R00-038RESOLUTION NO. R 00-,~'8
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING
AND DIRECTING THE MAYOR AND CITY CLERK TO
EXECUTE A CONTRACT AND LICENSE AGREEMENT
BETWEEN THE CITY OF BOYNTON BEACH AND
MOTOROLA, INC. FOR THE PURPOSE OF
PURCHASING A FULLY OPERATIONAL 800 MHz
TRUNKED RADIO SYSTEM; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Boynton Beach, Florida has entered into an
Agreement with the South Palm Beach County Communications Cooperative
composed of the cities of Boca Raton, Delray Beach and Boynton Beach, for the
purpose of providing interoperational communication systems to Public Safety
and local government users for mutual aid purposes; and
WHEREAS, the City of Boynton Beach as part of the South Palm Beach
Communications Cooperative wishes to enter into a contract with Motorola,
Inc,. for the purchase of a fully operational 800 MHz trunked radio system; and
WHEREAS, such contract has been prepared and a copy thereof is
attached hereto; and
WHEREAS, the radio communication system requires software for
operation, this resolution hereby authorizes the approval of the Motorola
Software License Agreement, attached hereto as Exhibit B of the Contract.
NOW, 'THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach, Florida
does hereby authorize and direct the Mayor and City Clerk to execute a Contract
and License Agreement between the City of Boynton Beach and Motorola, Inc.,
copies of said agreement is attached hereto.
Section 2. This Resolution shall become effective immediately upon
passage.
PASSED AND ADOPTED this
ATTEST:
day of March, 2000.
CITY O~BOYNT. ON BEACH, FLORIDA
Ma/y ~r ~ .-~
Vice Mayor
Commissioner
Commissioner
R2000 08]8
INTERLOCAL AGREEMENT
This INTERLOCAL AGREEMENT, is made and entered into this ~ day of ,2000, by
and between PALM BEACH COUNTY, a political subdivision of the State of Florida
("COUNTY") and the cities of BOCA RATON ("BOCA RATON") and DELRAY BEACH
("DELRAY BEACH") and BOYNTON BEACH ("BOYNTON BEACH"), each a separate
munidpal corporation existing under the laws of the State of Florida.
WITNESSETH
WHEREAS, the Cities of Boca Raton, Delray Beach, and Boynton Beach, have established
via interlocal Agreement the South Palm Beach County Public Safety Communications
Cooperative for the purpose of expanding the geographic use of available frequendes for
mutual assistance and daily activities and the establishment and operation of radio
communications systems; and
WHEREAS, the COUNTY has commit-ted to the purchase, design, installation, and operation
of an 800 MHz Tnmked Radio System to meet the needs of the Palm Beach County Sheriffs
Office, Palm Beach County Fire Rescue, Palm Beach County Emergency Management
Service, and various Palm Beach County general government agencies; and
WHEREAS, the COUNTY and the Cities have determined that the ability to provide
interoperable systems is critical to the effective and efficient provision of public safety
services; and
WHEREAS, it has been determined mutually beneficial to all Parties to execute this
Agreement which sets forth the parameters under which the radio systems of the Cities and
the COUNTY can be connected saving the taxpayers money of both the COUNTY and the
Cities as well as the opportunity to receive the public safety benefit of interoperability; and
WHEREAS, Section 163.01, Florida Statutes, permits public agendes to enter into Interlocal
Agreements to jointly exercise any power, privilege, or authority which such agencies share
in common and which each might exercise separately:
NOW THEREFORE, in conjunction with the mutual covenants, promises and representations
contained herein the parties hereto agree as follows.
SECTION 1: Purpose
The purpose of this Agreement is to set forth the parameters under which the
COUNTY will make specific components of its 800 MHz Tnmked Radio System available to
the COOPERATIVE in order to facilitate the planning, design and installation of the
COOPERATIVE's communication systems in the short term and, in the long term, provide
Page 1 of 14
for interoperable radio communications between the COUNTY and the cities participating
in the COOPERATIVE.
SECTION 2: Definitions
2.01 BOYNTON BEACH Site The City of Boynton Beach's primary radio
communications site located in Tract B, Rolling Green Ridge Second Addition, City of
Boynton Beach.
2.02 Central Hub The Central Hub consists of the radio communications
system operated by the City of West Palm Beach and includes those cities utilizing the
system through interlocal agreement with the City of West Palm Beach.
2.03 Cities The City of Boca Raton, the City of Delray Beach, and the City
of Boynton Beach, as individual entities, but used in context of this Agreement to mean each
city acting in the collective.
2.04 Ci~-County Roaming Talk Group Talk groups established on a
municipal radio communications system for which the SmartZone controller will assign
channel resources on the County's communications systems when units from the talk group
are registered on the System.
2.05 Common Countywide Talk Groups Talk groups established on the
County's communications system that are made available to municipalities and other non-
County agencies. These talk groups must be programmed into agency radios and be selected
by the user.
2.06 Controller The Controller is the group of equipment components that
provide audio routing and control signaling functions required to interface various
independent communications system and provides interoperable operations between the
individual systems.
2.07 COOPERATIVE The South Palm Beach County Public Safety
Communications Cooperative which was established by BOCA RATON, DELRAY BEACH
AND BOYNTON BEACH to collectively provide a radio communications system which
provides radio communications for the three cities. All references to the COOPERATIVE
shall also refer to each of the Cities of Boca Raton, Delray Beach and Boynton Beach and to
the approval of all actions of the COOPERATIVE by the Cities pursuant to the Intefloeal
Agreement establishing the COOPERATIVE dated 2/2/98.
2.08 COOPERATIVE's System The 800 MHz trunked radio system or systems,
funded, purchased, installed, maintained and owned by the COOPERATIVE or the individual
cities. The system, or systems, shall include the fixed network and field radio transmitting
Page 2 of 14
and receiving equipment, microwave equipment and/or leased communication transport
lines as required for communications between sites, dispatch center equipment and facilities
required for the operations of each city's public safety and government services functions,
and the towers and physical facilities require to house and maintain the system equipment.
2.09 Microwave System A communications system utilizing frequencies in
the microwave range to route audio and control signals between sites in a multi-site
communications system.
2.10 North Hub The North Hub is a COOPERATIVEly established
communications system proposed to be developed by the municipalities in the northern
County area.
2.11 Parties All entities that have executed this Agreement which include
the COUNTY, BOCA RATON, DELRAY BEACH AND BOYNTON BEACH.
2.12
Prime Site The location of the COUNTY's SmartZoneTM Controller.
2.13 Roaming Feature A feature of the SmartZone controller that allows
units from specified talk groups to register onto communications systems associated with
the SmartZone controller when beyond the coverage of their primary system. Additionally
these talk groups ~e assigned communications channels on the systems where units
registered when there is talk group activity.
2.14 South Hub The South Hub refers to the communications system,
facilities and operations proposed by the South Palm Beach County Communications
COOPERATIVE.
2.15 System The 800 MHz Trunked Radio system funded, purchased,
installed, maintained and owned by the County. The system will include fixed and field
transmitting and receiving equipment, a microwave system for commtmications between
sites, remote and prime site control and management equipment, dispatch consoles and
related equipment and a SmartZone controller located at the prime site.
SECTION 3: COUNTY'S 800 MHz Tnmked Radio System
3.01 The COUNTY will purchase, install, and operate a SmartZoneTM Controller,
capable of expansion to 48 ports, at its Prime Site. The COUNTY will solely fund the
purchase and own the Controller. The COUNTY will allow the COOPERATIVE to connect
to the Controller utilizing a maximum of 6 ports. The COOPERATIVE acknowledges that the
COUNTY has upsized the Controller to be able to accommodate the capacity requirements
of the COOPERATIVE as transmitted to the COUNTY on August 28, 1998: The
COOPERATIVE also acknowledges that by entering into this Agreement, the COUNTY must
Page 3 of 14
increase the capacity of the Controller to a level sufficient to accommodate the anticipated
requirements of the South, Central and North Hub as conceptualized in the Countywide
Public Safety Communications System for Municipalities prepared in 1995.
3.02 Subject to Section 3.06, the COOPERATIVE agrees to pay its fair share
of the operation and maintenance costs associated with the Controller on pro rata basis. The
operations and maintenance costs to be included are: system administration costs (which
includes personnel costs), utilities, equipment, software and component renewal,
replacement costs, and controller maintenance costs (which may be out-sourced or
performed by the County).
3.03 Subject to Section 3.06, the COOPERATIVE will be solely responsible
for any and ali permitting and/or licensing costs associated with its use of the Controller.
3.04 Subject to Section 3.06, the COOPERATIVE will be solely responsible
for any and all costs associated with the purchase of equipment components, modules,
interfacing hardware and the installation services required to utilize the SmartZoneTM
Controller.
3.05 The COOPERATIVE agrees that only the COUNTY will connect to,
expand, or otherwise modify System components which are owned by the COUNTY. The
COOPERATIVE will fund such actions to be undertaken by the COUNTY on the
COOPERATIVE's behalf, and pursuant to the terms of this Agreement.
3.06 The COOPERATIVE will only be financially responsible for those act/om
undertaken on the COOPERATIVE's behalf when the COOPERATIVE has agreed to the costs
in writing prior to commencement of the activity.
3.07 In order to facilitate the COOPERATIVE's needs, the COUNTY agrees
to make the SmartZone Controller available to the COOPERATIVE within 30 days of the
COUNTY's acceptance of the SmartZone Controller and the Prime Site. Acceptance is
defined to be when Motorola has fulfilled its contract requirements for the SmartZone
Controller and the site and building improvements of the Prime Site, regardless of the
progress/status of the remainder of the contract requirements or project status. The
COOPERATIVE acknowledges that the microwave communications system will not be in
place at the time of early acceptance of the SmartZone Controller and the Prime Site, and
will be solely financially responsible for the communications costs associated with
transporting the signals to the Prime Site.
Page 4 of 14
SECTION 4: COUNTY'S Digital Microwave Communications System
4.01 Pursuant to a separate agreement between the COUNTY and BOYNTON
BEACH, the COUNTY will locate digital microwave communications equipment at the
Boynton Site. The COUNTY will allow the COOPERATIVE to use the microwave system as
a communication path between the COOPERATIVE and the Controller located at the
COUNTY's Prime Site.
4.011 At the time of execution of this agreement it is anticipated by the
COOPERATIVE that Boynton Beach will solely utilize the 6 T1 capacity in the
Microwave System reserved for use by the COOPERATIVE pursuant to
separate agreement and that Delray Beach and Boca Raton will transport from
their systems to the COUNTY's Prime Site via leased Tls and not via the
Microwave System. If that continues to be the case, all references to "the
COOPERATIVE' in Sections 4.02 through 4.05 will change to Boynton Beach.
4.012 If Delray Beach and Boca Raton subsequently decide to utilize the
Microwave System directly from their respective systems to the COUNTY's
Prime Site, the individual City will be totally responsible for all costs
associated with the purchase, installation, ownership, operations and
maintenance of equipment solely for its benefit. The provisions of Section
4.03, 4.04 and 4.05 will also then apply to Delray Beach and/or Boca Raton.
4.02 The COUNTY will be responsible for the purchase, installation,
ownership and physical maintenance and operation of the microwave equipment at the
Boynton site. The COOPERATIVE agrees to pay its fair share of the operation and
maintenance costs associated with the Microwave System between the Boynton site and the
COUNTY's Prime Site, on pro rata basis. The operations and maintenance costs to be
included are: system administration costs (which includes personnel costs), utilities,
equipment, software, and component renewal and replacement costs, and microwave
equipment maintenance costs (which may be out-sourced or performed by the County).
4.03 Subject to Section 3.06, the COOPERATIVE will be solely responsible
for all costs associated with interfaces between the Microwave System and the
COOPERATIVE's radio system.
4.04 The COOPERATIVE agrees that only the COUNTY will connect to,
expand, or otherwise modify Microwave System components which are owned by the
COUNTY. Subject to Section 3.06, the COOPERATIVE will fund such actions to be
undertaken by the COUNTY on the COOPERATIVE's behalf, and pursuant to the terms of
this Agreement.
Page 5 of 14
4.05 The COOPERATIVE must provide conceptual design details, space
requirements, power needs and capacity requirements for their interface requirements for
both the Boynton site and the COUNTY's prime site. Adequate time shall be allowed for
the COUNTY to review and respond to the requirements, and any modifications necessary
on behalf of the COOPERATIVE shall not impact the schedule or cost of the COUNTY's
System.
SECTION 5: COOPERATIVE's Notification of Intent to Participate and Conditions
Precedent to COOPERATIVE's Participation
5.01 The COOPERATIVE agrees to provide the COUNTY with adequate
written notice of its intent to utilize the Controller. Such notice will include the date upon
which it desires to connect, necessary capacity requirements as well as evidence
documenting BOCA RATON'S, DELRAY BEACH'S, AND BOYNTON BEACH~S financial ability
to implement the COOPERATIVE's radio system. Notice which does not include such
financial information will not be considered adequate notice by the COUNTY.
5.02 Within 40 days of the receipt of the Notice described in Section 5.01,
the COUNTY shall provide the COOPERATIVE with a cost estimate associated with the
COOPERATIVE's connection to the Controller. The estimate provided by the COUNTY shall
include supporting cost documentation from Motorola on those items which it will directly
provide and/or install. The COOPERATIVE will review the estimate and provide to the
COUNTY funding in an amount equal to the estimate so that the COUNTY may undertake
the equipment additions and modifications to accommodate the COOPERATIVE's
interconnection to the COUNTY's Controller interface. In the event that the actual costs are
less than the estimate, the remaining funds will be returned to the COOPERATIVE. The
COUNTY must receive the funds no later than 60 days prior to the connection date
identified in the notice described in Section 5.01. Failure of the City to provide such funding
by this time, may delay the actual date of connection to the Controller.
5.03 Upon receipt by the COUNTY of the COOPERATIVE's notice pursuant
to Section 5.02, the COUNTY and the Cities will commence negotiations and enter into an
interlocal agreement which addresses, at a minimum, the following items.
5.031 The method of calculation for the operation and maintenance fees
associated with the Controller, pursuant to Section 3.02 of this Agreement.
5.032 The method of calculation for the operation and maintenance fees
associated with the Microwave System, pursuant to Section 4.02 of this
Agreement.
Page 6 of 14
5.033 The timing and manner of payment of operation and maintenance fees
to the COUNTY. This section will also identify the frequency by which the fee
schedule will be updated.
5.034 Identification of the documentation necessary to demonstrate that any
and all permitting or licensing fees have been or will be paid by the
COOPERATIVE or the Cities, which are specific to the COOPERATIVE or the
Cities use, to the appropriate permitting or licensing entity.
5.035 The means and methods of interoperability between the individual
agencies and establishing control and management methods, authority levels
and authority appointments required to administer interoperable
communications between participating agencies will be a section of the
agreement. This part of the agreement shall establish the administrative
authority, the software and hardware mechanisms, and the operational
methods required to protect participating systems from unauthorized or
excessive loading, to manage, modify, and maintain the unit identification,
talk group configuration, and talk group assignment data for the participating
systems, and to define the methods of operation required to coordinate inter-
system activities.
5.036 The amount and manner of involvement of the COOPERATIVE in the
daily and on-going administration of the System.
5.037 Provisions for notification of times when the System will be out of
service for planned maintenance or modification, as well as notification in the
event of failure or emergency.
5.038 The term of use of the System by the COOPERATIVE.
5.04 The COOPERATIVE will not be permitted to connect to the System until
such interlocal agreement is executed by the COUNTY and the Cities.
SECTION 6: System Capacity Forecast Assumptions
The COUNTY and the COOPERATIVE agree that it would be mutually beneficial to
maximize the number of city-county talk groups with capabilities for System-wide roaming.
The system design forecast does not project any System capacity is available to achieve this
objective. However, as the System is used, the COUNTY will have actual System use data
that can be used in lieu of the System use assumptions used for the original system capacity
projection. The COUNTY agrees to periodically reevaluate law enforcement's use of the
System compared to the use projections. The specifics of this evaluation are identified in
Attachment A to this Agreement.
Page 7 of 14
SECTION 7: COOPERATIVE's Acknowledgement of COUNTY Expenditure
The COOPERATIVE acknowledges that by entering into this Agreement, the COUNTY
has allowed the COOPERATIVE to save in excess of $1,000,000 as well as avoid costs
associated with establishing a microwave link from the Boynton site to the Prime Site in
excess of $125,000.
SECTION 8: COUNTY'S Obligations to COOPERATIVE's System
Nothing in this Agreement shall represent a commitment by the COUNTY, or shall
be construed as intent bythe COUNTY, to fund any portion of the COOPERATIVE's System.
SECTION 9: Frequencies
The Parties agree that the frequencies held by Palm Beach County and the
frequencies held bythe COOPERATIVE shall be separate and shall be implemented and used
at the sole discretion of the individual parties.
