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R-07-03-22-10B1 - 3/22/2007 RESOLUTION NO. R-07-03-22-10131 WHEREAS, the Countywide Integrated Communications System ("CWICS") has operated a public safety radio communications system for years, and WHEREAS, CWICS is implementing a digital radio system which will require members to replace their existing equipment, and WHEREAS, the City Council wishes to enter into a Communications Products Agreement with Motorola for radios, related equipment, and services associated with the implementation of a digital radio system, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Communications Products Agreement with Motorola, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes . The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 22nd day of March, 20 NYLELL, Mayor 7Z . Cit Ro ound Rock, Texas lAbujko' P44&a�- CHRISTINE R. MARTINEZ, City Secr tart' O:\wdox\RESOLUTI\R70322B1.WPD/zmc COMMUNICATIONS PRODUCTS AGREEMENT Motorola, Inc. ("Motorola"), and the City of Round Rock, Texas ("Customer") enter into this "Agreement," pursuant to which Customer will purchase and Motorola will sell the Products, as described below. Seller 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 the exhibits will be resolved in their listed order. Exhibit A Motorola"Software License Agreement" Exhibit B "Technical and Implementation Documents" Exhibit B-1 "List of Products" dated 2-9-07 (Price Quote) Exhibit B-2 "Statement of Work" dated 3-19-07 Exhibit C Motorola"Replacement Parts Availability Goal Statement" Section 2 Definitions Capitalized terms used in this Agreement have the following meanings: 2.1. "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. 2.2. "Contract Price" means the price for the Products, excluding applicable sales or similar taxes and freight charges. 2.3. "Effective Date" means that date upon which the last Party executes this Agreement. 2.4. "Equipment" means the equipment listed in the List of Products that Customer purchases from Motorola under this Agreement. 00112294/jkg CPAYINAL.Set.1.10.05.revision.doc EXHIBIT Motorola Contract No. uAn 2.5. "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). 2.6. "Infringement Claim" means a third party claim alleging that the Equipment manufactured by Motorola or the Motorola Software infringes upon the third party's United States patent or copyright. 2.7. "Motorola Software" means Software that Motorola or its affiliated company owns. 2.8. "Non-Motorola Software" means Software that another party owns. 2.9. "Open Source Software" (also called"freeware" or"shareware")means software that has its underlying source code freely available to evaluate, copy, and modify. 2.10. "Products" mean the Equipment and Software provided by Motorola under this Agreement. 2.11. "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- 2.12. ly2.12. "Software" means the Motorola Software and Non-Motorola Software in object code format that is furnished with the Products. 2.13. "Warranty Period" means one (1) year from the date of Phase One acceptance of the Products as defined in the Statement of Work. Section 3 Scone of Aereement and Term 3.1. Scope of Work. Motorola will provide and install (if applicable) the Products, 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. 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 00112294/jkg 2 CPA.FINAL.Set.1.10.05.revisiondoc Motorola Contract No. Effective Date and continues until the expiration of the Warranty Period or three (3) years from the Effective Date, whichever occurs last. 3.4. Additional Equipment or Software. During the Term of this Agreement, Customer may order additional Equipment or Software if it is then available. Each order must refer to this Agreement and must specify the pricing and delivery terms. Notwithstanding any additional or contrary terms in the order, the applicable provisions of this Agreement (except for pricing, delivery, and payment terms) will govern the purchase and sale of the additional Equipment or Software. Payment is due in accordance with the Prompt Payment Policy stated herein, and 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 http://www.motorola.com/businessandgovemment/ and the MOL telephone number is (800) 814-0601. 3.5. Maintenance Service. This Agreement does not cover maintenance or support of the Products except as provided under the warranty. Customer has purchased post-warranty support for the radios as described in Exhibit B-1 (Price Quote) for Years Two and Three. If Customer wishes to purchase additional maintenance or support, Motorola will provide a separate maintenance and support proposal upon request. 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. 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 00112294/jkg 3 CPA.FINAL Set.1.10.05.revision.doc Motorola Contract No. 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, 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. 3.9 Prompt Payment Policy. Payments will be made within thirty (30) days after the City receives the supplies,materials, equipment, or the day on which the performance of services was completed or the day on which the City receives a correct invoice for the service, whichever is later. Motorola may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this Prompt Payment Policy; however, this policy does not apply to payments made by the City in the event: 3.9.1 There is a bona fide dispute between the City and Motorola concerning the supplies, materials, services or equipment delivered or the services performed that causes the payment to be late; or 3.9.2 The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or 3.9.3 There is a bona fide dispute between Motorola and a subcontractor or between a subcontractor and its suppliers concerning supplies, material, or equipment delivered or the services performed which caused the payment to be late; or 3.9.4 The invoice is not mailed to the City in strict accordance with instructions, if any, on the purchase order or contract or other such contractual agreement. Section 4 Performance Schedule If this Agreement includes the performance of services, the Statement of Work will describe the performance schedule. Section 5 Contract Price, Payment, and Invoicing 5.1. Contract Price. The Contract Price in U.S. dollars is One Million Seven Hundred Fifty-nine Thousand One Hundred Sixty-Nine Dollars and 26/100($1,759,169.26). 5.2. Invoicing and Payment. Motorola will submit invoices to Customer according to the following Payment Schedule: 95%of subscriber units contract pricing upon shipment of the Mobiles/Portables 00112294/jkg 4 CPATINAL.Set.1.10.05.revision.doc Motorola Contract No. 5%of subscriber units price upon completion of installation, programming 100%of Phase 1 Services as such services are completed 100%of Phase 2 Services as such services are completed. Customer will make payments to Motorola in accordance with the Prompt Payment Policy stated herein. 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 an amount not exceeding the maximum allowable rate. For Customer's reference, the Federal Tax Identification Number for Motorola, Inc. is 36-1115800. 5.3. Freight, Title, and Risk of Loss. Motorola shall ship Equipment F.O.B. Destination. The parties expressly agree that if there is no arrival there is no sale. The title and risk of loss of the Equipment shall not pass to Customer until Customer actually receives and takes possession of the Equipment at the point or points of delivery. Title to Software will not pass to Customer at any time. 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: Accounts Payable, 221 East Main Street, Round Rock, Texas 78664-5299. The ultimate destination where the Equipment will be delivered to Customer is: The City of Round Rock, Texas, 615 Palm Valley Blvd., Round Rock, Texas 78664. Customer may change this information by giving written notice to Motorola. Section 6 Sites and Site Conditions 6.1. Access to Sites. If Motorola is providing installation or other services, Customer will provide all necessary construction and building permits, licenses, and the like; and access to the work sites or vehicles as reasonably requested by Motorola so that it may perform its contractual duties. 6.2. Site Conditions. If Motorola is providing installation or other services at Customer's sites, Customer will use best efforts to ensure that these work sites are 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 use best efforts to ensure that these work sites have adequate: physical space, air conditioning and other environmental conditions, electrical power outlets, distribution and equipment, and telephone or other communication lines (including modem access and adequate interfacing networking capabilities), all for the installation,use and maintenance of the Products. Section 7 Acceptance Acceptance of the Products will occur upon delivery to Customer unless the Statement of Work provides for acceptance verification or testing, in which case acceptance of the Products will occur upon successful completion of the acceptance verification or testing. Notwithstanding 00112294/jkg 5 CPA.PINAL.Set.1.10.05.revision.doc Motorola Contract No. the preceding sentence, Customer's use of the Products for their operational purposes will constitute acceptance. Section 8 Representations and Warranties 8.1. 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 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. 8.2. 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 that are applicable to the Motorola Software. 8.3. 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 do not affect the operation of the Equipment; and(vii)normal or customary wear and tear. 8.4. 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. 8.5. Original End User is Covered. These express limited warranties are extended by Motorola to the original user purchasing the Products for commercial, industrial, or governmental use only, and are not assignable or transferable. 8.6. Disclaimer of Other Warranties. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE 00I 12294/j4 6 CPAYINAL.Set.1.10.05.revision.doc Motorola Contract No. 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. Notwithstanding the preceding statement, Motorola warrants that the equipment is fit for the purposes as described in the technical documents in this Agreement. Section 9 Delays 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. Section 10 Disputes 10.1. Settlement Preferred. The Parties will attempt to settle any dispute arising from this Agreement (except for a claim relating to intellectual property or breach of confidentiality) through consultation and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher-level managers of the Parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a mediator chosen jointly by the Parties within thirty (30) days after notice by one of the Parties demanding non-binding mediation. The Parties will not unreasonably withhold their consents to the selection of a mediator, will share the costs of the mediation equally, and may postpone mediation until they have completed some specified but limited discovery about the dispute. 10.2. Litigation. A Party may submit to a court of competent jurisdiction in the state in which the Products are delivered any claim relating to intellectual property or a breach of confidentiality provisions and any dispute that cannot be resolved between the Parties through negotiation or mediation within two (2) months after the date of the initial demand for non- binding mediation. Each Party consents to jurisdiction over it by the courts of Williamson County, Texas. Section 11 Default and Termination If either Party fails to perform a material obligation under this Agreement, the other Party may consider the non-performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written and detailed notice of the 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. If the non-performing Party fails to cure the default, the 00112294/jkg 7 CPAYINAL.S et.1.10.05.revision.doc Motorola Contract No. performing Party may terminate any unfulfilled portion of this Agreement and recover damages as permitted by law and this Agreement. Section 12 Patent and Copyright Infrineement Indemnification 12.1. Motorola will defend at its expense any suit brought against Customer to the extent that it is based on an Infringement Claim, and Motorola will indemnify Customer for those costs and damages finally awarded against Customer for an Infringement Claim. Motorola's duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. 