AGENDA
CITY COUNCIL REGULAR MEETING
CITY OF CERES, CALIFORNIA
City Council Chambers, 2701 Fourth Street
Monday, April 22, 2024 at 6:00 p.m.
Mailing Address: Ceres City Hall, 2220 Magnolia Street, Ceres, CA 95307-3292 Phone: (209) 538-5700 Fax: (209) 538-5780
CALL TO ORDER
Mayor Lopez
ROLL CALL
Mayor: Javier Lopez
Vice Mayor: Bret Silveira (District 3)
Councilmembers: James Casey (District 1); Rosalinda L. Vierra (District 2); Daniel A.
Martinez (District 4)
INVOCATION
Invocation by Jim Stochl, Harvest Presbyterian Church.
Click this link to join the webinar:
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If you have any questions on how to attend virtually or are encountering difficulties connecting to the meeting, please contact the City Clerk at [email protected].
AGENDA
Regular City Council Meeting
April 22, 2024
PLEDGE OF ALLEGIANCE
Pledge of Allegiance led by Mayor Lopez.
PRESENTATIONS
A. Arbor Day Proclamation
B. Love Ceres Proclamation
C. Cinco de Mayo Proclamation
D. Wastewater Treatment Plant Improvements
CITIZEN COMMUNICATIONS to the Council on matters not included on the agenda (five minutes).
While the City Council welcomes and encourages participation in City Council meetings, adopted rules allow no more than 5 minutes (Resolution No. 2007-106) for expression of non -agenda items. Matters under the jurisdiction of the City Council, and not on the posted agenda, may be addressed by the general public; however, California law prohibits the City Council from taking action on any matter which is no t on the posted agenda unless it is determined to be an emergency by the City Council. Citizens are e ntitled to address the City Council on any agenda item subject to the 5-minute provision.
APPOINTMENTS TO BOARDS/COMMISSIONS
None
CONFLICT OF INTEREST DECLARATION
CONSENT CALENDAR
All matters listed on the consent calendar are considered routine in nature and will be enacted by a single motion unless otherwise requested by an individual Councilmember or public for special consideration.
Otherwise, the recommendation of staff will be accepted and acted upon by roll call vote.
1. Clerks Report of Posting. The agenda of the April 22, 2024 City Council Meeting was Posted on Wednesday, April 17, 2024. (City Clerk)
2. Waive Readings. All Readings of Ordinances and Resolutions are Waived. (Waive readings in full of all ordinances and resolutions on the agenda and declare that said titles which appear on the public agenda shall be determined to have been read by title). (City Clerk)
3. Approval of Minutes for the April 8, 2024 Regular City Council Meeting. (City Clerk)
4. Register of Audited Demand (s) Dated March 27, 2024 through April 3 , 2024. (Esenwein)
AGENDA
Regular City Council Meeting
April 22, 2024
5. General Correspondence – Information Only
a. Public Works Monthly Report for March 2024 (Royal)
b. Redevelopment & Economic Development Report for January – March 2024 (Aguirre)
6. Resolution No. 2024-XXX, Approving the Memorandum of Understanding (MOU) for Regional Fire Authority Funding for the Fire Training Facility Project and Authorizing the City Manager to Execute the MOU. (Wise)
7. Resolution No. 2024 -XXX, Accepting the Don Pedro Park Trail Project as Complete, Approving the Balancing Contract Change Order, and Authorizing the Filing of the Notice of Completion, and Releasing the Remaining Retention to the Contractor. (Royal)
8. Resolution No. 2024-XXX, Approving the Use of American Rescue Plan Act Funds to Sponsor the Annual Ceres Street Faire and Authorizing Staff to Move Forward with the Expenditure. (City Manager)
9. Resolution No. 2024-XXX, Adopting in Concurrence with Stanislaus Urban County Consortium the Fiscal Year 2024-2025 Annual Action Plan for the Community Development Block Grant and Home Investment Partnerships Programs, and Support of Submission to Housing and Urban Development (HUD). (Aguirre)
10. Resolution No. 2024-XXX, Approving a Contract with Motorola Solutions, Inc. for a Citywide Avigilon Card Access System Upgrade , Approving a Budget Amendment, and Authorizing the City Manager to Execute the Agreement . (City Manager)
CONSIDERATION OF ITEM(S) REMOVED FROM THE CONSENT CALENDAR
UNFINISHED BUSINESS
None
PUBLIC HEARING
None
NEW BUSINESS
None
DISCUSSION ITEMS
None
AGENDA
Regular City Council Meeting
April 22, 2024
COUNCILMEMBER REFERRALS
Councilmembers request to have an agenda item placed on a future agenda (pursuant to Chapter 2 - City Council Meetings, J-8. City Council Referrals/Determination of Items for Agenda).
REPORTS
At this time, any Councilmembers or City staff will make an announcement, or report briefly on his /her activities.
• Mayor
• City Council
• City Manager
• City Attorney
• Departments
• County Supervisor
CLOSED SESSION
11. Conference with Labor Negotiators, Cal Gov’t Code §54957.6(a) Agency Designated Representative: City Manager, Douglas D. Dunford and Human Resources Director, Delilah Vasquez
Employee Organization: Ceres Police Officers’ Association Employee Organization: First Line Supervisors/Confidential Bargaining Group Employee Organization: Laborers’ International Union of North America (LiUNA!) Employee Organization: Mid-Managers Bargaining Group
Employee Organization: Public Safety Managers
REPORT FROM CLOSED SESSION
None
ADJOURNMENT
The next regularly scheduled City Council Meeting will be held on May 13, 2024 at 6:00 p.m. in the City Council Chambers located in the Community Center at 2701 Fourth Street, Ceres, CA.
AFFIDAVIT OF POSTING
I, Fallon Martin, City Clerk, for the City of Ceres, declare under penalty of perjury that the foregoing agenda for the Regular City Council Meeting was posted on Wednesday, April 17, 2024, at the following locations in Ceres:
• Community Center Display Case – 2701 Fourth Street
__________________________________________________________________________________________________________________________________________________________ Fallon Martin, City Clerk
AGENDA
Regular City Council Meeting
April 22, 2024
Council Agenda:
The City Council agenda is available for public review on the City’s website at www.ci.ceres.ca.us and posted at the time and places noted above.
Related Materials:
Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection at the City Clerk’s Office at City Hall located at 2220 Magnolia Street, Ceres, CA during normal business hours. Persons with questions concerning any agenda item may call the City Clerk’s Office at (209) 538 - 5731.
Notice regarding Americans with Disabilities Act:
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting or if you need the agenda and/or the documents in the agenda packet provided in an alternative format, please contact the city clerk’s office at (209) 538 - 5731 at least 48 hours prior to the meeting to ensure that reasonable arrangements can be made (28CFR 35.102-35.104 ADA TITLE II).
Proclaiming
Arbor Day in the City of Ceres
THE CITY COUNCIL
City of Ceres
WHEREAS, the holiday called Arbor Day was first observed in Nebraska with the planting of more than one million trees; and
WHEREAS, Arbor Day is now observed throughout the nation and the world; and
WHEREAS, trees can reduce the erosion of precious topsoil by wind and water, lower heating and cooling costs, moderate the temperature, clean the air, produce oxygen and provide habitat for wildlife; and
WHEREAS, trees are a renewable resource giving us paper, wood for our homes, fuel for our fire and countless other wood products; and
WHEREAS, trees, wherever they are planted are a source of joy, wonder, and renewal; and
WHEREAS, the City of Ceres recognizes the positive impact of trees on the health and wellbeing of our community; and
WHEREAS, Arbor Day is an opportunity to celebrate and teach present and future generations about the importance of living amongst healthy trees throughout the city.
NOW THEREFORE, I, Javier Lopez, Mayor of the City of Ceres, on behalf of the City Council, Vice Mayor Bret Silveira, Councilmembers James Casey , Rosalinda L. Vierra, and Daniel A. Martinez, do hereby proclaim Arbor Day in the City of Ceres, and encourages all citizens to support efforts to care for and plant trees to promote the well-being of our environment.