SECTION 10: Liability
The parties to this Agreement and their respective officers and employees shall not
be deemed to assume any liability for the acts, omissions and negligence of the other party.
Further, nothing herein shall be construed as a waiver of sovereign immunity by either
party, pursuant to Section 768.28, Florida Statutes.
SECTION 11: Term of Agreement
The term of this Agreement shall be for a period of four (4) years from execution.
The Agreement may be renewed for a period of (2) years upon written modification by all
Parties.
SECTION 12: Amendments to this Agreement
12.01 This Agreement may be amended from time to time by written amendment
by all Parties.
12.02 In the future, if the County enters into an agreement(s) with other
municipalities which terms are more favorable than those contained in this Agreement, the
County agrees to amend this agreement, by written amendment executed by the County
Administrator or his designee, the Director of Facilities Development & Operations to match
the more favorable. This provision does not apply to Sections 3.01, 4.01, 4.02, and 7 of this
Agreement.
Page 8 of 14
SECTION 13: Termination
13.01 This Agreement may be terminated by any party at any time prior to receipt
of notice pursuant to Section 5.01, with or without cause, and with 60 days notice to all
other Parties.
13.02 After receipt of notice pursuant to Section 5.01, the COUNTY can only
terminate if the Parties fail to enter into an agreement pursuant to Section 5 of this
Agreement, or as a result of any other default by the Cities pursuant to this Agreement.
SECTION 14: Annual Budget Appropriations
The COUNTY'S and Cities' performance and obligation to pay pursuant to this
Agreement are contingent upon annual appropriation for its purpose bythe Board of County
Commissioners and each individual City Council.
SECTION 15: Notices
Any notice given pursuant to the terms of this Agreement shall be in writing and
done by Certified Mail, Return Receipt Requested. The effective date of such notice shall be
the date of receipt, as evidenced by the Retum Receipt. All notices shall be addressed to the
following:
As to the COUNTY:
Director, Facilities Development & Operations
3323 Belvedere Road, Building 503
West Palm Beach, Florida 33406
With copy to:
Director of Communications Division
3323 Belvedere Road, Building 506
West Palm Beach, Florida 33406
County Attomey~s Office
301 North Olive Ave, Suite 601
West Palm Beach, Florida 33402
Page 9 of 14
As to BOCA RATON:
City Manager
City of Boca Raton
201 W. Palmetto Park Rd.
Boca Raton, F1 33432
With copy to:
Chief of Police
City of Boca Raton
100 NW Boca Raton Blvd
Boca Raton, Fl. 33432
As to DELRAY BEACH:
City Manager
City of Delray Beach
100 NW First Ave.
Delray Beach, Fl. 33444
With copy to:
Chief of Police
City of Delray Beach
300 W. Atlantic Ave
Delray Beach, Fl. 33444
As to BOYNTON BEACH:
City Manager
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, Fl. 33435
With copy to:
Chief of Police
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, Fl. 33435
Page 10 of 14
SECTION 16: Applicable Law/Enforcement Costs
This Agreement shall be governed by the laws of the State of Florida. In the event
that any action, or suit proceeding is commenced with respect to the interpretation or
enforcement of this Agreement, the prevailing party in such action, suit, or proceeding shall
be entitled to recover all costs, expenses and fees including without limitation, reasonable
attorney's fees, incurred by such party in connection therewith.
SECTION 17: Filing
A copy of this Agreement shall be filed by Palm Beach County with the Clerk'of the
Circuit Court in and for Palm Beach County.
SECTION 18: Delegation of Duty
Nothing contained herein shall be deemed to authorize the delegation of the
Constitutional or Statutory duties of any party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day
and year first written above.
ATTEST:
DOROTHY H. WILKEN, Clerk .... -~","~"~""~,,, PALM BEACH COUNTY, FLORIDA BY ITS
_-~'!":'"~:.O,~OARD OF COUNTY COMMISSIONERS
Boartl of County Commlsslonem
;,,,.,,
""'~[L~-"' ' ~ ~ %--~: · FLORt~~' ~- .~,..
%o-;...;~zt, nmr
.............. _
Page 11 of 14
CITY OF~B:.O.'.?.&~IATON, Clerk
' : ~:-/l'~ '~l~'z ~-:
Legal Sufficiency:
~TY~O~p,EL_I~A~ BEACH, Clerk
:' ~5.)_'~',,-,, i : . ·
~ .4 ~ ~ ~. ..
Legal Sufficiency:
CITY OF BOCA RATON, BY ITS CITY
COMMISSIONERS
Mayor
CITY OF DELRAY BEACH, BY ITS CITY
COMMISSIONERS
//~or
City Attorney
CITY OF BOYNTON BEACH, Clerk
Legal Sufficiency:
City Attorney
CITY OF BOYNTON BEACH, BY ITS CITY
COMMISSIONERS
Page 12 of 14
Attachment A
System Capacity Forecast Re-evaluation
In Order to implement Section 6 of the Agreement, the COUNTY agrees to the following.
Two (2) years after final acceptance of the System and complete migration of PBSO to the
system and every three (3) years thereafter, the forecast of System capacity will be re-
evaluated. The re-evaluation will entail the substitution of actual System use data for
System use assumptions used to determine System capacity. The re-evaluation will be done
by performing an Eflang study based on actual system usage data, actual unit quantities and,
revised unit quantity growth for the remaining system build-out.
The System use assumptions used to determine the original system capadty projections are
identified as follows:
System Build-out: 2013
Number of Voice Channels: 27 (See note below)
Calculation Model: Erlang-C
Standard Call - Seconds/Units: 3.778 seconds
Loading: Call/Hour/Unit: 1.7036 call-seconds
Worldng Channel Overhead: 0.5 seconds
Maximum Acceptable Delay: 1 second
Average Message: 4.278 seconds
Offered Load: 14.3634 erlangs
Basic Grade of Service: 0.20 percent
Delayed Call Grade of Service: 0.01 percent
Percentage of Time each Channel in Use: 53.2%
Agency Parameters:
Law Enforcement Fire-Rescue/EMS Gen. Govem.Total
Unit Quantity by 2013
Peak Eflang by 2013
3412 1405 2278 7095
6.91 2.84 4.61 14.36
Note: Implementation of two addkional channels capable of countywide coverage is
required to meet the operational minimums for the full 15 year system life cycle.
To determine the availability of system capacity to support city-county talk groups, the
above assumptions will be compare with actual use data and the assumptions will be
adjusted accordingly for law enforcement. Using the adjusted parameters an Erlang-C study
shall be performed to determine capacity usage.
Page 13 of 14
In the event that the re-evaluation indicates that overall law enforcement usage is less than
that computed by the assumptions (including the projected growth in number of GOUNTY
law enforcement radios and the actual use for those projected radios), the COUNTY will re-
direct that law enforcement capacity difference to allow for certain talk groups to have the
roaming feature activated. Municipalities proposing roaming talk groups shall provide
Erlang study data to demonstrate the identified available capacity can support the call traffic
from the proposed city-county talk groups. To ensure comparable Erlang study results,
municipal studies ~shall be based on the same methods and calculation model as used for the
County's study.
The number of sPecific city-county talk group to use the roaming feature will be based on
an evaluation of all city-county talk groups, capacity needs for each talk group, the capacity
available, the number of radios with access to the talk group, the risk/stress involved in
activities using each talk group, and any monitoring requirements.
All cities in the County will be able to participate in the identification of law enforcement
city-county talk groups for consideration to go to System-wide roaming. The COOPERATIVE
acknowledges that any capacity which may be re,assigned to enable city-county talk groups
with the roaming feature is available to all cities in the County not only those in which the
COOPERATIVE routinely participates.
As the System has countywide coverage it will not be necessary for COUNTY users to
activate a roaming feature. As a result, any costs associated with the re-programming of
subscriber units and the SmartZone controller will be borne in its entirety by the entity
proposing the city-county talk group.
The re-assignment of any capacity initially forecasted to fire rescue and general government
users, is at the sole discretion of the COUNTY.
h:southubagr
Page 14 of 14
/ ?DD- gg
SOUTH PALM BEACH COUNTY PUBLIC
SAFETY
COMMUNICATIONS COOPERATIVE
COMMUNICATIONS SYSTEM AGREEMENT
Dated: 3/10/00
ARTICLE 1. STATEMENT OF PERFORMANCE 8
1.1 MOTOROLA'S Performance 8
1.1.1 Delivery, Installation and Acceptance of Equipment 8
1.2 COOPERATIVE's Performance 9
1.2.1 Notices to Proceed and Certifications 9
1.2.2 FCC License - Authorizations 9
ARTICLE 2. TERM, PROJECT IMPLEMENTATION SCHEDULE, AND
PERFORMANCE SCHEDULE 10
2.1 Term 10
2.2 Design Review and Implementation Schedule 10
2.3 Performance Schedule 10
2.3.1 MOTOROLA Schedule Obligations 10
2.3.2 COOPERATIVE Obligations 11
2.3.3 Acquisition of SYSTEM Sites 11
2.3.4 Adjustments to Schedule 11
2.4 Failure of MOTOROLA to Perform 11
ARTICLE 3. CONTRACT PRICE 12
3.1 PRICE - SYSTEM • 12
3.2 PAYMENT Milestones 13
3.2.1 Fixed Equipment 13
3.2.2 Subscriber Equipment 13
3.3 Payment And Invoices 14
3/17/00 1 COOPERATIVE
3.4 Reserved 15
3.5 General Option for Addition or Deletion 15
3.6 Maintenance 16
3.7 Eligible Purchasers 16
ARTICLE 4. COOPERATIVE APPROVAL OF MOTOROLA DOCUMENTS AND
SPECIFICATIONS 1
ARTICLE 5. SYSTEM PERFORMANCE AND ACCEPTANCE TESTING 1
5.1 SYSTEM Acceptance Test Plan and Acceptance Criteria 17
5.1.1 Use of the SYSTEM Prior to Acceptance 17
5.1.2 Equipment and Software 17
5.2 Testing Notice 17
5.3 Test Responsibility 18
5.4 Evaluation of Acceptance Test Data 18
5.5 Test Documentation 19
ARTICLE 6. INSTALLATION OF SYSTEM 19
6.1 Installation 19
6.2 Facilities 19
6.3 Standard of Work 19
6.4 Documentation 19
6.5 Training 19
3/17/00 2 COOPERATIVE
ARTICLE 7. WARRANTIES AND MAINTENANCE 20
7.1 SYSTEM, Equipment and Software Warranties 20
7.1.1 SYSTEM Warranty 20
7.1.2 Equipment and Installation Warranty 20
7.1.3 Software Warranty 20
7.2 Parts Availability Warranty 21
7.3 Warranty Period 21
7.4 Warranty of Ownership and Right to Transfer 21
7.5 Compliance with Applicable Laws 21
7.6 Maintenance and Warranty Records 22
7.7 Warranty of Radio Coverage 22
7.8 Disclaimer of Implied Warranties 22
7.9 Maintenance Following Warranty Period 22
7.10 Enforcement of Warranties 23
ARTICLE 8. PERSONNEL 23
8.1 MOTOROLA Personnel 23
8.2 COOPERATIVE Personnel Support 23
ARTICLE 9. COOPERATIVE REPRESENTATIVES 24
9.1 COOPERATIVE Project Coordinator 24
9.2 MOTOROLA's Project Manager 24
3/17/00 3 COOPERATIVE
ARTICLE 10. COMMUNICATIONS AND NOTICES 24
10.1 Communications 24
10.2 Official COOPERATIVE Address 24
10.3 Official MOTOROLA Address 25
10.4 Consultant's Address 26
ARTICLE 11. FINANCIAL REPORTS AND STATEMENTS 26
ARTICLE 12. NON - INTERFERENCE 27
ARTICLE 13. EXCUSABLE DELAYS 27
ARTICLE 14. CHANGES, DELETIONS OR ADDITIONS TO AGREEMENT 27
14.1 COOPERATIVE Change Requests 27
14.2 Change Proposal 28
14.3 Change Order Notice 28
14.4 MOTOROLA Change Requests 28
14.5 Changes in the COOPERATIVE's Total Obligation 29
ARTICLE 15. DISPUTES 29
ARTICLE 16. TERMINATION 29
16.1 The COOPERATIVE's Right to Terminate 29
16.2 Notification of Termination 30
16.3 Effect of Termination Notification 30
3/17/00 4 COOPERATIVE
16.4 Invoicing of Non - Default Termination Expenses 31
16.5 Failure to Agree on Cost 31
16.6 Disputes Regarding Convenience Termination Costs 32
16.7 Deductions from Agreed To Costs 32
16.8 Removal of SYSTEM and Recovery of Payments 32
ARTICLE 17. LIABILITY 33
17.1 Indemnification 33
17.2 Indemnification Regarding Patent Rights, Copyrights, Proprietary Data and Trade
Secrets 33
17.3 Liquidated Damages 34
17.4 Limitation of Liability 34
ARTICLE 18. BONDS 34
18.1 Performance and Payment Bond 34
ARTICLE 19. INCORPORATION OF SOW AND DEFINITIONS 35
19.1 Incorporation of EXHIBITS 35
19.2 Glossary 35
ARTICLE 20. ORDER OF PRECEDENCE BETWEEN AGREEMENT AND EXHIBITS 35
ARTICLE 21. GENERAL PROVISIONS 36
21.1 Construction of Provisions and Titles Herein 36
21.2 Number of Originals 36
3/17/00 5 COOPERATIVE
21.3 Severability 36
21.4 Interpretation, Enforcement, and Venue 36
21.5 Effective Date 36
21.6 Integrated Agreement 37
21.7 Amendment 37
21.8 Breach 37
21.9 Independent Contractor 37
21.10 Prohibition Against Assignment or Delegation 37
21.11 Permits 37
21.12 Nondiscrimination and Affirmative Action 38
21.13 Claims for Labor and Materials 38
21.14 Insurance 38
21.14.1 Certificate 38
21.14.2 Insurer Requirements 38
21.14.3 Required Coverage 38
21.14.4 Other Requirements 39
21.14.5 Failure to Procure Insurance 40
21.15 Consent 41
21.16 Survival 41
21.17 Waivers 41
21.18 Time of Essence 41
3/17/00 6 COOPERATIVE
21.19 Promotional Tours 41
21.20 Product Substitutions 41
21.21 Non - Interference 42
21.22 Copyright of Proprietary Data Notices 42
21.23 Confidentiality of Information 42
21.24 Assignment 43
21.25 Books and Records 43
21.26 Applicable Laws 43
3/17/00 7 COOPERATIVE
AGREEMENT
THIS AGREEMENT is entered into by and between the SOUTH PALM BEACH COUNTY
PUBLIC SAFETY COMMUNICATIONS COOPERATIVE, consisting of the City of Boca
Raton, City of Boynton Beach, and the City of Delray Beach ( "COOPERATIVE "), and
MOTOROLA, Inc., by and through its Commercial, Government and Industrial Solutions Sector,
and a Delaware Corporation authorized to do business in the State of Flonda, with an office
located at 8000 West Sunrise Boulevard, Plantation, Flonda 33322 -4497 ( "MOTOROLA ").
WITNESSETH:
WHEREAS, the COOPERATIVE desires to purchase three (3) independent fully operational
800 MHz Trunked Radio Systems, including all equipment, materials, and services that are
necessary to provide that these systems (collectively, the "SYSTEM "), as more particularly
identified and described in the STATEMENT OF WORK ( "SOW "), respectively identified as
Exhibit A to this AGREEMENT and which is by reference made a part hereof; and,
WHEREAS, the parties hereto desire to enter into an AGREEMENT pursuant to which
MOTOROLA shall perform the work and furnish the equipment, materials, and services required
to provide the SYSTEM to the COOPERATIVE for the consideration and upon the terms and
conditions as hereinafter set forth. All references to the COOPERATIVE shall also refer to each
of the Cities of Boca Raton, Boynton Beach and Delray Beach (the three Cities listed above and
to approval of all actions of the COOPERATIVE by the Cities pursuant to the Interlocal
Agreement establishing the COOPERATIVE dated February 2, 1998.
NOW, THEREFORE, in consideration of the above premises and of the covenants and
representations herein contained, the parties hereto covenant and represent as follows:
ARTICLE 1. STATEMENT OF PERFORMANCE
1.1 MOTOROLA'S Performance
MOTOROLA, in accordance with Exhibit A, the SOW, shall perform or cause to be performed
all services (including, without limitation, engineering design, production, procurement,
delivery, construction, installation, integration, interfacing, testing, documentation, training and
one (1) year warranty) and shall furnish all equipment, materials, services, and labor required to
complete and achieve acceptance of the SYSTEM identified and described in this AGREEMENT
and the EXHIBITS thereto. In so doing, MOTOROLA shall perform the work and deliver the
items descnbed in this AGREEMENT and EXHIBITS incorporated herein and, notwithstanding
any other provision of tliis AGREEMENT, perform such other work and deliver such other items
as are necessary to ensure that the SYSTEM for which MOTOROLA is responsible hereunder
meets all of the requirements set forth in this AGREEMENT. MOTOROLA shall ensure that
subcontractors, present or future, comply with the applicable terms of this AGREEMENT.
