Resolution No. 73651
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RESOLUTION NO. 7365
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION
OF A COMMUNICATIONS SYSTEM AGREEMENT BY AND
BETWEEN THE CITY OF VERNON AND MOTOROLA, INC.
WHEREAS, on'February 9, 1999, the Finance Committee of
the City of Vernon recommended that the Police Department proceed
with updates of their computer technology through the purchase of
three inter -related computer systems (1) Mobile Computer Terminals
(MCT's), (2) Vision Records Management System (RMS) and (3)
Computer Aided Dispatch (CAD); and
WHEREAS, on February 16, 1999, the City Council of the
City of Vernon approved the recommendation of the Finance
lCommittee and;
WHEREAS, on March 30, 1999, the Finance Committee of the
City of Vernon recommended that the software systems, mobile
computer terminals, related hardware and necessary utility
connections be purchased by the Vernon Police Department at a cost
not to exceed a total of Six Hundred Thirty Eight Thousand Nine
Hundred Ninety Nine Dollars ($638,999.00); and
WHEREAS, on March 30, 1999, pursuant to Resolution No.
7301, the City Council of the City of Vernon approved a software
licensing agreement with Vision Software, Inc.; and
WHEREAS, the mobile computer terminal vendor for the CAD
segment of the project which was approved by the City Council of
the City of Vernon is Motorola, Inc., who will be installing 17
mobile computers in Police Department patrol vehicles.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
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CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are
true and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Communication System Agreement with Motorola, Inc., a
copy of which has been presented to the City Council concurrently
with this Resolution, and the City Council hereby orders said
Agreement to be received and filed by the City Clerk.
SECTION 3: The City Clerk of the City of Vernon hereby
authorizes the Mayor and the City Clerk to execute said Agreement
for, and on behalf of, the City of Vernon.
SECTION 4: The City Clerk of the City of Vernon shall
certify to the passage of this Resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 29th day of June, 1999.
EONIS C. MAL URG, Hayor
ATTEST:
BRUCE V. MALKENHORST, City Clerk
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1 STATE OF CALIFORNIA )
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2 COUNTY OF LOS ANGELES )
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4 I, BRUCE V. MALKENHORST, City Clerk of the City of
5 Vernon, do hereby certify that the foregoing Resolution, being
6 Resolution No. 7365, was duly adopted by the City Council of the
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City of Vernon at an adjourned regular meeting of the City Council
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8 duly held on Tuesday, June 29, 1999, and thereafter was duly
signed by the Mayor of the City of Vernon.
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11 BRUCE V. MALKENHORST, City Clerk
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SUPPORTING
DOCUMENTS
OFFICE OF THE CITY ADMINISTRATOR/
CITY CLERK
INTER -OFFICE MEMORANDUM
DATE: June 30, 1999
TO: Sol Benudiz, Captain
FROM: Gloria J. OrosC(7bhief Deputy City Clerk
RE: Motorola Communications System Agreement
Our Agreement File No. 99-036
Transmitted herewith is a fully executed duplicate original of
the above referenced agreement which was approved by City Council
on June 29, 1999 through Resolution No. 7365. Please forward
said agreement per your instructions, and if you should attach a
transmittal letter to the agreement, please send this office a
copy.
A fully executed duplicate original of the above referenced
agreement is also being retained in this office for our files.
cc: Dolores Fonseca
COMMUNICATIONS SYSTEM AGREEMENT
Motorola, Inc., a Delaware corporation ("Motorola"), by and through the United States & Canada
t Group of its Commercial, Government, and Industrial Solutions Sector, ("CGISS") and
C_ity_of Vernon ("Vernon") enter into this Communications System Agreement (the "Agreement"),
e dive as of the last date signed below (the "Effective Date"), pursuant to which Vernon will
purchase and Motorola will provide Vernon with a Communications System.
Section 1 EXHIBITS
The Exhibits below are hereby incorporated into and made a part of this Agreement. In
interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will
take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in
the order in which the Exhibits appear below.
Exhibit A Motorola software license agreement ("Software License Agreement")
Exhibit B Motorola equipment list ("Equipment List"), and statement of work ("Statement of
Work") dated 6-10-99
Exhibit C Intentionally omitted
Exhibit D Motorola service agreement ("Service Agreement")
Section 2 DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined within the Agreement have
the following meanings:
"Communications System" or "System" is the communications system described in Exhibit B,
including the Equipment and Software described in the System Description, Statement of Work,
Acceptance Test Plan and Equipment List.
