R16-040 1 RESOLUTION NO. R16 -040
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, AUTHORIZING AND DIRECTING THE CITY
5 MANAGER SIGN THE REQUIRED DOCUMENTS TO
6 PURCHASE AND FINANCE MOTOROLA P25 RADIOS
7 WITH MOTOROLA/MOTOROLA \ SOLUTIONS, INC.,
8 UTILIZING STATE OF FLORIDA CONTRACT #725 -500-
9 12 -1; AND PROVIDING AN EFFECTIVE DATE.
10
11
12 WHEREAS, at the February 16, 2016, Commission meeting, the City Commission
13 agreed to contract directly with Motorola for the City's Statement of Work for the P25 Radio
14 migration project in the amount of $416,822 which includes a one year warranty; and
15 WHEREAS, in addition to the cost of the system, the current radios are not
16 compatible with the P25 technology and need to be replaced; and
17 WHEREAS, Motorola has offered the City a financing option thru Motorola
18 Solutions, Inc., that would allow the City to finance the cost of the system ($416,822) and the
19 cost of the radios ($1,928,454.30) for a total amount of $2,345,276.00, to be financed over
20 five, seven or ten years, with the first payments due one year after contract execution and an
21 interest rate ranging from 2.67% - 3.18 %; and
22 WHEREAS, staff recommends financing the $2,345,276.00 for seven (7) years with
23 an annual lease payment of $374,448.00 with the first payment due in March, 2017.
24 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
25 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
26 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
27 being true and correct and are hereby made a specific part of this Resolution upon adoption
28 hereof.
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29 Section 2. The City Commission of the City of Boynton Beach, Florida, at the
30 recommendation of staff, hereby authorizes and directs the City Manager to sign the required
31 documents to purchase and finance Motorola P25 radios with Motorola/Motorola Solutions, Inc.,
32 utilizing the State of Florida Contract #725 - 500 -12 -1 with a cost of $416,822.00 for the system
33 and a cost of $1,928,454.00 for the radios for a total amount to be financed of $2,345,276.00, a
34 copy of said purchase and finance documents to be attached hereto as Exhibit "A ".
35 Section 3. This Resolution shall become effective immediately upon passage.
36 PASSED AND ADOPTED this 1st day of March, 2016.
37
38
39 CITY OF BOYNTON BEACH, FLORIDA
40
41 YES NO
42 Mayor — Jerry Taylor
43
44 Vice Mayor — Joe Casello
45
46 Commissioner — David T. Merker
47
48 Commissioner — Mack McCray
49
50 Commissioner — Michael M. Fitzpatrick
51
52
53 VOTE
54
55 ATTEST:
56
57 410,. .
59 Ju dth A. Pyle, CMC pit vo4
60 I � , rerim City Clerk
61 AY
62 c A titr
64 (Corporate Seal)
65
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Communications System Agreement
Lease Purchase
Motorola Solutions, Inc. ("Motorola") and the City of Boynton Beach, FL ("Customer') enter into this
"Agreement," pursuant to which Customer will purchase and Motorola will sell the System, as described
below. Motorola and Customer may be referred to Individually as a "Party" and collectively as the
"Parties." For good and valuable consideration, the Parties agree as follows:
Section 1 EXHIBITS
The exhibits listed below are incorporated into and made a part of this Agreement. In interpreting this
Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the
exhibits and any inconsistency between Exhibits A through D will be resolved in their listed order.
Exhibit A Software License Agreement
Exhibit B Price Proposal Negotiated
Exhibit C Project Approach Negotiated
Exhibit D System Acceptance Certificate
Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
2.1. "Acceptance Tests" means those tests described in the Acceptance Test Plan.
2.2. 'Beneficial Use" means when Customer first uses the System or a Subsystem for operational
purposes (excluding training or testing).
2.3, 'Confidential Information' means any information that is disclosed in written, graphic, verbal, or
machine-recognizable form, and is marked, designated, or identified at the time of disclosure as being
confidential or its equivalent; or if the information is in verbal form, it is identified as confidential at the time
of disclosure and is confirmed in writing within thirty (30) days of the disclosure. Confidential Information
does not include any information that: is or becomes publicly known through no wrongful act of the
receiving Party; is already known to the receiving Party without restriction when it is disclosed; is or
becomes, rightfully and without breach of this Agreement, in the receiving Party's possession without any
obligation restricting disclosure; is independently developed by the receiving Party without breach of this
Agreement; is explicitly approved for release by written authorization of the disclosing Party; or is
released pursuant to law.
2.4. 'Contract Price' means the price for the System, excluding applicable sales or similar taxes and
freight charges.
2.5. 'Effective Date" means that date upon which the last Party executes this Agreement.
2.6. "Equipment" means the equipment that Customer purchases from Motorola under this
Agreement. Equipment that is part of the System is described in the Equipment List.
2.7. "Force Majeure" means an event, circumstance, or act of a third party that is beyond a Party's
reasonable control (e.g., an act of God, an act of the public enemy, an act of a government entity, strikes
or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, and riots).
2.8. "Infringement Claim' means a third party claim alleging that the Equipment manufactured by
Motorola or the Motorola Software Infringes upon the thin;! party's United States patent or copyright.
2.9. "Motorola Software" means Software that Motorola or its affiliated company owns.
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2,10. "Non-Motorola Software" means Software that another party owns.
2.11. "Open Source Software' (also called "freeware°or"shareware") means software that has its
underlying source code freely available to evaluate, copy, and modify.
2.12. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets,
trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the
Equipment and Software, including those created or produced by Motorola under this Agreement and any
corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software
whether made by Motorola or another party.
2.13. "Software' means the Motorola Software and Non-Motorola Software, In object code format that
is furnished with the System or Equipment.
2.14. "Specifications" means the functionality and performance requirements that are described in
Exhibit B.
2.15. "Subsystem" means a major part of the System that performs specific functions or operations.
Subsystems are described in Exhibit B.
2.16. "System" means the Equipment, Software, and incidental hardware and materials that are
combined together into an integrated system; the System is described in Exhibit B.
2.17. "System Acceptance" means the Acceptance Tests have been successfully completed.
2.18. "Warranty Period" means one (1) year from the date of System Acceptance or Beneficial Use,
whichever occurs first.
Section 3 SCOPE OF AGREEMENT AND TERM
3.1. SCOPE OF WORK. Motorola will provide, install and test the System, and perform its other
contractual responsibilities, all in accordance with this Agreement. Customer will perform its contractual
responsibilities in accordance with this Agreement.
3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this
Agreement, If a requested change causes an increase or decrease in the cost or time required to
perform this Agreement, the Parties will agree to an equitable adjustment of the Contract Price,
Performance Schedule, or both, and will reflect the adjustment in a change order. Neither Party is
obligated to perform requested changes unless both Parties execute a written change order.
3.3. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by
mutual agreement of the Parties, the term of this Agreement begins on the Effective Date and continues
until the date of Final Project Acceptance or expiration of the Warranty Period, whichever occurs last.
3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. For three (3) years after the Effective Date,
Customer may order additional Equipment or Software if it is then available. Each order must refer to this
Agreement and must specify the pricing and delivery terms. Notwithstanding any additional or contrary
terms in the order, the applicable provisions of this Agreement (except for pricing, delivery, passage of
title and risk of loss to Equipment, warranty commencement, and payment terms) will govern the
purchase and sale of the additional Equipment or Software. Title and risk of loss to additional Equipment
will pass at shipment, warranty will commence upon delivery, and payment is due within thirty (30) days
after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped or
Software is licensed. Alternatively, Customer may register with and place orders through Motorola Online
("MOL"), and this Agreement will be the "Underlying Agreement" for those MOL transactions rather than
the MOL On-Line Terms and Conditions of Sale. MOL registration and other information may be found at
http://www.motorola.com/businessandoovernment/and the MOL telephone number is (800)814-0601.
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3.5. MAINTENANCE SERVICE. During the Warranty Period, Motorola will provide maintenance
services for the Equipment and support for the Motorola Software pursuant to this Agreement. Those
services and support are included in the Contract Price. If Customer wishes to purchase additional
maintenance and support services for the Equipment during the Warranty Period, or any maintenance
and support services for the Equipment after the Warranty Period, the description of and pricing for the
services will be set forth in a separate document. If Customer wishes to purchase extended support for
the Motorola Software after the Warranty Period, it may do so by ordering software subscription services.
Unless otherwise agreed by the parties in writing, the terms end conditions applicable to the
maintenance, support or software subscription services will be Motorola's standard Service Terms and
Conditions, together with the appropriate statements of work.
3.6. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to
Customer solely In accordance with the Software License Agreement. Customer hereby accepts and
agrees to abide by all of the terms and restrictions of the Software License Agreement.
3.7. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to Customer in
accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date
unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software
pursuant to the Software License Agreement, in which case it applies and the copyright owner will have
all of Licensor's rights and protections under the Software License Agreement. Motorola makes no
representations or warranties of any kind regarding Non-Motorola Software. Non-Motorola Software may
include Open Source Software. All Open Source Software Is licensed to Customer in accordance with,
and Customer agrees to abide by, the provisions of the standard license of the copyright owner and not
the Software License Agreement. Upon request by Customer, Motorola will use commercially reasonable
efforts to determine whether any Open Source Software will be provided under this Agreement; and if so,
identify the Open Source Software and provide to Customer a copy of the applicable standard license (or
specify where that license may be found); and provide to Customer a copy of the Open Source Software
source code if it is publicly available without charge (although a distribution fee or charge for related
services may be applicable).
3.8. SUBSTITUTIONS. At no additional cost to Customer, Motorola may substitute any Equipment,
Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications
and is of equivalent or better quality to the Customer. Any substitution will be reflected in a change order.
3.9. OPTIONAL EQUIPMENT OR SOFTWARE. This paragraph applies only if a "Priced Options'
exhibit is shown in Section 1, or if the parties amend this Agreement to add a Priced Options exhibit.
During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one
(1) year after the Effective Date), Customer has the right and option to purchase the equipment, software,
and related services that are described in the Priced Options exhibit. Customer may exercise this option
by giving written notice to Seller which must designate what equipment, software, and related services
Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and
conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain
provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer
delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific
lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules,
payment terms, maintenance and support provisions, additions to or modifications of the Software
License Agreement, hosting terms, and modifications to the acceptance and warranty provisions.
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Section 4 PERFORMANCE SCHEDULE
The Parties will perform their respective responsibilities in accordance with this Agreement. By executing
this Agreement, Customer authorizes Motorola to proceed with contract performance.
