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HomeMy WebLinkAboutCOUNTY OF ORANGE/MOTOROLA TELECOMMUNICATION EQUIPMENT AGREEMENT - 2003-05-05July 10, 2003 To: Jim Moore, Information Systems Manager Huntington Beach Police Department From: CSusan Markey, Administrative Manager CSD/Communications Division Subject: Executed Tri-Party Agreement Jim, attached are the Board minute order and the executed copy of the tri-party agreement between the City of Huntington Beach, the County of Orange, and Motorola, that transfers the Sanitation District infrastructure equipment from Huntington Beach to the County. It includes original signatures from the Board of Supervisors. We had a meeting yesterday with Kris Robinson of Motorola so I gave him his copy then. Please call me at (714) 704-7907 if you have any questions. Thank you for all of your efforts in processing this agreement. Cc: Joe Robben (memo and minute order only) r; 1 i ORANGE COUNTY BOARD OF SUPERVISORS MINUTE ORDER June 17, 2003 SubmittingAVncv/Department: Sheriff -Coroner Approve agreement with Huntington Beach and Motorola, Inc. for transfer of 800 MHz Countywide Coordinated Communications System infrastructure equipment ($263,907) - All Districts The following is action taken by the Board of Supervisors: APPROVED AS RECOMMENDED ® OTHER O Unanimous ® (1) SMITH: Y (2) SILVA: Y (3) CAMPBELL: Y (4) NORBY: Y (5) WILSON: Y Vote Key: Y=Yes; N=No; A=Abstain; X=Excused; B.O. =Board Order Documents accompanying this matter: O Resolution(s) O rdinances(s) xContract(s) Item No. 58 Special Notes: Copies sent to: CEO Wegmen Auditor — I -Copy ofAgreement 6✓27103 0 I certify that the fore ing is a true and correct copy of the Minute Order adopted b e Bo of Supervisors Orange County, State of California DME J. B , Clerk of the oard By: uty 1 �A�ENDA ITEM TONSMITTAI AGENCY T. USE CLERK USE ONLY CEO REVIEW _= CONSENT10� , R_ ' ";gConcur DISCUSSION 031:11 _6 `111 �o Not Concur PUBLIC HEARING -. ;. Exempt CONTACT FOR INFORMATION TO: BOARD OF SUPERVISORS COUNTY OF ORANGE / FROM: SHERIFF -CORONER DEPARTMENT As Assistant S rr�J� Galis 647(-18 4 NAME PW E MEETING DATE SUBJECT SUPV. DIST- June 17, 2003 Approval of Tri-Party Agreement Between County of Orange, City of All Huntington Beach and Motorola Inc. SUMMARY OF REQUEST (Description for Agenda) The Sheriff -Coroner requests approval of the tri-party agreement entitled, "Agreement Regarding Acquisition of Telecommunications Equipment Between the County of Orange, Huntington Beach and Motorola", which reflects the transfer of. 800 MHz Countywide Coordinated Communications System (CCCS) infrastructure equipment valued at $263,907 from the City of Huntington Beach to the County of Orange. ADDITIONAL DATA: In November 2001, Motorola completed the cutovers of 100 City and County fire service, law enforcement, lifeguard and public works operations to the new 800 MHz CCCS. In the spring of 2002, the City of Huntington Beach approached the County about enhancing its radio coverage in its beach/Main Street areas by adding Motorola infrastructure equipment to one of the County's radio sites located at the Orange County Sanitation TXstrict site in Huntington Beach. Continued on PN2 2 PREVIOUS RELEVANT BOARD ACTIONS ON THIS SPECIFIC ITEM: None FUNDING SOURCE(S) CURRENT YEAR COST ANNUAL COST BUDGETED? ❑ YES ❑ NO N/A I N/A NIA N/A WILL PROPOSAL REQUIRE ADDITIONAL PERSONNEL? CONSISTENT WITH BOARD POLICY? ONO IF YES, STATE NUMBER PERMANENT LIMITED TERM X❑ YES ❑ NEW ITEM OR EXCEPTION RECOMMENDED ACTION Approve and authorize execution of the tri-parry agreement entitled, "Agreement Regarding Acquisition of Telecommunications Equipment Between the County of Orange, Huntington Beach and Motorola", which reflects the transfer of 800 MHz Countywide Coordinated Communications System (CCCS) infrastructure equipment valued at $263,907 from the City of Huntington Beach to the County of Orange. CONCURRENCES (If Applicable) ATTACHMENTS Agreement Regarding Acquisition of Telecommunications Equipment Between the County of Orange, Huntington Beach and Motorola -� Date MICHAEL S. CARONA, SHERIFF -CORONER AGENDA ITEM TRANSMITTAL Page 2 June 17, 2003 Approval of Tri-Party Agreement Between County of Orange, City of Huntington Beach and Motorola, Inc. ADDITIONAL DATA (continued) Sheriff's Communications Division staff supported this effort, with the understanding that the City of Huntington Beach would fund both the equipment and the Motorola services to install it. The agreement was also contingent upon the City of Huntington Beach formally agreeing to transfer the infrastructure equipment to the County of Orange once it was installed, as it resides in one of the County's facilities and is an embedded component of the County's 800 MHz CCCS. Motorola also agreed to transfer the associated licenses, warranties, guarantees and documentation from the City of Huntington Beach to the County. These agreements were documented in a September 10, 2002 memo, prepared by County Counsel, and were later integrated into the proposed tri-party agreement between the County, the City of Huntington Beach and Motorola. The maintenance cost implications to the County resulting from the proposed agreement are minimal. The total equipment transfer involves infrastructure equipment valued at $263,907. As the equipment is integrated into the Orange County Sanitation District site, which already houses 800 MHz infrastructure equipment, it will be maintained as part of the overall site equipment. The expenses for maintenance of infrastructure equipment are included in the 800 MHz backbone cost - sharing plan that will be shared with the 34 cities and the Orange County Fire Authority. Overall, the 800 MHz CCCS will be enhanced through the equipment contribution by the City of Huntington Beach. The tri-party agreement was executed by Motorola on March 26, 2003 and was approved by the Huntington Beach City Council on May 5, 2003. The Sheriff -Coroner requests that the Board approve and authorize execution of the agreement on behalf of the County as referenced in the Recommended Action. AGREEMENT REGARDING ACQUISITION OF TELECOMMUNICATIONS EQUIPMENT BETWEEN THE COUNTY OF ORANGE, HUNTINGTON BEACH AND MOTOROLA THIS AGREEMENT is between the COUNTY OF ORANGE, a political subdivision of the State of California (hereinafter called "COUNTY"), the CITY OF HUNTINGTON BEACH, (hereinafter called "CITY") and MOTOROLA, Inc. (hereinafter called "Motorola") for the purpose of acquisition by COUNTY from CITY certain telecommunications equipment (hereinafter "equipment") for use in the 800 MHz Countywide Coordinated Communications System (CCCS). CITY acquired this equipment from Motorola and has paid MOTOROLA to integrate it into the COUNTY'S radio site at the Orange County Sanitation District in Huntington Beach. WHEREAS, CITY wishes to transfer said equipment to COUNTY ; and WHEREAS, COUNTY wishes to acquire the equipment on the condition that COUNTY will succeed to CITY'S legal rights with Motorola regarding the equipment; NOW, THEREFORE, COUNTY, CITY and MOTOROLA enter into this Agreement as follows: 1. CITY herewith transfers to COUNTY all equipment set forth on Exhibit 1 to this agreement, free of charge, on the condition that COUNTY utilizes equipment exclusively in COUNTY's 800 MHz CCCS. 2. Following MOTOROLA'S completion of the coverage acceptance test plan and formal approval by CITY and COONtY"',qfT �17 documents regarding operation of equipment, as wEl, l.&janties software licenses, guarantees and the like to CbR,�Ft3.l� il 1•N'1��1���wNii r'1:i� 3. Upon delivery of the documents set forth in paragraph 2, COUNTY will accept title to equipment, take possession of equipment, as successfully integrated and tested by MOTOROLA. Pagel of 3 Sheriff 2002: 228.1 Vehicle Hold Harmless K 4. MOTOROLA agrees to honor all warranties, software licenses, guarantees and the like regarding the equipment to COUNTY as if COUNTY had been the original purchaser of the equipment. 5. CITY herewith assigns all of its rights, title and interest in the CITY — MOTOROLA contract of August 21, 2002 to COUNTY, exclusive of console equipment purchased specifically for the use of CITY. COUNTY accepts said assignment. MOTOROLA concurs in said assignment, and will honor all rights of COUNTY in said contract as if COUNTY had been the original contracting entity. 6. COUNTY releases CITY from any and all liability, whether now known or unknown, relating to this agreement, the equipment set forth on Exhibit 1 attached hereto, and/or the integration into and use of said equipment in the CCCS. COUNTY will &fend and indemnify CITY from any and all causes of action relating to'this agreement, the equipment set forth on Exhibit 1 attached hereto and/or the integration into and use of said equipment in the CCCS. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in the County of Orange, State of California. SIGNED AND CERTIFIED THAT A COPY OF THIS 0 NT HAS BEEN DELIVERED TO T, CHAI MAN 0 THE BO ATT S i.LO��OW ORANGE COUW CAUFORNIA ERYISORS THE COUNTY OF ORANGE BY: TITLE: CHAIRMAN, BOARD OF SUPERVIORS DATED: Page 2 of 3 Sheriff 2002: 229.1 Vehicle Hold Harmless K • • W-41 ATTEST: C1 k CITY OF HUNTINGTON BEACH APPROVED AS TO FORM: r Bffi 3 ity Attorney 4��eW DATED: q 1'I I Q 3 ity C er � rl" -F1J INITIATED AND APPROVED: Ch of of Police REVIEWED AND APPROVED City Adurihistrator MOTOROLA Am, 0A FFU REIAEWED ANO APPROVED AS TO FORM DAVID IJTrLE DATE MOTOROLA CONTRACTS AND COMPLIANCE DEPT APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA BY: - Deputy DATED: .3 - Z /- 0_3 Page 3 of 3 ShentT2002. 229-1 Vehicle llv4d Harmless K EXHIBIT 1 SECTION 4.0 HUNTINGTON BEACH DETAILED DESIG"IPNIEN#'�. Sanitation - Re ater4 ...... 1 C99ED OUANTAFOQt?ANTRO FAMILY a ..: 1 001C OUANTAR STATION� :: :.. ..:: :... .........•,:: .. ,; .. :. . . 1 X760 ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870'MHZ, IM20WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRKQTAR =: 1 X153 ADD: HARDWARE RACKMO.UNT:.. ;.,.. 1 X287 DEL: FUNCTIONAL MANUAL 1 I X889 ADD: ASTRO WA. INTFC V24 1 X888 ADD: GPS SIMULCAST Sanitation - Repeater5 11 C99ED OUANTAR/QUANTRO FAMILY 1 loolc QUANTAR STATION 1 IX750 ADD: SW MHZ BAND RX 606-M MHZrrX 851-870 MH4 100-20 WATTS 1 IX897 A ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE RACKMOUNT 1 X297 DEL• FUNCTIONAL MANUAL 1 X889 ADD: ASTRO WA. INTFC V24 1 X888 ADD: GPS SIMULCAST Sanitation - RepeaterS 1 IC99ED OUANTAR/QUANTRO FAMILY 1 looic .:. _ :. OUA ffM-GTAfM—::. 1 IX760 ADD: SW MHZ BAND RX 806-825 MHZ'TX 851-870 MHZ 100-20 WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRK WAR 1 X153 ADD: HARDWARE RACKMOUNT 1 1=7 DEL: FUNCTIONAL MANUAL 1 lX889 ADD: ASTRO W/L INTFC V24 1 lX888 ADD: GPS SIMULCAST Sanitation - Repeateff 1 IC99ED OUANTAR/QUANTRO FAMILY 1 looic OUANTAR STATION 1 IX750 ADD: 800 MHZ BAND RX 806-825 MHZITX 851-870 MHZ, 100 20 WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE RACKMOUNT 1 X287 DEL, FUNCTIONAL MANUAL i X889 ADD: ASTRO WA. INTFC V24 1 X888 ADD: GPS SIMULCAST Sanitation - Repeater8 1 IC99ED QUANTAR/QUANTRO FAMILY 1 loolc QUANTAR STATION 1 IX750 ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870 M 100-20 WATTS 1 IX897 A ENH: SZ6809 ASTR CAI TRK WAR i X153 ADD: HARDWARE RACKMOUNT 1 X287 DEL, FUNCTIONAL MANUAL 1 X889 ADD: ASTRO W/L INTFC V24 1 IxBse ADD: GPS SIMULCAST MOTOROLA PROPRIETARY 10/291C2 i� SECTION 4.0 HUNTINGTON BEACH DETAILED DESIGN: EQUIPME�+IT • r O Part No. Descri t Sanitation - Controlled- 1 SOM01SUM0067 MTC 3600SZ'RESC: r 1 Miscellaneous Associated Cabling for MTC 3600::': 1 D391AO ADD:.7 CHANNELS J14CH 1 D179CE ADD: MTC 3600 SIMUL REM SPARES:. 1 D275AK ADD: REDUNDANT POWER SUPPLY': 1-1 Sanitation - TNSR1 1 DSPREMB918M UNIVERSAL ENCLOSURE TENSR 6W DSPREM880160 CPU 8 T1 E1 CROSS CONNT 1 DSPREM892060 8T1 E1 IF CARD 32K WITH MODEM 2 DSPREM89M DC POWER SUPPLY 48 VDC 2 DSPREM822560 10 PORT LD-SRU CARD 2 DSPREMB16480 4 PORT 4W DSM-CARD 1 I DSPREM800060 SINGLE T1 E1 WAN CARD 1 I DSPREM81130 DSX CEPT PLUG IN MODULE 11 DSTSJ48CLT PJ-45 8 WIRE MOD PROT. INSTALL RJ.45 OR HARD WIRED 16 VOL T1/E1 1 DSTSJADP TWO RACK UNIT BKT Sanitation - Repeated 1 I C99ED OUANTARK]UANTRO FAMILY 1 001C OUANTAR STATION 1 IX750 ADD: 800 MHZ BAND RX $06-825 MHZIfX 651-870 MKZ, 100-20 WATTS 1 IX897 A ENH: *SZ6809 ASTR CAI TRK 61TAR 1 X153 ADD: HARDWARE, RACKMOUNT 1 X287 DEL* FUNCTIONAL MANUAL S X889 ADD: ASTRO WA. INTFC V24 1 I X888 ADD: GPS SIMULCAST Sanitation - Repeater2 1 C99ED 61UANTARI'OUANTRO FAMILY 1 001C OUANTAR STATION 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870 MHZ, 100 20 WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE RACKMOUNT 1 X287 DEL, FUNCTIONAL MANUAL 1 X889 ADD: ASTRO WA. INTFC V24 1 Ixam ADD: GPS SIMULCAST Sanitation - Repeater3 1 C99ED OUANTAR/OUANTRO FAMILY 1 001 C OUANTAR STATION 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZ(TX 851-870 M 100-20 WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE, RACKMOUNT 1 X287 DEL* FUNCTIONAL MANUAL 1 X889 ADD: ASTRO WA. INTFC V.24 1 X888 ADD: GPS SIMULCAST MOTOROLA PROPRIETARY 10/29/02 SECTION 4.0 HUNnNGiTON BEACH DETAILED DESIGN EQUIPMENT LW Sanitation - Housl and Houft Aoceseor%s 4 TRN7343 SEVEN AND A HALF FOOT RACK Sanitation - Site Aoceswdn 1 688108BE90 MANUAL SERV QUANTAWOUANTRO 1 DSMFTSBFI MFTD INPUT EXP FAULT MODULE 2 DSMFTSMBF05 4 PORT 5MHZ SINE MODULE 3 DSMFTSMDP 4 PORT 1PPS TIMING MODULE Mieebroom 5anitatfon 2 DOMWi01109690001 Microwave: DVM M12 Card 1 DSOBBB MFTD STANDARD SHELF CONFIG AC POWER DIST SHELF FOR TIMING 21 Power for MFTD Untt 1 DOMPPCXZXH4 PNL MPP 24FT R.W.PNP 1.75X19 M INTERFACES 1 DGIMPPCXZXH2 PNL MPP 24FT 3 CONN 1 INTERFA 1 D5000600AC11009 UPS. 600W FERRUPS 12OV SOF WRED UPS 11 MIN. FULL LOAD 1 DQ11164719 HD EQUIPMENT SHELF 2 DDN6484 FRU AC DISTRIBUTION PANEL Antenna Syatem 21 DSDB810KXT ANTENNA 1 ODB GAIN 500 W SM869M Dedbet DB810 3 DSl-4PDMRC 1/2' 7-16 DIN MALE RI NO FLARE CONN 151 L1705 10 LDF HEL AX POLY JKT PER FT 2 DSLAPNMRC lIr N MALE RING FLARE CONN 21 DSL4PNFRC 1R' N FEMALE RING FLARE CONN 3 DSL5PNMRPC 7/B' CONN N MALE 1 PC CAPTIVATED 375 L1709 7/8. LDF HEL IAX POLY JKT PER FOOT 3 DSL5PNFRPC 7/80 CONN N FEMALE 1 PC CAPTIVATED 1 DSISDC50LNZ30MA ISDC50LNZ30MA BULKHEAD ARRESTOR WIDC PASSTHRU 1 DOISCFSDKNMA ISCF50HNMA COMBINER BULKHEAD ARRESTOR 600.900 MHZ 60 L1705 12' LDF HELIAX POLY JKT PER FT 6 DSL4PNMRC VT N MALE RING FLARE CONN 1 DSWIJD862085 COMB WAV-G 851-M 8 CH 7/16 ANT 150 KHZ MIN SEP BETWEEN CHANNELS 1 DDF1003 12 PORT PASSIVE QUAD MULTICOUPLER WITH TTA PASS REC 5 TDN8655A TERMINATION 50 OHM 6 TDNO574 7180 CABLE GROUND CLAMP IQT Hu on Beach CC - TNSR1 2 DSPREMaZaM 10 PORT LD-SRU CARD 2 DSPREMS16460 4 PORT 4W DSM CARD 1 DSPREMS01060 DUAL T1 E1 WAN CARD 3 DSPREMS1130 DSX CEPT PLUG IN MODULE 1 DSPREM800080 ISINGLETI E1 WAN CARD 1 DSPRE148W160 I CPU 8 T1 E1 CROSS CONNT MOTOROLA PROPRIETARY 1Or29102 SECTION 4.0 HUNTINGTON BEACH DETAILED DESIGN EQUIPMENT LIST Miscellaneous HB Civic Center 8 CLN1493 FRU WIREUNE BD COMP. CAI FC 8 CLN1163 FRU V 24 WITH RJ48 1 DOMPPCXZXH4 PNL MPP 24PT F J50-PNP 1.75X19 DSM INTERFACES 1 DQMPPCXZXH2 PNL MPP 24PT 3 CONN QI INTERFACE) 1 DS58104 SWITCH MODULE A B ONLY S are E ui meat Sanftatfon - Spare Re ter 1 C99ED QUANTARMANTRO FAMILY 1 001C OUANTAR STATION 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZITX 851-870 MHZ, 100-20 WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE RACKMOUNT 1 X287 DEL FUNCTIONAL MANUAL 1 X889 ADD: ASTRO W/L INTFC V.24 1 X888 ADD: GPS SIMULCAST MOTOROLA PROPRIETARY 10/29/02 as R u Iz 'ILI Communications System Agreement Motorola, Inc. ("Motorola) and the CRY . of Huntington Beach, CA ("Customer enter into this Communications System Agreement ('Agreement'), pursuant to which Customer will purchase and Motorola will sell the System, as described below. Motorola and Customer may be referred to indivkluafly as and collectively as "parties. For good and valuable consideration, the parties agree as follows: Section 1 EXHIBITS The Exhibits listed below are Incorporated Into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement win take precedWW over the Exhibits and any Inconsistency between Exhibits A throw D will be resolved In the order in which they are listed bekei. Exhibit A Motorola'Software Lkense AgreemenN Exhibit B 'Payment Schedule and Pricing Summary' Exhibit C w technical and Implementation DocumwW C-1 "System Description' dated August 7, 20M C-2 "Equipment List dated August 7, 2002 Cti3 "Statement of Worm' dated August 7, 20M C-4 `Acceptance Test Plan' or "ATP* dated August 7, 2002 C-S .-Performance Schedule' dated August 7, 2002 Exhibit D 'System Acceptance CertlfkmW Section 2 DEFINITIONS Capitalized terms used In this Agreement shall have the following meanings; "Acceptance Tests' means those tests described in the Acceptance Test Plan. "Contract Price" means the price for the System, exclusive of any applicable sales or similar taxes and freight charges. `Effective Date" means that date upon which the last party to sign this Agreement has executed the Agreement. "Equipment' means the hardware listed In the Equipment List. "Infringement Claim" means a claim that the Equipment manufactured by Motorola or the Motorola Software infringes a United States patent or copyright. -Motorola Software" means Software that Motorola owns. 