"Equipment" is the equipment specified in the Equipment List included in Exhibit B.
"Motorola Software" is software whose copyright is owned by Motorola.
"Non -Motorola Software" is software whose copyright is owned by a party other than Motorola.
"Software" includes Motorola and any Non -Motorola Software that may be furnished with the
Communications System.
Section 3 SCOPE OF AGREEMENT
A. SCOPE OF WORK. Motorola will assemble and integrate the Equipment and Software, and
deliver, install and test the Communications System at designated sites, as specified in
Exhibit B and in accordance with this Agreement. Vernon will perform its responsibilities as
specified in Exhibit B and in accordance with this Agreement.
B. CHANGE ORDERS. Either party may request changes within the general scope of this
Agreement. If a requested change causes an increase or decrease in the cost of or time
required for the performance of this Agreement, Motorola and Vernon will agree to an
equitable adjustment in the Agreement price or performance schedule, or both. Motorola is
not obligated to comply with requested changes unless and until both parties execute a
written change order.
Contract No. 99-13225/BKP Page 1 Rev. 01/20/99
COMMUNICATIONS SYSTEM AGREEMENT
C.
ADDITIONAL PRODUCTS. For three (3) years after the Effective Date of this Agreement,
Vernon may submit purchase orders for additional portable and mobile subscriber products
manufactured by Motorola's CGISS which are currently available at the time of order. If
Vernon and Motorola have agreed to a convention for processing electronic data interchange
("EDI") transactions, purchase orders may be transmitted electronically. Each purchase order
must specifically refer to this Agreement and will be an offer by Vernon subject to Motorola's
acceptance. Except for pricing and delivery terms, which must be stated on the purchase
order, Vernon and Motorola agree that the applicable terms of the main body of this
Agreement will be the only terms and conditions that govern the purchase and sale of
products identified on such purchase orders. Vernon and Motorola agree that payment for all
additional products so purchased will be due within twenty-five (25) days after the date of
Motorola's invoice for the products.
D.
MAINTENANCE SERVICE. Vernon may purchase maintenance services and software
support for the Communications System pursuant to a separately executed Service
Agreement and/or Software Subscription Agreement.
E.
MOTOROLA SOFTWARE. Any Motorola Software furnished will be licensed to Vernon solely
according to the terms and restrictions of the Software License Agreement attached as
Exhibit A. Vernon hereby accepts all of the terms and restrictions of the Software License
Agreement.
F.
NON-MOTOROLA SOFTWARE. Any Non -Motorola Software furnished by Motorola will be
subject to the terms and restrictions of its copyright owner unless such copyright owner has
granted to Motorola the right to sublicense such Non -Motorola Software, in which case the
Software License Agreement (including any addendum to satisfy such copyright owner's
requirements) shall apply.
Section 4
PERFORMANCE SCHEDULE
A.
Motorola and Vernon agree to perform their responsibilities in accordance with the following
performance schedule as supplemented by the schedule included in the Statement of Work:
1. Motorola will ship the Equipment to designated Vernon site(s) within 12 weeks after the
Effective Date of this Agreement.
2. Motorola will install the Equipment within 3 weeks after the Equipment is delivered to
designated site(s).
3. Motorola and Vernon will complete acceptance testing within 1 weeks after installation is
completed.
B.
By executing this Agreement, Vernon authorizes Motorola to proceed with the manufacture,
assembly, integration, delivery, installation, and testing of the Communications System. No
further notice to proceed, purchase order, authorization, resolution, or any other action will be
required.
Contract No. 99-13225/BKP Page 2 Rev. 01/20/99
COMMUNICATIONS SYSTEM AGREEMENT
,Section 5
PAYMENT SCHEDULE
A.
The total contract price is $204,783.01. Except for the first payment, which is due when
Vernon executes this Agreemen , ernon agrees to make payments to Motorola within
twenty-five (25) days after the date of invoices that will be submitted by Motorola according to
the following payment schedule:
1. 3,0% of the total contract price is due when Vernon executes this Agreement;
2. 60% of the total contract price will be invoiced immediately upon delivery of Equipment,
iFems as delivered;
3. 10% of the total contract price will be invoiced immediately after the Equipment is
installed and optimized.