12.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its option and expense procure for Customer the right to continue using the Equipment or Motorola Software, replace or modify it so that it becomes non-infringing while providing functionally equivalent performance, or grant Customer a credit for the Equipment or Motorola Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and Motorola Software. If the return of the Equipment directly causes a diminution in the value of the remainder of the System sold under this Agreement, Motorola agrees to provide an equitable adjustment to Customer for such diminution in value. 12.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon the combination of the Equipment or Motorola Software with any software, apparatus or device not furnished by Motorola; the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Equipment or Motorola Software; any Equipment that is not Motorola's design or formula; a modification of the Motorola Software by a party other than Motorola; or the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. The foregoing states the entire liability of Motorola with respect to infringement of patents and copyrights by the Equipment, Motorola Software, or any of their parts. Section 13 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 00112294/jkg g CPA.FINAL.Set.1.10.05.revision.doc Motorola Contract No. 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 two (2) years after the accrual of the cause of action, except for money due upon an open account. Section 14 Confidentialitv and Proprietary Rights 14.1. Confidential Information. During the term of this Agreement, the Parties may provide each other with Confidential Information. Each Party will: maintain the confidentiality of the other Party's Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential 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 such 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. Notwithstanding the above, the parties recognize and understand that Customer is subject to the Texas Public Information Act and its duties run in accordance therewith. 14.2. Preservation of Motorola's Proprietary Rights. Motorola, the third party manufacturer of any Equipment, and the copyright owner of any Non-Motorola Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola does not grant to Customer, either directly or by implication, estoppel, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Customer will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, 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. 00112294/jkg 9 CPAYINAL.Set.1.10.05.revision.doc Motorola Contract No. Section 15 General Terms 15.1. Taxes. The Contract Price does not include excise, sales, lease, use, property, or other taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola is required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to Motorola the amount of the taxes (including any interest and penalties) within twenty (20) days after the date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth. 15.2. Assignability and Subcontracting, Neither Party may assign this Agreement without the prior written consent of the other Party, except that Motorola may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement. 15.3 Waiver. Failure or delay by either Party to exercise any 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. 15.4. 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. 15.5. Independent Contractors. Each Party will perform its duties under this Agreement only 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. 15.6. Headings and Section References, Construction. 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. 15.7. Governing Law. This Agreement and the rights and duties of the Parties will be governed by and interpreted in accordance with the laws of the State in which the Products are delivered. 15.8. Entire Agreement. This Agreement, including all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this 00112294/jkg 10 CPAYINALSet.1.10.05.revisiondoc Motorola Contract No. subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even if a representative of each Party signs that document. 15.9. Notices. Notices required under this Agreement to be given by one Party to the other must be in writing and either delivered personally or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt: To Customer: City Manager City Attorney City of Round Rock and to: Stephan L. Sheets 221 East Main Street 309 East Main Street Round Rock, TX 78664 Round Rock, TX 78664 To Motorola: Motorola, Inc. Attention: Law Department 6450 Sequence Drive San Diego, CA 92121 15.10. Compliance with Applicable Laws. Each Party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses and authorizations required for the installation, operation and use of the System before the scheduled installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC license applications, neither Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters. 15.11. Authority to Execute Agreement. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. 15.12. 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 00112294/jkg 11 CPA.FINAL.Set.1.10.05.revision.doc Motorola Contract No. and Invoicing and Payment); Subsection 8.6 (Disclaimer of Implied Warranties); Section 10 (Disputes); Section 13 (Limitation of Liability); Section 14 (Confidentiality and Proprietary Rights); and all of the General Terms in this Section 15. The Parties hereby enter into this Agreement as of the Effective Date. Motorola, Inc. Customer By: By: Name: Name: Title: Title: Date: Date: 00112294/jkg 12 CPA.FINAL.Se t.1.10.05sevisiondoc Motorola Contract No. Exhibit"A" Motorola "Software License Agreement" In this Exhibit "A," the term "Licensor" means Motorola, Inc. ("Motorola'); "Licensee" means the Customer; "Primary Agreement" means the agreement to which this exhibit is attached; and "Agreement"means this Exhibit and the applicable terms and conditions contained in the Primary Agreement. The Parties agree as follows: Section 1 Scone Licensor will provide to Licensee proprietary software; or radio communications, computer, or other electronic products ("Products") containing embedded or pre-loaded proprietary software; or both. "Software"means proprietary software in object code format, and adaptations, translations, de-compilations, disassemblies, emulations, or derivative works of the software, and may contain one or more items of software owned by a third party supplier("Third Party Software"). Product and Software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which this information is provided) are collectively referred to as "Documentation." This Agreement contains the terms and conditions pursuant to which Licensor will license to Licensee, and Licensee may use, the Software and Documentation. Section 2 Grant of License Subject to Section 1, Licensor hereby grants to Licensee a personal, non-transferable (except as permitted in Section 8 below), limited, and non-exclusive license under Licensor's applicable proprietary rights to use the Software and related Documentation for the purposes for which they were designed and in accordance with the terms and conditions of this Agreement. The license does not grant any rights to source code. If the Software is or includes Integration Framework, Customer Service Request ("CSR"), or Cityworks software, that Software is licensed pursuant to this Agreement plus a separate document entitled "Software License Agreement Rider for Integration Framework, Customer Service Request, or Cityworks Software" (which document is incorporated by this reference and is either attached to this Agreement or will be provided upon Licensee's request). Section 3 Limitations on Use 3.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Licensee may not for any reason modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code, create derivative works from, adapt, translate, merge with other software, copy, reproduce, distribute, or export any Software or permit or encourage any third party to do so, except that Licensee may make one (1) copy of Software provided by Licensor to be used solely for archival, back-up, or disaster 00112294/jkg 1 CPAYINAL.Set.1.10.05.revision.doc Motorola Contract No. recovery purposes. Licensee must reproduce all copyright and trademark notices on all copies of the Software and Documentation. 3.2. Licensee may not copy onto or transfer Software installed in one Product device onto another device. Notwithstanding the preceding sentence, Licensee may temporarily transfer Software installed on one device onto another if the original device is inoperable or malfunctioning, if Licensee provides written notice to Licensor of the temporary transfer and the temporary transfer is discontinued when the original device is returned to operation. Upon Licensor's written request, Licensee must provide to Licensor a written list of all Product devices in which the Software is installed and being used by Licensee. 3.3. Concerning Motorola's Radio Service Software ("RSS"), if applicable, Licensee must purchase a copy for each location at which Licensee uses RSS. Licensee's use of RSS at an authorized location does not entitle Licensee to use or access the RSS remotely. Licensee may make one (1) additional copy for each computer owned or controlled by Licensee at each authorized location. Upon Licensor's written request, Licensee must provide to Licensor a written list of all locations where Licensee uses or intends to use RSS. Section 4 Ownership and Title Title to all copies of Software will not pass to Licensee at any time and remains vested exclusively in the copyright owner. The copyright owner owns and retains all of its proprietary rights in any form concerning the Software and Documentation, including all rights in patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, and other intellectual properties (including any corrections, bug fixes, enhancements, updates, or modifications to or derivative works from the Software whether made by Licensor or another party, or any improvements that result from Licensor's processes or, if applicable, providing information services). Nothing in this Agreement is intended to restrict the proprietary rights of Licensor or to grant by implication or estoppel any proprietary rights. All intellectual property developed, originated, or prepared by Licensor in connection with providing to Licensee Software, Products, Documentation, or related services remain vested exclusively in Licensor, and this Agreement does not grant to Licensee any shared development rights of intellectual property. Section 5 Confidentiality Licensee acknowledges that the Software and Documentation contain Licensor's valuable proprietary and Confidential Information and are Licensor's trade secrets, and that the provisions in the Agreement concerning Confidential Information apply. Section 6 Limited Warranty 6.1. The commencement date and the term of the Software warranty will be as stated in the Primary Agreement, except that the Warranty Period for LiveScan software will be ninety (90) days; and for application Software that is provided on a per unit basis, the Warranty Period for subsequent units licensed is the remainder (if any) of the initial Warranty Period or, if the 001122945kg 2 CPAXINAL.S et.1.10.05.revision.doc Motorola Contract No. initial Warranty Period has expired, the remainder (if any) of the term of the applicable Software Maintenance and Support Agreement. 6.2. During the applicable Warranty Period, Licensor warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined solely with reference to the Documentation. Licensor does not warrant that Licensee's use of the Software or Products will be uninterrupted or error-free or that the Software or the Products will meet Licensee's particular requirements. Warranty claims are described in the Primary Agreement. 6.3. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Notwithstanding the preceding statement, Motorola warrants that the equipment is fit for the purposes as described in the technical documents in this Agreement. THE TRANSACTIN COVERED BY THIS AGREEMENT IS A LICENSE AND NOT A SALE OF GOODS. Section 7 Limitation of Liability The Limitation of Liability provision is as described in the Primary Agreement. Section 8 Transfers Licensee will not transfer Software or the related Documentation to any third party without Licensor's prior written consent, which consent may be withheld in Licensor's reasonable discretion and which may be conditioned upon the transferee paying all applicable license fees and agreeing to be bound by this Agreement. Notwithstanding the preceding sentence, if Licensee transfers ownership of radio Products to a third party, Licensee may assign its rights to use the Software (other than Radio Service Software and Motorola's FLASHport® Software) embedded in or furnished for use with those radio Products if Licensee transfers all copies of the Software and the related Documentation to the transferee, and the transferee executes a transfer form to be provided by Licensor upon request (which form obligates the transferee to be bound by this Agreement). Section 9 Term and Termination Licensee's right to use the Software and Documentation will begin when this Agreement is mutually executed by both Parties and will continue during the life of the Products in which the Software is used, unless Licensee breaches this Agreement in which case it will be terminated immediately upon notice by Licensor. Licensee acknowledges that Licensor has made a considerable investment of resources in the development, marketing, and distribution of its proprietary Software and Documentation and that reasonable and appropriate limitations on Licensee's use of the Software and Documentation are necessary for Licensor to protect its investment, trade secrets, and valuable intellectual property rights concerning the Software and Documentation. Licensee also acknowledges that its breach of this Agreement will result in 00112294/jkg 3 CPA.FINAL.Set.1.10.05.revision.doc Motorola Contract No. irreparable harm to Licensor for which monetary damages would be inadequate. In the event of a breach of this Agreement and in addition to termination of this Agreement, Licensor will be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Licensor that all copies of the Software and Documentation have been returned to Licensor or destroyed and are no longer in use by Licensee. Section 10 Notices Notices are as described in the Primary Agreement. Section 11 United States Government Licensing Provisions If Licensee is the United States Government or a United States Government agency, then this section also applies. Licensee's use, duplication or disclosure of the Software and Documentation under Licensor's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless they are being provided to the Department of Defense. If the Software and Documentation are being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice, or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement transaction. Section 12 General 12.1. Copyright Notices. The existence of a copyright notice on the Software will not be construed as an admission or presumption that public disclosure of the Software or any trade secrets associated with the Software has occurred. 12.2. Compliance with Laws. Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Licensor and the appropriate governmental authority of the United States, in any form export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies, at the time of the action, requires an export license or other governmental approval. Violation of this provision will be a material breach of this Agreement, permitting immediate termination by Licensor. 00112294/jkg 4 CPAYINAL.Set.1.10.05.revisiondoc Motorola Contract No. 12.3. Assignments. Licensor 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 Software, without prior notice to or consent of Licensee. 12.4. Governing Law. This Agreement will be governed by the laws of the United States to the extent that they apply and otherwise by the laws of the State of Texas. 00112294/jkg 5 CPA.FINAL.S et.1.10.05.revision.doc Motorola Contract No. Exhibit"B" Technical and Implementation Documents 00112294/jkg 6 CPAYINAL.Set.1.10.05.revision.doc Motorola Contract No. Motorola Confidential 3/21/2007 Page 1 Police Department Totals: Total Quantity Total Price Portable Radios XTS5000 112 $433,652.80 Portable Radios XTS5000 (High Tier Encryption) 38 $182,743.90 Mobile XTL5000 '03 Control Head (Hand Held CTRL Head) 14 $68,703.60 Mobile XTL5000 Standard with Special Encryption 14 $62,298.60 Mobile XTL2500 Standard Issue 91 $282,962.68 KVL Key Loader 1 $3,924.00 Requested Accessories and Console DES-OFB Upgrade 2 $1,710.40 Total QTY 269 Total Price $1,035,995.98 Trade In Credit See below Works and Parks Department Totals: Total Quantity JTotal Price Portable Radios XTS5000 with Bank Chargers 28 $112,825.20 Total QTY 28 Total Price $112,825.20 Trade In Credit See below Fire Department Totals: Total Quantity Total Price Ic _ Portable Radios XTS5000 122 $518,681.00 Mobile XTL5000 Dual CTRL Head Mobile 4 $17,271.00 ril= Mobile XTL2500 Standard Issue 36 $111,941.28 - Requested Accessories 13 $8,644.80 Total QTY 162 Total Price $656,538.08 Trade In Credit See below Total Radio Subscriber Amount For All Departments $1,805,359.26 Total Services (Programming, Installation, Removal, Template Creation) $147,660.00 Phase 1 Services$110,508 Phase 2 Services$38,984 Total Trade In Credit (Trade in for Old Mobile/ Portable Radios) 1 -$22,950.00 TOTAL PROMOTIONAL PRICING (Valid if ordered by 3-20-07 -$170,900.00 Grand Total $1,759,1 ,759,169.26 Total Subscriber Count 459 FOR BUDGETARY PURPOSES ONLY Motorola Confidential 3/21/2007 Page 1 Motorola Confidential 3/21/2007 Page 1 PRICE QUOTE EXHIBIT B-1 2/9/2007 Clay Cassard Item Qty Description Model List Price Contract Price Extended Police Portable Radios XTS5000 Portable Radio Standard PD issue PORTABLE XTS5000 MODEL II 3X2 KEYPAD DISPLAY 850 H18UCF9PW6 N $2,158.00 la 112 CHANNELS 764-87OMHZ $1,618.50 181,272.00 b 112 ADD: SOFTWARE ASTRO DIGITAL CAI OPERATION Q806 $515.00 $386.25 43,260.00 c 112 ADD: SMARTZONE SYSTEM SOFTWARE H38 $1,500.00 $1,125.00 126,000.00 d 112 ENH: PROJECT 25 9600 BAUD TRUNKING SOFTWARE Q361 $300.00 $225.00 25,200.00 e 112 ENH: ENHANCED DIGITAL ID DISPLAY H14 $75.00 $56.25 6,300.00 f 112 ALT: BATTERY IMPRES NIMH FM 1750MAH (NNTN4436) Q393 $47.00 $35.25 3,948.00 g 112 ADD:ALTERNATE DISPLAY LABEL Q768 $0.00 $0.00 0.00 h 112 ENH: TWO (2)YEAR EXPRESS SERVICE PLUS H885 $67.00 $67.00 7,504.00 i 112 ADD:ADP SOFTWARE DSP BASED ONLY Q667 $10.00 $7.50 840.00 ACCESSORIES j 112 CHARGER, IMPRESS SMART RAPID RATE, 110V NTN1873 $165.00 $123.75 13,860.00 k 112 MICROPHONE REMOTE SPEAKER NOISE CANCELING NMN6191 $96.75 $77.40 8,668.80 Extra Battery(Spare): IMPRES SMART NIMH, FM 2000 MAH NNTN4436 $140.00 5 150 (1750 MIN) IS (-20C) (Q393) $112.00 16,800.00 Totals 5,073.75 3,833.90 433,652.80 Item Qty Description Model List Price Contract Price Extended Police Portable Radios XTS5000 Portable Radio High Tier Encrypted Portable PORTABLE XTS5000 MODEL II 3X2 KEYPAD DISPLAY 850 H18UCF9PW6 N $2,158.00 la 38 CHANNELS 764-87OMHZ $1,618.50 61,503.00 b 38 ADD: SOFTWARE ASTRO DIGITAL CAI OPERATION Q806 $515.00 $386.25 14,677.50 Motorola Confidential 3/21/2007 Page 1 Motorola Confidential 3/21/2007 Page 2 c 38 ADD: SMARTZONE SYSTEM SOFTWARE H38 $1,500.00 $1,125.00 42,750.00 d 38 ENH: PROJECT 25 9600 BAUD TRUNKING SOFTWARE Q361 $300.00 $225.00 8,550.00 e 38 ENH: ENHANCED DIGITAL ID DISPLAY H14 $75.00 $56.25 2,137.50 f 38 ALT: BATTERY IMPRES NIMH FM 1750MAH (NNTN4436) Q393 $47.00 $35.25 1,339.50 g 38 ADD:ALTERNATE DISPLAY LABEL Q768 $0.00 $0.00 0.00 h 38 ENH: TWO(2)YEAR EXPRESS SERVICE PLUS Q58 $67.00 $67.00 2,546.00 i 38 ADD:ADP SOFTWARE DSP BASED ONLY Q667 $10.00 $7.50 285.00 ACCESSORIES j 38 CHARGER, IMPRESS SMART RAPID RATE, 110V NTN1873 $165.00 $123.75 4,702.50 k 38 MICROPHONE REMOTE SPEAKER NOISE CANCELING NMN6191 $96.75 $77.40 2,941.20 OPTIONS I Q668 2 38 ADD: ADP UCM ENCRYPTION WITH DES, DES-XL, DES-OFB $799.00 $679.15 25,807.70 3 38 ADD: MULTIKEY FOR ENCRYPTION H869 $330.00 $280.50 10,659.00 4 38 ADD: XTS5000 UCM HARDWARE ENCRYPTION Q159 $150.00 $127.50 4,845.00 Totals 6,212.75 4,809.05 182,743.90 Motorola Confidential 3/21/2007 Page 2 Motorola Confidential 3/21/2007 Page 3 Item Qty Description Model List Price Contract Price Extended Police Mobile Radio Special- NARCO &SPECIAL UNITS XTL5000 Mobile with new 03 Head Hand Held CTRL Head 2a 14 XTL 5000 MOBILE 10-35 WATT, 764-87OMHZ M20URS9PW1 N $1,497.00 1,122.75 15,718.50 b 14 ENH: SOFTWARE ASTRO DIGITAL CAI OPERATION G806 $515.00 386.25 5,407.50 c 14 ENH: SMARTZONE OPERATION G51 $1,500.00 1,125.00 15,750.00 d 14 ENH: ENHANCED DIGITAL ID DISPLAY G114 $75.00 56.25 787.50 e 14 ENH:ASTRO PROJECT 25 TRUNKING SOFTWARE G361 $300.00 225.00 3,150.00 f 14 ADD:ADP SOFTWARE DSP BASED CRYPTO G193 $10.00 7.50 105.00 g 14 ADD:ANTENNA 3DB LOW-PROFILE 764-87OMHZ G174 $43.00 32.25 451.50 h 14 ADD: CONTROL HEAD SOFTWARE, W3 G444 $0.00 0.00 0.00 i 14 ADD:XTL 5000 HHCH CONTROL HEAD G72 $946.00 709.50 9,933.00 j 14 ADD: NO MICROPHONE NEEDED G90 $0.00 0.00 0.00 k 14 ADD: Remote MOUNT G67 $297.00 222.75 3,118.50 ENH:TWO (2)YEAR ENCRYPTED EXPRESS SERVICE PLUS G78 $126.00 1 14 126.00 1,764.00 m 14 ADD:AUXILIARY SPEAKER 5 WATT B18 $60.00 45.00 630.00 Encryption Option 0 14 ADD: ENCRYPTION UCM HW G159 $150.00 127.50 1,785.00 p 14 ADD: ADP WITH DES/DES-XL/DES-OFB G194 $799.00 679.15 9,508.10 q 14 ADD: KEY RETENTION 30 SECONDS G336 $50.00 42.50 595.00 Totals 6,368.00 4,907.40 68,703.60 Motorola Confidential 3/21/2007 Page 3 Motorola Confidential 3/21/2007 Page 4 Description Nomenclature Price Contract Price Extended Police Mobile Radio "Normal Configuration with "Special Encryption" 1a 14 XTL 5000 MOBILE 10-35 WATT, 764-870MHZ M20URS9PW1 N $1,497.00 1,122.75 15,718.50 b 14 ENH: SOFTWARE ASTRO DIGITAL CAI OPERATION G806 $515.00 386.25 5,407.50 c 14 ENH: SMARTZONE OPERATION G51 $1,500.00 1,125.00 15,750.00 d 14 ADD:XTL 5000 CONTROL HEAD G442 $432.00 324.00 4,536.00 e 14 ADD: ADD: CONTROL HEAD SOFTWARE G444 $0.00 0.00 0.00 f 14 ADD: DASH MOUNT G66 $125.00 93.75 1,312.50 g 14 ADD:ANTENNA 3DB LOW-PROFILE 764-870MHZ G174 $43.00 32.25 451.50 h 14 ADD: PALM MICROPHONE W22 $72.00 54.00 756.00 i 14 ENH: INCREASED AUDIO POWER 10W W432 $106.00 79.50 1,113.00 j 14 ENH: ENHANCED DIGITAL ID DISPLAY G114 $75.00 56.25 787.50 k 14 ENH:ASTRO PROJECT 25 TRUNKING SOFTWARE G361 $300.00 225.00 3,150.00 1 14 ADD: ENCRYPTION UCM HW G159 $150.00 127.50 1,785.00 M 14 ADD: ADP WITH DES/DES-XL/DES-OFB G194 $799.00 679.15 9,508.10 n 14 ADD: KEY RETENTION 30 SECONDS G336 $50.00 42.50 595.00 0 14 ADD: ADP SOFTWARE DSP BASED CRYPTO G193 $10.00 7.50 105.00 P 14 ENH:TWO (2)YEAR ENCRYPTED EXPRESS SERVICE PLUS G78 $126.00 94.50 1,323.00 Totals 5,800.00 4,449.90 62,298.60 Motorola Confidential 3/21/2007 Page 4 Motorola Confidential 3/21/2007 Page 5 Item Qty Description Model List Price Contract Price Extended Police Mobile Standard Issue XTL2500 Dash Mount Mobile Radio 3a 91 XTL 2500 764-870MHZ, 10-35W M21 URM9PW1 N $1,497.00 $1,122.75 102,170.25 b 91 ENH: SOFTWARE ASTRO DIGITAL CAI OPERATION G806 $515.00 $386.25 35,148.75 C 91 ENH: SOFTWARE SMARTZONE/SINGLETONE G51 $975.00 $731.25 66,543.75 d 91 ADD:XTL2500 CONTROL HEAD G442 $292.00 $219.00 19,929.00 e 91 ADD: ADD: CONTROL HEAD SOFTWARE G444 $0.00 $0.00 0.00 f 91 ADD: DASH MOUNT G66 $125.00 $93.75 8,531.25 g 91 ADD:ANTENNA 3DB LOW-PROFILE 764-870MHZ G174 $43.00 $32.23 2,932.93 h 91 ADD: PALM MICROPHONE W22 $72.00 $54.00 4,914.00 i 91 ENH: INCREASED AUDIO POWER 10W W432 $106.00 $79.50 7,234.50 j 91 ENH: ENHANCED DIGITAL ID DISPLAY G114 $75.00 $56.25 5,118.75 k 91 ENH:ASTRO PROJECT 25 TRUNKING SOFTWARE G361 $300.00 $225.00 20,475.00 1 91 ADD:ADP SOFTWARE DSP BASED CRYPTO G193 $10.00 $7.50 682.50 m 91 ENH:TWO (2)YEAR EXPRESS SERVICE PLUS G24 $102.00 $102.00 9,282.00 Totals $4,112.00 $3,109.48 282,962.68 Motorola Confidential 3/21/2007 Page 5 Motorola Confidential 3/21/2007 Page 6 Item Qty Description Model List Price Contract Price Extended KVL- Key Loader 1 1 KVL 3000 PLUS HARDWARE T6717 1,000.00 $900.00 900.00 a 1 ADD:ASTRO 25 MODE U239AC 250.00 $250.00 250.00 