'Non -Motorola Software" means Software that a party other than Motorola owns. -proprietary Rights' means the. patents, patent applications, inventions, copyrights; trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by Motorola under this Agreemert and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by Motorola or another party. "Software' means the Motorola and Non -Motorola Software in object code format that is furnished with the System or Equipment and which may be fisted on the Equipment List 'Subsystem" means a major portion of the entire System that performs specific functions or operations as described in the Technical and Implementation Documents.. "System' means the Equipment, Software, and services combined together into a system as more fully described in the Technical and Implementation Documents.. -System Acceptance means the Acceptance Tests have been successfully completed. Section 3 SCOPE OF AGREEMENT AND TERM &I. SCOPE OF WORK. Motorola will provide, ship, install and test the System, and perform Its other contractual responsibilities, all In accordance with this Agreement. Customer will perform its cortrackW responsibilities in accordance with this Agreement. 32. CHANGE ORDERS. Either party may request changes witFifn the general scope d this'Agreement. If a requested change causes an increase or decrease In the cost or time required to perform this Agreement, Motorola and Customer will agree to an equitable adjustment of the Contract Price, Performance Schedule, or both, and will reflect such adjustment M a change order. Neither party is obligated to perform requested changes unless both parties execute a written change order. 3.3. TERM. Unless otherwise terminated in accordance with the provisions of tits Agreement or extended by mutual agreement of the parties, the term of this Agreement shall begin on the.Effecave Date and shall continue. until the date of System Acceptance or expiration of the warranty period as set forth in Section 9, whichever occurs IasL 3.4. ADDITIONAL VOUIPMENT OR SOFTWARE. For three (3) years after the Effective Date of this Agreement,' Customer may order additional Equipment or Software provided it Is then available. Each order must refer to this Agreement and must specify the pricing and delivery terms. The applicable provisions of . this Agreement (except for pricing, delivery, passage of title and risk of loss to Equipment, and payment terms) will*govem the purchase and sale of the additional Equipment or Software. Title and risk of toss to additional Equipment will pass at shipment, and payment Is due within twenty (20) days after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped or Software -is licensed. 3.5. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to Customer solely in accordance with the Software License Agreement.(other than software devek)pment kits, 9 applicable, which have separate software license agreements). Customer hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement 3.6. NON-MOTOROLA SOFTWARE. Any Non -Motorola Software Is licensed to Customer in accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date unless the copyright owner has granted to Motorola the right to sublicense the Non -Motorola Software pursuant to the Software License Agreement, in which case it applies and the copyright owner will have all of Licensors rights and protections under the Software License Agreement Motorola makes no representations or warranties of any kind regarding Non -Motorola Software. 3.7. SUBSTITUTIONS. At no additional cost to Customer, Motorola reserves the right to substitute any Equipment, Software, or services to be provided by Motorola, but only if the substitute meets the specifications and is. of equivalent or better quality and value to the Customer.. Any such substitution will be reflected In a change order. Section 4 PERFORMANCE SCHEDULE Motorola and Customer agree to perform their respective responsibilities In accordance with the Performance Schedule. By executing this Agreement, Customer authorizes Motorola to proceed with performance of this Agreement. No notice to proceed, purchase order, authorization or resolution, or other action is required for the performance of this Agreement to begin. Section 5 PAYMENT OF CONTRACT PRICE 5.1. CONTRACT PRICE. The Contract Price in U.S. dollars Is $414,007.55. A pricing summary may be, included with the Payment Schedule. Motorola will submit to Customer invoices according to -the payment Schedule. Except for a payment that is due on the Effective Date, Customer will make payments to Motorola within -twenty (20) days after the date of each invoice. Customer will make payments when due In the form of a check, cashier's check, or wire transfer drawn on a U.S. financial institution.- 52. OVERDUE INVOICES. Overdue invoices will bear simple interest at the rate of ten percent (10%) per annum, unless such rate exceeds the maximum allowed by law, in which case it will be reduced to the maximum allowable rate. 5.3. FREIGHT, TITLE, AND RISK OF LOSS. All freight charges will be pre -paid by Motorola and added to the invoices: Title to the Equipment will pass to Customer upon shipment, except that.title to Software will not pass to Customer at any time. Risk of loss will pass to Customer upon delivery of the Equipment to the Customer. Motorola will pack and ship all Equipment in accordance with good commercial practices. Section 6 SITES AND SITE CONDITIONS 6.1. ACCESS TO SITES. In addition to Its responsibilities described elsewhere in this Agreement, Customer will provide (1) a designated project manager, (9) all necessary construction and building permits, zoning variances, licenses, and the like; and (lit) access to the work sites identified in the Technical and Implementation Documents as reasonably requested by Motorola so that It may perform Its duties In accordance with the Performance Schedule and Statement of Work. 62. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and In compliance with all applicable industry, and OSHA standards. To the extent applicable and unless- on Statement of Work specifically states to the contrary, Customer will ensure that these work sites will have m adequate physical space for the installation, use and maintenance of 'the System; - (9) adequate air conditioning and other environmental conditions; (111) adequate electrical power outlets, distribution and equipment for the installation, use and maintenance of the. System; and (Iv) adequate telephone or other communication lines for the installation, use and maintenance of the System, Including modem access, and adequate interfacing networking capabilities. Before installing the Equipment at a work eke, Motorola wM inspect the work site and advise Customer of any apparent 'deficiency or non -conformity with the requirements of this Section. This Agreement Is predicated upon normal soil conditions as defined -by the version of E.I.A. standard RS-222 in effect on the Effective Date. .6.3. SITE ISSUES. If Motorola or Customer determines that the sites identified in the Technical and Implementation Documents are no longer available or desired, or if subsurface, structural, adverse environmental or latent conditions at any site differ from those indicated in the Technical and Implementation Documents, Motorola and Customer will promptly investigate the conditions and will select replacement sites or adjust the installation plans and specifications as necessary. N such change in sites or adjustment to the installation plans and specifications causes a change in the cost or time to perform, the parties will equitably amend the Contract Price or Performance Schedule, or both, by a change order. Section i TRAINING If Motorola Is providing Customer training under this Agreement, it will be described in a written trainhtg play, • that Is part of the Statement of Work. Customer will notify Motorola immediately if a date change .for - a scheduled training program is required..H Motorola incurs additional costs because Customer reschedules a training program less than thirty (30) days before its scheduled start date, Motorola is entitled to recover these additional costs. Section 8 SYSTEM ACCEPTANCE 8.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer at least ten (10)-days notice. before #h .Ac�.ceptance..Tests commence— System_lasting .I. on Pla the Acceptance Test n. 82. SYSTEM . AC.CEPTANCE. System Acceptance will occur upon successful completion of the Acceptance Tests described in the Acceptance Test Plan. When System Acceptance occurs, the parties will memorialize this event by promptly executing a System Acceptance Certificate. If the Acceptance Test Plan includes separate tests for individual Subsystems or phases of the System, acceptance of the individual Subsystem or phase will occur upon the successful completion of the Acceptance Tests for such Subsystem or phase, and the parties will promptly execute an acceptance certificate for the Subsystem or phase. After completion of. the Acceptance Tests, ff. Customer believes that the System fails the Acceptance Tests , Customer will provide to Motorola a written notice that includes ' the specific details of such, faS►ne. 8 Customer faits to -provide to -Motorola such notice within thirty (30) days after completion of the Acceptance Tests, System Acceptance. will be deemed to have occurred as of the completion of the Acceptance_ Tests. Minor 'omissions orwariancin in the System' that • do not materially Impair •the. operation of the System as :a whole'wiN'not postpone; System Acceptance or Subsystem acceptance, but will be_corrected accordng to a mutually agreed schedule. 8.3. FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance and when 'all deliverables and other work have been completed When Final Project Acceptance occurs, the parties wiN promptly memorialize this final event by so indicating to the appropriate place on the System Acceptance Certificate. Section 9 REPRESENTATIONS AND WARRANTIES 9.7. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform consistently with the System design and functionality specifications contained in the Statement of Work In all material respects. This representation includes that the new MTC3600 Remote Site Controller and associated Quantam will be compatible with the Orange County SmartZone 6809 based Simulcast Prime Site Controller, provided that all .referenced equipment is operated at the same System Release Software Level - 3002 SER. The Motorola - provided ASTROTAC Comparators and T-bar Switch will also be compatible with the Orange County Smartzone system. Upon System Acceptance, this System functionality representation Is fulfilled. Motorola is not responsible for System performance deficiencies that are caused by ancillary equipment not fumk had by Motorola attached to or used in connection with the System or for reasons beyond MotoroWs•control, such as (i) an earthquake, adverse atmospheric conditions, or other natural causes; (1) the construction of a building. that adversely affects the microwave path reliability or radio frequency (RF) coverage; (iN)- the addition of frequencies at System sites'that cause RF interference. or intermodulation; (iv) Customer changes to load usage or configuration outside the specifications; or (v) any acts of parties who are beyond MotoroWs control. i9Z EQUIPMENT WARRANTY. For one (1) *year from the date of System � Acceptance, Motorola warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. If System Acceptance is delayed beyond silt (6) months after shipment of the Equipment by eventsvor causes within Customer's control, this warranty expires eighteen (18) months after the shipment of the Equipment. 9.5. MOTOROLA SOFTWARE WARRANTY. Unless :otherwise stated In the Software Limnos Agreement, for one (1) year from the*date of System Acceptance, Motorola warrants the. Motorola Software in accordance with the .terms of the Software License Agreement and the provisions of this Section ' 9 applicable :to_ the Motorola Software. If System Acceptance is delayed beyond six (6) months after shipment of the Motorola Software by events or causes within Customer's control, this warranty expires eighteen (18) montiis:,atter:_the sh ment.olVw,Motorola Software. 9A. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These warranties do not apply to: (i) defects or damage resulting from use of the Equipment or Motorola Software in other than its normal, customary, and authorized manner, (IQ defects or damage occurring from misuse; accident, liquids, neglect, or acts of God; (III) defects or damage occurring from testing, maintenance, disassembly. . repair, installation, alteration, modification, or adjustment not provided or authorized in writing by Motorola; (iv) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (v) defects or damage caused by Customers failure to comply with all applicable industry and OSHA standards; (vQ- Equipment that has had the serial number removed or made illegible; (vii) batteries (because they carry their own separate limited warranty);. (vDQ freight costs to ship Equipment to the repair depot -Qx) sc:ratirhes or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equonent and normal or customary wear and tear: 9.5. WARRANTY CLAIMS: BeforOAheexpiration .of the warranty period, Customer must notify Motorola in writing if .Equipment or Motorola Software does not conform to these warranties. Upon receipt of such notice, Motorola will investigate the warranty claim. If this investigation confirms a valid warranty claim, Motorolp will (at its option and at no additional charge to Customer) repair the defective Equipment or Motorola Software, replace it with. the same or equivalent product, or refund the price of the defective Equipment or Motorola Software. Such action will be the full extent of Motorola's liability hereunder. ff this investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding to the claim on a time and materials basis using Motorola's current labor rates. Repaired or replaced product is warranted for the balance of the original applicable warranty period. All replaced products or parts will become the property of Motorola. 9.6. ORIGINAL END USER IS COVERED. -These express limited warranties are extended by Motorola to the original user purchasing the System for commercial, industrial, or governmental use only, and are not assignable or transferable: Notwithstanding the foregoing, Motorola will agree to an assignment of the warranties to Orange County, Callfomia. Any assignment of warranties to Orange County must be in wd tg and signed by Motorola, Customer, and Orange County. 9.7. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING' THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE Section 10 DELAYS 10.1.. EXCUSABLE DELAYS. Neither party will be liable for its non-performance or delayed performance If caused by a "Force Majeure" which means an event, circumstance, or act of a third party that is beyond 4k party's reasonable control, such as an act of God, an act of the public enemy, an act of a government entity, strikes or other labor disturbances, hurricanes, earthquakes, fires, fk)ods, epidemics, embargoes, war, rift, or any other similar cause. Each party will notify the other if it becomes aware of any Force Majeure that will significantly delay performance. The notifying party will give such notice promptly (but in no- event later than fifteen days) after It discovers the Force Majeure. If a Force Majeure occurs, the parties will execute a change order to extend the Performance Schedule for a time period that is reasonable under the circumstances. 102. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If the Performance Schedule is delayed because of Customer (including any of its other contractors), (i) Customer will make the promised payments as if no delay occurred; and (1) the parties will execute a change order'to extend the Performance Schedule and, if requested by Motorola, compensate Motorola for all reasonable charges incurred because of such delay. Delay charges may include costs incurred by Motorola of its subcontractors for add'dkmW freight, warehousing and handling of Equipment; extension of the warranties; travel suspending and w mobilizing the work; additional. engineering, project management, and standby,time calculated at then curwd rates; and preparing and implementing an alternative implementation plan. SecHiA If DISPUTES 11.1. SETTLEMENT PREFERRED. Motorola and Customer will attempt to settle any claim or controversy arising from this Agreement (except for a claim relating 'to intellectual property) through consultation and negotiation in good faith and a spirit of mutual cooperation. The respective project managers will confer and attempt to settle a dispute. The dispute will be escalated to appropriate higher -level managers. of the parties. If necessary. if cooperative efforts fall, the dispute will be mediated by a mediator chosen jothtly by Motorola and Customer within thirty (30) days after notice by one of the parties demanding non-bfnding mediation. Motorola and Customer will not unreasonably withhold consent to the selection of a mediator, and they 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 alternative dispute resolution ('ADR'). 