HomeMy WebLinkAbout2001-24287 RESO
RESOLUTION NO. 2001-24287
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE
AN AGREEMENT BETWEEN THE CITY AND MOTOROLA, AS THE TOP RANKED
PROPOSAL PURSUANT TO REQUEST FOR PROPOSALS NO. 44-98/99, IN AN AMOUNT
NOT TO EXCEED $390,531.00, FOR THE PURCHASE OF A MOBILE COMPUTING
SYSTEM FOR THE POLICE DEPARTMENT.
WHEREAS, the City, applied for and was awarded two Federal grants under the COPS
MORE Program; and
WHEREAS, a portion of these grants were for the purpose of acquiring a mobile computing
system for the Police Department; and
WHEREAS, this mobile computing system will provide approximately eighty-five (85)
laptop computers for police officers and investigators in the field; and
WHEREAS, these laptop computers will have a wireless connection to the Police
Department's Computer Aided Dispatch and Records Management System, along with an interface
to the National Crime Information Center (NCIC), and the Florida Crime Information Center
(FCIC);and
WHEREAS, on March 18, 1999, Request for Proposals No. 44-98/99 RFP) was issued for
a Mobile Computing Solution for the Police Department; and
WHEREAS, a pre-proposal conference was held on April 6, 1999, and the closing date for
proposals was May, 10, 1999; and
WHEREAS, proposals were received from G.T.E; Motorola; MobileTec; L&E Mobile
Computers & Mounts, Inc.; and Total Data Solutions, Inc.; and
WHEREAS, the City Manager, with approval of the Mayor and City Commission, appointed
the following Evaluation Committee:
.
Kay Randall, Director - Information Technology, City of Miami Beach
Brian Miller, Captain - Information Resources Unit, Miami Beach Police
Martin Zaworski - Bureau ofInformation Technology, Broward Sheriffs
Office
Jose Calvo, Sergeant - Information Systems Manager, Hialeah Police
Kevin Morrell, Information Technology Manager, North Miami Police
Lawrence Bornstein, Police Officer, Public Safety Communications Unit,
Miami Beach Police; and
.
.
.
.
.
WHEREAS, the Evaluation Committee met on several occasions and conducted an
evaluation on each of the five (5) proposals received; and
WHEREAS, based upon the Committee's evaluation, the proposal submitted by Motorola
received the highest ranking; and
WHEREAS, additionally, the proposal submitted by Motorola was the lowest cost and the
only proposal, of the three finalists, whose proposed system costs fall within the amount of grant
funding available for the purchase of a Mobile Computing System; and
WHEREAS, in accordance with the requirements of the RFP, the Evaluation Committee
ranked the proposed system from Motorola as number one; and
WHEREAS, on May 10, 2000, the Mayor and City Commission accepted the City
Manager's recommendation, approving the Committee's rankings, and authorized the Administration
to enter into negotiations with Motorola; and
WHEREAS, following negotiations, an Agreement for the purchase of a Mobile Computing
System for the Police Department was finalized; and
WHEREAS, the Agreement provides for a full year of maintenance, from final system
acceptance, to be included in the purchase price, and a quantity discount applicable to purchases of
additional laptop computers under anticipated future grants.
NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk
are herein authorized to execute an Agreement between the City of Miami Beach and Motorola, as
the top ranked proposal pursuant to Request for Proposal No. 44-98/99, in an amount not to exceed
$390,531.00, for the purchase of a mobile computing system for the Police Department.
PASSED and ADOPTED this 14th day of
March
,2001.
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MAYOR
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CiTY CLERK
APPROVED /'IS TO
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C I T Y 0 F M I AM I B E A C H
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH. FLORIDA 33139
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COMMISSION MEMORANDUM NO. /39'-01
TO:
Mayor Neisen O. Kasdin and
Members ofthe City Commission
DATE: March 14,2001
FROM:
Jorge M. Gonzalez \. ~
City Manager () . 0
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF
MIAMI BEACH AND MOTOROLA, IN AN AMOUNT NOT TO EXCEED
$390,531.00j FOR THE PURCHASE OF A MOBILE COMPUTING SYSTEM
FOR THE POLICE DEPARTMENT.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
ANALYSIS
The City of Miami Beach, applied for, and was awarded two Federal grants under the COPS MORE
program. A portion of these grants were for the purpose of acquiring a mobile computing system for
the Police Department. This mobile computing system will provide approximately eighty-five (85)
laptop computers for police officers and investigators in the field. These laptop computers will have
a wireless connection to the Police Department's Computer Aided Dispatch and Records
Management system along with an interface to the National Crime Information Center (NCIC) and
the Florida Crime Information Center (FCIC). This system will provide the following capabilities:
~ The ability for officers in the field to initiate checks through state and federal
databases to determine if a vehicle or other property is stolen or a person is wanted.
This capability will significantly reduce the amount oftime it takes to conduct such
checks utilizing the radio system and a computer operator at the police station.
~ The ability for an officer in the field to initiate, conduct and complete an activity
without tying up the radio system.
~ The ability to send and receive encrypted messages from any other field unit or
dispatcher.