Proclaimed this 22nd day of April 2024
___________________________
Javier Lopez, Mayor
ITEM A
ITEM A
DECLARING APRIL 27, 2024
AS
LOVE CERES
WHEREAS, Love Ceres is a time where people of different backgrounds and ages from all around the community come together to serve the good of Ceres; and
WHEREAS, a city -wide volunteer day creates the opportunity to bring people together and create a difference in their community by serving in practical and sustainable ways; and
WHEREAS, volunteer days such as Love Ceres serves as a catalyst, getting members of the community out in their city, allowing them to make connections with fellow volunteers and the organizations they are serving, instilling love for their city, and getting them excited about giving back to their community; and
WHEREAS, on Saturday, April 27, 2024, hundreds of volunteers will come together to make a positive impact and difference in Ceres by effectively working together to improve their community; and
WHEREAS, Love Ceres is inspired by love and compassion where volunteers will serve their time , sharing with their neighbor who may be a stranger, to positively impact the lives in their community.
NOW THEREFORE, I, Javier Lopez, Mayor of the City of Ceres, on behalf of the City Council, Vice Mayor Bret Silveira, Councilmembers James Casey , Rosalinda L. Vierra, and Daniel A. Martinez , do hereby proclaim April 2 7, 2024 as Love Ceres day in the City of Ceres and urge all citizens to show their support for this event.
Proclaimed this 22nd day of April 2024
___________________________
Javier Lopez, Mayor
ITEM B
ITEM B
ITEM B
RECOGNIZING MAY 5, 2024
IN CELEBRATION OF CINCO DE MAYO
WHEREAS, Cinco de Mayo is celebrated each year as a date of great importance by the Mexican and Mexican- American communities in our City and across our nation; and
WHEREAS, the Cinco de Mayo holiday commemorates the victory of the Mexican army over the French army at The Battle of Puebla in 1862; and
WHEREAS, the City of Ceres is home to a significant Latino population who celebrate the Cinco de Mayo holiday; and
WHEREAS, the Cinco de Mayo holiday is not only the commemoration of the rout of the French troops at the town of Puebla in Mexico, but is also a celebration of the virtues of individual courage and patriotism of all Mexicans and Mexican-Americans who have fought for freedom and independence against foreign aggressors; and
WHEREAS, Cinco de Mayo serves as a reminder that the foundation of the United States is built by people from many nations and diverse cultures who are willing to fight and die for freedom; and
WHEREAS, Cinco de Mayo also serves as a reminder of the close familial, cultural, spiritual and economic ties between the people of Mexico and the people of the United States; and
WHEREAS, the City of Ceres recognizes the strong commitment to continue this annual celebration as a united and committed community to celebrate Mexican identity and promote cultural awareness.
NOW, THEREFORE, I, Javier Lopez, Mayor of the City of Ceres , on behalf of the City Council, Vice Mayor Bret Silveira, Councilmembers James Casey, Rosalinda L. Vierra, and Daniel A. Martinez, hereby proclaim we recognize May 5, 2024 to be a day for celebration of Cinco de Mayo in the City of Ceres and encourage all to join us in celebrating and recognizing this day in honor of our Mexican-American culture and heritage.
Proclaimed this 22
nd day of April 2024
___________________________
Javier Lopez, Mayor
ITEM C
ITEM C
General
Wastewater Treatment
Plant Improvements
Water Resource Recovery Facility | April 22, 2024
Meeting Objectives:
1. Benefits of Wastewater Treatment Plant Improvements
2. Next Steps
Property of Schneider Electric
ITEM D
General
WHY: Impact of Upgrades
& Investments
Economic Benefits
The positive impact of upgrades and
investments extends to economic prosperity
through:
• Ability for city expansion
• Reduce O&M cost
• Provide services to new development
• Minimize energy cost
• Revenue generation
• Economic development
10,000 new homes in the next 5 years
with the development of Copper Trails
and West Landing plans.
ITEM D
General
WHY: Impact of Upgrades & Investments
Regulations
The upgrades and investments in wastewater
treatment plays a substantial role in being
proactive to address rising regulation in the
Central Valley region to protect ground water
Sustainability
The advancements in wastewater treatment
contribute to achieving long-term sustainability
goals by City of Ceres being able to
accommodate new resident and provide
alternative water resources to the community.
ITEM D
General
Executive Summary
Operational & Utility Analysis—Savings
Operational
Expenses
Operational
Expenses
Baseline
Utility
Spend
Utility Spend
$4M – $4.5M
Annual
Savings & \
Potential
Revenue
Used …
Current
Status
After
Improvements
Overview
Current Wastewater Treatment Plant
Annual Operation Cost
~$6.6M
ITEM D
General
Executive Summary
Operational & Utility Analysis—Savings
Breakdown of Major
Operational Costs
a. Fees to the City of Turlock | $1.0M
b. Fees to the City of Modesto | $1.6M
c. Electrical Energy | $450K
d. Sludge Treatment | $200K
Approximate Total Annual
Operation Costs (non-labor &
administrative)
$3M to $4M
Savings
Turlock
$1.0M
Modesto
$1.6M
Energy
$450K
Potential Treated Water Sales
$1.5M
$90M
In Lifecycle
Savings
ITEM D
General
Project Priorities
Increase capacity / city controls its own destiny
Reduce
operational costs
Reduce energy consumption
Address rising
regulations
Financial
stewardship
Reduce long-term
operational costs
Increase plant capacity to
meet growth & city control its
own destiny
Reduce energy consumption
Rising regulations
Financial Stewardship
ITEM D
General
Current State
Dependent
ITEM D
General
Desired State
Independent
ITEM D
General
Wastewater Treatment
Improvements Solutions
Anaerobic Digester System
• Co-Digest Bio-Solids & Organic Food waste to help comply with SB 1383
• Produces Biogas for beneficial uses
• Reduce Greenhouse Gases
• Eligible to approx. 30% cash payment through IRA as
Incentive Tax Credit (ITC)
• Revenue Generation from Biogas beneficial uses
and food waste hauling tipping fees
ITEM D
General
Energy Solutions
Ground Mounted Solar Array
• The solar array will reduce / offset
+/- 50% of the energy demand at the WWTP
• Estimated IRA cash payment ~ 30%
• Estimated Payback 11 years
• Address white fleet EV charging
requirements
Overview
The WWTP annual usage is approximately 3.2 million
KWh, which costs more than $450,000 annually. Further
study will be required during the Investment Grade Audit (IGA) based on the selected options for the WWTP.
ITEM D
General
Summary
Annual Operational
Savings Potential
$4M – $4.5M
Estimated annual reduction in O&M +
capital cost avoidance + treated wastewater sales
• Generates $80M – $90M in lifecycle savings & potential revenue • 64 – 90% utility savings
• 65 – 74% annual reduction in O&M
• Economic Development
• Expand Plant Capacity and Ability to Expand the City
• Address Rising Regulations
Lifecycle Savings
$80 – $90M
Savings impact over life of the partnership
ITEM D
General
Project Priorities
Reduce Long Term
Operational Costs
Rising Regulations
Reduce Energy
Consumption
Demonstrate Wise
Financial Stewardship
Increase Plant Capacity to
Meet Growth & Control
Its Own Destiney
Address Rising
Regulations
Financia
Stewardship
Next Steps
Approval of the Design –
Build Contract
Design Phase Begins
June 1st
Construction Begins 2025
ITEM D
General
se.com
ITEM D
ITEM D
DRAFT MINUTES
CITY COUNCIL REGULAR MEETING
CITY OF CERES, CALIFORNIA
(via ZOOM and in-person)
City Council Chambers, 2701 Fourth Street
Monday, April 8, 2024 at 6:00 p.m.
Mailing Address: Ceres City Hall, 2220 Magnolia Street, Ceres, CA 95307-3292 Phone: (209) 538-5700 Fax: (209) 538-5780
CALL TO ORDER
Mayor Lopez called the April 8, 2024 meeting to order at 6:00 p.m.
ROLL CALL – Present:
Mayor: Javier Lopez
Vice Mayor: Bret Silveira (District 3)
Councilmembers: James Casey (District 1); Rosa linda L. Vierra (District 2); Daniel A.
Martinez (District 4)
District 1
Councilmember
Casey
District 2
Councilmember
Vierra
District 4
Councilmember
Martinez
District 3
Vice Mayor
Silveira
Mayor Lopez
Present Present Pres ent Present Present
INVOCATION
Invocation by Chris Henry, Hope Tree Church.
