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HomeMy WebLinkAboutNEXTIRA, LLC - 2001-08-200 KZ2�� FI nn, Joan , � L, From: McGrath, Jennifer Sent: Wednesday, April 26, 2006 11:10 AM To: Flynn, Joan; Marshall. Jack Subject: Nextira Contract from 2001 As the contract was for good and services, it is subject to HBMC 3.02 which would not require Council action unless it was not budgeted. I would close this file. Jenni€er April 17, 2003 To: Ray Silver From: Connie Brockway Attached is the original agreement that was given to me for filing yesterday that I sent you emails about and on which I thought problems could be solved. However, I noticed that the agreement was entered into August 2001 which is prior to the adoption of the Professional Services Contracts Ordinance, and the agreement is in the amount.of $346,456.00. The name of the company is Nextira LLC. I have enclosed a computer printout of Williams Communications Company Agreements, which were approved by Council and which I believe may relate to this agreement, although they are earlier agreements. If Nextira has taken over, will the Settlement Committee's insurance waiver apply or would it have to be redone to cover Nextira. Also as the amount of agreement that could be approved without submittal to Council was $20,000 prior to that time please advise as to whether it should be presented to Council for a receive and file type item. I have the Williams Company agreements here for review by your staff. Connie /sut� Contracts Checklist for Submittal to City Clerk's Office (Please transmit this form when your contract is ready to be filed in the City Clerk's office) To: Connie Brockway, City Clerk x5404 1. Name of Contractor: /VCX7-1,41 C.LC— a -- --- . . Z. Purpose of Contract: For Example: Audit Services or WaterQuatity Testing Huntington Lake - HunSngtontenbr iTPark 94k 3� 3. Expiration Date: If no expiration date, please put a tentative expiration date so the City Clerk's office can inquire of your department if the file is ready to inactivate. 57 4. Amount of Contract: ,�.✓t�-� — *3 f � /7 . 0 D V A. Is the ached contract ELATED to a PREVIOUSLY SUBMITTED contract (renewal/amendment/etc)? AYES ❑ NO C- B. Did you atta ST OF CONSULTANTS from whom proposals were requested - pursuant to HBMC 3.03.100? ❑ YES NIA OR Is the attached contract a SOLE SOURCE? ❑ YES 13 C. Did you attach a COPY of the insurance certificate/waiver and send the ORIGINAL to(Risk Man. PLEASE INCLUDE: Cku,G!/tIGQ/![/ /S$$ Name/Extension Department 64AW-�- / 6 1 4 Date V g:iforms/city clerk contract checkiistdoc CITY CLERK'S OFFICE USE ONLY: ❑ YES teal 0 .4►p a 'i o.10 or '6 0 0 Pendr w . r ;X �r 3A VF l y15�` � � ��- ft Art D�►�.�:0 � ���`�'� °� K •r .RECORDS DIV- Checle.Ci6,Clerk's Database foc Ezistino File_,µ! Yes No: NIA ❑ Are all blanks filled in on agreement? ❑ El Has contractor signed agreement? Are all other signatures (e.g., City Attomey Approval As To Form) on agreement? Does agreement have Exhibits and/or Attachments? If Yes, Are Exhibits/Attachments marked? E] Are Exhibits/Attachments attached? Yes No NIA Is Insurance required? If Yes, Is Insurance attached? ' El Is Insurance Approved As To Form by City Attorney If waived, is Settlement Committee approval attached? If waived, has agreement been initialed by contractor or revised to remove . insurance requirement from text of agreement? Yes No N/A If this agreement requires documentation to be on file regarding Requests for RFPs, have you attached this documentation (see Page 1 of agreement to determine if this requirement applies)? Please complete the section below so the City Clerk's Office can enter your agreement on the computer so that it is retrievable by keyword search (termination date is required for Clerk's computer program to flag for microfilming/destruction purposes). Description of Agreement (Purpose) (such as Perform Soil Analysis Waterfront Hilt o /PCH/Atlanta): 771*64V Termination Date: g1forms/98formslagrmts.doc ORDER AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND NEXTIRA, LLC FOR PURCHASE INSTALLATION AND/OR UPGRADE OF TELECOMMUNICATIONS SYSTEMS AT VARIOUS CITY LOCATIONS w _O = - THIS AGREEMENT is made and entered into this 0 day of _ A) � uS i , 2001 (the "Agreement") by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, hereinafter referred to as "CITY"," or "Customer," and NEXTIRA, LLC ("NEXTIRA"), a Delaware limited liability corporation, hereinafter referred to as "CONTRACTOR." WHEREAS, CITY desires to engage the services of a telecommunications systems contractor with whom it can place a single order or multiple order for telecommunications, equipment ("Equipment") and/or installation and maintenance services for a single location or multiple in the -City of Huntington Beach; and . Pursuant to documentation on file in the City of Huntington Beach Fire Department, the provisions of HBMC Chapter 3.02 relating to procurement of supplies, services and equipment has been complied with; and CONTRACTOR may from time to time be selected to perform said services, and may at its option accept such order(s) and install and/or maintain the equipment NOW, THEREFORE, it is agreed -by CITY and CONTRACTOR as follows: 1. AGREEMENT/WORK STATEMENT CONTRACTOR and CITY expressly agree that the terms and conditions contained in this Agreement shall govern all aspects of a CITY order for Equipment and associated software (together, "System") and/or maintenance services described in Section 31 herein ("Maintenance"). The specifics of a CITY order shall be listed on the applicable order 01auee aextira-6/13/01 1 e • form (the "Order Form"). All Order Forms shall be substantially in the form of the attached sample Order Forms, Exhibit A. For orders involving multiple locations and/or multiple Systems, the parties' rights and obligations herein shall apply to each individual location and/or System independently and the obligation to pay. shall not be contingent upon the acceptance of all locations or all Systems. This Agreement allocates the risk of the System's operation between CONTRACTOR and the CITY, an allocation that is recognized by both parties and is reflected in the Cash Price and Service Fee. The services described in the applicable order shall sometimes hereinafter be referred to as "PROJECT." 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator ("Telecommunications Coordinator") to work directly with CONTRACTOR in the performance.of this Agreement. 3. AGREEMENT TERM The term of this Agreement (the "Agreement Term") shall be for four years from the date first written above. With respect to the sale, delivery, installation, and maintenance of any System described on an Order Form, for which CONTRACTOR's obligations will exceed the term of this Agreement, both CONTRACTOR's and CITY's obligations and rights regarding such System shall continue and survive the expiration of this Agreement, provided that the terms and conditions of this Agreement shall continue to define the rights and obligations of the parties with respect to such System. 4. ORDERING PROCEDURES The purchase and sale of any System or the provisions of Maintenance services shall be subject to the following ordering procedures: 91 agree/ne.etira:'4.