AGENDA ITEM
C7..D
3-/~~/
DATE
Commission Memorandum
March 14,2001
Page 2
~ The ability to enter a crime or offense report into the laptop and transmit them to the
Police Records Management System. This will significantly reduce the amount of
time and manpower required to complete a paper report and manually enter it into the
Records Management System using data entry clerks.
On March 18, 1999 RFP #44-98/99 was issued for a Mobile Computing Solution for the Police
Department. A pre-proposal conference was held on April 6, 1999 and the closing date for proposals
was May, 10, 1999. Proposals were received from the following vendors:
~ G.T.E.
~ Motorola
~ MobileTec
~ L&E Mobile Computers & Mounts, Inc.
~ Total Data Solutions, Inc.
The City Manager, with approval of the Mayor and City Commission, appointed the following
evaluation committee:
. Kay Randall, Director - Information Technology, City of Miami Beach
. Brian Miller, Captain - Information Resources Unit, Miami Beach Police
. Martin Zaworski - Bureau ofInformation Technology, Broward Sheriffs Office
. Jose Calvo, Sergeant - Information Systems Manager, Hialeah Police
. Kevin Morrell, Information Technology Manager, North Miami Police
. Lawrence Bomstein, Police Officer, Public Safety Communications Unit, Miami Beach
Police
The evaluation committee met on several occasions and conducted an evaluation on each of the five
(5) proposals was recieved. The evaluation process conducted by the committee was as follows:
1. The committee met and evaluation categories were assigned a weighted value for each
category .
2. Each of the five proposals was evaluated and rated by each of the committee members
based upon the requirements of the RFP and the vendor's responses.
3. The three (3) top rated vendors were invited to provide a demonstration of their proposed
system to the committee. The three (3) highest rated vendors were Motorola, GTE and
MobileTec. Each of these vendors participated in a demonstration of their proposed
system to the committee.
Based upon the committee's evaluation, the proposal submitted by Motorola received the highest
ranking. Additionally, the proposal submitted by Motorola was the lowest cost and the only proposal,
of the three finalists, whose proposed system costs fall within the amount of grant funding available
COMMISSION MEMORANDUM
March 14,2001
Page 3
In accordance with the requirements of the RFP, the Evaluation Committee ranked the proposed
system from Motorola as number one.
On May 10,2000, the Commission approved the rankings and authorized the Administration to enter
into negotiations with Motorola for a contract.
Following a series of negotiation sessions, an agreement for the purchase of a Mobile Computing
System for the Police Department was finalized. The contract provides for the total Motorola system
cost of $390,531.00 to be paid as follows:
o 15% of the contract value due upon contact execution;
o 15% of the contract value due upon shipment of Mobile Client Applications;
o 15% of the contract value due upon the shipment of Mobile Field Reporting;
o 10% of contract value due upon installment of Mobile Client Application;
o 10% of contract value due upon installation of Mobile Field Reporting;
o 25% of the contract upon beneficial use of Mobile Field Reporting, Messaging and the
ability to perform FCIC/NCIC checks;
o 10% of the contract value due upon final system acceptance.
The contract also provides for a full year of maintenance, from final system acceptance, to be
included in the purchase price and a quantity discount applicable to purchases of additional laptop
computers under anticipated future grants.
It is recommended that the Mayor and City Commission adopt this Resolution and authorize the
purchase of this much needed system.
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COMMUNICATIONS SYSTEM AGREEMENT
Motorola. Inc., a Delaware corporation ("Motorola"), by and through the United States & Canada
Group of its Commercial, Govemment. and Industrial Solutions Sector ("CGISS"), and The City of
Miami Beach, FL (Customer") enter into this Communications System Agreement (the
"Agreemenf'), effective as of the last date signed below (the "Effective Date"), pursuant to which
Customer will purchase and Motorola will provide Customer with a Communications System.
Section 1
EXHIBITS
The Exhibits below are hereby incorporated into and made a part of this Agreement. In
interpreting this Agreement and resolving any ambiguities, the main body of this
Agreement will take precedence over the Exhibits and any inconsistency between the
Exhibits will be resolved in the order in which the Exhibits appear below.
Exhibit A Motorola software license agreement ("Software License Agreement")
Exhibit B-1 Motorola/SCA Functional System Description ("FSD"), Premier MDC Server
Application
Exhibit B-2 Motorola/SCA Functional System Description ("FSD") Premier MDC Client
Application
Exhibit B-3 Motorola/SCA Statement of Work ("SOW"), including equipment list dated
11-13-00
Exhibit B-4 Motorola/SCA Acceptance Test Plan ("ATP").
Exhibit B-5 Motorola/SCA Project Timeline charts
Exhibit C-1 Contract Equipment List. Price Summary Sheet
Exhibit C-2 through C-4
Motorola/SCA Additional Price Summary Sheets
Exhibit C-5 through C-10
Non-Motorola/SCA Additional Price Summary Sheets
Exhibit D Motorola/SCA Maintenance and Support Agreement ("Maintenance
Agreement")
Exhibit E Motorola letter dated January 23, 2001
Exhibits B-1 through D replace Motorola's previous proposal dated May 9, 1999,
submitted in response to RFP #44-98/99.
Section 2
DEFINITIONS
,
Capitalized terms used in this Agreement and not otherwise defined within the
Agreement have the following meanings:
"Communications System" or "System" is the communications system described in
Exhibit B1 through B4. including the Equipment and Software described in the System
Description. Statement of Work. Acceptance Test Plan and Equipment List.