PLEDGE OF ALLEGIANCE
Pledge of Allegiance was led by Mayor Lopez.
PRESENTATIONS
None
CITIZEN COMMUNICATIONS to the Council on matters not included on the agenda (five minutes)
Destiny Suarez-Condit spoke regarding updates from Senator Marie Alvarado Gil’s office.
Shirley Rogers spoke regarding street repairs, traffic mitigation, and a city-wide yard sale.
Christan Santos spoke regarding updates from Congressman John Duarte’s office.
ITEM 3
DRAFT MINUTES
Regular City Council Meeting
April 8, 2024
APPOINTMENTS TO BOARDS/COMMISSIONS
None
CONFLICT OF INTEREST DECLARATION
None
CONSENT CALENDAR
Action: Motion by Councilmember Martinez, seconded by Vice Mayor Silveira, approving items 1 – 11 . Motion carried 5/0/0/0 by the following roll call vote:
Councilmember
Casey
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira Mayor Lopez
Yes Yes Yes Yes Yes
1. Clerks Report of Posting. The agenda of the April 8, 2024 City Council Meeting was Posted on Wednesday, April 3, 2024. (City Clerk)
2. Waive Readings. All Readings of Or dinances and Resolutions are Waived. (Waive readings in full of all ordinances and re solutions on the agenda and declare that said titles which appear on the public agenda shall be determined to have been read by title). (City Clerk)
3. Approval of Minutes for the March 25, 2024 Regular City Council Meeting. (City Clerk)
4. Register of Audited Demand(s) Dated March 14, 2024 through March 20, 2024. (Esenwein)
5. Resolution No. 2024-34 , Accepting the Fire Training Facility Phase 2 Tactical Tower Project as Complete, Approving the Balancing Contract Change Order, Authorizing the Filing of the Notice of Completion, and Releasing the Remaining Retention. (Beltran)
6. Resolution No. 2024-35, Approving a Professional Services Agreement with Bear Electrical Solutions, Inc. for Traffic Signal Maintenance and Repair Services and Authorizing the City Manager to Execute the Contract. (Royal)
7. Resolution No. 2024-36 , Approving an Amendment to the Agreement for Professional Engineering Services with Black Water Consulting Engineers for the Storm Drain Master Plan (SDMP) Study , Authorizing a B udget Amendment, and Authorizing the City Manager to Execute the Amendment. (Royal)
ITEM 3
DRAFT MINUTES
Regular City Council Meeting
April 8, 2024
8. Resolution No. 2024-37 , Approving the Use of Gene ral Funds to Sponsor the Annual Love Ceres Event in the Amount of $2,500.00 and Authorizing Staff to Move Forward with the Expenditures. (Aguirre)
9. Resolution No. 2024-38, Approving the Use of American Rescue Plan Act (ARPA) Funds in the Amount of $10,000.00 to Plan and Implement the Ceres Hot Air Balloon Festival and Authorizing Staff to Move Forward with the Expenditures. (Chavez)
10. Resolution No. 2024-39, Approving the Subdivision Improvement Agreement and Recordation of the Final Subdivision Map for the Whitmore Ranch Phase 1 Subdivision. (City Manager)
11. Resolution No. 2024-40, Approving Contract Amendment #1 with EMC Planning Group, Inc. to Perform Prof essional Planning Services Related to the Continued Preparation of the 2024-2031 Housing Element Update, Including Compliance with the California Environmental Quality Act and Authoriz ing the City Manager to Execute the Amendment. (City Manager)
CONSIDERATION OF ITEM(S) REMOVED FROM THE CONSENT CALENDAR
None
UNFINISHED BUSINESS
None
PUBLIC HEARING
None
NEW BUSINESS
12. Resolution No. 2024-41 , Ratifying the Appointment of Lea Simvoulakis to the Position of Director of Community De velopment, Approving an Employment Agreement, and Authorizing the City M anager to Execute the Agreement. (City Manager)
City Manager, Doug Dunford, introduced the item.
Mayor Lopez asked for public comment. The following members of the public spoke:
Gene Yeakley inquired about the new Comm unity Development Director’s work history.
ITEM 3
DRAFT MINUTES
Regular City Council Meeting
April 8, 2024
Maylor Lopez closed public comment.
Council and staff discussion included the new Community Development Director’s planning experience.
Action: Motion by Councilmember Martinez, seconded by Vice Mayor Silveira, approving item 12. Motion carried 5/0/0/0 by the following roll call vote:
Councilmember
Case
y
Councilmember
Vierra
Councilmember
Martinez
Vice Mayor
Silveira Mayor Lopez
Yes Yes Yes Yes Yes
DISCUSSION ITEMS
None
COUNCILMEMBER REFERRALS
13. Zoom Participation at City Council Meetings
(Requested by Vice Mayor Silveira)
REPORTS
Mayor
Nothing to report.
City Council
Councilmember Vierra spoke regarding the Economic Development Action Committee, Bridging the Gap, Hot Air Balloon Ev ent, City Leader’s Summit, housing and homelessness, attending TI D board meetings, and Ceres Partnership for Healthy Families.
Councilmember Casey spoke regarding the stroke awareness presentation that will be given at the May 12
th City Council meeting.
Councilmember Martinez spoke regarding Concerts in the Park (beginning June 4th), a new mural, and congratulating Planning Co mmissioner Gary Condit and Destiny Suarez on their recent nuptials.
City Manager
Nothing to report.
ITEM 3
DRAFT MINUTES
Regular City Council Meeting
April 8, 2024
City Attorney
Josh Varinsky filled in for Nubia Goldstein and introduced himself.
Departments
Nothing to repot.
County Supervisor
Nothing to report.
CLOSED SESSION
None
REPORT FROM CLOSED SESSION
None
ADJOURNMENT
The next regularly scheduled City Council Meeti ng will be held on April 22, 2024 at 6:00 p.m. in the City Council Chambers located in the Community Center at 2701 Fourth Street, Ceres, CA.
There being no further business, Mayor Lopez adjourned the meeting at 6:27 p.m.
______________________________
Javier Lopez, Mayor
____________________________
Fallon Martin, City Clerk
Consistent with Council Policy, the minutes referenced above are in Action Format. The complete recording of the meeting can be viewed at http://www.ci.ceres.ca.us/ agenda center.
ITEM 3
ITEM 3
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
ITEM 4
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James Casey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: April 22, 2024
TO: Mayor and City Council
FROM:
Douglas D. Dunford, City Manager
CONTACT: Sam Royal, Public Works Director
[email protected], (209) 538-5717
SUBJECT: Public Works Monthly Report for March 2024
RECOMMENDED COUNCIL ACTION:
Information only, no action required.
I. BACKG ROUND:
Outlined below are the significant actions performed by the Public Works Department for the month of March 2024.
FACILITY SERVICES:
• Completed 155 Facilities Maintenance work orders including: 103 service requests for electrical/lighting, plumbing repairs, HVAC issues, locksmith tasks, general repairs, and 52 preventive maintenance services.
• Serviced all (110) fire extinguishers for City buildings and Well sites. • Remodeled and relocated Payroll over to Human Recourses. Four new cubicles in total.
• Removed old furnishings and prepared Annex for new cubicle and workstation for the Building Permit Technician.
• Continued clean-up of homeless camps/debris at Independence Park and Roeding Park with the assistance of Code Enforcement.
Maintenance activities performed by one (1) Supervisor, one (1) Senior Facilities Maintenance Worker, two (2) Facility Maintenance Workers, and five (5) Custodians.
FLEET SERVICES:
Completed 103 work orders.
ITEM 5a
Fleet, Department 20
• Two field repairs, flat tire, and disc bearings.
Fire, Department 15
• N/A
Police, Department 10
• Serviced 8 patrol units.
• Started repairs on 2 patrol units from police pursuit damage. • Pending repair on police patrol unit involved in accident, rear end collision from citizen.
• Tires and service on 2 Harley motor patrol units.
• Finished build of new donated Harley motor patrol unit.
Streets, Department 30
• Tymco sweeper back from warranty repairs by dealer. • Sweeper received new steer tires.
Water, Department 35
• Put new Water Department F350 pickup in service.
Parks, Department 40
• Toro mower received new tires and service.
