written instrument signed by authorized representatives of both Parties.
The preprinted terms and conditions found on any Customer purchase order, acknowledgment or other
form will not be considered an amendment or modification of this Agreement, even if a representative of
each Party signs that document.
16.8. NOTICES. Notices required under this Agreement to be given by one Party to the other must be
in writing and either personally delivered or sent to the address shown below by certified mail, return
receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express,
UPS, or DHL), or by facsimile with correct answerback received, or by personal service, and will be
effective upon receipt:
Motorola Solutions, Inc. Weld County Regional Communications Center
Attn: Law Department Attn: Mike Wallace
1301 E. Algonquin Road 1551 N. 17th Ave
IL01-8th fl Greeley, CO 80631
Schaumburg, IL 60196 fax: (970) 304-6501
fax: 847-576-0721
16.9. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal,
state, and local laws, regulations and rules concerning the performance of this Agreement or use of the
System. Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses
and authorizations required for the installation, operation and use of the System before the scheduled
installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC
license applications, neither Motorola nor any of its employees is an agent or representative of Customer
in FCC or other matters.
16.10. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all
necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties
under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon
execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in
accordance with its terms; and the execution, delivery, and performance of this Agreement does not
violate any bylaw,charter, regulation, law or any other governing authority of the Party.
16.11. ADMINISTRATOR LEVEL ACCOUNT ACCESS. Motorola will provide Customer with
Administrative User Credentials. Customer agrees to only grant Administrative User Credentials to those
personnel with the training or experience to correctly use the access. Customer is responsible for
protecting Administrative User Credentials from disclosure and maintaining Credential validity by, among
other things, updating passwords when required. Customer may be asked to provide valid Administrative
User Credentials when in contact with Motorola System support. Customer understands that changes
made as the Administrative User can significantly impact the performance of the System. Customer
agrees that it will be solely responsible for any negative impact on the System or its users by any such
changes. System issues occurring as a result of changes made by an Administrative User may impact
Motorola's ability to perform its obligations under the Agreement or its Maintenance and Support
Agreement. In such cases, a revision to the_appropriate_provisions._of...t e_Agreementjnciudinl the
Statement of Work, may be necessary. To the extent Motorola provides assistance to correct any issues
caused by or arising out of the use of or failure to maintain Administrative User Credentials, Motorola will
be entitled to bill Customer and Customer will pay Motorola on a time and materials basis for resolving the
issue.
16.12. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this
Agreement for any reason: Section 3.6 (Motorola Software); Section 3.7 (Non-Motorola Software); if any
payment obligations exist, Sections 5.1 and 5.2 (Contract Price and Invoicing and Payment); Subsection
9.7 (Disclaimer of Implied Warranties); Section 11 (Disputes); Section 14 (Limitation of Liability); and
Section 15 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 16.
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16.13 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.
16.14 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.
16.15
The Parties hereby enter into this Agreement as of the Effective Date.
Motorola Solutions,Inc.
By:
Name:
Title: :,! ' . K '
Date: M 20
ATTEST: U G: . dO.tl BOARD OF COUNTY COMMISSIONERS
Weld * * Clerk to the oa d „ WELD COUNTY, COLO ADO
BY: �r A ., ► ,%,,'+ .;.,. �•!�l , r
Deputy Clem to the Boer '/ . , /'� :ar+ara Kirkmeyer, C air D 3 0 2015
,,,A.PoOVER AS T FU s IN c.•fib � �; .rs PPROVED AS TO SUBSTANCE:
Controller Elected Official or Department Head
APPROV D AS TO ORM: NIA
Director of General Services
County ttorney
Motorola.CSA.FINAL.3.7.11.revision.doc �Q
Motorola Contract No. `f'
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