B.
Overdue invoices will bear interest at a rate of 10% simple interest per annum, unless such
rate exceeds the maximum allowed by law, in which case it shall be reduced to the maximum
allowable rate.
C.
If the total contract price does not include freight charges, all freight charges will be pre -paid
by Motorola and added to the invoices.
Section 6
INSTALLATION AND SITE CONDITIONS
A.
In addition to its responsibilities described in the Statement of Work, Vernon agrees to
provide a designated project director, procure any necessary construction permits, building
permits, zoning variances and the like, provide access to the sites identified in the Exhibits as
requested by Motorola, and have such sites available for installation of the Equipment by
Motorola in accordance with the performance schedule and Statement of Work.
B. If either Motorola or Vernon determines during the course of performance of this Agreement
that the sites identified in the Exhibits are no longer available or desired, or, if subsurface,
structural, adverse environmental or latent conditions at any site differ from those indicated on
the specifications in the Exhibits, Motorola and Vernon will promptly investigate the conditions
and jointly select replacement sites or adjust the installation plans and specifications as
necessary.
C. If Vernon and Motorola determine that any change in sites, site availability, installation plans,
or specifications will require an adjustment in the contract price or in the time required for the
performance of this Agreement, the parties will agree to an equitable adjustment in the price,
performance schedule, or both; and this Agreement will be modified in accordance with
Section 3.13 of this Agreement.
D. 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 of this Agreement.
Section 7 TRAINING
If training is included in this Agreement, Vernon agrees to notify Motorola immediately if a date
change for a scheduled training program is required. A charge will apply to a training program
rescheduled by Vernon less than thirty (30) days prior to its scheduled start date.
Contract No. 99-13225/BKP Page 3 Rev. 01/20/99
COMMUNICATIONS SYSTEM AGREEMENT
. ,aection 8 SYSTEM ACCEPTANCE
A. Motorola will test the Communications System in accordance with the Acceptance Test Plan.
System acceptance will occur upon the successful completion of such testing ("System
Acceptance") at which time both parties shall promptly execute a certificate of system
acceptance. If the Acceptance Test Plan includes separate tests for individual subsystems,
both parties shall promptly execute certificates of subsystem acceptance upon the successful
completion of testing of such subsystems. Minor omissions or variances in performance
which do not materially affect the operation of the Communications System as a whole will not
postpone System Acceptance. Vernon and Motorola will jointly prepare a list of such
omissions and variances which Motorola will correct according to an agreed upon schedule.
B. Motorola agrees to notify Vernon when the Communications System is ready for acceptance
testing. Motorola and Vernon agree to commence acceptance testing within ten (10) business
days after receiving such notification. If testing is delayed for reasons within the control of
Vernon or its contractors, agents and consultants for more than ten (10) business days after
notification, final payment will be due within thirty (30) days after such notification and the
Warranty Period will commence immediately.
C. Motorola may, but is not obligated to, issue written authorization for Vernon's use of the
Communications System or its subsystem(s) for limited training or testing purposes, prior to
the completion of testing by Motorola. Any use of the Communications System without prior
written authorization by Motorola shall constitute System Acceptance.
Section 9 WARRANTY
A. WARRANTY PERIOD. Upon System Acceptance, the System Functionality representation
described below is fulfilled. The Equipment and Motorola Software is warranted fora period of
one (1) year after System Acceptance ("Warranty Period) in accordance with the applicable
limited warranties shown below. In no event will the warranty period last longer than eighteen
(18) months after the Equipment and Software is shipped from Motorola. Vernon must notify
Motorola in writing if Equipment or Motorola Software does not conform to these warranties
no later than one month after the expiration of the Warranty Period.
B. SYSTEM FUNCTIONALITY. Motorola represents that the Communications System will
satisfy the functional requirements in Exhibit B. Upon System Acceptance, this System
Functionality representation is fulfilled. After System Acceptance, the Equipment Warranty set
forth below and the Software Warranty set forth in the Software License Agreement will apply.