Wastewater, Department 25
• VacCon (SEWER LINE TRUCK) back in service from extensive dealer warranty repairs.
Facilities, Department 41
• N/A
Emergency and non-emergency City vehicles and equipment is maintained and repaired by one (1) Supervisor, one (1) Sr. Maintenance Mechanic, and two (2) Maintenance Mechanics.
LANDSCAPE MAINTENANCE:
Completed a total of 244 service requests in the following categories:
• Bike Path Repairs: 1
• City Grounds Maintenance: 9
• Park Landscape and Maintenance: 148
• Parks Landscape chemical usage: 700 gallons Parks / Grounds • Playground and Equipment Repairs; Several playgrounds parts that were ordered with 120-day lead time for delivery, repair work will follow pending delivery. • Playground and Equipment Inspections: 13
• Right of Way (ROW) Irrigation Repairs: 3 sprinklers
• Park Trees: 29 Trimmed
• Tree Customer Requests (Tree or Limb Down, Trims or Removals): 228 • Total Graffiti Vandalism & Repair cost is $1,569.00 for the month of March.
ITEM 5a
Parks sprinklers repaired or replaced:
• Barry Grove – 0
• Costa Fields – 0
• Don Pedro – 6 maintenance
• Independence – 1 vandalisms
• Dog Park – 6 maintenance
• Neel Park – 0
• Persephone – 1 maintenance
• Redwood – 0
• River Bluff – 5 maintenance
• Riverview – 2 maintenance
• Roeding Heights – 4 vandalism
• Sam Ryno – 2 maintenance
• Smyrna – 3 valves and 6 sprinklers maintenance
• Strawberry – 2 maintenance
• Whitmore – 0
Parks General Maintenance/Repairs:
• Graffiti removal at Sam Ryno (2), Strawberry (3), River Bluff (2), Roeding (2), Ochoa (0) Persephone (3), Smyrna (3), Don Pedro (2), and Independence Park (3)
• Repaired and updated Marquee sign on Mitchell Road Electric pole ran over at River Road. No power to Marquee re-vandalized repaired. • Removed tree on Magnolia Street in front of City Hall. Tree was lifting the sidewalk.
Stump to be ground in future
Grid Prune by West Coast Arborists (WCA):
• Grid # 3 2020-2021 100% - Completed with 2,343 trees pruned. • Grid # 4 2021-2022 99% - Completed with 2,450 trees pruned. • Grid # 2 2022-2023 Started in July 2023 99% completed. • Grid # 1 2023-2024 Started in October 2023 97% completed. • Grid #5 2024-2025 Started February 2024 40% completed with 32 trees trimmed. • Pending: 247 high risk, 28 removals, and 96 inspect for trims
Grounds
Rights of Way (ROWs):
• Faith Home Rd: pending water staff to schedule backflow install. • River Road: backflow replacement scheduled for next month . Currently water is shut off at River and Canyon Falls.
• All ROW irrigation controllers are being turned on this season. • Roundabout on Eastgate damaged due to vehicle accident. Backflow, shrubs, and irrigation lines were affected. Backflow repaired.
Whitmore Mansion
• Mowed and sprayed.
Parks
Don Pedro:
• Contractor completed walkway on southside of park.
Sam Ryno:
ITEM 5a
• Repairing swing set, temporary fix for now. Parts for repair are pending delivery. • Parts for Spinning chair and Rocking cycle were delivered and in process of assembly, install.
Smyrna Park:
• Construction for park improvement ongoing.
• Replaced 4 broken valves.
• Repaired fence to Park yard twice due to vandalism
• Tree and large limbs down due to the storm were cleaned up.
Costa Fields
• Grover Tree service trimmed trees over batting cages
Roeding Park:
• Repaired and painted gate to irrigation well.
• Repaired stairs on playground due to vandalism.
Neel Park:
• Started maintenance for Dog Park.
Independence Park:
• Power washed playground due to vandalism.
Riverview Park:
• Playground 2-5 climbing ladders damaged due to vandalism; parts were ordered for replacement.
River Bluff Park:
• Playground area - replaced 2 sprinklers due to vandalism. • Mowed Lower Area.
• Removed damaged entrance fence due to vandalism.
• Adjusted all fields to different ware patterns.
• 3 trees down and large limbs were cleaned up.
Guillermo Ochoa Park:
• Contractor ongoing with park improvements.
Lions Park:
• Park disked.
• Cleaned sidewalk around the park.
City Parks Landscaping and Maintenance is performed by one (1) Supervisor, one (1) Sr.
Parks Maintenance Worker, Five (5) Park Maintenance Workers, and none (0) full -time Temporary Maintenance Worker.
SOLID WASTE & RECYCLING:
• Highlights of solid waste and recycling collection by Bertolotti for March 2024:
Residential…………………….… 1132.84 tons
Illegal dump/litter abate (code enforcement) 8.47 tons Illegal dump (Bertolotti) ………. .96 tons, 2 locations Bulky items…………………….… 28.19 tons, 129 locations
Leaf/limb (illegal)...…………….… .40 tons
Street Sweep………………….… 60 tons
Residential Organics…………… 612.61 tons
Commercial Organics…………. 257.67 tons
ITEM 5a
Residential Recycle………….… 234.58 tons
Commercial Recycle …………… 4.93 tons
C&D (Construction/Demolition Debris) 0 tons Used oil…………………………… 448 gallons
Used oil filter……………...……… 94
• There were 123 organic cart contamination violations issued in March. • Solid Waste Division has been assisting in the planning of, as well as will be participating in, the Love Ceres event on April 27th.
• Solid Waste Division will host an informational/promotional booth at the Ceres Street Faire on May 4
th.
• The Ceres Unified School District, in partnership with the City of Ceres and sponsored by Bertolotti Disposal, will host the 31st Annual Recycling Poster Contest winner’s reception on Monday, May 13
th at 3:30p.m. to recognize this year’s winning entries. Selected designs from participants in grades K-12 will be awarded 1st through 4th place as well as honorable mentions and presented a certificate and monetary prize in 5 different grade level categories.
Solid Waste Division work is performed by one (1) Administrative Analyst.
STREETS SERVICES:
• Staff responded to a total of 76 customer service requests. • Responded to 208 Underground Service Alerts (USA) markings. • Repaired 48 street lights to include 5 underground repairs. • Flushed 1,570 feet of storm drain pipeline.
• Cleaned 8 DI’s
• Cleaned 26 storm lift stations.
• Installed 1 storm drain pump.
• Repaired sinkhole Central and Magnolia.
• Repaired damaged fence at Fifth and El Camino due to vehicle accident. • Built 2 pads in corporation yard for hazardous waste sheds. • Removed and replaced curb, gutter, sidewalk and section of driveway approach at 2017 Mitchell Road
City Streets Division maintenance is performed by one (1) Supervisor, two (2) Sr.
Maintenance Workers, (5) Streets Maintenance Operators, one (1) Street Sweeper Operator (2) part time Streets/Code Enforcement Maintenance workers and (1) part time Maintenance worker. Please note the Streets Division has been down one staff member since January 2022 due to workers comp injury and one staff member on light duty since 8/11/21.
WASTEWATER (WWTP):
• Responded to 16 customer service requests and 43 sewer problems, during working hours and after hours.
• Staff responded to 2 Smart Cover alerts & alarms that prevented Sanitary Sewer Overflows (SSO’s).
• There were (0) SSOs in February which resulted in 0 gallons spilled and recovered. • Serviced or Repaired:
o Lift Stations – 15
ITEM 5a
o WWTP Equipment – 18
o Main line sewer plugs – 2
o Aerators – 2
• Staff performed weekly landscape maintenance, weed abatement, and levee erosion control.
• Staff performed pond discing and ripping for weed abatement and pond rehabilitation.
• Staff checked on force main to Turlock.
• Staff cleaned 35,160 feet of sewer main line.
• Staff CCTV inspected 1075 feet of sewer line, camera is in the shop for repairs. • Staff continues the process of updating the Wastewater Discharge Report (WDR), Sewer Master Plan (SMP), and Sanitary Sewer Management Plan (SSMP). • SCADA Integrator, Jeff Burrows, and Wastewater Staff continued converting lift station and treatment plant controls to the new SCADA system. • Staff continued to work on SCADA integration of WWTP and lift stations. • Staff attended trainings on Smart Cover Maintenance, First Aid, & hazardous materials.
