CR 2004-070 Minnesota Metro Public Safety Radio Project
CITY OF
. May 18, 2004 ~ Council Report 2004-070
HOPKINS
MINNESOTA METRO PUBLIC SAFETY RADIO PROJECT
CONTRACT WITH MOTOROLA
Proposed Action
Staff recommends the following motion: Move to authorize the Mayor and City Manaaer
to execute the contract for purchase of infrastructure equipment, software and services
between Motorola and the City of Hopkins for the 800 MHz radio system.
Overview
At the October 28,2003 council meeting, the Council approved the budget of
$900,298.88 for the 800 MHz radio project. Since that time, staff has worked with the
radio engineering consultant, Hennepin County Sheriffs Communications and Motorola
in designing the radio infrastructure. Staff has received approval of the design from the
Metropolitan Radio Board and Hennepin County Commission to proceed.
Motorola has presented a detailed project plan outlining the system description,
acceptance testing, statement of work to be performed, equipment list, and budget and
implementation schedule to coincide with the police department remodel project.
. Motorola's quote for equipment and services is $ 323,639.00. These costs are based
on the cooperative agreement Motorola has with the Hennepin County, MNDOT and the
Metropolitan Radio Board - Hennepin County Contract #A-16906.
Supportina Documents
. Communications System Agreement
. Motorola Software License Agreement
. Equipment List
. 10/24/03 Radio project budget
( I ' -,.----:::-/
l_J 1 t ~ L,{'~ c~j/f..L )/(
Connie J. Kurt '_J
Administrative Services Director
Financial Impact: $ $323.639.00 Budgeted: Y/N Y Source: ERP
Related Documents (CIP, ERP, etc.):
. Notes: Included in radio project costs
I COMM1JNICA nONS SYSTEM AGREEMENT I
. TABLE OF CONTENTS
Pae:e
BACIZGROUND RECIT ALS .. ,..... ".... ,..,... ,... ..... ,...... ,.. .....,.... ...... ,.... ,..................... ,...... ,....., ".., ...1
A G R E EM ENT . ... .. , , .. ... .. ... , .. .. ... ... ... , .. ... ,.. , .... ... ..... .... ... ... .. ... ... .. , ... .. ,.. .. ,... .. .. ... .. .... .. ... ... .... ... ......... ... 1
Section 1 EXHillITS. ,....""..",.. ". ..'"".."", ... ", ..... ,... ... ".., ... ,.... ".... "... ".... ,. ..... ...... ... ,.. .... ,.. ..., ",.. ...1
Section 2 DEFINITIONS.......,....,......,.. ,...,...... .........................,.....,.. ............... ......... ,.. .... ,.. .... ..... ...2
Section 3 SCOPE OF AGREEMENT ...... ....... .....,......,.................................... .........,......,.......,... ...5
Section 4 PERFORMANCE SCHEDULE ...... ..... ,...... ... ................ ..... ........... ,. ......... ,...... ,.. ..........10
Section 5 PAYMENT SCHEDULE.....,. .....,..............,.. .................,...... ........,.....,....... .............,.. ....9
Section 6 INST ALLA TION AND SITE CONDITIONS.... ,..... ............. ........ ,..... ,.. .......... ...... ....., .12
S ecti on 7 TRAINING...,..........................,...,............................,.....,..............,........................,...... 13
Section 8 SYSTEM ACCEPTANCE ..,...,................................ ...... ..... ................................... ....., .13
Section 9 WARRANTy..................................... ........ ,.......... ....., ..... ........ ..... ..................... ......... ..13
Section 10 FCC LICENSES AND AUTHORIZATIONS ,.......................................................,...15
Section 11 DELA YS ..........,...........................................................................................,...............16
. Section 12 DEF AUL T . ,............,......... ,......,..,... ,...,...,....... ,..... ,..... ,.... ,..... ,.... .....,.......,... ,...... ,.......,16
Section 13 INDEMNIFICATION, INSURANCE AND BONDS .................................,......,........22
Section 14 DISPUTES ......,........................,.....,........,.......,............................................................19
Section 15 LIMIT A nON OF LIABILITY.. ............................................................................ ......20
Sectlon 16 SUBCONTRACTORS.... ......, ....... ........ ....... .......... ...... ..... ........ ..... ".... ,..... ,...... ...,......20
Section 17 ACCOUNTING REQUIREMENTS AND AUDIT RIGHTS .....................................22
Section 18 TERMINA nON OF AGREEMENT ............,.............................................................22
Section 19 GENERAL................ ,........,..., ,......... ................................................................ .... ....., .25
EXHIBIT A
Section 1 SCOPE. ........... ,................,..,......,... ,.. ................,..,..... ........... ,......... ,..... ,....,.."..,..,..... ..,A 1
Section 2 GRANT OF LICENSE"..,..... '...,..'...,.......,.......,........ ................,...............,...............,..A 1
Section 3 LIMIT A TIONS ON USE................... ....... ......................................,..................... ........A 1
S ecti on 4 TRANSFERS.,..,...........................,.................................,.............................,............... A 1
Section 5 OWNERSHIP AND TITLE.......... ..., ...., ...... ........ ...... ........ ........ ..... ...... ,.... ,.. ,............ ...A3
e Section 6 CONFIDENTIALITy..... ........ ,.... ..., ..... ... ..., ....... ...... ...... ..... ..... ... ...... ........ ....... ,.. ....., ..A3
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. Section 7 MAINTENANCE AND SUPPORT......... ........... ,.. ......... ........ ..........,.......... ..... ...........A3
Section 8 LIMITED WARRANTY.. ...... ,.... ... ..... ...,... ........ ....., ... ............. ..... ........... ,...... ,...... .....A3
Section 9 LIMIT A TION OF LIABILITY ....................................................................................,A3
Section 10 TERM AND TERMINATION ..... ........ ....................,.. ........... ..... ...... ..... ,.. .... ......, ..... .A4
Section 11 NOTICES............................. ....................... ............. ...................... ........... ....... .......,. ..AS
Section 12 GENERAL......"..........,.....,.................,...,.......,......................................,........,........... AS
ASSIGNMENT OF RIGHTS .....,............ ........ ..... ................. ,...................................... .........., .....A 7
EXHIBIT C-2
Section 1 SUBSCRIPTION PROGRAM.,... ...........,... ..........,.. ,.................. ........................... ,..C2-1
Section 2 FEES AND PAyMENT......,.."..............,... ,.. .......,..,..........,..,....,.......................... ,...C2-3
Section 3 TERM AND TERMINATION ......,... ...........,....................................................... .....C2-3
Section 4 NEW RELEASES..............,..,.......... ............ ..... ........'... ............. ........... ........'.......... ..C2-3
Section 5 TAXES............................................,..............,.......................,...............................,... C2- 3
Section 6 EXCLUDED SERVICES......,.......... ............,.......,...... .......................................... ....C2-3
. Section 7 OWNERSHIP AND USE OF SOFTWARE .............................................................C2-4
Section 8 LIMITED WARRANTy.............,... ..... ,...... ,..,... '.........................................,......... ..,C2-4
Section 9 SUSPENSION AND TERMINATION ... .............. ...... ..... ........ ..... ...... ..... ............. ....C2-4
Section 10 LIMIT A TION OF LIABILITY. ....... ....,... ... ..... ." ...,....... ........ ,.... ...... ..... ... .......... .....C2-4
Section 11 GENERAL...,............., .....,......,......,..................... ,..,.......... ........ .............. ............. ...C2-5
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I COMMllNICA nONS SYSTEM AGREEMENT I
. Motorola, Inc., a Delaware corporation ("Motorola"), and City of Hopkins, MN ("Owner") enter into this
Communications System Agreement (the "Agreement"), pursuant to which Owner will purchase and
Motorola will provide Owner with an additional Subsystem (as defined below). This additional Subsystem
is part of the 800 MHz Trunked Radio System and is included within the meaning of "Initial Network (as
defined below).
BACKGROUND REClT ALS
1. WHEREAS, pursuant to its authority under Milmesota Statutes S 473.891 et seq" the
Metropolitan Radio Board adopted a region-wide public safety radio system communication plan
for the Minneapolis-St. Paul metropolitan area; and
2. WHEREAS, pursuant to its responsibility under Minnesota Statutes * 473,904, the Metro
Transit Common Council adopted a Radio Communications Plan for Hennepin County, Such plan
provides for implementation of Metro Transit as part ofthe Hennepin County 800 MHz digital
h'unked radio integrated subsystem in conjunction with the first phase of the region-wide public
safety radio conmlllnications system and the Metropolitan Radio Board approved said Metro
Transit Radio Communication Plan; and
], WHEREAS, Hem1epin County, MNDOT, and the Metropolitan Radio Board entered into
a Cooperative Agreement, Helmepin County Contract # A-16906 , which defines the terms,
conditions, rights, obligations, and procedural matters related to implementing Metro Transit's 800
MHz digital trunked radio integrated subsystem in conjunction with the first phase of the region-
wide public safety radio communication system; and
4, WHEREAS, Pursuant to Hem1epin County Conh'act # A-16906 the Metropolitan Radio
. Board obtained and evaluated a Proposal from Motorola for the procurement and installation of the
Initial Network as defined herein and recommended that the Ovmers collectively negotiate a
contract with Motorola for said Initial Network; and
5, WHEREAS, the Owners have collectively reached agreement with Motorola on the terms,
conditions, technical requirements and work included for the Initial Network, related end user
equipment and additional optional purchases; and
6. WHEREAS, the Metropolitan Radio Board has reconnnended the award of contracts to
Motorola for the procurement and installation ofthe Initial Network, related end user equipment
and additional optional purchases; and
7. WHEREAS, the State of Mimlesota, through the Commissioner of Transportation has
already contracted with Motorola to build a regional 800 MHz digital tnmked radio system with
coverage in Meh'o Transit
AGREEMENT
NOW, THEREFORE, in consideration of the mutual undertakings and agreements hereinafter set forth,
Owner and Motorola agree as follows:
Section 1 EXHIBITS
The Exhibits below are hereby incorporated into and made a part of the Agreement In interpreting this
Agreement and resolving any ambiguities, the main body of the Agreement including subsequent
amendments (with the most recent amendment having precedence over earlier amendments) will take
precedence over the Exhibits,
.
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. Exhibit A Motorola software license agreement ("Software License Agreement") dated April 19,
2004
Exhibit B-1 System Description, dated May 12, 2004
Exhibit B-2 Acceptance Test Plan, dated April 19, 2004
Exhibit B-3 Equipment List, dated May 12, 2004
Exhibit B-4 Statement of Work (including Implementation Schedule), dated April 19,2004
Exhibit C-l First Year Service Description, dated April 19, 2004
Exhibit C2 Software Subscription Agreement, dated April 19, 2004
Exhibit D Payment Terms Schedule, dated April 19, 2004
Section 2 DEFINITIONS
Capitalized tel111S used in this Agrecment and not otherwise defined within the Agreement have the
following meanings:
"Agreement" - The written agreement between Owner and Motorola covering the furnishing of Equipment
and Software and performing the services in cOImection therewith, Other Contract Documents are attached
to the Agreement and are made a part thereof The Agreement may also be refened to as the Contract or
. Contract Agreement
"Backbone System" - The Initial Network plus Subsystems that have been added to date to the Initial
Network.
"Change Order" - A written order to Motorola signed to show the recommendation of the Project Director
and the authorization of the Owner, issued after execution of the Contract, authorizing a change in the Work
or an adjustment in the Contract Price or the Implementation Schedule, within the general scope of the
Contract Documents, To be effective, a Change Order must be in writing and must be executed by an
authorized representative of both parties,
"Conu11lmications System" or "System" is the conUlmnications system described in Exhibit B documcnts,
including the Equipment and Software described in the System Description, Statement of Work, Acceptance
Test Plan and Equipment List.
"Contract Documents" - Consists of the Agreement, Owner provided forms which have been executed,
executed Performance and Payment Bonds, other executed documents (acknowledged in writing or signed
by Owner), and all modifications to any of these documents after execution of the Agreement, together with
Change Orders, Amendments, Detailed Design Document, and Project Director's written minor changes or
conections on or after the effective date of this Agreement
"Director" - The term Director is interchangeable with the term Project Director.
"Effective Date" is the latest date both parties execute this Agreement
"Equipment" is the hardware and other materials and equipment specified in the Equipment List included in
. Exhibit 8.3, or otherwise provided under this Agreement
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I COMMUNICA TIONS SYSTEM AGREEMENT I
. "Excusable Delay" ~ Events beyond the reasonable control of a party including, but not limited to acts of
God, weather conditions, governmental action, bid protests, site acquisition disputes, fire, strikes, riots, acts
of war, or other events/conditions mutually agreed to by the parties through the change order process,
"Firnlware" - Software in object code form that is implanted or embedded in hardware; as such, it is
included within the meaning of "Software."
"First Phase" - The initial backbone of the 800 MHz, Digital, Trunked Radio System which serves state and
regional agencies, The First Phase does not include Subsystems,
"Goods" - All tangible personal property required to be furnished under the Contract Documents,
"Hardware" - The tangible Motorola and non~Motorola equipment specified in the Equipment List included
in Exhibit B-3.
"Hop" - The microwave path from one site to an adjacent site,
"Implementation Schedule" - The agreed-upon master schedule which is pal1 of the Statement of Work,
pursuant to which the parties will perfonn their respective duties under this Agreement.
"Initial Network" - the 800 MHz, Digital, Trunked Radio System for the Metropolitan Minneapolis/St Paul
Region consisting of the First Phase, Helmepin County and City of Minneapolis Subsystems, the Metro
Transit Data Subsystem, Carver County Subsystem, and the Metro Transit Subsystem.
"Loop" - A collection of hops in tandem that is closed.