112. LITIGATION. Any claim relating to intellectual property and any dispute that cannot be resolved between the parties through negotiation or mediation within two (2) months after the -.date of the initial demand for non -binding mediation as described above in Section 11.1.shall then be submitted by either party to a court of competent jurisdiction in the state in which the System Is installed. Each party consents to jurisdiction over it by such a court. The use of 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 section before the expiration of the two -month ADR period It (i) good faith efforts to resolve the dispute under these procedures have been unsuccessful; or (ii) interim relief -from the court is necessary to prevent serious and irreparable injury to such party or any .of its- affiliates, agents, employees, customers, suppliers, or subcontractors. Section 12 DEFAULT AND TERMINATION 12.1. DEFAULT BY MOTOROLA. If Motorola fails to achieve System Acceptance In' ac oorrlance with this Agreement or otherwise breaches a material obligation under this Agreement, Customer may consider Motorola to be in default, unless Customer or a Force Majeure causes such failure. ff Customer asserts a default, it will give Motorola written and detailed notice of the default. Motorola will have thirty (30) days thereafter either to dispute the assertion or provide a written plan to cure the default that is acceptable to Customer. If Motorola provides a cure plan, it will begin implementing the cure plan immediately after receipt of Customer's approval of the plan. 122. DEFAULT BY CUSTOMER. If Customer fails to pay any amount when due under this Agreement, indicates that it is unable to pay any amount when due, or otherwise breaches a material obligation under this Agreement, Motorola may consider Customer to be in default, unless Motorola or a Force Majeure causes such failure. If Motorola asserts a default, it will give Customer written and detailed notice of the default and Customer will have thirty (30) days thereafter to (1) dispute the assertion, (IQ cure any monetary default (including interest), or (III) provide a written plan to cure the default that is acceptable to Motorda. - ff Customer provides a cure plan, it will begin implementing the cure plan immediately after receipt of Motorola's approval of the plan. Motorola may stop work upon a material default by Customer. 12.3. FAILURE 'TO CURE. If a defaulting party fails to cure the default as provided above in Sections 12.1 or 122, unless otherwise agreed in writing, the non -defaulting party may terminate any unfulfilled portion.of this Agreement. In the event of such termination, the defaulting party will promptly return to the rton- defaulting party any of its Confidential Information (as defined in Section 15.1). If Customer is the non. defaulting party, terminates this Agreement as permitted by this Section, and completes the System through a third party, Customer may as its exclusive remedy recover from Motorola reasonable costs incurred to complete the System to a capability not exceeding that specified in this Agreement less the unpaid portion of the Contract Price. Customer agrees to use- its best efforts. to mitigate such costs and to provide Motorola with detailed invoices substantiating the charges. 12A TERMINATION -FOR CONVENIENCE.- Customer.mayterminate.this.agreement.#or. its. convenienoe.. upon 30 days written notice to Motorola. If Customer terminates this contract solely for fts coriver kW", Motorola will, upon -notification, take all reasonable steps to minimize termination costs. Customer shah be liable to Motorola for equipment and services provided to the date of the notice to terminate and for reasonable costs, which may be bome by Motorola directly related to an unforeseen and abrupt termination. Section 13 .. • INDEMNIFICATION 13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnity and hold Customer harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against Customer to the extent it is caused by the negligence of Motorola, its subcontractors, or their employees or agents, while- performing their, duties under #6 Agreement, provided hat Customer .,gives Motorola prompt..:.written notice of ._any such claim or sulL Customer shaft c'tooperate wutfi` Motoen rola in its defse or settlement of eudi'claim a sub; Tfiis; section seta forth the full extent of Motorola'$ general indemnification of Customer from liabilities that are in any way related to Motorola's performance under this AgreemenL 132. PATENT AND COPYRIGHT INFRINGEMENT. 13.2.1. Motorola will defend at its expense any suit brought against Customer to the extent'that it is based on an Infringement Claim, and Motorola will indemnify Customer for those costs and damages finny awarded against Customer for an Infringement Claim. Motorola's duties to defend and Indemnify are conditioned upon: (i) Customer promptly notifying Motorola in writing of such Infringement Claim; (IQ Motorola having sole control of the defense of such suit and all negotiations for its settlement or compromise; (ill) Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claire. 132.2. If an Infringement Claim occurs, or in Motorola's opinion Is likely to occur, Motorola may at its option and expense procure for Customer the right to continue using the Equipment or Motorola Software, replace or modify it so that it becomes non -infringing while providing functionally equivalent performance, or grant Customer a credit for such Equipment or Motorola Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and Software. 132.3. Motorola will have no duty to defend or indemnify for any Infringement Claim -that is based upon' m the combination of the Equipment or Motorola Software with any software, apparatus or device not furnished by Motorola; (IQ the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Equipment or Motorola Software; (iii) any Equipment that Is not Motorows. design or formula;'(Iv) a modification of the Motorola Software by a party other than Motorola; or (v) the failure by Customer to install an enhancement release to the Motorola Software that is intended to corred the claimed infringement. 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. Section 14 LIMITATION:OF LIABILIW This limitation of liability provision shall apply notwithstanding any contrary provision In this Agreement. Except • for personal injuryor death, Motorola's total ,liability, whether. for breach of contract, warranty, negligence, strict.> liability iq . tort, indemnification,,. or- otherwise; will be limited to. the direct. damages recoverable under -Jaw. but not to exceed the price of the Equipment, Software, or services with respect to which losses or. damages are claimed ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES; THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS: INCONVENIENCE; LOSS :OF USE, TIME, [)ATA, GOOD:.WILL, REVENUES, PROFITS OR SAVINGS;OR OTHER SPECIAL,, INCIDENTAL, INDIRECT, OR . CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE--EQUIPMELy.M- �- OFi SOETWARr-4-OFt,.THEt:P_ERFOR.LiANCE ::QF,. SERVICES-. B�(..MOTOF�(�,�I►.,:.__ PURSUANT TO THIS AGREEMENT.. This limitation of liability. will survive the expiration or -termination of this Agreement. No action for breach of this Agreement or otherwise relating to the' transactions . contemplated by this Agreement may be brought more than one, (1) year after the accrual of such cause of action, except for money due .upon an open account. Section 15 CONFIDENTIALITY AND PROPRIETARY RIGHTS 15.1. CONFIDENTIAL• INFORMATION. 15.1.1.. During the term of this Agreement, the parties may provide the other with Confidential Information, For the purposes of this Agreement,. `Confidential Information'. is' any Inf ormation disclosed In written, graphic, verbal, or machine -recognizable form, and Is marked, designated, labeled or identified at the tune of d'isclosure�es. berg confidential or lts.equivalent; or if inlverbal form Is _identified as confidenti di er proprietary at the'time ofdiscfosure °and confirmed in writing within thirty (3%.days of. such disclosure. Notwithstanding any other provisions of this Agreement, confidential information shall not Include any information that: (i) Is or becomes publicly known through no wrongful ad of the receiving party; (10 is already known to the receiving party without restriction when it is disclosed; (ill) Is, or subsequently becomes, rightfully and without breach of this Agreement, in the receiving party's possession without any obligation restricting disclosure; (iv) is independently developed by the receiving party without breach of this. Agreement; or (v) is explicitly approved for release by written authorization of the disclosing party. 15.12. Concerning the Confidential Information provided to it by the other party, each party wilt (i) maintain the confidentiality of such Confidential Information and not disclose it to any third party, except as authorized by the disclosing party in writing or as required by a court of competent jurisdiction; (IQ restrict disclosure of Confidential Information to its employees who have a `need to know' and not copy or reproduce such Confidential Information; (10) take necessary and appropriate precautions to guard the+ confidentiality of Confidential Information, including informing Its employees who handle such Confidential Information that it is confidential and not to be disclosed to others, but such precautions shall be at least the same degree of care that the receiving party applies to its own confidential information and shall not be less than reasonable care, and (iv) use such Confidential Information only In furtherance of the performance of this Agreement. Confidential Information is and shall at all times remain the property of the disclosing party, and no grant of any proprietary rights in the Confidential Information is hereby given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information In the marmw and to the extent permitted by this Agreement. 152. PRESERVATION OF MOTOROLKS PROPRIETARY RIGHTS. 152.1. Motorola owns and retains all of its Proprietary Rights (as defined in Section 2) in the Equipment and Software. The third party manufacturer of any Equipment and the copyright owner of any Non -Motorola Software own and retain all of their Proprietary Rights in the Equipment and Software. Nothing In this Agreement is intended to restrict the Proprietary Rights of Motorola, any copyright owner of Non -Motorola Software, or any third party manufacturer of Equipment. AN intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively In Motorola, and this Agreement does not grant to Customer any shared development rights madof intellectual property This Agreement does not involve any Software el' is a_lplp e for hire 15.2' ' `Except as. expllcitly provided in: "the Software Lkense:;Agreement, nothing in this Agreement WIN 'be deemed 'to grant;. -either directly. or by implicatwn, estoppelF or otherwise,, any right, tail ' or: interest in Motorola's Proprietary Rights. ' Concerning both the- Motorola Software and the Non -Motorola Software, Customer agrees not to modify, disassemble, peel components, decompile otherwise :reverse engineet or attempt to reverse engineer, derive source code. or create derivative works from, adapt, translate, merge wkh other software, reproduce, or exportYthe Software; or permit or encourage anyirct�artyto do#a Section to -GENERAL-' 4, .. 161 TAXES The Contract _Price does ,not include any`amount for federal; state, or°local. excise, .sales, . lease, service, rental, use; propertji, occupation, or other -taxes, assessments°gr dUties`(t') ' thaw:foderaL . state; and local taxes based on Motorola's income or net worth), all of which will be paid: by Customer 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 Customer and Customer will pay to Motorola the amount of such taxes (including any applicable interest and penalties) within twenty (20) days after the date of the invoice. Customer wiN :be solely responsible for reporting the Equipment for personal property tax purposes. 162. ASSIGNABILITY.. Neither party may assign this Agreement without the. prior written consent of the other party, exc q that Motorole m may assign this Agreement to aof its affiliates or its right t4::receiw payment without the, prior conseM:of Custom 16.3.'SUBCONTRACTING,k Motorola'may sWcootraci any portion of�the vv^, ut sn suboontradig Ts will rat relieve Motorola of its duties un" thT dgreemer "'' '�. y rx 16.4... 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. For a waiver of a right or power to -be effective, -it must be in. writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either (Q a future or continuing waiver of that same right or power, or (ii) the waiver of any other right or power. 16.5. SEVERABILITY. If a court of competent jurisdiction renders any provision of this Agreement (or portion of a provision) to be invalid or otherwise unenforceable, that provision or portion of the provision will be severed and the remainder of this Agreement will continue in full force and effect as if the invalid provision or portion of the provision were not part of this Agreement 16.6. INDEPENDENT CONTRACTORS. Each party shall perform its activities and duties hereunder only as an independent contractor. The parties and their personnel shall not be considered to be an employee or agent of the other party. Nothing in this Agreement shall be interpreted as granting either party the right or authority to make commitments of any kind for the other. This Agreement shall not constitute, create, or In any way be interpreted as a joint venture, partnership or formal business organization of any kini& 16.7. 'HEADINGS AND SECTION REFERENCES; CONSTRUCTION-. The section headings. In this Agreement are inserted only for convenience and are not to be construed as Part of this Agreement or as a limitation of the scope of the particular, section to which the heading refers. This Agreement WIN be fairly interpreted in accordance with its terms and conditions and not for or against either party, 16.8. GOVERNING LAW. This Agreement and the rights and duties of the parties will be governed by and Interpreted in accordance with the laws of the State in which the System is installed. 16:9. • ENTIRE AGREEMENT. This Agreement, including all. Exhibits, constitutes the - entire agreement of the "parties regarding the subject matter hereof and supersedes all previous agreements, ptoposais, and understandings, whether written or oral, relating to such subject matter. This Agreement may be altered, amended, or modified only by a written instrument signed by authorized representatives of both parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment or other form wNi not be considered an amendment or modification of this Agreement even f( a representative of each pal signs such documWIL 16.10. NOTICES. Notices required under this Agreement to be given by one party to the other. must be in writing and either- delivered in person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service with an asset tracking system, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and shall .be effective upon receipt: Motorola, Inc. Customer. Attn::Contracts and Compliance Dept. Attu. 6450 Sequence .briVei San Diego, CA 92121 fax: 858 404-2594 fax 16.11. COMPLIANCE WITH APPLICABLE LAWS. Each party will -comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Customer will obtain and comply with all Federal Communications Commission (`FCC's licenses and authorizations required for the installation, operation and use of the System before the scheduled installation of the Equipment. Although Motorola might assist Customer in the preparation of its -FCC license applications, neither Motorola nor any.of its employees is an agent or representative of Customer in. FCC or other matters. 