• Staff removed and repaired lift station pumps 3 times to clear debris that was flushed or put into the sewer system.
• Staff checked & marked 185 USA tickets, which took 27 hours; preventing contractors from damaging City sewer lines.
• Turlock sewer use charge was $77,458.93 for the month of February. • Modesto sewer use charge for the month of February has not been received yet. • Biochemical Oxygen Demand (BOD) 16 mg/L.
• Treated and disposed of 73.95 MG of wastewater with an average of 2.39 MGD.
Ceres Wastewater Treatment Plant and Collections System operations and maintenance are performed by one (1) Supervisor, two (2) Sr. Wastewater Operators, two (2) Operator II, three (3) Operator-in-Training. There are two (2) open Wastewater Operator positions.
Please note Wastewater has not been fully staffed since 2019. Nearly all veteran operators retired or moved to other cities locally. Multiple applicants have turned down job offers citing low wages as the reason for declining the offers. Some have accepted and then resigned due to low pay. We currently have 3 trainees and cannot accommodate anymore. Operators with their Certification do not apply for positions with Ceres. If qualified operators cannot be hired the vacant positions cannot be filled, leaving the department short-staffed for longer.
WATER SYSTEM MAINTENANCE:
Water, Department 35
• March 2024 well production was 16.013 million gallons. • Average water use for March was 0.517 million gallons per day. • Water staff responded to 13 customer service requests. • Water staff responded to 67 Underground Service Alerts (USA) markings. • Meter statistics and repairs:
o Meters in water distribution system: 11,869
o Meters/radios serviced: 164
o Meters replaced: 9
o Meters upgraded from ¾”, 5/8” to 1”: 12
o New meter installations: 1
ITEM 5a
o Meters tested for accuracy: 0
• Total valves in water distribution system: 4,402 of which 204 were exercised • Blow-offs and hydrants flushed: 70
• Water main leaks: 0
• Service line leaks: 4
• Service lines have been replaced: 3
• Hydrants replaced: 0
• Water quality samples taken: 45
Water Conservation, Department 36
• March 2024 calculated residential gallons used per person per day: 55.70 • Annual average is 76.85 gallons per person per day.
• Responded to 24 water conservation service requests.
• Water portal has 276 residents registered.
• Issued courtesy notifications: 87
• Performed 0 water audits.
• Delivered 5 water waste warnings, issued 0 water waste fines, number of excess consumption fines data unavailable from Finance as of the due date of this report. • Rebates Issued: Dishwasher: 1, Smart Irrigation: 1, ULF Toilets: 4, Washing Machine: 1, and Turf Replacements: 0
Total Rebates YTD: 45
The graph below shows our (well) production numbers for 2020 in blue compared to 2024 in purple with the water reduction target of 15% in red. For March 2024, we had a decrease of 13.49% from the March 2020 production numbers. Please remember, February was the first month we included surface water usage in our water reduction graph data. The graph below is now a true reflection of our groundwater and surface water production numbers and accurately depicts our conservation efforts overall.
Water system maintenance is performed by one (1) Superintendent, one (1) Supervisor, one (1) Administrative Analyst, two (2) Senior Water Operators, eight (8) Water Distribution Operators, two (2) Field Service Technicians, and one (1) Water ITEM 5a
Conservation Officer. Interviews were held to fill (1) open Operator position; second round interviews scheduled for April 10th.
Approved by: _____________________
Douglas D. Dunford
City Manager
ITEM 5a
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James Casey, Dist.1
Rosalinda Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel Martinez, Dist. 4
MEETING DATE: April 22, 2024
TO: Mayor and City Council
FROM: Douglas D. Dunford, City Manager
CONTACT: Julian Aguirre, Economic Development/Redevelopment Manager [email protected] (209) 538-5773
SUBJECT:
Redevelopment & Economic Development Report for
January – March 2024
RECOMMENDED COUNCIL ACTION:
Information only, no action required.
Overview Summary:
General activity in the Economic Development Department has varied over the last three months. With business engagement and retention outreach, recruitment of business for downtown and surrounding vacant areas in Ceres. Meet with several developers and property owners. Collaborated with local networks and organizations.
Also, focused on preparing for ICSC conference in Monterey.
Business Retention and Outreach:
• Over the three months Engaged with fifty-two (52) businesses in the following areas: Mitchell Shopping Center, Ceres Gateway Center, Whitmore Plaza, Taylor Plaza, Punjabi Plaza, and several businesses off Whitmore and Morgan industrial park.
• Reached out to 21 businesses, which included “Welcome to Ceres” emails, phone calls and/or visits. These are new businesses that recently received City business licenses from Jan – March 2024.
1. Furniture Outlet by Casablanca
2. Lupita Armas Cleaning
3. Cen Cal Electric Inc
ITEM 5b
4. Evans Food Group
5. Tony’s Smoke Shop
6. Apollo Transportation
7. GV Handyman
8. La Suegrita Food Truck
9. LL Hawaiian BBQ
10. Canelos Cocker Spaniel
11. Paradise Massage
12. All Star Auto Repair & Smog
13. Infinity Mr. Jewelry
14. Marinis Income Tax Service
15. Your Tax Lady
16. C&F Duct Cleaning
17. Loma Blanca Roofing
18. The Gardener Landscaping
19. Blessed House Cleaning
20. Ideal Barbershop Studio LLC
21. Armstrong Refrigeration
Business Attraction E fforts:
• Cold emails and introductory phone calls
o to retailers that may be interested in establishing a business location in Ceres.
• West Landing development
o Met with two landowners to discuss the West Landing Development and linked to potential developers.
• Meeting with local businesses
o Met with one business that is looking to relocate within the City of Ceres o M et with a business owner who has expressed interest in helping with more downtown events.
o Met with a business owner how is looking to develop property for potential restaurant/grocery store/strip mall.
• ICSC Monterey
o Attend the International council of shopping centers. o Reached out to 40 brokers, developers, and retailers. o Scheduled 9 appointments for Monterey.
o Engaged with 21 retailers, broker, developers
• Developer Meetings –
o Met with multiple developers and commercial brokers to discuss commercial development and residential development opportunities within the city of Ceres.
Local/Regional Eco
nomic Development Events/Workshops/Activities:
• Placer.AI demonstration
• Meeting with Opportunity Stanislaus
ITEM 5b
o Engaged in conversation on who we can work together to bring more retail and bigger box to ceres.
o Discussed services.
• Attended Stanislaus Urban County Monthly Meeting
o Working on Annual Action Plan
• Bridging the Gap 2024
o Meetings – event schedule for May 30
• Attended meeting for Hatch Road Sign
o Pending response from City Attorney
• Attend monthly zoom meetings for Team California
o Organization that helps promote and provide important information on Economic Development Advertisement
o Economic Development Resource platform
o Attend industry trade shows on behalf of City
• Meeting with Stanislaus Latino Chamber
o Discussed working relationship.
o How to support each other
o Future workshops and events
• Participated in the CBDG Grant Review
• Attended the LOVE CERES roundtable and bi-weekly meetings. o Love Ceres – Saturday April 27, 2024
• Meeting with EDD and Ceres Chamber of Commerce
o Job Fair
• Ribbon Cutting/Grand Opening
o El Tarasco Snacks
• Attended the 2024 Turlock Business Conference
Approved by: _____________________
Douglas D. Dunford,
City Manager
ITEM 5b
ITEM 5b
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James Casey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: April 22, 2024
TO: Mayor and City Council
FROM: Douglas D. Dunford, City Manager
CONTACT: Kevin Wise, Interim Fire Chief
[email protected], (209) 342-4543
SUBJECT:
Resolution No. 202 4-XXX, Approving t he Memorandum of
Understanding (MOU) for Regional Fire Authority Funding for the Fire Training Facility Project and Authorizing the City Manager to Execute the MOU
RECOMMENDED COUNCIL ACTION:
Staff recommends the City Council approve the Memorandum of Understanding for Regional Fire Authority Funding for City Training Center Project.