1.1.1 Delivery, Installation and Acceptance of Equipment
The equipment required for the SYSTEM will be delivered to the staging facilities designated by
MOTOROLA. Thereafter, such equipment will be shipped by MOTOROLA directly to each of
the Communications Sites designated by the COOPERATIVE Project Coordinator.
3/17/00 8 COOPERATIVE
MOTOROLA and the COOPERATIVE will jointly inventory the equipment at such sites and
shall immediately reconcile any discrepancies and prepare a list of equipment received. After
completion of the inventory, copies of the equipment received sheets will be maintained jointly
by the COOPERATIVE Project Coordinator and MOTOROLA. All deliveries will be made
F.O.B. Destination to the applicable Communications Sites. Title to the equipment shall pass to
the COOPERATIVE upon delivery to the Communications Sites.
Risk of loss and damage to such equipment shall be borne by MOTOROLA until the Date of
Final Acceptance of the SYSTEM, unless caused solely by the COOPERATIVE's negligence, at
which time the risk of loss or damage to such equipment shall pass to the COOPERATIVE. The
above notwithstanding, title to software and any third party supplied software shall not pass
under any circumstances, including payment of the license fee.
1.2 COOPERATIVE's Performance
1.2.1 Notices to Proceed and Certifications
This Agreement will be the sole procurement authorization and notice that funds have been
encumbered. Additionally, this Agreement will act as a Notice to Proceed at which time
Motorola shall commence its activities pursuant to this Agreement.
1.2.2 FCC License - Authorizations
The COOPERATIVE is solely responsible for obtaining any licenses or other related
authorizations required by the Federal Communications Commission ( "FCC ") for operation of
the SYSTEM. Neither MOTOROLA nor any of its employees is an agent or representative of
the COOPERATIVE in FCC matters or otherwise. If requested by the COOPERATIVE, and at
no charge to the COOPERATIVE, MOTOROLA agrees to assist the COOPERATIVE in
obtaining the necessary licenses. Should the FCC fail to approve or continue to grant the
channels necessary for the SYSTEM, this contract may be terminated by the COOPERATIVE
for convenience pursuant to ARTICLE 16, Article 16.1(B).
Access and Service to the Communications Sites
The COOPERATIVE shall, in addition to responsibilities descnbed elsewhere in this
AGREEMENT, provide the following coincident with MOTOROLA's performance of this
AGREEMENT.
A. Ingress and egress to the Communications Sites as reasonably requested by
MOTOROLA. "
B. Adequate telephone circuits to each Communications Site for the installation and
operation of the equipment. MOTOROLA will cooperate and provide assistance to the
COOPERATIVE, in accordance with the SOW, in identifying requirements and ordering
necessary circuits.
C. AC power at 117 VAC, 60 Hz, to each Communications Site for the installation and
operation of the equipment based on requirements provided to the COOPERATIVE by
MOTOROLA.
3/17/00 9 COOPERATIVE
D. A designated work area and a storage area for equipment at each Communications Site.
ARTICLE 2. TERM, PROJECT IMPLEMENTATION SCHEDULE, AND
PERFORMANCE SCHEDULE
2.1 Term
The "Effective Date" is the date determined pursuant to Article 21.5, Effective Date. This
AGREEMENT shall commence on the Effective Date, with work to commence upon contract
execution. This Agreement shall terminate when the SYSTEM is operating as warranted through
the warranty period, all performance required hereunder is complete, and the COOPERATIVE
has notified MOTOROLA of its final acceptance of the SYSTEM.
2.2 Design Review and Implementation Schedule
In accordance with the Project Schedule, the "Design Review" and the final configuration of the
system will be reviewed and mutually agreed to between the COOPERATIVE and
MOTOROLA. Upon completion of the Design Review, the COOPERATIVE shall approve the
first milestone payment submittal in accordance with Article 3.2, Payment Milestones.
At the "Design Review," MOTOROLA and the COOPERATIVE shall mutually develop a
Project Implementation Schedule, Appendix D of the Statement of the Work, which shall
become part of this Agreement. This schedule shall indicate in detail all of the tasks and related
subtasks (including but not limited to equipment, delivery, installation, testing, construction,
etc.) to be performed by MOTOROLA under this Agreement, the dates said tasks and subtasks
shall be completed, and a final completion date for the SYSTEM.
2.3 Performance Schedule
A Performance Schedule shall be prepared, updated, and submitted to the COOPERATIVE
Project Coordinator by MOTOROLA with each request for payment. The Performance Schedule
shall indicate the actual and projected completion dates of each of the tasks and subtasks
identified in the Project Implementation Schedule. The relationship between these Schedules
and the respective obligations of MOTOROLA, the COOPERATIVE Project Coordinator, and
the COOPERATIVE are defined in Article 2.3.1, 2.3.2, 2.3.3, and 2.3.4.
2.3.1 MOTOROLA Schedule Obligations
MOTOROLA shall complete, in a timely manner, each of the tasks and subtasks identified in the
Project Implementation Schedule. MOTOROLA will order and arrange for delivery of
equipment and material in accordance with the Project Implementation Schedule or in such
manner, as may be approved by the COOPERATIVE, so as to provide for the orderly progress of
work under this Agreement while, at the same time, ensuring that no equipment or material is
delivered to any Communications Site until that site is properly prepared for such delivery. If
MOTOROLA desires to ship equipment earlier than scheduled, COOPERATIVE approval must
be obtained.
3/17/00 10 COOPERATIVE
2.3.2 COOPERATIVE Obligations
MOTOROLA's ability to reasonably and substantially meet its obligations to complete each of the tasks
and subtasks identified in the Project Implementation Schedule is in part dependent upon the
COOPERATIVE adhering to their respective obligations as set forth in this AGREEMENT and the
EXHIBITS thereto. If the COOPERATIVE projects that they will be unable to meet any of their
individual obligations in a timely manner, the COOPERATIVE, in writing and as early as reasonably
possible, shall advise MOTOROLA of such fact and shall provide a projected time within which the
delayed obligations will be accomplished.
2.3.3 Acquisition of SYSTEM Sites
The SYSTEM will utilize the Communications Sites identified in the Coverage Maps included in the
SOW. The acquisition of some of the Communications Sites may require coordination and formal
arrangements for site acquisition, access, and facilities construction. The COOPERATIVE will use its
best efforts to make the Communications Sites available to MOTOROLA for the installation or
construction of the Fixed Equipment and applicable Subscriber Equipment, in accordance with the SOW,
by the date specified in the Project Implementation Schedule or such later date as may be set forth in a
written change order. If either MOTOROLA or the COOPERATIVE should determine, during the
course of performance of this AGREEMENT, that the sites or configurations selected are no longer
available, new or replacement sites or configurations will be selected by the COOPERATIVE in a
manner which will minimize the impact of change on MOTOROLA's performance hereunder. Any
increase or decrease in project cost or required modification of the Project Implementation Schedule
resulting from such changes shall be effected through wntten Change Orders.
2.3.4 Adjustments to Schedule
The COOPERATIVE's Project Coordinator and the Project Manager shall meet regularly to discuss the
status of performance under this Agreement and to address any concerns raised in that regard. Should
MOTOROLA fail to meet any dates for performance of tasks or subtasks as set forth in the Project
Implementation Schedule, MOTOROLA agrees to schedule its performance in order to minimize and, to
the extent possible, eliminate the impact of such delay on its performance and on the timely completion
of other tasks and subtasks. At such time as the cumulative total of such delays extends the final
completion date of the SYSTEM by more than sixty (60) calendar days or the delay in the performance
of any individual task or subtask exceeds thirty (30) calendar days, MOTOROLA and the
COOPERATIVE, in addition to other obligations set forth in this Agreement, will meet promptly to
discuss the impact of such delay on the Project Implementation Schedule. The date for final completion
of the SYSTEM, as reflected in the Project Implementation Schedule, shall be extended on a day for day
basis for any non - concurrent delay caused by an act or omission of the COOPERATIVE, its officials,
officers, or employees which directly impacts the ability of MOTOROLA to meet that date. The
COOPERATIVE and Motorola shall provide a minimum of five (5) business days advance notice to the
other of any change that requires rescheduling by the COOPERATIVE.
2.4 Failure of MOTOROLA to Perform
In the event that MOTOROLA or its subcontractors fail to perform the work defined in the SOW timely
as required by the Project Implementation Schedule, then the COOPERATIVE agrees to reasonably
cooperate with MOTOROLA and jointly schedule or reschedule its performance in order to minimize
3/17/00 11 COOPERATIVE
and, to the extent possible, eliminate the impact of such a failure on the COOPERATIVE's performance.
In the event the COOPERATIVE is unable to schedule /reschedule its items of work to eliminate the
effects of such a delay, the Project Coordinator shall notify MOTOROLA of the available alternatives
and a detailed estimate of the impact which the Project Coordinator believes the delay by MOTOROLA
or its subcontractors will have on the scheduling of the COOPERATIVE's work delayed under each
alternative. In the event the cumulative total unexcused delays extend the project final completion date
by more than sixty (60) calendar days, MOTOROLA shall reimburse the COOPERATIVE in accordance
with Article 17.3 [Liquidated Damages], of this AGREEMENT, but only for that portion of the delays
exceeding sixty (60) calendar days. The parties shall use the change order procedure set forth in Article
14, [Changes, Deletions, or Additions to Agreement], to arrive at mutually acceptable revisions in the
Project Implementation Schedule arising out of any unexcused delays exceeding sixty (60) days. If the
delay in performing any individual item of work exceeds thirty (30) days, such delay will not be included
as part of the cumulative sixty (60) days, and MOTOROLA and the COOPERATIVE will meet to
discuss separately the impact of such delay on the Project Implementation Schedule.
Except as agreed in a written change order, no payment, compensation or adjustment of any kind other
than the extension of time provided for above shall be made to MOTOROLA for damages because of
hindrances or delays from any cause in the commencement, prosecution or completion of the work,
including but not limited to: (a) any significant act or omission on the part of the COOPERATIVE or
any other contractor employed by the COOPERATIVE, or any of their officers, agents or employees
with respect to drawings, plans or specifications, changes in sequence, lack of decision, acceleration, de-
acceleration, interference, errors, suspensions, lack of approvals, erroneous bid specifications, lack of
payments, issuance of change orders, occupancy, or use or placement into service of the building,
structure, equipment, or appurtenances to be constructed hereunder prior to final completion and
acceptance of the work, wherein MOTOROLA can conclusively demonstrate that the act or omission
clearly caused the delay; (b) significantly differing site conditions; (c) presence and operations of other
contractors; (d) strikes, lockouts, labor or material shortages; (e) fire; (f) unusual delay in transportation;
(g) acts of God, such as humcane, tropical storms, tornadoes, earthquakes or floods, or extreme weather;
whether such hindrances or delays be avoidable or unavoidable, and MOTOROLA agrees that it shall
make no claim for, nor be entitled to, compensatory, acceleration, or disruption damages, if any, or any
other damages of any kind or nature for any such delays or hindrances and will accept in full satisfaction
for such delays the extension of time set forth in this Agreement. The no damage for delay provision of
this paragraph shall exclude lack of payment and include, but shall not be limited to, increase in time -
related costs, escalation in material costs, reduction in material volume, escalation in labor costs,
additional equipment, effect on other contracts, increased premiums, lower labor productivity, lost
alternative income, additional labor head count, additional premium time labor, additional supervision
and demobilization and remobilization costs.
ARTICLE 3. CONTRACT PRICE
3.1 PRICE - SYSTEM
For and in consideration of the performance of services and furnishing of labor, equipment, materials and
supplies as described in this AGREEMENT and its EXHIBITS, the COOPERATIVE agrees to pay to
MOTOROLA, as set forth in this Article 3, an amount not to exceed $10,351,666.00, as set fort in the
Equipment List and Pricing Article of the SOW. Each City's obligation to pay will be limited to its pro
rata share of the total contract price. If any equipment, materials, components, tasks, labor, or services
which are reasonably necessary to complete the SYSTEM or enable it to function and perform as
3/17/00 12 COOPERATIVE
specified in this AGREEMENT, or in the EXHIBITS thereto, were not specifically stated in, or were
omitted from, the SOW, including without limitation the MOTOROLA Materials List, MOTOROLA
shall furnish and provide the same to the COOPERATIVE at no additional cost to the COOPERATIVE
and without any adjustment to the final completion date as set forth in the Project Implementation
Schedule.
3.2 PAYMENT Milestones
The COOPERATIVE agrees to make payments to MOTOROLA in accordance with the
following schedules:
3.2.1 Fixed Equipment
15% of the total Fixed Equipment amount, less the prorated applicable system discount, will
be due after Agreement is executed and MOTOROLA completes the Design Review;
40% of the total Fixed Equipment and associated services amount, less the prorated applicable
system discount, will be due upon successful completion of factory staging;
20% of the total Fixed Network Equipment and associated services amount, less the prorated
applicable system discount, will be due upon Equipment delivery to COOPERATIVE
specified sites;
15% of the total Fixed Network Equipment and associated services amount, less the prorated
applicable system discount, will be due immediately after the Equipment is installed at
the sites as specified by the COOPERATIVE;
10% of the total Fixed Equipment price, less the prorated applicable system discount, will be
due immediately after the date of Final System Acceptance.
For any milestones completed, MOTOROLA shall invoice up to the milestone value in an
amount equal to the completed portion. In no event shall MOTOROLA invoice more frequently
than once each month.
3.2.2 Subscriber Equipment
15% of the total Subscriber Equipment as referenced in the SOW and associated services
amount, less the prorated applicable system discount, will be due after Agreement is
executed and MOTOROLA completes the Design Review;
75% of the total Subscriber Equipment and associated services amount, less the prorated
applicable system discount, will be due upon delivery of Subscriber unit Equipment to
COOPERATIVE specified sites;
10% of the total Subscriber Equipment and associated services amount, less the prorated
applicable system discount, will be due immediately after the date of Final System
Acceptance.
3/17/00 13 COOPERATIVE
For any milestones completed, MOTOROLA shall invoice up to the milestone value in an
amount equal to the completed portion. In no event shall MOTOROLA invoice more frequently
than once each month.
3.3 Payment And Invoices
Any payments made to MOTOROLA pursuant to the Payment Schedule shall not be construed to
reduce the obligation of MOTOROLA hereunder, nor in any manner whatever waive any of the
terms, conditions, covenants, or requirements of this AGREEMENT, nor be considered a
ratification of any act on the part of MOTOROLA, or its agents or representatives, which in any
manner may contravene any of the requirements or provisions of this AGREEMENT.
MOTOROLA will submit invoices for payment upon achievement of Project Milestones as
described in the Payment Schedule. Amounts due MOTOROLA shall be paid by the
COOPERATIVE within 30 days of receipt of an approved invoice, with the exception of the
final payment which shall be paid by the COOPERATIVE within thirty (30) days, provided that
the prerequisite Project Milestones have been completed in accordance with this AGREEMENT.
Such amounts shall be deemed past due if not paid within such time. Interest penalties for late
payment of amounts due under this Agreement shall be controlled by the Florida Prompt
Payment Act, Articles 218.70 et seq., Flonda Statutes.
3/17/00 14 COOPERATIVE
Invoices for the Smartzone System Management Terminal will be invoiced to the
COOPERATIVE and shall be submitted to the following address:
City of Delray Beach
Attn: Joseph Safford, Finance Director
100 NW 1s Avenue
Delray Beach, FL 33444
Invoices for Fixed Network Equipment and Subscnber Equipment will be invoiced to the
individual cities for their own specific Subscriber Equipment and shall be submitted to the
following addresses:
City of Boca Raton
Attn: Financial Service Dept.
201 W. Palmetto Park Road
Boca Raton, FL 33432 -3795
City of Delray Beach
Attn: Joseph Safford, Finance Director
100 NW 1 Avenue
Delray Beach, FL 33444
City of Boynton Beach
Attn: Finance Dept.
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33425 -0310
3.4 Reserved
3.5 General Option for Addition or Deletion
For Fixed Equipment and for its Subscriber Equipment, MOTOROLA grants to the
COOPERATIVE the option to add or delete any item of equipment listed or any service to be
provided under this AGREEMENT subject to the following:
A. If an item of non - MOTOROLA manufactured equipment which cannot be used
elsewhere in the SYSTEM is canceled after it has been shipped, the party canceling the
item will be subject to the cancellation, restocking, or equipment return policy of the
equipment supplier.
B. If an item of MOTOROLA manufactured equipment which cannot be used elsewhere in
the SYSTEM is canceled after it has been shipped, the party canceling the item will be
required to either pay any restocking charges pursuant to MOTOROLA's restocking or
equipment return policy, or, at that party's option, to purchase that item of equipment at
the price set forth in this AGREEMENT.
