Ordinance No. 8,3039806I.1-3
ORDINANCE NO. 8303
• AN ORDINANCE AUTHORIZING THE EXECUTION OF A THIRD PARTY
AGREEMENT BETWEEN MOTOROLA, INC., AND HOUSTON - GALVESTON
AREA COUNCIL FOR THE PURCHASE OF 800 MHZ SMARTZONE TRUNK
RADIO EQUIPMENT; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the
execution of a third party agreement between Motorola, Inc., and Houston - Galveston Area Council
for the purchase of 800 MHz SmartZone Trunk Radio Equipment. A copy of said agreement is
attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 1 I" day of June, 1998.
�� (!. !!! �' �
PETE C. ALFARO, Mayor
ATTEST:
EIL-EEN P. HALL, City Clerk
APPROVED AS TO FORM:
ERX-re, -�
1
• c:1MyDocumentsl Council\ Mcctings Vunc\MotorolaHGACagreementI Ldoc
0 SYSTEM PURCHASE AGREEMENT
THIS AGREEMENT (" Agreement"), made and entered into this day of June, 1998, by and
between Motorola Inc., a Delaware corporation duly authorized to conduct business in the State
of Texas ( "Motorola" or "Seller "), the Houston- Galveston Area Council, a body corporate and
politic (" H -GAC ") and the City of Baytown, Texas, a body caarporate and politic ("Purchaser").
WITNESSETH:
WHEREAS, the Purchaser desires to purchase a Communications System; and
WHEREAS, Motorola desires to sell a Communications System to Purchaser; and
WHEREAS, H -GAC, acting as the agent for various local governmental entities who are "End
Users" under interlocal agreements (including the Purchaser) has solicited quotations for radio
communications equipment and conducted discussions with Motorola concerning its proposal
and, where applicable, in accordance with the competitive procurement procedures of Texas law;
and
WHEREAS, H -GAC and Motorola entered into that certain Radio Communications Equipment
& Systems Agreement dated as of October 1, 1 997 (the "Contract "), which provided the End
Users may purchase radio communications equipment from Motorola pursuant to certain terms
contained therein; and
WHEREAS, pursuant to Article 40 of the Contract, Purchaser, Motorola and 14 -GAC now wish
to enter into this System Purchase Agreement to delineate the specific terms of the purchase of
radio communications equipment from Motorola by the Purchaser.
THEREFORE, the parties hereby enter into an agreement pursuant to which Motorola shall
perform the work and furnish the equipment and services as more fully set forth herein and in the
Following exhibits, which are either attached hereto or incorporated by reference and hereby
made a part of this Agreement:
Exhibit A General Provisions.
Exhibit B Motorola Software License.
Exhibit C Motorola's Statement of Work, Acceptance Test Plan, and Equipment List.
Exhibit D Motorola/I -I -GAC Radio COmmunlCatlOnS IEquipment & Systems Agreement
dated October 1, 1997.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
N1 utoroWI.1- GAC /13aytown I system Purchase Agmt.
�!A June I I. 1995
fD11 A
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Section 1. SCOPE OF WORK
A. Motorola shall furnish all of the equipment as outlined in Exhibit C, and provide such
tools, supplies, labor and supervision necessary for the installation for those items purchased to
be installed as detailed in Exhibit C for a Communications System.
B. Purchaser shall in addition to responsibilities described in the Statement of Work
included in Exhibit C of this Agreement perform the following coincident with the performance
of this Agreement:
(1 } Provide a designated Project Director.
(2) Provide ingress and egress to Purchaser's facilities and /or sites as requested by Motorola
and have such facilities available for installation of the equipment to be installed.
(3) Provide adequate telephone lines for the installation and operation of the equipment.
(4) Provide adequate AC Power at 117 VAC + 10 %, 60 Hz for the installation and operation
of the equipment.
(5) Provide a designated work- area with adequate heat and light, and a secure storage area for
equipment delivered to the Purchaser. The Purchaser shall be solely liable for loss or damage to
equipment prior to, during and following installation When suclI equipment is on or within
Purchaser's facilities and /or vehicles, except that Motorola will be liable for any loss or damage-
caused by Motorola, its employees and agents.
Section 2 SITES
This Agreement is predicated on the utilization of sites and site configurations, which have been
selected either by the Purchaser or by Motorola as contained in the Motorola proposal. In either
situation, should it be determined by either Motorola or Purchaser during the course of
performance on this Agreement that the sites or configuration selected are no longer available or
desired, new or replacement sites or configuration will be selected and approved by both
Motorola and the Purchaser. If any price adjustments are necessary as a result of these new or
replacement sites, such price adjustments will be added to this Agreement by change order in
accordance with Section 4 of the General Provisions.