%13/0 1 2 0 - 0 (a) Whenever CITY desires to place a new order for a System or Maintenance, CITY and CONTRACTOR will each sign an applicable Order Form and include any relevant information ii-ith the necessary attachments such as System configuration and applicable pricing. Each property executed Order Form and its attachment(s) shall become a part of this Agreement and be incorporated herein as if attached hereto. (b) Order Forms will be used by CONTRACTOR to provide price and Equipment and/or Maintenance information. CITY must indicate below whether a CITY generated purchase order is required far all transactions with CONTRACTOR. CITY understands and agrees that by indicating "Yes" below, CITY is obligated to issue a purchase order authorizing the execution of the applicable Order Form or other ordering document such as change orders, Customer Service Orders or the like. X—Yes No. (c) Within thirty (30) days of CITY's receipt. of the Order Form, CITY shall notify CONTRACTOR whether CITY accepts CONTRACTOR's offer to sell CITY the applicable System or Maintenance by signing the Order Form with its applicable attachments and returning it to CONTRACTOR. If the Order Form is not signed and returned with in thirty (30) days of its receipt by CITY, CONTRACTOR's offer automatically expires. If CITY issues a purchase order or similar document to CONTRACTOR in accordance with Section 4(b) above. CONTRACTOR may accept the purchase order from CITY; however, IT IS EXPRESSLY AGREED THAT ANY TERMS AND. CONDITIONS ON SUCH A FORM WHICKARE CONTRARY TO THE TERMS OF THIS AGREEMENT, OR WHICH ADD TERMS OR CONDITIONS BEYOND THOSE CONTEMPLATED IN THIS AGREEMENT OR ITS ATTACHMENTS, WILL BE NULL, VOID, AND OF INTO EFFECT. FURTHERMORE, AN ORDER FORM WILL ACCOMPANY ORDERS PLACED UNDER A PURCHASE ORDER. 01 agreeinextira/6%13i01 3 A ALL TERMS AND CONDITIONS CONTAINED ON THE ORDER FORM SHALL BE DEEMED INCORPORATED INTO ANY PURCHASE ORDER ISSUED BY CITY- (d) If the System being purchased on an Order Form constitutes an upgrade ("Upgrade") to an existing system ("Existing System"), then the —appropriate box in Section B of the Order shall be marked. (e) For new System and Upgrade purchases, a scope of work shall be attached to the applicable Order Form setting forth the specific technical requirements, and when applicable, the manufacturer's specifications ("Scope of Work"). The Scope of Work shall not act as an amendment to the terms and conditions contemplated in this Agreement or the applicable Order Form. In the even of a conflict between the Scope of Work and this Agreement, this Agreement shall control. 5. TEVIE OF PERFORMANCE CONTRACTOR will use all commercially reasonable efforts in performance of this Agreement. The services of the CONTRACTOR are. to commence in accordance with the milestone dates specified on the applicable Order Form after the execution of this Agreement and installation of all equipment specified in the Order Form shall be completed in accordance with such milestone dates. These times will be extended with the written permission of the CITY or if a delay in the schedule is caused by the CITY. The schedule may be amended to benefit the PROJECT if mutually agreed by the CITY and CONTRACTOR. 6. COMPENSATION The price of a System, including price of Equipment, software licensing fee, installation (when ordered by CITY) and warranty, but excluding any applicable Maintenance, shipping, or taxes, (the "Cash Price") and the applicable payment terms shall be set forth on the 01 a sreeln ex d ra%G%13/01 4 • C] applicable Order Form. The annual price of any applicable Maintenance shall be set forth on the applicable Order Form ("Service Fee"). Any Service Fee is due quarterly in advance. Shipping charges, if any, are due when invoiced. City shall be responsible for paying all applicable taxes on all charges/fees on the milestone dates.set forth on the applicable Order Form. When applicable, the down payment and a signed Order Form must be returned to the CONTRACTOR's account manager. "Delivery" occurs when CONTRACTOR tenders equipment for delivery to the CITY site (the "Premises"). "Cutover" occurs when the equipment is connected to the network, activated and functioning to provide basic service, excepting minor variances in performance of the System which do not materially impair basic service. The anticipated milestone dates, if any, will be set forth on the applicable Order Form. The CITY notifies CONTRACTOR that the CITY's projected telecommunications budget for. the first year of the. Agreement Tenn is Three Hundred Forty Five Thousand Four Hundred Fifty Six Dollars (S345,456.00). The parties however, acknowledge and agree that it is solely the CITY's responsibility to monitor and track its spending under this or any other agreement with CONTRACTOR and that notification to CONTRACTOR of its projected budget for any year of this Agreement in no way relieves the CITY of nor diminishes any obligation it may have pursuant to any executed Order Form hereunder. T. EXTRA WORK/CHANGES In the event CITY requires additional services not included in the Order or changes in the scope of services described in the Order Form, CONTRACTOR will undertake such work upon the mutual written agreement of the parties (the "change order"), setting forth the details of said change including the mutually agreed adjustment, if any, to the contract price 01agreCriextira 6113'01 5 • and/or project schedule. Any such moves, adds, changes, or deletions that adjust the station, port or router count as well as upgrades, new equipment, and new peripheral devices ("Modifications") to the System shall be made by a written agreement of the parties on the applicable CONTRACTOR's form. Such form may. include:. CONTRACTOR's Job Change Order ("JCO") before Cutover and CONTRACTOR's Customer Service Order ("CSO") after Cutover. The terms of this Agreement including any limited System warranty as stated on the applicable Order Form, will apply to any such written agreement for an addition or deletion and equipment purchased or software licensed thereunder. Such warranty will terminate not later than the Warranty Period set forth in this Agreement for the original System or the then current annual term for Maintenance of that System. An authorized representative of each party must sign a JCO or CSO before CONTRACTOR will schedule any additional work or order additional equipment -or software. Except for returns of defective components or components shipped in error by CONTRACTOR, a restocking fee may be charged for any returned component that has been delivered to the Premises; such fee will be invoiced as an additional charge. In the event CITY cancels or terminates an Order Form or any part thereof, CONTRACTOR shall be entitled to recover all. reasonable costs incurred by CONTRACTOR in the preparation for and any actual performance under the Order Form. The Cash Price of the System (including milestone date progress payments). Delivery and Cutover may be subject to adjustment in the event of any mutually agreeable addition or deletion. If CONTRACTOR delivers additional Equipment, software, or Maintenance, or provides time and materials maintenance or other incidental services relating to the System, the terms of this Agreement will govern. 