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0 COMMUNICATIONS SYSTEM AGREEMENT This Agreement made and entered into this of )J\o.r-'cb , 1992 by and between 1ay Motorola Illinois Communications and Electronics, Inc. , an corporation (hereinafter, "MOTOROLA") and City of political subdivision and municipal corporation of of Idaho (hereinafter, "CITY") . Moscow, a the State Recitals WHEREAS CITY desires to purchase a Communications System; and WHEREAS MOTOROLA desires to sell a Communications System; and THEREFORE, the parties hereby enter into an Agreement pursuant to which MOTOROLA shall perform the work and furnish the equipment and services as more fully set forth herein and in the following exhibits, which are attached hereto and incorporated by reference and hereby made a part of this Agreement: Exhibit A: General Provisions dated January, 1987, consisting of nine pages and nineteen {19) sections; Exhibit B: MOTOROLA Software License; Exhibit c: MOTOROLA Proposal and Equipment List dated May 31, 1991; and Exhibit D: Purchaser's Specification NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the parties agree as follows: Section 1 A. Statement of Work. MOTOROLA shall provide and furnish all of the equipment as outlined in Exhibit c Proposal and Equipment List, and MOTOROLA shall provide and furnish such tools, supplies, labor and supervision necessary for the proper installation for such equipment to be installed as detailed in Exhibit c Proposal and Equipment List for a Communications system. . , ---PAGE BREAK--- B. CITY shall, in addition to other such duties described elsewhere in this Agreement, perform the following coincident with the performance of this Agreement: SECTION 2 Designate and Provide a Project Director; (2 ) Provide Ingress and egress to CITY's facilities andjor sites as requested by MOTOROLA for purposes of installing said Communications System and have such facilities andjor sites available for installation of such equipment; (3 ) Provide adequate telephone lines for the installation and operation of the equipment as required by MOTOROLA; Provide adequate alternative current (AC) power at 117 VAC power at 117 VAC ± 10%, 60 Hz for the installation and operation of the equipment; Provide a designated work area with adequate heat and light, and a secure storage area for equipment delivered to the CITY. The CITY shall be solely liable for loss or damage to equipment prior to, during, and after installation when such equipment is on or within CITY's facilities andjor vehicles, PROVIDED that such liability will not apply during such times as MOTOROLA's agents and employees, contractors andjor subcontractors are in the act of installing such equipment. Sites. This Agreement is predicated upon the utilization of sites and site configurations which have been selected by either CITY or MOTOROLA as designated in the MOTOROLA Proposal and Equipment List. In either situation, should it be determined by either CITY or MOTOROLA during the course of performance of this Agreement that the sites or configuration selected are no longer available or desired, that replacement sites or configuration wilĞ be selected by CITY and approved by MOTOROLA. If such a change in site or configuration results in an increase in the cost of work, such adjustment of price will be made in accordance with Section 4 of Exhibit A General Provisions; provided that if such site or configuration as provided in this ---PAGE BREAK--- section was originally selected by MOTOROLA, no such change order will be allowed. SECTION 3 Subsurface/Structural Conditions This Agreement and the MOTOROLA Proposal and Equipment List are predicated upon normal soil conditions defined by E. I. A. standard R. S. 222 (most recent revision) . Should MOTOROLA encounter subsurface, structural, and/ or latent conditions at any site differing from those indicated on the specifications or as used in the preparation of the bid price, the CITY will be given immediate notice of such conditions before they are further disturbed. Thereupon, MOTOROLA and the CITY shall investigate the conditions and if found to be different will adjust the plans andjor specifications as may be necessary. Any changes which result in an increase in the cost of the work or necessitate an extension of time required for performance of this Agreement shall be adjusted in accordance with Section 4 of Exhibit A General Provisions. SECTION 4 . - - . · - - · Period of Performance A. MOTOROLA shall complete the work in accordance with the following schedule: 1) Delivery Date of Equipment: Not later than 3 5 days from the date of this Agreement. 