. "Material Breach" - Any unexcused non-performance of a substantial or significant duty of a PaTty under
this Agreement, including but not limited to failure to perf01l11 such duty according to the Implementation
Schedule excepting Excllsable and Reasonable Delays,
"Metropolitan Radio Board" - The Board established by Minnesota Stahltes Section 473,891 et seq, (1995)
as a political subdivision of the State of MilUlesota to adopt and implement a plan for a region-wide public
safety radio communication system, its successors and assigns,
"Modification" - Comists of a written amendment or supplement to the Agreement signed by both pariies, a
Change Order, a written interpretation issued by the Project Director or Directors, as appropriate or a
written order for a minor change in the Work issued by the Project Director or Directors, as appropriate,
"Motorola Software" is software whose copyright is o\vned by Motorola,
"Non-Motorola Software" is software whose copyright is owned by a third party other than Motorola.
"Payment Bond" - The security for payments of debts to persons fumishing services or materials on account
of the Contract work, and the payment of certain other responsibilities of the Conh'actoL The bond is to be
provided by the Contractor within 15 calendar days of Contract execution by Owner.
"PerfOllllanCe Bond" - A fOllll of security executed subsequent to award to Motorola that guarantees the
proper perfonnance of the Agreement The bond is to be provided by Motorola within 15 calendar days of
Contract execution by Ov.rner.
"Project" - The undertaking to be perfonned by Motorola as provided in the Contract Documents,
.
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I COMMUNTCA nONS SYSTEM AGREEMENT I
. "Project Director" y The person(s) designated by Owner and the Metropolitan Radio Board to represent
Owner and the Meh'opolitan Radio Board on all teclmical and contrachml matters, The tenn Director is
used as an alternative to Project Director.
"Project Manager" - A person designated by Motorola to manage the Project and to receive official
communications from the Project Director conceming the Work.
"Qualified Purchasers" - Owner, any agency or department of the State of Minnesota, local units of
government, political subdivisions within the State of Minnesota, and private entities providing hospital,
emergency medical, or similar services under contract to Owner or the Metropolitan Radio Board, if such
private service provider is authorized by the Metropolitan Radio Board to use the Backbone System
"Reasonable Delay" - A delay or delays by any party for any reason totaling in the aggregate no more than
90 days,
"Software" includes Motorola and any Non-Motorola Software that may be lllrnished with the
ConuTIlmications System,
"Subconh'actor" - Any pmty having a direct contract with Motorola or with another Subcontractor to
provide Equipment and/or Work related to the Communications System Subcontractors shall be approved
by Owner; however, if any Subcontractor has been previously approved by another "Original Owner" (as
defined in Section 3,H.), such Subconh'actor shall be deemed approved by Owner.
"Subsystem" - A radio conm1l111ications system which is interconnected to the first Phase and which is
operated by the Owner for its intemal operations,
. "Work" - All labor and services provided by Motorola or a Subconh'actor under this Agreement.
Section 3 SCOPE OF AGREEMENT
A. SCOPE OF WORK. Motorola will provide all of the Equipment, Firmware and Software listed in
the Equipment List, and provide all the tools, supplies, materials, incidentals, services, labor and
supervision to perf 01111 Motorola's duties under this Agreement. As more fully described in the
Statement of Work and Acceptance Test Plan, such duties of Motorola will include the delivery,
installation, optimization, and testing of the Communications System at the designated sites as
specified in the Exhibit B documents as modified by the approved Detailed Design Document, and
in accordance with this Agreement. Owner will perform all of its responsibilities as required in the
Exhibit B documents, as modified by the approved Detailed Design Document, and in accordance
with this Agreement All infrastructure Equipment which is part of the Initial Network, to be
supplied under this Agreement will be staged and testecl at the Rail Control Center site which is
part of the Statement of Work.
B. CHANGE ORDERS. The Work, the items on the Equipment List, the Contract Price and the
Implementation Schedule may be changed only by a Change Order. All changes shall be
performed uncleI' the applicable conditions of the Conh'act Documents, Owner may, acting tlrrough
the Project Director, make requests for changes within the general scope of this Contract by written
Change Order request. Motorola shall, within a specified and muhlally acceptable period of time
from the date of receipt of the Change Order request, notify Owner of any increase or decrease in
the Contract Price, any adjustment to the Implementation Schedule, or any other foreseeable
material impact on the System or Motorola's perfonnance of the Agreement as a result of the
Change Order. Motorola's response shall also include a statement indicating whether or not
. Motorola reconm1ends the Change Order request and shall be signed by Motorola's Project
Manager. Within a specified and mutually acceptable period of time, which may include, if
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I COMMUNICA nONS SYSTEM AGREEMENT I
. applicable, review and approval by the Metropolitan Radio Board, the Owner shall advise
Motorola in writing as to whether Owner wishes to execute the Change Order, withdraw the
Change Order request, or negotiate an amendment to the Agreement pursuant to Section 19Q, If
Owner advises that it wishes to withdraw the Change Order request, then it shall have no further
effect If Owner advises that it wishes to negotiate an amendment to the Agreement, then the
parties shall negotiate in good faith an amendment but both parties shall continue to perfonn their
existing duties under the Agreement pending execution of the amendment If Owner advises that it
wishes to execute a Change Order consistent with the Change Order request, then the parties shall
promptly execute it Any increase in the Contract Price, or a change of the Implementation
Schedule, must be evidenced by a written Change Order mutually executed by an authorized
representative of each party. A Change Order signed by Motorola indicates Motorola's agreement
therewith, including any adjustment in the Contract Price or the Implementation Schedule,
Motorola's Project Managcr has Change Order signature authority in the amount of $1 00,000,
The cost of any Change Order herein shall be determ.ined in one Dr more of the following ways in
this order of precedence:
(I) By unit prices for Equipment and services (at same level of detail as in this
Agreement) stated in Contract Documents or subsequently agreed upon,
(2) By l11uhlal acceptance of a lump sum properly itemized and supported by
sufficient data to penllit evaluation, Such in[onnation will be item.ized and
priced in a manner consistent with the initial Agreement and need not include
Motorola's costs.
(3 ) By price to be detemuned in a matmer agreed upon by the parties,
. The Project Director shall have the authority to order minor changes in the Work not involving
adjustments to the Contract Price or Implementation Schedule and not inconsistent with the intent
of the Conh'act Documents, The Project Director shall further have the authority to coneet, in
writing, any non-disputed typographical, mathematical or other nunor enol'S or omissions in the
Contract Documents when such conections do not involve adjustments to the Conh'act Price or
Implementation Schedule and are necessary for the proper fulfillment of intent of the Conh'act
Documents, Such minor changes or corrections shall be followed up in writing and signed by the
Owner's Project Director and Motorola's Project Manager.
Should either party find any discrepancy between existing conditions at the job site and the
Conh'act Documents, or that the requirements can be met and the work completed in a more
advantageous way, the Party shall notify the other party's Project Director or Project Manager (as
the case may be) in writing of such finding. Nothing herein shall be construed as precluding
Motorola from requesting a Change Order.
Any Change Order which involves changes beyond the general scope of the Contract Documents,
or involves changes to the tenns and conditions of the Contract Documents, or involves substantive
changes to the perfom1ance of the System, requires prior execution of an Amendment of this
Contract in accordance with Section 19Q,
C ADDITIONAL PRODUCTS, Qualified Purchasers may purchase under this Agreement, or subject
to the same tem1S and conditions if not otherwise pemutted by law to purchase under this
Agreement, "Additional Products," "Replacement Products," "New Products, " "Software
Upgrades," and "Hardware Upgrades" as set forth below,
. 1. "Additional Products", i,e., additional quantities of (a) the Equipment and Software listed
on the Equipment List or (b) Motorola manufactured VOlce radio equipment available on
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I COMMUNICATIONS SYSTEM AGREEMENT I
. the Effective Date through the Radio Network Solutions Group or Accessories and
Aftermarket Products group even if such equipment was not listed on the Equipment List.
Motorola agrees that Qualified Purchasers may purchase Additional Products for five (5)
years from the Effective Date. The Additional Products include all such Equipment, if
then available during the first year from the effcctive date, prices are fixed; during years 2
through 5, pricing is the manufacturer's then published list price less the applicable
discount by APC as sho\V11 on the Equipment List. If the Additional Products being
purchased are described in clause "(b)" above and the products' APC is not listed on the
Equipment List, pricing will be determined as if these are "New Products." Motorola will
provide at least sixty (60) days notice before a price increase becomes effective, If
Motorola's then published list prices decrease, the lower price shall apply to all
subsequent purchases of Additional Products, including orders taken but not yet shipped,
2, "Replacement Products", i,e" new Motorola manufactured products which replace a
discontinued model of Motorola manufactured Equipment listed on the Equipment List
Motorola agrees that Qualified Purchasers may purchase Replacement Products for five
(5) years from the Effective Date, Pricing for Replacement Products is Motorola's then
published list price of the Replacement Product less the applicable discount of the
discontinued product by APC as sho\V11 on the Equipment List However, for
Replacement Products orders taken but not yet shipped, pricing will be the lower of (a)
the applicable price of the discontinued product, or (b) Motorola's then published list
price of the Replacement Product less the applicable discount of the discontinued product
by APC as shown on the Equipment List. Motorola will make good faith efforts to
provide at least ninety (90) days notice before a product discontinuation occurs.
3, "New Products", i,e" products which are not available to Owner on the Effective Date,
. are added to the available product offering after the Effective Date, and which are in
addition to, rather than in replacement of, a discontinued product. Motorola agrees that
Qualified Purchasers may purchase New Products once they are available for five (5)
years from the Effective Date, Pricing for New Products will be negotiated in good faith
by both pm1ies, but the minimum discount level for voice radio New Products will be
15%,
4, "Software Upgrades", i,e" upgrades of FLASHport™ and infrastructure Software, The
Contract and Statement of Work will provide for Enhanced System Support ("ESS")
which requires the execution of a Software Subscription Agreement Motorola agrees
that any Qualificd Purchaser who purchases a Subsystem may participate in the ESS
program,
5. "Hardware Upgrades", i,e" upgrades to Equipment listed on the Equipment List where the
modification to the hardware product is minor and the modified hardware product is not a
New Product, or a Replacement Product. The parties' teclmically qualified representatives
shall use good faith and best efforts in determining whether or not a Hardware Upgrade
constitutes a New Product, a Replacement Product or a minor modification, Motorola
agrees that Qualified Purchasers may purchase Hardware Upgrades for five (5) years from
the Effective Date. Pricing for Hardware Upgrades for Motorola manufactured
Equipment (excluding Software covered by Section 4 inmlediately above) is Motorola's
thcn published list price less the applicable discount by APC as shown on the Equipment
( excluding Software) List. Pricing for Hardware Upgrades for non-Motorola
manufactured Equipment shall be, if applicable, Motorola's then published list price less
the applicable discount by APC as shown on the Equipment List, or, if not applicable, a
price muhlally detennined by the parties in good faith,
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I COMMUNI (' A nONS SYSTEM AGREEMENT I
. 6, Payment terms for the above mentioned Additional Products, Replacement Products, New
Products, Software Upgrades, and Hardware Upgrades are net 30 days from the date of
invoice as shipped or, if applicable, in accordance with the Payment Schedule set forth in
Exhibit D, Motorola may require Qualified Purchasers who are private service providers
to pay in accordance with commercial payment terms rather than the more favorable
payment terms set forth in Exhibit D.
D, Owner has obtained approval of its Subsystem by the Metropolitan Radio Board,
To make such purchase of an additional Subsystem, the Qualified Purchaser shall issue a purchase
order (or similar purchasing document) that specifically states:
Owner represents and wanants to Motorola that this Agreement, and any related purchase order,
has been approved by the Metropolitan Radio Board, that such approval is in writing and a copy of
such approval is attached to this Agreement and any related purchase order, By entering into this
Agreement and issuing and accepting a related purchase order, Owner and Motorola respectively
agree that the tem and conditions of the CSA, including those governing pricing and the Payment
Schedule, shall govern, Such provisions and exhibits are set forth herein or attached hereto, Owner
and Motorola agree that a separate System Description, Equipment List, Statement of Work,
Acceptance Test Plan, and Training Plan will be prepared and will apply to Owner's purchase of
the additional Subsystem, that such documents are attached as exhibits to this Agreement Owner
agrees to execute an End-User Software License Agreement, a Service Agreement (if Owner
wishes to obtain such maintenance services), and a Software Subscription Agreement (if Owner
wishes to obtain such Software Subscription),
E, EQUIPMENT MAINTENANCE SERVICE. Owner may purchase maintenance service for the
Communications System pursuant to the terms and conditions of the Motorola Service Agreement
(Exhibit C-l), or a modified service agreement to be negotiated within a mutually agreed upon
. date.
F, MOTOROL^ SOFTWARE. Any Motorola Software furnished will be licensed to Owner solely
according to the tenns and restrictions of the Software License Agreement attached as Exhibit A,
OViller hereby accepts all of the terms and restrictions of the Software License Agreement
G, NON-MOTOROLA SOFTWARE. Any Non-Motorola Software fumished by Motorola will be
subject to the terms and restrictions of its copyright owner.
H. Motorola shall not commence performance pursuant to the terms and conditions of this Agreement
unless and until the Metro Transit issues a separate Notice to Proceed for each defined portion of
the Work to be pc rfoll11ed , Under no circumstances will the Metro Transit be liable to Motorola
for any costs incurred prior to the issuance of a written Notice to Proceed. Such Notice to Proceed
shall clearly identify the portion of the Work for which authorization is being provided.