16.12. AUTHORITY TO. EXECUTE AGREEMENT. Each party represents to the other that m R has obtained all necessary.approvals, consents and authorizations to enter into this Agreernwrn andao perfgm its duties under this Agreement; (i) the person executing this Agreement on Its behalf has.the authority to do so; (119 upon execution and delivery of this Agreement by the parties, it Is a valid and binding contract, enforceable in accordance with its terms; and (iv) the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the party. 16.13. SURVIVAL OF TERMS. The following provisions shall survive the expiration or termination of this Agreement for any reason: Sections 3.6 and 3.7 (concerning Software licensing); Section 11 (Disputes); Section 14 (Limitation of.Liability); 15.1 (Confidential Information); and 152 (PreseNation of Motorola's Proprietary Rights). The parties hereby enter into this Agreement as of the Effective Date. Motorola, Inc. Name: Title: Date: Customer B Name: Title: Date: Approved as to Form City Attorney 4 9@2 13: 56 :In wola, Inc. Attu: Contracts and 0 rpHitrw a reps. 6450 Sequence Drive San Diego, CA. 92121 !ax: 8% 404-2594 Customer, Atb1: Jinn Moore i o.11. COMPLIANCE WITH APPLICABLE LAWS. Each party will comply with all appllcabl$ federel. state, and local laws, regulatiO-ne ane rules concerning the performance of this Agreement or use of the Systern. Customer will obtain and oompiy with all Federal Communications Commission (FMWaneq auihaizations required for the estellation, operation and use of the System before tie scheduled irmullabbo i art the E40pment. • Although Motorola might assist Customer in the prepamdon of fts FOC ken" applications. nether Motorola lru• any of as employee* is an agent or representative of Customer In FOG or ether maltme. ". 6.12. AUTHORITY 'O EXECUTE AGhEEMEW Each party represent$ 10 the other that'(!) It has obtained all necessary approvals, consents and authorttatlons to enter Into this Agreement and to perform its duties under this Agreernent: ;i) the person executing this-Agreoment on Its behalf has the authority to rib e0: (i,tj upon execution lind ael�mry of this Agreernerd by the partles, It Is a valid end binri'ing contract, eifcrceable in occordaawe witttis terms. and (iv) ry execution, dst;urery, and performance of this Agmenwrlt does not violate any bylaw. ct sty, regulation. low or any ottor governing auftrity of the pelt. 16.19. SURVIVAL OF TSFIVS. The tcAlowing provisions shad survive the expiration or termination of eft Agreement for any reason. Sections 3.6 and 3.7 (concerning SWtware licensing); Section III (Disputes); Secvron 14 (Limitatim of 151 (C,onfirtenilal Information); and 15.2 (Preservation of Motorola'* Proprietary Right's).. The. parties hereby enter unto. thus Agreement as of aw Effective Da w. motoro C. BY. Name: Titre- Date: BY + _ Name: Title:,c!��'T�R Date: CSA Set M02m. Motorola co *vd Na 02-101 r:1 . CustonW ey: Narne: ' r Title. _ Date: F'z[ `� Z Approved as to Form IV • ri r 102.. City Attorney `/S•3D REVIEWED AND ^ppnoyM ^s'ro FORM xt DAV� t tTLE COWPACTi AND CO►rI qqQp�y� IANOR DM !0 Exhibit A Software License Agreement Motorola, Inc ("Motorola" or "Licen6el, the City of Huntington Beach, CA ("Licensee") and Orange.County. California, hereby enter into this Software License Agreement ("Agreement"). The parties agree as follows: Sectiion 1 SCOPE Licensor will provide proprietary software and/or radio communications, computer,. or other electronic products ("Products') containing embedded or pre -loaded proprietary software to- Licensee..All such software that_Is rownedby_,MOtOrale iS-reterre to. as. "Softwar!a~ Product arld Software. documentatkxt that specifies ._ . . technical and performance features and capabilities, and the user, operation and training manuals fi>r tfie' Software (including all physical or electronic media upon which this information Is provided) are collectively. referred to as "Documentation.• This Agreement contains' the terms. -and conditions pursuant to which Licensor will license. and Licensee may use, the Software and Documentation. Section 2 GRANT OF LICENSE Licensor hereby grants to Licensee a personal. non -transferable (except as permitted in Section 8 below). limited, and non-exclusive license under Licensor's applicable proprietary rights to use the Software and related Documentation for the purposes for which they were designed and In accordance wkh the terms and conditions of this Agreement. 'The license granted authorizes Licensee to use the Software only. In object cods format and does not grant any rights o source code. Section S LIMITATIONS ON USE 3.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation.. Any other use of the Software Is strictly prohibited Licensee may not for any reason modify. disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code, create derivative works from, adapt, translate, merge with other software, copy, reproduce, distribute, or export any Software or permit or encourage any third party to do so, except that Licensee may make one copy of Software provided by -Licensor to be used solely for archival, back-up, or disaster recovery purposes. Licensee must reproduce all copyright and trademark notices on al copies of the Software and Documentation. 32. Licensee may not copy onto or transfer Software installed In one Product device onto another device. Notwithstanding the preceding sentence, Licensee may temporarily transfer Software installed on one device onto another if the original device Is inoperable or malfunctioning, provided that Licensee provides written notice to Licensor of such temporary transfer and such temporary transfer is discontinued when the original device Is returned to operation. Upon Licensor's written request, Licensee must provide to Licensor a written list of all Product devices in which the Software is installed and being used by Liaermwe. 3.3. Concerning Motorola's Radio Service Software ("RSS"), If applicable, Licensee must purchase a copy for each location at which Licensee uses RSS. Licensee's use of RSS at an authorized location does not entitle Licensee to use or access the RSS remotely. Licensee may make one additional copy for each computer owned or controlled by Licensee at each such location. Upon Licensor's written request, Licensee must provide to Licensor a written list of all locations where Licenseeuses or intends to use RSS. Section 4 OWNERSHIP AND TITLE Title to all copies of Software will not pass to Licensee at any time but remains vested exclusively in Licensor. Licensor owns and retains all of its proprietary rights in any form concerning the Software and Documentation, including all rights in patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, and other intellectual properties (including any corrections, bug fixes, enhancements, updates, or modifications to or derivative works from the Software whether made by Licensor or another party): . Nothing in this Agreement is intended to restrict the proprietary rights of Licensor or to grant by implication or estoppel any proprietary rights. All intellectual property developed, originated, or prepared by Licensor in connection with providing to Licensee Software,. Products, or related services remain vested exclusively in Licensor, and this Agreement does not grant to Licensee any shared development rights of intellectual property. This Agreement does not involve any'software that is a "work made for hire' Section 5 CONFIDENTIALITY Licensee acknowledges *that the Software and Documentation contain Licensor's valuable proprietari.and confidential information and trade secrets. Licensee will take necessary and appropriate precautions 10 maintalwand-guard the confidentiality of_the_Software:and:Documentation,_using at;least She same;degr of . . care that Licensee applies to its ownt confidential information but not less than reasonable care. Precautions will include informing Licensee's employees and agents who are authorized to use the Software and Documentation that such information Is confidential. and may not to be disclosed to others. Licensee wig not disclose the Software and Documentation to any third party except as permitted by this Agreement or expressly in writing by Licensor. Licensee will limit access to the Software and Documentation to Licensee's employees and agents who need to know and are authorized to use the Software and Documentation as' permitted by this Agreement. Section 6 LIMITED WARRANTY 6.1. 'The warranty. period for'the Software will commence upon shipment and will continue for 120 days . unless Licensor has agreed to a different warranty period. In. a separate agreement that has been 'mutuany executed by Licensor;land' Licensee; in which case the <warranty period will be as stated In,such iit agm9rim- subject to the remainder of this Section 6.1. For Software that is application software -that Is provided on a per unit basis, the warranty period for subsequent units licensed ,is the remainder (N any) of the initial warranty period or, N the initial warranty period has expired, the remainder (if any) of the term of the applicable Software Maintenance and Support Agreement: 62. During the applicable warranty period, Licensor warrants that the unmodified Software, when used properly and in accordance with this Agreement, will be free from a reproducible defect that -eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the system. Whether such defect occurs will be determined solely with reference to the Documentation. - For Software involving radio frequency systems and Products, the primary functionality of a voice communication system is subscriber -to -subscriber, subscriber -to -dispatcher, and dispatcher-to-subscrfber vote communication; and the primary functionality of a data communication system is point-to-point data transmission. Licensor does not warrant that Licensee's use of the Software or Products • will be uninterrupted or error -free or that the Software or the Products will meet Licensee's particular requirements. 6.3. Before the expiration of the applicable warranty period, Licensee must notify Licensor In writing N the Software does not conform to this warranty.* Upon receipt of such notice, Licensor will investigate the warranty claim. if this investigation confirms a valid warranty claim, Licensor will (at its option and at no additional charge to Licensee) repair the defect, replace the defective Software with the same or equivalent software, or refund the ' price of the defective Software or individual Product In which the Software is embedded or for which it was provided. Such action will be the full extent of Licensors liability and Licensee's sole remedy for a breach of this warranty. If the investigation indicates the warranty claim is.not valid, then Licensor may invoice Licensee for responding to the claim on a time and materials basis using Licensors current labor rates. 6.4. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE TRANSACTION COVERED BY THIS AGREEMENT IS A LICENSE AND NOT A SALE OF GOODS; THEREFORE, IT IS NOT COVERED BY THE UNIFORM COMMERCIAL CODE. Section 7 LIMITATION OF LIABILITY EXCEPT FOR PERSONAL INJURY OR DEATH, LICENSORS TOTAL LIABBLITY, WHETHER FOR BREACH OF: CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILTY IN TORT, OR OTHERWISE, WILL BE LIMITED TO LICENSEE'S DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT. TO EXCEED THE PRICE FOR THE SOFTWARE, THE PRODUCTS PROVIDED BY LICENSOR IN WHICH THE SOFTWARE IS EMBEDDED OR INSTALLED, OR THE -SERVICES SPECIFICALLY RELATED -TO THE SOFTWARE WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. ALTHOUGH THE . PARTIES ACKNOWLEDGE. THE. POSSIBILITY OF SUCH LOSSES :OR DAMAGES,.THEY,AGREE THAT LICENSOR :WILL -NOT' BE LIABLE FOR ANY- COMMERCIAL LOSS, INCONVENIENCE; LOSS OF. USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; .OR OTHER SPECIAL, INCIDENTAL,- 1NDIRE9T, OF<CON$EQUENTIAL DAMAGES_ARISING FROM THIS. AGREEMENT OR THE SALE OR r_> ._.. USE OF ANY SOFTWARE OR PRODUCTS. This Limitation of Liability provision will survive the term a*M .�. of this Agreement. Licensee must bring any action under this Agreement within one (1) year after the cause of action arises. Section 8 TRANSFERS Licensee may not, transfer Software to any third party without Licensors prior written consent; which consent may be withheld in Licensor's reasonable discretion and may be conditioned upon the transferee paying all applicable license fees and agreeing to be bound by this Agreement. Notwithstanding the preceding sentence, if Licensee transfers ownership of radio Products to a third party, Licensee may a"10— its rights to use the'Software (other than Radio Service Software and Motorola's FLASHpor* Software) embedded in or furnished for use withthose radio Products; provided that Licensee transfers all copies-ot-- .such: Software. and the related Documentation to the transferee, and the transferee executes a.t. w fore td,_be provided by Licensor upon request, (which form obligates the transferee to be -bound by this Agreeniertt). Section 9. TERM AND TERMINATION Licensee's right to use the Software will begin when this Agreement is mutually executed by both parties and will continue in perpetuity unless Licensee breaches this Agreement, in which case it shall -be terminated immediately without notice by Licensor. In addition to termination, Licensor shall be entitled to all available remedies at law or in equity (including immediate injunctive relief without proving damages and repossession of all non -embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Licensee acknowledges that its breach of this Agreement will result in irreparable harm to Licensor for which monetary damages would be inadequate. Within thirty (30) days afloat termination of this Agreement, Licensee must certify in writing to Licensor that all copies of the Software and Documentation have been returned to Licensor or destroyed and are.no longer in use by Licensee. Section 18 NOTICES Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in person or sent . to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service with an asset tracking system, such as Federal Express, UPS, or DHL), and shall be effective upon receipt. Change of address must be in writing to the other party. Licensee Licensor Attn: Contracts and Compliance Dept.. Attn: 6450 Sequence Drive San Diego, CA 92121 0 Section 11 UNITED STATES GOVERNMENT LICENSING PROVISIONS In the event that the Licensee Is the United States Government or a United States Govertrnertt agency, then the provisions of this section also apply. Use, duplication or disclosure of the Software and associated documentation under Licensor's copyrights and/or trade secret rights is subject to the restrictions set forth In subparagraphs (c)(1) and (2) of the . Commerciial Computer Software -Restricted Rights dause at FAR 52.227-19 (JUNE 1987), If applicable, unless being provided to the Department of Defense. If being provided to the Department of Defense, use, duplication, or disclosure of Software and associated documentation is subject to the restricted rights set forth in subparagraph (c)(1)(1) of the Rights in TedtnW Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988), 9 applicable. Software and associated documentation may or may not include a Restricted Rights notice, or other notice referring specftally to the termk and conditions of this Agreement. The terms and conditions of this Agreement shall each continue to apply, buf only to the extent that such'temis and conditions are not Iitcmisistent'Wllti the rights provided to the Licensee under the aforementioned provisions of fits FAR or DFARS, as applicable to the particular procuring agency and procurement transaction. Section 12 GENERAL 121. COPYRIGHT NOTICES. The existence of a copyright notice on the Software witl not be construed as an admission or presumption that public disclosure of the Software or any trade secrets -associated with the Software has occur u& 122. COMPLIANCE WITH LAWS. Licensee wm comply with all applicable laws and regulations. Including export laws and regulations of the United States. licensee will not, without the Prior authorization of Licensor and the appropriate governmental authority of the United States; In any form export or re-export, sell or resell, ship or reship, or divert, through direct or Indirect means. any Item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the Unites States Govemment. or any agency thereof, at the time of such action, requires an export license or otter governmental approval. Violation of this provision shall be a material breach of this Agreerrmtt. permitting Immediate termination by Liceraw. - 12.& WAVERS. Fallm or delay by either party to exercise any right or power under this Agreerent wS not operate as a waiver of. such right or power. For a waiver of a right or power to be effective, It must be In writing signed by the waiving party. An effective waterer of a right or power shall not be construed as either a future or continuing waiver of that same right or power, or the waiver d apy other right or power. 