,
"Equipment" is the equipment specified in the Equipment List included in Exhibit B-3.
Motorola File No. 00-19219/hhm
Page 1
(Rev. 2/23/01)
, I
COMMUNICATIONS SYSTEM AGREEMENT
"Motorola Software" is software whose copyright is owned by Motorola.
"Non-Motorola Software" is software whose copyright is owned by a party other than
Motorola.
"Software" includes Motorola and any Non-Motorola Software that may be furnished with
the Communications System.
Section 3
SCOPE OF AGREEMENT
A. SCOPE OF WORK. Motorola will assemble and integrate the Equipment and
Software, and deliver. install and test the Communications System at designated
sites. as specified in Exhibit B and in accordance with this Agreement. Customer will
perform its responsibilities as specified in Exhibit B and in accordance with this
Agreement.
B. CHANGE ORDERS, Either party may request changes within the general scope of
this Agreement. If a requested change causes an increase or decrease in the cost of
or time required for the performance of this Agreement, Motorola and Customer will
agree to an equitable adjustment in the Agreement price or performance schedule, or
both, Motorola is not obligated to comply with requested changes unless and until
both parties execute a written change order.
C. ADDITIONAL PRODUCTS. For two (2) years after the Effective Date of this
Agreement, Customer may submit purchase orders for additional Motorola/SCA
products manufactured by Motorola's CGISS which are currently available at the time
of order. These items are contained in Exhibits C-2 through C-4. The price validity
for additional purchases of non-Motorola equipment (Exhibits C-5 through C-10)
expired on December 29, 2000. Valid pricing for these items after that date will be
available upon request through the local Motorola Account Manager and will carry a
30 day price validity. The then current pricing shall reflect any discounts being offered
at the time of purchase. If Customer and Motorola have agreed to a convention for
processing electronic data interchange ("ED I") transactions, purchase orders may be
transmitted electronically. Each purchase order must specifically refer to this
Agreement and will be an offer by Customer subject to Motorola's acceptance.
Except for pricing and delivery terms, which must be stated on the purchase order.
Customer and Motorola agree that the applicable terms of the main body of this
Agreement will be the only terms and conditions that govem the purchase and sale of
products identified on such purchase orders. Customer and Motorola agree that
payment for all additional products so purchased will be due within twenty-five (25)
days after the date of Motorola's invoice for the products.
D, MAINTENANCE SERVICE. During the first year after System Acceptance,
maintenance services and software support are provided pursuant to the terms of this
Agreement. the Maintenance and Support Agreement (Exhibit D). Such services are
included in the Purchase Price. After the first year following System Acceptance.
Customer may purchase maintenance services and software support for the
Communications System pursuant to a separately executed Maintenance and
Support Agreement.
Motorola File No. 00-19219/hhm
Page 2
(Rev. 2/23/01)
COMMUNICATIONS SYSTEM AGREEMENT
E. MOTOROLA SOFlWARE. Any Motorola Software fumished will be licensed to
Customer solely according to the terms and restrictions of the Software License
Agreement attached as Exhibit A. Customer hereby accepts all of the terms and
restrictions of the Software License Agreement.
F. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software fumished by Motorola
will be subject to the terms and restrictions of its copyright owner unless such
copyright owner has granted to Motorola the right to sublicense such Non-Motorola
Software, in which case the Software License Agreement (including any addendum
to satisfy such copyright owner's requirements) shall apply.
Section 4
PERFORMANCE SCHEDULE
A. Motorola and Customer agree to perform their responsibilities in accordance with the
following performance schedule as supplemented by the schedule included in the
Statement of Work:
1. Motorola will ship the Equipment to designated Customer site(s) within 13 weeks
after the Effective Date of this Agreement.
2. Motorola will install the Equipment within 26 weeks after the Equipment is
delivered to designated site(s).
3. Motorola and Customer will complete acceptance testing within 39 weeks after
installation is completed.
B. By executing this Agreement, Customer authorizes Motorola to proceed with the
manufacture, assembly. integration, delivery, installation, and testing of the
Communications System. No further notice to proceed, purchase order.
authorization, resolution, or any other action will be required.
Section 5
PAYMENT SCHEDULE
A. The total contract price is $ 390,531.00 ("Contract Price"). Except for the first
payment, which is due when Customer executes this Agreement, Customer agrees to
make payments to Motorola within twenty-five (25) days after the date of invoices that
will be submitted by Motorola according to the following payment schedule:
. 15% of the contract value due upon contract execution;
. 15% of the contract value due upon shipment of Mobile Client
Applications;
. 15%.ofthe contract upon due the shipment of Mobile Field Reporting;
. 10% of the contract value due upon installation of Mobile Client
Applications;
. 10% of the contract value due upon installation of Mobile Field
Reporting;
. 25% of the contract upon beneficial use of Mobile Field Reporting.
Messaging and the ability to perform FCICINCIC checks;
. 10% of the contract value due upon final acceptance.
Motorola File No. 00-19219/hhm
Page 3
(Rev. 2/23/01)
I
COMMUNICATIONS SYSTEM AGREEMENT
B. If the total Contract Price does not include freight charges, all freight charges will be
pre-paid by Motorola and added to the invoices.