Section 5 CONTRACT PRICE, PAYMENT AND INVOICING
5.1. CONTRACT PRICE. The Contract Price in U.S. dollars is $ 2,345,276. The Contract Price will
be paid via the disbursement of the financing proceeds pursuant to the Equipment Lease-Purchase
Agreement executed between the parties. For Customer's reference, the Federal Tax Identification
Number for Motorola Solutions, Inc. is 36-1115800. Motorola will pre-pay and add all freight charges to
the invoices.
5.2. TITLE, AND RISK OF LOSS; INVOICING AND SHIPPING. Motorola will pre-pay and add all
freight charges to the invoices. Unless otherwise stated in Equipment Lease-Purchase Agreement, title
and risk of loss to the Equipment will pass to Customer upon shipment. Title to Software will not pass to
Customer at any time. Motorola will pack and ship all Equipment in accordance with good commercial
practices.
5.3. INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following
address: City of Boynton Beach, Finance Department, 100 E. Boynton Beach Blvd., Boynton
Beach, FL 33435.
The Equipment will be shipped to the Customer at the following address(insert if this information is
known): City of Boynton Beach Police Department, 100 E.Boynton Beach Blvd., Boynton Beach,
FL 33435.
Section 6 SITES AND SITE CONDITIONS
6.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement,
Customer will provide a designated project manager; all necessary construction and building permits,
zoning variances, licenses, and any other approvals that are necessary to develop or use the sites; and
access to the work sites as reasonably requested by Motorola so that it may perform its duties in
accordance with the Performance Schedule and Statement of Work. If the Statement of Work so
indicates, Motorola may assist Customer in the local building permit process.
6.2. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and
in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the
Statement of Work states to the contrary, Customer will ensure that these work sites have adequate:
physical space; air conditioning and other environmental conditions; electrical power outlets, distribution
and equipment; and telephone or other communication lines (including modem access and adequate
interfacing networking capabilities), all for the installation, use and maintenance of the System. Before
installing the Equipment or Software at a work site, Motorola will inspect the work site and advise
Customer of any apparent deficiencies or non-conformities with the requirements of this Section. This
Agreement is predicated upon normal soil conditions as defined by the version of E.I.A. standard RS-222
in effect on the Effective Date.
6.3. SITE ISSUES. If a Party determines that the sites identified in the Technical and Implementation
Documents are no longer available or desired, or if subsurface, structural, adverse environmental or
latent conditions at any site differ from those indicated in the Technical and Implementation Documents,
the Parties will promptly investigate the conditions and will select replacement sites or adjust the
installation plans and specifications as necessary. If change in sites or adjustment to the installation
plans and specifications causes a change in the cost or time to perform, the Parties will equitably amend
the Contract Price, Performance Schedule, or both, by a change order.
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Section 7 TRAINING
Any training to be provided by Motorola to Customer will be described in the Statement of Work.
Customer will notify Motorola immediately if a date change for a scheduled training program is required.
If Motorola incurs additional costs because Customer reschedules a training program less than thirty (30)
days before its scheduled start date, Motorola may recover these additional costs.
Section 8 SYSTEM ACCEPTANCE
8.1, COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer at least ten
(10) days notice before the Acceptance Tests commence. System testing will occur only in accordance
with the Acceptance Test Plan.
8.2. SYSTEM ACCEPTANCE. System Acceptance will occur upon successful completion of the
Acceptance Tests. Upon System Acceptance, the Parties will memorialize this event by promptly
executing a System Acceptance Certificate. If the Acceptance Test Plan includes separate tests for
individual Subsystems or phases of the System, acceptance of the individual Subsystem or phase will
occur upon the successful completion of the Acceptance Tests for the Subsystem or phase, and the
Parties will promptly execute an acceptance certificate for the Subsystem or phase. If Customer believes
the System has failed the completed Acceptance Tests, Customer will provide to Motorola a written notice
that includes the specific details of the failure. Minor omissions or variances in the System that do not
materially impair the operation of the System as a whole will not postpone System Acceptance or
Subsystem acceptance, but will be corrected according to a mutually agreed schedule.
8.3. BENEFICIAL USE. Customer acknowledges that Motorola's ability to perform its implementation
and testing responsibilities may be impeded if Customer begins using the System before System
Acceptance. Therefore, Customer will not commence Beneficial Use before System Acceptance without
Motorola's prior written authorization, which will not be unreasonably withheld. Motorola is not
responsible for System performance deficiencies that occur during unauthorized Beneficial Use. Upon
commencement of Beneficial Use, Customer assumes responsibility for the use and operation of the
System.
8.4 FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance
when all deliverables and other work have been completed. When Final Project Acceptance occurs, the
parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate.
Section 9 REPRESENTATIONS AND WARRANTIES
9.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance
with the Specifications in all material respects. Upon System Acceptance or Beneficial Use, whichever
occurs first, this System functionality representation is fulfilled. Motorola is not responsible for System
performance deficiencies that are caused by ancillary equipment not furnished by Motorola which is
attached to or used in connection with the System or for reasons or parties beyond Motorola's control,
such as natural causes; the construction of a building that adversely affects the microwave path reliability
or radio frequency (RF) coverage; the addition of frequencies at System sites that cause RF interference
or intermodulation; or Customer changes to load usage or configuration outside the Specifications.
9.2. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment
under normal use and service will be free from material defects in materials and workmanship. If System
Acceptance is delayed beyond six (8) months after shipment of the Equipment by events or causes within
Customer's control,this warranty expires eighteen (18) months after the shipment of the Equipment.
9.3. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License
Agreement, during the Warranty Period, Motorola warrants the Motorola Software in accordance with the
terms of the Software License Agreement and the provisions of this Section 9 that are applicable to the
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Motorola Software. If System Acceptance is delayed beyond six (6) months after shipment of the
Equipment by events or causes within Customer's control, this warranty expires eighteen (18) months
after the shipment of the Software.
9.4. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These
warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Motorola
Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of
God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not
provided or authorized in writing by Motorola; Customer's failure to comply with all applicable industry and
OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or
workmanship; (iii) Equipment that has had the serial number removed or made Illegible; (iv) batteries
(because they carry their own separate limited warranty) or consumables; (v) freight costs to ship
Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does
not affect the operation of the Equipment; and (vii) normal or customary wear and tear.
9.5. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of
the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will
investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorola will (at its
option and at no additional charge to Customer) repair the defective Equipment or Motorola Software,
replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola
Software. That action will be the full extent of Motorola's liability for the warranty claim. If this
investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding
to the claim on a time and materials basis using Motorola's then current labor rates. Repaired or replaced
product is warranted for the balance of the original applicable warranty period. All replaced products or
parts will become the property of Motorola.
9.6. ORIGINAL END USER IS COVERED. These express limited warranties are extended by
Motorola to the original user purchasing the System for commercial, industrial, or governmental use only,
and are not assignable or transferable,
9.7. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE
WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS
AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. TO THE EXTENT ALLOWED
BY LAW, MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
Section 10 DELAYS
10.1. FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance if
caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay
performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers
the Force Majeure. If a Force Majeure occurs, the Parties will execute a change order to extend the
Performance Schedule for a time period that is reasonable under the circumstances.
10.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If Customer (including its
other contractors) delays the Performance Schedule, the Parties will execute a change order to extend
the Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred
because of the delay. Delay charges may include costs incurred by Motorola or its subcontractors for
additional freight, warehousing and handling of Equipment; extension of the warranties; travel;
suspending and re-mobilizing the work; additional engineering, project management, and standby time
calculated at then current rates; and preparing and implementing an alternative implementation plan.
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Section 11 DISPUTES
11.1. SETTLEMENT PREFERRED. The Parties, by their project managers, will attempt to settle any
dispute arising from this Agreement (except for a claim relating to intellectual property or breach of
confidentiality) through consultation and a spirit of mutual cooperation. The dispute will be escalated to
appropriate higher-level managers of the Parties, If necessary.
11.2. LITIGATION. A Party may submit to a court of competent jurisdiction in the State of Florida any
claim relating to intellectual property or a breach of confidentiality provisions. Each Party consents to
jurisdiction over it by that court. Either Party may resort to the judicial proceedings described in this
section if good faith efforts to resolve the dispute under these procedures have been unsuccessful; or
interim relief from the court is necessary to prevent serious and irreparable injury to the Party.
Section 12 DEFAULT AND TERMINATION
12.1 DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this
Agreement, the other Party may consider the non-performing Party to be in default (unless a Force
Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written
and detailed notice of default. Except for a default by Customer for failing to pay any amount when due
under this Agreement which must be cured immediately, the defaulting Party will have thirty (30) days
after receipt of the notice of default to either cure the default or, If the default is not curable within thirty
(30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan
immediately after receipt of notice by the other Party that it approves the plan. If Customer is the
defaulting Party, Motorola may stop work on the project until it approves the Customer's cure plan.
12.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section
12.1, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of
this Agreement. In the event of termination for default, the defaulting Party will promptly return to the non-
defaulting Party any of its Confidential Information. If Customer is the non-defaulting Party, terminates
this Agreement as permitted by this Section, and completes the System through a third Party, Customer
may as Its exclusive remedy recover from Motorola reasonable costs incurred to complete the System to
a capability not exceeding that specified in this Agreement less the unpaid portion of the Contract Price.
Customer will mitigate damages and provide Motorola with detailed invoices substantiating the charges.
Section 13 INDEMNIFICATION
13.1. GENERAL INDEMNITY BY MOTOROLA Motorola will indemnify and hold Customer harmless
from any and all liability, expense, judgment, suit, cause of action, or demand for personal Injury, death,
or direct damage to tangible property which may accrue against Customer to the extent it is caused by
the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties
under this Agreement, if Customer gives Motorola prompt, written notice of any the claim or suit.
Customer will cooperate with Motorola in its defense or settlement of the claim or suit. This section sets
forth the full extent of Motorola's general indemnification of Customer from liabilities that are in any way
related to Motorola's performance under this Agreement.
13.2. PATENT AND COPYRIGHT INFRINGEMENT.
13.2.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on
an Infringement Claim, and Motorola will indemnify Customer for those costs and damages finally
awarded against Customer for an Infringement Claim. Motorola's duties to defend and indemnify are
conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola
having sole control of the defense of the suit and all negotiations for its settlement or compromise; and
Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the
defense of the Infringement Claim.
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13.2.2. If an Infringement Claim occurs, or in Motorola's opinion is likely to occur, Motorola may at its
option and expense procure for Customer the right to continue using the Equipment or Motorola Software,
replace or modify it so that it becomes non-infringing while providing functionally equivalent performance,
or grant Customer a credit for the Equipment or Motorola Software as depreciated and accept Its return.