I. COMMITMENT TO PROVIDE ADDITIONAL SERVICES, Exhibit C describes the first year
System Support services being provided by Motorola to Owner. Thereafter, in the event Owner
wishes to procure some or all of the service modules, or some of the specific items of service
within a service module, Owner may request that Motorola provide a written proposal consisting
of, at the minimum, a description of the proposed scope of services and a binding price
commitment for such services at Motorola's then current pricing for such services, For ten years
from the date of final Acceptance of the Initial Network, Motorola hereby agrees to provide such
proposal to Owner conceming the System Support services as requested by Owner, and provide
the services, if any, purchased by Owner, provided that Motorola at that time is in the business
generally of providing such requested services, At the request of Owner, Motorola and Ov.mer will
negotiate in good faith any issues arising from Owner's requests or Motorola's proposal
. conceming these services.
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. Section 4 PERFORMANCE SCHEDULE
A, DETAILED DESIGN REVIEW PROCESS, The parties shall partlcipate in and complete the
Detailed Design Review ("DDR") process in connection with the Initial Network and additional
Subsystems that are governed by Section 3,0, This DDR process applicable to the Initial Network
is more completely described below and in the Statement of Work The DDR process applicable
to additional Subsystems that are governed by Section 3.0, shall be as described below (unless, in
order to scale the ODR process, the purchaser of such additional Subsystem and Motorola
otherwise agree in v,Titingl and in the statement of work concerning the purchase of such
additional Subsystem.
1. Detailed Design Document As part of this DDR process, Motorola will prepare a
Detailed Design Document ("ODD"), the purpose of which is to finalize and document
the design of the Initial Network The documentary elements of the ODD are described in
the Statement of Work. The ODD shall be in sufficient detail to permit Owner's
technically qualified project engineers to understand the design of the Initial Network and
the Owner's integrated subsystem and shall include: a description of the functional and
operational requirements of the Initial Network, the Equipment involved in the Initial
Network, and the engineering specifications and initial drawings governing system
configuration, installation, optimization, and testing of the Initial Network. The ODD
excludes a system cutover plan; such plan will be a separate deliverable provided after the
ODD is approved, The approved ODD may, but not necessarily will, include a Change
Order to revise the Implementation Schedule or other matters, The approved ODD shall
constitute the agreed upon technical specifications of the Initial Network lor the
additional Subsystem, as applicable),
. 2, ODD Review and Approval Process, The ODD is subject to Owner's written approval,
which approval shall not be unreasonably withheld or delayed, Owner shall not withhold
or delay ODD approval if delay occurs because Owner has not timely perfonned its
responsibilities conceming site acquisition and/or site development, even if such failure is
an Excused Delay, If this situation arises, Owner shall nevertheless approve the ODD so
long as Motorola provides a "typical" site drawing for the unavailable site. When
Motorola reasonably believes the ODD is in final or "near final" condition, Motorola will
deliver to Owner the draft ODD. Upon receipt of the ODD, Owner shall have thirty (30)
calendar days to review the draft ODD. If the draft DDD contains substantive changes to
the design as compared to the Exllibit B documents, Owner may need more time than
thilty (30) calendar days to review the draft DDD, in which case Owner shall so notify
Motorola in writing and the review period shall be reasonably expanded to meet Owner's
needs and the Implementation Schedule shall be extended accordingly, Motorola
acknowledges that Owner's needs include review and approval of the ODD by the
MetTopolitan Radio Board, At the end of this review period, Owner shall either approve
in writing the ODD or provide to Motorola formal written notice stating all of the
requested additions, deletions, or modifications that Owner reasonably believes to be
necessary for it to approve the ODD, If O\vner provides such notice, Motorola shall have
fifteen (15) working days to revise the ODD and re-submit it to Owner for review and
approvaL Owner shall have five (5) working days to review the re-submitted ODD and
either approve or disapprove it in writing. If the re-submitted ODD contains substantive
changes to the design as compared to the Exl1ibit B documents, O\vner may need more
time than five (5) working days to review the resubmitted ODD, in which case Owner
shall so notify Motorola in writing and the review period shall be reasonably expanded to
meet Owner's needs and the Implementation Schedule shall be extended accordingly, If
Owner disapproves the re-submitted ODD, Motorola may either submit another revision
. or treat the matter as a dispute in which case Section 14 shall apply; in either case, the
Implementation Schedule shall be extended accordingly.
I Contract Nn. 04-16867/SG Page 8 I
I COMMUNIC A nONS SYSTEM AGREEMENT I
. 3, Restriction on Equipment Delivery, Without Owner's written consent to the contrary,
Motorola shaH not deliver to Owner any Equipment or perform any services (other than
4, The services in performing the DDR process) until the DDD is approved by Owner.
Once the DDD is approved, Motorola will proceed to perform all of its remaining duties
under the Agreement.
B. Motorola and Owner agree to perfoml their responsibilities in accordance with the Implementation
Schedule, which is a part ofthe Statement of Work.
C. By executing this Agreement, Owner authorizes Motorola to proceed in accordance with the
Implementation Schedule,
D. This Agreement shall continue in effect until the date that is 5 years after the Effective Date. The
parties may muhlally agree to extend the Term of the Agreement to the extent allowed by law,
E. PROGRESS MEETINGS, At regular times as established by Owner's Project Director and the
Radio Board Project Director, meetings shall be held to discuss the progress and the plmming of
the Project These meetings shall be [or the purpose of, but not limited to: (i) establishing
functional details of the Project; and (ii) delivery, installation and testing of the Equipment and
System. The meetings shall be under the direction of Owner's Project Director and the Radio
Board Project Director and shall be attended by the Project Manager of Motorola, and such other
representatives as the Project Manager deems appropriate.
F, PROGRESS REPORTS, Motorola shall provide Owner's Project Director and the Radio Board
. Project Director written progress reports on a monthly basis, These progress reports shall include a
monthly financial report, which indicates Motorola's receipt of payment forGoods and services from
Owner.
Section 5 PAYMENT SCHEDULE
A. The total contract price ("ContTact Price") is $323,639,00 Owner agrees to make payments
according to the Payment Schedule attached as Exhibit D,
13. As provided, Mimlesota Stahltes Section 549.09 shall apply to overdue undisputed invoices,
Before any interest payment is made, Motorola must invoice the Owner for such interest
C. FREIGHT CHARGES, Motorola shall pay all necessary freight charges. Owners agree to pay
Motorola the fixed freight and warehouse charge as provided in the Equipment List Subsequent
purchase orders for Equipment beyond the Owner's initial order, for additional subscribers,
subsystems, or for other additional purchases shall contain a separate line-item for reasonable and
appropriate freight and warehouse charges.
Section 6 INSTALLATION AND SITE CONDITIONS
A, In addition to its responsibilities described in the Statement of Work, Owner agrees to provide a
designated Project Director, procure any necessary constmction pennits, building permits, zoning
variances and the like, provide access to the sites identified in the Exhibits as requested by
Motorola, and have such sites available for installation of the Equipment by Motorola in
accordance with the Implementation Schedule and Statement of Work.
. B, The Owner and the Metropolitan Radio Board bave designated the following persons as Project
Director, COlUlie Kurtz and William Dean respectively. Unless expressly expanded or
I Contract No. 04-16867/SG Page 9 I
I COMMUNICA nONS SYSTEM AGREEMENT I
. limited in writing by O\V1ler, O\V1ler's Project Director (herein referred to as "Project Director")
shall have the authority to act on behalf of Owner for the duration of this Contract: (i) to serve as
the initial point of contact between Owner and Motorola on matters of Contract administration; (ii)
to verify solely for the benefit of Owner that Motorola's Goods and services conform to the
Contract Documents; (iii) to confirm the meaning, intent, and interpretation of the Contract
Documents; (iv) to receive and return submittals and directions from Owner; (v) to direct
adjustments to the location of Goods and services to avoid conflicts with existing st11lctures,
maintenance holes, sewer lines, obstructions, or otherwise to facilitate the Project; (vi) to attend
project progress meetings; (vii) to deliver Change Orders executed by Owner; and (viii) to reject
defective Goods and services,
The Metropolitan Radio Board Project Director shall have the authority to act on behalf of the
Metropolitan Radio Board for the duration of the Contract: (i) to serve as the initial point of
contact between the Radio Board and Motorola on matters of Contract administration (ii) to
receive and ret11111 submittals and directions from the Radio Board; (iii) to attend project progress
meetings; and (iv) to deliver to Owner Change Orders approved by the Radio Board,
Whenever Owner is required by the tenns of this Contract to provide written notice to Motorola,
such notice shall be signed by Owner's Project Director, or, in the case of that individual's absence
or inability to act, by Public Safety Director Dan Scott,
Motorola shall appoint a Project Manager who shall be responsible for the progress and quality of
all Work to be perfo1111ed and be available for discussion, when requested by the Owner's Project
Director or the Radio Board's Project Director. The name, address and telephone number of the
Project Manager is set forth in Section 19,
. Unless expressly expanded or limited in writing by Motorola, Motorola's Project Manager (herein
refened to as "Project Manager") shall have the authority to act on behalf of Motorola for the
duration of this Contract (i) to serve as the initial point of contact between O\V1ler and Motorola on
matters of Contract administration; (ii) to verify solely for the benefit of Motorola that Motorola's
Goods and services conform to the Contract Documents; (iii) to confirm the meaning, intent, and
interpretation of the Contract Documents; (iv) to receive and return submittals and directions from
Owner; (v) to direct adjustments to the location of Goods and services to avoid conflicts with
existing stmchlres, maintenance holes, sewer lines, obstruction or otherwise to facilitate the
Project; (v) to attend project progress meetings; and (vii) to deliver Change Orders executed by
Motorola,
Whenevcr Motorola is required by this Agreement to provide written notice to Owner and the
Metropolitan Radio Board, such notice shall be signed by Motorola's Project Manager, or in the
case of that individual's absence or inability to act by James Sobey,
C. If either Motorola or Owner determines during the course of performance of this Agreement that
the sites identified in Exhibit B-1 are no longer available or desired, or, if subsurface, structural,
adverse environmental or latcnt conditions at any site differ from those indicated on the
specifications in the Exhibits, Motorola und Owner will promptly investigate the conditions and
Owner shall select replacement sites or adjust the installation plans and specifications as necessary.
Motorola shall infoTI11 Owner of any changes in System perfoTI11ance as a result of sllch site
change,
D, If Owner and Motorola detenlline that any change or addition in sites, site availability, installation
plans or specifications will require an adjustment in the Contract Price Of in the time required for
the Implementation Schedule, or both, this Agreement will be modified in accordance with Section
. 3,B of this Agreement.
I Contract No. 04-16867/SG Page 10 I
I COMMUNICATIONS SYSTEM AGREEMENT I
. E, PERSONNEL
Key Professionals, Owncr agrees that Motorola's key professional personnel who will
L
perform under this Agreement are:
Dick Halzle, Project Manager
Deb Nohl, Project Engineer
Bob Schnese, Account Manager
Motorola shall provide advance written notice of any pennanent or temporary changes to
or deletions from Motorola's named key personneL Owner reserves a right to reasonably
approve or disapprove any changes in Motorola's key personneL
2, Subcontractors, Owner agrees that Motorola may subcontract with the following entities
in the perfOmlallCe of this Agreement:
ANCOM Technical Center, Inc,
BcltmaJm Group-North American Van Lines, Inc,
Owner reserves the right to approve or disapprove any changes to Motorola's
subcontractors assigned to or proposed to be assigned to any aspect of this Agreement.
3. Removal of Employees. Owner shall have the right to order the immediate removal of
any of Motorola's or its Subcontractors' employees from a job site or sites for just cause
including, but not limited to, disorderly behavior, intoxication, violation of a law or rule,
. unsafe behavior or for emergency public safety reasons, The Project Director shall
provide notice to Motorola regarding the reason or reasons for such removal within 24
hours of such removaL The removed employee shall not be permitted to return to the site
or sites without written approval of the Project Director, To remove an employee for any
other reason, the Project Director shall consult with Motorola's Project Manager to
attempt to reach a mutual agreement regarding that employee, If they are unable to reach
an agreement, the parties shall resolve the dispute using the procedures set f011h in
Section 14.
4, Security Procedures, Upon entrance to and departure from secured or sensitive Owner
sites, Motorola's and its Subcontractor's employees may be required to fU1l1ish
photographic identification and be subject to inspections and searches for weapons,
contraband and unauthorized property, At Owner's discretion, such employees may also
be subject to prior security clearance investigations, Owner reserves the right to refuse
admittance to its sites for security reasons.
F. SHIPMENT AND DELIVERY OF GOODS. The Equipment (excluding subscriber units) will be
delivered to a warehouse leased by Motorola on Owner's behalf in MilUlesota, Once the
Equipment (excluding Software) is delivered, Owner will take title and will make a milestone
payment Risk of loss will remain with Motorola, however, until installation as set forth in section
19,A. Motorola will have full access to the warehouse, Because Motorola will have risk of loss,
Owner will agree to limit its own access to the warehouse to limited situations (i,e, with Motorola's
consent, for inspections or the event of default), Motorola must provide O\',l11er with reasonable
advance notice of when Equipment will be delivered to thc warehouse.
Motorola shall give Owner's PlOject Director at least 15 days prior written notice of the date when
. the Goods shall be ready for shipment from the warehouse in Minnesota to the installation site and
the maImer of shipment Such notice shall include instmctions conceming special equipment or
I Contract No. 04-168<i7/SG Page 11 I
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.
I COMMUNICATIONS SYSTEM AGREEMENT I
. services required at the point of delivery to care for the Goods, If Owner agrees to the shipment
date, it shall sign off on Motorola's notice and retum the signed notice form to Motorola,
Motorola shall require the canier to give the Project Director not less than 24 hours notice by
facsimilc of the anticipated hour of delivery. No shipment shall be made without advanced written
pemtission from Owner.