3/17/00 15 COOPERATIVE
C. Options to add or cancel equipment or services shall be exercised only in writing, except
in the event of emergencies when verbal notification will be accepted by MOTOROLA
if written confirmation of the verbal notification is received from the COOPERATIVE
Project Coordinator, or an authorized designee, within 24 hours after such verbal
notification. MOTOROLA will accept all such amendments subject to the adjustment of
prices.
D. An item shall be considered to have been canceled upon notification to MOTOROLA
when applicable to MOTOROLA manufactured equipment, and upon notification by
MOTOROLA to the equipment supplier when applicable to non - MOTOROLA
manufactured equipment. MOTOROLA shall notify its suppliers immediately upon
notification by the COOPERATIVE of any such cancellation.
E. Notwithstanding any other provisions of this Article to the contrary, the
COOPERATIVE shall not be responsible for any charges, costs, or expenses for any
items of equipment or any services which are canceled as a result of any act or omission
by MOTOROLA, its employees, subcontractors, or suppliers.
F. For a period of twenty-four (24) months following contract execution, MOTOROLA will
sell to the COOPERATIVE, and to any Eligible Purchaser described in Article 3.7, any
additional item of purchased equipment, spare parts, test equipment, or services
described in the SOW, or otherwise furnished under this AGREEMENT, at the unit
prices set forth in this AGREEMENT.
3.6 Maintenance
MOTOROLA shall provide maintenance and support for the SYSTEM in accordance with the
SOW. MOTOROLA's obligation of maintenance and support shall cover the equipment
furnished by MOTOROLA and listed in this Agreement and shall be subject to the terms and
conditions of the SOW (Section 6), Exhibit C, Service Agreement and Exhibit D, Software
Subscription Agreement with the SOW (Section 6) taking precedence over Exhibits C and D.
3.7 Eligible Purchasers
Subject to Article 3.5F above, MOTOROLA grants every governmental entity which enters into
an agreement with the COOPERATIVE to use any portion of the SYSTEM and which desires to
purchase equipment to use on the SYSTEM the option to purchase the equipment as set forth in
Purchased Equipment List and Spare Parts List, provided that MOTOROLA and such
governmental entity reach agreement on the terms and conditions of such purchases. Eligible
Purchasers shall be any agency that the COOPERATIVE deems is eligible. A governmental
entity may exercise this option independently of the COOPERATIVE, upon wntten notification
by the COOPERATIVE to MOTOROLA that such governmental entity is qualified under this
Article.
3/17/00 16 COOPERATIVE
ARTICLE 4. COOPERATIVE APPROVAL OF MOTOROLA DOCUMENTS AND
SPECIFICATIONS
Notwithstanding any other provision of this AGREEMENT, approval by the COOPERATIVE of
any engineering or design documents and specifications, any other similar submittal, or any part
thereof, shall not relieve MOTOROLA of the responsibility to meet all of the requirements for
the SYSTEM as set forth in this AGREEMENT, and to correct any errors or omissions in said
documents or specifications and associated performance under this AGREEMENT.
MOTOROLA shall have no claim for additional costs resulting from any such corrections or
performance or for any delays in performance arising or resulting from such correction or
performance.
ARTICLE 5. SYSTEM PERFORMANCE AND ACCEPTANCE TESTING
5.1 SYSTEM Acceptance Test Plan and Acceptance Criteria
A SYSTEM Acceptance Test Plan ( "ATP ") contains detailed plans and procedures designed to
demonstrate the ability of the SYSTEM to meet, function, and perform in accordance with the
SOW, and the specifications and requirements contained herein. The issuance of a written notice
of final acceptance by the COOPERATIVE Project Coordinator, subject to the unanimous
approval and consent of each City, stating that the SYSTEM has satisfactonly completed the
ATP and that other requirements of this AGREEMENT have been met will be the sole criteria
for system acceptance and the date of such issuance will be the Date of Final Acceptance.
5.1.1 Use of the SYSTEM Prior to Acceptance
The COOPERATIVE agrees that it will not use the SYSTEM prior to the Date of Final
Acceptance for any purpose other than training or testing as is authorized in this AGREEMENT
without the written consent of MOTOROLA, which consent will not be unreasonably withheld.
5.1.2 Equipment and Software
Any equipment or software which does not successfully meet the requirements of the ATP or
which does not meet the requirements or specifications set forth in the SOW shall be repaired or
replaced by MOTOROLA without additional cost.
5.2 Testing Notice
Not less than fourteen (14) calendar days prior to conducting any ATP test, MOTOROLA shall
notify the COOPERATIVE Project Coordinator in writing of the date, time, and location of the
test(s) to be conducted. The COOPERATIVE Project Coordinator shall be responsible for
thereafter giving prompt notice of such test(s) to other affected COOPERATIVE personnel. Any
personnel so designated by the COOPERATIVE may be present during and may witness such
test(s).
3/17/00 17 COOPERATIVE
5.3 Test Responsibility
The conduct of all acceptance testing and all testing identified by any terminology (e.g., unit
testing, factory testing, program testing, systems testing, installation and preliminary testing,
external testing, internal testing, functional testing, and performance testing) shall be the
responsibility of MOTOROLA. All tests shall be witnessed by the COOPERATIVE Project
Coordinator, or his designee, and the resulting test data shall be attested to and signed by
MOTOROLA and the COOPERATIVE Project Coordinator. The format to be used for
recording of test program data shall be submitted to the COOPERATIVE Project Coordinator for
written approval prior to testing. The test program data from the entire ATP, once all elements
of the ATP are successfully completed, shall be presented in a single test report, certifying that
such test program data confirms that the tested elements of the SYSTEM meet the requirements
of the SOW and the performance cnteria of this AGREEMENT.
5.4 Evaluation of Acceptance Test Data
Upon completion of any test, MOTOROLA shall promptly provide the test program data to the
COOPERATIVE Project Coordinator for evaluation. MOTOROLA understands that the relevant
test data provided by MOTOROLA must be evaluated by all parties in order to determine if the
results of any such test are reliable and within acceptable limits; therefore, MOTOROLA agrees
that the evaluation shall constitute an integral part of any such test. Within 30 calendar days
after delivery of the test program data, the COOPERATIVE Project Coordinator shall provide a
written report to MOTOROLA setting forth the results of the evaluation. Such written report
shall either accept or reject the applicable test program data and shall state whether or not the test
conforms to the requirements of the ATP and this AGREEMENT. If the COOPERATIVE
Project Coordinator reasonably rejects the test program data or determines that the test results do
not conform to the requirements of the ATP or this AGREEMENT, the evaluation report shall
indicate the basis for said findings and descnbe all deficiencies. MOTOROLA shall then have
forty-five (45) calendar days to correct the deficiencies noted in such report, at which time the
test(s) will be rescheduled. The final acceptance of the test results and further testing, at the
COOPERATIVE's discretion, may be held in abeyance until all deficiencies and nonconforming
items have been corrected by MOTOROLA, at its sole cost and expense, and accepted by the
COOPERATIVE Project Coordinator. When the COOPERATIVE Project Coordinator
determines that all tests have been successfully completed, then the COOPERATIVE Project
Coordinator shall provide MOTOROLA with a written "Notice of Successful Completion" to
evidence the COOPERATIVE's final acceptance of all of the tests and test data.
If MOTOROLA requires additional communications sites either to supplement the
Communications Sites identified in the SOW or to replace any of those Sites, MOTOROLA will
cooperate with the COOPERATIVE in their acquisition of such additional sites; provided,
however, that MOTOROLA shall be solely responsible for all costs and expenses relating in any
way to such additional equipment. MOTOROLA shall also pay for modifications to all licenses,
including but not limited to Federal Communications Commission and Federal Aviation
Administration licenses.
3/17/00 18 COOPERATIVE
5.5 Test Documentation
Test documentation of a pass /fail to previously specified cnteria will be mutually established by
MOTOROLA and the Project Coordinator pnor to the test.
ARTICLE 6. INSTALLATION OF SYSTEM
6.1 Installation
MOTOROLA shall furnish all labor required for unpacking and placing the delivered equipment,
hardware and software in the appropriate locations at the Communications Sites. The
equipment, hardware, and software delivered under this AGREEMENT shall be installed by
MOTOROLA at their final delivery locations in accordance with the SOW.
6.2 Facilities
The COOPERATIVE will not be obligated to receive or to provide storage space for equipment,
materials, or supplies pnor to the applicable delivery dates set forth in the Project
Implementation Schedule or such other dates as may be agreed in writing by the
COOPERATIVE Project Coordinator. MOTOROLA acknowledges that access to some sites
and facilities may be restricted by the COOPERATIVE; therefore, MOTOROLA agrees to
cooperate fully with all reasonable access requirements for delivery, installation and testing of
the SYSTEM.
6.3 Standard of Work
MOTOROLA shall perform all services required pursuant to this AGREEMENT, including but
not limited to the installation of the SYSTEM, as provided in this AGREEMENT and in
accordance with MOTOROLA's R -56 FNE Installations Quality Standards as part of this
AGREEMENT. In the event that MOTOROLA, in its reasonable judgment, determines that a
particular practice or procedure is inappropriate in a particular situation, MOTOROLA may
follow whatever practice or procedure it deems appropriate, provided that such practice or
procedure shall reflect good workmanship and judgment and be at least that of the standard
observed by a competent provider of services in the business in which MOTOROLA is engaged.
MOTOROLA agrees to notify the COOPERATIVE Project Coordinator of any such changed
practices or procedures prior to implementation, if practicable, or if not, as soon thereafter as is
practicable.
6.4 Documentation
MOTOROLA shall deliver to the COOPERATIVE all documentation related to the SYSTEM,
including without limitation all appropriate system manuals, equipment manuals, hardware
manuals, and software manuals, as provided in the SOW and in the Implementation Schedule.
6.5 Training
MOTOROLA will provide training related to the SYSTEM as provided in the SOW and in the
Project Implementation Schedule. MOTOROLA will provide training for any other equipment,
hardware, and software as requested by the COOPERATIVE at its then current paces. The
3/17/00 19 COOPERATIVE
COOPERATIVE agrees to give MOTOROLA five (5) business days' notice for the cancellation
of any scheduled training classes.
ARTICLE 7. WARRANTIES AND MAINTENANCE
7.1 SYSTEM, Equipment and Software Warranties
7.1.1 SYSTEM Warranty
MOTOROLA represents and warrants that all equipment, hardware, other products are new, and
software delivered to the COOPERATIVE under this AGREEMENT conform to the
specifications and requirements set forth in this AGREEMENT. MOTOROLA further warrants
that the equipment, hardware, other products, and software will perform and interact, together
and with all other COOPERATIVE systems as specified in Exhibit A, MOTOROLA SOW, in
accordance with the specifications set forth in the SOW and this AGREEMENT. MOTOROLA
further represents and warrants that all work performed, services rendered, and structures, of any
kind, installed, erected, or constructed under this AGREEMENT will conform to the
requirements of this AGREEMENT; will be free from defects in workmanship, equipment, and
material; and will be performed m accordance with generally accepted professional standards
and in compliance with all applicable laws and regulations.
7.1.2 Equipment and Installation Warranty
All equipment, materials, and services provided, furnished, or performed by MOTOROLA or its
subcontractors are warranted by MOTOROLA to meet the requirements of the SOW and to be
free from any defects in design, materials, workmanship, and labor for a period of one (1) year
from the Date of Final Acceptance. The labor to replace defective parts and to repair defective
equipment will be provided for one year from the Date of Final Acceptance.
The warranty is void if:
A. The product was used in other than its normal and customary manner.
B. The product has been subject to misuse, accident, neglect, or damage.
C. Alterations or repairs not performed or authorized by MOTOROLA have been made to
the product, or unauthorized parts have been used in the equipment.
In order to obtain performance of this warranty, the COOPERATIVE, as appropriate in each
instance, must contact MOTOROLA'S representative or Customer Response Center at 1 -800-
247 -2346.
7.1.3 Software Warranty
Software shall be warranted in accordance with the "Software License" which is included in, and
made a part of, the SOW. Such warranty shall include, without limitation, providing the
COOPERATIVE with updates, new enhancement releases (not platform releases), and support
for all such software.
3/17/00 20 COOPERATIVE
7.2 Parts Availability Warranty
MOTOROLA warrants the full and complete availability of all SYSTEM equipment parts,
components, and service therefor for a period of seven (7) years on fixed equipment and five (5)
years on subscnber equipment following the date upon which such equipment or parts are
discontinued. MOTOROLA agrees that in the event of a breach of this warranty, MOTOROLA
shall give credit to the COOPERATIVE the difference between MOTOROLA's latest available
price for any such equipment, parts, components, or service that may be unavailable and the
costs of alternate compatible equipment, parts, components, and service.
7.3 Warranty Period
Unless otherwise specifically set forth in this AGREEMENT, upon Conditional Acceptance of
their portion of the system by each city, the warranties set forth in this Article shall commence.
Conditional Acceptance shall be defined as beneficial use of the system which may include work
to be completed on punch list items. Conditional Acceptance by each City must be approved by
each City in writing. Such punch list items shall not delay the Conditional Acceptance. The
warranty shall continue for a period of one (1) year following the Conditional Acceptance or, in
the case of equipment, parts, or components, one (1) year from the date on which such
equipment, part, or component was last replaced under this Article. Should any piece of
equipment fail three (3) times during the warranty period, MOTOROLA shall replace the piece
of equipment with a new unit. MOTOROLA shall provide the COOPERATIVE Project
Coordinator with a list indicating the description and serial number of each piece of equipment
installed. Said list shall be sent to the COOPERATIVE Project Coordinator on the date of Final
Acceptance.
7.4 Warranty of Ownership and Right to Transfer
MOTOROLA warrants that it has full power and authority to grant to the COOPERATIVE the
rights set forth in this AGREEMENT and that neither the performance of the services by
MOTOROLA nor the use by the COOPERATIVE of the SYSTEM, including without limitation
its software and documentation (including the copying thereof as provided herein), will in any
manner constitute an infringement or other violation of any copyright, trade secret, trademark,
patent, invention, proprietary information, nondisclosure, or other rights of any third party. The
COOPERATIVE understands that as part of this AGREEMENT, the COOPERATIVE may be
required to execute third party software license agreements needed to operate the Windows NT
4.0 and Unix SYSTEM applications; the COOPERATIVE's possession and use of the SYSTEM
shall be governed, however, by the provisions contained herein.
7.5 Compliance with Applicable Laws
MOTOROLA further warrants the SYSTEM, including but not limited to all software, its license
to use by the COOPERATIVE, and the performance by MOTOROLA of the services provided
hereunder, shall be in compliance with all applicable laws, rules, and regulations governing the
sale, use, installation, and maintenance of the SYSTEM or any portion or component thereof.
3/17/00 21 COOPERATIVE
7.6 Maintenance and Warranty Records
MOTOROLA shall maintain detailed records of all equipment and related hardware and software
maintenance and warranty work performed at any time by MOTOROLA or its subcontractors,
and shall provide the COOPERATIVE with copies of all such records upon completion of such
maintenance and warranty work. In no event shall MOTOROLA disclose its proprietary or
confidential cost or pacing data.
7.7 Warranty of Radio Coverage
MOTOROLA warrants that the radio coverage area for the COOPERATIVE's SYSTEM and the
quality of performance of the SYSTEM on the Date of Final Acceptance. For one (1) year
following such Date of Final Acceptance, MOTOROLA agrees to ensure that the equipment and
SYSTEM will function to the coverage levels required and as described in the SOW and
requirements of this AGREEMENT. MOTOROLA will not be responsible for coverage levels
which are diminished due to external factors beyond MOTOROLA's control. Coverage tests, as
a part of the ATP, under System Warranty provisions of Article 7.1.1 shall be conducted in
accordance with requirements of the SOW.
Successful completion of the ATP as documented by the "Notice of Successful Completion"
provided by the COOPERATIVE Project Coordinator shall constitute evidence that the
SYSTEM satisfies this warranty. If the SYSTEM fails to meet the coverage requirements
described m this Article 7.7, MOTOROLA, at its sole cost and expense, shall modify the
SYSTEM as required to meet these coverage requirements. In the event such modification is
required, MOTOROLA shall present a plan to the COOPERATIVE for the required
modifications within thirty (30) days of receiving notice of the failure of the SYSTEM to meet
such requirements.
7.8 Disclaimer of Implied Warranties
The express warranties contained in this ARTICLE are given in lieu of all other warranties,
express or implied, which are specifically excluded, including, without limitation, the implied
warranties of merchantability and fitness for a particular purpose.
7.9 Maintenance Following Warranty Period
All maintenance of the SYSTEM during the warranty period shall be performed by
MOTOROLA at no cost to the COOPERATIVE. For a period of one (1) year following the end
of the warranty period, the price for an annual maintenance contract shall be that price set forth
in the Payment Schedule. The COOPERATIVE, thereafter, will have the option of renewing the
maintenance contract on a yearly basis, at then current prices, on the same terms and conditions
as set forth in the SOW for ten (10) years following the Date of Final Acceptance.