I. BACKGROUND:
The City of Ceres along with the Modesto Fire Department (MFD), Turlock Fire Department (TFD), and Stanislaus Consolidated Fire Protection District (SCFPD) have agreed to joint use of the Training Station at 420 Service Road. through a Memorandum of Understanding (MOU) adopted in 2022. This shared resource has proved to be of benefit to the City of Ceres and all surrounding communities as the regionalization and organizational alignment of fire and emergency services continues. On September 7, 2023 the Regional Fire Authority (RFA) approved the use of $325,000 in their 2024 Business Plan to be allocated to the expansion of this Training Center.
II. REASONS FOR RECOMMENDATION:
By establishing this Memorandum of Understanding (MOU), it is ensured that these funds are used exclusively for the purpose of the construction and maintenance of this Regional Fire Training Center.
III. FISCAL IMPACTS:
The RFA will pay the $325,000 to the City of Ceres in one lump sum and any funds not expended on this project will be returned to the County to be put back in the County Fire Service Fund Legal Budget Unit.
ITEM 6
IV. EXISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN:
This project is in conformance with the priority of the Strategic Plan to p rovide quality services to meet community needs, assuring that the City has helpful, well trained, properly equipped and sufficient staff who partners with other public agencies to provide efficient services.
V. POLICY ALTERNATIVES:
Council can choose not to approve the Memorandum of Understanding and discuss other terms for consideration. Renegotiation of terms may affect the progress of the project.
VI. INTERDEPARTMENTAL COORDINATION:
N/A
VII. PUBLIC PARTICIPATION:
N/A
VIII. ENVIRONMENTAL REVIEW:
N/A
IX. STEPS FOLLOWING APPROVAL:
Approval of the MOU will allow the acceptance of these funds from the RFA to move forward with the project.
Approved by: ________________________
Douglas D. Dunford,
City Manager
Attachments:
1. Attachment A – Resolution
2. Attachment B – Memorandum of Understanding
ITEM 6
ATTACHMENT A
RESOLUTION NO. 2024-XXX
APPROVING THE MEMORANDUM OF UNDERSTANDING (MOU) FOR
REGIONAL FIRE AUTHORITY FUNDING FOR THE FIRE TRAINING
FACILITY PROJECT AND AUTHORIZING THE CITY MANAGER TO
EXECUTE THE MOU
THE CITY COUNCIL
City of Ceres
WHEREAS, t he City of Ceres and the Modesto Fire Department (MFD) have agreed to joint use of the Training Station at 420 Service Road; and
WHEREAS, on September 7, 2023 the Regional Fire Authority (RFA) approved the use of $325,000 in their 2024 Business Plan to be allocated to the expansion of this Training Center; and
WHEREAS, by establishing this Memorandum of Understanding (MOU), it is ensured that these funds will be used exclusively for the purpose of the construction and maintenance of this Regional Fire Training Center; and
WHEREAS, the RFA will pay the $325,000 to the City of Ceres in one lump sum and any funds not expended on this project will be returned to the County to be put back in the County Fire Service Fund Legal Budget Unit.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ceres does hereby approve the Memorandum of Understanding (MOU) for Regional Fire Authority funding for the Fire Tower Training Facility project and authorizes the City Manager to execute the MOU.
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on the 22
nd day of April 2024, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
________________________________
Javier Lopez, Mayor
ATTEST:
_________________________________
Fallon Martin, City Clerk
ITEM 6
ITEM 6
ATTACHMENT B
{CW137466.1}
MEMORANDUM OF UNDERSTANDING
BETWEEN
COUNTY OF STANISLAUS
AND THE CITY OF CERES
TO PROVIDE REGIONAL FIRE AUTHORITY FUNDING
FOR CITY TRAINING CENTER PROJECT
This MEMORANDOM OF UNDERSTANDING (the “MOU”) is made and entered into by and between the CITY OF CERES (“City”) and the COUNTY OF STANISLAUS (“County”) as of April 1, 2024, or the upon the execution of the MOU by both parties , whichever is earlier (“Effective Date”).
RECITALS
WHEREAS, the City is expanding the Fire Training Center at the Service Road fire station property (“Project”); and
WHEREAS, on September 7, 2023, the Regional Fire Authority (“RFA”) approved the 2024 Stanislaus County Fire Authority Business Plan which included $325,000 of funding to be used for the Project; and
WHEREAS, on October 17, 2023, the County Board of Supervisors adopted the 2024 Stanislaus County Fire Authority Business Plan.
NOW THEREFORE, in consideration of the mutual promises covenants, terms and conditions hereinafter contained, the City and County herby agree as follows:
AGREEMENT
1) Compensation. The amount approved by the RFA is Three Hundred Twenty -Five Thousand Dollars ($325,000) and will be paid to the City in one lump sum.
2) Use of Funds. The City and the County mutually agree that the funds shall only be used for the approved Project and if funds are not expended, such excess funds will be returned to the County and allocated back to the County Fire Service Fund Legal Budget Unit.
3) Term. The term of this MOU shall be from the Effective Date through the date in which all terms of the MOU have been satisfied, unless otherwise amended or terminated by the parties.
4) Entire Agreement. This MOU contains the entire agreement of the parties hereto relating to the Project, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. The provisions of this MOU may be modified at any time by written agreement of the parties. Any such written agreement ITEM 6
ATTACHMENT B
{CW137466.1}
shall be ineffective to modify this MOU in any respect unless in writing and signed by the parties against whom enforcement of the modification or discharge is sought.
5) Counterparts; Electronic Signature. This MOU may be executed and delivered in counterparts, each of which when executed and delivered shall be deemed to be an original, but such counterparts shall together constitute one document. Further, this MOU may be executed by facsimile or electronic signature, and any such facsimile or electronic signature by any party hereto shall be deemed to be an original signature and shall be binding on such party to the same extent as if such facsimile or electronic signature were an original signature.
IN WITNESS WHEREOF, the City and the County have entered into this MOU as of the Effective Date set forth above.
COUNTY OF STANISLAUS
By:______________________________________
Erik Klevmyr
Interim Fire Warden
CITY OF CERES
By:_____________________________________
Douglas D. Dunford
City Manager
APPROVED AS TO FORM:
Thomas E. Boze, County Counsel
By:______________________________________
Lori Sicard
Deputy County Counsel
ITEM 6
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James Casey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: April 22, 2024
TO: Mayor and City Council
FROM: Douglas D. Dunford, City Manager
CONTACT: Sam Royal, Director of Public Works
[email protected], (209) 538-5717
SUBJECT:
Resolution No. 202 4-XXX, Accepting the Don Pedro Park Trail Project as Complete , A pproving the B alancing Contract C hange Order, and Authorizing the Filing of the Notice of Completion and Release of the Remaining Retention to the Contractor
RECOMMENDED COUNCIL ACTION:
Staff recommends the City Council adopt a Resolution accepting the Don Pedro Park Trail Project as complete, approving the balancing contract change order, authorizing the filing of the notice of completion, and release of the retention to the contractor.
I.
BACKGROUND:
The Project was awarded to George Reed Inc. at the December 11, 2024, City Council meeting. The project improvements included installation of six feet wide sidewalk path at Don Pedro Park. T he addition of the trail segment provided the park with a complete walking path that connects from one side of the park to the opposite side.
II.
REASONS FOR RECOMMENDATION:
All work has been substantially completed since March 2 2, 2024 in accordance with the contract, plans, and specifications and to the satisfaction of City staff.
III. FISCAL IMPACTS:
The construction authorization included a base bid amount of $68,700.00 and an 8% contingency of $5,500.00. Final construction costs came in at $68,700.00; no contingency was used in this P roject. Funds are available in approved first -round ARPA allocation in account 21995.800500.
IV. EXISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN:
ITEM 7
This would help accomplish the Livable Community section of the Strategic Plan, to “Create a vibrant, safe, attractive and walkable community that maintains a small -town feel, with parks, trails, shopping, entertainment and other desirable amenities.” V. POLICY ALTERNATIVES:
N/A
VI. INTERDEPARTMENTAL COORDINATION:
Engineering staff coordinated with Public Works during the construction operations of the project.
VII. PUBLIC PARTICIPATION:
N/A
VIII. ENVIRONMENTAL REVIEW:
N/A
IX. STEPS FOLLOWING APPROVAL:
Following the acceptance of the improvements, the Notice of Completion will be filed, and the 5% retention will be released after 35 days if no claims are filed.