b 1 ADD: ASN MODE X795AH 600.00 $600.00 600.00 c 1 ADD: ADP ENCRYPTION SOFTWARE CA00243AA 300.00 $300.00 300.00 d 1 ADD: DES/DES-XL/DES-OFB ENCRYPTION X423AE 1,550.00 $1,550.00 1,550.00 e 1 ADD: CABLE FOR RNC, DIU, MGEG C543 84.00 $84.00 84.00 f 1 CABLE, KEYLOAD C724 75.00 $75.00 75.00 g 1 VISAR/KVL CHGR KIT 110V HKTN4004B 165.00 $165.00 165.00 Totals $4,024.00 $3,924.00 3,924.00 Motorola Confidential 3/21/2007 Page 6 Motorola Confidential 3/21/2007 Page 7 Item Qty Description Model List Price Contract Price Extended REQUESTED ACCESSORIES 1 1 IMPRES MULTI UNIT CHARGER WPLN4108 R $788.00 $630.40 $630.40 CHARGER IMPRES SMART MULTI UNIT W/DISPLAY WPLN4130 $1,350.00 2 1 MODULES (110V) $1,080.00 $1,080.00 Displays the following information"real-time for impres batteries-mAh,%capacity, time remaining to charge complete(NiCd/NiMH only),battery s/n,charge status, voltage,kit#,and more. Supports NiCd,NIMH,and Lithion impress and Motorola non• impres batteries. ACCESSORY TOTAL $1,710.40 Police Department Totals: Total Quantity Total Price Portable Radios XTL5000 (Standard ) 112 $433,652.80 Portable Radios XTL5000 (Standard and Special Encryption) 38 $182,743.90 Mobile XTL5000 '03 Control Head (Hand Held CTRL Head) 14 $68,703.60 Mobile XTL5000 Standard with Special Encryption 14 $62,298.60 Mobile XTL2500 Standard Issue 91 $282,962.68 KVL Key Loader 1 $3,924.00 Requested Accessories and Console DES-OFB Upgrade 2 $1,710.40 Total QTY 272 Total Price $1,035,995.98 Prices reflect current City of Austin Pricing Contract Prices do not reflect any trade in credit Prices do not include any programming, install/removal or any services of any kind Motorola Confidential 3/21/2007 Page 7 M MOroRoLA CITY OF ROUND ROCK SUBSCRIBER IMPLEMENTATION 3/19/07 Motorola's offering provides for the implementation of mobile and portable subscriber radios being procured by CITY OF ROUND ROCK. The specific quantity of subscriber radios to be implemented will be specified by the City of Round Rock. The subscriber implementation plan is predicated upon the anticipated total of 555 radios. These include the following: • 127—XTL2500 Mobile Radios(800 MHz Trunked PD and FD) • 28—XTL5000 Mobile Radios(800 MHz PD) • 4—XTL5000 Dual Head Mobile Radios (800 MHz FD) • 26—XTL1500/XTL2500 Audio Logging Radios (800 MHz PD) • 300—XTS5000 Portable Radios (800 MHz PD, Public Works and Parks, and FD) • 30—Pre-Existing Mobiles(26 PD and 4 FD) • 18—Pre-Existing Portables (11 PD and 7 FD) • 22—New Mobiles(future purchase) Motorola anticipates providing services in conjunction with this implementation in two phases. • Phase 1 includes installation, de-installation (removal of existing mobile units), building of programming templates, programming and checkout of each unit prior to being deployed, and coordination of the project, with Motorola providing a single point-of-contact to coordinate these efforts. • Phase 2 includes re-building of programming templates and re-programming services associated with the migration of the City of Round Rock from its existing communications network to its future one. As with Phase 1, Motorola would provide a single point-of-contact to coordinate activities associated with these second programming activities. WORK TO BE PERFORMED—PHASE 1 Installations/De-Installations Installation and removal of mobile subscriber radio units will be performed at a suitable customer site to be provided by the City of Round Rock. Work will be performed during normal daytime working hours, Monday through Friday, excluding holidays. A customer-provided facility will require sufficient drive-in space for the vehicles, as well as commercial AC power and protection from the environment. EXHIBIT 1 "B-211 M MOTOROLA Mobile Installations will be complete, including power cabling, antennas and antenna cabling. Motorola will coordinate the layout of mobile radio installations with the City of Round Rock prior to commencement of work to verify the installations and layouts preferred. These pre- determined layouts would be dependent upon vehicle type and agency of use (i.e. Police, Fire, Public Works, etc.). Mobile De-Installations (removals) will be complete, including all components (power cabling, antenna and antenna cabling, etc.)unless otherwise specified. Disposition of removed equipment will be conducted in accordance with the terms of the agreement between Motorola and City of Round Rock. If the radios are to remain the property of Round Rock, they will be returned to the City for disposition. Equipment to be installed includes the following: • 155 -Mobiles (119 PD, 36 FD) 0 4 - Dual Control Head Mobiles(FD) Equipment to be de-installed or removed includes the following: • 155 - Mobiles (119 PD, 36 FD) • 4 -Dual Control Head Mobiles (FD) ProEramming Templates A Motorola Systems Technologist will gather information from the appropriate City of Round Rock agencies sufficient for the building of programming templates for each user group. These templates establish the talk-groups and operating parameters for each radio. Templates for up to fifteen (15) templates (mobiles and portables) will be provided in conjunction with this project. Additional templates can be provided through a change order at additional cost. The gathering of template information is contingent upon the ability to collect it from a single point of contact at each agency for the City of Round Rock. Programming and Radio Check-Out All new subscriber radio units will be programmed with operating information from their respective templates prior to installation. Each mobile and portable will receive a check-out to insure proper operation prior to installation and being issued to the City of Round Rock. If the City of Round Rock exercises a system of asset management, this would be the time that unit IDs would be associated with the asset and end-user information. Equipment to be programmed and checked-out: 2 MOTOROLA • 159—New Mobiles (119 PD, 40 FD) a 26 -Audio Logging Mobiles 0 30—Pre-Existing Mobiles(26 PD and 4 FD) 0 22—New Mobiles (future purchase in 2007) • 300—Portables (150 PD,28 Works and Parks Dept., and 122 FD) • 18—Pre-Existing Portables (11 PD and 7 FD) This quote includes the programming check out and temples only for the 26 XTL1500 radios, the installation for these radios was included in the scope of work for the "above grant" items (i.e. the cost of the radios themselves and their installation is in the"above grant"document. If any of the existing digital radios are not digital ready they will require an upgrade. The upgrade is approximately $1,000 - $1500 per radio based on current set up and configuration. These upgrades and associated costs are not included in this SOW. None of the existing digital radios are equipped with ADP encryption—it will cost approximately $300 per radio to add the ADP encryption. These upgrades and associated costs are not included in this SOW. The Alias Database Manager (ADM) in the Round Rock dispatch console will be updated appropriately to coincide with the changes made in Talk Groups as a result of the re- programming. Proiect Coordination Motorola will provide a representative from its Field Support Organization(FSO)to perform as a single point-of-contact to coordinate the implementation activities of this project. This individual will interface with a similar single point-of-contact from the City of Round Rock. These coordination efforts will include template building by Motorola's Systems Technologist, scheduling of installation, de-installation, and radio programming by Motorola's local service provider, and coordination of these activities with the City of Round Rock. The timing of these events will be coordinated with the City of Round Rock's single point-of-contact. Payments for completed work will be provided on the basis of progress payments as work activities and/or groups of radios are completed (i.e. Phase 1, Phase 2, completion of templates, installation/removals for PD, FD, and Public Works and Parks). Training Two (2) Interactive End User Tool Kits (iEUTK) will be provided in conjunction with Phase 1 for the purpose of facilitating customized customer end user training. One such kit is provided for XTL mobiles and one for XTS portables. Utilization of the kit is considered the responsibility of Round Rock. 3 M MOTOROLA WORK TO BE PERFORMED - PHASE 2 In conjunction with the migration of the City of Round Rock communications system from CWICS to another fixed network infrastructure, a subsequent building of programming templates and re-programming of subscribers will be required. This Phase will include the following work activities: Programming Templates A Motorola Systems Technologist will gather information from the City of Round Rock sufficient for the building of the re-programming templates for each user group. These templates establish the talk-groups and operating parameters for each radio. Templates for up to fifteen (15) templates (mobiles and portables) will be provided in conjunction with this project. Additional templates can be provided through a change order at additional cost. The gathering of template information is contingent upon the ability to collect it from a single point of contact at each agency for the City of Round Rock. Re-Programming All subscriber radio units will be re-programmed in conjunction with the migration to a new radio communications network. Equipment to be re-programmed includes: • 159—Mobiles • 26 - Audio Logging Mobiles • 30—Pre-Existing Mobiles • 22—New Mobiles (future purchase) • 300—Portables • 18—Pre-Existing Portables The Alias Database Manager (ADM) in the Round Rock dispatch console will be updated appropriately to coincide with the changes made in Talk Groups as a result of the_ re- programming. Proiect Coordination Motorola will provide a representative from its Field Support Organization(FSO)to perform as a single point-of-contact to coordinate the re-programming activities of this project. This individual will interface with a similar single point-of-contact from the City of Round Rock. These coordination efforts will include template building by Motorola's Systems Technologist, radio programming by Motorola's local service provider, and coordination of these activities with the City of Round Rock. The timing of these events will be coordinated with the City of Round Rock's single point-of-contact. 4 M MOTOROLA PRICING Subscriber Implementation Price— Phase 1 $1109290 Subscriber Implementation Price— Phase 2 $379370 Subscriber Implementation Price— Total $147,660 5 Page 1 of 1 ` 2005 Motorola liadio to,duutsand Serues Division Replacement'hiftA raQat�ilily'Coal Statibent; Mduct Cau eilati n I at►ca ktiatla�►ar�R ►P�1rei[+is.snips.t ►}1m,el�v.aa�ltiare�ae•. b�pamr m[N�a�e .visr,Aee�� i�r+�td�� + Subti�i��! �a4 orate i�iacet�+i pa fiy andcol .l! cor in eour- awa wMta. aaM�l�i PM*Ad IM ham. + MisNq� Meiib�Pt�M41�Tr�W�.E�or s}p� Tris- �►�nd��, reef P+* IbfaiikQPsrriil8rti"E�rt "On ftwDogt� K 7*mm p3E113 kow tstxv Rfsi�r f�� ror a final wn WW:CR W" � nt�d laep�IWav�it�9�l�ri��tM�L�c�et Fb�ever,irr�ti�u�iip�s�dMnr�Cr !yil� lCt Far Alamrsblbdn Ro�ucLa�l,Seeoad� oietiGrsbww 5�xr�irt 1 �.iim. a.QpaotilrsmCeaf�nd "its Inflok Tie EquiPmaait fi�rics G�a��d�rtlNCee4 AbL Pbers.6riien. #p61 EXHIBIT rI C http://compass.mot.com/cgi/fetch/2001/11041198/79214933/83279334/203346123/207580170/FOR... 3/20/2007 DATE: March 15, 2007 SUBJECT: City Council Meeting - March 22, 2007 ITEM: 10.13.1. Consider a resolution authorizing the Mayor to execute a contract with Motorola for radios, related equipment, and services associated with the implementation of a digital radio system. Department: Police Department Staff Person: Rick White, Senior Management Analyst Justification: This contract provides the replacement of public safety and public service mobile and portable radios related equipment and services associated with the implementation of a digital radio system by the Countywide Integrated Communications System (CWICS). That system is being installed this year, and the project should be complete by the year's end. Funding: Cost: $1,759,169.29 Source of funds: N/A Outside Resources: N/A Background Information: CWICS is composed of Williamson County and the cities of Round Rock, Georgetown, and Cedar Park. For years the group has operated a public safety radio communication system. Three years ago, CWICS' members began studying the need to replace this system, as it is rapidly becoming obsolete. Through the county, CWICS participated in a grant application with the City of Austin in 2005 to seek funding for a radio system that essentially would make CWICS a node on the Austin-Travis County Regional Radio System. Ultimately, an $8 million project was awarded through the federal COPS program to replace the existing analog radio system with a digital system. The implementation of that project requires that all CWICS' members replace their existing analog equipment with digital equipment. This contract provides for the field radio equipment, communications center equipment and services (programming, installation, training, etc.) required to operate in the digital environment. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS COMMUNICATIONS PRODUCTS AGREEMENT Motorola, Inc. ("Motorola"), and the City of Round Rock, Texas ("Customer") enter into this "Agreement," pursuant to which Customer will purchase and Motorola will sell the Products, as described below. Seller 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 the exhibits will be resolved in their listed order. Exhibit A Motorola"Software License Agreement" Exhibit B "Technical and Implementation Documents" Exhibit B-1 "List of Products"dated 2-9-07 (Price Quote) Exhibit B-2 "Statement of Work"dated 3-19-07 Exhibit C Motorola"Replacement Parts Availability Goal Statement" Section 2 Definitions Capitalized terms used in this Agreement have the following meanings: 2.1. "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. 2.2. "Contract Price" means the price for the Products, excluding applicable sales or similar taxes and freight charges. 2.3. "Effective Date" means that date upon which the last Party executes this Agreement. 2.4. "Equipment" means the equipment listed in the List of Products that Customer purchases from Motorola under this Agreement. 00112294/jkg CPA.FINAL.Set.1.1 0.05.revision.doc Motorola Contract No. 2.5. "Force Maieure" 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). 2.6. "Infringement Claim" means a third party claim alleging that the Equipment manufactured by Motorola or the Motorola Software infringes upon the third party's United States patent or copyright. 2.7. "Motorola Software" means Software that Motorola or its affiliated company owns. 2.8. "Non-Motorola Software"means Software that another party owns. 2.9. "Open Source Software" (also called"freeware" or"shareware")means software that has its underlying source code freely available to evaluate, copy, and modify. 2.10. "Products" mean the Equipment and Software provided by Motorola under this Agreement. 2.11. "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- 2.12. ly2.12. "Software" means the Motorola Software and Non-Motorola Software in object code format that is furnished with the Products. 2.13. "Warranty Period" means one (1) year from the date of Phase One acceptance of the Products as defined in the Statement of Work. Section 3 Scope of Agreement and Term 3.1. Scope of Work. Motorola will provide and install (if applicable) the Products, 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. 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 00112294/jkg 2 CPAYINAL.Set.1.10.05.revision.doc Motorola Contract No. Effective Date and continues until the expiration of the Warranty Period or three (3) years from the Effective Date, whichever occurs last. 3.4. Additional Equipment or Software. During the Term of this Agreement, Customer may order additional Equipment or Software if it is then available. Each order must refer to this Agreement and must specify the pricing and delivery terms. Notwithstanding any additional or contrary terms in the order, the applicable provisions of this Agreement (except for pricing, delivery, and payment terms) will govern the purchase and sale of the additional Equipment or Software. Payment is due in accordance with the Prompt Payment Policy stated herein, and 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 http://www.motorola.com/businessandgovermuent/ and the MOL telephone number is (800) 814-0601. 3.5. Maintenance Service. This Agreement does not cover maintenance or support of the Products except as provided under the warranty. Customer has purchased post-warranty support for the radios as described in Exhibit B-1 (Price Quote) for Years Two and Three. If Customer wishes to purchase additional maintenance or support, Motorola will provide a separate maintenance and support proposal upon request. 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. 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 00112294/jkg 3 CPA.FINAL.Set.1.10.05.revisiondoe Motorola Contract No. exhibit. During the teen 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, 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. 3.9 Prompt Payment Polio Payments will be made within thirty (30) days after the City receives the supplies,materials, equipment, or the day on which the performance of services was completed or the day on which the City receives a correct invoice for the service, whichever is later. Motorola may charge a late fee (fee shall not be greater than that which is permitted by Texas law) for payments not made in accordance with this Prompt Payment Policy; however, this policy does not apply to payments made by the City in the event: 3.9.1 There is a bona fide dispute between the City and Motorola concerning the supplies, materials, services or equipment delivered or the services performed that causes the payment to be late; or 3.9.2 The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or 3.9.3 There is a bona fide dispute between Motorola and a subcontractor or between a subcontractor and its suppliers concerning supplies, material, or equipment delivered or the services performed which caused the payment to be late; or 3.9.4 The invoice is not mailed to the City in strict accordance with instructions, if any, on the purchase order or contract or other such contractual agreement. Section 4 Performance Schedule If this Agreement includes the performance of services, the Statement of Work will describe the performance schedule. Section 5 Contract Price, Pavment, and Invoicing 5.1. Contract Price. The Contract Price in U.S. dollars is One Million Seven Hundred Fifty-nine Thousand One Hundred Sixty-Nine Dollars and 26/100 ($1,759,169.26). 5.2. Invoicing and Pavment. Motorola will submit invoices to Customer according to the following Payment Schedule: 95%of subscriber units contract pricing upon shipment of the Mobiles/Portables 00112294/jkg 4 CPA.FINAL.S et.1.10.05.revision.doc Motorola Contract No. 5%of subscriber units price upon completion of installation, programming 100% of Phase 1 Services as such services are completed 100% of Phase 2 Services as such services are completed. Customer will make payments to Motorola in accordance with the Prompt Payment Policy stated herein. 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 an amount not exceeding the maximum allowable rate. For Customer's reference, the Federal Tax Identification Number for Motorola, Inc. is 36-1115800. 5.3. Freight, Title, and Risk of Loss. Motorola shall ship Equipment F.O.B. Destination. The parties expressly agree that if there is no arrival there is no sale. The title and risk of loss of the Equipment shall not pass to Customer until Customer actually receives and takes possession of the Equipment at the point or points of delivery. Title to Software will not pass to Customer at any time. 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: Accounts Payable, 221 East Main Street, Round Rock, Texas 78664-5299. The ultimate destination where the Equipment will be delivered to Customer is: The City of Round Rock, Texas, 615 Palm Valley Blvd., Round Rock,Texas 78664. Customer may change this information by giving written notice to Motorola. Section 6 Sites and Site Conditions 6.1. Access to Sites. If Motorola is providing installation or other services, Customer will provide all necessary construction and building permits, licenses, and the like; and access to the work sites or vehicles as reasonably requested by Motorola so that it may perform its contractual duties. 6.2. Site Conditions. If Motorola is providing installation or other services at Customer's sites, Customer will use best efforts to ensure that these work sites are 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 use best efforts to ensure that these work sites have adequate: physical space, air conditioning and other environmental conditions, electrical power outlets, distribution and equipment, and telephone or other communication lines (including modem access and adequate interfacing networking capabilities), all for the installation,use and maintenance of the Products. Section 7 Acceptance Acceptance of the Products will occur upon delivery to Customer unless the Statement of Work provides for acceptance verification or testing, in which case acceptance of the Products will occur upon successful completion of the acceptance verification or testing. Notwithstanding 00112294/jkg 5 CPA.FINAI..Set.1.10.05.revision.doc Motorola Contract No. the preceding sentence, Customer's use of the Products for their operational purposes will constitute acceptance. Section 8 Representations and Warranties 8.1. 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 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. 8.2. 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 that are applicable to the Motorola Software. 8.3. 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 do not affect the operation of the Equipment; and(vii)normal or customary wear and tear. 8.4. 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. 8.5. Orip-inal End User is Covered. These express limited warranties are extended by Motorola to the original user purchasing the Products for commercial, industrial, or governmental use only, and are not assignable or transferable. 8.6. Disclaimer of Other Warranties. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE 00112294/jkg 6 CPATINAL.Set.1.10.05.revision.doc Motorola Contract No. 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. Notwithstanding the preceding statement, Motorola warrants that the equipment is fit for the purposes as described in the technical documents in this Agreement. Section 9 Delays 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. Section 10 Disputes 10.1. Settlement Preferred. The Parties will attempt to settle any dispute arising from this Agreement (except for a claim relating to intellectual property or breach of confidentiality) through consultation and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher-level managers of the Parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a mediator chosen jointly by the Parties within thirty(30) days after notice by one of the Parties demanding non-binding mediation. The Parties will not unreasonably withhold their consents to the selection of a mediator, will share the costs of the mediation equally, and may postpone mediation until they have completed some specified but limited discovery about the dispute. 10.2. Litigation. A Party may submit to a court of competent jurisdiction in the state in which the Products are delivered any claim relating to intellectual property or a breach of confidentiality provisions and any dispute that cannot be resolved between the Parties through negotiation or mediation within two (2) months after the date of the initial demand for non- binding mediation. Each Party consents to jurisdiction over it by the courts of Williamson County, Texas. Section 11 Default and Termination If either Party fails to perform a material obligation under this Agreement, the other Party may consider the non-performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written and detailed notice of the 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. If the non-performing Party fails to cure the default, the 00 1 12294/jlcg 7 CPATINAL.S et.1.10.05.revision.doc Motorola Contract No. performing Party may terminate any unfulfilled portion of this Agreement and recover damages as permitted by law and this Agreement. Section 12 Patent and Copyright Infringement Indemnification 12.1. Motorola will defend at its expense any suit brought against Customer to the extent that it is based on an Infringement Claim, and Motorola will indemnify Customer for those costs and damages finally awarded against Customer for an Infringement Claim. Motorola's duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. 