12.4. ASSIGNMENTS. Licensor may assign any of Its rights or subcontract any of Its obligations under this Agreement, or encumber or sell any of its rights in any Software, without prior notice do or consent Of Ll ensee. 12.5. ENTIRE AGREEMENT AND AMENDMENT. This Agreement constitutes the entire agreement of the parties regarding Licensees use of the Software and may be altered, amended, or modMed only by a written instrument signed by an authorized representative of each party, except that Licensor may modify this Agreement as necessary to comply with applicable laws and regulations. This Agreemert will be fairly interpreted In accordance with its terms and conditions and not for or against either pasty. 12.& GOVERNING LAW. This Agreement will be governed by the laws of the United States to the extent that they apply and otherwise by the lava of the State to which the Software or Products are shipped It Licensee Is a sovereign government entity, or the laws of the State of Illinois if Licensee Is not a sovereign government entity. 12.7. SEVERABILITY. If any provision of this Agreement Is determined by a coiA of competent jurisdection to be invalid or otherwise unenforceable, that provision wig be severed and the rema>rtder of title Agreement will remaltr In fait font and effem 62121 / 2M 2 3:136 714M sys r . ZKxp PAIK • In witness whweaf, the penes Mve caused duly au"fted ropres"tatems to axecu a tNt Soltwore U ense Agreemprll On the bates bet fatfr below. UcWvW .. / Lie Narrw: it: c k r t4 -nft_ ULCe_ Die• 8Y rye: It�rT Sfa�fd-T r+avw:wZD AM APrtNAmo w TO Fp" - PAW co"TR04c" AND MGW a awt cm► 4W trsvos v% woo" CW*Wd Ma tt3 mtum Apptovod as to Form Ctty ►.aOM"i!rx i�. Council/Agency Meeting Held: Deferred/Continued to: ! ❑ Approved ❑ Conditionally Approved ❑ Denied City Clerk's Signaturdf Council Meeting Date: May 5, 2003 Department ID Number: PC) 03-010. CITY OF HUNTINGTON BEACH -� REQUEST FOR ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Ray Silver, City AdministratorOZk.P �= J PREPARED BY: Kenneth W. Small, Chief of Police SUBJECT: Transfer Ownership of Telecommunications Equipment to the County of Orange Statement of Issue, Funding Source, Recommended Action, Altemative Actlon(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The City of Huntington Beach led a tri-party project with Motorola and the County of Orange to install a new radio transmitter at the County's Sanitation Facility for the purpose of improving radio reception throughout the City. Since this is an additional component embedded within the County's 800 MHz radio infrastructure, the City agreed to transfer the equipment, licenses, warranties, guarantees and documentation in the original purchase agreement to the County of Orange to provide on -going maintenance upon final system acceptance. The project is now complete and has operationally met the City's performance requirements. This agreement authorizes the transfer of the above items from the City of Huntington Beach to the County of Orange. Funding Source: NIA Recommended Action: Accept the terms of the Agreement Regarding Acquisition of Telecommunications Equipment between the County of Orange, Huntington Beach and Motorola and authorize the Mayor and City Clerk to excute the agreement. Alternative Action(s): There is no practicable altemative action. The City is bound by contract to transfer this equipment to the County of Orange upon final system acceptance. REQUEST FOR ACTION MEETING DATE: May 5, 2003 DEPARTMENT ID NUMBER: PD 03-010 Analysis: After installation of the 800 MHz Radio System, the Department discovered several areas of poor reception throughout the City. A few system modifications improved reception but problems still persisted particularly in the downtown area and the beach. The only acceptable solution that was endorsed by Motorola and the County was the installation of a new transmitter. The County already had a transmitter site at the Sanitation Facility located in the southern tip of our city used to service Newport Beach and Costa Mesa. Since this infrastructure was already in place, the cost for installing equipment to service Huntington Beach represented a third of the cost of a new and undeveloped site. On June 17, 2002, Council authorized the Department to enter into agreement with Motorola to install this transmitter equipment. This equipment is an embedded component of the County's 800 MHz radio system. As such, the County takes responsibility for its operation and maintenance. All telecommunications equipment servicing Huntington Beach is housed on either County owned or leased property including our City Hall roof. Although our radio shop personnel have the expertise, they do not have the authorization to perform any work on this equipment. The County must retain this control to maintain system -wide integrity. Our plan, as was approved by Council for the purchase of this new transmitter equipment, was to transfer this operational and maintenance responsibility to the County following final system acceptance. For this to occur, the County must assume ownership of the equipment, allowing Motorola to transfer licenses, warranties, guarantees and documentation from Huntington Beach to the County. This partnership benefits the County in that their radio system infrastructure and reception coverage is greatly improved while Huntington Beach benefits by acquiring greatly improved system performance maintained by the County. Equipment that Transfers: Sanitation Controller Equipment Sanitation Repeater Equipmment Sanitation TNSR 1 Equipment Huntington Beach TNSR 1 Equipment Antenna System Equipment Sanitation Site/Housing Accessories Sanitation Misc. Equipment Huntington Beach Misc. Equipment Spare Repeater (in event of failure) Total $ 40,445.00 $ 73,868.48 $ 37,926.00 $ 27,037.50 $ 37,909.40 $ 8.977.00 $ 13,539.00 $ 14,971.00 $ 9,233.56 ' This represents the dollar value of the equipment. It is being transferred free of charge to the County on the condition that it is exclusively used for the Huntington Beach 800MHz radio system. UARCA Transfer radio equip_doc .2. 4/1712003 4:43 PM REQUEST FOR ACTION MEETING DATE: May 5, 2003 Environmental Status: N/A Attachment(s): RCA Author: Jim Moore DEPARTMENT ID NUMBER: PD 03-010 WRCA Transfer radio equip.doc -3- 4/17/2003 4:43 PM • ATTACHMENT 1 AGREEMENT REGARDING ACQUISITION OF TELECOMMUNICATIONS EQUIPMENT BETWEEN THE COUNTY OF ORANGE, HUNTINGTON BEACH AND MOTOROLA THIS AGREEMENT is between the COUNTY OF ORANGE, a political subdivision of the State of California (hereinafter called "COUNTY"), the CITY OF HUNTINGTON BEACH, (hereinafter called "CITY") and MOTOROLA, Inc. (hereinafter called "Motorola") for the purpose of acquisition by COUNTY from CITY certain telecommunications equipment (hereinafter "equipment") for use in the 800 MHz Countywide Coordinated Communications System (CCCS). CITY acquired this equipment from Motorola and has paid MOTOROLA to integrate it into the COUNTY' S radio site at the Orange County Sanitation District in Huntington Beach. WHEREAS, CITY wishes to transfer said equipment to COUNTY , and WHEREAS, COUNTY wishes to acquire the eq.4ment on the condition that COUNTY will succeed to CITY'S legal rights with Motorola regarding the equipment; NOW, THEREFORE, COUNTY, CITY and MOTOROLA enter into this Agreement as follows: l . CITY herewith transfers to COUNTY all equipment set forth on Exhibit 1 to this agreement, free of charge, on the condition that COUNTY utilizes equipment exclusively in COUNTY's 800 MHz CCCS. 2. Following MOTOROLA'S completion of the coverage acceptance test plan and formal approval by CITY and COUNTY, CITY shall deliver all documents regarding operation of equipment, as well as warranties, software licenses, guarantees and the like to COUNTY. See Exhibit 2. Upon delivery of the documents set forth in paragraph 2, COUNTY will accept title to equipment, take possession of equipment, as successfully integrated and tested by MOTOROLA. Page l of 3 Sheriff2002: 228.1 Vehicle Hold I[armless K 4. MOTOROLA agrees to honor all warranties, software licenses, guarantees and the like regarding the equipment to COUNTY as if COUNTY had been the original purchaser of the equipment. 5. CITY herewith assigns all of its rights, title and interest in the CITY — MOTOROLA contract of August 21, 2002 to COUNTY, exclusive of console equipment purchased specifically for the use of CITY. COUNTY accepts said assignment. MOTOROLA concurs in said assignment, and will honor all rights of COUNTY in said contract as if COUNTY had been the original contracting entity. 6. COUNTY releases CITY from any and all liability, whether now known or unknown, relating to this agreement, the equipment set forth on Exhibit 1 attached hereto, and/or the integration into and use of said equipment in the CCCS. COUNTY will defend and indemnify CITY from any and all causes of action relating to this agreement, the equipment set forth on Exhibit 1 attached hereto and/or the integration into and use of said equipment in the CCCS. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in the County of Orange, State of California. THE COUNTY OF ORANGE BY: TITLE: DATED: Page 2 of 3 Sheriff2002: 228.1 Vehicle Hold Harmless K CITY OF HL: TINGTON BEACH APPROVED AS TO FORM: BY. ity Y C � Mayor Attorney ATTEST: /�A DATED: City Clerk INITIATED AND APPROVED: J Chief of Police REVIEWED AND APPROVED City Adwttistrator MOTOROLA C D . REVIEWED AND APPROVED AS TO FORM DAVID LITTLE DATE MOTOROLA CONTRACTS AND COMPLIANCE DEPT. APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA Deputy DATED: v-3 Page 3 of 3 Sheriff2002: 228.1 Vehicle Hold Harmless K • 9 EXHIBIT 1 SECTION 4.0 HUNTINGTON BEACH DETAILED DESIGN EQUIPMENT LIST Sanitation - Repeater4 11 C99ED• IOUANTAR/OUANTRO FAMILY 1 001C OUANTAR STATION 1 X750 I ADD: 800 MHZ BAND RX 806-825 MHZrrX 851-870 MHZ, 100-20 WATTS 1 X897 A I ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE, RACKMOUNT 1 X287 _ DEL• FUNCTIONAL MANUAL 1 IX889 I ADD: ASTRO WA- INTFC V.24 1 IX888 ADD: GPS SIMULCAST Sanitation -RepeaterS 1 C99ED OUANTAR/OUANTRO FAMILY 1 001 C OUANTAR STATION 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870 MHZ, 100-20 WATTS 1 iX897 A ENH: SZ6809 ASTR CAI TRK WAR 1 X153 !ADD: HARDWARE. RACKMOUNT 1 X287 DEL: FUNCTIONAL MANUAL 11 X889 iADD: ASTRO W/L INTFC V24 1 jX888 ADD: GPS SIMULCAST 9 Sanitation - Repeater6 1 iC99ED OUANTAR/OUANTRO FAMILY 001C OUANTAR STATION 1 I X750 ADD: 800 MHZ BAND RX 806-M MHZ/TX 851-870 MHZ, 100-20 WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE, RACKMOUNT 1 X287 `DEL• FUNCTIONAL MANUAL 1! X889 ADD: ASTRO W/L INTFC V.24 1 jX888 ADD: GPS SIMULCAST I ; Sanitation - Re eater7 1 C99ED :OUANTAR/OUANTRO FAMILY 11001C lOUANTAR STATION 1 I X750 ADD: 800 MHZ BAND RX 806.825 MHZlTX 851-870 MHZ, 100-20 WATTS 1 X897 A I ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 IADD: HARDWARE, RACKMOUNT 1 lX287 I DEL FUNCTIONAL MANUAL 1 iX889 +ADD: ASTRO WA- INTFC V.24 11 X888 ADD: GPS SIMULCAST i I Sanitation - Repeater8 11C99ED !QUANTAR/OUANTRO FAMILY 1 i 0o1C I OUANTAR STATION 11 X750 `ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870 MHZ, 100-20 WATTS 1 IX897 A I ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE, RACKMOUNT 1.X287 1 DEL: FUNCTIONAL MANUAL 1 X889 I ADD: ASTRO W/L INTFC V.24 1 I X888 ADD: GPS SIMULCAST MOTOROLA PROPRIETARY 10/29/02 SECTION 4.0 HUNTINGTON BEACH DETAILED DESIGN EQUIPMENT LIST Otyl Part No Descrl tion Sanrtation - Contmilerl 1 SOM01SUM0067 MTC 3600 SZ RESC 1 Miscellaneous Associated Cabling for MTC 3600 1 D391AO ADD: 7 CHANNELS 14 CH C 1 0179CE ADD: MTC 3600 SIMUL REM SPARES 1 D275AK ADD: REDUNDANT POWER SUPPLY Sanitation - TNSRi 1 I DSPREMS91830 UNIVERSAL ENCLOSURE TENSR 800 1 DSPREM880160 CPU 8 T7 E1 CROSS CONNT 1 DSPREMB92060 BT1 E1 IF CARD 32K WITH MODEM 2 DSPREM8902 DC POWER SUPPLY 48 VDC 2 OSPREMS22560 10 PORT L04 RU CARD 2 DSPREM816460 4 PORT 4W DSM CARD 1 DSPREM800060 SINGLE T1 El WAN CARD 1 DSPREM81130 DSX CEPT PLUG IN MODULE 1 DSTSJ48CLT RJ-45 8 WIRE MOD PROT. INSTALL RJ-45 OR HARD WIRED 16 VOL T1/E1 1 OSTSJADP TWO RACK UNIT BKT Sanitation - Repeated 1 C99ED QUANTAR/QUANTRO FAMILY 1 001C QUANTAR STATION 1 X750 ADD: 800 MHZ BAND FIX 806-825 MHZ/TX 851-870 MHZ- t00-20 WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRK OTAR 1 X153 ADD: HARDWARE, RACKMOUNT 1 X287 DEL FUNCTIONAL MANUAL 1 X889 ADD: ASTRO WA- INTFC V.24 1 X888 ADD: GPS SIMULCAST Sanitation - Repeater2 1 C99ED QUANTAR/QUANTRO FAMILY 1 001C QUANTAR STATION 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZ/TX 851-870 MHZ, 100-20 WATTS i X897 A ENH: SZ6809 ASTR CAI TRK QTAR. _ 1 X153 ADD: HARDWARE, RACKMOUNT 1 X287 DEL: FUNCTIONAL MANUAL 1 X889 ADD: ASTRO W/L. INTFC V.24 1 X888 ADD: GPS SIMULCAST Sanitation - Repeater3 1 C99ED QUANTAR/OUANTRO FAMILY 1 001C QUANTAR STATION 1 X750 ADD: 800 MHZ BAND RX 806-825 MHZ" 851-870 MHZ- 100-20 WATTS 1 X897 A ENH: SZ6809 ASTR CAI TRIO OTAR 1 X153 ADD: HARDWARE, RACKMOUNT t X287 DEL FUNCTIONAL MANUAL X889 ADD: ASTRO W/L INTFC V.24 1 X888 ADD: GPS SIMULCAST MOTOROLA PROPRIETARY 10/29/02 SECTION 4.0 HUNTINGTON BEACH DETAILED DESIGN EQUIPMENT LIST I r I Sanitation - Housings and Housing Accessones 4 TRN7343 ISEVEN AND A HALF FOOT RACK 1 + I i S S Sanitation - Site Accessories 1 68810B8E90 !MANUAL SERV QUANTAR/QUANTRO 1 iOSMFTSBFI I MFTD INPUT EXP FAULT MODULE 2 DSMFTSMSF05 14 PORT 5MHZ SINE MODULE 31DSMFTSMOP 14 PORT 1PPS TIMING MODULE 1 Miscellaneous Sanitation f 210QMWI01109690001 ,Microwave: DVM M12 Card 1 I DSOBBB MFTD STANDARD SHELF CONFIG AC POWER DIST SHELF FOR TIMING 21 Power Supply for MFTD Unit 1 DOMPPCXZXH4 PNL MPP 24PT RJ50-PNP 1.75X19 DSM INTERFACES 1, DOMPPCXZXH2 PNL MPP 24PT 3 CONN 1 INTERFACE 1 'DS000600AC 11009 1UPS. 60OW FERRUPS, 120V, SOFTWIRED UPS 11 MIN. FULL LOAD 1 I DQ11164719 IHD EQUIPMENT SHELF 21DON6484 1FRU AC DISTRIBUTION PANEL II Antenna System 2IDSOB810KXT 1ANTENNA 1000 GAIN 500 W W6-869MH Dedbei DB810 3 DSL4PDMRC 1112' 7-16 DIN MALE RING FLARE CONN 151 L1705 i 1/2' LDF HELIAX POLY JKT PER FT 2 DSL4PNMFIC 1112' N MALE RING FLARE CONN 2 DSL4PNFRC 112' N FEMALE RING FLARE CONN 3!DSL5PNMRPC i718' CONN N MALE 1 PC CAPTIVATED 3751 L1709_1 7/8' LDF HELIAX POLY JKT PER FOOT 31 DSL5PNFRPC j 718' CONN N FEMALE 1 PC CAPTIVATED 1!DSISDC50LNZ30MA IS0050LNZ30MA BULKHEAD ARRESTOR W/DC PASSTHRU 1 I DOISCF50HNMA ISCF50HNMA COMBINER BULKHEAD ARRESTOR 600-900 MHZ 60 L1705 11/2' LDF HELIAX POLY JKT PER FT 6rDSL4PNMRC 11IDSWIJ086208S 112' N MALE RING FLARE CONN (COMB WAV-G 851-869 8 CH 7/16 ANT, 150 KHZ MIN SEP BETWEEN CHANNELS _ 1?DDF1003 _ i 12 PORT PASSIVE QUAD (MULTICO_ UPLER R WH TTA PASS REC _ 5iTDN8655A 61TON6674 (TERMINATION 50 OHM !7/8' CABLE GROUND CLAMP KfT � I i 21 DSPREMB22560 I Huntington Beach CC - TNSR1 110 PORT LD-SRU CARD 21 DSPREM816460 1 DSPREMS01060 14 PORT 4W DSM CARD 1 DUAL T1 E1 WAN CARD 3;DSPREM81130 :DSX CEPT PLUG IN MODULE 1IDSPREM800060 i DSPREMS80160 !SINGLE T1 E1 WAN CARD (CPU 8 Ti E1 CROSS CONNT MOTOROLA PROPRIETARY 1029IO2 SECTION 4.0 HUNTINGTON BEACH DETAILED DESIGN EQUIPMENT LIST k I I Miscellaneous HB Civic Center 8 CLN1493 I FRU WiSELINE BD COMP. CAI FC 8 CLN1163 I FRU V 24 WITH RJ48 1 DOMPPCXZXH4 I PNL MPP 24PT RJ50-PNP 1.75X19 DSM INTERFACES 11 DOMPPCXZXH2 i PNL MPP 24PT 3 CONN(Ti INTERFACE 1 OS58104 SWITCH MODULE A B ONLY iSpare Equipment Sanitation - S re Repeater 1'C99ED I QUANTAR/QUANTRO FAMILY 1I001C IGUANTAR STATION 1:X750 ;ADD: 800 MHZ BAND RX 80"25 MHZITX 851-870 MHZ, 100-20 WATTS 1 : X897 A +ENH: SZ6809 ASTR CAI TRK OTAR lIX153 iADD: HARDWARE, RACKMOUNT 1IX267 ;DEL: FUNCTIONAL MANUAL 1 i X889 I ADD: ASTRO WIL INTFC V.24 1,X888 !ADD: GPS SIMULCAST i MOTOROLA PROPRIETARY 10/29/02 Comnwdal Covemment TwStrial Sotutions Sector MOTOROLA 5-P 5- 17-1 Hun..gtinton E 10 I* Communications System Agreement Motorola, Inc. ("Motorola") and the City of Huntington Beach, CA ("Customer') enter into this Communications System Agreement ("Agreement"), pursuant to which Customer will purchase and Motorola will sell the System, as described below. Motorola and Customer may be referred to individually as'party- and collectivefy as "parties For good and valuable consideration, the parties agree as follows: Section 1 EXHIBITS The Exhibits listed below are incorporated into and made a part of this Agreement. in interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will take precedence over the Exhibits and any inconsistency between Exhibits A through D will be resolved in the order in which they are listed below. Exhibit A Motorola "Software License Agreement" Exhibit B "Payment Schedule and Pricing Summary" Exhibit C "Technical and Implementation Documents" C-1 "System Description" dated August 7, 2002 C-2 "Equipment List" dated August 7, 2002 C-3 "Statement of Work" dated August 7, 2002 C-4 "Acceptance Test Plan" or "ATP" dated August 7, 2002 C-5 "Performance Schedule" dated August 7, 2002 Exhibit D "System Acceptance Certificate" Section 2 DEFINITIONS Capitalized terms used in this Agreement shall have the following meanings: "Acceptance Tests" means those tests described in the Acceptance Test Plan. "Contract Price" means the price for the System, exclusive of any applicable sales or similar taxes and freight charges. "Effective Date" means that date upon which the last party to sign this Agreement has executed the Agreement. "Equipment" means the hardware -listed in the Equipment List. "Infringement Claim" means a claim that the Equipment manufactured by Motorola or the Motorola Software infringes a United States patent or copyright. "Motorola Software" means Software that Motorola owns. "Non -Motorola Software" means Software that a party other than Motorola owns. "Proprietary Rights" means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by Motorola under this Agreement and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by Motorola or another party. Fj C] "Software" means the Motorola and Non -Motorola Software in object code format that is fumished with the System or Equipment and which may be listed on the Equipment List i "Subsystem' means a major portion of the entire System that performs specific functions or operations as } described in the Technical and implementation Documents. 