Approved by: _______________________
Douglas D. Dunford,
City Manager
Attachments:
1. Attachment A – Resolution
2. Attachment B – Notice of Completion
3. Attachment C – Balancing Contract Change Order
ITEM 7
ATTACHMENT A
RESOLUTION NO. 2024-XXX
ACCEPTING THE DON PEDRO PARK TRAIL PROJECT AS COMPLETE,
APPROVING THE BALANCING CONTRACT CHANGE ORDER, AND
AUTHORIZING THE FILING OF THE NOTICE OF COMPLETION AND
RELEASE OF THE REMAINING RETENTION TO THE CONTRACTOR
THE CITY COUNCIL
City of Ceres
WHEREAS, the contract for the Don Pedro Pak Trail Project was awarded to the contractor George Reed Inc.; and
WHEREAS, the contractor has completed all work required pursuant to their contract with the City of Ceres for the Don Pedro Park Trail Project; and
WHEREAS, the Director of Engineering has recommended that this project be accepted as complete and that the contractor be paid all sums due under the contract; and
WHEREAS, the final contract amount is $68,700.00 and the funds to cover the final payment and retention funds are available in account number 21995.800500; and
WHEREAS, the contractor will be paid all sums due under the contract less five percent (5%) retention, which said five percent (5%) retention shall be paid no earlier than 35 days after filing of the Notice of Completion; and
WHEREAS, staff has determined that the sums due under the contract are reasonable.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ceres does hereby accept the Don Pedro Park Trail Project as complete, approves the balancing contract change order, authorizes the filing of the Notice of Completion and releas e of the remaining retention to the contractor in accordance with this resolution.
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on the 22
nd day of April 2024, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
_________________________________
Javier Lopez, Mayor
ATTEST:
__________________________________
Fallon Martin, City Clerk
ITEM 7
ITEM 7
ATTACHMENT B
NOTICE OF COMPLETION
NOTICE IS HEREBY GIVEN:
1. On December 11, 202, the City of Ceres, a Municipal Corporation in the County of Stanislaus, State of California accepted the bid from George Reed, Inc., for the construction of the Don Pedro Park Trail Project.
2. On March 29, 2 024, the said contract as a whole was completed by George Reed, Inc ., and accepted by the City Council of the City of Ceres at a regular meeting of the City Council held on the 22nd day of April 2024.
By: _______________________________
Fallon Martin, City Clerk
City of Ceres
VERIFICATION
I, the undersigned, affirm:
I am the person who signed the foregoing notice. I have read and understand the above notice and know its contents, and the facts stated therein are true and correct to the best of my knowledge.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in the City of Ceres, County of Stanislaus, State of California on this 22nd day of April 2024.
By: ________________________________________,
Fallon Martin, City Clerk
ITEM 7
ITEM 7
ITEM 7
ITEM 7
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James Casey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: April 22, 2024
TO: Mayor and City Council
FROM: Douglas D. Dunford, City Manager
CONTACT: Douglas D. Dunford, City Manager
[email protected], (209) 538-5751
SUBJECT:
Resolution No. 2024-XXX, Approving the Use of American Rescue Plan Act F unds to Sponsor the A nnual Ceres Street Faire and Authorizing Staff to Move Forward with the Expenditure
RECOMMENDED COUNCIL ACTION:
Staff recommends Council adopt a resolution approving an expenditure of $5 ,000 of American Rescue Plan Act ( ARPA) funds and provide authorization for City Sponsorship of the annual Ceres Street Faire.
I. BACKGROUND:
The Ceres Street Faire is an annual event implemented by the Ceres Street Faire Committee with support from the Ceres Chamber of Commerce and the City of Ceres.
The City received a request for sponsorship from the Ceres Street Faire Committee in the amount of $5,000. This event is directly related to economic development and will boost local tourism as attendees visit Ceres and spend tax dollars at local venues.
II.
REASONS FOR RECOMMENDATION:
The annual Ceres Street Faire is a tourist attraction and will bring thousands of people to Ceres. The history of the Street Faire has been structured to provide a venue for local non-profits and community groups to showcase their businesses and bring revenue to their programs.
III. FISCAL IMPACTS:
Funding of $5,000 would be allocated using existing ARPA funds to sponsor the annual Ceres Street Faire. This event is intended and planned to have a positive fiscal impact on the City. The funds will be appropriated from account 21955.026500.
ITEM 8
IV. EXISTING POLICY / RELATIONSHIP TO STRATEGIC PLAN:
1. Economic Development: Proactively recruit and attract businesses to Ceres in order to add to the quality of life and enhance the fiscal base of the community. a. Proactively implement the Downtown Specific Plan that establishes the downtown as a destination point.
b. Attract entertainment venues for youth and adults.
2. Community engagement: Establish strong relationships with all sectors of the community, recognizing its cultural diversity and increase their involvement in creating the future of the City.
a. Collaborate with community groups to achieve mutual goals.
V. POLICY ALTERNATIVES:
The Council could decide to not fund or sponsor this event.
VI. INTERDEPARTMENTAL COORDINATION:
N/A
VII. PUBLIC PARTICIPATION:
N/A
VIII. ENVIRONMENTAL REVIEW:
N/A
IX. STEPS FOLLOWING APPROVAL:
Upon approval, the City Manager or designee will provide the sponsorship to the Ceres Street Faire Committee.
Approved by: ____________________________
Douglas D. Dunford
City Manager
Attachments:
1. Attachment A – Resolution
2. Attachment B – Budget Amendment
3. Attachment C – Letter from Lisa Montarro Moore
ITEM 8
ATTACHMENT A
RESOLUTION NO. 2024-XXX
APPROVING THE USE OF AMERICAN RESCUE PLAN ACT FUNDS TO SPONSOR
THE ANNUAL CERES STREET FAIRE AND AUTHORIZING STAFF TO MOVE
FORWARD WITH THE EXPENDITURE
THE CITY COUNCIL
City of Ceres, California
WHEREAS, the City of Ceres Annual Budget is an action and financial plan of services to be provided to the citizens of Ceres; and
WHEREAS, the Ceres Street Faire is a tourism event that will boost the local economy by bringing tourists into the City to purchase food, gas, and lodging , thus generate additional sales tax; and
WHEREAS, the American Rescue Plan Act (ARPA) funds to be used are directly related to Economic Development; and
WHEREAS, the expense to support this event is intended and planned to have a positive fiscal impact on the City; and
WHEREAS, a budget amendment in required to appropriate funds to account 21955.026400 to sponsor the Ceres Street Faire.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ceres does hereby approve the use of American Rescue Plan Act funds to sponsor the Annual Ceres Street Faire and authorizes staff to move forward with the expenditure.
BE IT FURTHER RESOLVED the Director of Finance is hereby authorized and directed to record the appropriate account entries.
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on the 22
nd day of April 2024, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
________________________________
_
Javier Lopez, Mayor
ATTEST:
_______________________________
Fallon Martin, City Clerk
ITEM 8
ITEM 8
ATTACHMENT B
Budget Amendment No.
Fiscal Year 2023 - 2024
Reference Resolution No. 2024-XXX, dated April 22, 2024, authorizing appropriations for Budget Adjustments as follows:
Appropriations:
Fund Name Fund
No.
Dept.
No.
Object
No.
Appropriation
Amount
ARPA funds 219 55 026500 $5,000.00
Requested Appropriation $5,000.00
2023 - 2024 Current Appropriation $5,000.00
Total Appropriation $ 0
Estimated Revenues:
Fund Name Fund
No.
Type
No.
Object
No.
Estimated
Revenue Amt.
Total Estimated Revenue
2022 - 2023 Current Estimated Revenue
Total Estimated Revenue
ITEM 8
ITEM 8
ATTACHMENT C
ITEM 8
ITEM 8
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James
Casey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: April 22, 2024
TO: Mayor and City Council
FROM: Douglas D. Dunford, City Manager
CONTACT: Julian Aguirre, Economic Development/Redevelopment Manager [email protected], (209) 538-5773
SUBJECT:
Resolution No. 202 4-XXX, Adopting in Concurrence with
Stanislaus Urban County Consortium the Fiscal Year 2024- 2025 Annual Action Plan for the Community Development Block Grant and Home Investment Partnerships Programs, and Support of Submission to Housing and Urban Development (HUD)
RECOMMENDED COUNCIL ACTION:
Adop
t a Resolution in concurrence with Stanislaus Urban County Consortium the Fiscal Year 2024-2025 Annual Action Plan CDBG and HOME Program funds and support of submission to the Housing and Urban Development (HUD).