8. CLAIMS, QUERIES AND RETURNS 01 aoree's ex6ra!6.;13101 6 • • With respect to purchases on an Order Form for Equipment without installation, no claims with regard to shortages, discrepancies, or damage to components of Equipment will be accepted by CONTRACTOR unless CITY notifies CONTRACTOR in writing within ten (10) working days of Delivery. CONTRACTOR shall have no liability with respect to damage -or shortages caused by the acts or omissions of the CITY or of a party other than CONTACTOR. If a claim is validly made under this Section which may entitle the CITY to return an Equipment component, CONTRACTOR shall not be bound to accept such return or exchange component unless the CITY complies strictly with CONTRACTOR's return procedures as set forth in this Section, which may be modified by CONTRACTOR from time to time on written notice. In order to return a component, a Return Merchandise Authorization ("RMA") number must first be obtained from CONTRACTOR and must appear on all shipping labels of components to be returned. Components must be returned in the same condition. as originally delivered, ordinary wear and tear excepted, and in original box/carton. 9 PAYMENT (a) CITY agrees to pay CONTRACTOR the Cash Price and/or Service Fee, as applicable in -accordance with the terms of this Agreement and the applicable Order Form. Payments received more than thirty (30) days after billing are subject to a late payment charge of one and one-half percent (1-112%) for each thirty (30) day period that they remain unpaid. CITY shall identify its sales and use tax status in the applicable box below and if CITY claims exempt status, if shall, upon the execution of this Agreement and on an annual basis thereafter, provide CONTRACTOR with valid tax exemption certificates for every state in which it claims such status. Failure to provide such certificates will cause CONTRACTOR to invoice CITY as taxable. TAX-EXEMPT TAXABLE. 0l agree!nexti rai6.-13i O 1 7 • • (b) Any billings far job change orders authorized by CITY shall be invoiced separately to the CITY. Such invoice shall contain all of the information required above and shall be for an amount not to exceed the mutually agreed amount by the parties in the signed change order plus applicable taxes, if any. Such invoices shall be. approved by CITY if the work performed is in accordance with the job change order requested, and if CITY is satisfied that the amount invoiced is accurate. Such approval shall not be unreasonably withheld. Any invoiced amounts disputed in good faith by the CITY with respect to a particular Order Form executed hereunder shall be treated as separate and apart from the performance of any other Order Form executed hereunder. 10. Pt 117EMI NIFICATION, DEFENSE, HOLD HARMLESS CONTRACTOR hereby agrees to protect, defend, indemnify and hold and save harmless CITY, its officers, and employees against any and all liability, claims, judgments, costs and demands, including those resulting from death or injury to CONTRACTOR's employees and damage to CONTRACTOR's property, to the extent arising directly out of the negligence or willful misconduct of CONTRACTOR, including those arising from the passive concurrent negligence of CITY, but save and except those which arise out of the active concurrent negligence, sole negligence, or the sole willful misconduct of CITY. CONTRACTOR will conduct all defense at its sole cost and expense. 11. WORKERS' COMPENSATION CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of the California Labor Code and all amendments thereto; and all similar state or federal acts or laws applicable; and shall indemnify, defend and hold harmless CITY from and against all 0 1 agree!nextiM/6 13:101 8 claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including attorney fees and costs recovered against CITY, for or on account of any liability under any of said acts which may be incurred by reason of CONTRACTOR's failure to comply with said acts.during performance.of its work. CONTRACTOR shall obtain and furnish evidence to CITY of maintenance of statutory workers compensation insurance and employers liability in an amount of not less than 5100,000 bodily injury by accident, each occurrence, 5100,000 bodily injury by disease, each employee, and $250,000 bodily injury by disease, policy limit. 12. INSURANCE In addition to the workers compensation insurance and CONTRACTOR's covenant to indemnify CITY, CONTRACTOR shall obtain the following insurance covering the PROJECT: General Liability Insurance A policy of general commercial liability insurance and an automobile liability policy_ Said policy shall indemnify CONTRACTOR, its officers, agents and employees, while acting within the scope of their duties, against any and all claims for bodily injury or damage to tangible personal property due to negligence of the CONTRACTOR arising out of or in connection with the PROJECT, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of 51,000,000 per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than $1,000,000. Said policy shall name City, its officers and employees as additional insured to the extent of the indemnification in this 01 agree/nextiraW13:01 9 • • Agreement, and specifically provide that any other insurance coverage which may be applicable to the PROJECT shall be deemed excess coverage and that CONTRACTOR's insurance shall be primary. 13. CERTIFICATES OF INSURANCE: ADDITIONAL INSURED . ENDORSEMENTS Prior to commencing performance of the work hereunder, CONTRACTOR shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; said certificates shall provide the name and policy number of each carrier and policy, and shall state that the policy is currently in force and shall promise to provide that such policies will not be canceled or materially modified without thirty (30) days' prior written notice of CITY. CONTRACTOR shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of CITY by CONTRACTOR under the Agreement. CONTRACTOR shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A copy of the blanket endorsement to CONTRACTOR's general commercial liability policy authorizing CONTRACTOR to name the CITY, its officers and employees as additional insured shall be provided to the CITY. The certificate of insurance for general liability shall show the CITY, its agents, officers and employees as additional insured. 0l agree/neztim;6113 01 10 0 - 0 14. INDEPENDENT CONTRACTOR CONTRACTOR is, and shall be, acting at all times in the performance of this Agreement as an independent contractor. CONTRACTOR shall secure at its expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONTRACTOR and its officers, agents and employees and all business licenses, if any, in connection with the services to be performed hereunder. 15. MATERIAL BREACH/DEFAULT All work required hereunder shall be performed in a good and workmanlike manner. If any material breach of this Agreement or any Order Form hereunder shall continue for more than thirty (30) days after receipt by the breaching party of written notice from the aggrieved party stating. -in reasonable detail the nature of the breach; then the aggrieved party shall be entitled to avail itself, cumulatively, of any and all remedies available at law or equity, including termination hereof, except as specifically limited elsewhere in this Agreement. If CITY is the aggrieved party then CITY may suspend payment of any surns due hereunder with respect to the applicable Order Form for so long as CONTRACTOR's breach continues uncorrected. If CONTRACTOR is the aggrieved party then CONTRACTOR may suspend performance of any or all of its obligations hereunder for so long as CITY's breach continues uncorrected." A condition precedent to any legal action by either party to enforce or interpret any right or obligation under this Agreement shall be the receipt by the other party of notice, at least 30 days prior to such action, which states with reasonable particularity the claimed breach or grievance. 