The depreciation amount will be calculated based upon generally accepted accounting standards for such
Equipment and Motorola Software.
13.2. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon:
(a) the combination of the Motorola Product with any software, apparatus or device not furnished by
Motorola; (b) the use of ancillary equipment or software not furnished by Motorola and that is attached to
or used in connection with the Motorola Product; (c) Motorola Product designed or manufactured in
accordance with Customer's designs, specifications, guidelines or instructions, if the alleged infringement
would not have occurred without such designs, specifications, guidelines or instructions; (d) a
modification of the Motorola Product by a party other than Motorola; (e) use of the Motorola Product in a
manner for which the Motorola Product was not designed or that is inconsistent with the terms of this
Agreement; or (f) the failure by Customer to install an enhancement release to the Motorola Software that
is intended to correct the claimed infringement. In no event will Motorola's liability resulting from its
indemnity obligation to Customer extend in any way to royalties payable on a per use basis or the
Customer's revenues, or any royalty basis other than a reasonable royalty based upon revenue derived
by Motorola from Customer from sales or license of the infringing Motorola Product.
13.4. This Section 13 provides Customer's sole and exclusive remedies and Motorola's entire liability in
the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to
provide any other or further remedies, whether under another provision of this Agreement or any other
legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies
provided in this Section 13 are subject to and limited by the restrictions set forth in Section 14.
Section 14 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty,
negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages
recoverable under law, but not to exceed the price of the Equipment, Software, or services with respect to
which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY
OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY
COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES,
PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE
OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA
PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the expiration or
termination of the Agreement and applies notwithstanding any contrary provision. An action for contract
breach or otherwise relating to the transactions contemplated by this Agreement may be brought within
one year.
Section 15 CONFIDENTIALITY AND PROPRIETARY RIGHTS
15.1.1. Confidentiality Obligation. Each party is a disclosing party ("Discloser") and a receiving party
("Recipient") under this Agreement. During the term of this Agreement, for a period of three (3) years
from the date of expiration or termination of this Agreement, and to the extent allowed by law, recipient
will (i) not disclose Confidential Information to any third party; (ii) restrict disclosure of Confidential
Information to only those employees (including, but not limited to, employees, officers, officials, agents,
volunteers or consultants who must be directly involved with the Confidential Information for the purpose
and who are bound by confidentiality terms substantially similar to those in this Agreement; (iii) not
reverse engineer, de-compile or disassemble any Confidential Information; (iv) use the same degree of
care as for its own information of like importance, but at least use reasonable care, in safeguarding
against disclosure of Confidential Information; (v) promptly notify discloser upon discovery of any
unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain
CSA Lease v.11-19-2015 Pape 8 of 20 Motorola Contract No.207471
possession of the Confidential Information and prevent further unauthorized actions or other breach of
this Agreement; and (vi)only use the Confidential Information as needed to fulfill this Agreement.
15.1.2. Required Disclosure. If a recipient is required to disclose Confidential Information pursuant to
applicable law, statute, or regulation, or court order, the recipient will give to the discloser prompt written
notice of the request and a reasonable opportunity to object to such disclosure and seek a protective
order or appropriate remedy. If, in the absence of a protective order, the recipient determines, upon the
advice of counsel, that it is required to disclose such information, it may disclose only Confidential
Information specifically required and only to the extent required to do so.
15.1.3. Confidential Exceptions. Recipient is not obligated to maintain as confidential, Confidential
Information that recipient can demonstrate by documentation (i) is now available or becomes available to
the public without breach of this Agreement; (ii) is explicitly approved for release by written authorization
of discloser; (iii) is lawfully obtained from a third party or parties without a duty of confidentiality; (iv) is
known to the recipient prior to such disclosure; or (v) is independently developed by recipient without the
use of any discloser's Confidential Information or any breach of this Agreement.
15.1.4. Ownership and Retention. All Confidential Information remains the property of the discloser and
will not be copied or reproduced without the express written permission of the discloser, except for copies
that are absolutely necessary in order to fulfill this Agreement. Within ten (10) days of receipt of
discloser's written request, recipient will return all Confidential Information to discloser along with all
copies and portions thereof, or certify in writing that all such Confidential Information has been destroyed.
However, recipient may retain one (1) archival copy of the Confidential Information that it may use only in
case of a dispute concerning this Agreement. No license, express or implied, in the Confidential
information is granted other than to use the Confidential Information in the manner and to the extent
authorized by this Agreement. The discloser warrants that it Is authorized to disclose any Confidential
Information it discloses pursuant to this Agreement.
15.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. Motorola, the third party
manufacturer of any Equipment, and the copyright owner of any Non-Motorola Software own and retain
all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement Is
intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by
Motorola in connection with providing to Customer the Equipment, Software, or related services remain
vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development
rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola
does not grant to Customer, either directly or by implication, estoppel, or otherwise, any right, title or
interest in Motorola's Proprietary Rights. Customer will not modify, disassemble, peel components,
decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create
derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell
or export the Software, or permit or encourage any third party to do so. The preceding sentence does not
apply to Open Source Software which is governed by the standard license of the copyright owner.
Section 16 GENERAL
16,1. TAXES. The Contract Price does not include any excise, sales, lease, use, property, or other
taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola
is required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to
Motorola the amount of the taxes (including any interest and penalties)within forty-five (45) days after the
date of the invoice. Customer will be solely responsible for reporting the Equipment for personal property
tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth.
16,2. ASSIGNABILITY AND SUBCONTRACTING. Neither Party may assign this Agreement without
the prior written consent of the other Party, except that Motorola may assign this Agreement to any of its
affiliates or its right to receive payment without the prior consent of Customer. Motorola may subcontract
any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement.
CSA Lease v.11-19-2015 Papa 9 of 20 Motorola Contract No.207471
16.3 WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will
not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a
writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either
a future or continuing waiver of that same right or power, or the waiver of any other right or power.
16.4. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or
unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and
effect.
16.5. INDEPENDENT CONTRACTORS. Each Party will perform its duties under this Agreement as an
independent contractor. The Parties and their personnel will not be considered to be employees or
agents of the other Party. Nothing In this Agreement will be interpreted as granting either Party the right
or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or
be interpreted as a joint venture, partnership or formal business organization of any kind.
18.6. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are
inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of
the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in
accordance with its terms and conditions and not for or against either Party.
16.7. GOVERNING LAW. This Agreement and the rights and duties of the Parties will be governed by
and interpreted In accordance with the laws of the State of Florida.
16.8. ENTIRE AGREEMENT. This Agreement, Including all Exhibits, constitutes the entire agreement
of the Parties regarding the subject matter of the Agreement and supersedes all previous agreements,
proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement
may be amended or modified only by a written Instrument signed by authorized representatives of both
Parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment
or other form will not be considered an amendment or modification of this Agreement, even if a
•representative of each Party signs that document.
16.9. NOTICES. Notices required under this Agreement to be given by one Party to the other must be
in writing and either personally delivered or sent to the address shown below by certified mall, return
receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express,
UPS,or DHL),or by facsimile with correct answerback received, and will be effective upon receipt:
Motorola Solutions, Inc. City of Boynton Beach
Attn:Judy Jean-Pierre
Legal, Government Affairs&Corporate Communications Attn: Lori LaVerriere, City Manager
1303 E.Algonquin Road, IL01-10th Floor 100 E. Boynton Beach Blvd.
Schaumburg, IL 60196 Boynton Beach, FL 33435
•urolasolutions.com
16.10. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal,
state, and local laws, regulations and rules concerning the performance of this Agreement or use of the
System. Customer will obtain and comply with all Federal Communications Commission("FCC") licenses
and authorizations required for the Installation, operation and use of the System before the scheduled
installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC
license applications, neither Motorola nor any of its employees is an agent or representative of Customer
In FCC or other matters.
16.11. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all
necessary approvals, consents and authorizations to enter Into this Agreement and to perform Its duties
under this Agreement; the person executing this Agreement on Its behalf has the authority to do so; upon
execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in
CSA Leese v.11-18-2015 Page 10 of 20 Motorola Contract No,207471
accordance with its terms; and the execution, delivery, and performance of this Agreement does not
violate any bylaw, charter, regulation, law or any other governing authority of the Party.
16.12. The City is public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply
with Florida's Public Records Law. Specifically, the Contractor shall:
A. Keep and maintain public records required by the CITY to perform the service;
B. Upon request from the CITY's custodian of public records, provide the CITY with a copy of the
requested records or allow the records to be inspected or copied within a reasonable time at a
cost that does not exceed the cost provided in chapter 119, Fla. Stat. or as otherwise provided by
law;
C. Ensure that public records that are exempt or that are confidential and exempt from public record
disclosure requirements are not disclosed except as authorized by law for the duration of the
contract term and, following completion of the contract, Contractor shall destroy all copies of such
confidential and exempt records remaining in Its possession once the Contractor transfers the
records in its possession to the CITY; and
D. Upon completion of the contract, Contractor shall transfer to the CITY, at no cost to the CITY, all
public records in Contractor's possession All records stored electronically by Contractor must be
provided to the CITY, upon request from the CITY's custodian of public records, in a format that is
compatible with the Information technology systems of the CITY.
E. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS:
(CITY CLERK) 100 E BOYNTON
BEACH BLVD. BOYNTON BEACH,
FLORIDA, 33435.
561-742-6061.
PYLEJtaBBFL.US
16.13. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this
Agreement for any reason: Section 3.6 (Motorola Software); Section 3.7 (Non-Motorola Software); if any
payment obligations exist, Sections 5.1 and 5.2 (Contract Price and Invoicing and Payment); Subsection
9.7 (Disclaimer of Implied Warranties); Section 11 (Disputes); Section 14 (Limitation of Liability); and
Section 15 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 16.
CSA Lease v.11-19-2015 Page 11 of 20 Motorola Contract No,207471
The Parties hereby enter into this Agreement as of the Effective Date. This Agreement may be executed
by each of the Parties hereto in separate counterparts, and shall have the same legal force and effect as
If the Parties had executed it as a single document. The parties may sign in writing, or by electronic
signature, including by email. An electronic signature, or a facsimile copy or computer image, such as a
PDF or tiff image, of a signature, shall be treated as and shall have the same effect as an original
signature. In addition, an electronic signature, a true and correct facsimile copy or computer image of this
Agreement shall be treated as and shall have the same effect as an original signed copy of this
document.