'System' means the Equipment, Software, and services combined together into a system . as more fully described in the Technical and Implementation Documents. 'System Acceptance' means the Acceptance Tests have been successfully completed. Section 3 SCOPE OF AGREEMENT AND TERM 3.1. SCOPE OF WORK. Motorola will provide, ship, install and test the System, and perform its other contractual responsibilities. all in accordance with this Agreement. Customer will perform its contractual responsibilities in accordance with this Agreement 3.2. CHANGE ORDERS. Either parry may request changes within the general scope of this Agreement If a requested change causes an increase or decrease in the cost or time required to perform this Agreement, Motorola and Customer will agree to an equitable adjustment of the Contract Price, Performance Schedule, or both, and will reflect such adjustment In a change order. Neither party is obligated to perform requested changes unless both parties execute a written change order. 3.3. TERM. - Unless otherwise terminated in accordance with the provisions of this Agreement or extended by mutual agreement of the parties, the term of this Agreement shall begin on the Effective Date and shall continue until the date of System Acceptance or expiration of the warranty period as set forth in Section 9, whichever occurs last. 3.4. ADDITIONAL CQUIPMENT OR SOFTWARE. For three (3) years after the Effective Date of this Agreement, Customer may order additional Equipment or Software provided it is then available. Each order must refer to this Agreement and must specify the pricing and delivery terms. The applicable provisions of this Agreement (except for pricing, delivery, passage of title and risk of kiss to Equipment, and payrnent terms) will govern the purchase and sale of the additional Equipment or Software. Title and risk of loss to additional Equipment will pass at shipment, and payment is due within twenty (20) days after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped or Software is licensed. 3.5. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to Customer solely in accordance with the Software License Agreement (other than software development kits, if applicable, which have separate software license agreements). Customer hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement. 3.6. NON-MOTOROLA SOFTWARE. Any Non-Motorota Software is licensed to Customer in accordance with the standard license, terms. and restrictions of the copyright owner on the Effective Date unless the copyright owner has granted to Motorola the right to sublicense the Non -Motorola Software pursuant to the Software License Agreement, in which case it applies and the copyright owner will have all of Licensoes rights and protections under the Software License Agreement. Motorola mattes no representations or warranties of any kind regarding Non -Motorola Software. 3.7. SUBSTITUTIONS. At no additional cost to Customer, Motorola reserves the right to substitute any Equipment, Software, or services to be provided by Motorola, but only if the substitute meets the specifications and is of equivalent or better quality and value to the Customer. Any such substitution will be reflected in a change order. Section 4 PERFORMANCE SCHEDULE Motorola and Customer agree to perform their respective responsibilities in accordance with the Performance Schedule. By executing this Agreement, Customer authorizes Motorola to proceed with performance of this Agreement. No notice to proceed, purchase order, authorization or resolution, or other action is required for the performance of this Agreement to begin. Section 5 PAYMENT OF CONTRACT PRICE 5.1. CONTRACT PRICE. The Contract Price in U.S. dollars is $414,007.55. A pricing summary may be included with the Payment Schedule. Motorola will submit to Customer invoices according to the Payment Schedule. Except for a payment that is due on the Effective Date. Customer will snake payments to Motorola within twenty (20) days after the date of each invoice. Customer will make payments when due in the form of a check, cashier's check, or wire transfer drawn on a U.S. financial institution. 5.2. OVERDUE INVOICES. Overdue invoices will bear simple interest at fhe rate of ten percent (10%) per annum, unless such rate exceeds the maximum allowed by law, in which case it will be reduced to the maximum allowable rate. 5.3. FREIGHT, TITLE, AND RISK OF LOSS. All freight charges will be pre -paid by Motorola and added to the invoices. Title to the Equipment will pass to Customer upon shipment, except that title to Software will not pass to Customer at any time. Risk of kiss will pass to Customer upon delivery of the Equipment to the Customer. Motorola will pack and ship all Equipment in accordance with good commercial practices. Section 6 SITES AND SITE CONDITIONS 6.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement. Customer will provide (i) a designated project manager, (ii) all necessary construction and building permits, zoning variances, licenses, and the like; and (iii) access to the worts sites identified in the Technical and is implementation Documents as reasonably requested by Motorola so that it may perform its duties in accordance with the Performance Schedule and Statement of Work. _ 6.2. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the Statement of Work specifically states to the contrary, Customer will ensure that these work sites will have (i) adequate physical space for the installation, use and maintenance of the System; (ii) adequate air conditioning and other environmental conditions; (iii) adequate electrical power outlets, distribution and equipment for the installation, use and maintenance of the System; and (N) adequate telephone or other communication lines for the installation, use and maintenance of the System, including modem access, and adequate interfacing networking capabilities. Before installing the Equipment at a work site, Motorola will inspect the work site and advise Customer of any apparent deficiency or ion-conformtty with the requirements of this Section. This Agreement is predicated upon normal soil conditions as defined by the version of E.I.A. standard RS-222 in effect on the Effective Date. 6.3. SITE ISSUES. If Motorola or Customer determines that the sites identified in the Technical and Implementation Documents are no longer available or desired, or d subsurface, structural, adverse environmental or latent conditions at any site differ from those indicated in tt* Technical and Implementation Documents, Motorola and Customer will promptly investigate the conditions and will select replacement sites or adjust the installation plans and specifications as necessary. If such change in sites or adjustment to the installation plans and specifications causes a change in the cost or time to perform, the parties will equitably amend the Contract Price or Performance Schedule, or both, by a change order. 0 Section 7 TRAINING It Motorola is providing Customer training under this Agreement, it will be described in a written training plan that is part of the Statement of Work. Customer will notify Motorola immediately if a date change for a scheduled training program is required. If Motorola incurs additional costs because Customer reschedules a training program less than thirty (30) days before its scheduled start date, Motorola is entitled to recover these additional costs. Section 6 SYSTEM ACCEPTANCE 8.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer at least ten (10) days notice before the Acceptance Tests commence. System testing will occur only in accordance with the Acceptance Test Plan. 82. SYSTEM ACCEPTANCE. System Acceptance wit occur upon successful completion of the Acceptance Tests described in the Acceptance Test Plan. When System Acceptance occurs, the parties will memorialize this event by promptly executing a System Acceptance Certificate. If the Acceptance Test Plan Includes separate tests for individual Subsystems or phases of the System. acceptance of the individual Subsystem or phase will occur upon the successful completion of the Acceptance Tests for such Subsystem or phase, and the parties will promptly execute an acceptance certificate for the Subsystem or phase. After completion of the Acceptance Tests, if Customer believes that the System falls the Acceptance Tests , Customer will provide to Motorola a written notice that includes the specific details of such fallure. K Customer fails to provide to Motorola such notice within thirty (30) days after completion of the Acceptance Tests, System Acceptance will be deemed to have occurred as of the completion of the Acceptance Tests. Minor omissions or variances in the System that do not materially impair the operation of the System as a whole will not postpone System Acceptance or Subsystem acceptance, but will be corrected accorcrng to a mutually agreed schedule. 8.3. FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance and when all deiiverabies and other work have been completed. When Final Project Acceptance occurs, the parties will promptly memorialize this final event by so indicating in the appropriate place on the System Acceptance Certificate. Section 9 REPRESENTATIONS AND WARRANTIES 9.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform consistently with the System design and functionality specifications contained in the Statement of Work in all material respects. This representation includes that the new MTC3600 Remote Site Controller and associated Quantars will be compatible with the Orange County SmartZone 6809 based Simulcast Prime Site Controller, provided that all referenced equipment is operated at the same System Release Software Level - 3= SER. The Motorola provided ASTROTAC Comparators and T-bar Switch will also be compatible with the Orange County Smartzone system. Upon System Acceptance, this System functionality representation is fulfilled. Motorola is not responsible'for System performance deficiencies that are caused by ancillary equipment not furnished by Motorola attached to or used in connection with the System or for reasons beyond Motorola's control, such as (i) an earthquake, adverse atmospheric conditions, or other natural causes; (ii) the construction of a building that adversely affects the microwave path reliability or radio frequency (FIF) coverage; (id) the addition of frequencies at System sites that cause RF interference or intermodulation; (iv) Customer changes to load usage or configuration outside the specifications; or (v) any acts of parties who are beyond Motorola's control. 0 92. EQUIPMENT WARRANTY. For one (1) year from the date of System Acceptance, Motorola warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. if System Acceptance is delayed beyond six (6) months after shipment of the Equipment by events or causes within Customer's control, this warranty expires eighteen (1 B) months after the shipment of the Equipment. 9.3. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated In the Software license Agreement, for one (1) year from the date of System Acceptance, Motorola warrants the Motorola Software in accordance with the terms of the Software License Agreement and the provisions of this Section 9 applicable to the Motorola Software. If System Acceptance is delayed beyond six (6) months after shipment of the Motorola Software by events or causes within Customer's control, this warranty expires eighteen (18) months after the shipment of the Motorola Software. 9A. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These warranties do not apply to: (i) defects or damage resulting from use of the Equipment or Motorola Software in other than Its normal, customary, and authorized manner; (ii) defects or damage occurring from misuse, accident, liquids, neglect, or acts of God; (iii) defects or damage occurring from testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized In writing by Motorola; (iv) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (v) deflects or damage caused by Customers failure to comply with all applicable Industry and OSHA standards; (vi') Equipment that has had the serial number removed or made illegible; (vii) batteries (because they cry their own separate limited warranty); (viii) freight costs to ship Equipment to the repair depot; (ix) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and (x) normal or customary wear and tear. 9.5. WARRANTY CLAIMS. Before the expiration of the warranty period, Customer must notify Motorola in writing 0 Equipment or Motorola Software does not conform to these warranties. Upon receipt of such notice, Motorola will investigate the warranty claim. It this investigation confirms a valid warranty claim, . Motorola will (at its option and at no additional charge to Customer) repair the defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola Software. Such action will be the full extent of Motorola's liability hereunder. If this investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding to the claim on a time and materials basis using Motorola's current labor rates. Repaired or replaced product is warranted for the balance of the original applicable warranty period. All replaced products or parts will become the property of Motorola. 9.6. ORIGINAL END USER iS COVERED. These express limited warranties are extended by Motorola to the original user purchasing the System for commercial, industrial, or governmental use only, and are not assignable or transferable. Notwithstanding the foregoing, Motorola will agree to an assignment of the warranties to Orange County, California. Any assignment of warranties to Orange County must be in writing and signed by Motorola, Customer, and Orange County. 9.7. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPUED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Section 10 DELAYS 10.1. EXCUSABLE DELAYS. Neither parry will be liable for its non-performance or delayed performance if caused by a "Force Majeure" which means an event, circumstance, or act of a third party that is beyond a party's reasonable control, such as an act of God, an act of the public enemy, an act of a government entity, strikes or other labor disturbances, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, riots, or any other similar cause. Each party will notify the other if it becomes aware of any Force M*ure that will • significantly delay performance. The notifying party will give such notice promptly (but in no event later than fifteen days) after it discovers the Force Majeure. If a Force Majeure occurs, the parties will execute a change order to extend the Performance Schedule for a time period that is reasonable under the circumstances. 10.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If the Performance Schedule is delayed because of Customer (including any of its other contractors), (i) Customer will make the promised payments as if no delay occurred; and (ii) the parties will execute a change order to extend the Performance Schedule and, ff requested by Motorola, compensate Motorola for all reasonable charges incurred because of such delay. Delay charges may include costs incurred by Motorola or its subcontractors for additional freight, warehousing and handling of Equipment; extension of the warranties; travel; suspending and re- mobilizing the work; additional engineering, project management, and standby time calculated at then current rates; and preparing and implementing an alternative implementation plan. Section 11 DISPUTES 11.1. SETTLEMENT PREFERRED. Motorola and Customer will attempt to settle any claim or controversy arising from this Agreement (except for a claim relating to intellectual property) through consultation and negotiation in good faith and a spirit of mutual cooperation. The respective project managers will confer and attempt to settle a dispute. The dispute will be escalated to appropriate higher -level managers of the parties, if necessary. If cooperative efforts fail, the dispute will be mediated by a mediator chosen jointly by Motorola and Customer within thirty (30) days after notice by one of the parties demanding non -binding mediation. Motorola and Customer will not unreasonably withhold consent to the selection of a mediator. and they 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 alternative dispute resolution ('ADR`). 