01 agreefnextim6113•'01 11 16. ASSIGNMENT AND SUBCONTRACTING This Agreement is a personal service contract and the supervisory work hereunder shall not be delegated by CONTRACTOR to any other person or entity without the written consent of CITY. Except for an assignment -to a parent, subsidiary, affiliate, or entity which acquires all or substantially all of a party's assets, in which case only prior written notice is required, this Agreement is not assignable by either party without the prior written consent of the other party. Such consent shall not be unreasonably withheld. Any attempt by a party to assign any of the rights, duties, or obligations under this Agreement without consent, when consent is required, will, at the non -assigning party's option, be deemed void or a material default or accepted in the non -assigning parry's sole discretion. 17. COPYRIGHTS/PATENTS CONTRACTOR shall -not apply for patentor copyright on any item or material produced as a result of this Agreement, as set forth in 41 CFR 1-9.1. Solely as to Systems purchased from and installed by CONTRACTOR, under a Voice Order Form, CONTRACTOR shall defend and indemnify CITY against any claims or suits brought against CITY based upon a claim of infringement of any United States patent arising out of the use of the System. A condition precedent to CONTRACTOR's obligation stated above shall be that CITY shall have fully complied with the requirements of this Agreement with respect to retention of assignment of, and/or sublicense of the right to use the software. CONTRACTOR shall pay costs and damages in any such suit, provided CONTRACTOR is notified promptly in writing of the suit, CITY gives CONTRACTOR or the equipment supplier the sole right to defend and settle any suit and CITY, at CONTRACTOR's request, is available to cooperate and assist in the defense. This indemnity does not extend to (i) any suit or proceeding which is based upon a patent claim Olagrez.nextira6•'13; I 2 0 - • covering any combination of equipment and/or software in which the System is solely an element and such element does not form a basis for the claim, or (ii) any item furnished by CITY, including, but not limited to, Systems or any portions thereof installed by a vendor other than CONTRACTOR.. Should the System'become subject to a claim of infringement of a United States patent, CONTRACTOR may, at its expense and option: (i) procure for CITY the right to continue uninterrupted, CITY's use of the affected equipment, softtivare, or services; or (ii) replace or modify the same so that it becomes noninfringing; or (iii) refund to CITY the depreciated value of the affected items as carried on the books of CITY for tax purposes, on the date of any injunction, if applicable, in which case CITY shall return the affected items to CONTRACTOR. In no event shall CONTRACTOR's liability hereunder exceed the contract price of the applicable System. This indemnity shall not apply to any claims arising out of use of affected items manufactured at CITY's request to CITY's production specifications or. out of use of the affect items in a manner or'for a purpose not contemplated by this Agreement. CITY's sole and exclusive remedy against CONTRACTOR with regard to such a patent infringement claim shall be as set forth above. 18. - CITY EMPLOYEES AND OFFICIALS CONTRACTOR shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 19. NOTICES Any notices or special instructions required to be given in writing under this Agreement shall be given either by personal delivery to CONTRACTOR's agent (as designated 01 agreelnex[rra.61] 3:01 13 • • in Section 1 hereinabove) or to CITY's Fire Chief as the situation shall warrant, or by enclosing the same in a scaled envelope, postage prepaid, and depositing the same in the United States Postal Service, addressed as follows: TO CITY: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 ATTN: Cheri White 20. IMMIGRATION TO CONTRACTOR: ;EXTIRA, LLC 5 Hutton Centre Drive, Suite 150 Santa Ana, CA 92707 ATTN: Service Area Manager CONTRACTOR SHALL be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 21. ACCEPTANCE Upon completion of installation, acceptance testing will be performed in three phases, as follows: (a) CONTRACTOR's standard test procedures will be performed for CITY Telecommunications Coordinator, verifying operation of all components of the System in accordance with applicable manufacturer's specifications at the applicable site. (b) For fourteen (14) days following Cutover of the System at the applicable site, (the "Acceptance Period"), the CITY will perform end user testing to determine that the System performs in a satisfactory manner according to the manufacturer's installation specifications and any written standard practices of the telecommunications industry. During this period, City end users will operate the System for their ordinary needs. Each System will be deemed to be accepted by the CITY ("Acceptance") if, during this period, the equipment and the software operate free from major failure. 01auee nextira:G 13101 14 0 • (c) For purposes of this Section of the Agreement, major failure is defined as no dial tone, inability to make outgoing calls or inability to receive incoming calls for twenty (20) percent or more of any telephone sets supported by the System, with the exception of police, fire, lifeguard, public works and emergency services departments as to which there will. be no minimum. (d) If a System suffers a major failure(s) during the Acceptance Period, CONTRACTOR shall correct, at its expense, said failure(s) upon notice of same from the CITY. Upon correction of any such major failure(s) and the expiration of the Acceptance Period, City shall promptly execute a Certificate of Delivery and Acceptance. For jobs with multiple phases a separate Certificate of Delivery and Acceptance will be required upon Acceptance of each phase of the job. .22. RISK OF LOSS/TITLE . Risk of loss to the switch components of the equipment itemized in the applicable Order Form shall pass to CITY Delivery as defined in this Agreement. General risk of loss to any other portion of each System shall pass upon Delivery of such portion to the CITY premises, After general risk of loss has passed to CITY, CONTRACTOR shall continue to be liable for (1) equipment shortages of terminal equipment until installation except for terminal equipment removed from the storage room by the City or its employees or agents or when such shortage is due to the CITY's negligence and contingent upon the CITY providing to CONTRACTOR a secured lockable, location in which to store such terminal equipment and/or (ii) damage to or losses of the equipment due to CONTRACTOR's negligence. Title to the equipment shall not pass to CITY until CONTRACTOR has been paid all amounts due for the equipment under this Agreement. CONTRACTOR resen!es and CITY grants CONTRACTOR a security interest in 0l agree!next ira!Gr l 3! 