Section 6
iNSTALLATION AND SITE CONDiTiONS
A. In addition to its responsibilities described in the Statement of Work, Customer
agrees to provide a designated project director, procure any necessary construction
permits, 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 performance
schedule and Statement of Work.
B. If either Motorola or Customer determines during the course of performance of this
Agreement that the sites identified in the Exhibits are no longer available or desired,
or, if subsurface. structural, adverse environmental or latent conditions at any site
differ from those indicated on the specifications in the Exhibits, Motorola and
Customer will promptly investigate the conditions and jointly select replacement sites
or adjust the installation plans and specifications as necessary.
C. If Customer and Motorola determine that any change in sites. site availability,
installation plans. or specifications will require an adjustment in the contract price or
in the time required for the performance of this Agreement, the parties will agree to
an equitable adjustment in the price, performance schedule, or both; and this
Agreement will be modified in accordance with Section 3.8 of this Agreement.
Section 7
TRAINING
If training is included in this Agreement, Customer agrees to notify Motorola
immediately if a date change for a scheduled training program is required. A charge
will apply to a training program rescheduled by Customer less than thirty (30) days
prior to its scheduled start date.
Section 8
SYSTEM ACCEPTANCE
A. Motorola will test the Communications System in accordance with the Acceptance
Test Plan. System acceptance will occur upon the successful completion of such
testing ("System Acceptance") at which time both parties shall promptly execute a
certificate of system acceptance. If the Acceptance Test Plan includes separate tests
for individual subsystems. both parties shall promptly execute certificates of
subsystem acceptance upon the successful completion of testing of such
subsystems. Minor omissions or variances in performance which do not materially
affect the operation of the Communications System as a whole will not postpone
System Acceptance. Customer and Motorola will jointly prepare a list of such
omissions and variances which Motorola will correct according to an agreed upon
schedule.
Motorola File No. 00-19219/hhm
Page 4
(Rev. 2/23/01)
COMMUNICATIONS SYSTEM AGREEMENT
B. Motorola agrees to notify Customer when the Communications System is ready for
acceptance testing. Motorola and Customer agree to commence acceptance testing
within ten (10) business days after receiving such notification. If testing is delayed for
reasons within the control of Customer or its contractors, agents and consultants for
more than ten (10) business days after notification. final payment will be due within
thirty (30) days after such notification and the Warranty Period will commence
immediately.
C. Motorola may, but is not obligated to, issue written authorization for Customer's use
of the Communications System or its subsystem(s) for limited training or testing
purposes, prior to the completion of testing by Motorola. My use of the
Communications System without prior written authorization by Motorola shall
constitute System Acceptance.
Section 9
WARRANTY
A. WARRANTY PERIOD. Upon System Acceptance, the System Functionality
representation described below is fulfilled. The Equipment and Motorola Software is
warranted for a period of one (1) year after System Acceptance ('Warranty Period")
in accordance with the applicable limited warranties shown below. In no event will
the warranty period last longer than eighteen (18) months after the Equipment and
Software is shipped from Motorola. Customer must notify Motorola in writing if
Equipment or Motorola Software does not conform to these warranties no later than
one month after the expiration of the Warranty Period.
B. SYSTEM FUNCTIONALITY. Motorola represents that the Communications System
will satisfy the functional requirements in Exhibit B. Upon System Acceptance, this
System Functionality representation is fulfilled. After System Acceptance, the
Equipment Warranty set forth below. the Software Warranty set forth in the Software
License Agreement, and the Maintenance and Support Agreement described in
Exhibit D will apply.
Motorola will not be responsible for performance deficiencies of the System caused by
ancillary equipment not fumished by Motorola attached to or used in connection with the
System provided hereunder. Additionally, Motorola will not be responsible for System
performance where the functionality is reduced for reasons beyond Motorola's control
including but not limited to (i) poor or no operation due to the system availability provided by
Bell South CDPD network; (i1) an earthquake. adverse atmospheric conditions or natural
causes that may affect CDPD operation; (Iii) the construction of a building that adversely
affects CDPD reliability or Coverage; (iv) the addition of additional frequencies at CDPD sites
that may cause RF interference or intermodulation degrading the network;(v) Customer
changes to load usage and/or configuration outside the parameters specified in Exhibits B1
through B-3; (vi) any other act of parties who are beyond Motorola's control. including
Customer or its employees. contractors. consultants or agents.
C. EQUIPMENT WARRANTY. Motorola warrants the Equipment against material
defects in material and workmanship under normal use and service during the
Warranty Period. Unless otherwise specified in writing, the Warranty Period for non-
Motorola manufactured Equipment will be as stated in this Section.
At no additional charge and at its option, Motorola will either: repair the defective
Equipment. replace it with the same or equivalent Equipment. or refund the purchase
Motorola File No. 00-19219/hhm
Page 5
(Rev. 2/23/01)
COMMUNICATIONS SYSTEM AGREEMENT
price of the defective Equipment, and such action on the part of Motorola will be the
full extent of Motorola's liability hereunder. Repaired or replaced Equipment is
warranted for the balance of the original applicable warranty period. All replaced
parts of the Equipment shall become the property of Motorola.