2) Completion of Installation and Automatic Number Identification: Not later than 65 days from the date of this Agreement; 3) Final Acceptance/Completion of Acceptance: Not later than 40 days from the date of completion of installation. B. Whenever MOTOROLA knows, or in the exercise of reasonable diligence should know that any actual or potential condition exists due to circumstances not of MOTOROLA's making and beyond its ability to control is delaying or threatens to delay the timely performance of work required under this Agreement, MOTOROLA shall immediately give CITY notice of such condition and may request such extension of time of performance in accordance with Section 6 of Exhibit A General Conditions. C. Shipments of equipment shall be made F. O. B. destination to CITY's facilities . ---PAGE BREAK--- D. It is agreed that equipment shipping dates as reflected in this Agreement or in the MOTOROLA Proposal and Equipment List are estimates, and that shipment may be made either prior to, or subsequent to these estimated dates, provided, that in no case shall shipment be delayed so as to prevent MOTOROLA from timely performance of its obligations required under this Agreement. SECTION 5 Acceptance Criteria A. MOTOROLA ·Will submit an Acceptance Test Plan (ATP) which demonstrates system performance in accordance with the specifications contained herein, thirty (3 0 ) days prior to the commencement of the systems test. The CITY shall have fifteen ( 15) days therefrom within which to approve or disapprove the proposed ATP. The successful completion of the ATP shall be the sole criterion for system acceptance. B. Should the CITY commence use of the system or any sub-system thereof for their intended purposes, other than for the express purpose of training or testing, prior to system acceptance, the warranty or maintenance periods for such system actually put into use for its intended purposes other than for training or testing, shall be deemed to have commenced concurrently with the use of the system for its intended purpose, other than for training or testing. The use of the system for its intended purpose other than for training or testing shall be deemed to have occurred when the CITY commences to use and rely primarily on the system for its communications. c. Upon notification by MOTOROLA that the system is available for acceptance testing, it is agreed that should the acceptance testing of the system or any thereof be delayed for any reason not caused by CITY; that final payment for the system shall become due net thirty (3 0 ) days following the actual successful completion of the ATP, and the warranty or maintenance of said system shall commence in accordance with Section 5, subsection B of this Agreement, or following the actual successful completion of the ATP, whichever occurs first. ---PAGE BREAK--- SECTION 6 Pavment Schedule A. MOTOROLA agrees to sell all of the equipment and perform the services as contained in the Agreement and Exhibits thereto, and CITY agrees to buy the aforementioned equipment and services for the sum of ninety-four thousand, three hundred and forty eight dollars ($94, 3 48. 0 0 ) , payable as follows: (1 ) 20% of said purchase price shall be due upon delivery of equipment in accordance with this Agreement and acceptance by CITY thereof; 40% of said purchase price shall be due upon Automatic Number Identification installation and cutover; (3 ) 40% of said purchase price shall be due upon Automatic Location Installation and actual successful completion of the ATP. B. In the event of failure or delay by CITY in providing sites, space, approvals, licenses or any other of CITY's obligations required preceding delivery of equipment, it is agreed that MOTOROLA may ship equipment in conformance with this Agreement and exhibits thereto, and that CITY will accept the equipment and make payment in accordance with the terms of this Agreement, provided that in that event MOTOROLA shall first obtain a destination for said delivery from CITY, and shall ship said equipment F. O. B. that destination. SECTION 7 Project Manaqement A. MOTOROLA, in its sole discretion, may assign a project manager who is authorized to exercise technical direction of the project. B. • v _ tl-_ w- · - • All matters affecting the terms of this Agreement or the administration thereof shall be referred to MOTOROLA's cognizant contract administrator, who shall have authority of MOTOROLA to negotiate changes or amendments to this Agreement with CITY . . . . ---PAGE BREAK--- SECTION 8 Notice Addresses A. Motorola Communications and Electronics, Inc. 130 1 East Algonquin Road SH-4, Schawmburg, Illinois 60 196 Attn: Contract Administration Department B. City of Moscow SECTION 9 P. O. Box 92 0 3 Moscow, ID 83843 Attn: Chief of Police Order of Precedence In the event of inconsistency in this Agreement, the inconsistency shall be resolved in