0l 15 the System in the amount of the unpaid balance of the Cash Price. A copy of the is Agreement may be filed on CONTRACTOR's behalf at any time after signature by CITY as a financing statement to perfect CONTRACTOR's security interest. If requested by CONTRACTOR, CITY will execute a standard form financing statement (UCC-1). Upon payment in full, . - CONTRACTOR will promptly file to remove such interest. If an Order Form specifies an Upgrade on an Existing System, title and ownership to any equipment replaced during installation of the Upgrade shall be transferred to and vest in CONTRACTOR. 23. SHIPPINrG The Order Form equipment and system software shall be shipped by CONTRACTOR to CITY in accordance with the milestone dates specified in the applicable Order Form. Freight expenses for said Equipment will be paid by CONTRACTOR. If the CITY rejects any component of the System prior to or during the applicable. Warranty Period for failure of the component to meet the applicable manufacturer's specifications, then CONTRACTOR shall bear all shipping charges relating to said component for a replacement component in accordance with the LIMITED WARRANTY in this Agreement that meets the manufacturer's specifications. 24. NONDISCLOSURE As a result of this Agreement, CONTRACTOR and CITY will gain access to certain information which is confidential. and proprietary and is marked as such (or if not so marked or if orally disclosed, is indicated in writing to be confidential by the disclosing party to the receiving party within 14 days of disclosure) ("Confidential Information") to assist each of them in fulfilling its obligations under this Agreement. Each party agrees that any Confidential Information it receives will be kept confidential, not divulged to any person or entity, and will 01 agreelnertira16113101 16 E not be used other than in connection with that party's performance under this Agreement. All Confidential Information shall be protected by the receiving party in the same manner and with the same degree of care with which it would treat its own confidential information throughout the.term of the Agreement and for a period of one year after its expiration or termination. -Each party warrants that it will use reasonable efforts to safeguard the Confidential Information from unauthorized disclosure. Either party may disclose the Confidential Information to its employees, but only as they may need to know such Confidential Information in connection with performance hereunder. The foregoing commitments shall not impose any obligation upon the receiving party with respect to any portion of such information (i) which was known to that party prior to its receipt from the disclosing party; (ii) which was publicly available at the time it was transmitted to the receiving party; (iii) which was properly provided to the receiving party by a third party without restriction; .(iv) which is required to be disclosed by law. or by any governmental agency having jurisdiction pursuant to an order to produce or in the course of a legal proceeding pursuant to a lawful request for discovery; provided, however, that if the receiving party is so ordered or required to disclose the information, it shall promptly notify the disclosing party of the order or request and permit the disclosing party (at its expense) to seek an appropriate protective order; or (v) which was independently developed by the receiving party. 25. INSTALLATION SERVICES (a) CITY agrees to permit and arrange full access to the Premises -necessary for CONTRACTOR to perform the services set forth in this Agreement and will make available a reasonable amount of secure space with locks for storage by CONTRACTOR of the System or repair parts as necessary. 0l agreelnextira/6/ l 3/01 17 (b) CITY will provide: (1) access, easements and consents necessary to install or service the System; (ii) necessary floor plans, space for the System and accessible wiring locations free of asbestos and other environmental hazards per government regulations; (iii) 'dedicated electric source, circuits,.power and isolated ground; (iv) suitable operating environment (including isolated ground, air conditioning, humidity, heat and security) per manufacturer's specifications which specifications will be provided to CITY by CONTRACTOR upon request; and (v) raceway, conduit, holes and wireways. CITY shall hold CONTRACTOR harmless from any and all liability for injury to wires, conduits, pipes, mains, sewers or other similar property that is not accurately detailed or accounted for in CITY supplied prints. If conditions at the Premises alter routine installation and CONTRACTOR was not aware of such conditions at the time an Order Form was executed, CITY shall be billed for any additional expense related thereto_ at CONTRACTOR'S then current time and material charges.. CONTRACTOR will remove all Iitter generated during the work and will ensure that the installation area is restored to the condition that existed prior to installation but will not be responsible for removing old phones or cabling. - (c) CITY represents and warrants that the Premises and conditions to be encountered by CONTRACTOR at the Premises and in areas where work is to be performed shall: (i) be in compliance with all applicable federal, state and local laws, rules and regulations; (ii) be safe and non -hazardous; and (iii) not contain, present, 'or expose CONTRACTOR representatives to hazardous materials or hazardous substances. In the event of breach of the foregoing, in addition to all other remedies, CONTRACTOR may immediately suspend work until CITY has promptly corrected such condition(s) at CITY's expense. In the event CITY cannot or does not correct such condition(s), it will be at CONTRACTOR'S option as to whether 01 agreefnextiral6/13101 18 to recommence performance or terminate the Order Form with respect to such Premises. Any termination by CONTRACTOR because of its opinion that an unsafe environmental condition exists will not be deemed a breach of this Agreement or a default under it and no liability for such decision will attach. (d) Unless otherwise stated on the Order Form or an attachment thereto, CONTRACTOR shall perform the installation of the System in accordance with the manufacture specifications and the cost for such installation shall be included in the Cash Price of the System. Installation of the System will be performed during the normal working hours of 8:00 a.m.-5:00 p.m., Monday through Friday, site local time, excluding CONTRACTOR'S holidays, except when otherwise mutually agreed by the parties in writing. Any delay or downtime resulting from CITY act or omission shall be the responsibility of CITY and shall be billed at CONTRACTOR'S. then current charges.. CONTRACTOR shall be responsible for unpacking and placement of the Equipment at the installation site. Installation of the Equipment to be installed will be performed by the CONTRACTOR with minimal disruption to the CITY's day-to-day business operations. (e) - If an Order Form specifies an Upgrade to an Existing System which is not then being maintained by CONTRACTOR under a current agreement, CONTRACTOR may require that the Existing System be brought into compliance with the manufacturer's specifications before installing the Upgrade. CITY will pay'CONTRACTOR at CONTRACTOR'S then current charge for any work performed or materials provided in bringing the Existing System into compliance. 