THIS WARRANTY DOES NOT APPLY TO
a) Defects or damage resulting from use of the Equipment in other than its normal
and customary manner.
b) Defects or damage occurring from misuse, accident, water, or neglect.
c) Defects or damage occurring from testing, operation. maintenance, installation,
alteration, modification, or adjustment not provided by Motorola pursuant to this
Communications System Agreement.
d) Breakage or damage to modems and antennas unless caused directly by defects
in material or workmanship.
e) Equipment that has been subjected to unauthorized Equipment modifications,
disassembly or repairs (including the addition to the EqUipment of non-Motorola
supplied equipment if not authorized by Motorola) which adversely affect
performance of the Equipment or interfere with Motorola's normal warranty
inspection and testing of the Equipment to verify any warranty claim.
f) Equipment which has had the serial number removed or made illegible.
g) Batteries (because they carry their own separate limited warranty).
h) Equipment which, due to illegal or unauthorized alteration of the
software/firmware in the Equipment, does not function in accordance with
Motorola's published specifications or with the FCC type acceptance labeling in
effect for the Equipment at the time the Equipment was initially distributed from
Motorola.
i) Scratches or other cosmetic damage to Equipment surfaces that does not affect
the operation of the Equipment.
j) Software.
k) Normal and customary wear and tear.
D. YEAR 2000 EXPRESS WARRANTY. During the Warranty Period, Motorola warrants
that each hardware. software, and firmware product delivered under this Agreement
("Product'.) shall be able to accurately process date data (including, but not limited to.
calculating. comparing. and sequencing) from, into. and between the year 1999 and
the year 2000. including leap year calculations. when used in accordance with the
Product documentation provided by Motorola. provided that all products (e.g.,
hardware. software. firmware) used in combination with such Product properly
exchange date data with it. All Product manufactured by parties other than Motorola
are warranted hereunder based upon Year 2000 statements. representations, and
Motorola File No. 00-19219/hhm
Page 6
(Rev. 2/23/01)
. I
COMMUNICATIONS SYSTEM AGREEMENT
warranties made by these parties to Motorola. Motorola has not verified the content
of those Year 2000 statements but is merely republishing those statements,
representations, and warranties for purposes of this warranty. For any Product that
utilizes third party computer operating system software, such as Microsoft Windows
NT 4.0 or Windows 95. that third party software is warranted only with respect to the
specific functions of it that are necessary in the performance of the Communication
System provided under this Agreement. The remedies available for breach of this
warranty shall be as defined in, and subject to. the terms and limitations of the
Equipment Warranty provided above. Except as provided herein, nothing in this
warranty statement shall be construed to limit any rights or remedies provided
elsewhere in this Agreement with respect to matters other than Year 2000
performance.
E. MOTOROLA SOFTWARE WARRANTY. Motorola Software is warranted in
accordance with the terms of the Software License Agreement attached as Exhibit A.
F. These express limited warranties as set forth in this Section are extended by Motorola
to the original end user purchasing or leasing the System for commercial. industrial,
or govemmental use only, and is not assignable or transferable. These are the
complete warranties for the Equipment and Software provided pursuant to this
Agreement.
G. THESE WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES.
MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS. EXPRESS
OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO
EVENT WILL MOTOROLA BE LIABLE FOR DAMAGES IN EXCESS OF THE
PURCHASE PRICE OF THE EQUIPMENT. IN NO EVENT WILL MOTOROLA BE
LIABLE FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE,
COMMERCIAL LOSS. LOST PROFITS OR SAVINGS OR OTHER INCIDENTAL,
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE
USE OR INABILITY TO USE THE EQUIPMENT, TO THE FULL EXTENT SUCH
MAY BE DISCLAIMED BY LAW.
Section 10
RESERVED.
Section 11
DELAYS
A. Successful project implementation will require cooperation and fairness between the
parties. Because it is impractical to provide for every contingency which may arise
during the course of performance of this 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.
Motorola File No. 00-19219/hhm
Page 7
(Rev. 2/23/01)
. I
COMMUNICATIONS SYSTEM AGREEMENT
B. Under no circumstances will either party be responsible for delays or lack of
performance resulting from events beyond the reasonable control of that party
(.Excusable Delays.). Excusable Delays include. but are not limited to: acts of God,
weather conditions. compliance with laws and regulations (excluding Customer's
failure to properly and timely apply for all required FCC licenses), govemmental
action, bid protests, fire, strikes. lock-outs. and other labor disruptions, material
shortages. riots, acts of war, and an Excusable Delay of a Motorola subcontractor.
C. Customer will make available to Motorola the sites when scheduled and Customer
will not otherwise unreasonably delay or prevent Motorola's performance of its
responsibilities. If Customer unreasonably delays Motorola's performance. the
performance schedule will be extended. the Customer will make the milestone
payments as if no delay occurred.
Section 12
DEFAULT
A. If Motorola fails to complete delivery. installation or acceptance testing in accordance
with this Agreement, Customer may consider Motorola to be in default, unless such
failure has been caused by an Excusable Delay. Customer agrees to give Motorola
written notice of such default. Motorola will have thirty (30) days from the receipt of
such notice to provide a plan of action that is acceptable to Customer to cure the
default.
