1 LICENSE AGREEMENT
BETWEEN
ANAHEIM POLICE DEPARTMENT (APD)
AND
THE AIR FORCE TECHNICAL APPLICATIONS CENTER (AFTAC)
FOR
GROUND-BASED SENSOR EQUIPMENT INSTALLATION
AGREEMENT NUMBER FB2520-24XXX-2327
This License Agreement (“License”) is entered into as of the date of signature between Anaheim Police Department (“APD’’) and the Air Force Technical Applications Center (“AFTAC”). When referred to individually, each party shall be referred to as a “Party,” collectively, APD and AFTAC are referred to as the “Parties.” WHEREAS, APD owns the property located at 425 S. Harbor Boulevard, Anaheim, CA 92805 (the “Premises”); and
WHEREAS, AFTAC desires to obtain a license from APD, and APD desires to grant a license to AFTAC, for the operation, and maintenance of ground-based sensor data collection equipment and server (collectively, the “Equipment”) on the Premises.
NOW THEREFORE, the Parties agree as follows:
1. GRANT OF LICENSE: APD hereby grants to AFTAC, and AFTAC hereby accepts from APD, a non-exclusive right-of-entry and license to construct, install, own, operate, maintain, repair, disconnect, replace, and remove the Equipment from the Premises. AFTAC shall, in its use of the Premises, comply with the requirements of all applicable governmental laws, rules, and regulations and shall obtain (and keep in full force and effect) all required licenses and per APD therefor.
2. APD OBLIGATIONS: During the Term (as defined below) of this License, the following shall apply:
2.1. Access: APD shall provide access to and use of the Premises for the purpose of operation and maintenance of the Equipment on the terms and conditions set forth in this License and at no cost to AFTAC or the U.S. Government. AFTAC shall provide a minimum of forty eight (48) hours notice prior to accessing the Premises to operate or maintain the Premises and such access shall not unreasonably interfere with APD operations.
2.2. No Representation or Warranty: APD makes no warranties or representations of any kind, expressed or implied, as to the conditions of the Premises. APD will provide the degree of security with respect to the Premises that APD determines, in its sole discretion, to be required for APD’s use of the Premises. If AFTAC wishes to increase or modify such security, it will seek approval of APD, such approval not to be unreasonably withheld. If approved, the security will be increased or modified at the sole cost of AFTAC. 2 2.3. Relocation: APD shall have the right, upon 180 days prior written notice (the “Relocation Notice”), if such advance notice is feasible, or such advance notice that is feasible under the circumstances, and subject to the terms and conditions of this section, to require AFTAC to remove the Equipment from the Premises, if necessitated by redevelopment of and/or repairs to the Premises, including any associated demolition, reconstruction, redevelopment, remodeling, or alteration. APD shall make reasonable efforts to provide a comparable location that affords the Equipment substantially similar functionality as the Premises (the “Alternate Premises”). In the event that no such Alternate Premises can be provided within 10 calendar days following AFTAC’s receipt of the Relocation Notice, this Agreement shall automatically terminate 180 days following receipt of the Relocation Notice, without further notice to AFTAC.
If Alternate Premises can be provided, then (i) AFTAC shall complete such relocation within 180 days of APD ’s identification of the Alternate Premises, time being of the essence (subject to the receipt of all necessary approvals), and (ii) all of the relocation costs incurred by AFTAC shall be AFTAC’s sole cost and expense. AFTAC and APD shall cooperate in good faith to schedule the relocation at a mutually agreeable time.