12.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its option and expense procure for Customer the right to continue using the Equipment or Motorola Software, replace or modify it so that it becomes non-infringing while providing functionally equivalent performance, or grant Customer a credit for the Equipment or Motorola Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and Motorola Software. If the return of the Equipment directly causes a diminution in the value of the remainder of the System sold under this Agreement, Motorola agrees to provide an equitable adjustment to Customer for such diminution in value. 12.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon the combination of the Equipment or Motorola Software with any software, apparatus or device not furnished by Motorola; the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Equipment or Motorola Software; any Equipment that is not Motorola's design or formula; a modification of the Motorola Software by a party other than Motorola; or the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. The foregoing states the entire liability of Motorola with respect to infringement of patents and copyrights by the Equipment, Motorola Software, or any of their parts. Section 13 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 00112294/jkg 8 CPA.FINAL.Set.1.10.05.revision.doc Motorola Contract No. 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 two (2) years after the accrual of the cause of action, except for money due upon an open account. Section 14 Confidentiality and Proprietary Rights 14.1. Confidential Infonnation. During the term of this Agreement, the Parties may provide each other with Confidential Information. Each Party will: maintain the confidentiality of the other Party's Confidential Information and not disclose it to any third party, except as authorized by the disclosing Party in writing or as required by a court of competent jurisdiction; restrict disclosure of the Confidential 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 such 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. Notwithstanding the above, the parties recognize and understand that Customer is subject to the Texas Public Information Act and its duties run in accordance therewith. 14.2. Preservation of Motorola's Proprietary Rights. Motorola, the third party manufacturer of any Equipment, and the copyright owner of any Non-Motorola Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola does not grant to Customer, either directly or by implication, estoppel, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Customer will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, 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. 00112294/jkg 9 CPATINAL.S et.1.10.05.revision.doc Motorola Contract No. Section 15 General Terms 15.1. Taxes. The Contract Price does not include excise, sales, lease, use, property, or other taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola is required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to Motorola the amount of the taxes (including any interest and penalties) within twenty (20) days after the date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth. 15.2. Assignability and Subcontracting_ Neither Party may assign this Agreement without the prior written consent of the other Party, except that Motorola may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement. 15.3 Waiver. Failure or delay by either Party to exercise any 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. 15.4. 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. 15.5. Independent Contractors. Each Party will perform its duties under this Agreement only 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. 15.6. Headings and Section References; Construction. 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. 15.7. Governing Law. This Agreement and the rights and duties of the Parties will be governed by and interpreted in accordance with the laws of the State in which the Products are delivered. 15.8. Entire Agreement. This Agreement, including all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this 00112294/jkg 10 CPAXINAL.Set.1.10.05.revision.doc Motorola Contract No. subject matter. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both Parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even if a representative of each Party signs that document. 15.9. Notices. Notices required under this Agreement to be given by one Party to the other must be in writing and either delivered personally or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt: To Customer: City Manager City Attorney City of Round Rock and to: Stephan L. Sheets 221 East Main Street 309 East Main Street Round Rock,TX 78664 Round Rock,TX 78664 To Motorola: Motorola, Inc. Attention: Law Department 6450 Sequence Drive San Diego, CA 92121 15.10. Compliance with Applicable Laws. Each Party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Customer will obtain and comply with all Federal Communications Commission ("FCC") licenses and authorizations required for the installation, operation and use of the System before the scheduled installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC license applications, neither Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters. 15.11. Authority to Execute Agreement. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party. 15.12. 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 00112294/jkg 11 CPAYINAL.Set.1.10.05.revisioadoc Motorola Contract No. and Invoicing and Payment); Subsection 8.6 (Disclaimer of Implied Warranties); Section 10 (Disputes); Section 13 (Limitation of Liability); Section 14 (Confidentiality and Proprietary Rights);and all of the General Terms in this Section 15. The Parties hereby enter into this Agreement as of the Effective Date. Motorola,Inc. Customer — C I T y OF R0t4 )0 ROM By: By: Name: F,,,e u N1 Title: fbSS} Vita P,-csj&,,+ fY� ��(� ,Lnc, Title: � Date: 3\2�\0- Date: 00112294/jkg 12 CPAYINALSet.1.10.05.revision doc Motorola Contrw No. Exhibit"A" Motorola"Software License Aereement" In this Exhibit "A," the term "Licensor" means Motorola, Inc. ("Motorola"); "Licensee" means the Customer; "Primary Agreement" means the agreement to which this exhibit is attached; and "Agreement"means this Exhibit and the applicable terms and conditions contained in the Primary Agreement. The Parties agree as follows: Section 1 Scope Licensor will provide to Licensee proprietary software; or radio communications, computer, or other electronic products ("Products") containing embedded or pre-loaded proprietary software; or both. "Software"means proprietary software in object code format, and adaptations, translations, de-compilations, disassemblies, emulations, or derivative works of the software, and may contain one or more items of software owned by a third party supplier("Third Party Software"). Product and Software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which this information is provided) are collectively referred to as "Documentation." This Agreement contains the terms and conditions pursuant to which Licensor will license to Licensee, and Licensee may use, the Software and Documentation. Section 2 Grant of License Subject to Section 1, Licensor hereby grants to Licensee a personal, non-transferable (except as permitted in Section 8 below), limited, and non-exclusive license under Licensor's applicable proprietary rights to use the Software and related Documentation for the purposes for which they were designed and in accordance with the terms and conditions of this Agreement. The license does not grant any rights to source code. If the Software is or includes Integration Framework, Customer Service Request ("CSR"), or Cityworks software, that Software is licensed pursuant to this Agreement plus a separate document entitled "Software License Agreement Rider for Integration Framework, Customer Service Request, or Cityworks Software" (which document is incorporated by this reference and is either attached to this Agreement or will be provided upon Licensee's request). Section 3 Limitations on Use 3.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Licensee may not for any reason modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code, create derivative works from, adapt, translate, merge with other software, copy, reproduce, distribute, or export any Software or permit or encourage any third party to do so, except that Licensee may make one (1) copy of Software provided by Licensor to be used solely for archival, back-up, or disaster 00112294/jkg 1 CPAYINAL Set.1.10.05.revision.doc Motorola Contract No. recovery purposes. Licensee must reproduce all copyright and trademark notices on all copies of the Software and Documentation. 3.2. Licensee may not copy onto or transfer Software installed in one Product device onto another device. Notwithstanding the preceding sentence, Licensee may temporarily transfer Software installed on one device onto another if the original device is inoperable or malfunctioning, if Licensee provides written notice to Licensor of the temporary transfer and the temporary transfer is discontinued when the original device is returned to operation. Upon Licensor's written request, Licensee must provide to Licensor a written list of all Product devices in which the Software is installed and being used by Licensee. 3.3. Concerning Motorola's Radio Service Software ("RSS"), if applicable, Licensee must purchase a copy for each location at which Licensee uses RSS. Licensee's use of RSS at an authorized location does not entitle Licensee to use or access the RSS remotely. Licensee may make one (1) additional copy for each computer owned or controlled by Licensee at each authorized location. Upon Licensor's written request, Licensee must provide to Licensor a written list of all locations where Licensee uses or intends to use RSS. Section 4 Ownership and Title Title to all copies of Software will not pass to Licensee at any time and remains vested exclusively in the copyright owner. The copyright owner owns and retains all of its proprietary rights in any form concerning the Software and Documentation, including all rights in patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, and other intellectual properties (including any corrections, bug fixes, enhancements, updates, or modifications to or derivative works from the Software whether made by Licensor or another party, or any improvements that result from Licensor's processes or, if applicable, providing information services). Nothing in this Agreement is intended to restrict the proprietary rights of Licensor or to grant by implication or estoppel any proprietary rights. All intellectual property developed, originated, or prepared by Licensor in connection with providing to Licensee Software, Products, Documentation, or related services remain vested exclusively in Licensor, and this Agreement does not grant to Licensee any shared development rights of intellectual property. Section 5 Confidentiality Licensee acknowledges that the Software and Documentation contain Licensor's valuable proprietary and Confidential Information and are Licensor's trade secrets, and that the provisions in the Agreement concerning Confidential Information apply. Section 6 Limited Warranty 6.1. The commencement date and the term of the Software warranty will be as stated in the Primary Agreement, except that the Warranty Period for LiveScan software will be ninety (90) days; and for application Software that is provided on a per unit basis, the Warranty Period for subsequent units licensed is the remainder (if any) of the initial Warranty Period or, if the 00112294/jkg 2 CPAYINAL.Set.1.10.05.revision doc Motorola Contract No. initial Warranty Period has expired, the remainder(if any) of the term of the applicable Software Maintenance and Support Agreement. 