MOTOROLA will be required to provide system and equipment/software maintenance support,
that includes parts and labor, with a response time of no more than two (2) hours for a Major
Failure of the system, and no more than four (4) hours for a Minor Failure of the system.
Response for such failures of Fixed Equipment will be provided seven days per week, twenty -
four hours per day. Response for such failures of mobile and portable units will be provided five
3/17/00 22 COOPERATIVE
days per week, 8 a.m. to 5 p.m. Software support shall include, providing the COOPERATIVE
with updates, new releases, and support for all software in accordance with the terms and
conditions of the Software Subscription Agreement, Exhibit D.
7.10 Enforcement of Warranties
The COOPERATIVE shall give written notice to MOTOROLA in accordance with Article 10 of
this AGREEMENT in the event it discovers a defect, malfunction, or failure of the SYSTEM, or
any portion thereof, to conform to the requirements of this AGREEMENT, including without
limitation the SOW and the warranties set forth in this Article 7. Upon receipt of such notice,
MOTOROLA, promptly and at its sole cost and expense, shall take all actions necessary to
remedy or cure such defect, malfunction, failure, or nonconformity. Such actions shall include,
without limitation, repair or replacement of parts, equipment, materials, supplies, structures, or
other nonconforming item(s). MOTOROLA shall be responsible for enforcing any third -party
warranties for equipment, hardware, software, materials, supplies, and services provided under
this AGREEMENT; and MOTOROLA shall be liable to the COOPERATIVE for satisfaction of
and compliance with all warranty obligations set forth in this AGREEMENT.
ARTICLE 8. PERSONNEL
8.1 MOTOROLA Personnel
The MOTOROLA key personnel to be assigned to the project will be identified prior to
commencement of installation of any equipment or components or performance of any other
work at a Communications Site. MOTOROLA shall make its best effort to retain the key
personnel for the duration of the project and continue their assignment to the project until the
Date of Final Acceptance. If it becomes necessary to change such personnel assignments,
MOTOROLA shall provide timely written notification to the COOPERATIVE regarding any
such changes. MOTOROLA shall promptly replace any key or other personnel upon the
reasonable request of the COOPERATIVE Project Coordinator. MOTOROLA shall at all times
exercise reasonable care and diligence in enforcing discipline and good order among its assigned
personnel and in ensuring that the work is executed in a timely and high quality manner.
Notwithstanding the authority of the COOPERATIVE Project Coordinator as set forth herein or
elsewhere in this AGREEMENT, MOTOROLA shall be and remain liable to the
COOPERATIVE for performance of all persons providing services, labor, material, equipment,
or other products under this AGREEMENT.
8.2 COOPERATIVE Personnel Support
A written list of the personnel assigned by the COOPERATIVE to support the project and their
assignments in that regard shall be made available to MOTOROLA within thirty (30) calendar
days after the Effective Date of this AGREEMENT. The COOPERATIVE shall make its best
effort to retain the key personnel for the duration of the project and continue their assignment to
the project until its final acceptance. If it becomes necessary to change such personnel
assignments, the COOPERATIVE Project Coordinator shall provide timely written notification
to MOTOROLA regarding any such changes.
3/17/00 23 COOPERATIVE
ARTICLE 9. COOPERATIVE REPRESENTATIVES
9.1 COOPERATIVE Project Coordinator
The COOPERATIVE will assign a Project Coordinator for all work under this AGREEMENT.
The COOPERATIVE Project Coordinator shall be generally responsible for the administration of
this AGREEMENT on behalf of the COOPERATIVE and for coordinating COOPERATIVE
performance as required by this AGREEMENT. The COOPERATIVE may change the
COOPERATIVE Project Coordinator by providing written notice to MOTOROLA in the manner
provided in Article 10. In addition, each city within the COOPERATIVE will also assign a
representative for issues directly relating to each specific city.
9.2 MOTOROLA's Project Manager
MOTOROLA shall appoint a Project Manager, who shall be approved by the COOPERATIVE,
that will have the authority to make significant decisions relevant to the project, and have direct
access to MOTOROLA's management for resolution of problems beyond the Project Manager's
immediate authority. Prior to the Date of Final Acceptance, the Project Manager shall normally
be working at the COOPERATIVE's site; however, the COOPERATIVE understands that the
Project Manager, as part of their duties for the COOPERATIVE, may be required to work in
MOTOROLA's off -site office, subcontractor's offices, or other locations related to the project.
The Project Manager shall advise the Project Coordinator of the person who is responsible for
work under this AGREEMENT and who has authority to act in his stead if he must be absent
from the COOPERATIVE's site.
ARTICLE 10. COMMUNICATIONS AND NOTICES
10.1 Communications
All notices, demands, requests, consents, and approvals either party is required or desires to give
the other shall be in writing and sent by U.S. mail (registered and postage prepaid), or by
recognized overnight courier, or by hand delivery (with signed receipt), or by facsimile
transmission (if confirmed by registered mail, recognized overnight courier, or hand delivery).
Delivery shall be deemed effective upon receipt at the addressee's office, upon personal delivery
to the addressee's office, or upon personal delivery to the addressee, whichever is applicable, so
long as receipt is subsequently confirmed. All such notices, if to the COOPERATIVE, shall be
addressed as set forth in Article 10.2, and if to MOTOROLA, shall be addressed as set forth in
Article 10.3. Either party may change its address or the person designated to receive such notice
by notifying the other party of the change and its effective date in the manner provided in this
Article 10.1.
10.2 Official COOPERATIVE Address
All written communications, except as provided in Article 3.3, pertaining to this AGREEMENT
to the COOPERATIVE shall be addressed as follows:
COOPERATIVE
City of Boca Raton
Attn.: Deputy Chief Ken Pachnek
3/17/00 24 COOPERATIVE
100 N.W. Boca Raton Blvd.
Boca Raton, FL 33432
Voice: 561- 338 -1202
Fax: 561- 338 -1315
10.3 Official MOTOROLA Address
All written communications pertaining to this AGREEMENT to MOTOROLA shall be
addressed as follows:
MOTOROLA Inc.
Attn.: Mike Bunting
5900 North Andrews Avenue, Suite 500
Fort Lauderdale, FL 33309 -2367
Voice: (954) 349 -9353
Fax: (954) 349-9453
3/17/00 25 COOPERATIVE
With a copy to:
MOTOROLA, Inc.
Attn.: Contracts and Compliance Dept.
8000 West Sunrise Boulevard, Room #1189
Plantation, FL 33322 -4497
Voice: (954) 723 -3493
Fax: (954) 723 -5858
10.4 Consultant's Address
Any party giving notice under this Article shall use its best efforts to send a copy of such notice,
via first class mail, to:
OMNICOM, Inc.
Attn.: Bob Sutphen
930 Thomasville Road, Suite 200
Tallahassee, FL 32303
Voice: 850 224 4451, Extension 17
Fax: 850 224 3059
email: rwsutphen @worldnet.att.net
ARTICLE 11. FINANCIAL REPORTS AND STATEMENTS
During the term of this AGREEMENT, MOTOROLA will provide the COOPERATIVE with
oral and wntten financial data in the form of reports and statements as indicated herein. Such
reports shall be delivered to the COOPERATIVE Project Coordinator, who will be responsible
for providing copies of such reports and statements to other staff or consultants, as necessary.
MOTOROLA will provide such information as may be reasonably requested by the
COOPERATIVE Project Coordinator, including the following:
A. Invoices for equipment and services provided to the COOPERATIVE under this
AGREEMENT. Such invoices shall be submitted in a form acceptable to the
COOPERATIVE, shall clearly distinguish between Fixed Equipment and Subscnber
Equipment (and the total price therefor), and shall show the location or Communications
Site associated with such equipment and services. Additionally, such invoices shall
contain sufficient detail to allow the COOPERATIVE Project Coordinator to verify the
cost of equipment and services included in the invoice, to verify that the services
included in the invoice have been performed, and to verify that the costs for such
equipment and services are properly categorized.
B. Periodic summaries of payments received by MOTOROLA from the COOPERATIVE
under this AGREEMENT divided into two categories: Fixed Equipment, and the
COOPERATIVE's Subscriber Equipment. Such summaries shall identify any unpaid
amounts for such categories, and shall contain sufficient detail to allow the
COOPERATIVE Project Coordinator to verify that the payments shown in the
summaries have been applied to the correct category.
3/17/00 26 COOPERATIVE
C. Projections of Milestone completion in accordance with the SOW.
D. Quotations in response to requests by the COOPERATIVE Project Coordinator and the
COOPERATIVE as related to changes in the work.
E. This Article shall not require MOTOROLA to disclose its confidential, propnetary cost
pricing data and information.
ARTICLE 12. NON - INTERFERENCE
MOTOROLA acknowledges that certain work and services being provided by MOTOROLA
under this AGREEMENT will involve its use of, or presence in, areas being used by
COOPERATIVE personnel in performance of their regularly assigned duties, and MOTOROLA
will coordinate and schedule its such activities in a manner which will minimize any interference
with the duties of such personnel. The COOPERATIVE will coordinate and schedule its
activities at COMMUNICATIONS SITES in a manner which will minimize interference of those
activities with scheduled work by MOTOROLA; provided, however, that this covenant shall not
obligate the COOPERATIVE to alter its staffing schedules related to public safety functions.
ARTICLE 13. EXCUSABLE DELAYS
A Party's timely performance of its obligations under this AGREEMENT, only to the extent it is
specifically affected thereby, shall be suspended, without forfeiture of any performance bond or
the incurring of any financial liability, when and for as long as performance of such obligations
is prevented by reason of any of the following cases: (i) acts of God, including severe weather
events, (ii) operation of law, (iii) the inability to obtain necessary permits, matenals, supplies, or
equipment by reason of appropriation or use thereof by the Local, State, or Federal Government
or by reason of regulations imposed by the Local, State, or Federal Government, (iv) any acts of
the enemies of the State of Florida or of the United State of America, (v) civil commotion, (vi)
fire and delays in transportation beyond the reasonable control of the party whose performance is
affected, (vii) any other event beyond the reasonable control of the party whose performance is
affected (including delays caused by Palm Beach County, Florida), to the extent not caused by
such party's willful or negligent acts or omissions, except in those cases where a Party could
have reasonably foreseen and reasonably avoided the occurrence. The Party affected by any
such event shall give written notice thereof to the other Party as soon as practicable after it
becomes aware of such an event and, to the extent practicable, shall specify the anticipated
length of the delay. In the event performance is suspended due to Excusable Delay, the affected
Party shall use reasonable efforts to minimize the impact of that delay on the dates for
completion of activities as reflected in the Implementation Schedule.
ARTICLE 14. CHANGES, DELETIONS OR ADDITIONS TO AGREEMENT
14.1 COOPERATIVE Change Requests
In the event that the COOPERATIVE identifies changes or deletions to the performance, work,
or tasks specified in this AGREEMENT or additional work to be performed under this
AGREEMENT, the COOPERATIVE Project Coordinator shall submit a written request for such
changes, deletions, or additions to the Project Manager. Such request shall include the nature of
3/17/00 27 COOPERATIVE
the change, deletion, or addition requested, including a brief description of any new or altered
requirements, and a description of the requested work to be changed, deleted, or added.
14.2 Change Proposal
Within thirty (30) calendar days following MOTOROLA's receipt of a request under Article
14.1, MOTOROLA shall prepare and deliver to the COOPERATIVE Project Coordinator a
written statement which shall include the following data:
A. Technical impact of the change, deletion, or addition on existing requirements and
characteristics.
B. Estimated cost of the change, deletion, or addition.
C. Estimated time schedule to incorporate the change, deletion, or addition and its impact
on the Project Implementation Schedule.
D. Impact, if any, of the change, deletion, or addition on the suppliers, vendors, or
subcontractors.
E. Impact of the change, deletion, or addition on any other part of this AGREEMENT,
including EXHIBITS, or other documents which may be affected by a request.
F. The period of time for which such statement is valid, which time shall not be less than
thirty (30) days.
If the COOPERATIVE Project Coordinator designates the change request as a "Priority,"
MOTOROLA shall respond no later than fifteen (15) calendar days after receipt of the request.
No such changes to this AGREEMENT shall become binding until the COOPERATIVE and
MOTOROLA have entered into an appropriate written amendment to this AGREEMENT,
including all affected EXHIBITS.
14.3 Change Order Notice
Upon acceptance by the COOPERATIVE Project Coordinator of MOTOROLA's written
statement for a change proposal, the COOPERATIVE Project Coordinator shall execute and
deliver a Change Order Notice to MOTOROLA, specifying the change to be made and all of the
particulars set forth in Articles 14.1 and 14.2, as agreed upon; and, subject to the provisions of
Article 14 et. al., copies of proposed amendments containing any required changes to said
pertinent AGREEMENT -and EXHIBITS shall be provided to the COOPERATIVE Project
Coordinator by MOTOROLA.
14.4 MOTOROLA Change Requests
MOTOROLA may suggest that changes be made to the scope of the work contemplated in this
AGREEMENT by submitting such suggestions to the COOPERATIVE Project Coordinator.
Such suggested changes may include, but shall not be limited to, substitutions, deletions or
additions, upgrading or enlarging SYSTEM components, or adjustment of the Project
Implementation Schedule. All such suggested changes shall be made in writing to the
3/17/00 28 COOPERATIVE
COOPERATIVE Project Coordinator and shall set forth all information required by Articles 14.2
and 14.3. No such changes to this AGREEMENT shall become binding until the
COOPERATIVE and MOTOROLA have entered into an appropriate written amendment to this
AGREEMENT, including all affected EXHIBITS.
14.5 Changes in the COOPERATIVE's Total Obligation
Notwithstanding any other provision in this AGREEMENT to the contrary, any changes or
additions thereto which will increase the SYSTEM cost or any additional costs not required by
this Agreement shall be accomplished by a written amendment to this AGREEMENT approved
by the COOPERATIVE and each City. The COOPERATIVE shall not be obligated for payment
of any such changes or additions made in violation of this Article. Should the total obligation of
the COOPERATIVE be reduced by any changes, substitutions, or deletions hereunder, the
COOPERATIVE shall be credited for such reduction, which shall be suitably defined and
detailed as to the category to which it applied upon the subsequent billing invoice to the
COOPERATIVE.
ARTICLE 15. DISPUTES
The parties shall attempt to resolve any disputes that anse under this Contract in good faith.
Disputes shall be resolved in accordance with the following procedures:
A. The aggneved party shall give wntten notice to the Project Manager or COOPERATIVE
Project Coordinator, as appropriate, setting forth the nature of the dispute, date of
occurrence (if known), and proposed equitable resolution.
B. Both the COOPERATIVE Project Coordinator and the Project Manager shall meet at the
earliest opportunity to discuss and resolve the dispute. If the dispute is resolved to the
mutual satisfaction of both, they shall report their decision to both the COOPERATIVE
and MOTOROLA in writing.
C. If the COOPERATIVE Project Coordinator and the Project Manager are unable to
reconcile the dispute, they shall report their impasse to both the COOPERATIVE and
MOTOROLA, who shall then convene a meeting at their earliest opportunity to attempt
to reconcile the dispute.
D. If the parties are not able to amicably resolve the dispute within thirty (30) days after the
initial notice thereof is received by the COOPERATIVE Project Coordinator or the
Project Manager, then the parties can pursue any other forms of relief that may be
available to them under this AGREEMENT, at law, or in equity.
ARTICLE 16. TERMINATION
16.1 The COOPERATIVE's Right to Terminate
A. If MOTOROLA fails to provide an operational SYSTEM in accordance with the SOW;
or fails to make delivery or complete the installation of such SYSTEM and all other
performance as required under this AGREEMENT in a timely manner, unless such
3/17/00 29 COOPERATIVE
failure has been caused by an Excusable Delay as defined in ARTICLE 13; or fails to
fulfill any other of its obligations, through no fault of the COOPERATIVE, such failure
shall be considered a default and shall entitle, but not obligate, the COOPERATIVE to
suspend performance under or to terminate this AGREEMENT, in whole or in part at the
COOPERATIVE's discretion, if MOTOROLA fails to cure such default within thirty
(30) days, or as mutually agreed, after receipt of a written notice thereof from the
COOPERATIVE. The COOPERATIVE shall be entitled to continue using the System if
the COOPERATIVE has terminated all or a part of the AGREEMENT; provided that the
COOPERATIVE has paid MOTOROLA for each milestone fulfilled and any equipment
and services retained or satisfactorily provided to the date of notice to terminate..