3. AFTAC OBLIGATIONS: During the Term of this License, the following shall apply:
3.1. Equipment Maintenance: AFTAC hereby covenants and agrees, at its sole cost and expense: (a) to keep the Equipment in good order, repair, and condition and to promptly and adequately repair any damage to the Premises or to the property of APD or any other party located within the Premises arising out of or resulting from the acts or omissions or the willful misconduct of AFTAC, or the installation, operation, or removal of the Facilities; (b) to comply with the requirements of all applicable governmental and quasi-governmental laws, rules, and regulations, and to obtain (and keep in full force and effect) all required licenses and per APD ’s therefor; (c) not to disrupt, affect, or interfere with (i) other providers of services in the Premises, (ii) the management and operation of the Premises by APD and its agents and/or (iii) the use of the common areas of the Premises; and (d) prior to the expiration (or earlier termination) of this License, to remove all of the Equipment and other property of AFTAC from the Premises, and to repair any damage to the Premises caused by the installation, operation, or removal of the Equipment.
3.2. Alterations: AFTAC shall not install any new equipment or perform any Alterations, installations, additions, or improvements in or to the Facilities and/or the Premises (collectively, “Alterations”) without the prior written consent of APD, which consent shall not be unreasonably withheld. The Installation Work and any Alterations that AFTAC performs shall be subject to and in compliance with the following covenants and agreements:
3.2.1. AFTAC shall perform all Alterations (i) in a safe, good, and workmanlike manner, and in all respects in accordance with construction rules and regulations that may be adopted from time to time by APD, (ii) at times reasonably designated by APD and in such a way as to minimize interference with the operation of the Premises (including, without limitation, the operations of tenants and occupants of the Premises); 3 3.2.2. AFTAC shall obtain, prior to the commencement of any Alterations, all necessary federal, state, and municipal permits, licenses, and approvals and provide copies of same to APD, and all Alterations performed by AFTAC shall be at its own expense and shall at all times comply with (i) laws, rules, orders, and regulations of governmental authorities having jurisdiction thereof; and (ii) order, rules, and regulations of any Board of Fire Underwriters, or any other body hereafter constituted exercising similar functions, and governing insurance rating bureaus.
3.2.3. AFTAC shall employ such labor, materials, and means as will, to the satisfaction of APD, work in harmony with other contractors employed at the Premises and avoid labor disputes or work stoppages.
3.2.4. AFTAC shall notify APD prior to the commencement of any Alterations and shall exercise commercially reasonable good faith efforts to minimize and avoid interference or disruption arising out of or resulting from any alterations.
3.3. Access: The license granted hereunder to AFTAC is subject to all policies that APD may promulgate from time to time. AFTAC’s use of the Premises is non-exclusive; APD retains the right to freely enter the Premises at any time and for any purpose and to escort any other parties to the Premises for any APD authorized purpose. AFTAC and its authorized agents may access the Premises only when escorted by a APD authorized representative. Access to the Premises during the Term shall be Monday through Friday only, during the hours of 8:00 a.m. to 5:00 p.m., unless otherwise agreed to in advance of such access visit, in APD’s sole discretion.
3.4. Assignment: AFTAC will neither assign nor sublicense its access to the Premises and will not allow anyone else to use or occupy the Premises. AFTAC will not store any materials or equipment on the Premises other than the Equipment. This is not a lease; no interest in real estate is conveyed hereby.
3.5. No Interference: AFTAC’s access to the Premises, storage, and use of the Equipment on the Premises shall not interfere with APD’s use of the Premises and/or any activities conducted by APD Parties within or upon the Premises. In the event that the Equipment does interfere with the activities of APD, upon proper notice by APD, AFTAC shall promptly take good faith measures to eliminate or correct such interference. AFTAC understands and agrees that in the event of an emergency and/or safety situation, or in the event the Equipment causes any interference with APD’s or any other occupant’s equipment or activities at the Premises (including, without limitations, any Premises systems), APD reserves the right to disconnect electrical service to the Equipment to prevent such further interference. APD will do so using circuit breakers. APD shall promptly alert AFTAC in the event APD exercises its right to disconnect the electrical service and shall have AFTAC representatives present at any time when electric service is reconnected. Services shall not be restored unless or until AFTAC can demonstrate the interference has been eliminated to APD’s reasonable satisfaction. In the event that any of AFTAC’s equipment breaks free from its affixed position and/or endangers any other property or people, each Party agrees to take the most immediate mitigating action possible to prevent injuries and further damage and to consult with the other Party as soon as possible. 4 3.6. Use of Name: AFTAC will not use the name “Anaheim Police Department (APD)” or any variation, adaptation, or abbreviation thereof, alone or as part of other names, or any logos, insignia or other symbols or devices, or any trademark owned by APD (the “APD Name”) that identify Anaheim Police Department or a APD unit, division, or affiliate, or of any of its, officers, employees, or agents, for any purposes without the prior written consent of the APD.