Motorola Solutions, Inc. City of Boy ton Beach
By: —— _ By: d µ V11-4-°"-"---e-
Name:
11-4-° `-"-.0
Name: Name: Lori LaVerriere
Title: Title: City Manager
Date: — .. Date: 3/a 3/1
CSA Lease v.11-19-2015 Pane 12 of 20 Motorola Contract No.207471
Exhibit A
SOFTWARE LICENSE AGREEMENT
This Exhibit A Software License Agreement ("Agreement") is between Motorola Solutions, Inc.,
("Motorola") and the City of Boynton Beach, FL ("Licensee"). For good and valuable consideration, the
parties agree as follows:
Section 1 DEFINITIONS
1.1 "Designated Products' means products provided by Motorola to Licensee with which or for which
the Software and Documentation is licensed for use.
1.2 "Documentation" means product and software documentation that specifies technical and
performance features and capabilities, and the user, operation and training manuals for the Software
(including all physical or electronic media upon which such information is provided).
1.3 "Open Source Software" means software with either freely obtainable source code, license for
modification, or permission for free distribution.
1.4 "Open Source Software License" means the terms or conditions under which the Open Source
Software is licensed.
1.5 "Primary Agreement' means the agreement to which this exhibit is attached.
1.6 "Security Vulnerability" means a flaw or weakness In system security procedures, design,
implementation, or internal controls that could be exercised (accidentally triggered or intentionally
exploited) and result in a security breach such that data Is compromised, manipulated or stolen or the
system damaged.
1.7 "Software" (i) means proprietary software in object code format, and adaptations, translations, de-
compilations, disassemblies, emulations, or derivative works of such software; (ii) means any
modifications, enhancements, new versions and new releases of the software prpvided by Motorola; and
(iii) may contain one or more items of software owned by a third party supplier. The term "Software"does
not include any third party software provided under separate license or third party software not licensable
under the terms of this Agreement.
Section 2 SCOPE
Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain
proprietary Software or products containing embedded or pre-loaded proprietary Software, or both. This
Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and
Licensee's use of the Software and Documentation.
Section 3 GRANT OF LICENSE
3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola
grants to Licensee a personal, limited, non-transferable (except as permitted in Section 7) and non-
exclusive license under Motorola's copyrights and Confidential Information (as defined in the Primary
Agreement) embodied in the Software to use the Software, in object code form, and the Documentation
solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any
rights to source code.
3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software,
the terms and conditions governing the use of such Open Source Software are in the Open Source
CSA Lease v.11-19.2015 Page 13 of 20 Motorola Contract No.207471
Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms
and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses
governing Licensee's use of the Open Source Software, the terms and conditions of the license grant of
the applicable Open Source Software Licenses will take precedence over the license grants in this
Agreement. If requested by Licensee, Motorola will use commercially reasonable efforts to; (i)determine
whether any Open .Source Software is provided under this Agreement; (ii) identify the Open Source
Software and provide Licensee a copy of the applicable Open Source Software License (or specify where
that license may be found); and, (iii) provide Licensee a copy of the Open Source Software source code,
without charge, if it is publicly available(although distribution fees may be applicable).
Section 4 LIMITATIONS ON USE
4.1. Licensee may use the Software only for Licensee's internal business purposes and only in
accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting
the general nature of these restrictions, Licensee will not make the Software available for use by third
parties on a "time sharing," "application service provider," or "service bureau" basis or for any other
similar commercial rental or sharing arrangement.
4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer,
disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to
a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create
derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or
Documentation to any third party, grant any sublicense or other rights in the Software or Documentation
to any third party, or take any action that would cause the Software or Documentation to be placed in the
public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of
Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or
Documentation available to, or permit the use of the Software by any third party or on any machine
except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a
manner that would result in the production of a copy of the Software solely by activating a machine
containing the Software. Licensee may make one copy of Software to be used solely for archival, back-
up, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at
the same time as the original Software is being operated. Licensee may make as many copies of the
Documentation as it may reasonably require for the internal use of the Software.
4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow
any third party to: (I) install a licensed copy of the Software on more than one unit of a Designated
Product; or(ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other
device. Licensee may temporarily transfer Software installed on a Designated Product to another device
if the Designated Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola
of the temporary transfer and identifies the device on which the Software is transferred. Temporary
transfer of the Software to another device must be discontinued when the original Designated Product is
returned to operation and the Software must be removed from the other device. Licensee must provide
prompt written notice to Motorola at the time temporary transfer is discontinued.
4.4. When using Motorola's Radio Service Software ("RSS"), Licensee must purchase a separate
license for each location at which Licensee uses RSS. Licensee's use of RSS at a licensed location does
not entitle Licensee to use or access RSS remotely. Licensee may make one copy of RSS for each
licensed location. Licensee shall provide Motorola with a list of all locations at which Licensee uses or
intends to use RSS upon Motorola's request.
4.5. Licensee will maintain, during the term of this Agreement and for a period of two years thereafter,
accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an
independent third party ("Auditor") may inspect Licensee's premises, books and records, upon reasonable
prior notice to Licensee, during Licensee's normal business hours and subject to Licensee's facility and
security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor.
Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the
CSA Lease v.11-19-2015 Page 14 of 20 Motorola Contract No.207471
Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this
Agreement.
Section 5 OWNERSHIP AND TITLE
Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the
Software and Documentation, including, but not limited to, all rights in patents, patent applications,
inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating
to the Software and Documentation (including any corrections, bug fixes, enhancements, updates,
modifications, adaptations, translations, de-compilations, disassemblies, emulations to or derivative works
from the Software or Documentation, whether made by Motorola or another party, or any improvements
that result from Motorola's processes or, provision of information services). No rights are granted to
Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are
expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or
prepared by Motorola in connection with providing the Software, Designated Products, Documentation or
related services, remains vested exclusively in Motorola, and Licensee will not have any shared
development or other intellectual property rights.
Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY
6.1. The commencement date and the term of the Software warranty will be a period of ninety (90)
days from Motorola's shipment of the Software (the 'Warranty Period"). If Licensee is not in breach of
any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used
properly and in accordance with the Documentation and this Agreement, will be free from a reproducible
defect that eliminates the functionality or successful operation of a feature critical to the primary
functionality or successful operation of the Software. Whether a defect occurs will be determined by
Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee's use of
the Software or the Designated Products will be uninterrupted, error-free, completely free of Security
Vulnerabilities, or that the Software or the Designated Products will meet Licensee's particular
requirements. Motorola makes no representations or warranties with respect to any third party software
included in the Software.
6.2 Motorola's sole obligation to Licensee and Licensee's exclusive remedy under this warranty is to
use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts
will involve either replacing the media or attempting to correct significant, demonstrable program or
documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable
time, then at Motorola's option, Motorola will replace the defective Software with functionally-equivalent
Software, license to Licensee substitute Software which will accomplish the same objective, or terminate
the license and refund the Licensee's paid license fee.
6.3. Warranty claims are described in the Primary Agreement.
6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and
all other warranties (express or implied, oral or written) with respect to the Software or Documentation,
including, without limitation, any and all implied warranties of condition, title, non-Infringement,
merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows,
has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether
arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola
disclaims any warranty to any person other than Licensee with respect to the Software or Documentation.
Section 7 TRANSFERS
Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written
consent. Motorola's consent may be withheld at its discretion and may be conditioned upon transferee
paying all applicable license fees and agreeing to be bound by this Agreement. If the Designated
Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products
CSA Lease v.11-19-2015 Page 15 of 20 Motorola Contract No.207471
to a third party, Licensee may assign its right to use the Software (other than RSS and Motorola's
FLASHport®software) which is embedded in or furnished for use with the radio products and the related
Documentation; provided that Licensee transfers all copies of the Software and Documentation to the
transferee, and Licensee and the transferee sign a transfer form to be provided by Motorola upon
request, obligating the transferee to be bound by this Agreement.
Section 8 TERM AND TERMINATION
8.1 Licensee's right to use the Software and Documentation will begin when the Primary Agreement
is signed by both parties and will continue for the life of the Designated Products with which or for which
the Software and Documentation have been provided by Motorola, unless Licensee breaches this
Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation
may be terminated immediately upon notice by Motorola.
8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to
Motorola that all copies of the Software have been removed or deleted from the Designated Products and
that all copies of the Software and Documentation have been returned to Motorola or destroyed by
Licensee and are no longer in use by Licensee.
8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the
development, marketing, and distribution of the Software and Documentation and that Licensee's breach
of this Agreement will result in irreparable harm to Motorola for which monetary damages would be
inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be
entitled to all available remedies at law or in equity(including immediate injunctive relief and repossession
of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the
United States Government).
Section 9 UNITED STATES GOVERNMENT LICENSING PROVISIONS
This Section applies if Licensee is the United States Government or a United States Government agency.
Licensee's use, duplication or disclosure of the Software and Documentation under Motorola's copyrights
or trade secret rights Is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the
Commercial Computer Software-Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable,
unless they are being provided to the Department of Defense. If the Software and Documentation are
being provided to the Department of Defense, Licensee's use, duplication, or disclosure of the Software
and Documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights In
Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), if applicable. The
Software and Documentation may or may not include a Restricted Rights notice, or other notice referring
to this Agreement. The provisions of this Agreement will continue to apply, but only to the extent that they
are consistent with the rights provided to the Licensee under the provisions of the FAR or DFARS
mentioned above, as applicable to the particular procuring agency and procurement transaction.
Section 10 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation contain Motorola's valuable proprietary
and Confidential Information and are Motorola's trade secrets, and that the provisions in the Primary
Agreement concerning Confidential Information apply.
Section 11 LIMITATION OF LIABILITY
The Limitation of Liability provision is described in the Primary Agreement.
Section 12 NOTICES
Notices are described in the Primary Agreement.
CSA Lease v.11-19-2015 Page 16 of 20 Motorola Contract No.207471
Section 13 GENERAL
13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be
construed as an admission or presumption of publication of the Software or public disclosure of any trade
secrets associated with the Software.
13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws
and regulations of the United States and Licensee will comply with all applicable laws and regulations,
including export laws and regulations of the United States. Licensee will not, without the prior
authorization of Motorola and the appropriate governmental authority of the United States, in any form
export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or
technical data or direct or indirect products sold or otherwise furnished to any person within any territory
for which the United States Government or any of its agencies at the time of the action, requires an export
license or other governmental approval. Violation of this provision is a material breach of this Agreement.
13.3. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its
obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or
consent of Licensee.
13.4. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent
that they apply and otherwise by the internal substantive laws of the State of Florida. The terms of the
U.N. Convention on Contracts for the international Sale of Goods do not apply. In the event that the
Uniform Computer Information Transaction Act, any version of this Act, or a substantially similar law
(collectively "UCITA") becomes applicable to a party's performance under this Agreement, UCITA does
not govern any aspect of this Agreement or any license granted under this Agreement, or any of the
parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the
applicability of UCITA.