B. The COOPERATIVE also shall have the right to terminate this AGREEMENT, in whole
or in part, without MOTOROLA being in default thereunder. In the event that the
COOPERATIVE chooses to so terminate all or part of this AGREEMENT, the
COOPERATIVE shall provide MOTOROLA with written notice thereof, and
MOTOROLA shall, upon receipt of such notice, comply with such notice and minimize
termination costs. The COOPERATIVE shall be liable to MOTOROLA for each
milestone fulfilled and any equipment and services retained or satisfactorily provided to
the date of notice to terminate and for reasonable costs incurred by MOTOROLA in the
termination of subcontracts, removal of installation and test equipment, and other costs
directly related to such termination.
16.2 Notification of Termination
Any such termination shall be effected by delivery to MOTOROLA of a written Notice of
Termination specifying whether termination is for the default of MOTOROLA or for the
COOPERATIVE's convenience, the extent to which work under this AGREEMENT is to be
terminated, and the date upon which such termination becomes effective. If the Notice of
Termination is given for default and MOTOROLA believes that its failure to perform is due to
excusable delays, MOTOROLA shall give the COOPERATIVE written notice of the basis for its
belief prior to the expiration of the cure period as authorized in this AGREEMENT. The
COOPERATIVE shall review MOTOROLA's submission and advise MOTOROLA accordingly.
If the COOPERATIVE disagrees with MOTOROLA's belief and it is later determined by the
COOPERATIVE or a court of competent jurisdiction that MOTOROLA's failure to perform is
due to causes specified in the provisions of ARTICLE 13, Excusable Delays, the Notice of
Termination shall be deemed to have been issued at the convenience of the COOPERATIVE and
the rights and obligations of the parties hereto shall in such event be governed accordingly.
16.3 Effect of Termination Notification
After receipt of a Notice of Termination, and except as otherwise directed by the
COOPERATIVE Project Coordinator in writing, MOTOROLA shall stop work under this
AGREEMENT on the date and to the extent specified in the Notice of Termination.
MOTOROLA shall place no further orders or subcontracts for materials, services, or facilities
except as may be necessary for completion of such portion of the work under this AGREEMENT
as is not terminated. MOTOROLA shall terminate all orders and subcontracts to the extent that
they relate to the performance of work terminated by the Notice of Termination.
3/17/00 30 COOPERATIVE
A. MOTOROLA shall be paid for items it delivers hereunder. MOTOROLA and the
COOPERATIVE shall work together in good faith to determine and agree upon the
whole or any part of the amount or amounts to be paid to MOTOROLA by reason of the
total or partial termination of work pursuant to this Article.
B. MOTOROLA shall complete performance of such part of the work as shall not have
been terminated by the Notice of Termination. MOTOROLA shall take such action as
may be necessary, or as the COOPERATIVE Project Coordinator may direct, for the
protection and preservation of all equipment, materials, and other property related to this
AGREEMENT which are in the possession of MOTOROLA and in which the
COOPERATIVE has or may acquire an interest.
C. MOTOROLA shall proceed immediately with the performance of the obligations
specified in Article 16.3, notwithstanding any delay in determining or adjusting the
prices and compensation due MOTOROLA under this AGREEMENT.
16.4 Invoicing of Non - Default Termination Expenses
After receipt of a Notice of Termination for the COOPERATIVE's convenience, MOTOROLA
shall submit to the COOPERATIVE its invoices for its termination expenses by categories
(Fixed Equipment and the COOPERATIVE's Subscriber Equipment) and m sufficient detail to
allow the COOPERATIVE Project Coordinator to verify that such non - default termination costs
are properly categorized and payable under this AGREEMENT. Such invoices shall be
submitted promptly, but in no event later than ninety (90) calendar days after the effective date
of termination, unless one or more extensions in writing are granted by the COOPERATIVE
Project Coordinator upon good cause shown by MOTOROLA in writing within such period or
any authorized extension thereof.
16.5 Failure to Agree on Cost
If MOTOROLA and the COOPERATIVE fail to agree in whole or in part, as provided in this
Article 16.5, as to the amounts to be paid to MOTOROLA in connection with the termination of
work for the convenience of the COOPERATIVE, MOTOROLA shall, nevertheless, be entitled
to payment for the following:
A. Each milestone fulfilled and all amounts and expenses incurred by MOTOROLA in the
performance of the work on this AGREEMENT prior to effective date of said
termination not previously paid to MOTOROLA, and such additional amounts as may be
incurred out of necessity within a reasonable time thereafter with the written approval of
or as directed by the COOPERATIVE Project Coordinator; provided, however, that
MOTOROLA shall proceed as rapidly as practicable to discontinue all additional costs
related to the terminated portions of this AGREEMENT.
B. So far as not included under Article 16.5(A), the costs of settling and paying claims
arising out of the termination of work under subcontracts or orders, as provided in
Article 16.3, which are related to the terminated portion of this AGREEMENT.
3/17/00 31 COOPERATIVE
C. The reasonable costs of settlement, including accounting, legal, clencal, and other
expenses reasonably necessary for the preparation of the invoices for termination
expenses and supporting data for the termination and settlement of subcontracts
hereunder, together with reasonable storage, transportation, and other costs incurred in
connection with the protection or disposition of termination inventory.
16.6 Disputes Regarding Convenience Termination Costs
If MOTOROLA and the COOPERATIVE are unable to reach AGREEMENT on the amount due
MOTOROLA for reasonable termination costs in the event of a partial or total termination of the
work under the AGREEMENT for the convenience of the COOPERATIVE, such dispute shall,
at either party's request, be resolved in accordance with ARTICLE 15 of this AGREEMENT.
16.7 Deductions from Agreed To Costs
In arriving at the amount due MOTOROLA under this ARTICLE 16 there shall be deducted:
A. All payments theretofore made to MOTOROLA applicable to the terminated portion of
this AGREEMENT.
B. Any amount due the COOPERATIVE from MOTOROLA in connection with this
AGREEMENT.
C. The Agreed price for, or the proceeds of sale of, any materials, supplies or other things
acquired by MOTOROLA and sold pursuant to the provisions of this ARTICLE and not
otherwise recovered by or credited to the COOPERATIVE.
16.8 Removal of SYSTEM and Recovery of Payments
Notwithstanding any other provision of this AGREEMENT unless specifically referenced in this
Article 16.8, the COOPERATIVE shall have the right, upon termination by reason of
MOTOROLA's material breach of this AGREEMENT and failure to timely cure, to require
MOTOROLA to remove all equipment and other components of the SYSTEM and recover from
MOTOROLA all sums paid by the COOPERATIVE to MOTOROLA under this AGREEMENT.
Should the COOPERATIVE elect such a remedy, the COOPERATIVE Project Coordinator shall
so notify the Project Manager, and MOTOROLA shall refund all sums paid by the
COOPERATIVE under this AGREEMENT within sixty (60) days following receipt of such
notice. Upon receiving such notice, MOTOROLA, at its sole cost and expense, shall promptly
proceed to remove all equipment and components of the SYSTEM, without harm or damage to
any property of the COOPERATIVE, and to restore all real property and structures of the
COOPERATIVE affected by such removal to their prior condition; and shall diligently pursue
such removal, repair, and restoration until completed to the satisfaction of the COOPERATIVE.
Should MOTOROLA fail to commence and complete such removal, repair, and restoration
within ninety (90) days following the receipt of such notice, the COOPERATIVE shall have the
option, without liability for any damage which may occur to the SYSTEM, to remove such
equipment and components, or cause the same to be removed, and MOTOROLA shall pay to the
COOPERATIVE all costs and expenses incurred as a result of, or related to, such removal
(including without limitation return of all removed equipment, components, and materials to
3/17/00 32 COOPERATIVE
MOTOROLA), repair, and restoration. This Article 16.8 shall not supercede the obligations or
rights provided in the dispute resolution process set forth in Article 15; however, Article 15 shall
not be interpreted, nor is it intended, to condition the performance of obligations or assertion of
rights set forth in this Article on either the initiation, completion, or other resolution of any relief
at law or in equity that may be available to or pursued by MOTOROLA.
ARTICLE 17. LIABILITY
17.1 Indemnification
MOTOROLA shall indemnify, protect, defend and hold harmless the COOPERATIVE and the
Cities which comprise the COOPERATIVE, their agents, officials, and employees, from and
against any and all claims, demands, actions at law and in equity, liabilities, costs, and expenses,
including without limitation court awarded costs and attorney's fees, that may hereafter at any
time be asserted against or incurred by the COOPERATIVE and which arise from or are in any
way related to loss of life, personal injury, or damage to property resulting from the willful
misconduct or alleged or actual negligent acts or omissions of MOTOROLA, its agents,
employees, or subcontractors. The COOPERATIVE agrees to notify MOTOROLA as soon as
practical of any such claim, demand, or cause of action for which the COOPERATIVE will
request indemnification from MOTOROLA. If, by agreement between the Parties,
MOTOROLA undertakes, at its sole expense, the defense of any such claim, demand, or cause of
action, the COOPERATIVE shall cooperate with MOTOROLA in regard to its defense of the
same. This indemnification shall survive the expiration and termination of this Agreement.
17.2 Indemnification Regarding Patent Rights, Copyrights, Proprietary Data and Trade Secrets
PATENT AND COPYRIGHT INFRINGEMENT. Motorola will defend, at its own expense, any
suit brought against the COOPERATIVE 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 COOPERATIVE in any such suit which
are attnbutable to any such claim, but such defense and payments are conditioned on the
following: i) Motorola must be notified promptly in writing by COOPERATIVE 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, without a commitment by the COOPERATIVE to admit
wrongdoing; 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, COOPERATIVE will permit Motorola, at its option and expense, either to procure for
COOPERATIVE 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 COOPERATIVE a credit for the
Equipment or Motorola Software as depreciated and accept its return. The depreciation amount
will be based upon generally accepted accounting standards for such Equipment and Software.
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
3/17/00 33 COOPERATIVE
Software or any parts thereof. This indemnification shall survive the expiration and termination
of this Agreement.
17.3 Liquidated Damages
MOTOROLA agrees to complete the SYSTEM on or before the final completion date set forth in
the approved Implementation Schedule or as allowed in Article 2.3.4. MOTOROLA and the
COOPERATIVE agree that timely completion of the SYSTEM is of critical importance to the
COOPERATIVE, that the COOPERATIVE will suffer damages if the SYSTEM is not
completed by such date, and further acknowledge that such damages will be difficult, if not
impossible, to calculate. In the event MOTOROLA fails to complete the SYSTEM on or before
such final completion date, MOTOROLA shall pay to the COOPERATIVE, as liquidated
damages and not as a penalty, the amount of $500 per day for every day the SYSTEM remains
incomplete beyond such final completion date, beginning with the day subsequent to the final
completion date. MOTOROLA shall not be liable if failure to perform arises out of causes
beyond the control and without the fault or negligence of MOTOROLA or for delays described
in ARTICLE 13, Excusable Delays, and further provided that MOTOROLA's liability for
liquidated damages under this ARTICLE shall not exceed two (2 %) percent of the Contract
Price , as awarded.
17.4 Limitation of Liability
Neither MOTOROLA nor its subcontractors or its suppliers will be liable for any claims, actions,
suits, proceedings, costs, expenses, damages, or liabilities arising solely out of any negligent act
or omission of the COOPERATIVE, unless otherwise specifically provided in this
AGREEMENT. The provisions of this ARTICLE 17.4, Limitation of Liability, shall apply
notwithstanding any other provisions of the AGREEMENT. The provisions of this ARTICLE
17.4, Limitation of Liability, shall survive the expiration or termination of this AGREEMENT.
In no event shall MOTOROLA or the COOPERATIVE be liable for any incidental, special, or
consequential damages. Except for damages related to personal injury, death directly caused by
MOTOROLA, its employees or subcontractors, MOTOROLA's total liability under this
AGREEMENT shall be limited to the contract price as set forth in Article 3 of this
AGREEMENT.
ARTICLE 18. BONDS
18.1 Performance and Payment Bond
Within seven (7) calendar days after the Effective Date, MOTOROLA shall deliver to the
COOPERATIVE a Performance and Payment bond, to secure the faithful performance by
MOTOROLA of all the terms, covenants, and conditions of this AGREEMENT and the prompt
payment, by MOTOROLA, of amounts due all persons supplying labor, services, equipment, or
material used in the prosecution of the work to be performed under this AGREEMENT and any
and all duly authorized modifications thereof. Such bond shall be issued by a surety and provided
on a form acceptable to the COOPERATIVE, and shall be issued in an amount equal to one
hundred (100 %) of the Contract Price specified in Article 3.1, without any deduction therefrom.
3/17/00 34 COOPERATIVE
ARTICLE 19. INCORPORATION OF SOW AND DEFINITIONS
19.1 Incorporation of EXHIBITS
The SOW, which is attached to this AGREEMENT as EXHIBIT "A ", is hereby incorporated into
and made a part of this AGREEMENT wherever referred to in the text as though, and all
materials and documents contained therein, were set forth at length. Any reference to the
"AGREEMENT" in these documents includes this document and all Exhibits. The effect,
significance and applicability of the vanous documents or Articles thereof are as specified in
those portions of the AGREEMENT which make specific reference to them. The term
"AGREEMENT ", whenever used, shall include said EXHIBIT.
19.2 Glossary
Fixed Network Equipment System equipment such as base stations and equipment
located at the Communications Sites
Communications Site A location at which, or a building within which, any portion
of the SYSTEM is to be constructed or installed.
Date of Final Acceptance Date specified by the COOPERATIVE in its notice of final
acceptance which advises MOTOROLA that installation and
construction of the SYSTEM has been completed in
accordance with the SOW and by which the
COOPERATIVE accepts the SYSTEM.
Subscriber Equipment Equipment used as a part of the SYSTEM located in
vehicles, such as mobile radios or portable radios, and
equipment located at the COOPERATIVE's Police and/or
Fire Departments, or at authorized local government offices.
Major System Malfunction A failure in which the entire SYSTEM is out of service or in
which functionality of the SYSTEM is degraded to the point
that the SYSTEM is not substantially providing the level of
coverage or usage required.
Minor System Malfunction A failure in which some features of the SYSTEM are
inoperative, but which does not render the entire SYSTEM
unusable or significantly degrade its performance.
ARTICLE 20. ORDER OF PRECEDENCE BETWEEN AGREEMENT AND EXHIBITS
In the event of an inconsistency between any of the provisions of this AGREEMENT and the
EXHIBITS hereto, the inconsistency shall be resolved by giving precedence in the following
order:
A. ARTICLES of this AGREEMENT
3/17/00 35 COOPERATIVE
B. Exhibit A, MOTOROLA'S SOW (SOW) dated March 10, 2000, including the Project
Implementation Schedule
C. Exhibit B, SOFTWARE LICENSE AGREEMENT
D. Exhibit C, SERVICE AGREEMENT
E. Exhibit D, SOFTWARE SUBSCRIPTION AGREEMENT
ARTICLE 21. GENERAL PROVISIONS
21.1 Construction of Provisions and Titles Herein
All titles or subtitles appeanng herein have been inserted for convenience, and shall not be
deemed to affect the meaning or construction of any of the terms or provisions hereof. The
language of this AGREEMENT shall be construed according to its fair meaning, not strictly for
or against the COOPERATIVE or MOTOROLA, and not against either party as its drafter since
both parties agree they had an equal hand in drafting this AGREEMENT. The singular shall
include the plural; use of the feminine, masculine, or neuter genders shall be deemed to include
the genders not used.
21.2 Number of Originals
The number of original texts of this AGREEMENT shall be equal to the number of the parties
hereto, one text being retained by each party plus one copy to OMNICOM.
21.3 Severability
If any portion of this AGREEMENT or any EXHIBITS, or portion thereof is held to be invalid
by a court of law such provision shall be considered severable, and the remainder of this
AGREEMENT or any provision hereof shall not be affected.
21.4 Interpretation, Enforcement, and Venue
This AGREEMENT shall be enforced and interpreted under the laws of the State of Florida. All
suits relating to breach, enforcement, or construction of this AGREEMENT, including without
limitation the SOW and the Software Licenses, shall be filed in a court of competent jurisdiction
in Palm Beach County, Florida.
21.5 Effective Date
This AGREEMENT shall be effective when all of the following events have occurred:
A. This AGREEMENT has been signed on behalf of MOTOROLA by the person or persons
authorized to bind MOTOROLA; and
This AGREEMENT has been signed on behalf of the COOPERATIVE by the person or persons
authonzed to bind the COOPERATIVE following approval of the AGREEMENT by the
COOPERATIVE, or ten days after the approval by the City of Boca Raton Council, whichever is later.
3/17/00 36 COOPERATIVE
21.6 Integrated Agreement
This AGREEMENT sets forth all of the rights and duties of the parties with respect to the subject
matter hereof, and replaces any and all previous AGREEMENTS or understandings, whether
written or oral, relating thereto. This AGREEMENT may be amended only as provided in
Article 21.7.
21.7 Amendment
All amendments hereto shall be in writing and signed by the persons authonzed to bind the
parties thereto. The COOPERATIVE Project Coordinator shall be responsible for processing all
proposed amendments to the AGREEMENT for signature by the COOPERATIVE and each
City.