Motorola will not be responsible for performance deficiencies of the System caused by
ancillary equipment not furnished by Motorola attached to or used in connection with the
System provided hereunder. Additionally, Motorola will not be responsible for System
performance where the functionality is reduced for reasons beyond Motorola's control
including but not limited to i) an earthquake, adverse atmospheric conditions or other natural
causes; n) the construction of a building that adversely affects the microwave path reliabili
or RF coverage; iii) the addition of additional frequencies at System sites that cause R
interference or intermodulation; iv) Vernon changes to load usage and/or configuration
outside the parameters specified in Exhibit B; v) any other act of parties who are beyond
Motorola's control, including Vernon or its employees, contractors, consultants or agents.
C. EQUIPMENT WARRANTY. Motorola warrants the Equipment against material defects in
material and workmanship under normal use and service during the Warranty Period. Unless
otherwise specified in writing, the Warranty Period for non -Motorola manufactured Equipment
will be as stated in this Section.
Contract No. 99-13225/BKP Page 4 Rev. 01/20/99
COMMUNICATIONS SYSTEM AGREEMENT
At no additional charge and at its option, Motorola will either repair the defective Equipment,
replace it with the same or equivalent Equipment, or refund the purchase price of the
defective Equipment, and such action on the part of Motorola will be the full extent of
Motorola's liability hereunder. Repaired or replaced Equipment is warranted for the balance of
the original applicable warranty period. All replaced parts of the Equipment shall become the
property of Motorola.
THIS WARRANTY DOES NOT APPLY TO
a) Defects or damage resulting from use of the Equipment in other than its normal and
customary manner.
b) Defects or damage occurring from misuse, accident, water, or neglect.
c) Defects or damage occurring from testing, operation, maintenance, installation, alteration,
modification, or adjustment not provided by Motorola pursuant to this Communications
System Agreement.
d) Breakage or damage to antennas unless caused directly by defects in material or
workmanship.
e) Equipment that has been subjected to unauthorized Equipment modifications,
disassembly or repairs (including the addition to the Equipment of non -Motorola supplied
equipment if not authorized by Motorola) which adversely affect performance of the
Equipment or interfere with Motorola's normal warranty inspection and testing of the
Equipment to verify any warranty claim.
f) Equipment which has had the serial number removed or made illegible.
g) Batteries (because they carry their own separate limited warranty).
h) Freight costs to the repair depot.
i) Equipment which, due to illegal or unauthorized alteration of the software/firmware in the
Equipment, does not function in accordance with Motorola's published specifications or
with the FCC type acceptance labeling in effect for the Equipment at the time the
Equipment was initially distributed from Motorola.
j) Scratches or other cosmetic damage to Equipment surfaces that does not affect the
operation of the Equipment.
k) Software.
1) Normal and customary wear and tear.
Contract No. 99-13225/BKP Page 5 Rev. 01/20/99
COMMUNICATIONS SYSTEM AGREEMENT
D. YEAR 2000 EXPRESS WARRANTY. During the Warranty Period, Motorola warrants that
each hardware, software, and firmware product delivered under this Agreement ("Product")
shall be able to accurately process date data (including, but not limited to, calculating,
comparing, and sequencing) from, into, and between the year 1999 and the year 2000,
including leap year calculations, when used in accordance with the Product documentation
provided by Motorola, provided that all products (e.g., hardware, software, firmware) used in
combination with such Product properly exchange date data with it. All Product manufactured
by parties other than Motorola are warranted hereunder based upon Year 2000 statements,
representations, and warranties made by these parties to Motorola. Motorola has not verified
the content of those Year 2000 statements but is merely republishing those statements,
representations, and warranties for purposes of this warranty. For any Product that utilizes
third party computer operating system software, such as Microsoft Windows NT 4.0 or
Windows 95, that third party software is warranted only with respect to the specific functions
of it that are necessary in the performance of the Communication System provided under this
Agreement. The remedies available for breach of this warranty shall be as defined in, and
subject to, the terms and limitations of the Equipment Warranty provided above. Except as
provided herein, nothing in this warranty statement shall be construed to limit any rights or
remedies provided elsewhere in this Agreement with respect to matters other than Year 2000
performance.
E. MOTOROLA SOFTWARE WARRANTY. Motorola Software is warranted in accordance with
the terms of the Software License Agreement attached as Exhibit A.