13,5. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of
Motorola and Licensee. No third party has the right to make any claim or assert any right under this
Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing,
any licensor or supplier of third party software included in the Software will be a direct and intended third
party beneficiary of this Agreement.
13.6. SURVIVAL. Sections 4, 5, 6.3, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement.
13.7. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the
Primary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject
matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other
subject matter.
13.8 SECURITY. Motorola uses reasonable means in the design and writing of its own Software and
the acquisition of third party Software to limit Security Vulnerabilities. While no software can be
guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will
take the steps set forth in Section 6 of this Agreement.
CSA Lease v.11-19-2015 Page 17 of 20 Motorola Contract No.207471
Exhibit B Price Proposal Negotiated
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Exhibit C Project Approach Negotiated
CSA Lease v.11-19-2015 Page 19 of 20 Motorola Contract No.207471
Exhibit D
System Acceptance Certificate
Customer Name:
Project Name:
This System Acceptance Certificate memorializes the occurrence of System Acceptance. Motorola and
Customer acknowledge that
1. The Acceptance Tests set forth in the Acceptance Test Plan have been successfully completed.
2. The System is accepted.
Customer Representative: Motorola Representative:
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
FINAL PROJECT ACCEPTANCE:
Motorola has provided and Customer has received all deliverables, and Motorola has performed all other
work required for Final Project Acceptance.
Customer Representative: Motorola Representative:
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
CSA Lane v.11-19-2015 Page 20 of 20 Motorola Contract No.207471
t MOTOROLA SOLUTIONS
February 25, 2016
Mr. Howard
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach FL 33435
Dear Mr. Howard:
Enclosed for your review please find the Municipal Lease documentation in connection with the radio equipment
to be leased from Motorola. The interest rate and payment streams outlined in Equipment Lease - Purchase
Agreement #23866 are valid for contracts that are executed and returned to Motorola on or before March 24, 2016.
After 3/24/16, the Lessor reserves the option to re -quote and re -price the transaction based on current market
interest rates.
Please have the documents executed where indicated and forward the documents to the following address:
Motorola Credit Corporation
Attn: Bill Stancik / 9th Floor
1 303 E. Algonquin Rd
Schaumburg, IL 60196
Should you have any questions, please contact me at 847 - 538 -4531.
Thank You,
MOTOROLA CREDIT CORPORATION
Bill Stancik
LESSEE FACT SHEET
Please help Motorola Solutions, Inc. provide excellent billing service by providing the following information:
1. Complete Billing Address CITY OF BOYNTON' BEACH
Attention:
Phone:
2. Lessee County Location:
3.. Federal Tax I.D. Number
4. Purchase Order Number to be referenced on invoice (if necessary) or other "descriptions" that may assist in
determining the applicable cost center or department:
5. Equipment description that you would like to appear on your
invoicing:
Appropriate Contact for Documentation / System Acceptance Follow -up:
6. Appropriate Contact &
Mailing Address
Phone:
Fax:
7. Payment remit to address: Motorola Credit Corp.
P.O. Box 71132 _
Chicago IL 60694 -1132
Thank you
EQUIPMENT LEASE- PURCHASE AGREEMENT
Lease Number: 23866
LESSEE: LESSOR:
CITY OF BOYNTON BEACH Motorola Solutions, Inc.
100 E. Boynton Beach Blvd. 1303 E. Algonquin Rd.
Boynton Beach FL 33435 Schaumburg, IL 60196
•
Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor, the Equipment described
in any Schedule A now or hereafter attached hereto ("Equipment") in accordance with the following
terms and conditions of this Equipment Lease - Purchase Agreement ("Lease").
1. Term. This Lease will become effective upon the execution hereof by Lessor. The Term of
this Lease will commence on the Commencement Date specified in Schedule A and unless terminated
according to terms hereof or the purchase option, provided in Section 18, is exercised this Lease will
continue until the Expiration Date set forth in Schedule B attached hereto ( "Lease Term").
2. Rent. Lessee agrees to pay to Lessor or its assignee the Lease Payments (herein so called),
including the interest portion, in the amounts specified in Schedule B. The Lease Payments will be
payable without notice or demand at the office of the Lessor (or such other place as Lessor or its assignee
may from time to time designate in writing), and will commence on the first Lease Payment Date as set
forth in Schedule B and thereafter on each of the Lease Payment Dates set forth in Schedule B. Any
payments received later than ten (10) days from the due date will bear interest at the highest lawful rate
from the due date. Except as specifically provided in Section 5 hereof, the Lease Payments will be
absolute and unconditional in all events and will not be subject to any set -off, defense, counterclaim, or
recoupment for any reason whatsoever. Lessee reasonably believes that funds can be obtained sufficient
to make all Lease Payments during the Lease Term. Lessee will seek funding each year as a part of its
budget process. It is Lessee's intent to make Lease Payments for the full Lease Term if funds are legally
available therefor and in that regard Lessee represents that the Equipment will be used for one or more
authorized governmental or proprietary functions essential to its proper, efficient and economic operation.
Lessee's obligation to make Lease Payments and to pay any other amounts payable under this
Lease constitutes a current obligation payable only to the extent permitted by law and exclusively from
legally available funds and shall not be construed to be an indebtedness within the meaning of any
applicable constitutional or statutory limitation or requirement. Lessee has not pledged and will not
pledge its full faith and credit or its taxing power to pay any Lease Payments or any other amounts under
this Lease. Neither Lessor nor any Assignee (described below) may compel the levy of any ad valorem
taxes by Lessee to pay Lease Payments or any other amounts under this Lease.
3. Delivery and Acceptance. Lessor will cause the Equipment to be delivered to Lessee at the
location specified in Schedule A ( "Equipment Location"). Lessee will accept the Equipment as soon as it
has been delivered and is operational. Lessee will evidence its acceptance of the Equipment by executing
and delivering to Lessor a Delivery and Acceptance Certificate in the form provided by Lessor.
Even if Lessee has not executed and delivered to Lessor a Delivery and Acceptance Certificate, if
Lessor believes the Equipment has been delivered and is operational, Lessor may require Lessee to notify
Lessor in writing (within five (5) days of Lessee's receipt of Lessor's request) whether or not Lessee
deems the Equipment. (i) to have been delivered and (ii) to be operational, and hence be accepted by
Lessee. If Lessee fails to so respond in such five (5) day period, Lessee will be deemed to have accepted
the Equipment and be deemed to have acknowledged that the Equipment was delivered and is operational
as if Lessee had in fact executed and delivered to Lessor a Delivery and Acceptance Certificate.
4. Representations and Warranties. Lessor acknowledges that the Equipment leased hereunder
is being manufactured and installed by Lessor pursuant to contract (the "Contract ") covering the
Equipment. Lessee acknowledges that on or prior to the date of acceptance of the Equipment, Lessor
intends to sell and assign Lessor's right, title and interest in and to this Agreement and the Equipment to
an assignee ("Assignee"). LESSEE FURTHER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN
THE CONTRACT, LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY NATURE OR KIND
WHATSOEVER, AND AS BETWEEN LESSEE AND THE ASSIGNEE, THE PROPERTY SHALL BE ACCEPTED BY
LESSEE "AS IS" AND "WITH ALL FAULTS." LESSEE AGREES TO SETTLE ALL CLAIMS DIRECTLY WITH LESSOR
AND WILL NOT ASSERT OR SEEK TO ENFORCE ANY SUCH CLAIMS AGAINST THE ASSIGNEE. NEITHER LESSOR
NOR THE ASSIGNEE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY CHARACTER AS A RESULT OF THE LEASE OF THE EQUIPMENT, INCLUDING
WITHOUT LIMITATION, LOSS OF PROFITS, PROPERTY DAMAGE OR LOST PRODUCTION WHETHER SUFFERED BY
LESSEE OR ANY THIRD PARTY.
Lessor is not responsible for, and shall not be liable to Lessee for damages relating to loss of value
of the Equipment for any cause or situation (including, without limitation, governmental actions or
regulations or actions of other third parties).
5. Non - Appropriation of Funds. Notwithstanding anything contained in this Lease to the
contrary, in the event the funds appropriated by Lessee's governing body or otherwise available by any
means whatsoever in any fiscal period of Lessee for Lease Payments or other amounts due under this
Lease are insufficient therefor, this Lease shall terminate on the last day of the fiscal period for which
appropriations were received without penalty or expense to Lessee of any kind whatsoever, except as to
the portions of Lease Payments or other amounts herein agreed upon for which funds shall have been
appropriated and budgeted or are otherwise available. The Lessee will immediately notify the Lessor or
its Assignee of such occurrence. In the event of such termination, Lessor may request by written notice
that Lessee promptly deliver the Equipment to Lessor or its Assignee. In the event that Lessee agrees to
deliver the Equipment to Lessor, Lessee hereby agrees to transfer title to and deliver possession of the
Equipment in accordance with Section 17.1 of this Lease. In the event that Lessee does not return the
Equipment to Lessor, Lessor may proceed by appropriate court action or actions, either at law or in
equity, to recover damages.
6. Lessee Certification. Lessee represents, covenants and warrants that: (i) Lessee is a state or
a duly constituted political subdivision or agency of the state of the Equipment Location; (ii) the interest
portion of the Lease Payments shall be excludable from Lessor's gross income pursuant to Section 103 of
the Internal 'Revenue Code of 1986, as it may be amended from time to time ( the "Code"); (iii) the
execution, delivery and performance by the Lessee of this Lease have been duly authorized by all
necessary action on the part of the Lessee; (iv) this Lease constitutes a legal, valid and binding obligation
of the Lessee enforceable in accordance with its terms; (v) Lessee will comply with the information
reporting requirements of Section 149(e) of the Code, and such compliance shall include but not be
limited to the execution of information statements requested by Lessor; (vi) Lessee will not do or cause to
be done any act which will cause, or by omission of any act allow, the Lease to be an arbitrage bond
within the meaning of Section 148(a) of the Code; (vii) Lessee will not do or cause to be done any act
which will cause, or by omission of any act allow, this Lease to be a private activity bond within the
meaning of Section 141(a) of the Code; (viii) Lessee will not do or cause to be done any act which will
cause, or by omission of any act allow, the interest portion of the Lease Payments to be or become
includible in gross income for Federal income taxation purposes under the Code; and (ix) Lessee will be
the only entity to own, use and operate the Equipment during the Lease Term.
Lessee represents, covenants and warrants that (i) it will do or cause to be done all things
necessary to preserve and keep the Lease in full force and effect, (ii) it has complied with all public
bidding and Bond Commission requirements (as defined in the Code) where necessary and by due
notification presented this Lease for approval and adoption as a valid obligation on its part, and (iii) it has
sufficient appropriations or other funds available to pay all amounts due hereunder for the current fiscal
period.