All Goods shall be delivered fo,b, destination. Deliveries must be made during normal business
hours. Motorola shall select the means and methods of transportation and shall be responsible for
unloading all Goods. All transportation charges, including but not limited to, switching insurance,
trucking, lighterage, special handling, unloading and warehousing will be included in the amount
stated in the Equipment List
G. INSPECTION OF GOODS, Owner's Project Director and the Radio Board Project Director or
their designees shall inspect the Goods upon delivery to the installation site and possibly
warehouse site for the purpose of identifying the Goods, inspecting for damages, and general
verification of quantities, Such inspection shall not be construed as final or as acceptance of any
Goods not in confonnance with the Contract or as acceptance under the System Acceptance Plan,
If, whcn delivered, there are apparent defects in the Goods (through damage or otherwise),
Owner's Project Director shall give prompt written notice thereof to Motorola, Motorola shall,
without cost to Owner, correct the defect or replace the Goods with non-defective Goods, If the
Contractor does not do so promptly and to the satisfaction of Owner's Project Director, Owner
may accept delivery of the defective Goods and remedy the defect as appropriate with an
appropriate reduction in the Contract price, instead of requiring removal or replacement O\Vl1er'S
Project Director may refuse to accept delivery of any Goods that are apparently defective, If there
are no apparent defects, and the required quantities of Goods have been veri fled, the Project
Director shall accept delivery.
. H. NOTICE OF ACCEPTANCE OF DELIVERY, Owner's Project Director shall provide notice of
acceptance of delivery,
I. CLEANrNG, Each day during the process of Motorola's work, the areas of Owner's premises
affected by Motorola's work shall be kept clean and free of all rubbish, debris, and surplus
materials, All unneeded equipment and materials shall be removed from the site and all damage
repaired so that the Owner, the public and adjacent propeliy owners are inconvenienced as little as
possible,
Where materials or debris have washed or flowed into or have been placed in water CDUIses,
ditches, gutters, drains, catch basins, or elsewhere as a result of Motorola's operations, or have
been blown to other nearby properties, such material or debris shall be removed and satisfactorily
disposed of. All ditches, chmmels, drains, etc" shall be kept in a clean and neat condition,
On or before the completion of Work, MDtorola shall, unless otherwise directed in writing, remove
all temporary works, tDols, and machinery or other construction or installation equipment placed
by MotDrola, Motorola shall remove all rubbish from any grounds, which Motorola has occupied
and shall leave all of the premises and adjacent propeliy affected by the operation in a neat and
restored conditiDn satisfactory to the Project Director. The cost of cleanup shall be incidental tD
other items of the Contract. [f MotDrola fails to clean up as provided in the Contract documents,
the Owner may do so and thc cost thereof shall be charged to MotDrola,
1. Intentionally omitted,
K. SUSPENSION OF WORK. Owner's Project Director shall have the right to suspend the Work, or
. any part thereof, for non-compliance, for refusal to cany out the requirements of the Contmct or
for public safety reasons, The Project Director shall provide written notice to Motorola regarding
I Contract No. 04-168(,7/SG Page 12 I
I COMMUNICA nONS SYSTEM AGREEMENT I
. the reason or reasons for such suspension. Work shall be suspended until such time as the reason
for the suspension is corrected,
L. SAFETY, In fulfilling their responsibilities under this Agreement, the Parties shall perform all
Work in a good, workmanlike and safest manner utilizing the most current and available safety
methods and equipment.
Motorola and Owner shall take all reasonable precautions for the safety of and shall provide
reasonable protection to prevent damage, injury or loss to employees on the job site and other
persons or property which may be affected thereby including but not limited to posting of danger
signs and other warnings of potential hazards,
Motoro]a and Owner shall give all required notices and comply with all applicable laws,
ordinance, rules, regulations and lawful orders of public authorities bearing on safety of persons
and/or property or their protections from damage, injury or loss,
In performing its responsibilities under this Agreement, Motorola shall secure each site where it is
working to limit access and the possibility of individuals or the curious being injured by falling
into open holes or trenches, falling off roofs, coming into contact with energized elech'ical circuits,
being struck by falling objects, etc, Trenches and holes accessed or opened by Motoro]a must be
covered, and/or fenced, and marked whenever Motorola or its agents are not on the site, with that
temporary fencing or covering subjcct to approval of the Owner before hole digging begins,
Section 7 TRAINING
Motoro]a has not included the cost of any operator/user training or technical/maintenance training
. as part of its proposal.
Section 8 SYSTEM ACCEPTANCE
A. Motorola will test the System in accordance with the Acceptance Test Plan that is Exhibit B-2 to
the Agreement, as supplemented by any changes in the test plans or procedures as set forth in the
approved Detailed Design Document. System acceptance shall be separated into two segments:
Initia] Acceptance and Final Acceptance,
B. Final Acceptance shall occur upon the successful completion the Acceptance Test Plan, successful
completion of the punch list items and the delivery of all undelivered Contract de1iverables, at
which time both parties shall promptly execute a certificate of Fina] Acceptance,
C. Motorola agrees to notify Owner when the System is ready for acceptance testing. Motorola and
Owner agree to commence acceptance testing within fourteen (14) days after receiving such
notification, If testing is delayed for reasons within the control of Owner or its contractors, agents
and consultants for more than fourteen (14) days after notification, then the parties will negotiate in
good faith and enter into a Change Order to address the delay. Such Change Order may (but not
necessarily will) include an extension of the Implementation Schedule, an equitable adjustment to
the Contract Price to reasonably compensate Motorola for the delay, and the payment of a payment
milestone which would have been paid but for the delay,
D. Owner's use of the System before Final Acceptance occurs would cause disruption and delay to
Motorola's ability to complete the testing of the System Therefore, before Final Acceptance,
Owner may not conunence operational use of the Systell1unless Motoro]a first agrees in writing to
the contrary, After Final Acceptance, Owner's right to begin using the system for purposes other
than h'aining and testing shall occur,
. Section 9 WARRANTY
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I COMMUNICATIONS SYSTEM AGREEMENT I
. A. GENERAL \VARRANTIES, Motorola warrants that the Equipment as originalJy sold to the
Owner will be new unless otherwise agreed to by Owner. Motorola warrants further that the
Equipment and services furnished under this Agreement conform to the requirements of this
Agreement.
B, WARRANTY OF FITNESS, Motorola expressly WalTants that the System is fit for the following
purpose: a two-way digital, trunked radio communications system to be used for governmental
purposes, including public safety applications. Motorola expressly warrants that all Motorola
subscriber units sold under this Agreement are fit for use on the System,
C. SYSTEM WARRANTY, Motorola warrants that the System will perform in accordance with the
System perfonnance specifications included in the Exhibit B documents, as supplemented by the
approved Detailed Design Document. Final Acceptance will constitute full compliance with and
fulfillment of the System Warranty, This System Warranty applies to all System purchases under
this Agreement except for the Initial Network System Wananty is set forth below in Subsection E.
D. WARRANTY PERIOD. "The Warranty Period" shall be a one (1) year period, commencing from
the date of Final Acceptance, Provisions of the wananty service, such as response times and
replacements, etc., shall be according to Exhibit C "First Year Service Description,"
E. INITIAL NETWORK SYSTEM WARRANTY, Motorola warrants that, during the Warranty
Period the Initial Network provided pursuant to this Agreement shall perform in accordance with
the System performance specifications included in Exhibit B documents, as supplemented by the
approved Detailed Design Document This Initial Network System Warranty extends only to
Equipment and Software provided by Motorola under this Agreement as part of the Initial
. Network. If at any time during the Warranty Period Owner or Motorola discovers any "System
Defect" in the Initial Network, Motorola shall h,lVe tbe right and duty, entirely at its own expense,
to provide the equipment ancVor services to conect sucb System Defect A "System Defect" shall
mean a malfunction, failure, or design error which is (1) reproducible or frequently recurring, (2)
material and adverse, and (3) diminishes the functionalit y, perfonnance or operational
requirements set forth in the Exhibit B documents, as supplemented by the approved Detailed
Design Document A "malfuIlction" shall mean a problem with the Initial Network, causing it to
function in a manner that is contrary to Motorola's obligations under this Agreement. A "failure"
shallmcan a deficiency that directly causes the Initial Network or a major Subsystem of the Initial
Network to cease functioning, A "design error" shall mean a material and adverse deviation from
the approved Detailed Design Document The standard for determining whether a malfunction,
failure, or design enor OCCUlTed and for construing the terms "material" and "adverse" shall be an
objectively reasonable standard of a person technically qualified to make such detemlinations. A
System Defect does not include defects that are covered by the Equipment Warranty or the
Software Wananty; claims for those matters will be handled under those warranties, A System
Defect does not include problems that are from (I) causes beyond Motorola's control (e ,g" the
constl1lction of a building that adversely affects microwave path reliability or RF coverage, or the
addition of additional frequencies at System sites that cause RF interference or intennodulation);
(2) events beyond Motorola's control (e,g" acts of God or other natural causes); or (3) parlies
beyond Motorola's control (c,g" the O\V1ler or its employees, contractors, consultants or agents).
If Owner reasonably believes that a System Defect in the Initial Network has occurred, Owner's
Project Director or designee (the "system manager") will dispatch a tec1mician to investigate the
matter. Ifbased on the teclmician's investigation the Owner's System manager reasonably believes
that a System Defect exists, Owner shall make a claim under this System Warranty, The claim
shall be in "'Titing, or if verbal, shall be followed up in writing within five (5) business days
. thereafter and shall include any infom13tion provided by the teclmician to the system manager.
Motorola will promptly diagnose the claim and will promptly resolve any System Defect 111 the
I Contract No. 04.16867/SG Page 14 I
I COMMUNICA TIONS SYSTEM AGREEMENT I
. Initial Network. Any problems with the Initial Network that do not constitute a System Defect and
are not otherwise covered by warranty shall be handled as follows: Motorola will not charge for
diagnosing System Warranty claims concerning the Initial Network so long as the above procedure
is followed, and Motorola will provide non-diagnostic services and additional equipment only jf a
Change Order is executed, Notwithstanding the immediately preceding sentence, coverage issues
will be handled in accordance with Section 3.5 of the Statement of Work.
F. EQUIPMENT WARRANTY The Equipment is warranted to be free from defects in materials
and workmanship throughout the Warranty Period, Motoro]a, at its option and expense, will repair
or replace defective Equipment, or refund the purchase price thereof, and such action on the part of
Motorola shall be the full extent of Motoro]a's ]iability hereunder. The Equipment Warranty docs
not cover Software detects, Equipment defects caused by any equipment, software, products,
elements or components not supplied by Motoro]a under this Agreement, nor does it cover
Equipment that has been subject to misuse, accident, neglect, damage, or unauthorized alterations
or repaIrs, Motoro]a acknowledges that alterations or repairs made by a qualified technician of
Owner acting under the written or verbal (including te]ephonic) instruction, supervision, or
direction of the Motorola System Support Center, the Project Manager, a Project engineer, or a
Project technologist shall not be deemed to be unauthorized alterations or repairs, Motoro]a will
provide non-wananty service either pursuant to a service agreement or on a time and materials
basis at the then-current rates, Batteries are excluded but cany their own separate limited
warranty,
G, MOTOROLA SOFTWARE WARRANTY, Except as provided in Section 9.E. above, Motorola
Software is warranted in accordance with the te1111S of the Software License Agreement attached as
Exhibit A.
. H. THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION OF THIS AGREEMENT
ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH
ARE SPECIFICALLY EXCLUDED INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
L REPLACEMENT PARTS, Motorola agrees to have available replacement parts for Motorola
manufactured equipment or crystals for at least five (5) years after the notice of last manufacture
for mobile and portable equipment and at least seven (7) years after the notice oflast manufacture
for fixed end equipment; if Motorola fails to perform this requirement, Motoro]a will provide
alternative replacement parts that are equivalent or superior. Replacement pal1s for non-Motorola
manufactured products will be consistent with the policies of those manufacturers. Replacement
parts can be purchased at their effective list prices less a 15% discount
Motoro]a shall provide a recommended list of spare par1s, together with pricing, that might be
purchased by entities that wish to perf 01111 in-house maintenance, The reconmlended list of spare
parts will address mobile radios, p0l1ab]e radios, base stations, microwave radios, antennas,
channel banks, RF control stations, and other important pa11s of the System This Section 9.J
survives expiration of the term of this Contract
Section 10 FCC LICENSES AND AUTHORIZA nONS
Owner agrees to o bta in all Federa] Communications Commission ("FCC") licenses and
authorizations required for the installation and use of the Communications System prior to the
scheduled installation of the Equipment Motorola agrees to assist Owner as provided in the
Statement of Work in the preparation of license applications, but in no event will Motoro]a or any
. of its employees be an agent or representative of Owner in FCC matters, Owner is solely
responsible for obtaining all FCC licenses and complying with FCC rules,
I Contract No. 04-16867/SG I
Page 15
I COMMUNICA nONS SYSTEM AGREEMENT I
.
Section 11 DELAYS
A. Successful project implementation will require cooperation and faimess between the pmiies,
Because it is impractical to provide for every contingency, which may arise during the course of
perfOlmance of the Agreement, the parties agree to notify the other if they become aware that any
condition will significantly delay performance, The parties will agree to reasonable extensions of
the project schedule by executing a written Change Order.
B, Under no circumstances will either party be responsible for Excusable Delays or Reasonable
Delays.
C Owner will make available to Motorola the Owner's sites when scheduled in the ImplementatioIl
Schedule, and Owner will not otherwise umeasonably delay or prevent Motorola's performance of
its responsibilities, If Owner delays Motorola's perf0ll11anCe of its responsibilities, Motorola's
performance as set forth in the Implementation Schedule will be extended, If Owner delays
Motorola's perfonnallce of its responsibilities, and Owner's delay is not an Excusable Delay or
Reasonable Delay, Owner shall pay any remaining balance due on Equipment delivered to the
Minnesota warehouse or other FOB point in Minnesota. Additionally, if Owner delays Motorola's
perfolmance of its responsibilities, and Owner's delay is not an Excusahle Delay or Reasonable
Delay, Motorola may request a Change Order for the following: costs for additional warehousing
and handling attributahle to the delay; costs reasonably incuned by Motorola or its subcontractors
attributable to suspending and re-stmiing work; and a "work around" plan to complete the
installation, optimization, testing, Initial Acceptance, and Final Acceptance of the System
excluding the unavailable sites. Owner shall continue to accept installation flf Equipment to sites
. not affected by the delay.