26. FORCE MAJEURE Neither party shall be liable for 0 1 agreelnextira.,Vl3101 19 • (a) any adjustments or suspension of performance, failure of performance or any damages without Iimitation resulting from any of the following: strikes or labor disputes, work stoppages, fire, explosions, water, the elements, acts of God (including, without limitation, earthquakes, rains, floods or lightning),'acts of civil or military authorities or public enemy, performance or availability of suppliers, subcontractors, power company, communications services or network facilities other than CONTRACTOR, including but not limited to the local exchange company or other carrier, unauthorized use of the System, or other causes beyond that party's control whether or not similar to the foregoing. In such event, the party affected shall be excused from such performance on a day -for -day basis for the extent of such interference (and the other party shall likewise be excused from performance of its obligations on a day -for -day basis to the extent such party's obligations relate to the performance so interfered with).. (b) CONTRACTOR delay caused by the delays of subcontractors of . CONTRACTOR shall be deemed excusable if the subcontractor's delay is beyond the control and without the fault or negligence of the subcontractor as described in this Section. (c) The party who has been affected by an excusable delay shall immediately give notice to the other party of such circumstances. 27. DOCUMENTATION For System and Upgrades purchased under this Agreement, CONTRACTOR shall provide CITY documentation to support the end -user operations of the Equipment and software in accordance with the Agreement without charge. CONTRACTOR grants CITY the right to make a duplicate such documentation for its internal use only. 01agreemextira 6113101 20 28_ LIMITED WARRANTY FOR SYSTEMS INSTALLED BY CONTRACTOR (a) Solely with respect to Systems purchased from and installed by CONTRACTOR hereunder for a period of one (1) year from the Cutover Dated (the "Warranty Period") CONTRACTOR warrants: that the System will be free from defects in materials and workmanship and will operate in accordance with manufacturer's specifications. Notwithstanding the foregoing, if the Order Form specifies an Upgrade to an Existing System, the Warranty Period shall end at the expiration of the Warranty Period or annual Maintenance term for the Existing System or, if no such Warranty Period or Maintenance term exists, ninety (90) days after the Cutover Date. (b) THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER EXPRESS WARRANTIES. THIS AGREEMENT EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF. MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR DISCLALIS'ANY WARRANTY TO PREVENT UNAUTHORIZED USE OF THE SYSTEM INCLUDING TOLL FRAUD. - (c) CITY's SOLE AND EXCLUSIVE REMEDY for breach of warranty is limited to CONTRACTOR'S performance as set forth in Section 29(a) below and performance of warranty service during the Warranty Period will not extend or restart the Warranty Period. If,.however, it is determined that such remedy fails of its essential purpose, then CONTRACTOR'S entire liability for such breach is limited to payment by CONTRACTOR of CITY's actual damages in an amount not to exceed the amount paid for the System. 0'asrez'nextirar6113 41 21 29. WARRANTY SERVICES FOR SYSTEMS INSTALLED BY CONTRACTOR at its option: During the Warranty Period, if warranty work is necessary CONTRACTOR will, (a) (i) repair the System in place or (ii) accept return of components of the System for repair or replacement. Such repair or replacement, including both parts and labor, will be at CONTRACTOR'S expense. Repair and replacement parts may be new or reconditioned to be the functional equivalent of new. (b) During the Warranty Period, CONTRACTOR shall be liable for any physical damage it causes to the System. This liability is limited to repair of the System or component thereof, or if the System or component cannot be repaired, replacement with a comparable System or component in accordance with Section 29(a) above. (c) During the Warranty Period, CONTRACTOR will respond remotely or on site as necessary, to requests to perform service for a service affecting outage of the System ("Emergency Service") within two (2) hours of receipt of notice from CITY requesting such service without regard to time of day or day of the week. Emergency Service will be provided only for System failure resulting in the failure of twenty percent (20%) or more of all stations and/or trunks or the failure of the attendant console. All other outages are classified as non - emergency. CONTRACTOR will respond to requests to perform non -emergency service within twenty-four (24) hours of the receipt of the request,' except when the request for such service is made on or the day before a weekend day or a CONTRACTOR's holiday, in which case CONTRACTOR will respond by the next business day. Service calls made beyond CONTRACTOR'S normal working hours for non -emergency services will be performed by CONTRACTOR upon CITY's request at CONTRACTOR'S then current charge. 01aeree.%nextira.`6.113r01 22 (c) Upon the expiration of the Warranty Period, CONTRACTOR shall provide Maintenance in accordance with the following Sections 31-34 at CONTRACTOR'S then current charges unless either CITY or CONTRACTOR notifies the other in writing at least forty- five.(45) days before the end of the Warranty Period that it declines such renewal for the following year. (d) If an Order Form specifies an Upgrade to an Existing System, then for purposes of paragraphs (b), (c) and (d) of this Section 29, Section 3I, Section 32, Section 33, Section 34 and Section 37(b) of this Agreement, "System" is interpreted to mean "the Existing System as upgraded by the System." 30. LIMITED WARRANTY AND WARRANTY SERVICE FOR SYSTEMS NOT INSTALLED BY CONTRACTOR (a) Solely with respect. to Systems purchased from and installed by . CONTRACTOR, for a period of ninety (90) days from the Delivery Date (the "Delivered Warranty Period"). CONTRACTOR warrants that theSystem will be free from defects in materials. If warranty work is necessary, CONTACTOR will accept return of the malfunctioning components of the System, for repair or replacement in accordance with the procedures set forth in this Section 30. If requested, CONTRACTOR will repair the System in place at CITY's expense; CITY agrees to pay CONTTRACTOR's then current charges. (b) The above warranty is in lieu of all other express warranties. This Agreement excludes all implied warranties, including but not limited to, the warranties of merchantability and fitness for a particular purpose. CONTRACTOR disclaims any warranty to prevent unauthorized use of the system include toll fraud. 01aerez'nec,ira;16! 13!01 23 (c) During the Delivered Warranty Period, if warranty work is necessary for a System ordered under an Order Form but not installed by CONTRACTOR, CONTRACTOR will provide a depot parts return service for the components of the System covered by the manufacturer's warranty including shipping; receiving and tracking of orders. CITY acknowledges that the installation, repair, or modification of the System by persons who are not manufacturer certified technicians may void the manufacturer's warranty of the parts and may result in a denial of software support services from the manufacturer. The express waiver of CONTRACTOR's labor warrant is at the request of CITY. CONTRACTOR will provide labor as needed at CONTRACTOR's then current charges for service and Maintenance of the System at CITY's request. (d} CITY's sole and exclusive remedy for breach of the warranty provided in Section 30(a) above.is limited to CONTRACTOR's performance as set forth in Section.30(c) above. CONTRACTOR's liability shall cease at the end of the Delivered Warranty Period including liability for manufacturing defects not discovered within the Delivered Warranty Period. If, however, it is determined that such remedy fails of its essential purpose, then CONTRACTOR's entire liability for such beach is limited to payment by CONTRACTOR of CITY's actual damages in an amount not to exceed the amount paid for the system. 