If Lessee breaches the covenant contained in this Section, the interest component of Lease
Payments may become includible in gross income of the owner or owners thereof for federal income tax
purposes. In such event, notwithstanding anything to the contrary contained in Section 11 of this
Agreement, Lessee agrees to pay promptly after any such determination of taxability and on each Lease
Payment date thereafter to Lessor an additional amount determined by Lessor to compensate such owner
or owners for the loss of such excludibility (including, without limitation, compensation relating to
interest expense, penalties or additions to tax), which determination shall be conclusive (absent manifest
error). Notwithstanding anything herein to the contrary, any additional amount payable by Lessee
pursuant to this Section 6 shall be subject to the limitations set forth in Sections 2 and 5 hereof.
It is Lessor's and Lessee's intention that this Agreement not constitute a "true" lease for federal
income tax purposes and, therefore, it is Lessor's and Lessee's intention that Lessee be considered the
owner of the Equipment for federal income tax purposes.
7. Title to Equipment. During the Lease Term, title to the Equipment will vest in Lessee and
Lessor will have no security interest therein. Notwithstanding the obligations of Lessee to pay the Lease
Payments, this Lease shall not result in the creation of any lien, charge, security interest or other
encumbrance upon the Equipment and Lessor shall have no right to involuntarily dispossess Lessee of the
use and enjoyment of or title to the Equipment.
8. Use; Repairs. Lessee will use the Equipment in a careful manner for the use contemplated
by the manufacturer of the Equipment and shall comply with all laws, ordinances, insurance policies and
regulations relating to, and will pay all costs, claims, damages, fees and charges arising out of the
possession, use or maintenance of the Equipment. Lessee, at its expense will keep the Equipment in good
repair and furnish all parts, mechanisms and devices required therefor.
9. Alterations. Lessee will not make any alterations, additions or improvements to the
Equipment without Lessor's prior written consent unless such alterations, additions or improvements may
be readily removed without damage to the Equipment.
10. Location; Inspection, The Equipment will not be removed from, [or if the Equipment
consists of rolling stock, its permanent base will not be changed from] the Equipment Location without
Lessor's prior written consent which will not be unreasonably withheld. Lessor will be entitled to enter
upon the Equipment Location or elsewhere during reasonable business hours to inspect the Equipment or
observe its use and operation.
11. Liens and Taxes. Lessee shall keep the Equipment free and clear of all levies, liens and
encumbrances. Lessee shall pay, when due, all charges and taxes (local, state and federal) which may
now or hereafter be imposed upon the ownership, leasing, rental, sale, purchase, possession or use of the
Equipment, excluding however, all taxes on or measured by Lessor's income. If Lessee fails to pay said
charges and taxes when due, Lessor shall have the right, but shall not be obligated, to pay said charges
and taxes. If Lessor pays any charges or taxes, Lessee shall reimburse Lessor therefor within ten days of
written demand.
12. Risk of Loss: Damage; Destruction. Lessee assumes all risk of loss or damage to the
Equipment from any cause whatsoever, and no such loss of or damage to the Equipment nor defect
therein nor unfitness or obsolescence thereof shall relieve Lessee of the obligation to make Lease
Payments or to perform any other obligation under this Lease. In the event of damage to any item of
Equipment, Lessee will immediately place the same in good repair with the proceeds of any insurance
recovery applied to the cost of such repair. If Lessor determines that any item of Equipment is lost,
stolen, destroyed or damaged beyond repair, Lessee at the option of Lessor will: either (a) replace the
same with like equipment in good repair; or (b) on the next Lease Payment date, pay Lessor the sum of:
(i) all amounts then owed by Lessee to Lessor under this Lease, including the Lease payment due on such
date; and (ii) an amount equal to all remaining Lease Payments to be paid during the Lease Term as set
forth in Schedule B.
In the event that Lessee is obligated to make such payment with respect to less than all of the
Equipment, Lessor will provide Lessee with the pro rata amount of the Lease Payment and the Balance
Payment (as set forth in Schedule B) to be made by Lessee with respect to that part of the Equipment
which has suffered the Event of Loss.
13. Insurance. Lessee will, at its expense, maintain at all times during the Lease Term, fire and
extended coverage, public liability and property damage insurance with respect to the Equipment in such
amounts, covering such risks, and with such insurers as shall be satisfactory to Lessor, or, with Lessor's
prior written consent, Lessee may self - insure against any or all such risks. All insurance covering loss of
or damage to the Equipment shall be carried in an amount no less than the amount of the then applicable
Balance Payment with respect to such Equipment. The initial amount of insurance required is set forth in
Schedule B. Each insurance policy will name Lessee as an insured and Lessor or its Assignee as an
additional insured, and will contain a clause requiring the insurer to give Lessor at least thirty (30) days
prior written notice of any alteration in the terms of such policy or the cancellation thereof. The proceeds
of any such policies will be payable to Lessee and Lessor or its Assignee as their interests may appear.
Upon acceptance of the Equipment and upon each insurance renewal date, Lessee will deliver to Lessor a
certificate evidencing such insurance. In the event that Lessee has been permitted to self - insure, Lessee
will furnish Lessor with a letter or certificate to such effect. In the event of any loss, damage, injury or
accident involving the Equipment, Lessee will promptly provide Lessor with written notice thereof and
make available to Lessor all information and documentation relating thereto.
14. Indemnification. Lessee shall, to the extent permitted by law, indemnify Lessor against, and
hold Lessor harmless from, any and all claims, actions, proceedings, expenses, damages or liabilities,
including attorneys' fees and court costs, arising in connection with the Equipment, including, but not
limited to, its selection, purchase, delivery, possession, use, operation, rejection, or return and the
recovery of claims under insurance policies thereon.
15. Assignment. Without Lessor's prior written consent, Lessee will not either (i) assign,
transfer, pledge, hypothecate, grant any security interest in or otherwise dispose of this Lease or the
Equipment or any interest in this Lease or the Equipment or; (ii) sublet or lend the Equipment or permit it
to be used by anyone other than Lessee or Lessee's employees. Lessor may assign its rights, title and
interest in and to this Lease, the Equipment and any documents executed with respect to this Lease and/or
grant or assign a security interest in this Lease and the Equipment, in whole or in part. Any such
assignees shall have all of the rights of Lessor under this Lease. Subject to the foregoing, this Lease
gn g Subject
to the benefit of and is binding upon the heirs, executors, administrators, successors and assigns of
the parties hereto.
Lessee covenants and agrees not to assert against the Assignee any claims or defenses by way of
abatement, setoff, counterclaim, recoupment or the like which Lessee may have against Lessor. No
assignment or reassignment of any Lessor's right, title or interest in this Lease or the Equipment shall be
effective unless and until Lessee shall have received a notice of assignment, disclosing the name and
address of each such assignee; provided, however, that if such assignment is made to a bank or trust
company as paying or escrow agent for holders of certificates of participation in the Lease, it shall
thereafter be sufficient that a copy of the agency agreement shall have been deposited with Lessee until
Lessee shall have been advised that such agency agreement is no longer in effect. During the Lease Term
Lessee shall keep a complete and accurate record of all such assignments in form necessary to comply
with Section 149(a) of the Code, and the regulations, proposed or existing, from time to time promulgated
thereunder. No further action will be required by Lessor or by Lessee to evidence the assignment, but
Lessee will acknowledge such assignments in writing if so requested.
After notice of such assignment, Lessee shall name the Assignee as additional insured and loss
payee in any insurance policies obtained or in force. Any Assignee of Lessor may reassign this Lease and
its interest in the Equipment and the Lease Payments to any other person who, thereupon, shall be deemed
to be Lessor's Assignee hereunder.
16. Event of Default. The term "Event of Default ", as used herein, means the occurrence of any
one or more of the following events: (i) Lessee fails to make any Lease Payment (or any other payment)
as it becomes due in accordance with the terms of the Lease, and any such failure continues for ten (10)
days after the due date thereof; (ii) Lessee fails to perform or observe any other covenant, condition, or
agreement to be performed or observed by it hereunder and such failure is not cured within twenty (20)
days after written notice thereof by Lessor; (iii) the discovery by Lessor that any statement,
representation, or warranty made by Lessee in this Lease or in writing ever delivered by Lessee pursuant
hereto or in connection herewith is false, misleading or erroneous in any material respect; (iv) proceedings
under any bankruptcy, insolvency, reorganization or similar legislation shall be instituted against or by
Lessee, or a receiver or similar officer shall be appointed for Lessee or any of its property, and such
proceedings or appointments shall not be vacated, or fully stayed, within twenty (20) days after the
institution or occurrence thereof; or (v) an attachment, levy or execution is threatened or levied upon or
against the Equipment.
17. Remedies. Upon the occurrence of an Event of Default, and as long as such Event of Default
is continuing, Lessor may, at its option, exercise any one or more of the following remedies: (i) by
written notice to Lessee, declare all amounts then due under the Lease, and all remaining Lease Payments
due during the Fiscal Year in effect when the default occurs to be immediately due and payable,
whereupon the same shall become immediately due and payable; (ii) request by written notice that Lessee
promptly deliver the Equipment to Lessor or its Assignee; and (iii) exercise any other right, remedy or
privilege which may be available to it under applicable laws of the state of the Equipment Location or any
other applicable law or proceed by appropriate court action to enforce the terms of the Lease or to recover
damages for the breach of this Lease or to rescind this Lease as to any or all of the Equipment. If Lessor
terminates this Lease and receives possession of the Equipment, Lessor may sell or lease the Equipment
or sublease it for the account of Lessee. If the proceeds of such sale, lease or sublease are not sufficient to
pay the balance of any Lease Payments or other amounts owed by Lessee under the Lease, Lessor may
pursue such other remedies as are available at law or in equity to collect the balance of such Lease
Payments or other amounts from Lessee's legally available funds. In addition, Lessee will remain liable
for all covenants and indemnities under this Lease and for all legal fees and other costs and expenses,
including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed
above or any other remedy available to Lessor.
17.1. Return of the Equipment. In the event that Lessee determines to return the Equipment to
Lessor or its Assignee pursuant to Section 5 or 17 hereof, Lessee agrees to transfer title to and deliver
possession of the Equipment in the condition hereafter required by preparing and appropriately protecting
the Equipment for shipment and, at Lessor's option, (i) surrendering the Equipment to Lessor at the
Equipment Location specified in Schedule A hereto, or (ii) loading the Equipment on board such carrier
as Lessor shall specify and shipping the same, freight collect, to Lessor at the place designated by Lessor.