B. If Motorola fails to cure the default, Customer may terminate any unfulfilled portion of
this Agreement. If Customer completes the Communications System through a third
party, Customer may recover the reasonable costs of completing the
Communications System to a capability not exceeding that specified in the
Agreement for the terminated portion. Customer agrees to use its best efforts to
mitigate such costs. Motorola's liability under this Section is subject to the limitations
of the Section entitled Limitation of Liability of this Agreement.
C. THE REMEDIES PROVIDED IN THIS SECTION OF THE AGREEMENT WILL BE
THE FULL EXTENT OF MOTOROLA'S LIABILITY IN THE EVENT OF DEFAULT.
Section 13
INDEMNIFICATION
A. GENERAL INDEMNITY. Motorola agrees to and hereby indemnifies and saves
Customer harmless from all liabilities which may accrue against Customer on
account of direct physical damage to tangible property or personal injury to the extent
the damage or injury is caused by Motorola's negligence or recklessness, or that of
its employees. subcontractors. or agents while on the Customer's premises during
the delivery, installation, or testing of the Communications System pursuant to this
Agreement
B. PATENT AND COPYRIGHT INFRINGEMENT. Motorola will defend, at its own
expense, any suit brought against the Customer to the extent that it is based on a
claim that the Equipment or Motorola Software infringe a United States patent or
copyright. and Motorola will pay those costs and damages finally awarded against the
Customer in any such suit which are attributable to any such claim, but such defense
Motorola File No. 00-19219/hhm
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(Rev. 2/23/01)
COMMUNICATIONS SYSTEM AGREEMENT
and payments are conditioned on the following: i) Motorola must be notified promptly
in writing by Customer of any notice of such claim; ii) Motorola will have sole control
of the defense of such suit and all negotiations for its settlement or compromise; and
Iii) should the Equipment or Motorola Software become, or in Motorola's opinion be
likely to become, the subject of a claim of infringement of a United States patent or
copyright. Customer will permit Motorola, at its option and expense, either to procure
for Customer the right to continue using the Equipment or Motorola Software or to
replace or modify the same so that it becomes non-infringing or to grant Customer a
credit for the Equipment or Motorola Software and accept its retum. Motorola will
have no liability with respect to any claim of patent or copyright infringement which is
based upon the combination of the Equipment or Motorola Software furnished
hereunder with software, apparatus or devices not furnished by Motorola, nor will
Motorola have any liability for the use of ancillary equipment or software not furnished
by Motorola which is attached to or used in connection with the Equipment. The
foregoing states the entire liability of Motorola with respect to infringement of patents
and copyrights by the Equipment and Motorola Software or any parts thereof.
C. Motorola's indemnification of Customer under this Section will be the full extent of
Motorola's indemnification of Customer from liabilities that are in any way related to
Motorola's performance under this Agreement.
Section 14
DISPUTES
A. Motorola and Customer will attempt to settle any claim or controversy arising from
this Agreement through consultation and negotiation in good faith and a spirit of
mutual cooperation. If those attempts fail, the dispute will be mediated by a mediator
chosen jointly by Motorola and Customer within thirty days after notice by one of the
parties demanding non-binding mediation. Neither party may unreasonably withhold
consent to the selection of a mediator, and Motorola and Customer will share the cost
of the mediation equally. The parties may postpone mediation until they have
completed 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.
B. Any dispute that cannot 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 party to a court of competent jurisdiction
in the State in which the Communications System is installed. Each party consents
to jurisdiction over it by such a court. The use of any ADR procedures will not be
considered under the doctrine of laches. waiver. or estoppei to affect adversely the
rights of either party. Either party may resort to the judicial proceedings described in
this 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 court is necessary to prevent serious and
irreparable injury to such party or any of its affiliates. agents. employees. customers.
suppliers. or subcontractors.
Motorola File No. 00-19219/hhm
Page 9
(Rev. 2/23/01)
COMMUNICATIONS SYSTEM AGREEMENT
Section 15
LIMITATION OF LIABILITY
Notwithstanding any other provision to this Agreement, except for personal injury or
death. Motorola's total liability, whether for breach of contract, warranty, negligence, strict
liability in tort, indemnification, or otherwise, is limited to the direct damages recoverable
under law, but not to exceed the price of the Equipment or services with respect to which
losses or damages are claimed. IN NO EVENT WILL MOTOROLA BE LIABLE FOR
ANY LOSS OF USE. LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST
PROFITS OR SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE
EQUIPMENT. OR THE PERFORMANCE OF SERVICES BY MOTOROLA TO THE
FULL EXTEND THAT SUCH MAY BE DISCLAIMED BY LAW. This Limitation of Liability
will survive the expiration or termination of this Agreement.
Section 16
GENERAl
A. TITLE AND RISK OF LOSS. Title to the Equipment will pass to Customer upon
shipment of the Equipment, except that title to Software will not pass to Customer at
any time. Risk of loss will pass to Customer upon delivery of the Equipment to the
facilities designated by Customer.
B. TAXES. The Contract Price does not include any amount for federal, state, or local
excise, sales, lease. service, rental, use, property, 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 Customer except as exempt by law. If Motorola is required to
payor bear the burden of any such taxes, Motorola will send an invoice to Customer
and Customer will pay to Motorola the amount of such taxes (including any interest
and penalties) within thirty days after the date of the invoice. Customer will be solely
responsible for reporting the Equipment for personal property tax purposes.