Section 3 SUBSURFACE /STRUCTURAL CONDITIONS
This Agreement and the Motorola proposal are predicated upon normal soil conditions defined
by E.I.A. standard RS -222 (latest revision). Should Motorola encounter subsurface, structural,
0 and /or latent conditions at any site differing from those, indicated on the specifications, or as
used in the preparation of the bid price, the Purchaser will be given immediate notice of such
i'vlutorol -M I -GAC /Baytown 2 System Purchase Agntt.
June 11. 1998
conditions before they are further disturbed. Thereupon, Motorola and the Purchaser shall
promptly investigate the conditions and, if found to be different, will adjust the plans and /or
specifications as may be necessary. Any changes which cause an adjustment in the contract price
or in time required for the performance of any part of the contract shall result in a contract
modification in accordance with Section 4 of the General Provisions.
Section 4 PERIOD OF PERFORMANCE _
A. Motorola shall complete the work in accordance with the following schedule:
(1) Delivery date of equipment: Refer to "System Timeline" section in proposal.
(2) Completion of installation: Refer to "System Timeline" section in proposal.
(3) Final Acceptance /Completion of Acceptance Test: Refer to "System Timeline" section in
proposal.
B. Whenever Motorola knows or reasonably should know that any actual or potential
condition due to circumstances beyond its control is delaying or threatens to delay the timely
performance of the work, Motorola shall within thirty (30) days give Purchaser notice thereof
and may request an extension of time to perform the work.
C. In order to successfully integrate and implement this project, shipments will be made
F.O.B. Destination to Purchaser facilities, local Motorola staging facilities, warehousing
facilities, or any combination thereof. It is agreed that this plan is acceptable to Purchaser and
that Motorola will advise prior to shipment of actual destination and that purchaser will accept
shipment, and make payment as required by this Agreement.
D. It is also agreed that equipment shipping dates reflected in this agreement or in Motorola
proposals are estimates only, and that shipment may be made at any time prior to, or subsequent
to these estimated shipping dates.
Section 5 ACCEPTANCE CRITERIA
A. Motorola has included an Acceptance Test Plan ("ATP") which has been agreed to by
both parties either in writing prior to this Agreement or by execution of this Agreement and is a
part of Exhibit C to this Agreement. The successful completion of the ATP will be the sole
criterion for system acceptance. Purchaser shall advise I -1 -GAC once the ATP has been
successfully completed.
B. Should the Purchaser commence use of the system or any sub - system thereof for their
intended purposes, other than for the express purposes of training or testing, prior to system
acceptance, final payment for said system or sub - system shall be due net thirty (30) days upon
® receipt of invoice. The warranty or maintenance periods for such equipment put into use, unless
warranty or maintenance has already begun, shall be deemed to have commenced concurrently
NIotorola/1.1- GAGllaytawn 3 Systcm Purctt:uc Agin(.
June 11. 1998
with the use of the equipment for its intended purpose. The use of the equipment for its intended
purpose shall be deemed to have occurred when the Purchaser commences to use and rely
primarily on the equipment for its communications.
C. Upon notification by Motorola that the system is available for acceptance testing, it is
agreed that should the acceptance testing of the system or any subsystem thereof be delayed for
reasons beyond Motorola's control, that final payment for the subsystem or system shall become
due net thirty (30) days and warranty or maintenance shall commence upon notice to Purchaser
by Motorola.
Section 6 PAYMENT SCHEDULE
A. Motorola agrees to sell all of the equipment and perform the services as outlined in the
Scope of Work, and Purchaser agrees to buy the aforementioned equipment and services for the
sum of One Million Six Hundred Seventy -Nine Thousand Nine Hundred Thirty and 69/100
($1,679,930.69) Dollars, not including the H -GAC administration fee of approximately Nineteen
Thousand One Hundred Thirty -nine and 45/100 ($19,139.45) Dollars. Tile final price may be
adjusted by change orders approved pursuant to Statement of Work attached hereto as Exhibit
t_ c„
B. Payments to Motorola shall be made according to the following milestones:
Total
Payment # Date Description Percentage Amount Payment
1
1 -Jul
System Downpayment
20%
5335,986.14
5335,986.14
1 -Jul
H -GAC Pee
$ 19,139.45
2
1 -Sep
Console Delivered
60%
5109,383.33
1 -Sep
Project Management
60%
$82,451.10
$191,834.43
3
15 -Oct
Console Installed
10%
$18,230.56
15 -Oct
Project Management
10%
513,741.85
$31,972.41
4
15 -Nov
Console Accepted
10%
518,230.56
15 -Nov
Project Management
10%
513,741.85
$31,972.41
5
1 -Dec
Data Infrastructure Delivered
60%
$124,140.81
$124,140.81
6
15 -Dec
Data Infrastructure Installed
10%
$20,690.14
15 -Dec
Subscriber Units Delivered
50%
$507,943.40
15 -Dec
Project Management
50%
$68,709.25
$597,342.78
7
15 -Jan
Data Infrastructure Accepted
10%
$20,690.14
$20,690.14
8
15 -Feb
Subscribers Installed
10%
$101,588.68
1 -Mar
Subscribers Accepted
20%
5203,177.36
1 -Mar
Project Management
30%
$41,225.55
$345,991.59
Moturukdl I- GAC /Baytown
1
Systcni
Nlreltasc Agml.