Section 12 DEFAULT
A. If a party commits a Material Breach of this Agreement, the other party may consider that party to
be in default, unless such failure has been caused by an Excusable Delay or a Reasonable Delay,
The non-defaulting pmiy shall give the defaulting pmty \witten notice of such default, and specify
in writing a reasonable amount of time which the defaulting party has to cure such default or
provide a cure plan, taking into consideration the gravity and nature of the default.
B. If the defaulting party fails to cure the default within the specified period of time, the non-
defaulting party may terminate this Agreement immediately. If Owner terminates this Agreement
and procures supplies and services similar to those tenninated through a third party, Owner may
recover direct damages including the reasonable costs of such supplies and services and including
administrative costs incuITed by Ovmer in procuring such supplies and services, Owner agrees to
use its reasonable effOlis to mitigate such costs. Payment for such costs may be assessed against
any funds otherwise due Motorola, If no payments are due Motorola, Motorola agrees to
reimburse Owner for such costs,
C The provisions of Section 18 parts D and E shall apply to a termination for default under this
section,
Section 13 INDEMNIFTCA nON, INSURANCE AND BONDS
A. CLAIMS FOR DAMAGES OR LOSSES, Motorola agrees to indemnify, defend and hold
harmless Owner, its agents, employees, and officers and the Metropolitan Radio Board, its
. members, employees, and agents (the aforesaid persons are collectively referred to as the
"Indenmified Parties") from and against all liabilities, losses, and damages which may accrue
I Conlcaet No. 04-16867/SG Page 16 I
I COMMUNICA TIONS SYSTEM AGREEMENT I
. against them to the extent that such liabilities, losses, and damages are caused by Motorola's
negligence, recklessness, intentional tortious act or on11SS10n or that of its employees,
subcontractors, or agents in connection with the perfom1ance of this Agreement Notwithstanding
the above, neither party shall be liable for claims for commercial losses, special, incidental (except
as provided in Section 15) and consequential damages, Concerning third party claims, which are
brought against Indemnified Parties and are covered by this indemnity provision, any damages
actually paid by Indemnified Parties to sLlch third pa1iies shall be deemed to be direct and not
consequential damages. Motorola will not be obligated to indemnify, defend, or hold the
Indenmified Parties ham1less from the negligence of any Indemnified Party or other contractors, If
a court determines in a final adjudication that both Motorola and one or more Indemnified Parties
arc jointly liable, Motorola and such Indenmified Pa1iies shall each pay their respective attorney's
fees, costs of litigation and percentage liabilities.
B. P A TENT AND COPYRlGHT INFRINGEMENT, Motorola will defend, at its expense, any suits
against Owner based upon a claim that any Motorola furnished Goods, Software, or unaltered
Equipment infringes a U.S, patent, copyright, or other proprietary rights and Motorola will pay
costs and damages finally awarded against Owner in any such suit, provided that Motorola is
notified promptly in writing of any such claim and, at Motorola's request and expense, is given
control of the suit to the extent pernlitted by law and all assistance, except monetary, requested by
Motorola in defense of the suit At any time, without diminishing Motorola's obligation to satisfy
any final award, Motorola may elect, at its option and at no expense to Owner, to (a) obtain for
Owner the right to continue use of the Goods, Equipment, or Software, (b) substitute equivalent
Equipment, Goods, or Software, reasonably acceptable to Owner and extend this indemnity to the
substituted Equipment, Goods, or Software, or (c) accept the return of the Equipment, Goods, or
Software, and refund the book value (using sh'aight - line depreciation) of the Equipment, Goods,
or Software. Motorola will have no liability to Owner for any infringement or alleged
. infringement of any patent copyright or other proprietary right caused by any of Owner's products
or the combination of any Equipment with any equipment, goods, software, products, or materials
not furnished by Motorola, For purposes of this Patent and Copyright infringement provision,
"Owner" includes the Metropolitan Radio Board.
e. INSURANCE.
1. Scope ofInsurance, Motorola shall procure and maintain for the duration of the Contract,
and for two years after the Contract expires, insurance for injuries to persons or damages
to property which may arise from or in connection with the performance of the Work
hereunder by Motorola, its agents, representatives, employees or subcontractors.
Coverage shall include, at a minimum:
a. Insurance Services Office Commercial General Liability coverage covering
liability arising hom premises, operations, independent contractors, products-
completed operations, personal injury, and advertising, and liability assumed
under an insured conh-act (including the tort liability of another assumed in a
business contract);
b, Business auto coverage shall cover liability arising out of the use of any
automobile;
c. Motorola must provide acceptable evidence of compliance with the workers'
compensation coverage requirements set-forth in Minnesota Statutes S 176, I 81.
1. Minimum Linlits of Insurance. Motorola shall maintain insurance limits of no less than:
. I Contract No. 04.16867 ISG I
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I COMMUNICATIONS SYSTEM AGREEMENT I
. a, Commercial General Liability (CGL) and, if necessary, cormnercial umbrella
insurance with limits of not less than $5,000,000 per occurrence for bodily injury,
personal injury and property damage, If CGL insurance or any other form of
insurance with a general aggregate limit is used, either the general aggregate limit
shall apply separately to this Project or the general aggregate limit shall be twice
the required occurrence. If Motorola is self-insured, it must provide certified
copies of its financial statement.
b, Automobile liability and, if necessary, commercial umbrella liability insurance
with a limit of not less than $5,000,000 per accident for bodily injury and accident
damage, If Motorola is self-insured, it must provide a copy of its current
Certificate of SelfInsurance issued by the Minnesota Department of Conmlerce,
c, Employers liability and, if necessary, cormnercial umbrella insurance, with a limit
of not less than $100,000/$500,000/$100,000 per accident for bodily injury or
disease, If Motorola is self-insured, it must provide a copy of current Celiificate
of SelfInsurance issued by the Minnesota Department of Commerce,
3. Other provisions. The general liability and automobile policies are to contain, or be
endorsed to contain, the following provisions:
a, Owner and the Meh'opolitan Radio Board, and their members, officers, and
employees, are to be covered as additional insureds under CGL and under the
c0l1ll11ercialumbrella, if any, Motorola's insurance coverage shall contain 110
. special limitations on the scope of protection afforded to Owner and the
Metropolitan Radio Board, and their members, officers, and employees.
b, For any claims related to this Contract, Motorola's insurance coverage shall be
primary with respect to 0\V11er and the Metropolitan Radio Board, their members,
officers, and employees, Any insurance or self-insurance program maintained by
Owner or the Metropolitan Radio Board shall be in excess of Motorola's
insurance and shall not contribute to it,
c, Any failure to comply with reporting provisions of the policies, including
breaches of warranties shall not affect coverage provided to Owner and the
Metropolitan Radio Board, their members, officers, and employees
d, Motorola shall furnish a list of all its Subcontractors and separate certificates and
endorsements for each Subcontractor, All coverage for Subcontractors shall be
subject to all of the requirements stated herein.
e. The workers' compensation and Employer's Liability Coverage shall contain a
provision stating that the insurer agrees to waive all rights of subrogation against
Owner and the Meh'opolitan Radio Board, their members, officers, and employees
for losses arising from performance of this Contract
4, Each insurance policy required by this section shall be endorsed to state that coverage
shall not be suspended, voided, canceled by either party, reduced in coverage or in limits
except after sixty (60) days prior written notice has been given to 0\V11er and the
Metropolitan Radio Board,
. 5, Insurance is to be placed with insurers with Best's rating of no less than A:VIl,
I Conn-oct No. 04-1 fi R67/SG I
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I COMMUNICA T] ONS SYSTEM AGREEMENT I
. 6, Builders' Risk Insurance and Installation Floater shall contain provisions naming Owner
and the Metropolitan Radio Board as loss payees and waiving insurer's rights of
subrogation against Owner and the Metropolitan Radio Board,
7. Motorola shall furnish Owner and the Metropolitan Radio Board with certificates of
insurance acceptable to Owner effecting coverage required by this section. The
certificates shall be signed by a person authorized by the insurer to bind coverage on its
behalf All celiificates shall be received and approved by Owner and the Metropolitan
Radio Board before work COlllillences,
8, Owner does not represent in any way that the insurance specified herein, whether in
scope of coverage or limits, is adequate or sufficient to protect Motorola's business
or interests. Motorola is solely responsible to determine its need for and to procure
additional coverage, which may be needed in connection with this Contract.
Furthermore, the procuring of insurance policies required by this Contract shall not
be construed to limit Motorola's liability hereunder nor to fulfill the indemnification
provisions and requirements of this Contract. Notwithstanding said policy or
policies of insurance, Motorola shall be obligated for the full and total amount of
any damage, injury, or loss caused by negligence or neglect connected with this
Contract subject to the Limitation of Liability Provision where it applies.
D, PERFORMANCE AND PAYMENT BONDS, Motorola shall execute and provide to Owner and
the Metropolitan Radio Board Perfonnance and Payment Bonds on forms acceptable to Ovmer,
each in the full amount of the Contract Price, excluding subscriber units, as security for the faithful
perfornlance and payment of all Motorola's obligations under the Contract Documents. Bonds
. shall be executed by Sureties listed as approved Sureties in the RFP, If the Surety on any bond
furnished by Motorola is declared bankrupt or becomes insolvent or its right to do business in
Minnesota is terminated, or it ceases to meet the requirements of this Conh'act, Motorola shall,
within ten (10) days thereafter, substitute another Bond and Surety, both of which must be
acceptable to Owner and the Metropolitan Radio Board.
The Perfonnance Bond(s) shall be maintained in force from the Effective Date and through the
Wananty Period, Motorola agrees that if this Contract is terminated by Owner for default, the
Surety will promptly remedy the default, or shall promptly complete the Contract in accordance
with its terms and conditions, or obtain a proposal or proposals for completing the Contract in
accordance with its ternlS and conditions and upon determination by Owner of the successful
proposer, aJTange for a Contract between such proposer and Owner, and make available sufficient
funds to pay the cost of completion of the Contract. The premium will be shown as a separate line
item on the Equipment List.
Section 14 DISPlITES
A. DISPUTE RESOLUTION, Motorola and Owner will attempt to settle any claim or conh'oversy
arising from this Agreement through consultation and negotiation in good faith and a spirit of
mutual cooperation, I f those attempts fail, the dispute will be mediated by a mediator chosen
jointly by Motorola and Owner within thirty (30) days after notice by one of the parties demanding
non-binding mediation, Neither party may unreasonably withhold consent to the selection of a
mediator. Motorola and Ovmer will share the cost of mediation equally. The Owner may waive
this mediation cost-sharing requirement if funds are unavailable or cannot be encumbered, The
parties may by muhlal agreement complete some specified but limited discovery about the dispute,
The parties may also replace mediation with some other form of non-binding alternate dispute
. resolution ("ADR") procedure, Nothing in this section shall prevent Owner from tenninating this
Agreement for a material breach, convenience, or due to Motorola's financial instability,
I Contract No. 04-1 6867/SG Page 19 I
I COMMUNICATIONS SYSTEM AGREEMENT I
. B. UNRESOL YED DISPUTES, Any dispute that caMot be resolved between the parties through
negotiation or mediation within two months after the date of the initial demand for non-binding
mediation may then be submitted by either patty to Minnesota District Comi in the Fourth judicial
districts or to the United States District Court for the District of Minnesota for federal action,
Each party consents to jurisdiction over it by such a court. The use of any ADR procedures will
not be considered under the doch'ine of laches, waiver, or estoppel to affect adversely the rights of
either party, Either patty may resort to the judicial proceedings described in the paragraph prior to
the expiration of the two-month ADR period if (a) good faith efforts to attempt resolution of the
dispute under these procedures have been unsuccessful or (b) interim relief from the comi is
necessary to prevent serious and irreparable injury to such party or any of its affiliates, agents,
employees, customers, suppliers, or subcontractors,
C. PERFORMANCE WHILE DISPUTE IS PENDING. Notwithstanding the existence of a dispute,
the p31iies shall continue without delay to carry out all of their responsibilities under this
Agreement, which are not affected by the dispute, If a party fails to continue without delay to
perf 01111 its responsibilities under this Agreement, in the accomplislm1ent of all undisputed work,
any additional cost incurred by the other parties as a result of such failure to proceed shall be borne
by the responsible party,
Section 15 LIMITATION OF LIABILITY
Owner's and the Metropolitan Radio Board's total liability to Motorola, whether for breach
of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will
be limited to the direct damages recoverable under Minn. Stat. ~ 3.736 or Minn. Stat.
ch. 466, as applicable. Except for personal injury or death, Motorola's total liability to
. Owner (and the Metropolitan Radio Board), 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 greater of (a) the Contract Price, or (b)
$5,000,000. Motorola shall not be liable to Owner for any loss of use, loss of time,
inconvenience, commercial loss, lost profits or savings, or other special, incidental or
consequential damages related to or arising from this Agreement, the sale or use of the
Equipment, or the performance of services by Motoro]a pursuant to this Agreement.
Notwithstanding the preceding sentence, Owner may recover from Motorola incidental
damages resulting from Motorola's breach for expenses reasonably incurred in inspection,
receipt, crating, packaging, transportation, recovery of Goods, and carc and custody of
Goods rightfully rejected, but such incidental damages shall not exceed $50,000. This section
15, Limitation of Liability, will survive the expiration or termination of this Agreement.
Section 16 SUBCONTRACTORS
A, PROMPT PAYMENT. Motorola will pay to its Subcontractors undisputed amounts owing to its
Subconh'actors within ten (10) days of receiving payment from the Owner for such subcontracted
services. If Motorola fails to pay a Subcontractor in a timely manner as set forth in this Section A.