the following order: SECTION 10 Exhibit D, City's Specification. Exhibit A, General Provisions consisting of nine pages and nineteen (19) sections. Exhibit B, Motorola Software License. Exhibit c, Motorola Proposal and Equipment List dated May 31, 1991. Severability If any portion of this Agreement or any exhibits hereto is held to be invalid, such provision shall be considered severable, and the remainder of this Agreement or any provision thereof shall not be affected. SECTION 11 Headings and Section References The headings given to the paragraphs herein are inserted only for convenience and are in no way to be construed as part of this Agreement or as a limitation of scope of the particular paragraph to which the heading refers. SECTION 12 Full Agreement This Agreement and Exhibits hereto constitute the final expression of the Agreement of the Parties and . ' • . ---PAGE BREAK--- supersedes all previous agreements and understandings, whether written or oral relating to the work. This Agreement may not be altered, amended or modified except by written instrument signed by the parties hereto. In witness whereof, the parties hereto have caused this Agreement to be executed by their duly authorized representatives. city of Moscow, Idaho By: PAUL C. AGIDIUS Title: MAYOl{, CITY OF MOSCOW Date Signed: FEBRUARY 4, 1992 Motorola Communications & Electronics, Inc. r&L-- 1 By: t;V _s I Title : DIVTf' Date Signed: 8 / · q ---PAGE BREAK--- EXHIBIT A GENERAL PROVISIONS Section 1 STANDARDS OF WORK MOTOROLA agrees that the performance of work described in this Agreement and pursuant to this Agreement shall be done in a professional manner and shall conform to professional standards. MOTOROLA warrants that all equipment provided under this Agreement shall be new and in good working condition. All packaging and packing shall be in accordance with good commercial practice. Section 2 TAXES The prices set forth in the Agreement are exclusive of any amount for Federal, State or Local excise, sales, lease, gross income service, rental, useĝ property, occupation or similar taxes. If any taxes are determined applicable to this transaction or MOTOROLA is required to pay or bear the burden thereof, the CITY agrees to pay to MOTOROLA the amount of such taxes and any interest or penalty thereon no later than THIRTY (30) DAYS after receipt of an invoice therefor. Section 3 SHIPPING, TITLE AND RISK OF LOSS All sales and deliveries are F. O. B. CITY's facilities. Title to the equipment shall pass to the CITY upon deli very to the F. 0. B. point. After deli very to the F. O. B point, risk of loss and damage to the articles shall be borne by the CITY. The above notwithstanding title to software and any third party supplied software shall not pass upon payment of the license fee therefor or under any circumstances. Section 4 CHANGES IN THE WORK A. The CITY may, at any time, by written order, make changes within the general scope of the work, including but not limited to revisions of, or additions to, portions of the work, or changes in method of shipment or packaging and place of delivery. B. If any order under this Section 4 causes an increase or decrease in the cost of or time required for the performance of any part of the work under this Agreement, an equitable adjustment shall be made in the Agreement price or delivery ---PAGE BREAK--- schedule, or both, and the Agreement shall be modified in writing accordingly. MOTOROLA is not obligated to comply with any order hereunder unless and until the parties reach agreement as to the aforementioned equitable adjustment and same is reflected as an addendum to this Agreement. Section 5 LIMITATION OF LIABILITY Except for personal injury or death, MOTOROLA's total liability whether for breach of contract or warranty, is limited to the price of the particular products sold hereunder with respect to which losses or damages are claimed. CITY's sole remedy is to demand MOTOROLA to either refund the purchase price, repair or replace (at CITY's option) product ( s) that are not as warranted. IN NO EVENT WILL MOTOROLA BE LIABLE FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW. SECTION 6. EXCUSABLE DELAYS A. Neither MOTOROLA nor the CITY shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God; fire; strikes; material shortages; compliance with laws or regulations; riots; acts of war; or any other conditions beyond the reasonable control of the party or parties. B. Delays as identified herein may cause an impact on the Period of Performance stated in the Agreement. Such delays may be subject to an Agreement addendum as described in Section 4. Section 7 DEFAULT . A. If MOTOROLA is responsible for failure to make delivery to complete installation under the agreement, the CITY may consider