June I L 1993
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Total $1,679,930.69
Payments:
H -GAC Fee: $19,139.45
C. In the event of failure or delay by the Purchaser in providing sites, space, approvals,
licenses, or any other Purchaser obligations required preceding delivery of Motorola equipment,
it is agreed that Motorola, at its sole discretion, may ship equipment as planned and that the
Purchaser will accept the equipment and make payment in accordance with the terms of this
Agreement. Any additional costs incurred by Motorola for storage of equipment will be invoiced
and paid by Purchaser. The foregoing will not apply, however, to delays beyond the control of
the Purchaser, as further described in Exhibit A, Section 6, Excusable Delays.
D. Payments to Motorola shall be made as follows:
(1) Motorola will generate billings and submit same to H -GAC for the period prior to
the date of each milestone.
(ii) H -GAC shall immediately forward an invoice for the payment requested by
Motorola in Section 6(D)(1) above to Purchaser. Motorola shall simultaneously be sent a copy of
the invoice H -GAC sends to the Purchaser.
(iii) The project managers for Purchaser and Motorola shall each give written notice to
11-GAC, within five (5) days of their respective receipt of H -GAC's invoice, that the designated
milestone has or has not been achieved.
(iv) Purchaser shall pay the H -GAC invoice within thirty (30) calendar days of receipt
by H -GAC of ,,k,-ritten notice from Purchaser and Motorola that the milestone has been achieved.
(v) H -GAC shall pay Motorola the requested milestone within thirty (30) calendar
days of receipt of the Purchaser's payment to H -GAC.
Section 7 PROJECT MANAGEMENT
A. If the size or complexity of the project warrants, Motorola will assign a Project Manager,
who is authorized to exercise technical direction of this pro.icct. Motorola, at any time, may
designate a new or alternate Project Manager with written notice to Purchaser and H -GAC.
B. All matters affecting the terms of this Agreement or the administration thereof shall be
referred to Motorola's cognizant Contract Administrator who shall haVC altthOrity to negotiate
changes in or amendments to this Agreement.
\90 loco la/H- GAC /naytown 5 • System Purchase Agmt.
Jude 11. 1998
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Section 8 NOTICE ADDRESSES
A. Motorola, Inc.
9980 Carroll Canyon Road
San Diego, Ca 92131 -1186
Attn.: Contracts And Compliance Department _
B. City of Baytown
P.O. Box 424
Baytown, TX 77522
Attn.: City Manager
C. Houston - Galveston Area Council
3555 Timmons Lane, Suite 500
Houston, Texas 77027
Attn.: Public Services Manager
Section 9 ORDER Or PRECEDENCE
In the event of an inconsistency in this Agreement, the inconsistency shall be resolved in the
following order:
This Agreement
Exhibit A General Provisions.
Exhibit B Motorola Software License.
Exhibit C Motorola's Statement of Work, Acceptance Test Plan, and Equipment List.
Exhibit D Motorola/H -GAC Radio Communications Equipment & Systems Agreement
dated October 1, 1997.
Section 10 DISPUTES
Motorola and the Purchaser will attempt to settle any claim or controversy arising out of this
Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation.
If those attempts fail, then the dispute will be mediated by a mutually acceptable mediator to be
chosen by Motorola and the Purchaser within thirty (30) days after written notice by one of the
parties demanding non - binding mediation. Neither one of the parties may unreasonably withhold
consent to the selection of a mediator, and Motorola and the Purchascr will share the cost of the
mediation equally. By mutual agreement, however, ivlotorola and Purchascr may postpone
NlotoroWl 1- GAC/Daytown - G - System Purchase Asmt.
June 11, 1998
• s
mediation until both parties have completed some specified but limited discovery about the
dispute. The parties may also agree to replace mediation with some other form of non-binding
alternate dispute resolution procedure ("ADR").