21.8 Breach
If any party fails to perform, in whole or in part, any promise, covenant, or agreement set forth
herein, or should any representation made by any party be untrue, the aggrieved party, in
accordance with the terms of this AGREEMENT, may avail itself of all rights and remedies, at
law or equity, in the courts of law.
21.9 Independent Contractor
MOTOROLA is acting hereunder as an independent contractor and not as an agent or employee
of the COOPERATIVE. MOTOROLA shall not represent or otherwise hold out itself to be an
agent or employee of the COOPERATIVE.
21.10 Prohibition Against Assignment or Delegation
MOTOROLA may not, unless it has first obtained the written permission of the
COOPERATIVE:
A. Assign or otherwise alienate any of its rights hereunder, including the right to payment.
Motorola may assign its receivable to a third party provided that the assignment does not
bankrupt or impair Motorola's financial wherewithal to complete this project.
B. Delegate, subcontract, or otherwise transfer any of its duties hereunder.
21.11 Permits
With the exception of licenses or permits required by the Federal Communications Commission
or the Federal Aviation Administration, MOTOROLA shall obtain, at its sole cost and expense
(if any), all permits and licenses for local site construction. All other permits and licenses that
are required for the performance of work under this AGREEMENT, shall be the responsibility of
the COOPERATIVE
3/17/00 37 COOPERATIVE
21.12 Nondiscrimination and Affirmative Action
MOTOROLA shall comply with the applicable nondiscrimination and affirmative action
provisions of the laws of the United States of America and the State of Flonda. In performing
this AGREEMENT. MOTOROLA acknowledges that it is the policy of the COOPERATIVE to
encourage the participation by businesses owned and controlled by minonty and ethnic groups
and women (MWBE) and local businesses owned and controlled by minonty and ethnic groups
and women (LMWBE) in the procurement of goods and services. This participation can take the
form of purchasing contracts, subcontracts, joint ventures, or similar arrangements.
21.13 Claims for Labor and Materials
MOTOROLA shall promptly pay when due all amounts payable for labor and materials
furnished in the performance of this AGREEMENT so as to prevent any lien or other claim
under any provision of law from arising against any COOPERATIVE property (including
reports, documents, and other tangible matter produced by MOTOROLA hereunder), against
MOTOROLA's rights to payments hereunder, or against the COOPERATIVE, and shall pay all
amounts under the Unemployment Insurance Act with respect to such labor.
21.14 Insurance
21.14.1 Certificate
The Insurance Certificate must read as follows: Cancellation "Should any of the above described
coverage be canceled before the expiration date thereof, the issuing company will endeavor to
mail 30 days written notice to the certificate holder named to the left."
21.14.2 Insurer Requirements
All insurance coverage shall be placed with companies who are either licensed by the State of
Florida or admitted as a surplus lines carrier by the state. All companies shall have at least a B+
rating by A.M. Best or other recognized rating agency.
21.14.3 Required Coverage
MOTOROLA will file proof of insurance in the following amounts prior to commencement of
work:
A. Workers' Compensation and Employers Liability Insurance - Workers' Compensation
statutory limits.as required by Chapter 440, Flonda Statutes. This policy should include
Employers' Liability Coverage for $1,000,000 per accident.
B. Commercial General Liability Insurance - $1,000,000 limit per occurrence for property
damage and bodily injury. The insurance shall include coverage for the following:
1. Premise /Operations
2. Explosion, Collapse and Underground Property Damage Hazard (only when
applicable to the project)
3/17/00 38 COOPERATIVE
3. Products /Completed Operations
4. Contractual
5. Independent Contractors
6. Broad Form Property Damage
7. Personal Injury
C. Business Automobile Liability Insurance - $1,000,000 limit per accident for property
damage and personal injury regarding all of the following:
1. Owned/Leased Autos
2. Non -owned Autos
3. Hired Autos
21.14.4 Other Requirements
In addition to other requirements set forth in this Article 21.13, insurance coverage must meet
the following requirements, as applicable:
A. Commercial General Liability and Automobile Liability Coverage
1. The COOPERATIVE, members of its COOPERATIVE Commission, boards,
commissions and committees, officers, agents, employees and volunteers are to
be covered as additional insureds as respects: liability ansing out of activities
performed by or on behalf of MOTOROLA; products and completed operations
of MOTOROLA; premises owned, leased or used by MOTOROLA or premises
on which MOTOROLA is performing services on behalf of the
COOPERATIVE. The coverage shall contain no special limitations on the scope
of protection afforded to the COOPERATIVE, members of the COOPERATIVE
Commission, boards, commissions and committees, officers, agents, employees
and volunteers.
2. Insurance coverage shall be primary insurance as respects the COOPERATIVE,
members of its COOPERATIVE Commission, boards, commissions and
commitjees, officers, agents, employees and volunteers. Any insurance or self -
insurance maintained by the COOPERATIVE, members of its COOPERATIVE
Commission, boards, and committees, officers, agents, employees and
volunteers shall be excess of Contractor's insurance and shall not contnbute with
it.
3. Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the COOPERATIVE, members of its Commission, boards,
committees, officers, agents, employees and volunteers.
3/17/00 39 COOPERATIVE
4. Coverage shall state that the insurance shall apply separately to each insured
against whom a claim is made or suit is brought, except with respect to the limits
of the insurer's liability.
B. Workers' Compensation and Employers' Liability and Property Coverage
The insurer shall agree to waive all rights of subrogation against the COOPERATIVE,
member of its COOPERATIVE Commission, boards, commissions and committees,
officers, agents, employees and volunteers for losses arising from activities and
operations of Contractor in the performance of services under this Agreement.
C. All Coverage
1. The Certificate of Insurance required by this Article 21.13 shall be endorsed to
state that coverage shall not be suspended, voided, canceled, reduced in coverage
or in limits except after thirty (30) days prior written notice has been given to the
COOPERATIVE.
2. If MOTOROLA, for any reason, fails to maintain insurance coverage which is
required pursuant to this Agreement, the same shall be deemed a material breach
of contract. The COOPERATIVE, at its sole option, may terminate this
Agreement and obtain damages from MOTOROLA resulting from said breach.
Alternatively, the COOPERATIVE may purchase such required insurance
coverage (but has no special obligation to do so), and upon notice to
MOTOROLA and MOTOROLA's opportunity to cure, the COOPERATIVE
may deduct from sums due to MOTOROLA any premium costs advanced by the
COOPERATIVE for such insurance.
D. Verification of Coverage
Contractor shall furnish the COOPERATIVE with a Certificate of Insurance with
endorsements affecting coverage required by this clause. The Certificate and
endorsements are to be signed by a person authorized by that insurer to bind coverage
on its behalf The Certificate with endorsements is to be received and approved by the
COOPERATIVE before work commences.
E. Subcontractors
MOTOROLA shall include each of its subcontractors as insureds under the Certificate
of Insurance required herein.
21.14.5 Failure to Procure Insurance
MOTOROLA's failure to procure and maintain the required insurance dunng the entire term of
this AGREEMENT shall constitute a material breach of this AGREEMENT, under which the
COOPERATIVE may immediately terminate this AGREEMENT or, at its discretion and after
written notice to MOTOROLA, procure or renew such insurance to protect the
3/17/00 40 COOPERATIVE
COOPERATIVE's interests and pay any and all premiums in connection therewith, and recover
all monies so paid from MOTOROLA.
21.15 Consent
Whenever consent or approval of either party is required, that party shall not unreasonably
withhold or delay the granting of such consent or approval.
Whenever consent or approval is required of the COOPERATIVE, each City is required to make
a decision for approval at the next available Council meeting of each City.
21.16 Survival
The obligations of the parties which, by their nature, continue beyond the term of this
AGREEMENT, will survive the termination of this AGREEMENT.
21.17 Waivers
No waiver by either party of any provisions of this AGREEMENT shall be deemed to be a
waiver of any other provision hereof or of any subsequent breach by either party of the same or
any other provisions. Any waivers hereunder must be in writing and signed by the waiving
party.
21.18 Time of Essence
Time is of the essence as to each provision of this AGREEMENT which specifies a time within
which performance is to occur. In the absence of any specific time for performance,
performance shall be completed within a reasonable time.
21.19 Promotional Tours
To protect the privacy, operational effectiveness, and integrity of the COOPERATIVE's use of
the SYSTEM, MOTOROLA will refrain from arranging or encouraging promotional publicity or
other visits or telephone calls to the COOPERATIVE except as specifically approved in advance
by the COOPERATIVE Project Coordinator.
21.20 Product Substitutions
i During the performance of this project, it is understood that MOTOROLA may, in accordance
with Article 14.4 and with the written consent of the COOPERATIVE Project Coordinator and
the COOPERATIVE, implement changes in the products set forth in this AGREEMENT, or
substitute products of more recent design; provided, however, that any such changes,
modifications, or substitutions, under normal and proper use, shall not adversely affect physical
or functional interchangeability or performance of the SYSTEM, its components, or any other
equipment or systems, except where there is written AGREEMENT between the parties that
specific characteristics will be so affected.
3/17/00 41 COOPERATIVE
21.21 Non- Interference
MOTOROLA acknowledges that certain work and services being provided by MOTOROLA
under this Agreement will involve its use of, or presence in, areas being used by
COOPERATIVE personnel in performance of their regularly assigned duties, and MOTOROLA
will coordinate and schedule such activities in a manner which will minimize any interference
with the duties of such personnel.
21.22 Copyright of Proprietary Data Notices
The COOPERATIVE shall affix copyright or proprietary data notices, as provided by
MOTOROLA, where necessary or proper in accordance with MOTOROLA's direction. The
COOPERATIVE further agrees to reproduce and include said copyright or proprietary data
notices on any copies, in whole or in part, in any reasonable form, for the SYSTEM as such
notices may be requested in the future by MOTOROLA.
21.23 Confidentiality of Information
The COOPERATIVE and MOTOROLA acknowledge that the COOPERATIVE is a
governmental entity subject to the Florida Public Records Law (Chapter 119, Florida Statutes).
The Parties further acknowledge that some, or all, of the information, materials, or documents
provided to the COOPERATIVE by MOTOROLA may be "public records" and, as such, may be
subject to disclosure to, and copying by, the public unless otherwise specifically exempt by
statute. Should MOTOROLA provide the COOPERATIVE with any materials which contain
information which would be exempt from disclosure and/or copying under Florida law,
MOTOROLA shall indicate this by typing or printing, in bold letters, the phrase "Proprietary
Information" on the face of each affected page of such material and shall submit to the
COOPERATIVE both complete and a redacted copy of each affected page. Should any person
request to examine or copy any material so designated, the COOPERATIVE will produce for
that person only the redacted copy of the affected page. If the person requests to examine and/or
copy the complete copy of the affected page, the COOPERATIVE shall notify MOTOROLA of
that request, and MOTOROLA, within thirty-six (36) hours of receiving such notification, shall
either permit or refuse to permit such disclosure and/or copying. If MOTOROLA refuses to
permit disclosure and/or copying, MOTOROLA shall hold harmless and indemnify the
COOPERATIVE for all expenses, costs, damages, and penalties of any kind whatsoever which
may be incurred by the COOPERATIVE and/or assessed or awarded against the
COOPERATIVE and in favor of the person making such request, in regard to the
COOPERATIVE's refusal to permit disclosure and/or copying of such material. If litigation is
filed in relation to such request and MOTOROLA is not initially named as a party, MOTOROLA
shall promptly seek to intervene as a defendant in such litigation to defend it claim regarding the
confidentiality of such material. This provision shall take precedence over the confidentiality
provisions of all licenses and other agreements that may apply to the SYSTEM, or to any
equipment, other components, or software which is a part thereof, and shall constitute the
COOPERATIVE's sole obligation with regard to maintaining confidentiality of any proprietary
material, of any kind. Nothing contained in this Article shall require the COOPERATIVE to
disregard a court order.
3/17/00 42 COOPERATIVE
21.24 Assignment
MOTOROLA shall not, at any time during the term of the AGREEMENT, subcontract any part
of its operations or assign any portion or part of the AGREEMENT without pnor written
approval of the COOPERATIVE, except as expressly agreed herein, which approval will not be
unreasonably withheld.
Notwithstanding any other provision of this AGREEMENT to the contrary and without any
additional consideration, the COOPERATIVE shall have the unlimited right to assign all of its
rights and obligations, including the right to transfer title, for all deliverables specified for in this
AGREEMENT as of the date of this AGREEMENT, to any part or all of the SYSTEM, to a
nonprofit corporation or any other entity. If the COOPERATIVE assigns its rights hereunder,
the COOPERATIVE shall so notify MOTOROLA in writing, and the COOPERATIVE's
assignee shall assume all of the COOPERATIVE's obligations hereunder. MOTOROLA agrees
that the COOPERATIVE may directly enforce the Communications System warranties and
indemnification provisions set forth in the AGREEMENT including the pursuit of any remedies
available at law or in equity provided, however, that such right of enforcement shall only be held
by the COOPERATIVE or its assignee, but not both. The COOPERATIVE agrees that it shall
be responsible for all obligations pursuant to this Agreement, System Acquisition Costs, Project
Milestones and Payment Schedule due and owing on the date of assignment, unless
MOTOROLA provides express written approval for the transfer of such obligations. The
COOPERATIVE shall not assign any rights hereunder to any party which is an actual or
potential competitor of MOTOROLA. In the event that the COOPERATIVE, with written notice
to MOTOROLA, assigns equipment and deliverables under this AGREEMENT to a third party,
the COOPERATIVE agrees to require such third party to execute a software license agreement
with MOTOROLA like that set forth m the SOW.
21.25 Books and Records
MOTOROLA, its subcontractors and consultants, shall retain, for a period of five (5) years
following the Date of Final Acceptance, all books, drawings, specifications, documents, and
other records of any kind whatsoever relating to the provision of services, the performance of
work, or the furnishing of equipment, material, or components under this AGREEMENT. So
long as such records are retained, the COOPERATIVE, or its representative, shall have the right
to inspect the same, after five (5) days prior notice, at any time during normal working hours at
the locations where such records are kept in the normal course of business. This provision shall
not require MOTOROLA to disclose its confidential, proprietary cost pricing data and
information.
21.26 Applicable Laws `
In carrying out the obligations under this AGREEMENT, MOTOROLA, its subcontractors,
consultants, and suppliers, shall comply with all federal, state, and local laws, statutes,
ordinances, rules, and regulations that apply to such performance.
3/17/00 43 COOPERATIVE
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed by
their duly authorized representatives as of the last day and year written below.
SOUTH PALM BEACH COUNTY PUBLIC SAFETY COMMUNICATIONS COOPERATIVE
CITY OF BOCA RATON
Attest:
By: By:
(Designated Authority)
Approved as To Form:
By:
(City Attorney)
CITY OF DELRAY BEACH
Attest:
By: By:
(Designated Authority)
Approved as To Form:
By
(City Attorney)
CITY OF BOYNTON BEACH
Attest:
(Designated Authority) .
Approved as To Form:
By: ktt C' CA
(City Attorney)
_ MOTOROLA, INC.
CONTRACTS DEPT.
o VAI.
• � By:
3/17/00 44 COOPERATIVE
South Palm Beach County Public .,afety Communications Cooperative
800 MHz ASTRO Digital SmartZone Trunked Radio System
Equipment List and Pricing
System Totals Summary - Attachment 1
Boca Raton Fixed Network Equipment total $2,275,575.00
and associated services amount,
less the prorated applicable system discount.
Boca Raton Subscriber Equipment total $2,293,147.00
and associated services amount,
less the prorated applicable system discount.
Boca Raton Fixed Network and Subscriber EquipmentTotal $4,568,722.00
Boynton Beach Fixed Network Equipment total $1,440,147.00
and associated services amount,
less the prorated applicable system discount.
Boynton Beach Subscriber Equipment total $1,369,126.00
and associated services amount,
less the prorated applicable system discount.
Boynton Beach Fixed Network and Subscriber EquipmentTotal $2,809,273.00
Delray Beach Fixed Network Equipment total $1,705,449.00
and associated services amount,
less the prorated applicable system discount.
Delray Beach Subscriber Equipment total $1,268,222.00
and associated services amount,
less the prorated applicable system discount.
Delray Beach Fixed Network and Subscriber EquipmentTotal $2,973,671.00
Motorola, Inc 2/18/00 Appendix A, Page 79 -A
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IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be exted by
their duly authorized representatives as of the last day and year written below. /
SOUTH PALM BEACH COUNTY PUBLIC SAFETY COMMUNICATIONS C OPERATIVE
CITY OF BOCA RA N
Attest:
By: By:
esignated Authority)
A p .roved as To Form:
By: L adka.J //1
(Ci Attorn Q#
CITY OF DELRAY BEACH
Attest:
By: By:
(Designated Authority)
Approved as To Form:
By:
(City Attorney)
CITY OF BOYNTON BEACH
Attest:
By: By:
(Designated Authority)
Approved as To Form:
By:
t (City Attorney)
/
AO
• MOTOROLA, INC.