C. CONFIDENTIAL INFORMATION. Customer will not disclose any material or
information identified as Motorola proprietary and confidential to third parties without
Motorola's prior written permission, unless Motorola makes such material or
information public or disclosure is required by law. If Customer is required by law to
disclose such material or information. Customer 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. trade marks, trade secrets or
other intellectual property of Motorola.
E. ASSIGNABILITY. This Agreement may not be assigned by either party without the
prior consent of the other party except that Motorola may assign this Agreement to
any of its affiliates or its right to receive payment without the prior consent of
Customer.
F WAIVER. Failure or delay by either party to exercise any right or power under this
Agreement will not operate as a waiver of such right or power.
Motorola File No. 00-19219/hhm
Page 10
(Rev. 2/23/01)
. I
COMMUNICATIONS SYSTEM AGREEMENT
G. SEVERABiliTY. If any portion of this Agreement is held to be invalid or
unenforceable, that provision will be considered severable and the remainder of this
Agreement 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 construed as part
of this Agreement or as a limitation of the scope of the particular Section to which the
heading refers.
I. ENTIRE AGREEMENT. This Agreement (including the Exhibits) constitutes the
entire agreement of the parties regarding the subject matter of this Agreement and
supersedes all previous agreements and understandings, whether written or oral,
relating to such subject matter. This Agreement may be altered. amended, or
modified only by a written instrument signed by the duly authorized representatives of
both parties.
J. GOVERNING LAW. This Agreement will be govemed by and construed in
accordance with the laws of the State to which the Equipment is shipped.
K. NOTICES. Notices authorized or required under this Agreement must be in writing
and sent to the below addresses:
Customer:
Attn:
Address1
City, St, Zip:
City of Miami Beach
Director, Information Technology
1100 Washington Ave.
Miami Beach. Fl 33139
Motorola. Inc. Southem Division
Attn: Contract & Compliance Manager
789 International Parkway, Rm. #S3G
Sunrise. Fl 33325
In witness whereof, the parties have caused duly authorized representatives to execute this
Agreement on the dates set forth below.
IN WITNESS WHEREOF:
Customer: ~ Motorola, Inc.
By: By:
Name: Neisen Kasdin, Mayor Name: Tricia McCarth
ATTEST: ~ r f Q.A.cJ..v
Title: Area Controller
Robert Parcher, City Clerk
Date: Date: February 23. 2001
APPROYEDASTO
FORM & LANGUAGE
a FOR EXECUTION
"""'"",F"..Jl~ 3-~:'t
Page 11
(Rev.2/23/01) I
. I
MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT A
This Software License Agreement is between Motorola, Inc., a Delaware corporation
("Motorola"), and the Licensee named below.
Section 1
SCOPE
Licensee may acquire from Motorola's Commercial, Govemment, and Industrial Solutions
Sector ("CGISS") radio communication products ("Products") that contain embedded or
pre-loaded Motorola software such as in a ROM, PROM. or EPROM. or other Motorola
software provided on media such as a floppy disk, tape, diskette. or CD-ROM. All such
software (including Radio Service Software and FLASHport@ Software) is referred to as
"Motorola Software." In addition, third party software may be included which Motorola
does not own but is licensed to distribute. The terms of this Agreement apply to any such
third party software unless an additional license agreement pertaining to the third party
software is enclosed, in which case the terms of such license apply to said third party
software. This Agreement contains the terms under which Licensee may use Motorola
Software acquired from CGISS.
Section 2
GRANT OF LICENSE
Motorola hereby grants to Licensee a personal, non-exclusive license under Motorola's
applicable proprietary rights to use Motorola Software in accordance with the terms of
this Agreement.
Section 3
LIMITATIONS ON USE
Licensee may use Motorola Software only for Licensee's internal business purposes and
only as described in the Motorola Software or Product documentation. Any other use of
Motorola Software is strictly prohibited and will be deemed a breach of this Agreement.
Licensee may not copy, modify, adapt, merge with other software, reverse engineer,
prepare derivative works of, or disassemble any Motorola Software for any reason,
except that Licensee may make at most two copies of Motorola Software provided with
infrastructure equipment for back-up purposes. Licensee must purchase a copy of Radio
Service Software for each site at which Licensee uses Radio Service Software; Licensee
may make one additional copy for each computer owned or controlled by Licensee at
each such site. Licensee may temporarily use Radio Service Software on portable or
laptop computers at other sites. Prior to acquiring any Radio Service Software or upon
Motorola's request, Licensee must provide a 'written list of all sites where Licensee uses
or intends to use Radio Service Software. Licensee must reproduce all Motorola
copyright and trademark notices on all copies of Motorola Software.
Section 4
TRANSFERS
If Licensee transfers ownership of Products to a third party, Licensee may assign its
rights to use Motorola Software (other than Radio Service Software and FLASHport@
Software) embedded in or furnished for use with those Products provided that (a)
Licensee transfers all copies of such Motorola Software to the new owner and (b)
Motorola receives a transfer form (which Motorola will provide upon request) completed
and signed by the new owner. Otherwise. Licensee may not transfer or make available
any Motorola Software to any third party.
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 intellectual properties. remains vested exclusively in
Motorola.