Any dispute which cannot be resolved between the parties through negotiation or mediation
within two (2) months of the date of the initial demand for it by one of the parties may then be
submitted to a court of competent jurisdiction in Texas. Both Motorola and Purchaser consent to
jurisdiction over it by such a court. The use of any ADR procedures will not be considered under
the doctrine of laches, waiver or estoppel to affect adversely the rights of either party. Nothing
shall prevent either of the parties from resorting to the judicial proceedings mentioned in this
paragraph if (a) good faith efforts to attempt resolution of the dispute under these procedures
have been unsuccessful or (b) interim relief from the court is necessary to prevent serious and
irreparable injury to one of the parties or others.
Section 11 SEVERABILITY
If any portion of this Agreement or any exhibits hereto is held to be invalid, such provision shall
be considered severable, and the remainder of this Agreement or any provision hereof shall not
be affected.
Section 12 HEADINGS AND SECTION REFERENCES
The headings given to the paragraphs herein are inserted only for convenience and are in no way
to be construed as part of this Agreement or as a limitation of the scope of the particular
paragraph to which the heading refers.
Section 13 FULL AGREEMENT
This Agreement and Exhibits hereto constitute the final expression of the agreement of the
parties and supersedes all previous agreements and understandings, whether written or oral,
relating to the work. This Agreement may not be altered, amended, or modified except by
written instrument signed by the duly authorized representatives of both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives as of the last day and year written below.
MOTOROLA, INC. CITY OF BAYTOWN
y: By: � C' g--e
(Sign turc) (Signature)
Name: 2A-leg,t1 `W Name: Pete C. Alfaro
(Print- ""ck Letters) (Print-Block Letters)
Motorola/I 1-GAC/Baytown -7- System Purchase Agmt.
June I I, 1998
•
Title: V L.S PeSS Z9 Title: Mayor
(Print-Block Letters) (Print-Block Letters)
Date: 6- 2 3-q T Date:
REVIEWED AND APPROVED
di TO FORMda
7 q$
ARK HTHONY DATE
MOTOROLA
CONTRACTS AND COMPLIANCE DEPT
HOUSTON-GALVESTON AREA COUNCIL
By:
C.-' J (Signature)
Name: LIite- - STeCL
(Print-Block Letters)
Title: e 1( C-0- f VC D( zG C..i61e
(Print- Block Letters)
Date: Nt011•
Motorola/l I-GAC/Baytown -8- System Purchase Agmt.
June 1 I. 1998
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EXHIBIT A
GENERAL PROVISIONS
MOTOROLA, INC.
Section I STANDARDS OF WORK
Motorola agrees that the performance of work described in this Agreement and pursuant to this
Agreement shall be done in a professional manner and shall conform to professional standards.
All packaging and packing shall be in accordance with good commercial practice.
Section 2 TAXES
The prices set forth in the Agreement are exclusive of any amount for Federal, State or Local
excise, sales, lease, gross income service, rental, use, property, occupation or similar taxes. If
any taxes are determined applicable to this transaction or Motorola is required to pay or bear the
burden thereof, the Purchaser agrees to pay to Motorola the amount of such taxes and any interest
or penalty thereon no later than thirty (30) days after receipt of an invoice therefor.
Section 3 SHIPPING, TITLE AND RISK OF LOSS
All sales and deliveries are F.O.B. Destination. Motorola reserves the right to make deliveries in
installments and the Agreement shall be severable as to such installments. Title to the equipment
shall pass to the Purchaser upon receipt at the F.O.B. Point. After delivery to the F.O.B. Point,
risk of loss and damage to the articles shall be borne by the Purchaser. The above
notwithstanding title to software and any third party supplied software shall not pass upon
payment of the license fee therefor or under any circumstances.
Section 4 CHANGES IN T14E WORK
A. The Purchaser may, at any time, by written order, make changes within the general scope
of the work, including but not limited to revisions of, or additions to, portions of the work, or
changes in method of shipment or packaging and place of delivery.
B. If any order under this Section 4 causes an increase or decrease in the cost of or time
required for the performance of any part of the work under this Agreement, an equitable
adjustment shall be made in the Agreement price or delivery schedule, or both, and the
Agreement shall be modified in writing accordingly. Motorola is not obligated to comply with
any order hereunder unless and until the parties reach agreement as to the aforementioned
equitable adjustment and same is reflected as an addendum to this Agreement.
Section S LIMITATION OF LIABILITY
Nlotorol- M-1GAC/ - I -
System Purchase Agmt. • Gxh. "A-
Junc 11. 1998
• Except for personal injury or death, Motorola's total liability whether for breach of contract,
warranty, negligence, strict liability in tort or otherwise, is limited to the price of the particular
products sold hereunder with respect to which losses or damages are claimed. Purchaser's sole
remedy is to request Motorola at Motorola's option to either refund the purchase price, repair or
replace product(s) that are not as warranted. IN NO EVENT WILL MOTOROLA BE LIABLE
FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS,
LOST PROFITS OR SAVINGS OR OTHER INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH MAY BE DISCLAIMED
BY LAW.