6.2. During the applicable Warranty Period, Licensor warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined solely with reference to the Documentation. Licensor does not warrant that Licensee's use of the Software or Products will be uninterrupted or error-free or that the Software or the Products will meet Licensee's particular requirements. Warranty claims are described in the Primary Agreement. 6.3. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Notwithstanding the preceding statement, Motorola warrants that the equipment is fit for the purposes as described in the technical documents in this Agreement. THE TRANSACTIN COVERED BY THIS AGREEMENT IS A LICENSE AND NOT A SALE OF GOODS. Section 7 Limitation of Liability The Limitation of Liability provision is as described in the Primary Agreement. Section 8 Transfers Licensee will not transfer Software or the related Documentation to any third party without Licensor's prior written consent, which consent may be withheld in Licensor's reasonable discretion and which may be conditioned upon the transferee paying all applicable license fees and agreeing to be bound by this Agreement. Notwithstanding the preceding sentence, if Licensee transfers ownership of radio Products to a third party, Licensee may assign its rights to use the Software (other than Radio Service Software and Motorola's FLASHport® Software) embedded in or furnished for use with those radio Products if Licensee transfers all copies of the Software and the related Documentation to the transferee, and the transferee executes a transfer form to be provided by Licensor upon request (which form obligates the transferee to be bound by this Agreement). Section 9 Term and Termination Licensee's right to use the Software and Documentation will begin when this Agreement is mutually executed by both Parties and will continue during the life of the Products in which the Software is used, unless Licensee breaches this Agreement in which case it will be terminated immediately upon notice by Licensor. Licensee acknowledges that Licensor has made a considerable investment of resources in the development, marketing, and distribution of its proprietary Software and Documentation and that reasonable and appropriate limitations on Licensee's use of the Software and Documentation are necessary for Licensor to protect its investment, trade secrets, and valuable intellectual property rights concerning the Software and Documentation. Licensee also acknowledges that its breach of this Agreement will result in 00112294/jkg 3 CPAXINAL.S et.1.10.05.revision.doc Motorola Contract No. irreparable harm to Licensor for which monetary damages would be inadequate. In the event of a breach of this Agreement and in addition to termination of this Agreement, Licensor will be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Licensor that all copies of the Software and Documentation have been returned to Licensor or destroyed and are no longer in use by Licensee. Section 10 Notices Notices are as described in the Primary Agreement. Section 11 United States Government Licensine Provisions If Licensee is the United States Government or a United States Government agency, then this section also applies. Licensee's use, duplication or disclosure of the Software and Documentation under Licensor's copyrights or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless they are being provided to the Department of Defense. If the Software and Documentation are being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software and Documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. The Software and Documentation may or may not include a Restricted Rights notice, or other notice referring to this Agreement. The provisions of this Agreement will continue to apply, but only to the extent that they are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS mentioned above, as applicable to the particular procuring agency and procurement transaction. Section 12 General 12.1. Copyright Notices. The existence of a copyright notice on the Software will not be construed as an admission or presumption that public disclosure of the Software or any trade secrets associated with the Software has occurred. 12.2. Compliance with Laws. Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Licensor and the appropriate governmental authority of the United States, in any form export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies, at the time of the action, requires an export license or other governmental approval. Violation of this provision will be a material breach of this Agreement, permitting immediate termination by Licensor. 00112294/jkg 4 CPAYINAL.Set.1.1 0.05.revision.doc Motorola Contract No. 12.3. Assignments. Licensor 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 Software, without prior notice to or consent of Licensee. 12.4. Governing Law. This Agreement will be governed by the laws of the United States to the extent that they apply and otherwise by the laws of the State of Texas. 00112294/jkg 5 CPA.FINAL•Set.1.10.05.revision.doc Motorola Contract No. Exhibit"B" Technical and Implementation Documents 00112294/jkg 6 CPAYINAL.S et.1.10.05.revisiondoc Motorola Contract No. Motorola Confidential 3/21/2007 Page 1 Police Department Totals: Total Quantity Total Price Portable Radios XTS5000 112 $433,652.80 Portable Radios XTS5000 (High Tier Encryption) 38 $182,743.90 Mobile XTL5000 '03 Control Head (Hand Held CTRL Head) 14 $68,703.60 Mobile XTL5000 Standard with Special Encryption 14 $62,298.60 Mobile XTL2500 Standard Issue 91 $282,962.68 KVL Key Loader 1 $3,924.00 Requested Accessories and Console DES-OFB Upgrade 2 $1,710.40 Total QTY 269 Total Price $1,035,995.98 Trade In Credit See below Works and Parks Department Totals: Total Quantity Total Price Portable Radios XTS5000 with Bank Chargers 28 $112,825.20 Total QTY 28 Total Price $112,825.20 Trade In Credit See below Fire Department Totals: Total Quantity Total Price Portable Radios 7TS5000 122 $518,681.00 Mobile XTL5000 Dual CTRL Head Mobile 4 $17,271.00 Mobile XTL2500 Standard Issue 36 $111,941.28 " Requested Accessories 13 $8,644.80 Total QTY 162 Total Price $656,538.08 Wwa� Trade In Credit See below Total Radio Subscriber Amount For All Departments $1,805,359.26 Total Services (Programming, Installation, Removal, Template Creation) $147,660.00 Phase 1 Services$110,508 Phase 2 Services$38,984 Total Trade In Credit(Trade in for Old Mobile/Portable Radios) -$22,950.00 TOTAL PROMOTIONAL PRICING (Valid if ordered by 3-20-07 -$170,900.00 rand Total 1,759,169.26 Total Subscriber Count FOR BUDGETARY PURPOSES ON w 459 Motorola Confidential 3/21/2007 Page 1 Motorola Confidential 3/21/2007 Page 1 PRICE QUOTE EXHIBIT B-1 2/9/2007 Clay Cassard Item Qty Description Model List Price Contract Price Extended Police Portable Radios XTS5000 Portable Radio Standard PD issue PORTABLE XTS5000 MODEL II 3X2 KEYPAD DISPLAY 850 H18UCF9PW6 N $2,158.00 la 112 CHANNELS 764-87OMHZ $1,618.50 181,272.00 b 112 ADD: SOFTWARE ASTRO DIGITAL CAI OPERATION Q806 $515.00 $386.25 43,260.00 c 112 ADD: SMARTZONE SYSTEM SOFTWARE H38 $1,500.00 $1,125.00 126,000.00 d 112 ENH: PROJECT 25 9600 BAUD TRUNKING SOFTWARE Q361 $300.00 $225.00 25,200.00 e 112 ENH: ENHANCED DIGITAL ID DISPLAY H14 $75.00 $56.25 6,300.00 f 112 ALT: BATTERY IMPRES NIMH FM 1750MAH (NNTN4436) Q393 $47.00 $35.25 3,948.00 g 112 ADD:ALTERNATE DISPLAY LABEL Q768 $0.00 $0.00 0.00 h 112 ENH: TWO (2)YEAR EXPRESS SERVICE PLUS H885 $67.00 $67.00 7,504.00 i 112 ADD:ADP SOFTWARE DSP BASED ONLY Q667 $10.00 $7.50 840.00 ACCESSORIES j 112 CHARGER, IMPRESS SMART RAPID RATE, 110V NTN1873 $165.00 $123.75 13,860.00 k 112 MICROPHONE REMOTE SPEAKER NOISE CANCELING NMN6191 $96.75 $77.40 8,668.80 Extra Battery(Spare): IMPRES SMART NIMH, FM 2000 MAH NNTN4436 $140.00 5 150 (1750 MIN) IS (-20C) (Q393) $112.00 16,800.00 Totals 5,073.75 3,833.90 433,652.80 Item Qty Description Model List Price Contract Price Extended Police Portable Radios XTS5000 Portable Radio High Tier Encrypted Portable PORTABLE XTS5000 MODEL II 3X2 KEYPAD DISPLAY 850 H18UCF9PW6 N $2,158.00 la 38 CHANNELS 764-87OMHZ $1,618.50 61,503.00 b 38 ADD: SOFTWARE ASTRO DIGITAL CAI OPERATION Q806 $515.00 $386.25 14,677.50 Motorola Confidential 3/21/2007 Page 1 Motorola Confidential 3/21/2007 Page 2 c 38 ADD: SMARTZONE SYSTEM SOFTWARE H38 $1,500.00 $1,125.00 42,750.00 d 38 ENH: PROJECT 25 9600 BAUD TRUNKING SOFTWARE Q361 $300.00 $225.00 8,550.00 e 38 ENH: ENHANCED DIGITAL ID DISPLAY H14 $75.00 $56.25 2,137.50 f 38 ALT: BATTERY IMPRES NIMH FM 1750MAH (NNTN4436) Q393 $47.00 $35.25 1,339.50 g 38 ADD:ALTERNATE DISPLAY LABEL Q768 $0.00 $0.00 0.00 h 38 ENH: TWO (2)YEAR EXPRESS SERVICE PLUS Q58 $67.00 $67.00 2,546.00 i 38 ADD: ADP SOFTWARE DSP BASED ONLY Q667 $10.00 $7.50 285.00 ACCESSORIES j 38 CHARGER, IMPRESS SMART RAPID RATE, 110V NTN1873 $165.00 $123.75 4,702.50 k 38 MICROPHONE REMOTE SPEAKER NOISE CANCELING NMN6191 $96.75 $77.40 2,941.20 OPTIONS I Q668 2 38 ADD: ADP UCM ENCRYPTION WITH DES, DES-XL, DES-OFB $799.00 $679.15 25,807.70 3 38 ADD: MULTIKEY FOR ENCRYPTION H869 $330.00 $280.50 10,659.00 4 38 ADD: XTS5000 UCM HARDWARE ENCRYPTION Q159 $150.00 $127.50 4,845.00 Totals 6,212.75 4,809.05 182,743.90 Motorola Confidential 3/21/2007 Page 2 Motorola Confidential 3/21/2007 Page 3 Item Qty Description Model List Price Contract Price Extended Police Mobile Radio Special -NARCO&SPECIAL UNITS XTL5000 Mobile with new 03 Head Hand Held CTRL Head 2a 14 XTL 5000 MOBILE 10-35 WATT, 764-87OMHZ M20URS9PW1 N $1,497.00 1,122.75 15,718.50 b 14 ENH: SOFTWARE ASTRO DIGITAL CAI OPERATION G806 $515.00 386.25 5,407.50 c 14 ENH: SMARTZONE OPERATION G51 $1,500.00 1,125.00 15,750.00 d 14 ENH: ENHANCED DIGITAL ID DISPLAY G114 $75.00 56.25 787.50 e 14 ENH:ASTRO PROJECT 25 TRUNKING SOFTWARE G361 $300.00 225.00 3,150.00 f 14 ADD:ADP SOFTWARE DSP BASED CRYPTO G193 $10.00 7.50 105.00 g 14 ADD:ANTENNA 3DB LOW-PROFILE 764-87OMHZ G174 $43.00 32.25 451.50 h 14 ADD: CONTROL HEAD SOFTWARE, W3 G444 $0.00 0.00 0.00 i 14 ADD:XTL 5000 HHCH CONTROL HEAD G72 $946.00 709.50 9,933.00 j 14 ADD: NO MICROPHONE NEEDED G90 $0.00 0.00 0.00 k 14 ADD: Remote MOUNT G67 $297.00 222.75 3,118.50 ENH:TWO (2)YEAR ENCRYPTED EXPRESS SERVICE PLUS G78 $126.00 1 14 126.00 1,764.00 m 14 ADD: AUXILIARY SPEAKER 5 WATT B18 $60.00 45.00 630.00 Encryption Option 0 14 ADD: ENCRYPTION UCM HW G159 $150.00 127.50 1,785.00 p 14 ADD: ADP WITH DES/DES-XL/DES-OFB G194 $799.00 679.15 9,508.10 q 14 ADD: KEY RETENTION 30 SECONDS G336 $50.00 42.50 595.00 Totals 6,368.00 4,907.40 68,703.60 Motorola Confidential 3/21/2007 Page 3 Motorola Confidential 3/21/2007 Page 4 Description Nomenclature Price Contract Price Extended Police Mobile Radio"Normal Configuration with "Special Encryption" la 14 XTL 5000 MOBILE 10-35 WATT, 764-87OMHZ M20URS9PW1 N $1,497.00 1,122.75 15,718.50 b 14 ENH: SOFTWARE ASTRO DIGITAL CAI OPERATION G806 $515.00 386.25 5,407.50 C 14 ENH: SMARTZONE OPERATION G51 $1,500.00 1,125.00 15,750.00 d 14 ADD:XTL 5000 CONTROL HEAD G442 $432.00 324.00 4,536.00 e 14 ADD:ADD: CONTROL HEAD SOFTWARE G444 $0.00 0.00 0.00 f 14 ADD: DASH MOUNT G66 $125.00 93.75 1,312.50 g 14 ADD:ANTENNA 3DB LOW-PROFILE 764-87OMHZ G174 $43.00 32.25 451.50 h 14 ADD: PALM MICROPHONE W22 $72.00 54.00 756.00 i 14 ENH: INCREASED AUDIO POWER 10W W432 $106.00 79.50 1,113.00 j 14 ENH: ENHANCED DIGITAL ID DISPLAY G114 $75.00 56.25 787.50 k 14 ENH:ASTRO PROJECT 25 TRUNKING SOFTWARE G361 $300.00 225.00 3,150.00 1 14 ADD: ENCRYPTION UCM HW G159 $150.00 127.50 1,785.00 M 14 ADD: ADP WITH DES/DES-XL/DES-OFB G194 $799.00 679.15 9,508.10 n 14 ADD: KEY RETENTION 30 SECONDS G336 $50.00 42.50 595.00 0 14 ADD: ADP SOFTWARE DSP BASED CRYPTO G193 $10.00 7.50 105.00 p 14 ENH:TWO (2)YEAR ENCRYPTED EXPRESS SERVICE PLUS G78 $126.00 94.50 1,323.00 Totals 5,800.00 4,449.90 62,298.60 Motorola Confidential 3/21/2007 Page 4 Motorola Confidential 3/21/2007 Page 5 Item Qty Description Model List Price Contract Price Extended Police Mobile Standard Issue XTL2500 Dash Mount Mobile Radio 3a 91 XTL 2500 764-870MHZ, 10-35W M21URM9PW1 N $1,497.00 $1,122.75 102,170.25 b 91 ENH: SOFTWARE ASTRO DIGITAL CAI OPERATION G806 $515.00 $386.25 35,148.75 c 91 ENH: SOFTWARE SMARTZONE/SINGLETONE G51 $975.00 $731.25 66,543.75 d 91 ADD:XTL2500 CONTROL HEAD G442 $292.00 $219.00 19,929.00 e 91 ADD:ADD: CONTROL HEAD SOFTWARE G444 $0.00 $0.00 0.00 f 91 ADD: DASH MOUNT