31. MAINTENANCE OBLIGATIOtiTS (a) Upon the expiration of the Warranty Period on a particular System in accordance with Section 29(d) above, or upon the execution of an Order Form for Maintenance, CONTRACTOR will provide Maintenance in accordance with the terms and conditions of this Section and the applicable service plan attachment outlining the maintenance obligations of CONTRACTOR and CITY ("Service Plan") (together, "Maintenance"). Pursuant to this 01a¢ree-`nextira 6:1= 01 24 Agreement, CONTRACTOR shall respond to System failures, either on -site or remotely, as necessary, per the conditions specified under the Service Plan chosen. Maintenance service for Equipment shall consist of furnishing all parts and labor necessary to maintain the System in good operating condition in accordance with the manufacturer's specifications. Repair and. replacement parts may be new or reconditioned to be the functional equivalent of new. Maintenance service for software will include provision of all maintenance releases and patches which are issued at no cost by the manufacturer to correct problems which CITY has encountered in the performance of the soffivare. Service calls made beyond the hours set forth in the Service Plan shall be performed by CONTRACTOR upon CITY's request at CONTRACTOR's then current charges. (b) If CONTRACTOR is requested to offer Maintenance at sites where the System was. not sold and installed by CONTRACTOR, CONTRACTOR may require that the System be brought up to manufacturer's specifications before performing any Maintenance under this Agreement. CITY will pay CONTRACTOR at CONTRACTOR'S then current charges for any work performed or materials plus provided in bringing the System into conformance. In the interim, CONTRACTOR will provide maintenance services at such site on a time and material basis at CONTRACTOR then current charges. (c) During the Delivered Warranty Period, if warranty work is necessary for a System ordered under an Order Form but not installed by CONTRACTOR, CONTRACTOR will provide a depot parts return service for the components of the System covered by the manufacturer's warranty including shipping, receiving and tracking of orders. CITY acknowledges that the installation, repair, or modification of the System by persons who are not manufacturer certified technicians may void the manufacturer's warranty of the parts and may 01agree:'nestira%6:13i01 25 result in a denial of software support services from the manufacturer. The express waiver of CONTRACTOR'S labor warranty is at the request of CITY. CONTRACTOR will provide labor as needed at CONTRACTOR'S then current charges for service and Maintenance of the System at CITY's request. 32. MAINTENANCE TERM; SERVICE FEE Unless stated otherwise on the Order Form, after the expiration of the Warranty Period, CONTRACTOR shall provide Maintenance for a term of one year (the "Initial Term") from the date on which such service began (the "Commencement Date"). At the end of the Initial Term, the agreement for Maintenance shall be automatically renewed in successive annual renewal periods at CONTRACTOR's then current charge for Maintenance, unless either CITY or CONTRACTOR notifies the other party in writing at least forty-five (45) days before the end of the renewal term that it declines.such renewal for the following year. At any time, the parties may mutually agree to terminate Maintenance with respect to a particular component or particular geographic locations of a System covered under a particular Order Form. 33. SERVICE FEE ADJUSTMENTS Modifications may be added to Maintenance by written agreement of the parties; such agreement shall set forth the additional items of Equipment and software, quantity, description, serial number and part number and the necessary adjustment to the Service Fee, based on CONTRACTOR'S then current charges. CONTRACTOR will include Modifications performed by a party other than CONTRACTOR only if CITY's modified System is certified at CITY's expense to be in accordance with manufacturer's standards for service and maintenance. Any Modifications performed by CONTRACTOR require a separate agreement such as the CONTRACTOR CSO. CITY hereby acknowledges that Modifications, including software 01 a¢reelnextiral6113101 26 upgrades, performed or supplied by unauthorized distributors may result in a denial of software support services from the manufacturer of the System. Maintenance service for Modifications shall be subject to the terms and conditions of this Agreement and be coterminous with the term of Maintenance for the System itself. 34. WARRANTY PERIOD SERVICE AND MAINTENANCE EXCLUSIONS. (a) Warranty Period Service and Maintenance provided under this Agreement exclude repairs or replacements necessitated by: (i) Force Majeure conditions, as defined in this Agreement or any other cause not attributable to CONTRACTOR (not including a defect in the System); (11) CITY's failure to follow applicable operation, maintenance, or environmental requirements described in any of the manufacturer's manuals or product bulletins, CONTRACTOR manuals, and other materials provided to CITY; (iii) CITY's additions, alterations, modifications, enhancements or repairs to, or disassembly of, the.System (itself or using a third party) without CONTRACTOR'S written consent; (iv) mishandling, abuse, misuses or damage to the System by CITY or a third party; (v) relocation of the System without CONTRACTOR'S written consent (other than telephone instruments relocated in accordance with the manufacturer's specifications); (vi) failures or changes required resulting from the local exchange company, interexchange carrier, the power company or other transmission providers; (vii) failures or damage arising from date dependent operations, calendar -related data and the processing of such data, or in connection l%ith providing calendar -related data to and accepting calendar -related data from other systems; (viii) electrical work external to the System; (ix) such service which is impractical to CONTRACTOR's service representatives to render because of alterations to the equipment or its connection by mechanical or electrical means to other devices; or alterations to operating systems; (x) systems engineering services, programming, and 01 a ueelnexti ra/6/1 M 1 27 'A* 0 - 0 _- operations procedures of any sort. If any excluded cause occurs, CONTRACTOR may, at its option: (i) perform repairs at CITY's request at CONTRACTOR's then current charges; or (ii) cancel its Maintenance obligations for the applicable System. 