Section 6 EXCUSABLE DELAYS
A. Neither Motorola nor the Purchaser shall be responsible for delays or lack of performance
resulting from acts beyond the reasonable control of the party or parties. Such acts shall include,
but not be limited to, acts of God; fire; strikes; material shortages; compliance with laws or
regulations; riots, acts of war; or any other conditions beyond the reasonable control of the party
or parties.
B. Delays as identified herein may cause an impact on the Period of Performance stated in
the Agreement. Such delays will be subject to an Agreement addendum as described in Section
4.
Section 7 DEFAULT
A. If Motorola is wholly responsible for failure to make delivery or complete installation
under the agreement, the Purchaser may consider yotorola to be in default, unless such failure
has been caused by the conditions set forth in Section 6 of these General Provisions.
B. The purchaser shall give Motorola written notice of such default and Motorola shall have
thirty (30) days to provide a plan of action, acceptable to Purchaser, to cure said default. If
Motorola fails to cure said default, the Purchaser may terminate any unfulfilled portion of this
Agreement or complete the system through a third party. In the event the Purchaser completes
the system through a third party, Motorola shall be responsible for an amount in excess of the
Agreement price, not to exceed the value of the terminated portion, incurred by the Purchaser in
completing the system to a capability not exceeding that specified in the Agreement. IN THE
EVENT OF DEFAULT, MOTOROLA SHALL NOT BE LIABLE FOR ANY INCIDENTAL,
LIQUIDATED, SPECIAL OR CONSEQUENTIAL DAMAGES.
Section 8 DELAYS BY PURCHASER
If the Purchaser is responsible for delays which cause the installation and acceptance of this
system as defined in the Agreement, to be rescheduled beyond the Period of Performance set
forth in the Agreement, the Purchaser shall be liable for reasonable costs incurred by Motorola
0 resulting from these delays. Such charges may include, but are not limited to, additional
Engineering; rescheduling charges; storage charges; maintenance charges; and transportation
Nlotorola/HGAC - 2 - System Purchase Abort. - E:xh, " A"
June 11, 19929
charges. The Purchaser shall have the option to attempt to minimize actual costs incurred by
storing and transporting equipment at its own expense.
Section 9 LICENSES /AUTHORIZATION
The Purchaser is solely responsible for obtaining any licenses or other authorizations required by
the Federal Communications Commission and for complyingwith FCC rules. Neither Motorola
nor any of its employees is an agent or representative of the Purchaser in FCC matters or
otherwise. Motorola, however, shall assist in the preparation of the license application at no
charge to the Purchaser. Purchaser acknowledges that project implementation is predicated on
receipt of proper FCC licensing.
Section 10 INDEMNIFICATION
Motorola agrees to and hereby indemnifies and saves Purchaser and/or H -GAC harmless from all
liabilities, judgments, costs, damages and expenses which may accrue against, be charged to, or
recovered from the Purchaser and/or H -GAC by reason of or on account of damage to the
property of the Purchaser or the property of, injury to, or death of any person, when such damage
or injury is caused by Motorola's negligence or that of its employees, subcontractors, or agents
while on the premises of the Purchaser during the delivery and installation of the
communications equipment. If Purchaser's negligence combines with Motorola's negligence to
cause such injury or damage, the Parties agree to an apportionment of liability between them as
determined by a court of competent jurisdiction. IN NO EVENT WILL MOTOROLA BE
LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES.
Section 11 EQUIPMENT COMPATIBILITY; PRODUCT SUPPORT
Motorola agrees that the equipment, will perform in accordance with the specifications and
representations stated in Motorola's Proposal and Equipment List included in this Agreement.
This Agreement does not extend to the performance of the equipment as a part of a larger system
generally nor specifically to equipment in combination with products, elements or components
not supplied by Motorola.
Motorola will provide product support for three (3) years from the last date of manufacture for
subscriber equipment and five (5) years from the date of last manufacture for fixed infrastructure
equipment. Motorola is not responsible for supplying replacement parts for equipment not
manufactured by Motorola; however, every effort \vill be made to supply replacement parts if
originals are not available. Motorola reserves the rights to supply either assembles or piece parts.
Section 12 WARRANTIES
A. Motorola represents and warrants that all products, software, and items delivered under
® this Agreement conform in design, materials and workmanship to the appropriate Motorola
Technical Specifications. Motorola further warrants that their products, software, and other
Niotoroh/1-IGACI 3 System Purchase Agmt. - L\h. "A"
June 1 I. 1998
items will interact according to the specifications contained in Exhibits C. Successful
completion of the ATP shall constitute full compliance with and fulfillment of this warranty.