Motorola File No. 00-192191hhm
Page I
(Rev. 2/23/0 I)
MOTOROLA SOFfW ARE LICENSE AGREEMENT - EXHIBIT A
Section 6
CONFIDENTIALITY
Licensee acknowledges that all Motorola Software contains valuable proprietary
information and trade secrets and that unauthorized dissemination. distribution,
modification, reverse engineering, disassembly, or other improper use of Motorola
Software will result in irreparable harm to Motorola for wh ich monetary
damages would be inadequate. Accordingly, Licensee will limit access to Motorola
Software to those of its employees and agents who need to use Motorola Software for
Licensee's internal business purposes, and Licensee will take appropriate action with
those employees and agents to preserve the confidentiality of Motorola Software.
Section 7
LIMITED WARRANTY
For the Warranty Period specified in the Communications System Agreement, Motorola
warrants that the Motorola Software, when used properly, will be free from reproducible
defects that eliminates the functionality of a feature critical to the primary functionality of a
system. The primary functionality of a voice communication system is subscriber-to-
subscriber. subscriber-to-dispatcher, and dispatcher-to- subscriber voice communication.
The primary functionality of a data system is point-to-point data transmission. Motorola
does not warrant that Licensee's use of the Motorola Software or the Products will be
uninterrupted or error-free. Motorola warrants the Software andlor the products will meet
the specifications of the Motorola proposal incorporated into the Communications System
Agreement as Exhibits B through E. 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 SOFlWARE OR PAYMENT OF LICENSEE'S DIRECT DAMAGES UP TO
THE AMOUNT PAID TO MOTOROLA FOR THE MOTOROLA SOFlWARE OR THE
INDIVIDUAL PRODUCT IN WHICH THE MOTOROLA SOFTWARE IS EMBEDDED OR
FOR WHICH IT WAS PROVIDED. THIS WARRANTY EXTENDS ONLY TO THE FIRST
LICENSEE; SUBSEQUENT TRANSFEREES MUST ACCEPT THE MOTOROLA
SOFTWARE "AS IS" AND WITH NO WARRANTIES OF ANY KIND. MOTOROLA
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
Section 8
LIMITATION OF LIABILITY
IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 9
TERM AND TERMINATION
Licensee's right to use Motorola Software will begin when Licensee sends a duly
executed copy of this Agreement to Motorola. and either (a) Motorola returns a fully
executed Agreement to Licensee or (b) Motorola ships Motorola Software or a Product
containing Motorola Software to Licensee, and will continue in perpetuity unless
terminated as follows. Licensee's right to use Motorola Software will terminate without
notice upon a breach of this Agreement by Licensee. In addition, if 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 government entity,
Motorola will have the right to repossess all Radio Service Software and FLASHport@
Software in Licensee's possession. Within thirty days after termination of Licensee's right
Motorola File No. OO-I92l9/hhm
Page 2
(Rev. 2/23/0 I)
. I
MOTOROLA SOFIW ARE LICENSE AGREEMENT - ExmBIT A
to use any Motorola Software, licensee must certify in writing to Motorola that all copies
of such Motorola Software have been returned to Motorola or destroyed.
Section 10
NOTICES
All notices, consents, and waivers permitted or required under this Agreement will be
deemed given upon receipt and must be delivered in writing to the below addresses.
Change of address must be in writing to the other party.
CUSTOMER:
Attn:
Address 1:
City, St, Zip:
City of Miami Beach
IT Director
1100 Washington Ave.
Miami Beach. FL 33139
MOTOROlA, INC.
Attn: Contracts & Compliance Manager
789 International Parkway, Rm. #S3G
Sunrise, FL 33325
Section 11
GENERAL
A. COPYRIGHT NOTICES. The existence of a copyright notice on Motorola Software
will not be construed as an admission or presumption that public disclosure of
Motorola Software or any trade secrets associated with Motorola Software has
occurred.
B. CAUSES OF ACTION. licensee must bring any action under this Agreement within
one year after the cause of action arises.
C. WAIVERS. No waiver of a right or remedy of a party will constitute a waiver of
another right or remedy of that party.
D. ASSIGNMENTS. Motorola may assign any of its rights or subcontract any of its
obligations under this Agreement. or encumber or sell any of its rights in any
Motorola Software, without prior notice to or consent of licensee.
E. ENTIRE AGREEMENT AND AMENDMENT. This Agreement contains the parties'
entire agreement regarding licensee's use of Motorola Software and may be
amended only in a writing signed by both parties, except that Motorola may modify
this Agreement as necessary to comply with applicable laws and regulations
including FCC regulations.
F. GOVERNING LAW. This Agreement will be governed by the laws of the United
States of America to the extent that they apply and otherwise by the laws of the State
to which the Equipment is shipped.
In witness whereof. the parties have caused duly authorized representatives to execute this
Agreement on the dates set forth below.
:;:stomer: fPr
By:
Name: NeiSen Kasdin, Mayor
ATTESTj~J e.~
Robert Parche , City Clerk
Date:
Name: Tricia McCarth
Title: Area Controller
"""C1Y& A81'8
FORM & LANGUAGE
a fOR EXECUTION
I Motoro~19/bhm1
:fF ~_(ll
Date: February 23.2001
Page 3
(Rev. 2/23/01) I