Motorola shall pay such Subcontractor interest on the undisputed delinquent amount; such interest
will be calculated at the rate of] ,5% per month or portion thereof.
B, None of the services to be provided by Motorola pursuant to this Agreement shall be subcontracted
or delegated to any other organization, subdivision, association, individual, corporation,
parl11ership, or group of individuals or other such entity without the prior written consent of
Owner. Such consent shall not be unreasonably delayed or withheld, The Subcontractors listed in
section 6,E.2 have been approved by Owner, and no further approvals or consents are necessary
. with respect to those Subcontractors. No subcontract or delegation of Work shall relieve or
discharge Motorola from any obligation, provision, or liability uuder this Agreement FUliher,
I Contract No. 04-1686 7/SG Page 20 I
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I COMMUNICATIONS SYSTEM AGREEMENT I
. Motorola shall be fully responsible for the acts, omissions, and failure of its Subcontractors in the
perfom1ance of the herein specified contractual services, and of persons directly or indirectly
employed by Subcontractors. Contracts between Motorola and each Subcontractor shall require
that the Subcontractor's services and obligations be perfollned in accordance with the provisions
of the Contract Documents, Owner will assume no contractual relationship with Subcontractors,
Any action of a Subcontractor which, if done by Motorola, would constitute a breach of the
Agreement shall be deemed a breach by Motorola and have the same legal effect, provided that
Motorola has not cured such breach,
C. As required by Minnesota Statutes Chapter 290, Owner must receive evidence of Motorola's
payment to its Subcontractors and vendors before Owner is pennitted to pay to Motorola the final
installment of the Contract Price,
.
. I ContracL No. 04-16867/SG I
Page 21
I COMMUNICATIONS SYSTEM AGREEMENT I
. Section 17 ACCOUNTING REQUIREMENTS AND AUDIT RIGHTS
A. ACCOUNTING REQUIREMENTS, Motorola shall maintain accounting records relating directly
to the performance of this Agreement. As stated in its mmuaI report, Motorola's audited financial
statements are prepared in accordance with generally accepted accounting principals applying
certain estimates and judgments as required. Authorized representatives or agents of Owner, the
Metropolitan Radio Board, and applicable State agencies shall have access to such accounting
records upon reasonable written notice and at reasonable times during the perfonnance or retention
period of this Agreement for purposes of review, analysis, inspection, audit, and reproduction, all
in accordance with the Audit Rights provision set forth below in Sections 13 and C The
accounting records described above pertaining to this Agreement shall be maintained for six (6)
years following the end of the Federal Fiscal Year during which the Agreement is terminated or
audits of the Agreement have been completed, whichever is later. Notwithstanding the preceding
sentence, the accounting records described above pertaining to this Agreement shall be retained
until final resolution of all pending audit questions and for one (I) year following the termination
of any litigation relating to the Agreement if the litigation has not tenninated within the above six
(6) year period,
B. AUDIT RIGHTS, As required by Minnesota Statutes Section 16c.05, Subdivision 5, Motorola
shall maintain books, records, and documents that are relevant to the performance of this
Agreement. Such books, records, and documents of Motorola, as well as its accounting procedures
and practices that are relevant to the performance of this Agreement, shall be subject to the
examination and audit of Owner, the Metropolitan Radio Board, and either the Legislative Auditor
or the State Auditor, as appropriate for a minimum of six (6) years.
e c. LIMITATIONS ON ACCESS TO ACCOUNTING RECORDS AND AUDIT RIGHTS,
Notwithstanding anything to the conh'ary stated herein or elsewhere, the following shall apply to
the Accounting Requirements and Audit Rights provisions:
1. Any audit or inspection by Owner permitted under this Section 17 will occur during
nonnal business hours at the Motorola facility where such records are nOlTI1ally kept.
2, Owner shall conduct any audit or inspection permitted under this Section 17 entirely at it
own expense, although Motorola will provide reasonable cooperation to Owner.
3. Motorola acknowledges that invoices and shipment documents pertaining to the
pcrfonnance of this Agreement is covered by Owner's audit and inspection rights,
D. FLOW DOWN TO SUBCONTRACTORS, The provisions of this Section 17 shall he
incorporated into any subcontract under this Agreement.
Section t 8 TERMINATION OF AGREEMENT
A, TERMINA TION FOR LACK OF APPROPRlA TION FROM LEGISLATURE OR OF
FUNDING FROM THE METROPOLlT AN RADIO BOARD OR ANY OTHER FUNDING
SOlTRCE, Owner shall take all reasonable actions to comply with the requirements of any of its
funding sources including, if applicable, MilIDesota Statlltes Sections l6A.15 and l6A57, If
Owner takes all reasonable actions to comply with these statutes but nevertheless funds for this
Agreement become unavailable or are reduced, both Owner and Motorola will have the right to
tel111inate this Agreement without penalty and upon the same terms and conditions as a termination
for convenience,
.
I C ontraet No. 04-168(,7 /SG Page 22 I
I COMMllNICATIONS SYSTEM AGREEMENT I
. B. TERMTNA nON FOR CONVENIENCE. Owner may temunate perfOlmance of Work and
purchase of Equipment under this Agreement in whole or in part whenever for any reason Owner
shall determine that such termination is the most appropriate action for Owner. If Owner elects to
temunate this Agreement pursuant to this provision, Owner's Project Director shall notify
Motorola by certified mail, retum receipt requested, thirty (30) days prior to the effective date of
such termination. Such notice shall state the extent of such termination, i,e" whether it is in whole
or in part, and if in part, the extent of the temunated portion. Temlination shall be effective as of
the close of business on the date specified in the notice. Upon receipt ofa notice oftemlination for
convenience, Motorola shall be paid in accordance with the following provisions:
(I) at the Contract price(s) for completed deliverables delivered to and accepted by OW11er
for which it has not been previously paid, taking into consideration any assessed offsets,
(2) at a reasonable price, negotiated between Motorola and Owner, for partially completed
deliverables less any amounts for assessed offsets, with the amount for each deliverable
not to exceed the price of that deliverable specified in the Agreement In the event of a
failure to agree upon a reasonable price the matter shall be resolved in accordance with
the Dispute resolution provisions of the Agreement
(3) any retention of holdback on payment amounts attributable to the telminated pOltion of
the work shall be inunediately paid.
Co Telmination for Financial Instability. In the event that Motorola becomes financially unstable to
the point of threatening the ability of Owner to obtain the services provided for under the
Agreement, ceases to conduct business in the normal course, becomes insolvent, makes a general
assiglunent for the benefit of creditors, suffers or pemlits the appointment of a receiver for its
. business or its assets, or becomes subject to or avails itself of any proceeding under the Federal
Bankruptcy Act or any other statute relating to insolvency or the protection of the rights of
creditors, Owner may, at its option, terminate this Agreement effective at the close of business on
the date specified,
In the event that Owner elects to tenninate this Agreement under this prOVISIOn, the Project
Director shall notify Motorola in VvTiting by either certified or registered mail, specifying the date
of termination, In the event of the filing of a petition in bankmptcy by or against a principal
Subcontractor, Motorola shall immediately so advise 0W11er. Motorola shall ensure that all tasks
related to subcontracts are performed in accordance with the telms of this Agreement
D, Procedures on Tennination
1. Upon delivery by certified or registered mail to Motorola of a Notice of Termination
specifying the nature of the tennination and the date upon which such temlination
becomes effective, Motorola shall:
a. Stop Work under this Agreement on the date and to the extent specified in the
Notice of Temunution;
b, Place no further orders or subcontracts for materials, services, or facilities;
c, Terminate all orders and subcontracts to the extent that they relate to the
performance of Work ternunated by the Notice of Temunation;
d, At 0W11er's option, assign to 0W11er, in the manner and to the extent directed by
e the Project Director, all of the rights, titles, and interest of Motorola under the
orders or subconh'acts so temunated, in which case Owner shall assume all of
I Contract No. 04-16867/SG Page 23 I
I COMMUNICA nONS SYSTEM AGREEMENT I
. Motorola's obligations under such orders or subcontracts, excluding unpaid
invoices regarding which Owner has already paid, Owner shall have the right, at
its discretion, to settle or pay any or all claims arising out of the termination of
such orders and subcontracts. This paragraph shall not apply to a tenllination for
convenience or a tellllillation for lack of funding;
e. With the advance approval of the Project Director, settle all outstanding
liabilities and all claims arising out of such termination of orders and
subcontracts, the cost of which would be reimbursable in whole or in part, in
accordance with the provision of the Agreement;
f. Within ten (10) work days from the effective date oftennination, transfer title to
Owner (to the extent that title has not already been transferred) and deliver, in
the manner, at the times, and to the extent directed by the Project Director, all
files, processing systems (excluding equipment and operating systems), data
manuals, and other documentation, in any form, that relate to the Work
tenninated by the Notice of Termination provided that such files, systems,
manuals and documentation are deliverables under this Agreement;
g. Complete the performance of such part of the Work as has not been temlinated
by thc Notice of Tennination; and
h, Take such action as may be necessary, or as the Project Director may direct, for
the protection and preservation of the property related to this Contract which is
in the possession of Motoro]a and in which Owner has or may acquire an
interest;
. 2. Motoro]a shall proceed immediately with the perfOlmance ofthe above obligations,
notwithstanding any delay in determining or adjusting the amount of any item of
reimbursable price under this clause,
3. Upon termination of this Contract in full, Motoro]a shall return to Owner any property
made available for its use during the ternl of this Agreement.
E. COOPERA TION DURING TRANSITION. Motoro]a shall cooperate with and help facilitate any
transition for the provision of Contract related services by a different vendor or by Owner at any time
during or within thirty (30) days of the termination of this Agreement. Fai]ure to cooperate with andior
withholding any information or records requested by Owner or a different vendor that impairs in any way
the transition of the provision of Contract related services to a different party shall constitute a material
breach of this Agreement, subjecting Motoro]a to liability for all direct damages incuned by Owner because
of such failure, but subject to the Limitation of Liability provision contained in Section 15 above,
Notwithstanding the above, Owner may alternatively choose to consider a breach of this section an event of
default, and proceed in accordance with Section 12,
F, LIQUlDA TED DAMAGES,
1. Time being an essential element to this Agreement, it is important that both Motorola and
O\vner adhere to the Imp]ementation Schedule (as revised or confil1l1ed in the Detailed
Design Review process), If Motorola fails to achieve Initia] Acceptance when sehedu]ed
in the Implementation Schedule (as revised in the Detai]ed Design Review process) and
such failure is not caused by Reasonable Delays, Excusable Delays, or delays caused by
Owner or its employees, representatives, or other contractors, then Motorola shall pay to
e Owner, as its sole and exclusive remedy, liquidated damages for Motorola's failure as
described in this Section I g,f,
I Contract No. 04-16867/SG Page 24 I
I COMMUNICA nONS SYSTEM AGREEMENT I
. 2. Motorola and Owner agree that, although such damages are difficult to ascertain, the
liquidated damages are a reasonable approximation of the amount of damages Owner
would suffer caused by Motorola's failure in not achieving Initial Acceptance as
scheduled, and that such liquidated damages are not a penalty. These liquidated damages
are intended to compensate O\\'11er for all damages caused by such delay, including those
relating to the administration of the Agreement and other related contracts, additional
costs incurred by Owner for engineering and other personnel, expenditures resulting ham
the inability of Owner to use the Initial Network during the delay period, and other
miscellaneous obligations and expenditures which Owner would incur as a result of such
delay. In dctcmtining the liquidated damages amount, Motorola and Owner have taken
into consideration the other provisions of this Agreement which protect Owner, including
the Performance Bond, the Payment Bond, and Milestone Payments,
3. The per diem (calendar day) amount of liquidated damages shall be calculated as follows:
the "Cap Amount" (as defined below) divided by 255,
4. The maximum amount of liquidated damages that Motorola will be ]iable to pay Owner is
refened to as the "Cap Amount", The Cap Amount is calculated as .005 of the Owner's
Contract Price, excluding subscriber Equipment
5. For Owner to assert a claim for liquidated damages, it must first provide forma] written
notice to Motorola,
6. If liquidated damages are charged, they will be charged daily, first against monies then
due to Motorola, then against monies coming due, and then against funds held for
. eventual release to Motorola. If these three sources are not sufficient to cover liquidated
damages, Owner will bill Motoro]a for the necessary balance and Motorola shall promptly
pay the invoiced amount(s).
7, The Owner may waive in \vriting all or any portion of any liquidated damage assessment
after the date services or obligations are completed and accepted by Owner. Pennitting
Motorola to continue and complete the services or obligations or any part of them after
stipulated times will not in any way operate as a waiver on the part of Owner of its rights
hereunder. No act by Owner in pursuing or effecting its rights hereunder will constitute a
forfeihlrc of Owner's right to recover liquidated damages from Motoro]a and its Surety,
Section 19 GENERAL
A. TITLE AND RISK OF LOSS, Title to the Equipment will pass to Owner upon delivery of the
Equipment to the Minnesota warehouse or, with respect to subscriber units or other Equipment that
is not to be sent to the Minnesota warehouse, to the Owner's F,O,B. point in Minnesota, Title to
Software will not pass to Owner at any time, Concerning subscriber units, risk of loss will pass to
O\'1ner upon delivery, Concerning inhastmcture Equipment, risk of loss will pass to Owner upon
installation of the Equipment at the designated site (i,e., on a site by site basis), Although
Motorola will retain risk of loss concerning infrastmcture Equipment until that Equipment is
installed, Owner shall be liable for loss, damage or destruction of sllch Equipment if it is caused by
the negligence of Owner or its employees or agents,
B, T AXES, The purchase price does not include any amount for federal, state, or local excise, sales,
lease, service, rental, lise, propelty, occupation, or other taxes, all of which (other than federal,
state, and local taxes based on Motorola's income or net worth) will be paid by Owner except as
. exempt by law. If Motorola is required to payor bear the burden of any such taxes, Motorola will
send an invoice to Owner and Owner will pay to Motorola the amount of such taxes (including any
I Contract No. 04-1 fi R67/SG Page 25 I
I COMMUNICA nONS SYSTEM AGREEMENT I
. interest and penalties) within thirty days after the date of the invoice. Owner will be solely
responsible for reporting the Equipment for personal property tax purposes, Addendum 6 to the
RFP indicates that this project has been exempted from State sales tax, In reliance thereon,
Motorola will not charge State sales tax, Motorola's Federal Tax LD, number is 36-115800 and its
Minnesota Tax LD, number is 7679620.