MOTOROLA to be in default, unless such failure has been caused by the conditions set forth in Section 6b of these General Provisions. B. The CITY shall give MOTOROLA written notice of such default and MOTOROLA shall have fifteen (15) days to provide a plan of action to cure said default. If MOTOROLA fails to cure said default, the CITY may terminate any unfulfilled portion of this Agreement or complete the system through a third party. In the event the CITY completes the system through a third party, MOTOROLA shall be ---PAGE BREAK--- Section 8 responsible for an amount in excess of the Agreement price, incurred by the CITY in completing the system to a capability not exceeding that specified in the Agreement. IN THE EVENT OF DEFAULT, MOTOROLA SHALL BE LIABLE FOR ANY INCIDENTAL, LIQUIDATED, SPECIAL OR CONSEQUENTIAL DAMAGES. DELAYS BY CITY If the CITY is responsible for delays which cause the installation and acceptance of this system as defined in the Agreement, to be rescheduled beyond the Period of Performance set forth in the Agreement in that event such delays will be subject to an Agreement Addendum as described in Section 4. In such event, said Agreement Addendum shall limit such items as: rescheduling charges; storage charges; maintenance charges; and transportation charges. The CITY shall have the option to attempt to minimize actual costs incurred by storing and transporting equipment at its own expense. Section 9 LICENSES/AUTHORIZATION The CITY is solely responsible for obtaining any licenses or other authorizations required by the Federal Communications Commission and for complying with FCC rules. Neither MOTOROLA nor any of its employees is an agent or representative of the CITY in FCC matters or otherwise. MOTOROLA, however, may assist in the preparation of the license applicatio n at no charge to the CITY. CITY acknowledges that project implementation is predicated on receipt of proper FCC licensing. Section 10 INDEMNIFICATION MOTOROLA agrees to and hereby indemnifies and saves CITY harmless from all liabilities, judgments, costs, damages and expenses which may accrue against, be charged to, or recovered from the CITY by reason of or on account of damage to the property of the CITY or the property of, injury to, or death of any person, when such damage or injury is caused by MOTOROLA's negligence or that of its employees, subcontractors, or agents while on the premises of the CITY during the delivery and installation of the communications equipment. Section 11 EQUIPMENT COMPATIBILITY MOTOROLA agrees that the equipment will perform in accordance with the specifications and representations stated in MOTOROLA's Proposal and Equipment List ---PAGE BREAK--- included in this Agreement. This Agreement does not extend to the performance of the equipment as a part of a larger system generally nor specifically to equipment in combination with products, elements or components not supplied by MOTOROLA. Section 12 WARRANTIES A. MOTOROLA represents and warrants that all products, software, and items delivered under this Agreement conform in design, materials and workmanship to the appropriate MOTOROLA Technical Specifications. MOTOROLA further warrants that their products, software, and other items will interact according to the specifications contained in Exhibits c and D. successful completion of the ATP shall constitute full compliance with and fulfillment of this warranty. B. Hardware Warranty: MOTOROLA radio communications products are warranted to be free from defects in material and workmanship for a period of ONE YEAR, except for devices, channel elements, high stability oscillators (other than reference oscillators used for frequency which are warranted for one year) and filters, which are warranted for a period of TEN (10) YEARS from the date of shipment. Parts, including and channel elements, will be replaced free of charge ·for the full warranty period but the labor to replace defective parts will only be provided for ONE HUNDRED TWENTY (12 0) days from the date of shipment. This express warranty is extended by MOTOROLA Communications and Electronics, Inc. , 13 0 1 E. Algonquin Road, Schaumburg, Illinois 60 196, to the original CITY only, and only to those purchasing for purpose of leasing or solely for commercial, industrial, or governmental use. c. Software Warranty: The warranty for software, if any, shall be governed by the separate software license agreement set forth in Section 14. D. The express warranties contained in this section of this agreement are given in lieu of all other warranties, express or implied, which are specifically excluded including, without limitation, the implied warranties of merchantability and fitness for a particular purpose. E. In the event of a defect, malfunction