F. These express limited warranties as set forth in this Section are extended by Motorola to the
original end user purchasing or leasing the System for commercial, industrial, or
governmental use only, and is not assignable or transferable. These are the complete
warranties for the Equipment and Software provided pursuant to this Agreement.
G. THESE WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA
DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL MOTOROLA BE LIABLE
FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE EQUIPMENT, FOR ANY
LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS
OR SAVINGS OR OTHER INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE EQUIPMENT, TO
THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.
Section 10 FCC LICENSES AND AUTHORIZATIONS
Vernon agrees to obtain all Federal Communications Commission ("FCC") licenses and
authorizations required for installation and use of the Communications System prior to the
scheduled installation of the Equipment. Although Motorola may assist in the preparation of
license applications, in no event will Motorola or any of its employees be an agent or
representative of Vernon in FCC matters. Vernon is solely responsible for obtaining all FCC
licenses and for complying with FCC rules.
Section 11 DELAYS
A. Successful project implementation
Because it is impractical to provid
e
Contract No. 99-13225/BKP Page 6 Rev. 01/20/99
COMMUNICATIONS SYSTEM AGREEMENT
B. Under no circumstances will either party be responsible for delays or lack of performance
resulting from events beyond the reasonable control of that party ( Excusable Delays"). Such
events include, but are not limited to, acts of God, weather conditions, compliance with laws
and regulations (excluding Vernon's failure to properly and timely apply for all required FCC
licenses), governmental action, bid protests, fire, strikes, lock -outs, and other labor
disruptions, material shortages, riots, acts of war, and an Excusable Delay of a Motorola
subcontractor.
Vernon will make available to Motorola the sites when scheduled and Vernon will not
otherwise unreasonably delay or prevent Motorola's performance of its responsibilities. In the
event of a Vernon delay during the time of shipment, Motorola may ship the equipment as
scheduled to a location as designated by the Vernon or if no such location is designated, a
Motorola designated storage facility for which Vernon agrees to pay all fees. If Vernon delays
Motorola's performance, the performance schedule will be extended, the Vernon will make
the milestone payments as if no delay occurred, and the parties will execute a Change Order
to compensate Motorola for reasonable charges incurred because of such delays. Such
charges include, but are not limited to, costs incurred by Motorola and/or its subcontractors
for additional freight, warehousing and handling suspending and re -mobilizing the work;
additional engineering and standby time calculated at then current man -day rates; and
preparing and implementing a "work around" plan.
Section 12 DEFAULT
A. If Motorola fails to complete delivery, installation or acceptance testing in accordance with this
Agreement, Vernon may consider Motorola to be in default, unless such failure has been
caused by an Excusable Delay. Vernon agrees to give Motorola written notice of such default.
Motorola will have thirty (30) days from the receipt of such notice to provide a plan of action
that is acceptable to Vernon to cure the default.
B. If Motorola fails to cure the default, Vernon may terminate any unfulfilled portion of this
Agreement. If Vernon completes the Communications System through a third party, Vernon
may recover the reasonable costs of completing the Communications System to a capability
not exceeding that specified in the Agreement, less the unpaid portion of the Contract Price.
Vernon agrees to use its best efforts to mitigate such costs. Motorola's liability under this
Section is subject to the limitations of the Section entitled Limitation of Liability of this
Agreement.
C. THE REMEDIES PROVIDED IN THIS SECTION OF THE AGREEMENT WILL BE THE FULL
EXTENT OF MOTOROLA'S LIABILITY IN THE EVENT OF DEFAULT.