B. Hardware Warranty: Motorola radio communications products are warranted to be free
From defects in material and workmanship for a period of one (1) year, except for crystal
devices, channel elements, high stability oscillators (other than reference oscillators used- for
frequency synthesis which are warranted for one (1) year) and crystal filters, which are warranted
for a period of ten (10) years from the date of shipment. Parts, including crystals and channel
elements, will be replaced free of charge for the full warranty period and the labor to replace
defective parts will be provided for one hundred twenty (120) days from the date of shipment.
Thereafter, the purchaser must pay for the labor involved in repairing the product or replacing the
parts at the prevailing rates together with any transportation charges to or from the place where
warranty service is provided. This express warranty is extended by Motorola, Inc., 1301 E.
Algonquin Road, Schaumburg, Illinois 60196, to the original purchaser only, and only to those
purchasing for purpose of leasing or solely for commercial, industrial, or governmental use.
C. Software Warranty: The warranty for software, if any, shall be governed by the separate
software license agreement set forth in Exhibit B.
D. THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION OF THIS
.AGREEMENT ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT
SUCH MAY BE DISCLAIMED BY LAW.
E. In the event of a defect, malfunction or failure to conform to specifications established by
\Motorola, or if appropriate, to specifications accepted by Motorola In \�Titing, during the period
shown, Motorola, at its option, will either repair or replace free of charge the product or refund
the purchase price thereof, and such action on the part of Motorola shall be the full extent of
t Motorola's liability hereunder.
This warranty is void if:
(a) the product is used in other than its normal and customary manner;
(b) the product has been subject to misuse, accident, neglect or damage;
(c) unauthorized alterations or repairs have been made, or unapproved parts used in the
equipment.
F. This warranty extends only to individual products; batteries are exclLIdcd but carry their
own separate limited warranty. Because each radio system is unique, Motorola disclaims
liability for range, coverage, or operation of the system as a whole under this warranty. Non-
Nlotorala/I1Gr1C/ - 4 - System Purchase Agmt. - Lxh.
Junc It. 1998
Motorola manufactured products are excluded from this warranty, but subject to the warranty
provided by their manufacturers, a copy of which will be supplied to the Purchaser on specific
written request.
G. In order to obtain performance of this warranty, the Purchaser must contact its Motorola
salesperson or Motorola at the address first above shown attention Quality Assurance
Department. ,
Section 13 CONFIDENTIAL INFORMATION
Motorola proprietary computer programs will be released in accordance with the Software
License provisions set forth elsewhere, if applicable. All other material and information of
confidential nature marked Motorola PROPRIETARY-and CONFIDENTIAL will be released as
necessary under the following conditions:
(1) Purchaser shall exercise reasonable and prudent measures to keep these items in
confidence.
(2) To the extent allowed by Texas law, Purchaser shall not disclose these items to third
parties without prior written permission, unless Motorola makes them public or Purchaser learns
them rightfully from sources independent of Motorola, or it is required by law to be disclosed.
(3) To the extent allowed by Texas law, Motorola, where necessary, retains the right to
prescribe specific security measures for the Purchaser to follow to maintain the confidentiality.
In the event disclosure of such information is necessary, a separate Non - Disclosure Agreement
will be required.
If Purchaser does receive a request for disclosure of Motorola proprietary or confidential
information, Purchaser will notify Motorola of the request so as to permit Motorola the
opportunity to protect its interests.
Section 14 SOFTWARE; LICENSE AND WARRANTY
Motorola will, in the course of the transaction for the items of equipment identified in the
Agreement, deliver to Purchaser, on a licensed basis, one or more computer programs (Product
Program). Delivery of all Product Programs by Motorola and acceptance of same by Purchaser
shall be made only under the terms and conditions as contained in Exhibit I3 attached hereto and
made a part hereof. The terms and conditions of the License Agreement contained in Exhibit l3
shall survive the completion of the Agreement. The parties expressly agree that the terms of the
License Agreement are binding upon only the Purchaser and Motorola and in no way creates any
rights or obligations in or on the part of H -GAC.
Section 15 PATENT INDEMNIFICATION
MotorokAIGAC/ - 5 - System Purchase Agntt. - EN11.