G66 $125.00 $93.75 8,531.25 g 91 ADD:ANTENNA 3DB LOW-PROFILE 764-870MHZ G174 $43.00 $32.23 2,932.93 h 91 ADD: PALM MICROPHONE W22 $72.00 $54.00 4,914.00 i 91 ENH: INCREASED AUDIO POWER 10W W432 $106.00 $79.50 7,234.50 j 91 ENH: ENHANCED DIGITAL ID DISPLAY G114 $75.00 $56.25 5,118.75 k 91 ENH:ASTRO PROJECT 25 TRUNKING SOFTWARE G361 $300.00 $225.00 20,475.00 1 91 ADD:ADP SOFTWARE DSP BASED CRYPTO G193 $10.00 $7.50 682.50 m 91 ENH:TWO (2)YEAR EXPRESS SERVICE PLUS G24 $102.00 $102.00 9,282.00 Totals $4,112.00 $3,109.48 282,962.68 Motorola Confidential 3/21/2007 Page 5 Motorola Confidential 3/21/2007 Page 6 Item Qty KVL- Key Loader Description Model List Price Contract Price Extended 1 1 KVL 3000 PLUS HARDWARE T6717 1,000.00 $900.00 900.00 a 1 ADD: ASTRO 25 MODE U239AC 250.00 $250.00 250.00 b 1 ADD:ASN MODE X795AH 600.00 $600.00 600.00 c 1 ADD: ADP ENCRYPTION SOFTWARE CA00243AA 300.00 $300.00 300.00 d 1 ADD: DES/DES-XL/DES-OFB ENCRYPTION X423AE 1,550.00 $1,550.00 1,550.00 e 1 ADD: CABLE FOR RNC, DIU, MGEG C543 84.00 $84.00 84.00 f 1 CABLE, KEYLOAD C724 75.00 $75.00 75.00 g 1 VISAR/KVL CHGR KIT 110V HKTN4004B 165.00 $165.00 165.00 Totals $4,024.00 $3,924.00 3,924.00 Motorola Confidential 3/21/2007 Page 6 Motorola Confidential 3/21/2007 Page 7 Item Qty Description Model List Price Contract Price Extended REQUESTED ACCESSORIES 1 1 IMPRES MULTI UNIT CHARGER WPLN4108 R $788.00 $630.40 $630.40 CHARGER IMPRES SMART MULTI UNIT W/DISPLAY WPLN4130 $1,350.00 2 1 MODULES (110V) $1,080.00 $1,080.00 Displays the following information"real-time for impres batteries-mAh,%capacity, time remaining to charge complete(NiCd/NiMH only),battery s/n,charge status, voltage,kit#,and more. Supports NiCd,NIMH,and Lithion impress and Motorola non• impres batteries. ACCESSORY TOTAL $1,710.40 Police Department Totals: Total Quantity Total Price Portable Radios XTL5000 (Standard ) 112 $433,652.80 Portable Radios XTL5000 (Standard and Special Encryption) 38 $182,743.90 Mobile XTL5000 '03 Control Head (Hand Held CTRL Head) 14 $68,703.60 Mobile XTL5000 Standard with Special Encryption 14 $62,298.60 Mobile XTL2500 Standard Issue 91 $282,962.68 KVL Key Loader 1 $3,924.00 Requested Accessories and Console DES-OFB Upgrade 2 $1,710.40 Total QTY 272 Total Price $1,035,995.98 Prices reflect current City of Austin Pricing Contract Prices do not reflect any trade in credit Prices do not include any programming, install/removal or any services of any kind Motorola Confidential 3/21/2007 Page 7 M MOTOROLA CITY OF ROUND ROCK SUBSCRIBER IMPLEMENTATION 3/19/07 Motorola's offering provides for the implementation of mobile and portable subscriber radios being procured by CITY OF ROUND ROCK. The specific quantity of subscriber radios to be implemented will be specified by the City of Round Rock. The subscriber implementation plan is predicated upon the anticipated total of 555 radios. These include the following: • 127—XTL2500 Mobile Radios (800 MHz Trunked PD and FD) • 28—XTL5000 Mobile Radios (800 MHz PD) • 4—XTL5000 Dual Head Mobile Radios (800 MHz FD) • 26—XTL1500/XTL2500 Audio Logging Radios (8-00 MHz PD) • 300—XTS5000 Portable Radios (800 MHz PD, Public Works and Parks, and FD) • 30—Pre-Existing Mobiles (26 PD and 4 FD) • 18—Pre-Existing Portables (11 PD and 7 FD) • 22—New Mobiles (future purchase) Motorola anticipates providing services in conjunction with this implementation in two phases. • Phase 1 includes installation, de-installation (removal of existing mobile units), building of programming templates, programming and checkout of each unit prior to being deployed, and coordination of the project, with Motorola providing a single point-of-contact to coordinate these efforts. • Phase 2 includes re-building of programming templates and re-programming services associated with the migration of the City of Round Rock from its existing communications network to its future one. As with Phase 1, Motorola would provide a single point-of-contact to coordinate activities associated with these second programming activities. WORK TO BE PERFORMED —PHASE 1 Installations/De-Installations Installation and removal of mobile subscriber radio units will be performed at a suitable customer site to be provided by the City of Round Rock. Work will be performed during normal daytime working hours, Monday through Friday, excluding holidays. A customer-provided facility will require sufficient drive-in space for the vehicles, as well as commercial AC power and protection from the environment. EXHIBIT I-B-211 M MOTOROLA Mobile Installations will be complete, including power cabling, antennas and antenna cabling. Motorola will coordinate the layout of mobile radio installations with the City of Round Rock prior to commencement of work to verify the installations and layouts preferred. These pre- determined layouts would be dependent upon vehicle type and agency of use (i.e. Police, Fire, Public Works, etc.). Mobile De-Installations (removals) will be complete, including all components (power cabling, antenna and antenna cabling, etc.)unless otherwise specified. Disposition of removed equipment will be conducted in accordance with the terms of the agreement between Motorola and City of Round Rock. If the radios are to remain the property of Round Rock, they will be returned to the City for disposition. Equipment to be installed includes the following: 0 155 -Mobiles (119 PD, 36 FD) • 4 - Dual Control Head Mobiles (FD) Equipment to be de-installed or removed includes the following: • 155 -Mobiles (119 PD, 36 FD) • 4 - Dual Control Head Mobiles (FD) Programming TemRlates A Motorola Systems Technologist will gather information from the appropriate City of Round Rock agencies sufficient for the building of programming templates for each user group. These templates establish the talk-groups and operating parameters for each radio. Templates for up to fifteen (15) templates (mobiles and portables) will be provided in conjunction with this project. Additional templates can be provided through a change order at additional cost. The gathering of template information is contingent upon the ability to collect it from a single point of contact at each agency for the City of Round Rock. Programming and Radio Check-Out All new subscriber radio units will be programmed with operating information from their respective templates prior to installation. Each mobile and portable will receive a check-out to insure proper operation prior to installation and being issued to the City of Round Rock. If the City of Round Rock exercises a system of asset management, this would be the time that unit IDs would be associated with the asset and end-user information. Equipment to be programmed and checked-out: 2 M MOTOROLA • 159—New Mobiles (119 PD, 40 FD) • 26 -Audio Logging Mobiles • 30—Pre-Existing Mobiles (26 PD and 4 FD) • 22—New Mobiles (future purchase in 2007) • 300—Portables (150 PD, 28 Works and Parks Dept., and 122 FD) • 18 —Pre-Existing Portables (11 PD and 7 FD) This quote includes the programming check out and temples only for the 26 XTL1500 radios, the installation for these radios was included in the scope of work for the "above grant" items (i.e. the cost of the radios themselves and their installation is in the"above grant"document. If any of the existing digital radios are not digital ready they will require an upgrade. The upgrade is approximately $1,000 - $1500 per radio based on current set up and configuration. These upgrades and associated costs are not included in this SOW. None of the existing digital radios are equipped with ADP encryption—it will cost approximately $300 per radio to add the ADP encryption. These upgrades and associated costs are not included in this SOW. The Alias Database Manager (ADM) in the Round Rock dispatch console will be updated appropriately to coincide with the changes made in Talk Groups as a result of the re- programming. Proiect Coordination Motorola will provide a representative from its Field Support Organization(FSO) to perform as a single point-of-contact to coordinate the implementation activities of this project. This individual will interface with a similar single point-of-contact from the City of Round Rock. These coordination efforts will include template building by Motorola's Systems Technologist, scheduling of installation, de-installation, and radio programming by Motorola's local service provider, and coordination of these activities with the City of Round Rock. The timing of these events will be coordinated with the City of Round Rock's single point-of-contact. Payments for completed work will be provided on the basis of progress payments as work activities and/or groups of radios are completed (i.e. Phase 1, Phase 2, completion of templates, installation/removals for PD,FD, and Public Works and Parks). Traininr Two (2) Interactive End User Tool Kits (iEUTK) will be provided in conjunction with Phase 1 for the purpose of facilitating customized customer end user training. One such kit is provided for XTL mobiles and one for XTS portables. Utilization of the kit is considered the responsibility of Round Rock. 3 M MOTOROLA WORK TO BE PERFORMED - PHASE 2 In conjunction with the migration of the City of Round Rock communications system from CWICS to another fixed network infrastructure, a subsequent building of programming templates and re-programming of subscribers will be required. This Phase will include the following work activities: ProErammine Templates A Motorola Systems Technologist will gather information from the City of Round Rock sufficient for the building of the re-programming templates for each user group. These templates establish the talk-groups and operating parameters for each radio. Templates for up to fifteen (15) templates (mobiles and portables) will be provided in conjunction with this project. Additional templates can be provided through a change order at additional cost. The gathering of template information is contingent upon the ability to collect it from a single point of contact at each agency for the City of Round Rock. Re-ProgramminL All subscriber radio units will be re-programmed in conjunction with the migration to a new radio communications network. Equipment to be re-programmed includes: • 159—Mobiles • 26 - Audio Logging Mobiles • 30—Pre-Existing Mobiles • 22—New Mobiles (future purchase) • 300—Portables • 18—Pre-Existing Portables The Alias Database Manager (ADM) in the Round Rock dispatch console will be updated appropriately to coincide with the changes made in Talk Groups as a result of the re- programming. Prosect Coordination Motorola will provide a representative from its Field Support Organization(FSO)to perform as a single point-of-contact to coordinate the re-programming activities of this project. This individual will interface with a similar single point-of-contact from the City of Round Rock. These coordination efforts will include template building by Motorola's Systems Technologist, radio programming by Motorola's local service provider, and coordination of these activities with the City of Round Rock. The timing of these events will be coordinated with the City of Round Rock's single point-of-contact. 4 M MOTOROLA PRICING Subscriber Implementation Price— Phase 1 $1105290 Subscriber Implementation Price— Phase 2 $37,370 Subscriber Implementation Price— Total $147,660 5 Page 1 of 1 A.Motorola Radio,Ptjiduand Services Division Replacement hftAV8U ibHlO'GO8l Statement, Prc+Iect Cancellatiopll tI'* : Itis fill0 4 ftdi tm&xu siiS+rtQe�aJli�ia+ PtStTlm+ n j1ro+raaar iia rrg�aca- wo pain Ow epeteanicee!FAt*+e�" fiarfi�or�r�nrrtflE ar i+e ddnh�fty Sapi(a+sl twrai tr+d wr 1p*q*Wv .pr ieesar- 4m9 f»Vie?+eMe&c D�a�Stwniaei keit p �Rfltrd�l`atw�� $ Trism Mtdi[eJParf�tieTiro-iNeq.Reas sw 15x+11 Find f�i i ?Val* �eEsad»rFiYe'e� sepses t VU12: �elri�befeUieFiu3'[1+ [�qee FGoe#DiNa 6N T 1" �IEII�i6eeeiber Lys ziG�e.t �rafrteicanee6ed F4sdo�etahrin1wc6�8Q1lF'at�aYl�endcefllldi�d�9dity�rseF BF...dla..... t bikCgp4l�" Eb+nirrx.'rlseur�aif�ti �t +lil"►+ 11Fe:for Nomt+h 12&Fill"ll Ind$IRM�CI� ttdlllYM 1l�bN A 1 iE10 3.E}��atsec��Msf�uidpd !i1(iF�1�o�@pIdr�.i�frars �feM+��t��uli. Epnipmam Service rA eeFCr F1+Ko14oiress�Bufrieea.tiirirrn F7�a t�oa+tz=a3to EXHIBIT nee http://compass.mot.com/cgi/fetch/2001/11041198/79214933/83279334/203346123/207580170/FOR... 3/20/2007