Section 13 INDEMNIFICATION
A. GENERAL INDEMNITY. Motorola agrees to and hereby indemnifies and saves Vernon
harmless from all liabilities which may accrue against Vernon on account of direct physical
damage to tangible property or personal injury to the extent the damage or injury is caused by
Motorola's negligence or recklessness, or that of its employees, subcontractors, or agents
while on Vernon's premises during the delivery, installation, or testing of the Communications
System pursuant to this Agreement
Contract No. 99-13225/BKP Page 7 Rev. 01/20/99
COMMUNICATIONS SYSTEM AGREEMENT
. .. B. PATENT AND COPYRIGHT INFRINGEMENT. Motorola will defend, at its own expense, any
suit brought against the Vernon to the extent that it is based on a claim that the Equipment or
Motorola Software infringe a United States patent or copyright, and Motorola will pay those
costs and damages finally awarded against the Vernon in any such suit which are attributable
to any such claim, but such defense and payments are conditioned on the following: i)
Motorola must be notified promptly in writing by Vernon of any notice of such claim; ii)
Motorola will have sole control of the defense of such suit and all negotiations for its
settlement or compromise; and iii) should the Equipment or Motorola Software become, or in
Motorola's opinion be likely to become, the subject of a claim of infringement of a United
States patent or copyright, Vernon will permit Motorola, at its option and expense, either to
procure for Vernon the right to continue using the Equipment or Motorola Software or to
replace or modify the same so that it becomes non -infringing or to grant Vernon a credit for
the Equipment or Motorola Software as depreciated and accept its return. The depreciation
amount will be based upon generally accepted accounting standards for such Equipment and
Software. Motorola will have no liability with respect to any claim of patent or copyright
infringement which is based upon the combination of the Equipment or Motorola Software
,furnished hereunder with software, apparatus or devices not furnished by Motorola, nor will
Motorola have any liability for the use of ancillary equipment or software not furnished by
Motorola which is attached to or used in connection with the Equipment. The foregoing states
the entire liability of Motorola with respect to infringement of patents and copyrights by the
Equipment and Motorola Software or any parts thereof.
C. Motorola's indemnification of Vernon under this Section will be the full extent of Motorola's
indemnification of Vernon from liabilities that are in any way related to Motorola's
performance under this Agreement.
Section 14 DISPUTES
A. Motorola and Vernon will attempt to settle any claim or controversy arising from this
Agreement through consultation and negotiation in good faith and a spirit of mutual
cooperation. If those attempts fail, the dispute will be mediated by a mediator chosen jointly
by Motorola and Vernon within thirty days after notice by one of the parties demanding non-
binding mediation. Neither party may unreasonably withhold consent to the selection of a
mediator, and Motorola and Vernon will share the cost of the mediation equally. The parties
may postpone mediation until they have completed some specified but limited discovery
about the dispute. The parties may also replace mediation with some other form of non-
binding alternate dispute resolution ("ADR") procedure.
Any dispute that cannot be resolved between the parties through negotiation or mediation
within two months after the date of the initial demand for non -binding mediation may then be
submitted by either party to a court of competent jurisdiction in the State in which the
Communications System is installed. Each party consents to jurisdiction over it by such a
court. The use of any ADR procedures will not be considered under the doctrine of laches,
waiver, or estoppel to affect adversely the rights of either party. Either party may resort to the
judicial proceedings described in this paragraph prior to the expiration of the two -month ADR
period if (a) good faith efforts to attempt resolution of the dispute under these procedures
have been unsuccessful or (b) interim relief from the court is necessary to prevent serious
and irreparable injury to such party or any of its affiliates, agents, employees, Vernons,
suppliers, or subcontractors.
Contract No. 99-13225/BKP Page 8 Rev. 01/20/99
COMMUNICATIONS SYSTEM AGREEMENT
Section 15 LIMITATION OF LIABILITY
Notwithstanding any other provision to this Agreement, except for personal injury or death,
Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort,
indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not
to exceed the price of the Equipment or services with respect to which losses or damages are
claimed. IN NO EVENT WILL MOTOROLA BE LIABLE FOR ANY LOSS OF USE, LOSS OF
TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS, OR OTHER
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR
ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT, OR THE
PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This
Limitation of Liability will survive the expiration or termination of this Agreement. No action for a
breach of this Agreement or otherwise relating to the transactions contemplated by this
Agreement may be brought more than one year after the accrual of such cause of action except
for money due upon an open account.
Section 16 GENERAL
A. TITLE AND RISK OF LOSS. Title to the Equipment will pass to Vernon upon shipment of the
Equipment, except that title to Software will not pass to Vernon at any time. Risk of loss will
pass to Vernon upon delivery of the Equipment to the facilities designated by Vernon.