Junc 11. 1998
® Motorola agrees to defend, at its expense, any suits against Purchaser or H -GAC based upon a
claim that any products furnished hereunder infringes a U.S. patent or copyright, and to pay costs
and damages finally awarded in any such suit, provided that Motorola is notified promptly in
writing and at Motorola's request and expense is given control of said suit and all requested
assistance for defense of same. If the use or sate of any such product(s) furnished hereunder is
enjoined as a result such suit, Motorola, at its option and at no expense to Purchaser or H -GAC,
shall obtain Purchaser the right to use or sell said products) or shall substitute an equivalent
product or products reasonably acceptable to Purchaser and extend this indemnity thereto or shall
accept the return of said product(s) and reimburse Purchaser the full purchase price therefor, less
a reasonable charge for reasonable wear and tear. This indemnity does not extend to any suit
based upon any infringement or alleged infringement of any patent or copyright by the
combination of any product(s) furnished by Motorola and other elements nor does it extend to
any product(s) of Purchaser's or H -CAC's design or formula.
Section 16 DISCLAIMER OF PATENT LICENSE
Nothing contained in this Agreement shall be deemed to grant, either directly or by implication,
estoppel, or otherwise, any license under any patents or patent applications of Motorola, except
that Purchaser shall have the normal non- exclusive royalty -free license to use that is implied, or
otherwise arises by operation of law, in the sale of a product.
Section 17 WAIVER
Failure or delay on the part of Motorola or Purchaser to exercise right or power hereunder shall
not operate as a waiver thereof.
Section 18 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of
Texas.
Section 19 ASSIGNABILITY
The Agreement may not be assigned by any party hereto other than Motorola may assign this
order to one of its Subsidiaries as in the normal course of business.
NIoIorola/1-1GAC/ G - System Purchase Agmt. - Lxh. "A"
Junc I I, 1998
0 MOTOROLA END -USER SOMVARE LICENSE AGREEMENT
This Software License Agreement is between Motorola, Inc. (" Ntotorola" ), having an office at 1301 East
Algonquin Road, Schaumburg, Illinois 60196, and the City of Baytown, Texas ( "Licensee ") located at
1. Scope. Licensee may acquire from Motorola's Land Mobile Products Sector (" LMPS ") radio communication
products ("Products") that contain embedded or pre- loaded Motorola software such as in a ROM, PROM, or
EPROM, or other Motorola software provided on media such as a floppy—disk, tape, diskette, or CD -ROM. All such
software (including Radio Service Software and FLASHport® Software) is referred to as " Motorola Software."
This Agreement contains the terms under which Licensee may use Motorola Software acquired from LMPS.
2. Grant of License. Motorola hereby grants to Licensee a personal, non - exclusive license under Motorola's
applicable proprietary rights to use Motorola Software in accordance with the terms of this Agreement.
3. Limitations on Use. Licensee may use Motorola Software only for Licensee's intemal business purposes and
only as described in the Motorola Software or Product documentation. Any other use of Motorola Software is
strictly prohibited and will be deemed a breach of this Agreement. Licensee may not copy, modify, adapt, merge
with other software, reverse engineer, or disassemble any Motorola Software for any reason, except that Licensee
may make at most two copies of Motorola Software provided with infrastructure equipment for back -up purposes.
Licensee must purchase a copy of Radio Service Software for each site at which Licensee uses Radio Service
Software; Licensee may make one additional copy for each computer owned or controlled by Licensee at each such
site. Licensee may temporarily use Radio Service Software on portable or lap -top computers at other sites. Prior to
acquiring any Radio Service Software or upon Motorola's request, Licensee must provide a written list of all sites
where Licensee uses or intends to use Radio Service Software. Licensee must reproduce all Motorola copyright and
trademark notices on all copies of Motorola Software.
4, Transfers, If Licensee transfers ownership of Products to a third party, Licensee may assign its rights to use
Motorola Software (other than Radio Service Software and FLASHpon® Software) embedded in or furnished for
use with those Products provided that (a) Licensee transfers all copies of such Motorola Software to the nc%v owner
and (b) Motorola receives a transfer form (which iNlotorola will provide upon request) completed and signed by the
new owner. Otherwise, Licensee may not transfer or make available any Motorola Software to any third party.
5. Ownership and Title. Title to all copies of Motorola Software in any form, including all rights in patents,
copyrights, trade secrets, and other intellectual properties, remains vested exclusively in Motorola.
6. Confidentiality. Licensee acknowledges that all Motorola Software contains valuable proprietary information
and trade secrets and that unauthorized dissemination, distribution, modification, reverse engineering, disassembly,
or other improper use of Motorola Software will result in irreparable harm to ivIotorola for which monetary damages
would be inadequate. Accordingly, Licensee will limit access to Motorola Software to those of its employees and
agents who need to use Motorola Software for Licensee's internal business purposes, and Licensee will take
appropriate action with those employees and agents to preserve the confidentiality of Motorola Software.