0 ,
► 3/17/00 44 COOPERATIVE
( l O p3 ( i
EME�T, E0B50
� AGaE 71cl'''' and the �pSO�pR �o o��tio�
0010 ilIC), a Oge �
4eo o -3g
i MOTOHuLA SOFTWARE LICENSE AGREEMENT - EXHIBIT B
This Software License Agreement is between Motorola, Inc., a Delaware corporation ( "Motorola "), and the
Licensee listed on Page 3.
Section 1 SCOPE
Licensee may acquire from Motorola's Commercial, Government, 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 lap -top computers at other
sites. Prior to acquiring any Radio Service Software or upon Motorola's request, Licensee must provide a written
list of all sites where Licensee uses or intends to use Radio Service Software. Licensee must reproduce all
Motorola copyright and trademark notices on all copies of Motorola Software.
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.
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
Page 1 (Rev. 03/10/00)
M OTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT B I
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 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 pnmary 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 or that the Motorola
Software or the Products will meet Licensee's particular requirements. This limited software warranty does not
include any warranty covering the processing of date data from, into, and between the year 1999 and the year
2000. Any such warranty would be provided expressly in a separately executed agreement. 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 PAYMENT OF LICENSEE'S DIRECT DAMAGES UP TO THE AMOUNT PAID TO
MOTOROLA FOR THE MOTOROLA SOFTWARE OR THE INDIVIDUAL PRODUCT IN WHICH THE
MOTOROLA SOFTWARE IS EMBEDDED OR FOR WHICH IT WAS PROVIDED. THIS WARRANTY
EXTENDS ONLY TO THE FIRST LICENSEE; SUBSEQUENT 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 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.
Page 2 (Rev. 04/01/99)
I MOTOROLA SOFTWARE LICENSE AGREEMENT - EXHIBIT B I
COOPERATIVE Motorola, Inc.
City of Boca Raton Attn: Contract and Compliance Manager
Attn.: Deputy Chief Ken Pachnek 8000 West Sunrise Boulevard, Room 1189
100 N.W. Boca Raton Blvd. Plantation, FL 33322
Boca Raton, FL 33432
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 State of Florida.
Page 3 (Rev. 04/01/99)
MOTOROLA SOFTWARE LICENSE AGREEMENT EXHIBIT B
In witness whereof, the parties have caused duly authorized representatives to execute this Agreement on the
dates set forth below.
LICENSEE:
SOUTH PALM BEACH COUNTY PUBLIC SAFETY COMMUNICATIONS COOPERATIVE
CITY OF BOCA RATON
Attest:
By: By:
(Designated Authority)
Approved as To Form:
By:
(City Attorney)
CITY OF DELRAY BEACH
Attest:
By: By:
(Designated Authority)
Approved as To Form:
By:
(City Attorney)
gagAzv R. ulE/64 A
CITY OF : • YNTON BEACH
Attest/
aro
By:_ ..�� it By: ., •
/ (Designated Authority)
l06 A 5, 4t evE ,l s-r c2,i A77-4
Date : March 24, 2 0 0 0 Approved as To Form:
By:
(City Attorney)
MOTOROLA, INC.
Attest:
X/o
Approved As To Forth
MOTOROL
Contracts & Compliance
Page 4 (Rev. 04/01/99)
09 3,'2e? 15:29 50139S -70A =AG= 39
FTWARE SUBSCRIPTION AGREEMENT - HI91T O
This Motorola Software Subscription Agreement ( "Agreement ") is between Motoroia, Inc., a Delaware
corporation ("Motorola ") by and through its Commercial, Government, lndu9triai Solutions Sector (CGISS)
and the South Palm each County PLblio Safety Communications Cooperat,ve ( Customer").
Section 1 DEFINITIONS
Core Release. A new version of Software which adds Features and major enhancements. These new
versions are signified by changes to the first digit of the version identifier somber (e.g. SmartZone
2.0.3 to SmartZone 3.0).
Enhancement Release. A superseding issue of Software which adds to. improves, or enhances tha
performance of Software Features contained in the then currently shipp Software version. These
releases are Signified by changes to the second digit of tho version identifier number (e.g. SmartZone
3.1 to SmartZone 3.2).
Feature. A Software functionality.
Standard Feature. An additional software functionality for components of Customers system that Is
available to Customer In the standard software release.
Optional Feature, An additional software functionality issued with a Core Release that Is available to
Customer at additional cost.
Special Product Feature. Features specially developed for Customer which contain Customer unique
functionality.
Section 2 SUBSCRIPTION PROGRAM
During the term of this Agreement, Motorola will provide Customer with he software subscription services
described below ( "Software Subscription Program ") for upgrade capable Motorola communication
equipment that le In the Customer oonfiguration identified in Atiaohment 1 to this Software Subscription
Agreement. Non - Motorola manufactured software, Non - CGISS software, and Radio Service Software
(ASS), are excluded from the Software Subscription Program.
a. Motorola will provide periodic Motorola Software Enhancement Releases applicable to Features
currently provided to Customer by Motorola under a Software License Agreement. Customer is
responsible for the purchase of additional hardware that is necessary to upgrade to the newly issued
Enhancement Release.
b. Motorola will provide those Standard Features included in a Core Release which apply to Customer's
existing system components. Customer is responsible for the purchase and license of additional
products, hardware, and/or software that are necessary to migrate to the newly issued Cora Release.
c, Optional Features issued with a Core Release are not provided pursuant to the Software Subscription
Program but are available to Customer, as a Program aubsoriber, at a discounted price under a
separate agreement The discount avallable to Customer for voice s Optional Features will be
20% on me current Motorola list pace. The discount available to Customer ter data system Optional
Features will be 15% off the current Motorola list price. Once an Optional Feature is provided to
COOPERATIVE Page 1 (3/10/00)
J2)22/ 2202 1E 521_927 -2e =AGE 12
1FTWARE SUBSCRIPTION AGREEMENT tt•IBIT D
Customer, Customer will be entitled under this Software Subscription Agreement to all Enhancement
Releases for that Optional Feature.
d, Special Product Features previously developed by Motorola unique to Customer's system may require
additional engineering effort to oe incorporated Into a Enhancement Release or Core Release so that
the Speciai Product Feature will not be overwritten upon its installation. Upon request, Motorola will
determine whether a Special Product Feature can be incorporated into a Enhancement Release or
Core Release and whether additional engineering effort is required. Customer will be responsible for
all charges associated with any additional engineering required for each Enhancement Release or
Core Release that it chooses to install. Such equipment and engineering are not included as part of
the Software Subscription Program and may be provided pursuant to a separate agreement.
d. Motorola will issue to Customer at the below address bulletins announcing Enhancement Releases
and Core Releases. If Customer desires to obtain the announced Enhancement Release or Core
Release, It muat contact its Motorola representative. If needed, Customer should contact Its local
service provider for installation assistance.
COOPERATIVE
City of Baca Raton
Attn.: Deputy Chief Ken Pachnek
100 N.W. Boca Raton Blvd.
Soca Raton, FL 33432
f. Because Enhancement Releases may include minor performance enhancements, Customer is
encouraged to periodically upgrade the Motorola Software operating on its System with the most
current Enhancement Release (e.g. SmartZone 3.0.1 to SmartZone 3.0.2). Customer may choose - not
to install a new software release, however, customer acknowledges that by so choosing, It may limit or
eliminate the applicability of future releases to its system.
g. Because the Software Subscription Program includes Enhancement Releases for only the currently
shipping software version and those prior versions that Motorola may be supporting during the term of
the Agreement, Customer is encouraged to migrate the Motorola Software operating on its
Communications System to the most current Core Release (e.g. Smart Zone 2.0.3 to SmartZone 3.0).
It Customer's system Is not maintained to a currently supported software version, ail Core Releases
and Enhancement Releases may not be compatible with Customer's existing System. Additional
hardware, Motorola Software, and engineered modifications may be required If Customer desires to
migrate to a particular Core Release or Enhancement Release. Such additional hardware, Motorola
Software and engineering are not included as part of the Software Subscription Program and may be
provided pursuant to a separate agreement_ If the size and complexity of Customer's System
warrants, Motorola may provide consultation services to determine the technological, operational and
f nanoial Impact of Installing a partioular Core Release or Enhancement Release on the System,
pursuant to a separate agreement.
Section 3 FEES AND PAYMENT
Attachment 1 contains the annual Software Subscription Program fees and payment terms. The fees
listed are based upon Customer's current Motorola equipment configuration as indicated in Attachment 1.
Customer must notify Motorola promptly of any change in this configuration and Motorola will calculate
revised fees (effective at the beginning of the next subscription year) based on the new configuration.
Motorola will refund to Customer any amounts previously paid for Software Subscription Program fees that
COOPERATIVE Page 2 (3/10/00)
08/30,2002 15:28 5613937704 -r =Act
= TWARE SUBSCRIPTION AGREEMENT - r-IBIT D
are reduced due to a new configuration. If the Software Subecription Program fees are increased due 10 a
new configuration, Customer will pay any additional amounts within thirty days after receipt of an Invoice
from Motorola.
Section 4 TERM AND TERMINATION
a. The term of this Agreement is Indicated in Attachment 1 and shall terminate at the expiration of that
term. unless extended by mutual agreement of the parties.
b. The Customer may terminate this Agreement at any time prior to the expiration of its term by providing
written notice of such termination to Motorola. Such termination will be effective at the next annual
anniversary date following Motorola's receipt of the written notice. Motorola will refund to Customer
any pre -paid Software Subscription Program fees for the terminated period.
c. The Agreement will automatically terminate if at its annual anniversary date, the software version in
Customer's then current configuration ie no longer supported by Motorola or if Motorola discontinues
the Software Subscription Progrern, In which case Motorola will refund to Customer any pre -paid
Software Subscription Program fees for the terminated period.
Section 8 TAXES
Customer is responsible for all taxes due as a result of this Agreement, if any, other than taxes based on
Motorola's income; if Customer is a tax- exempt entity, upon execution of this Agreement, Customer must
provide Motorola with tax exemption certificates from the appropriate tax authorities.
Section 6 EXCLUDED SERVICES
The Software Subscription Program does not include repair or replacement of hardware or software
defects not corrected by tha Enhancement Releases and Core Releases nor does it include repair or
replacement of defects resulting from any nonstandard or improper use ar conditions or from unauthorized
installation of Motorola software.
Section 7 OWNERSHIP AND USE OF SOFTWARE
All rights and title to Motorola software furnished to Customer under this Agreement remain vested
exclusively in Motorola. Customer's use of such Motorola software is subject to the terms of the Motorola
software license agreement executed by Customer or if no such agreement has been executed,
Motorola's standard software license terms apply, which will be sent to Customer upon written request.
Section 8 DEFAULT
Motorola at any time may suspend subscription services or terminate this Agreement if (a) Customer fails
to pay any fees within thirty days after such lees are due, (b) Customer fails to correct a breach of this
Agreement within thirty days after notice from Motorola of such preach, (c) Customer's right to use
Motorola software under a Motorola software license agreement expires or is terminated, or (d) Customer
replaces its Motorola communication system with a non - Motorola communication system. Upon such
termination, any unpaid Software Subscription Program lees will become immediately due and payable.
COOPERATIVE Page 3 (3/10/00)
TWARE SUBSCRIPTION AGREEMENT - HtelT D
Section 9 LIMITATION OF LIABILITY
MOTOROLA'S TOTAL LIABILITY ARISING FROM THIS AGREEMENT WILL BE LIMITED TO THE
AGGREGATE AMOUNT OF SOFTWARE SUBSCRIPTION PROGRAM FEES PAID TO MOTOROLA BY
CUSTOMER. IN NO EVENT WILL. MOTOROLA • BE LIABLE FOR SPECIAL, INCIDENTAL, OR
CONSEOUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 10 GENERAL
A. NOTICES: All notices, consents, and waivers permitted or required under this Agreemert 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.
Cooperative Motorola, Inc.
City of Boca Raton Attn: Contracts and Compliance Manager
Attn.: Deputy Chief Ken Pachnek Southern Division
100 N.W. Soca Raton Blvd. B000 W. Sunrise Blvd -, rim. 41189
Soda Raton, FL 33432 Plantation, FL 33322
B. FORCE MAJEURE: Motorola will not be liable to Customer for any failure to perform servioes due to
events beyond Motorola; reasonable control Including labor dieruptlona.
C. ACTIONS: Customer must bring any action under thin Agreement within one year after the cause of
action arieea.
D. WAIVERS. No waterer of a right or remedy of either party will constitute a waiver of another right or
remedy of that parry.
E. ASSiGNMENTS: Customer may not assign any of its rights under this Agreement without Motorola's
prior consent.
F. ENTIRE AGREEMENT AND AMENDMENT: This Agreement, along with its Attachment 1, contains
the parties' entire agreement regarding the Software Subscription Program and may be amended only
in a writing signed by both parties, except that Motorola may modify this Agreement without Joint
consent as necessary to comply with applicable law;, rules, and regulation;.
G. GOVERNING LAW: This Agreement will be governed by the laws of the State of Florida.
COOPERATIVE Page 4 (3110100)
as; 3e, :c 02 56i393 -7e4
1 S TWARE SUBSCRIPTION AGREEMENT — L. tIBIT D
IN WITNESS WHEREOF, the partles hereto have caused this Software Subscription Agreement to be executed by
their duly authorized representatives as of the last day and year written below.
SOUTH PALM BEACH COUNTY PUBLIC SAFETY COMMUNICATIONS COOPERATIVE
CITY OF BOC TON
Attest: /
(Designated Authority)
Approved as To For :
By: —
(Clt ttorne
CITY OF DELRAY BEACH
Attest:
By: By:
(Designated Authority)
Approved as To Form:
By: .
(City Attorney)
CITY OF BOYNTON BEACH
Attest
By By:
(Designated Authority)
Approved as To Form:
By:
(City Attorney)
MOTOROLA, INC.
Attest:
By
COOPERATIVE Page 5 (3/10/00) 2
OF 30 20T2 :It: 2S °6135=7'0
S' WARE SUBSCRIPTION AGREEMENT - A', CHMENT 1
ATTACHMENT 1
SYSTEM CONFIGURATION
Choose and carnfllete only ONE of the sections below:
I. DataTAC System SSA
Number of Network Controllers in Operation.., _.
Number of Data Subscriber Devices in Operation (Forte, VRM, Etc)...
IP Messaging for DataTAC (Yes / No)
FINC Redundancy for DataTAC (Yes / No) _
Network Management for DataTAC (Yes / No)
Mobility Management for DataTAC (Yes / No)
Security Services for DataTAC (Yes / No)
II. SmertZone System SSA
Number of Sites (in addition to the Prime Site) 5
Number of Repeaters In Operation .20
Number cf Subscribers in Operation (Mobiles and Portables) 1,991
OmniLink Operation (Yes / No) No
Digital Operation (Yes / No) Yes
III. SmartNet System SSA (Single Site or Simulcast)
Number of Remote Sites (In addition to the Prime Site)
Number of Repeaters In Operation
Number of Subscribers in Operation (Mobiles and Portable)
Digital Operation (Yes / No)
IV. Conventional System SSA
Number of Repeaters In Operation
Number of Subscribers In Operation (Mobiles and Portables)
Digital Operations (Yes / No)
V. Console Only SSA (not required if System SSA Is purchased)
Number of Operator Positions
Number of channels
VL Cs
entrallnk 2000 USA
Continued...
COOPERATIVE Page 1 (3/10/00) j
:7.'2"c-1:93-7114 - ? � . -_ER'K a4raE iF
St HARE SUBSCRIPTION AGREEMENT - Al .>HMENT 1 _
ATTACHMENT 1 (Continued)
SSA TERM
Beainntn of Term�Chooee OnQ Onlvt
Expiration of existing Subscription Period (Renewal)
Immediately upon execution of Software Subscription Agreement ._?(
Other (Please specify Date)
Length of Tenn (number of wars: 1.2,14. or 51
SSA PROGRAM FEES
Annual Fees (before discount)
System SSA Fee...(FNE ONLY') $22,000.00
Consoie Only SSA Foe
CENTRALINK 2000 SSA Fee
SP Coverage Quote
Subscriber SSA Foe $19,910.00
Total Annual Fee (before Discount)
Multl•Year placount Level (choose the disoount oorresoondinn to the lermth of term?
_ 1 Yrs. 0% 2 Yrs. 0% _ 3 Yrs. 5% � 4 Yre. 5% _ 5 Yrs. 10%
Total Annual Pee (after discount)
Total Foos during Term Choeen
Payment Methods (cheek only one):
(A) Payment of total Fees duo upon execution of SSA
(6) Payment of Annual Fee due upon first day of each subscription year
(C) Other (specify)
COOPERATIVE P • • e 2 '3/10!00