35.. CONTRACTOR PERSONNEL :. CITY reserves the right to approve or reject CONTRACTOR's designated project installation manager and personnel to the extent allowed by law and collective bargaining agreements; provided that CITY shall exercise such right reasonably, and not arbitrarily or capriciously and not out of bad faith or malice. Such decision to approve or reject CONTRACTOR's personnel shall be based solely on cause of said personnel, and any preliminary decision to reject said personnel shall be the subject of five (5) days' advance notice to, and discussion with CONTRACTOR prior to any final rejection of said personnel. 36. GRANT OF. LICENSE (a) Certain manufacturers require that their own software license(s) be attached to this Agreement, the applicable Order Form or included with the equipment. To the extent such license is attached or included with the equipment, it shall be attached to the applicable Order Form and incorporated therein or given to CITY upon installation of the System. If no such license is attached or provided, then CONTRACTOR grants CITY a non-exclusive license for the useful life of the System to use the software (including related documentation) solely to maintain and operate the System, provided CITY: (i) does not allow any aspect of the software to be disclosed to a third party without CONTRACTOR'S written consent and makes reasonable efforts to ensure that its employees are aware of this obligation; (ii) uses the System solely for CITY's internal business purposes; (iii) does not copy any part of the software without CONTRACTOR'S consent and does not attempt to develop any source 01 agree/nextira.'6/ 13/01 28 code from the software; and (iv) returns to CONTRACTOR or erases or destroys any software on any media being recycled or discarded and so certifies to CONTRACTOR. CITY may only transfer the right to use the software to any end user who subsequently acquires the right to use the System, agrees to be bound by the terms of this license and agrees to pay any applicable fees plus applicable taxes. (b) All title to, owriership of and all proprietary rights (including, but not limited to, patent rights, copyrights, trade secrets or other intellectual property rights) in and to the software, other than the limited rights expressly granted to CITY herein, shall remain vested in CONTRACTOR or its third party suppliers. (c) Notwithstanding any other provision of this Agreement, failure by CITY, its agents or contractors to comply with the terms of this Section shall be deemed a material breach of this Agreement, entitling CONTRACTOR to immediately terminate this Agreement and all of CITY's rights and privileges with respect to the licensed software, and to obtain injunctive and other relief necessary to protect CONTRACTOR from any potential damage resulting from such breach. 37. CONTRACTOR'S DAMAGE LIABILITY (a) In no event shall CONTRACTOR and its suppliers or subcontractors, be liable for (i) any special, incidental, exemplary, or consequential damages, (ii) commercial loss of any kind (including loss of business or profits), or (iii) any damages of any kind resulting from unauthorized use of the System, including, without limitation, toll fraud. This provision applies to all claims whether based upon breach of warranty, breach of contract, negligence, strict liability in tort or any other legal theory, and whether CONTRACTOR or its suppliers or its subcontractors have been advised of the possibility of such damage or loss. 01aereelnextira!6/13101 29 (b) CONTRACTOR shall be liable for any physical damage it causes to the System. This liability is limited to repair of the System or component thereof, or if the System or component cannot be repaired, replacement with a comparable System or component, and is otherwise limited as set forth.in Section 37(a) above. . 38. WAIVERS No action or inaction by either party shall be interpreted as a "waiver." No waiver by the CITY shall be valid unless it is in writing and signed by the City Administrator. No waiver by CONTRACTOR shall be valid unless signed by an authorized representative of CONTRACTOR. 39. GOVERNING LAW Any controversy or claim arising out of or relating to this Agreement or the breach thereof, shall be.settled in accordance with the laws of the State of California. 40. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONTRACTOR and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONTRACTOR understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONTRACTOR. 41. ATTORNEY' S FEES In the event suit is brought by either party to enforce the terms and provisions of this agreement or to secure the performance hereof, each party shall bear its own attorney's fees. O1ayeer'nextira.'6.11: 01 30 42. AMENDMENT/MODIFICATION The rights and obligations of the parties as set forth herein may only be altered by a written amendment or modification executed by an authorized representative of both parties, referencing this -A' eement, and expressly stating the intention to modify such rights and obligations. No course of dealing or usage of trade by or between the parties shall be deemed to constitute any modification or amendment of the terms of this Agreement. 43. ENTIRETY THIS AGREEMENT SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS PROPOSALS, COMMUNICATIONS AND NEGOTIATIONS, BOTH ORAL AND WRITTEN, AND CONSTITUTES THE ENTIRE AGREEMENT BETWEEN CONTRACTOR AND CITY WITH RESPECT TO ORDERS PLACED UNDER THIS AGREEMENT. 44. MISCELLAN'EOUS (i) If any court holds any portion of this Agreement unenforceable, the remaining language shall not be affected. (ii) No action, regardless of form, arising out of this Agreement may be brought by either party more than four (4) years after the cause of action has accrued. (iii) CITY's signature on a facsimile transmission of an Order Form or any amendment or attachment thereto, when sent from CITY's office to CONTRACTOR, maybe relied upon by CONTRACTOR in lieu of an inked signature and shall be binding on CITY and satisfy any applicable Statute of Frauds. CONTRACTOR'S copy of such facsimile transmission shall serve as the original of any such document. (iv) This Agreement may be executed contemporaneously 01asree,next:ra%6f 13 01 31 0 - 0 in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (v) CITY agrees that neither it nor any of its affiliates will solicit any of the CONTRACTOR employees providing sere -ices pursuant to this Agreement with offers of employment during the term of this Agreement and for a period of one (1) year after expiration of this Agreement. (vi) In'the event of any conflict between the terms and conditions of this Agreement, an Order Form, CONTRACTOR'S form attachments, and any other attachment, including CITY's request for proposal or similar document, this Agreement shall control. (vii) Any representations, warranties or statements made by an employee, salesperson or agent of CONTRACTOR and not expressed in this Agreement are not binding upon CONTRACTOR. CITY acknowledges that it has read this Agreement, has received and reviewed any and all documents referenced in it, understands it, and is bound by its terms. IN WITNESS WHEREOF, the parties hereto have caused this Aueement to be executed by and through their authorized offices the day, month and year first above written. NEXTIRA, UM print name ITS: (circle one) Chaimmn/Presiden ricePresi By: print name ITS. (circle one) Secretaryhief Financia Offi�sst. Secretary - Treasurer 01agree"nextira l3101 32 CITY OF HU'NTINGTON BEACH, a municipal corporation_ of the State of California Director of ministrative ices APPROVED AS TO OR -I: �, l City Attorney 4l INITIATED AND APPROVED: Fire Chief /Information Systems Director