C'. CONFIDENTIAL INFORMATION, Owner will not disclose any material or information
identified by Motorola as proprictalY and confidential to third pat1ies without Motorola's prior
written pe1l11ission, unless Motorola makes such material or inf01l11ation public or disclosure is
required by law, specifically including the Minnesota Government Data Practices Act, Minnesota
Statutes Chapter 13, If Owner is required by law to disclose such material or information, Owner
will notify Motorola prior to such disclosure,
D, DISCLAIMER OF LICENSE, Except as explicitly provided in the Motorola Software License
Agreement included in Exhibit A, nothing in this Agreement will be deemed to grant, either
directly or by implication, estoppel, or otherwise, any license or right under any patents, patent
applications, copyrights, trademarks, trade secrets or other intellechml property of Motorola.
E, ASSIGNABILITY. This Agreement may not be assigned by either party without the consent of
the other party. Such consent shall not be unreasonably withheld.
F, WAIVER. No covenant, condition, duty, obligation, or undertaking contained in or made a part of
this Agreement shall be waived except by the written Agreement of the parties, Forbearance or
indulgence in any form or manner by either party in any regard whatsoever shall not constihlte a
waiver of the covenant, condition, duty obligation, or undertaking to be kept, performed, or
discharged by the other party, Until complete perfonnance or satisfaction of all such covenants,
. conditions, duties, obligations and undertakings, the other palty shall have the right to invoke any
remedy available under law or equity, notwithstanding any such forbearance or indulgence, but
subject to the Limitation of Liability provision contained in Section 15 above, Waiver of any
breach of any provision of this Agreement shall not be deemed a waiver of any prior or subsequent
breach, No term or condition of this Agreement shall be held to be waived, modified, or deleted
except by an instrument in writing, signed by the parties hereto,
G, SEVERABILITY. If any provision or portion of this Agreement, including items incorporated by
reference, is held to be illegal, invalid, void or unenforceable, then both Owner and Motorola shall
be relieved of all obligations arising under such provision, that provision will be considered
severable, and the remainder of this Agreement (if capable of performance) will remain in full
force and effect as if the invalid provision were not part of this Agreement.
H. HEADINGS AND SECTION REFERENCES, The headings given to the sections of this
Agreement are inserted only for convenience and are not to be constmed as part of this Agreement
or as a limitation of the scope of the particular Section to which the heading refers.
1. ENTIRE AGREEMENT. This Agreement (inc lulling the Exhibits) constihltes the entire
agreement of the patiies regarding the subject matter of this Agreement and supersedes all previous
negotiations, representations, agreements and understandings, whether written or oral, between the
parties relating to such subject matter. This Agreement between the parties shall be independent of
and have no effect upon any other contTacts of either party.
J. GOVERNING LAW, This agreement will be governed by and construed in accordance with the
laws of State of Minnesota. The parties shall bring any and all legal proceedings arising hereunder
in the State of Minnesota, District Court of Hennepin County, The United States Dish'ict Court for
. the State of Milmesota shall be tbe venue of any federal action or proceeding arising hereunder in
which Owner is a party,
I Cont,"ct No. 04-16867/SG Page 26 I
I COMMUNICA TIONS SYSTEM AGREEMENT I
. K. HUMAN RIGHTS CERTIFICATION. Motorola has submitted its Human Rights Certification
with its Proposal. Motorola shall maintain an effective Human Rights Celiification and, upon
request, will provide to Owner a copy of such certification.
L If Motorola has more than 40 full-time employees within the State of Minnesota on a single
working day during the previous twelve months, Motorola shall comply with the following
Affirmative Action requirements for disabled workers.
Milmesota Rule 5000,3550 DISABLED INDIVIDUALS AFFIRMATIVE ACTION CLAUSE.
A. Motorola shall not discriminate against any employees or applicants for employment
because of physical or mental disability in regard to any position for which the employee
or applicant for employment is qualified. Motorola agrees to take affimlative action to
employ, advance in employment, and otherwise treat qualified disabled individuals
without discrimination based upon their physical or mental disability in all employment
practices sllch as the recruitment, advertising, layoff or tem1ination, rates of payor other
f011115 of compensation, and selection for training, including apprenticeship,
B. Motorola agrees to comply with the rules and relevant orders ofthe Minnesota
Department of Human Rights issued pursuant to the Minnesota Human Rights Act
C. In the event of Motorola's noncompliance with the requirements of this clause, actions for
noncompliance may be taken in accordance with Minn, Stat ~ 363,073 and the rules and
relevant orders of the Milmesota Depariment of Human Rights issued pursuant to the
Minnesota Human Rights Act
. D, Motorola agrees to post in conspicuous places, available to employees and applicants for
employment, notices in a form to be prescribed by the corrm1issioner of the Minnesota
Department of I-Iuman Rights, Such notices shall state Motorola's obligation under the
law to take affirmative action to employ and advance in employment qualified disabled
employees and applicants for employment, and the rights of applicants and employees.
E. Motorola shall notify each labor union or representative of workers with which it has a
collective bargaining agreement or other contract understanding, that Motorola is bound
by the tell115 ofMinn, Stat. g 363,073 of the Minnesota Human Rights Act and is
committed to take aftirmative action to employ and advance in employment physically
and mentally disabled individuals.
M, SOVEREIGN IMMUNITY, Owncr does not waive its sovereign immunity by entering into this
Agreement and fully retains all immunities and defenses provided by law with regard to any action
based on this Agreement The Metropolitan Radio Board fully retains all irrmmnities and defcnses
provided by law with regard to any action based on this Agreement
N, CONFORMANCE WITH STATE AND FEDERAL LAWS AND REGULATIONS, Motorola
and Owner each agree to comply with all Minnesota and Federal laws and regulations that are
applicable to this Agreement, including those not specifically mentioned in the Agreement
0, PERSONNEL REQUIREMENTS, Motorola shall not discriminate against any employee or
applicant for employment because ofrace, color, creed, religion, sex, national origin, age (except
as provided by law), marital status, political affiliation, status with regard to public assistance,
sexual orientation, or disability. Motorola shall take affinnative action to ensure that employees as
. well as applicants for employment are tTeated without regard to their race, color, creed, religion,
sex, national origin, age (except as provided by law), marital status, political affiliation, statlls with
I Cont,"ct No. 01-16~67/SG Page 27 I
I COMMUNICA nONS SYSTEM AGREEMENT I
. regard to public assistance, sexual orientation, or disability, Motorola, its officers, employees,
Subcontractors, or any other agent of Motorola in perfonnance of the Contract shall act in an
independent capacity llnd not as an officer or employee of Owner. This Agreement shall not be
construed as a partnership or joint venture between Motorola or any Subcontractor and Owner.
p, NOTICES. Notices authorized or r:equired under this Agreement must be in writing and sent to the
below address:
City of Hopkills Police Department Motorola,lnc,
Attn: Connie Kurtz Attn: Dick Halzle,
1010 First Street South Project Manager
Hopkins, MN 55:\43
(952) 548-6403 16860 105th Avenue North
(952) 939-1375 (fax) Maple Grove, MN 55369
(763) 420-9486
With a copy to: (763) 420-0991 (fax)
Miller, Steiner & Curtiss, P.A. With a copy to:
1011 First Street South
400 Wells Fargo Building Susal1lle Glazbrook
Hopkins, MN 55343 Contracts and Compliance Manager
(952) 938-7635 Motorola, Inc.
1301 E. Algonquin Road, IL02-SH5D
Schaumburg, 1L 60196
(847) 576-3153
(847) 576-4596 fax
. Q. AMENDMENTS TO AGREEMENT. This Agreement may be modified only by written
amendment duly executed by authorized officials of the Owner and authorized representatives of
Motorola, Every amendment shall specify the date on which its provisions shall be effective,
R, LICENSING AND ACCREDITATION, Owner shall obtain and pay for all permits, licenses
(including FCC licenses) and approvals required by local, county, state or federal regulations
necessar)' under this Agreement. In no event shall Motorola or its employees be an agent or
representative of the Owner in FCC matters, Motorola represents to Owner that Motorola is
qualified to do business in Minnesota and that Motorola has obtained any necessary pemlits or
licenses to do business in Minnesota,
S, PREY AILING WAGE, Motorola shall comply with the provisions of the Minnesota prevailing
wage law, Minnesota Statutes sections 177,21 through 177.44,
T. CONFLICT OF INTEREST. No official or employee of Owner who exercises any functions or
responsibilities in the review or approval of the undertaking or carrying out of this Agreement
shall, prior to the completion of the Project, voluntarily acquire any personal interest, direct or
indirect, in this Agreement.
Motorola covenants that it presently has no interest and shall not acquire any interest, direct or
indirect, which would connict in any I1l111mer or degree with the performance of its services
hereunder. Motorola further covenants that, in the performance of this Agreement, no person
having any slIch known interests shall be employed,
Owner may, by written notice to Motorola, temlinate the right of Motorola to proceed under this
. Agreement if it is found by Owner that gratlJities in the form of entertainment, gifts, or otherwise
were offered or given by Motorola or any employee, agent, or representative of Motorola to any
I Contract No. 04-16867/SG Page 28 ,
,-
I COMMUNICA nONS SYSTEM AGREEMENT I
. officer, employee or member of Owner or the Metropolitan Radio Board with a view toward
securing this Agreement, or securing favorable treatment with respect to the award or amendment
of this Agreement or the making of any detemrinations with respect to the perfOlmance of this
Agreement
U, PUBLICITY. Any publicity given to the program or services provided herein, including but not
limited to, notices, information pamphlets, press releases, research, reports, signs, and similar
public notices prepared by or for Motorola, shall identify Owner and the Metropolitan Radio
Board as the sponsors and shall not be released prior to approval by the Project Directors,
V. DEBARMENT, SUSPENSION AND RESPONSIBILITY, In accordance with Minnesota Statute
9 161.315 and Minnesota Rules 1230,3000-4300, Motorola hereby certifies to the best of its
knowledge and belief that it and its principals:
1. Are not presently debaned, suspended, proposed for debmment, declared ineligible, or
voluntarily excluded from covered transactions by any state department or agency;
2, Have not within a three-year period preceding this Agreement been convicted of a
contract crime, including a violation of state or federal antitmst law, fraud, theft,
embezzlement, bribery, forgery, misrepresentation, making false statements, falsification
or destruction of records, or other criminal offense in connection with obtaining,
attempting to obtain, or perfonning a public or private contract or subcontract; and that
Motorola has not had a conviction imputed to it pursuant to Minn, R, 1230,3300;
3. Are not presently indicted or otherwise criminally charged by a govemmental entity for
conmussion of fraud or a criminal offense in cOlmection with obtaining, attempting to
. obtain or perfom1ing a public transaction or contract under a public transaction; violating
any federal or State anti-tlllst statutes; or conunitting embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, falsification or
destruction of records;
4, Have not within a duee-year period preceding this Agreement employed a fonner
principal of a debarred or suspended business or person as an officer, director, manager,
or in another significant decision-making capacity;
5. Is not mvned by or associated in a joint venture with a debarred or suspended business or
controlled by a principal or f01111er principal of a debarred or suspended business;
6, Is not a business in which a f011l1er principal of a debarred or suspended business has a
significant financial interest where the fonner principal bas the authority to or will
control, direct, manage or inf1uence any activities of the business with respect to this
Agreement;
7. Will not subcontract with or purchase materials or services conceming this Contract from
a debarred or suspended person or business.
Actions resulting in violations of this certification shall constitute grounds for tennination of this
Agreement by Owner.
W, DELIVERY OF REQUIRED DOCUMENTS, Upon executing this Agreement, Motorola shall
deliver to Owner such bonds, certificates of insurance, insurance binders and other certifications
and representations, as Motorola is required to fumish in accordance with the Contract Documents.
. I Contract No. 04-1 6867/SG I
Page 29
I COMMUNICA nONS SYSTEM AGREEMENT I
.
In witness whereof, the parties have caused duly authorized representatives to execute this Agreement on
the dates set forth below,
City of Hopkins, MN Motorola, Inc,
By: By:
Name:
. Date:
Title:
Date:
By:
By:
Date:
Name:
Title:
Approved as to form. Date:
/'
./
/
/'
// ,/
Date: /'
/ /'
- /
,/ ,
1}J'TEST: City Adminish'ator
. I Contract No. Q4-16867/S(i I
Page 30
MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A
. This Sofnvare License Agreement is between Motorola, Inc., a Delaware corporation ("Motorola"), and City of
Hopkins, MN, State of Minnesota ("Licensee"),
Section 1 SCOPE
Licensee may acquire from Motorola radio communication products ("Products") that contain embedded or pre-loaded
Motorola software such as in a ROM, PROM, or EPROM, or other Motoro]a software provided on media such as a floppy
disk, tape, diskette, or CD-ROM, All such sof1\Vare (including Radio Service Sof1\Vare and FLASHpOli@ Sof1\Vare) is
refened to as "Motorola Software," This Agreement contains the tenl1S under which Licensee may use Motoro]a Software
used in connection with the Products,
Section 2 GRANT OF LICENSE
Motorola hereby grants to Licensee a persona], non-exclusive, and (subject to the telmination rights set forth in Section 10
below) perpetllal and inevocable license under Motorola's applicable proprietary rights to use Motoro]a Sof1\Vare in
accordance with the tellns of this Agreement.