AFTAC acknowledges that APD may seek injunctive relief against a breach or threatened breach of AFTAC’s obligations regarding use of the APD Name.
4. LIABILITY AND INSURANCE:
4.1. Liability, as between the Parties and with respect to any third parties, that results from any damage or injury arising out of or caused by the activities contemplated in this agreement or any other activity related to this agreement shall be governed by federal law including but not limited to the Federal Tort Claims Act (28 U.S.C. §2671). It is the intent of the Parties that AFTAC and the United States Government will, to the maximum extent allowed by law, indemnify APD, hold APD harmless, and take all actions to protect and defend APD’s interests from and against any and all claims, costs and expenses (including attorneys' fees and related expenses) for damage, loss or injury, either to persons or to property) arising from the use and occupancy of the Premises by AFTAC, its employees, agents, or representatives. AFTAC will facilitate the resolution of any such claim, in accordance with the provisions of this License and applicable laws and regulations. The provisions of this paragraph shall survive the expiration or earlier termination of this License.
4.2. Injuries to U.S. Government employees that occur as a result of activities conducted under this Agreement will be compensated by AFTAC or the U.S. Government in accordance with section 8101 of Title 5, United States Code, also known and referred to as “The Federal Employees’ Compensation Act.”
4.3. AFTAC is a subordinate organization of the United States Air Force. The Air Force is, as an agency of the Federal Government, a self-insured entity and therefore is not required to carry either general or commercial liability insurance. Contractors and contractor employees who perform work on the APD premises under this contract will be insured in accordance with the provisions of the Federal Acquisition Regulation and other applicable federal laws and regulations.
5. OBLIGATIONS OF THE PARTIES:
5.1. Any waiver by either Party of a breach of any provision of this License will not operate as, or be construed to be, a waiver of any subsequent breach. No delay or omission in the exercise or enforcement of any right or remedy provided in this License or by law by either Party will be construed as a waiver of such right or remedy. In the event any provision of this License is held to be invalid by any court, such holding will not affect in any respect whatsoever the validity of the remainder of the License.
5.2. Nothing in this License will be deemed to constitute a partnership between the Parties or constitute either Party the agent of the other Party. Neither Party will have authority to act on 5 behalf of the other or in either of their names, to incur any obligations or expenses on the other’s behalf, or to bind the other in any manner.
6. PERSONNEL:
6.1. Each Party is responsible for all costs of its personnel, including pay and benefits, support, and travel. Each Party is responsible for supervision and management of its personnel.
7. GENERAL PROVISIONS:
7.1. Points of Contact: The following points of contact (POC) will be used by the Parties to communicate in the implementation of this License. Each Party may change its point of contact upon reasonable notice to the other Party.