In the event of any such delivery of the Equipment to Lessor, Lessee shall execute and deliver such
documents as may reasonably be required to transfer title to and possession of the Equipment to Lessor,
free and clear of all liens to which the Equipment has become subject.
Upon such delivery of the Equipment to Lessor, if the Equipment is damaged or otherwise made
less suitable for the purposes for which it was manufactured than when delivered to Lessee (reasonable
wear and tear excepted), Lessee agrees, at its option, to: (a) repair or restore such Equipment to the same
condition in which it was received by Lessee (reasonable wear and tear excepted) and, at its expense,
promptly return such Equipment to Lessor (or to a location identified in a written notice to Lessee) or
(b) pay to Lessor the actual cost of such repair, restoration and return.
There is no intent to create under any provision of this Lease a right in Lessor to involuntarily
dispossess Lessee of the legal title to or the use of the Equipment. Lessor hereby irrevocably waives any
right to specific performance of any covenant of Lessee to transfer legal title to and return possession of
the Equipment.
18. Purchase Option. Upon thirty (30) days prior written notice from Lessee to Lessor, and
provided that no Event of Default has occurred and is continuing, or no event, which with notice or lapse
of time, or both could become an Event of Default, then exists, Lessee will have the right to purchase the
Equipment on the Lease Payment Dates set forth in Schedule B by paying to Lessor, on such date, the
Lease Payment then due together with the Balance Payment amount set forth opposite such date. Upon
satisfaction by Lessee of such purchase conditions, Lessor will transfer any and all of its right, title and
interest in the Equipment to Lessee as is, without warranty, express or implied, except that the Equipment
is free and clear of any liens created by Lessor.
19. Notices. All notices to be given under this Lease shall be made in writing and mailed by
certified mail, return receipt requested, to the other party at its address set forth herein or at such address
as the party may provide in writing from time to time. Any such notice shall be deemed to have been
received five days subsequent to such mailing.
20. Section Headings. All section headings contained herein are for the convenience of
reference only and are not intended to define or limit the scope of any provision of this Lease.
21. Governing Law. This Lease shall be construed in accordance with, and governed by the laws
of, the state of the Equipment Location.
22. Delivery of Related Documents. Lessee will execute or provide, as requested by Lessor, such
other documents and information as are reasonably necessary with respect to the transaction contemplated
by this Lease.
23. Entire Agreement; Waiver. This Lease, together with the Delivery and Acceptance
Certificate and other attachments hereto, and other documents or instruments executed by Lessee and
Lessor in connection herewith, constitutes the entire agreement between the parties with respect to the
Lease of the Equipment, and this Lease shall not be modified, amended, altered, or changed except with
the written consent of Lessee and Lessor. Any provision of this Lease, which is prohibited or
unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability, without invalidating the remaining provisions hereof. To the extent
permitted by applicable law, Lessee and Lessor hereby waive any provision of law that prohibits or
renders unenforceable any provision of this Lease in any respect.
The waiver by Lessor of any breach by Lessee of any term, covenant or condition hereof shall not
operate as a waiver of any subsequent breach thereof.
24. Execution in Counterparts. This Lease may be executed in several counterparts, each of
which shall be deemed an original and all of which shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day of March, 2016.
LESSEE: LESSOR:
CITY OF BOYNTON BEACH MOTOROLA SOLUTIONS, INC.
By:_ _.._.... __. B
Title: Title:
OPINION OF COUNSEL
With respect to that certain Equipment Lease - Purchase Agreement dated March , 2016 by and
between Motorola Solutions, Inc. and the Lessee, I am of the opinion that: (i) the Lessee is, within the meaning of
Section 103 of the Internal Revenue Code of 1986, a state or a fully constituted political subdivision or agency of
the State of the Equipment Location described in Schedule A hereto; (ii) the execution, delivery and performance
by the Lessee of the Lease have been duly authorized by all necessary action on the part of the Lessee, (III) the
Lease constitutes a legal, valid and binding obligation of the Lessee enforceable in accordance with its terms; and
(iv) Lessee has sufficient monies available to make all payments required to be paid under the Lease during the
current fiscal year of the Lease, and such monies have been properly budgeted and appropriated for this purpose
in accordance with State law.
Attorney for CITY OF BOYNTON BEACH
SCHEDULE A
EQUIPMENT LEASE- PURCHASE AGREEMENT
Schedule A 23866
Lease Number:
This Equipment Schedule dated as of March , 2016 is being executed by MOTOROLA
SOLUTIONS, INC. ( "Lessor ") and CITY OF BOYNTON BEACH (Lessee "), as a supplement to, and is
hereby attached to and made a part of that certain Equipment Lease - Purchase Agreement Number 23866 dated
as of March , 2016 ( "Lease "), between Lessor and Lessee.
Lessor hereby leases to Lessee under and pursuant to the Lease, and Lessee hereby accepts and leases
from Lessor under and pursuant to the Lease, subject to and upon the terms and conditions set forth in the Lease
and upon the terms set forth below, the following items of Equipment
QUANTITY DESCRIPTION (Manufacturer, Model, and Serial Nos.)
Refer to attached Equipment List.
Equipment Location:
Initial Term: 84 Months Commencement Date: 4/1/2016
First Payment Due Date: 4/1/2017
7 Annual Payments of $371,622.94 as outlined in the attached Schedule B, plus Sales /Use Tax of $0.00,
payable on the Lease Payment Dates set forth in Schedule B.
EXECUTED as of the date first herein set forth.
LESSEE: LESSOR:
CITY OF BOYNTON . BEACH Motorola Solutions, Inc.
By:
B
Title: __.._. _._.. Title;
•
City of Boynton Beach (Schedule B)
: Compound Period: Annual
Nominal Annual Rate: ; 2.660%
CASH FLOW DATA
Event Date Amount Number Period End Date •
1 Loan 4/1/2016 $.2;345,276.00 1
2'- Payment 4/1/2017 $ 371,622.94 7. Annual 4/1/2023,
AMORTIZATION SCHEDULE - Normal Amortization, 360 Day Year
Date Payment; Interest Principal Balance;
•
Loan 4/1/2016 $ 2,345,276.00
1 4/1/2017 $ 371,622.94 ; $ 62,384.34: $ 309,238.60: $ 2,036,037.40
2 4/1/2018 ' $ 371,622.94 ; $ 54,158.59 $ 317,464.35 $1,718,573.05
3 4/1/2019 $ 371,622.94 ' $ 45,714.04 $ 325,908.90 $ 1,392,664.15
4 4/1/2020. $ 371,622.94 $ 37,044.87 ' $ 334,578.07. $ 1,058,086.08
5 4/1/2021 $ 371,622.94 , $ 28,145.09 , $ 343,477.85 $ 714,608.23
6 4/1/2022 $ 371,622.94 $ 19,008.58 $ 352,614.36: $ 361,993,87
7 4/1/2023 $ 371, 622.94 $ 9,629.07 ; $ 361, 993.87 , $ -
Grand Totals $ 2,601,360.58 $ 256,084.58 $ 2,345,276.00
INITIAL INSURANCE REQUIREMENT: $2,345,276,00
Except as specifically provided in Section five of the Lease hereof, Lessee agrees to pay.to Lessor or its assignee the Lease Payments, including the
interest portion, in the amounts and dates specified in the above payment schedule.
LESSEE: LESSOR:
CITY OF BOYNTON BEACH Motorola Solutions, Inc.
By: �_. By:
Title: Title:
Date: Date:
CERTIFICATE OF INCUMBENCY
•
I, do hereby certify that I am the duly elected or
(Signature of Secretary/Clerk )
appointed and acting Secretary or Clerk of the CITY OF BOYNTON BEACH , an entity duly organized and
existing under the laws of the State of Florida that I have custody of the records of such entity, and that, as of
the date hereof, the individuals named below are the duly elected or appointed officers of such entity holding
offices set forth opposite of their respective names. I further certify that (i) the signatures set opposite their
respective names and titles are their true and authentic signatures and (ii) such officers have the authority on
behalf of such entity to enter into that certain Equipment Lease Purchase Agreement number 23866 dated
March , 2016, and Schedule A number 23866 dated March , 2016, between CITY OF BOYNTON
•
BEACH and Motorola Solutions, Inc. .
Name Title Signature
(Individual who signed Lease documents should be listed here and sign where applicable)
IN WITNESS WHEREOF, I have executed this certificate and affixed the seal of CITY OF BOYNTON
BEACH , hereto this day of March, 2016.
•
By. �_. _._
(Signature of Secretary/Clerk)
SEAL
•
EVIDENCE OF INSURANCE
Fire, extended coverage, public liability and property damage insurance for all of the Equipment listed on Schedule A number 23866
dated March , 2016 to that certain Equipment Lease Purchase Agreement number 23866 dated March , 2016will be
maintained by the CITY OF BOYNTON BEACH as stated in the Equipment Lease Purchase Agreement.
This insurance shall name MOTOROLA SOLUTIONS, INC, or its assignee as additional insured and loss payee for the term of the
Schedule A number 23866 dated March , 2016.
This insurance is provided by:
•
Name of insurance provider
Address of insurance provider
City, State and Zip Code
Phone number of insurance provider
In accordance with the Equipment Lease Purchase Agreement,Number 23866 , CITY OF BOYNTON BEACH , hereby certifies that
following coverage are or will be in full force and effect:
Type Amount Effective Expiration Policy
Date Date Number
Fire and Extended Coverage
Property Damage
Public Liability
Lessee:
•
CITY OF BOYNTON BEACH
By:
Y
•
Its:
Date: March , 2016
STATEMENT OF ESSENTIAL USE /SOURCE OF FUNDS
To further understand the essential governmental use intended for the equipment together with an understanding
of the sources from which payments will be made, please titidlress the f'r.7.11owiilg•yuestioiis by completing this
form or by sending a separate letter:
I . What is the specific use of the equipment?
2. Why is the equipment essential to the operation of CITY OF BOYNTON BEACH?
3. Does the equipment replace existing equipment?
If so, why is the replacement being made?
4. Is there a specific cost justification for the new equipment?
If yes, please attach outline of justification.
5. What is the expected source of funds for the payments due under the Lease for
the current fiscal year and future fiscal years?
Lessee: CITY OF BOYNTON BEACH
By:
Its:
Date: March , 2016
•
LESSEE RESOLUTION
At a duly called meeting of the Governing Body of the Lessee (as defined in the Lease Agreement) held on
March , 2016 the following resolution was introduced and adopted.