Section 3 LIMITATIONS ON USE
Licensee may use Motorola Sofnvare only for Licensee's use on the 800 MHz radio communications system purchased in
connection with a Conmmnications System Agreement entered into by and between the parties conceming which the End-
User Software License Agreement is attached as Exhibit A (the "CSA") and related govcnmlental and public safety purposes
(collectively, "Permitted Purposes") and only as described in the Motorola Software or Product documentation. Any other
use of Motorola Software is strictly prohibited and will be deemed a breach ofthis Agreement. Licensee may not copy,
modify, adapt, merge with other software, reverse engineer, prepare derivative works of, or disassemble any Motorola
. Sof1\Vare for any reason, cxcept that Licensec may make at most four (4) copies of Motorola Sof1\Vare provided with
infrastnlcture equipment exclusively for back-up purposes. Licensee must purchase a copy of Radio Service Software for
each site at which Licensee uses Radio Service Sof1\Vare; Licensee may make one additional copy for use on each computer
owned or controlled by Licensee at each such site, Licensee may temporarily use Radio Service Sof1\Vare on pOliab]e or
laptop computers at other sites, Upon Motorola's written request, Licensee must provide a written list of a]1 sites where
Licensee uses or intends to use Radio Service Software, Licensee must reproduce all Motorola copyright and trademark
notices on all copies of Motorola Software,
Section 4 TRANSFERS
Transfers in General
This section addresses the sihtation where Licensee wishes to transfer to a third party (referred to as "Transferee") the
ownership of Product embedded with or containing Motorola Sof1\Vare, If Licensee transfers to a Transferee the O\vnership of
Products, it may also assign to such Transferee its rights to use the Sofnvare embedded in, installed in, or furnished for LIse
with the transferred Products, Such assignment of Licensee's right to use the Software will be subject to the same duties,
limitations, and restrictions contained in this Sofnvare License Agreement. The rights of a Transferee shall be no greater than
those of Licensee, and the duties, limitations, and restrictions ofa Transferee shall be no less than those of Licensee, To
make the assignment efTective, Licensee must transfer all copies of such Motorola Software associated with the transfened
Products to the Transferee, and (b) Motorola must receive a transfer fonn completed and signed by Transferee (except as set
forth below). A copy of the transfer form is attached. Except as provided in this Section 4, Licensee may not transfer or
makc available any Motoro]a Software to any third party without the express written consent of Motorola, which shall not be
unreasonably withheld, delayed or conditioned,
Transfers of Radio Service Software or FLASHporFR\ Software
. I Contmc! No. I
Page Al
I MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A I
. Notwithstanding the above provisions in 'Transfers in General", Licensee may not assign any of its rights to a Transferee to
use Motorola Software that is either Radio Service Software or FLASHport@ Software (excluding FLASHpOlt@ Software
that is embedded in a radio but including FLASHportiEI Software disks, ROMs, or the keys to flash the radios),
Exceptions to when a transfer fonn is required
Notwithstanding the above provisions in "Transfers in General", a transfer foml is not required concerning any sale or other
disposition of any obsolete, unusable or unneeded products as long as Licensee first deletes all removable software from such
Products and uses reasonable efforts to notify Motorola in advance of such sale or disposition if the Products being disposed
of are less than six (6) years old, Also, if any permitted transfer is to a Qualified Purchaser who has previously signed a
Software License Agreement with Motorola concerning the transferred Products, Licensee is not obligated to have such
Transferee Sigl1 the transfer f0I111 and, in such case, such previously signed Software License Agreement will govern
Transferee's use of the Software,
Remedy for failure to obtain transfer foml
Other than as expressly provided above in "Exceptions to when a transfer fon11 is required", Licensee must obtain from the
Transferee and deliver to Motorola the executed transfer f0I111 for the assigmnent of Licensee's rights to be effective,
However, if Licensee transfers to Transferec the ownership of Products embedded with or containing Motorola Software and,
through its inadvertence, unintentionally fails to obtain the executed transfer fonTI, then Motorola's remedy as to Licensee
shall be limited to requiring Licensee to assist Motorola in securing the transfer fonTI or a separate software license agreement
executed by Transferee. No such limitation shall apply to, and Motorola reserves all of its rights and remedies conceming,
any Transferee who is using or has used Motorola Software without a license or an assignment of Licensee's rights under this
Software License Agreement.
.
. I Cont,"ct No. I
Page A2
I MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A I
. Section 5 OWNERSHIP AND TITLE
Title to all copies of Motorola Software in any form, including all rights in patents, copyrights, trade secrets, and other
intellechlal properties, remams vested exclusively in Motorola.
Section 6 CONFIDENTIALITY
Licensee acknowledges that all Motorola Software contains valuable proprietary infonnation and trade secrets and that
unauthorized dissemination, distTibution, modification, reverse engineering, disassembly, or other improper use of Motorola
Software will result in irreparable harm to Motorola for which monetary damages would be inadequate, Accordingly,
Licensee will limit access to Motorola Software to those of its employees and agents who need to use Motorola Software for
Licensee's Pe1l11itted Purposes, and Licensee will take appropriate action with those employees and agents to preserve the
confidentiality of Motorola Software, Information which Motorola places into the public domain or which, after Motorola is
given advanced written notice by Licensee, is disclosed by pursuant to a court order or an order of an Administrative Law
Judge shall not be considered to be confidential. Owner will notify Motorola prior to any such disclosure.
Section 7 MAINTENANCE AND SUPPORT
No maintenance or support is provided under this Agreement. Maintenance or support, if available, will be provided under a
Motorola Software Subscription Agreement.
Section 8 LIMITED WARRANTY
The "Warranty Period" is set forth in Section 9.D of the CSA, and the one year Warranty Period for Software purchased prior
to Final Acceptance shall conunence at the same time as the Equipment upon which the Software is loaded. For purchases of
e Software in conjunction with the equipment upon which the Software is loaded, and made subsequent to Final Acceptance
(including additional Subsystems, as defined in the CSA), the one year Warranty Period shall commence from the date of
Final Acceptance for fixed equipment or from the date of delivery for subscriber equipment, whichever is applicable, For
Software Enhancements and Upgrades that are purchased under a Software Subscription Agreement, the Warranty Period
shall be as defined in Exhibit C-2 "Software Subscription Agreement", For all other Software purchases, the one year
Warranty Period shall commence from either (a) the date which is thirty (30) days after delivery of the Software, or (b) the
date of installation if Motorola provides installation and such installation services were purchased with the software. During
the Warranty Period Motorola warrants that the Motorola Software, when used properly, will be free from reproducible
defects that materially vary from its published specifications, The published specifications are found in the appropriate
technical manuals, Motorola does not WalTant that Licensee's use of the Motorola software or the Products will be
uninterrupted or enor-free, This limited software warranty does not include any wananty covering Year 2000 issues; any
such wananty is found in the CSA. MOTOROLA'S TOTAL LIABILITY, AND LICENSEE'S SOLE REMEDY, FOR ANY
BREACH OF THIS WARRANTY WILL BE LIMITED TO, AT MOTOROLA'S OPTION, REPAIR OR REPLACEMENT
OF THE MOTOROLA SOFTWARE OR PA YMENT OF LICENSEE'S DIRECT DAMAGES UP TO THE GREATER OF
THE AMOUNT PAID TO MOTOROLA FOR THE MOTOROLA SOFTWARE AND THE INDIVIDUAL PRODUCT IN
WHICH THE MOTOROLA SOFTW ARE IS EMBEDDED OR FOR WHICH IT WAS PROVIDED, OR $5,000,000, THIS
WARRANTY EXTENDS ONLY TO THE FIRST LICENSEE AND ANY FIRST-TIER TRANSFEREE (OTHER THAN A
TRANSFEREE WHO IS ACQUIRlNG PRODUCTS THAT ARE OBSOLETE, UNUSABLE AND/OR NOT NEEDED)
AUTHORIZED BY SECTION 4 ABOVE. SUBSEQUENT TRANSFEREES AND TRANSFEREES WHO ARE
ACQUIRING PRODUCTS THAT ARE OBSOLETE, UNUSABLE AND/OR NOT NEEDED RECEIVE NO WARRANTY
BUT MUST ACCEPT THE PRODUCTS "AS IS", MOTOROLA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING THE IMPLIED W ARRANTlES OF MERCHANT ABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
Section 9 LIMIT A TION OF LIABILITY
. I Conn.act No. I
Page A3
I MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A I
. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INCIDENTAL DAMAGES EXCEEDING $50,000 OR ANY
CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES.
Section 10 TERM AND TERMINATION
Licensee's right to use Motorola Software will begin when Licensee sends a duly executed copy of this Agreement to
Motorola, and either (a) Motorola retums a fully executed Agreement to Licensee or (b) Motorola ships Motorola Software or
a Product containing Motorola Software to Licensee, and will continue 1Il perpetuity unless terminated as follows, Licensee's
right to use Motorola Software will terminate upon a breach of this Agreement by Licensee, provided that Motorola first gives
Licensee written notice and a reasonable opportunity (not to exceed 30 days) to cure the breach. In addition, if Licensee
breaches this Agreement with respect to Radio Service Software or FLASHport@ Software, Motorola may, by notice to
Licensee, terminate Licensee's right to use such Motorola Software. Upon termination, Motorola will be entitled to
immediate injunctive relief without proving damages and, unless Licensee is a sovereign govenmlent entity or a Qualified
Purchaser, Motorola will have the right to repossess all Radio Service Software and FLASHpOIt@ Software in Licensee's
possession, Within thirty days after termination of Licensee's right to use any Motorola Software, Licensee must celtify in
writing to Motorola that all copies of such Motorola Software have been retumed to Motorola or destroyed,
.
. I Contract No. I
Page A4
I MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A I
. Scrtion 11 NOTICES
All notices, consents, and waivers permitted or required under this Agreement will be deemed given upon receipt and mllst be
delivered in writing to the addresses as set forth in Section 19,0 of the CSA. Change of address must be in writing to the
other party.
Section 12 GENERAL
A. COPYRIGHT NOTICES, The existence of a copyright notice on Motorola Software will not he construed
as an admission or presumption that public disclosure of Motoro]a Software or any h'ade secrets association
with Motoro]a Software has occurred,
B. NON-MOTOROLA SOFTWARE. Motorola may provide non-Motorola software to Licensee under the
terms of this Agreement if Motorola is granted the right to re-Iicense such non-Motorola software, or under
the ten11S of separate license agreements with the owners of such software if Motoro]a has not been granted
the right to re-]icense such non-Motorola software, Motorola will make reasonable efforts to provide to
Licensee a copy of such license agreements, and Licensee will abide by the terrns of these licenses,
C. CAUSES OF ACTION, The Parties must bring any action under this Agreement within four years after the
callse of action arises or the applicable Statute of Limitations, whichever is less,
D, WAIVERS, No waiver of a right or remedy of a party will constitute a waiver of another right or remedy of
that party,
E, ASSIGNMENTS. Motoro]a may assign any of its rights or subconh'act any of its obligations under this
e Agreement, or encumber or sell any of its rights in any Motorola Software, without prior notice to or
consent of Licensee, An assignment shall not release Motorola of its responsibilities under this Agreement
and will not impair Licensee's rights or quiet use and enjoyment of the Software under this Agreement
F, ENTIRE AGREEMENT AND AMENDMENT. This Agreement contains the parties' entire agreement
regarding Licensee's use of Motorola Software and may be amended only in writing signed by both pmties,
except that Motoro]a may (with written notice to Licensee) modify this Agreement as necessary to comply
with applicable laws and regulations including FCC regulations,
G, GOVERNING LA W, This agleement will be govemed by and conshued in accordance with the laws of the
United States of America to the extent that they apply and otherwise by the laws of the State of Minnesota,
The pmties shall bring any and all legal proceedings arising hereunder in the State of Minnesota, District
Court of (County where Licensee's principal office is located) County, The United States DistTict Court for
the State of Minnesota shall be the venue of any federal action or proceeding arising hereunder in which
Licensee is a party,
H, SURVIV ABILITY. Sections 5,6, 7,8 (bolded portions only), 9, ] ], 12,C and G shall survive the
termination of this Agreement ]n witness whereof, the pmties have caused duly authorized representatives
to execute this Agreement on the dates set fOlth below,
City of Hopkins, MN Motorola, Inc.
. I Conhact No. I
Page AS
I MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A I
. By: By:
Name:
Date:
Title:
By:
Date:
Date:
By:
Approved as to form
Name:
Title:
Attorney
Date:
Date:
/
~TEST: Clerk
.
. I Contract No. I
Page A6
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. Revised Estimate 10/24/03
Console Work Position Electronics $ 45,426.92"
Central Electronics Bank $ 74,539.00"
Switching $ 16,000.00"
Logging Audio Circuits $ 38,054.00"
Backup RF Control Stations $ 17,507.01 "
Motorola Services $ 105,339.81"
Microwave Point-to-Point Link $ 200,000.00"
Antenna Support Structure $ 15,000.00 "
SUBTOTAL FOR CONSOLE $ 511,866.74
Communications Engineering $ 24,000.00
. Portable/Mobile Radios, accessories and
software $ 355,386.85 1<1<
RF control stations, antennas and lines $ 5,835,67
Motorola services RF control stations $ 3,209.62
SUBTOTAL FOR RADIOS $ 364,432.14
TOTAL ESTIMATED COST OF PROJECT $ 900,298.88
This estimate DOES NOT include any grant awards.
" Up to 50% may be reimbursable by the Metro Radio Board
1<1< Homeland Security Funding has been awarded to Hopkins
.
----