B. TAXES. The purchase price does not include any amount for federal, state, or local excise,
sales, lease, service, rental, use, property, occupation, or other taxes, all of which (other than
federal, state, and local taxes based on Motorola's income or net worth) will be paid by
Vernon except as exempt by law. If Motorola is required to pay or bear the burden of any
such taxes, Motorola will send an invoice to Vernon and Vernon will pay to Motorola the
amount of such taxes (including any interest and penalties) within thirty days after the date of
the invoice. Vernon will be solely responsible for reporting the Equipment for personal
property tax purposes.
C. CONFIDENTIAL INFORMATION. Vernon will not disclose any material or information
identified as Motorola proprietary and confidential to third parties without Motorola's prior
written permission, unless Motorola makes such material or information public or disclosure is
required by law. If Vernon is required by law to disclose such material or information, Vernon
will notify Motorola prior to such disclosure.
D. DISCLAIMER OF LICENSE. Except as explicitly provided in the Motorola Software License
Agreement included in Exhibit A, nothing in this Agreement will be deemed to grant, either
directly or by implication, estoppel, or otherwise, any license or right under any patents,
patent applications, copyrights, trade marks, trade secrets or other intellectual property of
Motorola.
E. ASSIGNABILITY. This Agreement may not be assigned by either party without the prior
consent of the other party except that Motorola may assign this Agreement to any of its
affiliates or its right to receive payment without the prior consent of Vernon.
F WAIVER. Failure or delay by either party to exercise any right or power under this Agreement
will not operate as a waiver of such right or power.
G. SEVERABILITY. If any portion of this Agreement is held to be invalid or unenforceable, that
provision will be considered severable and the remainder of this Agreement will remain in full
force and effect as if the invalid provision were not part of this Agreement.
H. HEADINGS AND SECTION REFERENCES. The headings given to the sections of this
Agreement are inserted only for convenience and are not to be construed as part of this
Agreement or as a limitation of the scope of the particular Section to which the heading refers.
I. ENTIRE AGREEMENT. This Agreement (including the Exhibits) constitutes the entire
agreement of the parties regarding the subject matter of this Agreement and supersedes all
previous agreements and understandings, whether written or oral, relating to such subject
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COMMUNICATIONS SYSTEM AGREEMENT
matter. This Agreement may be altered, amended, or modified only by a written instrument
signed by the duly authorized representatives of both parties.
J. GOVERNING LAW. This Agreement will be governed by and construed in accordance with
the laws of the State to which the Equipment is shipped.
K. NOTICES. Notices authorized or required under this Agreement must be in writing and sent
to the below addresses:
Vernon Motorola, Inc.
Attn: City of Vernon Attn: Contract and Com liance Manager
4305 Santa e venue 9980 CarrollCanyon oa
Vernon, CA 90058 San Diego,
In witness whereof, the parties have caused duly authorized representatives to execute this
Agreement on the dates set forth below.
IN WITNESS WHEREOF:
MOTOROLA, INC.
By:
Name: LARRY OLSON
Title: VP SALES
Date:
CITY OF VERNON
By:
Name: LEONIS C. MALBURG
Title: MAYOR
Date:
APPROVED AS TO F M:
By: CN.,-A9k AWN,
Name: DAVID B. BREARLEY
Title: CITY ATTORNEY
MOTOROLA, INC.
By:
Name: KELL C ON
Title: AREA CONTROLLER
Date: Aq 9J
REVIEWED AN ROVED
AS
BARBARA K. PADDOCK DA
MOTOROLA
COMASTS AND COMPLIANCE DEPT.
ATTEST:
By:
Name: BRUCE V. MALKENHORST
Title: CITY CLERK
Contract No. 99-13225/BKP Page 10 Rev. 01/20/99
CITY COUNCIL
L•EONIS C. MALBURG /
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
Wm. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator / City Clerk
FAX (323) 581-7924
DAVID B. BREARLEY
DA (, City Attorney
FAX: (626) 330-5818
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 588-2761
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
June 22, 1999
City Council
City of Vernon
Honorable Members:
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) W-1983
DAVE TELFORD
Fire Chief
FAX: (323) 581-1385
BRUCE W. OLSON
Police Chief
FAX: (323) 583-5236
At the Finance Committee Meeting of February 9, 1999, approval
was granted to the Police Department to update their computer
technology through the purchase of three inter -related computer
systems, (1) The Mobile Computer Terminals (MCT's), (2) Vision
Records Management System (RMS), and (3) Computer Aided Dispatch
(CAD) and this was subsequently approved by City Council on
February 16, 1999. A portion of the total cost, $165,424.00, is
being obtained through a COPS MORE grant. The mobile computer
terminal vendor for this CAD segment of the project is Motorola,
Inc., who will be installing 17 mobile computers in Patrol
vehicles. An agreement has been reviewed by the Chief of Police
and the City Attorney's office and it is hereby recommended the
agreement By and Between Motorola and the City of Vernon be
approved and executed.