11.2. LITIGATION. Any claim relating to intellectual property and any dispute that cannot be resolved between the parties through negotiation or mediation within two (2) months after the date of the initial demand for non -binding mediation as described above in Section 11.1.Shall then be submitted by either party to a court of competent jurisdiction in the state in which the System is installed. Each party consents to jurisdiction over it by such a court. The use of 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 section before the expiration of the two -month ADR period if (i) good faith efforts to resolve the dispute under these procedures have been unsuccessful; or (ii) interim relief from the court is necessary to prevent serious and irreparable injury to such party or any of its affiliates, agerrts, employees, customers, suppliers, or subcontractors. Section 12 DEFAULT AND TERMINATION 12.1. DEFAULT BY MOTOROLA. If Motorola fails to achieve System Acceptance in accordance with this Agreement or otherwise breaches a material obligation under this Agreement, Customer may consider Motorola to be in defauft, unless Customer or a Force Majeure causes such failure. If Customer asserts a default, it will give Motorola written and detailed notice of the default. Motorola will have thirty (30) days thereafter either to dispute the assertion or provide a written plan to cure the default that is acceptable to Customer. If Motorola provides a cure plan, it will begin implementing the cure plan immediately after receipt of Customer's approval of the plan. 12.2. DEFAULT BY CUSTOMER. If Customer fails to pay any amount when due under this Agreement. indicates that it is unable to pay any amount when due, or otherwise breaches a material obligation under this Agreement, Motorola may consider Customer to be in default, unless Motorola or a Force Majeure causes such failure. If Motorola asserts a default, it will give Customer written and detailed notice of the default and Customer will have thirty (30) days thereafter to (i) dispute the assertion, (it) cure any monetary default (including interest), or (iii) provide a written plan to cure the default that is acceptable to Motorola. If Customer provides a cure plan, it will begin implementing the cure plan immediately after receipt of Motorola's approval of the plan. Motorola may stop work upon a material default by Customer. 12.3. FAILURE TO CURE. If a defaulting party fails to cure the default as provided above in Sections 12.1 or 12.2, unless otherwise agreed in writing, the non -defaulting party may terminate any unfulfilled portion of this Agreement. In the event of such termination, the defaulting party will promptly return to the non - defaulting party any of its Confidential Information (as defined in Section 15.1). It Customer is the non - defaulting party, terminates this Agreement as permitted by this Section, and completes the System through a third party, Customer may as its exclusive remedy recover from Motorola reasonable costs incurred to complete the System to a capability not exceeding that specified in this Agreement less the unpaid portion of the Contract Price. Customer agrees to use its best efforts to mitigate such costs and to provide Motorola with detailed invoices substantiating the charges. 12.4. TERMINATION FOR CONVENIENCE. Customer may terminate this agreement for Its convenience upon 30 days written notice to Motorola. If Customer terminates this contract solely for its convenience, Motorola will, upon notification, take all reasonable steps to minimize termination costs. Customer shall be liable to Motorola for equipment and services provided to the date of the notice to terminate and for reasonable costs, which may be bome by Motorola directly related to an unforeseen and abrupt termination. Section 13 INDEMNIFICATION 13.1. GENERAL INDEMNITY BY MOTOROLA. Motorola will indemnify and hold Customer harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against Customer to the extent it is caused by the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties under this Agreement, provided that Customer gives Motorola prompt, written notice of any such claim of suit. Customer shall cooperate with Motorola in its defense or settlement of such claim or suit. This section sets forth the full extent of Motorola's general indemnification of Customer from liabilities that are in any way related to Motorola's performance under this Agreement 13.2. PATENT AND COPYRIGHT INFRINGEMENT. 13.2.1. Motorola will defend at its expense any suit brought against Customer to the extent that it is based on an Infringement Claim, and Motorola will indemnity Customer for those costs and damages finally awarded against Customer for an Infringement Claim. Motorola's duties to defend and indemnify are conditioned upon: (i) Customer promptly notifying Motorola in writing of such Infringement Claim; (it) Motorola having sole control of the defense of such suit and all negotiations for its settlement or compromise; (li1) Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. 13.2,2, It an Infringement Claim occurs, or in Motorola's opinion Is likely to occur, Motorola may at Its option and expense procure for Customer the right to continue using the Equipment or Motorola Software, replace or modify it so that it becomes non -infringing while providing functionally equivalent performance, or grant Customer a credit for such Equipment or Motorola Software as depreciated and accept its return. The depreciation amount will be calculated based upon generally accepted accounting standards for such Equipment and Software. 13.2.3. Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon (Q the combination of the Equipment or Motorola Software with any software, apparatus or device not fumished by Motorola; (ii) the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Equipment or Motorola Software; (iii) any Equipment that is not MotoroWs design or formula; (iv) a modification of the Motorola Software by a party other than Motorola; or (v) the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. 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. • 0 Section 14 LIMITATION OF LIABILITY This limitation of liability provision shall apply notwithstanding any contrary provision in 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, Software, or services with respect to which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE. OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability will survive the expiration or termination of this Agreement. No action for breach of this Agreement or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of such cause of action, except for money due upon an open account. Section 15 CONFIDENTIALITY AND PROPRIETARY RIGHTS 15.1. CONFIDENTIAL INFORMATION. 15.1.1. During the term of this Agreement, the parties may provide the other with Confidential Information. For the purposes of this Agreement, "Confidential Information" is any information disclosed in written, graphic, verbal, or machine -recognizable form, and is marked, designated, labeled or identified at the time of disclosure as being confidential or its equivalent; or if in verbal form is identified as confidential or proprietary at the time of disclosure and confirmed in writing within thirty (30) days of such disclosure. Notwithstanding any other provisions of this Agreement, confidential information shall not include any information that: (i) is or becomes publicly known through no wrongful act of the receiving party; (ii) is already known to the receiving party without restriction when it is disclosed; (ii) is, or subsequently becomes, rightfully and without breach of this Agreement, in the receiving party's possession without any obligation restricting disclosure; (iv) is independently developed by the receiving party without breach of this Agreement; or (v) is explicitly approved for release by written authorization of the disclosing party. 15.1.2. Concerning the Confidential Information provided to it by the other party, each party will: (i) maintain the confidentiality of such Confidential Information and not disclose it to any third party, except as authorized by the disclosing party in writing or as required by a court of competent jurisdiction; (ii) restrict disclosure of Confidential Information to its employees who have a `need to know" and not copy or reproduce such Confidential Information; (iii) take necessary and appropriate precautions to guard the confidentiality of Confidential Information, including informing its employees who handle such Confidential Information that it is confidential and not to be disclosed to others, but such precautions shall be at least the same degree of care that the receiving party applies to its own confidential information and shall not be less than reasonable care; and (iv) use such Confidential Information only in furtherance of the performance of this Agreement. Confidential Information is and shall at all times remain the property of the disclosing party, and no grant of any proprietary rights in the Confidential Information is hereby given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement 15.2. PRESERVATION OF MOTOROLA'S PROPRIETARY RIGHTS. 15.2.1. Motorola owns and retains all of its Proprietary Rights (as defined in Section 2) in the Equipment and Software. The third party manufacturer of any Equipment and the copyright owner of any Non -Motorola Software own and retain all of their Proprietary Rights in the Equipment and Software. Nothing in this Agreement is intended to restrict the Proprietary Rights of Motorola, any copyright owner of Non -Motorola Software, or any third party manufacturer of Equipment. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development rights of inteliectual property. This Agreement does not involve any Software that is a "work made for hire' • 15.2.2. Except as explicitly provided in the Software License Agreement, nothing in this Agreement will be deemed to grant, either directly or by implication, estoppel, or otherwise, any right, title or interest in Motorola's Proprietary Rights. Concerning both the Motorola Software and the Non -Motorola Software, Customer agrees not to modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, or export the Software, or permit or encourage any third party to do so. Section 16 GENERAL. 16.1. TAXES. The Contract Price does not include any amount for federal, state, or local excise, sales, lease, service, rental, use, property, occupation, or other taxes. assessments or duties (other than federal, state, and local taxes based on Motorola's income or net worth), all of which.wili be paid by Customer 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 Customer and Customer will pay to Motorola the amount of such taxes (including any applim bie interest and penalties) within twenty (20) days after the date of the invoice. Customer win be solely responsible for reporting the Equipment for personal property tax purposes. 162. ASSIGNABILITY. Neither party may assign this Agreement without the prior written consent of the other party, except that Motorola may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. 16.3. ' SUBCONTRACTING. Motorola may subcontract any portion of the work,` but such subcontracting will not relieve Motorola of its duties under this Agreement. 16.4 WAIVER. Failure or delay by either party to exercise any right or power under this Agreement wilt • not operate as a waiver of such tight or power. For a waiver of a right or power to be effective, tt must be in writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either (1) a future or continuing waiver of that same right or power, or (ii) the waiver of any other right or power. 16.5. SEVERABILITY. If a court of competent jurisdiction renders any provision of this Agreement (or portion of a provision) to be invalid or otherwise unenforceable, that provision or portion of the provision will be severed and the remainder of this Agreement Wil continue in tull force and effect as if the invalid provision or portion of the provision were not part of this Agreement. 16.6. INDEPENDENT CONTRACTORS. Each party shall perform its activities and duties hereunder only as an independent contractor. The parties and their personnel shall not be considered to be an employee or agent of the other party. Nothing in this Agreement shall be interpreted as granting either party the right or authority to make commitments of any kind for the other. This Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. 16.7. HEADINGS AND SECTION REFERENCES; CONSTRUCTION. The section headings in this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either party. 16.8. GOVERNING LAW. This Agreement and the rights and duties of the parties will be governed by and interpreted in accordance with the laws of the State in which the System is installed. 16.9. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement of the parties regarding the subject matter hereof and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to such subject matter. This Agreement may be altered, • amended, or modified only by a written instrument signed by authorized representatives of both parties. The preprinted terms and conditions found on any Customer purchase order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even if a representative of each party signs such document. 16.10. NOTICES. Notices required under this Agreement to be given by one party to the other. must be in writing and either delivered in person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service with an asset tracking system, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and shall be effective upon receipt: Motorola, Inc. Attn: Contracts and Compliance Dept. 6450 Sequence Drive San Diego, CA 92121 fax: 858 404-2594 Customer Attn: fax: 16.11. COMPLIANCE WITH APPLICABLE LAWS. Each party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Customer will obtain and comply with all Federal Communications Commission (`FCC') licenses and authorizations required for the installation, operation and use of the System before the scheduled installation of the Equipment. Although Motorola might assist Customer in the preparation of its FCC license applications, neither Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters. 16.12. AUTHORITY TO EXECUTE AGREEMENT. Each party represents to the other that (i) it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; (ii) the person executing this Agreement on its behalf has the authority to do so; (iii) upon execution and delivery of this Agreement by the parties, it is a valid and binding contract, enforceable in accordance with its terms; and (iv) the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the party. 16.13. SURVIVAL OF TERMS. The following provisions shall survive the expiration or termination of this Agreement for any reason: Sections 3.6 and 3.7 (concerning Software licensing); Section 11 (Disputes); Section 14 (Limitation of . Liability); 15.1 (Confidential Information); and 15.2 (Preservation of Motorola's Proprietary Rights). The parties hereby enter into this Agreement as of the Effective Date. Motorola, Inc. Customer By: By: Name: Name: Title: Date: Title: Date: Approved as to Form City Attomey • :.lotoroia, InC. W.- Contracts and Cx-p6rm- + re7pt. 3450 SeWunce Df've San Diego. CA 92121 ,ax: f35f3 404-2594 CustorneC,, Attu: �i i •v� M v o r- G fax: -71400 &3 4 02, 0.11. COMPLIANCE WITH APPLICABLE I.AtNS. Each party Yvill comply with all applicable feftral, state. a -id kcal laws, regulations aa: rules concerning the performance of this Agreement or urfe of the System. Customer will obtain an:i jompty with all Federal Communkauom Timissivn ('FCC') boemees and auttxxlza5ons required lo- the installation. operation and use of the System before the scheduled installation o` the Equipment. Ahl-ouM Motorc4a might assist Customer in ttie preparaclpn of Its FCC rreenee applications, nelther Motorola: i.. any 01 As employs" is an agent or representative of Custorr'1er' in FCC or other maths. ' 612- AUTHORITY -O EXECUTE AGFEEMENT Each parry represents to the other 1hal (r) It has gbtained aA nwCesSer'1 approvgls. Consents and authortzeucr►s to enter into this Agreement anti to pertorm ft ,ijmos under this Agrew"*nt: the person exeoutfng this Agreement on Its: behalf No the authority to do so: (;-i) upon execution snd ael:•.