7.1.1. For APD
7.1.1.1. Primary POC: Kurt Wallace
Police Communications Manager
Phone: (714)765-1824
Email: [email protected]
7.1.1.2. Alternate POC: Ploy Siriyotin
Administrative Services Manager
Phone: (714)765-1597
Email: [email protected]
7.1.2. For AFTAC
7.1.2.1. Primary POC: Paul R. Gagnon
Support Agreements Manager
Phone: (321) 494-9093
Email: [email protected]
7.1.2.2. Alternate POC: Michael Kaul
Program Manager
Phone: (321) 494-8427
Email: [email protected]
7.2. Notices: Any and all notices, consents, or directives by either Party intended for the other in respect to this License shall be deemed to have been given if sent by (A) registered or certified mail, return receipt requested, with postage prepaid, 3 days after deposit, or (B) overnight courier service, the following business day, to the following address, unless either Party shall have designated a different address by serving written notice of change of address on the other Party by registered or certified mail or overnight courier service. All correspondence to be sent and notices to be given pursuant to this License will be addressed as follows, or as may from time to time otherwise be directed by the Parties:
6 If to APD: Anaheim Police Department
425 S. Harbor Boulevard
Anaheim, CA 92805
If to AFTAC: AFTAC/A5X
1020 S. Patrick Drive
Patrick SFB, FL 32925-3516
7.3. Review of License: This License will be reviewed no less often than the mid-point on or around the anniversary of its effective date in its entirety.
7.4. Modification of License: This License may only be modified by the written agreement of the Parties, duly signed by their authorized representatives.
7.5. Disputes: Any disputes relating to this License will, subject to any applicable law, Executive Order, Directive, or Instruction, be resolved by consultation between the Parties or in accordance with Department of Defense Instruction 4000.19, Support Agreements dated December 16, 2020.
7.6. Counterparts: This License may be executed in any number of counterparts with the same force and effect as if all signatures were appended to one document, each of which shall be deemed an original. Execution and delivery of this License by portable document format (“PDF”) copy bearing the PDF signature of any Party hereto shall constitute a valid and binding execution and delivery of this License by such Party. The Parties agree to accept a PDF of this License as executed, as true and correct originals and admissible as best evidence for the purposes of State law, Federal Rule of Evidence 1002, and like statutes and regulations.
7.7. Entire Agreement: It is expressly understood and agreed that this License embodies the entire agreement between the Parties regarding the License’s subject matter.
8. TERM & TERMINATION:
8.1. In the event APD wishes to terminate this License for any reason other than default, casualty, or condemnation, APD will provide written notice to AFTAC Manager at least 180 days prior to the requested date of termination. This paragraph does not alter paragraph 2.3 with respect to termination caused by relocation of the Equipment.
8.2. In the event AFTAC defaults in the performance of any of its covenants or obligations hereunder and such default continues for a period of 30 days after written notice thereof from APD (unless the nature of the event takes longer to cure and AFTAC commences a cure within the time period and diligently pursues it thereafter, but in no event exceeding an additional 30 days), APD may thereafter terminate this License by written notice to AFTAC, effective 180 days after the original default notification.
7 8.3. If the Premises are damaged, destroyed, condemned, or transferred in lieu of condemnation, such that the operations of either Party may be materially affected, and/or if the restoration of the Premises by APD may not commence and/or be completed within 60 days, either Party may terminate this License by giving the other Party written notice not later than 45 days after the date of such event. AFTAC will act to remove its property as quickly as possible in such circumstance, but APD is on notice that it may take as long as 180 days to remove all AFTAC property.
8.4. By or before the termination or early termination of this License, AFTAC will be responsible for removal of the Equipment and restoration of the Premises to the same condition existing upon the commencement of the License, reasonable wear and tear excepted.
8.5. Transferability: This License is not transferable except with the written consent of the Parties.
8.6. Term: This License takes effect beginning on the day after the last Party signs and expires five (5) years from the effective date unless terminated in accordance with paragraph 8.1.
8.7. Cancellation of Previous Agreement: There are no previous agreements between the Parties for this purpose.
IN WITNESS WHEREOF, the undersigned have executed this License as of the date signed by the last Party.
For APD: For AFTAC:
_________________________________ ______________________________________ CREIGHTON A. MULLINS, Colonel, USAF
Commander
_____________________ _____________________
Date Date
Mid-Point Review Due Date: _______________________
Mid-Point Review Completed by: _______________________________ Signature and Name of Reviewer