BE IT RESOLVED by the Governing Board of Lessee as follows:
1. Determination of Need. The Governing Body of Lessee has determined that a true and very real need
exists for the acquisition of the Equipment or other personal property described in the Lease Schedule
dated as March 2016, between CITY OF BOYNTON BEACH (Lessee) and Motorola
Solutions, Inc. (Lessor).
2. Approval and Authorization. The Governing body of Lessee has determined that the Lease
Agreement, substantially in the form presented to this meeting, is in the best interests of the Lessee for
the acquisition of such Equipment or other personal property, and the Governing Board hereby approves
the entering into of the Lease Agreement by the Lessee and hereby designates and authorizes the
following person(s) to execute and deliver the Lease Agreement on Lessee's behalf sith such changes
thereto as such person deems appropriate, and any related documents, including any escrow agreement,
necessary to the consummation of the transactions contemplated by the Lease Agreement.
Authorized Individual(s):
Printed or typed name(s) and title(s) of Individual(s) authorized to execute the Lease Agreement.
3. Adoption of Resolution. The signatures below from the designated individuals for the Governing Body
of the Lessee evidence the adoption by the Governing Body of this Resolution.
Signature: Attested By:
Name and Title : Name and Title:
•
•
•
Farm 1038-6 Information Return for Tax - Exempt Governmental Obligations
(Rev. September 2011) • Under Internal Revenue Code section 149(e) OMB No. 1545 - 0720
• See separate instructions.
Department the Treasury Caution: If the issue price is under $100,000, use Form 8038 -GC.
Internal Revenue Service ice
part'. f" Reporting Authority If Amended Return, check here • ❑
1 issuer's namo 2 Issuer's employer Identification number (EIN)
City'of Boynton, Beach
3a Name of person (other than issuer) with whom the IRS may communicate about this return (see instructions) 3b Telephone number of other person shown on 3a
4 Number and street (or P.O. box if mail is not delivered to street address) Room /suite 5 Report number (For IRS Use Only)
100 E. Boynton Beach Blvd. 1.31 1 1
6 City, town, or post office, state, and ZIP code 7 Date of issue
Boynton'Beach FL 33435 • 4
8 Name of issue
9 CUSIP number I
Equipnicnt Lease - Purchase Agreement 23866 .
10a Name and title of officer or other employee of the issuer whom the IRS may call for more information (see 10b Telephone number of officer or other
instructions) employee shown on 10a
"Pait:lll Type of Issue (enter the price). See the instructions and attach schedule: . -•
11 Education 11
12 Health and hospital . . 12
13 Transportation . • 13 ,
14 Public safety 14 2,345,276.00
15 Environment (including sewage bonds) .. . ' 15
16 Housing 16 • .
17 Utilities . . 17
18 Other. Describe ■ 18
19 If obligations are TANs or RANs, check only box 19a ® n
If obligations are BANs, check only box 19b ► ❑ '
• 20 If obligations are in the form of a lease or installment sale, check box .. . . . . .. ► ❑ ,
Part,IIIJ Description of Obligations. Complete for the, entire issue for which this form is being-filed.
(c) Stated redemption (d) Weighted (e) Yield
(a) Final maturity date (b) Issue price price at maturity average maturity
21 4/1/23 $ 2,345,276.00 $ 2,345,276.00 7 years 2.66 %
Part W Uses of Proceeds of Bond Issue (including underwriters' discount)
22 Proceeds used for accrued interest .. 22
23 Issue price of entire issue (enter amount from line 21, column (b)) . . • • 23 2,345,276.00
24 Proceeds used for bond issuance costs (including underwriters' discount) . - 24
25 Proceeds used for credit enhancement 2 5
26 Proceeds allocated to reasonably required reserve or replacement fund , 26
27 Proceeds used to currently refund prior Issues 27
28 Proceeds used to advance refund prior issues ' • 28
29 Total (add lines 24 through 28) • • 29
30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here) . . . 30
Description of Refunded Bonds. Complete this at only for refunding bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► years
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years
33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) ►
34 Enter the dates) the refunded bonds were issued I► (MM /DDA'YYY)
For Paperwork Reduction Act Notice, see separate instructions. Cat. No. 63773S Form 8038 (Rev. 9 -2011)
Form 8038 -G (Rev. 9 -2011) Page 2
'art VI Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . . . 35
36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract
(GIC) (see instructions) 36a
b Enter the final maturity date of the GIC ► -
c Enter the name of the GIC provider
37 Pooled financings: Enter the amount of the proceeds of this issue that are to be used to make loans -
to other governmental units 37
38a If this issue is a loan made from the proceeds of another tax- exempt issue, check box ► ❑ and enter the following information:
b Enter the date of the master pool obligation P.
c Enter the EIN of the issuer of the master pool obligation 10-. •
d Enter the name of the Issuer of the master pool obligation ► -
39 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box . . • ❑
40 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box ► ❑
41a If the issuer has identified a hedge, check here ► El and enter the following information:
b Name of hedge provider ►
c Type of hedge P
d Term of hedge ►
42 If the issuer has superintegrated the hedge, check box . ► ❑
43 If the issuer has established written procedures to ensure that all nonqualified bonds of this issue are remediated
according to the requirements under the Code and Regulations (see instructions), check box ■ ❑
44 If the issuer has established written procedures to monitor the requirements of section 148, check box • LI
45a If some portion of the proceeds was used to reimburse expenditures, check here ► ❑ and enter the amount
of reimbursement ►
b Enter the date the official intent was adopted ►
Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
Signature and belief, they are true, correct, and complete. I further declare that I consent to the IRS's disclosure of the issuer's return Information, as necessary to
and process this return, to the person that I have authorized above.
Consent
Signature of Issuer's authorized representative Date Type or print name and title
Print/Type preparer's name Preparer's signature Date PTIN
Paid Check ❑ if
self - employed
Preparer -
Use Only
Firm's name Id Firm's EIN -
Firm's address ► Phone no.
Form 8038 -G (Rev. 9 -2011)
•
EQUIPMENT LEASE PURCHASE AGREEMENT DELIVERY AND
ACCEPTANCE CERTIFICATE
The undersigned Lessee hereby acknowledges receipt of the Equipment described below ( "Equipment ") and Lessee
hereby accepts the Equipment after full inspection thereof as satisfactory for all purposes of lease Schedule A to the
Equipment Lease Purchase Agreement executed by Lessee and Lessor.
Equipment Lease Purchase Agreement Date: March , 2016
Lease Schedule A Date:March • , 2016
Equipment Lease Purchase Agreement No.: 23866 Lease Schedule A No. : 23866
EQUIPMENT INFORMATION
QUANTITY MODEL NUMBER EQUIPMENT DESCRIPTION _. .
Equipment referenced in lease Schedule A#
23866 dated March _ 2016. See
Schedule A for a detailed Equipment List.
LESSEE:
• CITY OF BOYNTON BEACH
By:
Date:
-, I tt ..
Motorola Solutions, Inc.
Date: February 24, 2016
Financing proposal for: City of Boynton Beach, FL
Communications System Financing Proposal
Motorola Solutions Credit Company LLC is pleased to submit the following proposal for the financing of your
Motorola Communications P -25 solution in accordance with the terms and conditions outlined below:
Transaction Type: Municipal Lease - Purchase Agreement
Lessor: Motorola Solutions, Inc. (or its Assignee)
Lessee: City of Boynton Beach, FL
Amount: $2,345,276.00
Down Payment: $0.00
Balance to Finance: $2,345,276.00
Equipment: As per the Motorola equipment proposal.
Title: Title to the equipment will vest with the Lessee.
Insurance: Lessee will be responsible to insure the equipment as outlined in the leas€
contract.
Taxes: Personal property, sales, leasing, use, stamp, or other taxes are for the
account of the Lessee.
Option One Option Two Option Three
Lease Term: Five Years Seven Years Ten Years
Payment Frequency: Annual Annual Annual
Payment Structure: Arrears Arrears Arrears
Lease Rate: 2.67% 2.86% 3.18%
Lease Factor: 0.216301 0.159661 0.118310
Lease Payment: $507,286.32 $374,448.04 $277,469.44
Payment Commencement: First payment due
one year after
contract
execution.
Expiration: This interest rate methodology is valid for all leases commenced by
2/26/2016
Indexing arrangement —Non bank qualified structure 5, 7 and 10 year terms
The Lease Payments shall be calculated using a rate of interest ( "Lease Rate ") that is initial
indexed to the five (5), seven (7) or ten year (10) average life Interest Rate Swap (the "Index Rate
as reported on the Federal Reserve Statistical Release H.15 Report. The average life Interest Rai
Swap corresponds to the respective lease term. The H.15 Report can be accessed at the Feder.
ILAe1 �_ ate_ "--- .— :a —_.-a rN_a_ az-_ s:_
Keserve bank weo site: www .teaeralreserve.gov /releasesIn1 !. un the i ommitment uate, ine tin
Lease Rate will be calculated by taking the Index Rate for that date from the H.15 Report, plus
spread of 3.06% and multiplying the sum of those two numbers by .64 to calculate the Lease Rai
for the 5 year term. The rate for the 7 year term will be calculated by taking the Index Rate for the
date from the H.15 Report, plus a spread of 3.17% and multiplying the sum of those two number
by .64. The rate for the 10 year term will be calculated by taking the Index Rate for that date fro'
the H.15 Report, plus a spread of 3.45% and multiplying the sum of those two numbers by .64. TI'
rates are then fixed for the full term of the Lease.
The following H.15 average life Index Rates were in place at the approximate time this quote we
issued:
5 year : 1.12%
7 year : 1.30%
10 year: 1.52%
Qualifications: Receipt of a properly executed documentation package.
Lessee qualifies as a political subdivision or agency of the State as
defined in the Internal Revenue Code of 1986. The interest portion
of the Lease Payments shall be excludable from the Lessor's
gross income pursuant to Section 103 of the Internal Revenue Code.
Receipt of a copy of the last years audited financial statements
and current year's budget from the Lessee.
This proposal should not be construed as a commitment to finance.
It is subject to final Motorola credit committee approval. This quote
is based on the general level of interest rates, primarily U.S. Treasury
Bills of like term maturity. Any movement in those rates in excess
of 10 basis points will result in the revision of this quote.
Documentation: Municipal Equipment Lease Purchase Agreement
Opinion of Counsel
Schedule A / Equipment List
Schedule B / Amortization Schedule
8038G
UCC -1
Certificate of Incumbency
Statement of Essential Use /Source of Funds
Evidence of Insurance or Statement of Self Insurance
Resolution from governing body authorizing the execution of the Lease
Please feel free to contact me if there are any questions or if an alternate
structuring is required.
Regards,
Bill Stancik
Motorola Customer Financing
847 - 538 -4531