7. maintenance and Support. No maintenance or support is provided under this Agreement. Maintenance or
support, if available, will be provided under a Motorola Software Maintenance and Support Agreement.
S. Lintited Warranty. For the first 120 days after initial shipment of Motorola Software, Motorola warrants that the
Motorola Software, when used properly, will be free from reproducible defects that materially vary from its
published specifications. Motorola does not warrant that Licensee's use of the �Nlotorola Software or the Products
will be uninterrupted or error -free or that the Motorola Software or the Products will meet Licensee's particular
requirements. tWolorola's total liability, and Licensee's sole remedy, for any breach of this warranty will be limited
to, at iWotorola's option, repair or replacement of the rtlotorola Software or payment of licensee's actual damages
up to the omount paid to Motorola for the rtlotorola Software or the individual product in which the Motorola
software is embedded or for which it was provided. This warranty extends only to the first Licensee; subsequent
. 1 . Symcm Purchase Agt. - F-rh. "n"
tlohoroli/IIGAG_ m I Ic 11. 1993
• •
transferees must accept the Motorola Software "As Is" and with no warranties of any kind. Motorola disclaims all
other warranties, express or implied, including the implied warranties of merchantability and fitness for a
particular purpose.
9. Limitation of Liability. In no event will Motorola be liable for incidental or consequential damages even if
advised of the possibility of such damages
10. Term and Termination. Licensee's right to use Motorola Software will begin when Licensee sends a duly
executed copy of this Agreement to Motorola, and either (a) Motorola returns a fully executed Agreement to
Licensee or(b) Motorola ships Motorola Software or a Product containing Motorola Software to Licensee, and will
continue in perpetuity unless terminated as follows. Licensee's right to use Motorola Software will terminate
without notice upon a breach of this Agreement by Licensee. In addition, if Motorola reasonably believes that
Licensee intends to breach this Agreement with respect to Radio Service Software or FLASHport® Software,
Motorola may, by notice to Licensee, terminate Licensee's right to use such Motorola Software. Upon termination,
Motorola will be entitled to immediate injunctive relief without proving damages and, unless Licensee is a
sovereign government entity, Motorola will have the right to repossess all Radio Service Software and
FLASHport®Software in Licensee's possession. Within thirty days after termination of Licensee's right to use any
Motorola Software, Licensee must certify in writing to Motorola that all copies of such Motorola Software have
been returned to Motorola or destroyed.
//. Notices. All notices, consents, and waivers permitted or required under this Agreement will be deemed given
upon receipt and must be delivered in writing to the addresses at the top of this Agreement and, if to Motorola, to
the LMPS Technical Assets Manager, Room 2305. Change of address must be in writing to the other party.
l 2. General
Copyright Notices. The existence of a copyright notice on Motorola Software will not be construed as an admission
or presumption that public disclosure of Motorola Software or any trade secrets associated with Motorola Software
has occurred.
Non-Motorola Software. Motorola may provide non-Motorola software to Licensee under the terms of separate
license agreements with the owners of such software. Licensee will abide by the terms of these licenses.
Causes of Action. Licensee must bring any action under this Agreement within one year after the cause of action
arises except that warranty claims must be brought within the 120-day warranty period.
Waivers. No waiver of a right or remedy of a party will constitute a waiver of another right or remedy of that party.
Assignments. Motorola may assign any of its rights or subcontract any of its obligations under this Agreement, or
encumber or sell any of its rights in any Motorola Software,without prior notice to or consent of Licensee.
Entire Agreement and Amendment. This Agreement contains the parties' entire agreement regarding Licensee's use
of Motorola Software and may be amended only in a writing signed by both parties, except that Motorola may
modify this Agreement as necessary to comply with applicable laws and regulations including FCC regulations.
Governing Law. This Agreement will be governed by the laws of the United States of America to the extent that
they apply and otherwise by the laws of the State of Texas.
LIcENsoR/MOTOROLA INc. LICENSEE/CITY OF BIAYTOWN
y fr
: y.
(Signature) (Stgnatire)
Motorol✓IIGAC/_ -2. System Purchase Agnit.-E.sh.-El-
June II.I998
0 •
Name: L{ A O0� Name: Pete C. Alfaro
(Print-Block LeW
rs) (Print-Block Letters)
Title: U.�(c— Pk8 S Z-D610 T Title: Mayor
(Print-Block Letters) (Print-Block Letters)
Date: 2 3 ve Date:
REVIEWED AND APPROVED
TO fl ?�3�53'
MARK ANTHONY ICI
DATE
TOROLA
CONTRACTS AND COMPLIANCE DEPT
Motorola/FIGAC/ -3- System Purchase Agmi.-Exh."B"
June 11.1998