or failure to conform to specifications established by ---PAGE BREAK--- MOTOROLA, or if appropriate, to specifications accepted by MOTOROLA in writing, during the period shown, MOTOROLA, at CITY's option will either repair or replace the equipment or refund the purchase price thereof, and such action on the part of MOTOROLA shall be the full extent of MOTOROLA's liability hereunder. This warranty is void if: the equipment is used in other than its normal and customary manner; the equipment has been subject to misuse, accident, neglect or damage; unauthorized alterations or repairs have been made, or unapproved parts used in the equipment. F. This warranty extends only to individual equipment; batteries are excluded but carry their own separate limiteĜ warranty. Because each radio system is unique, MOTOROLA disclaims liability for range, coverage, or operation of the system as a whole under this warranty. Non-MOTOROLA manufactured products are excluded from this warranty, but subject to the warranty provided by their manufacturers, a copy of which will be supplied to the CITY on specific written request. G. In order to obtain performance of this warranty, the CITY must contact the MOTOROLA salesperson or MOTOROLA at the address first above shown attention Quality Assurance Department. Section 13 CONFIDENTIAL INFORMATION MOTOROLA proprietary computer programs will be released in accordance with the Software License provisions set forth elsewhere, if applicable. All other material and information of confidential nature marked MOTOROLA PROPRIETARY and CONFIDENTIAL will be released as necessary under the following conditions: ( 2 ) . CITY shall exercise reasonable and prudent measures to keep these items in confidence. CITY shall not disclose these items to third parties without prior written permission, unless MOTOROLA makes them public or CITY learns them rightfully from sources independent of MOTOROLA, or it is required by law to be disclosed. ---PAGE BREAK--- MOTOROLA, where necessary, retains the right to prescribe specific security measures if reasonable for the CITY to follow to maintain the confidentiality. In the event disclosure of such information is necessary, a separate Non-Disclosure Agreement will be required. Section 14 SOFTWARE LICENSE AND WARRANTY MOTOROLA will, in the course of the transaction for the items of equipment identified in the Agreement, deliver to CITY, on a licensed basis, one or more computer programs (Product Program) . Deli very of all Product Programs by MOTOROLA and acceptance of same by CITY shall be made only under the terms and conditions as contained in Exhibit B attached hereto and made a part hereof. Product Programs provided will be at Software Level The terms and conditions of the License Agreement contained in Exhibit B shall survive the completion of the Agreement. Section 15 PATENT INDEMNIFICATION MOTOROLA agrees to defend, at its expense, any suits against CITY based upon a claim that any products furnished hereunder directly infringes a u.s. patent or copyright, and to pay costs and damages finally awarded in any such suit, provided that MOTOROLA is notified in writing and at MOTOROLA's request and expense is given control of said suit and all requested assistance for defense of same. If the use or sale of any such product furnished hereunder is enjoined as a result such suit, MOTOROLA, at its option and at no expense to CITY and extend equivalent product or products reasonably acceptable to CITY and extend this indemnity thereto or shall accept the return of said product and reimburse CITY the full purchase price therefor, less a reasonable charge for reasonable wear and tear. This indemnity does not extend to any suit based upon any infringement or alleged infringement of any patent or copyright by the combination of any product(s) furnished by MOTOROLA and other elements nor does it extend to any product ( s) of CITY's design or formula. Section 16 DISCLAIMER OF PATENT LICENSE Nothing contained in this Agreement shall be deemed to grant, either directly or by implication, estoppel, or otherwise, any license under any patents or patent applications of MOTOROLA, except that CITY shall have the normal non-exclusive royalty-free license to use ---PAGE BREAK--- that is implied, or otherwise arises by operation of law, in the sale of a product. Section 17 WAIVER Failure or delay on the part of MOTOROLA or CITY to exercise right or power hereunder shall not operate as a waiver thereof. Section 18 GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the state of Idaho. Section 19 ASSIGNABILITY This Agreement may not be assigned by either party hereto other than MOTOROLA may assign this order to one of its Subsidiaries as in the normal course of business.