Very truly yours,
Bruce V. Malkenhorst
City Clerk
BVM/rcm
enclosure
VERNON POLICE DEPARTMENT
OFFICE MEMORANDUM
June 14, 1999
TO: Gloria Orosco, Chief Deputy City Clerk
FROM: Captain Benudi4
SUBJECT: Motorola Contract
The Mobile Computer Terminal Vendor for the police department's approved
CAD/RMS/MCT project has been selected. Motorola will be installing 17 mobile computers.
The City Attorney's Office has reviewed the contract. Therefore, I am requesting to have the
contract reviewed and ratified by the City Council at the June 29' meeting. Two executed
originals are being sent by Motorola to the City Attorney's Office.
Please contact me if you have any questions.
January 25, 1999
Finance Committee
City of Vernon
Honorable Members:
The Police Department has sought quotes for software and hardware systems to
technologically update their department in order to increase productivity,
efficiency, and officer safety. Based on their review of software and
hardware systems, they are requesting to purchase three inter -related
computer systems which will enhance the professional services provided to
the public. The Mobile Computer Terminals (MCT's), Vision Records
Management System (RMS) and Computer Aided Dispatch (CAD) system will be
implemented in phases and concurrently, as necessary, to ensure all
requirements, compatibility, and training are achieved.
The following total cost estimate reflects the highest estimate on all
hardware, with anticipation of actual costs being possibly lower.
1) CAD - $ 97,510 (Integrates with the RMS to provide
information accessible by the MCT)
2) MCT - $400,820 (Allows access to critical informa*ion thru
vehicle mounted computer teY-' 1
3) RMS - $140,667
Total Cost - $638,997
(Provides informa`' 2
CAD system' J
by the
;Finance Committee
City of Vernon
January 25, 1999
Page 2
It is hereby recommended that the Vision Software Systems, Mobile Computer
Terminals, related hardware, and necessary utility connections be purchased
for the Police Department, at a cost not to.exceed $638,997, with funds
being allocated as follows:
1998-1999 Budget
(Police Department)
COPS MORE Grant
25% Required Participation
(Asset Forfeiture Account)
Very truly yours,
Bruce V. Malkenhorst
Director of Finance
BVM/gst
- $375,000
- $165,424
- $ 98,573
$638,997
OMOTOROLA
tL
Fax Cove Sheet
DATE: June 9, 1999 TIME: 6:01 PM
TO: Captain Sol Benudiz PHONE:
City of Vernon P.D. FAX: (323) 583-5236
FROM: Rick Ueberschaer PHONE: (949) 766-9200
Motorola, Inc. FAX: (949) 766-9300
RE: Revised Pricing
i
i CC:
Number of pages including cover sheet: 14
Dear Sol:
Thank you for sending me the requested information. I do understand your desire to "shop around" for the
best deal. Perhaps it would have been best if the City of Vernon had gone out to bid on this project. It
would have given all invited vendors an opportunity to present their wares on a truly fair playing field.
Though it may appear our competition is offering an identical solution to ours, I am skeptical because of
their limited involvement up to this point. We do, however, understand the nature of our business and
recognize the need to be competitive in price.
Sol, I have forwarded to you our best and final offer. Please note that I have reduced the overall project
price by approximately $27,000. I have reduced the device price, which now includes the modems and
associated hardware, to $9,50o.00. We will also roil back the service price to the original amount of
$26,341.00. Please be aware that this quotation is only valid if the City of Vernon enters into an agreement
with Motorola by the and of this month. A completely executed contract will be required by June 30, 1999
for time prices to be in effect. This offer will officially expire on July 1, 1999.
1 hope you see this as a good faith gesture by Motorola and realize we do go the extra mile for our
customers.
Best Regards,
Rick