*ry of this Agreement by the parties, it is a valid end brX*%.g contract. e'lfcrceable In taf cortlaxe wilh "s terms: and (iv) " execution, de.Nery, and perforrmarx* of this Agreement does riot violate any bylaw. r-► aiier. re ilauon. law or any other gove+ring auftrlty of the party. 16-13. SURVIVAL OF TERmS. The tuttowing provisions shale survive the expiration or termination Of this Agreement for any reason Sections 3.6 and 3.' (concerning So"ware licensing); SscWn 11 (Dtapt,•tes); 5ec'jon 14 (Llmitatio, of :-IN!ty): 1! 1 (Confiuerrtlal Information); and 15.2 (Preservation of Mot"S's Proprietary Rights). The parties hereby enter -TC. ►.`:rs Agreement as of the Effective Date. Motor c. �! '( fvt �l Name: a--- Tit:e' ( bS r�lt Date: C 1+- b 2- - — Name: (EL Date- LSA 891 16 V02 ev trbtaro4ConpActNo.42•tat2ir,,A Customer By. An Narne: R3 Trtie: _ Date: F"2d -O Z REVIEW= r►ND APPAO'VeC AS TO 04MM DAMMI F E MOTOROLA CONTAACTS AND COMKtANCa DM Approved as to Forth 4-sr 10�- CRY Attorney 10 0 0 0 Exhibit A Software License Agreement Motorola, Inc ("Motorola" or "Licensor'), the City of Huntington Beach, CA ('Licensee') and Orange County. California, hereby enter into this Software License Agreement ("Agreement'). The parties agree as follows: Section 1 SCOPE Licensor will provide proprietary software and/or radio communications, computer, or other electronic products ('Products' containing embedded or pre -loaded proprietary software to Licensee. All such software that is owned by Motorola is referred to as "Software" Product and Software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which this information is provided) are collectively referred to as "Documentation." This Agreement contains- the terms and conditions pursuant_ to which Licensor will license, and Licensee may use, the Software and Documentation. Section 2 GRANT OF LICENSE Licensor hereby grants to Licensee a personal, non -transferable (except as permitted in Section 8 below), limited, and non-exclusive license under Licensor's applicable proprietary rights to use the Software and related Documentation for the purposes for which they were designed and in accordance with the terms and conditions of this Agreement. The license granted authorizes Licensee to use the Software only in object code format and does not grant any rights to source code. Section 3 LIMITATIONS ON USE is3.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Licensee may not for any reason modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code, create derivative works from, adapt, translate, merge with other software, copy, reproduce, distribute, or export any Software or permit or encourage any third party to do so, except that Licensee may make one copy of Software provided by Licensor to be used solely for archival, back-up, or disaster recovery purposes. Licensee must reproduce all copyright and trademark notices on all copies of the Software and Documentation. 32. Licensee may not copy onto or transfer Software installed in one Product device onto another device. Notwithstanding the preceding sentence, Licensee may temporarily transfer Software installed on one device onto another if the original device is inoperable or malfunctioning, provided that Licensee provides written notice to Licensor of such temporary transfer and such temporary transfer is discontinued when the original device is returned to operation. Upon Licensor's written request, Licensee must provide to Licensor a written list of all Product devices in which the Software is installed and Being used by Licensee. 3.3. Concerning Motorola's Radio Service Software ("RSS"), if applicable, Licensee must purchase a copy for each location at which Licensee uses RSS. Licensee's use of RSS at an authorized location does not entitle Licensee to use or access the RSS remotely. Licensee may make one additional copy for each computer owned or controlled by Licensee at each such location. Upon Licensor's written request, Licensee must provide to Licensor a written list of all locations where Licensee uses or intends to use RSS. Section 4 OWNERSHIP AND TITLE Title to all copies of Software will not pass to Licensee at any time but remains vested exclusively in Licensor. Licensor owns and retains all of its proprietary rights in any form concerning the Software and Documentation, including all rights in patents, patent applications, inventions, copyrights, trade secrets, 10 trademarks, trade names, and other intellectual properties (including any corrections, bug fixes, enhancements, updates, or modifications to or derivative works from the Software whether made by Li xwmr or another party). Nothing in this Agreement is intended to restrict the proprietary rights of Licensor or to grant by implication or estoppel any proprietary rights. All intellectual property developed, originated. or prepared by Licensor in connection with providing to Licensee Software, Products, or related services remain vested exclusively in Licensor, and this Agreement does not grant to Licensee any shared development rights of intellectual property. This Agreement does not involve any software that is a "work made for hire." Section 6 CONFIDENTIALITY Licensee acknowledges that the Software and Documentation contain Licensoe's valuable proprietary'and confidential information and trade secrets. Licensee will take necessary and appropriate precautions to maintain and guard the confidentiality of the Software and Documentation, using at least the same degree of care that Licensee applies to its own confidential information but not less than reasonable care. Precautions will include informing Licensee's employees and agents who are authorized to use the Software and Documentation that such information is confidential and may not to be disclosed to others. Licensee wifi not disclose the Software and Documentation to any third party except as permitted by this Agreement or expressly in writing by Licensor. Licensee will limit access to the Software and Documentation to Licensee's employees and agents who need to know and are authorized to use the Software and Documentation as permitted by this Agreement Section 6 LIMITED WARRANTY 6.1. The warranty period for the Software will commence upon shipment and will continue for 120 days unless Licensor has agreed to a different warranty period in a separate agreement that has been mutually executed by Licensor and Licensee, in which case the warranty period will be as stated in such agreement subject to the remainder of this Section 6.1. For Software that is application software that is provided on a per unit basis, the warranty period for subsequent units licensed is the remainder (if any) of the initial warranty period or, It the initial warranty period has expired, the remainder (it any) of the tern of the10 . applicable Software Maintenance and Support Agreement. 62. During the applicable warranty period, Licensor warrants that the unmodified Software, when used properly and in accordance with this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical to the primary functionality or successful operation of the system. Whether such defect occurs will be determined solely with reference to the Documentation. For Software involving radio frequency systems and Products, the primary functionality of a voice communication system is subscriber -to -subscriber, subscriber -to -dispatcher, and dispatcher-to-subscnber voice communication; and the primary functionality of a data communication system is point-to-point data transmission. Licensor does not warrant that Licensee's use of the Software or Products will be uninterrupted or error -free or that the Software or the Products will meet Licensee's particular requirements. 6.3. Before the expiration of the applicable warranty period, Licensee must notify Licensor in writing If the Software does not conform to this warranty. Upon receipt of such notice, Licensor will investigate the warranty claim. If this investigation confirms a valid warranty claim, Licensor will (at its option and at no additional charge to Licensee) repair the defect, replace the defective Software with the same or equivalent software, or refund the price of the defective Software or individual Product in which the Software is embedded or for which it was provided. Such action will be the full extent of L'icensor's liability and Licensee's sole remedy for a breach of this warranty. If the investigation indicates the warranty claim is not valid, then Licensor may invoice Licensee for responding to the claim on a time and materials basis using Licensor's current labor rates. 6.4. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE TRANSACTION COVERED BY THIS AGREEMENT IS A LICENSE AND NOT A SALE OF GOODS; THEREFORE, IT IS NOT COVERED BY THE UNIFORM COMMERCIAL CODE. 0 Section 7 LIMITATION OF LIABILITY EXCEPT FOR PERSONAL INJURY OR DEATH, LICENSOR'S TOTAL LIAIBLITY, WHETHER FOR BREACH, OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILTY IN TORT, OR OTHERWISE, WILL BE LIMITED TO LICENSEE'S DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT TO EXCEED THE PRICE FOR THE SOFTWARE, THE PRODUCTS PROVIDED BY LICENSOR IN WHICH THE SOFTWARE IS EMBEDDED OR INSTALLED, OR THE SERVICES SPECIFICALLY RELATED TO THE SOFTWARE WiTH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT LICENSOR WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS, INCONVENIENCE; LOSS OF USE, TIME, DATA, GOOD WILL, REVENUES, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING FROM THIS AGREEMENT OR THE SALE OR USE OF ANY SOFTWARE OR PRODUCTS. This Limitation of Liability provision will survive the terminatlon of this Agreement. Licensee must bring any action under this Agreement within one (1) year after the cause of action arises. Section 8 TRANSFERS Licensee may not transfer Software to any third party without Licensor's prior written consent, which consent may be withheld in Licensor's reasonable discretion and may be conditioned upon the transferee paying all applicable license fees and agreeing to be bound by this Agreement. Notwithstanding the preceding sentence, if Licensee transfers ownership of radio Products to a third party, Licensee may assign Its rights to use the Software (other than Radio Service Software and Motorola's FLASHport® Software) embedded in or furnished for use with those radio Products; provided that Licensee transfers all copies of such Software and the related Documentation to the transferee, and the transferee executes a bansfer torn to be provided by Licensor upon request (which form obligates the transferee to be bound by this Agreement). Section 9 TERM AND TERMINATION Licensee's right to use the Software will begin when this Agreement is mutually executed by both parties and will continue in perpetuity unless Licensee breaches this Agreement, in which case it shall be terminated immediately without notice by Licensor. In addition to termination, Licensor shall be entitled to all available remedies at law or in equity (including immediate injunctive relief without proving damages and repossession of all non -embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government). Licensee acknowledges that its breach of this Agreement will result in irreparable harm to Licensor for which monetary damages would be inadequate. Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Licensor that all copies of the Software and Documentation have been returned to Licensor or destroyed and are no longer in use by Licensee. Section 10 NOTICES Notices required under this Agreement to be given by one party to the other must be in writing and either delivered in person or sent to the address shown below by certified mail, return receipt requested and postage prepaid (or by a recognized courier service with an asset tracking system, such as Federal Express, UPS, or DHL), and shall be effective upon receipt. Change of address must be in writing to the other parry. Licensee Attn: Contracts and Compliance Dept. 6450 Sequence Drive San Diego, CA 92121 • Licensor Attn: El E Section 11 UNITED STATES GOVERNMENT LICENSING PROVISIONS In the event that the Licensee is the United States Government or a United Stales Government agency, then the provisions of this section also apply. Use, duplication or disclosure of the Software and associated documentation under Licensor's copyrights and/or trade secret rights is subject to the restrictions set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software -Restricted Rights clause at FAR 52.227-19 (JUNE 1987), if applicable, unless being provided to the Department of Defense. If being provided to the Department of Defense, use, duplication, or disclosure of Software and associated documentation is subject to the restricted rights set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988). if applicable. Software and associated documentation may or may not include a Restricted Rights notice, or other notice referring specifically to the terms and conditions of this Agreement. The terms and conditions of this Agreement shall each continue to apply, but only to the extent that such'terms and conditions are not inconsistent with the rights provided to the Licensee under the aforementioned provisions of the FAR or DFARS, as applicable to the particular procuring agency and procurement transaction. Section 12 GENERAL 12.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption that public disclosure of the Software or any trade secrets associated with the Software has occurred 122. COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not without the prior authorization of Licensor and the appropriate governmental authority of the United States, in any form export or re-export sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the Unites States Government, or any agency thereof, at the time of such action, requires an export license or other governmental approval. Violation of this provision shall be a material breach of this Agreement, permkding immediate termination by Licensor. 12.3. WAIVERS. 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. For a waiver of a right or power to be effective, it must be in writing signed by the waiving party. An effective waiver of a right or power shall not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power. 12.4. ASSIGNMENTS. Licensor may assign any of its rights or subcontract any of its obligations under this Agreement, or encumber or sell any of its rights in any Software, without prior notice to or consent of Licensee. 12.5. ENTIRE AGREEMENT AND AMENDMENT. This Agreement constitutes the entire agreement of the parties regarding Licensee's use of the Software and may be altered, amended, or modified only by a written instrument signed by an authorized representative of each party, except that Licensor may modify this Agreement as necessary to comply with applicable laws and regulations. This Agreement will be fairly interpreted in accordance with its temps and conditions and not for or against either party. 12.6. GOVERNING LAW. This Agreement will be governed by the laws of the United States to the extent that they apply and otherwise by the laws of the State to which the Software or Products are shipped if Licensee is a sovereign government entity, or the laws of the State of Illinois if Licensee is not a sovereign government entity. 12.7. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. In witness whereof, the parties have caused duly authorized representatives to execute this Software License Agreement on- the dates set forth below. Licensor City of Huntington Beach By: Name: Title: Date: 11 By: Name: Tide: Date: r. Approved as to Form City Attorney s e2.'21/M. 13:55 `171CW, �FCL* .AGE In witness wheaeof. the pari4s haw caus*0 duly aiAho► zec3 represemat: ies to execute Mis software License Agreemertt on Ow dates sot fotfi bewrw. t4 er Nar Title: f ice QL �r Name: Ties: Date: REVIMlts AND APPPN YED A TO FpgtM DATE MpTQRp�A C0-4 ACT: *Gti lAMCE CEP{ CSC $0 IMIAXW. Noe000isConGactlVo 02�,37ZL�L Licensee BY. t[KA97 &-ed." Name: >` a Approved as to � orm City Anamgy by RCA ROUTING SHEET INITIATING DEPARTMENT: Police SUBJECT: Transfer Ownership of Telecommunications Equipment to the County of Orange COUNCIL MEETING DATE: May 5, 2003 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attomey) Attached Subleases, Third Party Agreements, etc. (Approved as to form by City Attome Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbud et, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable j EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff Assistant City Administrator Initial City Administrator Initial o�rr� City Clerk EXPLANATION FOR RETURN OF ITEM: RCA Author: Jim Moore