I. BACKGROUND:
The Ci
ty is a member of the Stanislaus Urban County CDBG and HOME Consortium, consisting of Stanislaus County, the City of Ceres, Hughson, Newman, Oakdale, Patterson, Riverbank, and Waterford. Participation in the Consortium enables the County and participating jurisdictions to access funds directly from the federal government for the Community Development Block Grant (CDBG) and Home Investment Partnership (HOME) Programs, rather than compete for funds through the State. The FY 2024-2025 Annual Action Plan covers both the CDBG and HOME Programs. As of the date of this staff report the final HUD allocations for the CDBG and HOME programs have not been released, and once released the funding allocations for all members of the Consortium will be adjusted proportionally. The estimated funding allocations in the draft A nnual Action Plan are based on the Fiscal Year 2023-2024 HUD funding and are only used as projections per HUD guidance.
CDBG
For
Fiscal Year 2024 -2025, it is anticipated that the City of Ceres will be allocated approximately $218,623 under the CDBG Program (see attached allocation chart). The ITEM 9
goals of the Consortium as established under the federal CDBG programs guidelines are as follows:
1)
to provide decent housing
2) to provide a suitable living environment; and
3) to expand economic opportunities.
T
he City of Ceres CDBG allocation for FY 2024- 2025 will be utilized for the continuation of the Morrow Village Project consisting of infrastructure improvements (curb, gutter, sidewalk, and ADA improvements) and CDBG administration.
H
OME
F
or Fiscal Year 2024 -2025, it is anticipated that the City of Ceres will be allocated approximately $143,893 under the Home Investment Partnership (HOME) Program (see attached allocation chart). The goals of the Consortium as established under the federal HOME program guidelines are to further affordable housing activities benefitting low - income households.
II. REASONS FOR RECOMMENDATION:
This action is required by HUD, as the City of Ceres is a member of the Stanislaus Urban County Consortium, for CDBG and HOME funds.
III. FISCAL IMPACTS:
The City will receive approximately $218 ,623 in CBDG funds and $143,893 in HOME funds from the Stanislaus Urban County Consortium allocation, which will be included in the Fiscal Year (FY) 2024-2025 City Budget.
IV. EXISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN:
N/ A
V. POLICY ALT ERNATIVES:
N/ A
VI. INTERDEPARTMENTAL COORDINATION:
N/A
VII. PUBLIC PARTICIPATION:
The Stanislaus County Planning and Community Development Department as the Consortium administrator, has the lead role in the preparation of the Annual Action Plan, which includes the public participation requirement under HUD guidelines.
A series of public meetings were held in each of the Consortium member’s jurisdiction.
For the City of Ceres, the community meeting on the Draft FY 202 4-2025 Annual Action Plan was held on February 13, 2024 and April 3, 2024 at the Ceres Community Center, Upstairs Meeting Room.
ITEM 9
In addition, the Draft FY 2024-2025 Annual Action Plan is now available for public review in the Stanislaus County Planning and Community Development Department, as well as various locations throughout the County, until May 9, 2024. During this time the public is able to submit any verbal or written comments and attend the board of Supervisors meeting regarding the Draft FY 2024-2025 Annual Action Plan.
Any public comments received by members of the public this evening will be forwarded to the County Board of Supervisors for inclusion in the final FY 2024-2025 Annual Action Plan being submitted to HUD by the County.
VIII. ENVIRONMENTAL REVIEW:
N/A
IX. STEPS FOLL OWING APPROVAL:
Staff will forward any public comments and the resolution of concurrence to the County Board of Supervisors upon Council approval, pursuant to HUD guidelines.
Approv
ed by: _________________________
Douglas D. Dunford
City Manager
Attac
hments:
1. Attachment A – Resolution
2. Attachment B – FY 24/25 CDBG Funding Allocations Chart
3. Attachment C – FY 24/25 HOME Funding Allocations Chart ITEM 9
ITEM 9
RESOLUTION NO. 2024-XXX
ADOPTING IN CONCURRENCE WITH STANISLAUS URBAN COUNTY CONSORTIUM THE FISCAL YEAR 2024-2025 ANNUAL ACTION PLAN FOR THE COMMUNITY DEVELOPMENT
BLOCK GRANT AND HOME INVESTMENT PARTNERSHIPS PROGRAMS, AND SUPPORT OF
SUBMISSION TO HOUSING AND URBAN DEVELOPMENT (HUD)
THE CITY COUNCIL
City of Ceres, California
WHEREAS, the Annual Action Plan outlines the goals for utilizing Community Development Block Grant (CDBG) and Home Investment Partnership (HOME) Program funds to assist low -income households and persons in the areas of affordable housing, associated infrastructure, and economic development for the Stanislaus Urban County Consortium; and
WHEREAS, the Stanislaus Urban County Consortium which includes the cities of Ceres, Hughson, Newman, Oakdale, Riverbank, Patterson and Waterford and unincorporated areas of the County, has been granted an estimated total allocation based on Fiscal Year 2023-2024 funding of $2,335,030 in CDBG program funds; and
WHEREAS, the City of Ceres chooses to participate in the entitlement process there by receiving a portion of the CDBG allocation in partnership with the County and participating jurisdictions; and
WHEREAS, the City of Ceres chooses to participate in the Stanislaus HOME consortium and the selection process for HOME funds estimated allocation for Fiscal Year 2024-2025; and
WHEREAS, the City of Ceres estimated allocation of CDBG funds is $218,623 for Fiscal Year 2024-2025 to be used for eligible administration and infrastructure improvements. The City of Ceres estimated allocation of HOME funds is $143,893 for Fiscal Year 2024-2025; and
WHEREAS, the total CDBG and/or HOME funding allocation may be decreased or increased proportionally based on the final HUD allocations yet to be released as of the date of this resolution; and
WHEREAS, on April 22, 2024 the Ceres City Council approved the Annual Action Plan (AAP) with activities eligible under HUD guidelines.
NOW, THEREFORE, BE IT R ESOLVED that the City Council of the City of Ceres hereby approves the Stanislaus Urban County Consortium Annual Action Plan for CDBG and HOME program funds for Fiscal Year 2024-2025.
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on this 22 nd day of April 2024, by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
_________________________________
Javier Lopez, Mayor
ATTEST:
________________________________
Fallon Martin, City Clerk
ATTACHMENT A
ITEM 9
ITEM 9
STANISLAUS URBAN COUNTY
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG)
EMERGENCY SOLUTIONS GRANTS (ESG)
FISCAL YEAR 2024-2025 ANNUAL ACTION PLAN
Estimated FY 2024-2025 CDBG Allocation: $2,335,030
Estimated FY 2024-2025 ESG Allocation: $ 208,317 TOTAL: $2,543,347
The table below shows the estimated CDBG and ESG grant allocation breakdown among Urban County members and special programs based on FY 2023-2024 awarded funding.
ESTIMATED CDBG AND ESG ALLOCATIONS
URBAN COUNTY
MEMBER
ACTIVITIES ADMINISTRATION TOTAL
City of Ceres $213,623 $5,000 $218,623
City of Hughson $158,003 $5,000 $163,003
City of Newman $144,702 $5,000 $149,702
City of Oakdale $163,815 $5,000 $168,815
City of Patterson $176,638 $5,000 $181,638
City of Riverbank $140,064 $5,000 $145,064
City of Waterford $217,545 $5,000 $222,545
Stanislaus County $328,634 $407,006 $735,640
Public Services @14% $325,000 $325,000
Fair Housing $25,000 $25,000
CDBG Total $1,862,691 $472,339 $2,335,030
ESG Total $192,694 $15,623 $208,317
TOTAL ALLOCATION $2,055,385 $487,962 $2,543,347
All allocations will be proportionally increased or decreased from the estimated funding levels to match final allocation amounts.
ATTACHMENT B
ITEM 9
ITEM 9
STANISLAUS HOME CONSORTIUM
HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME)
FISCAL YEAR 2024-2025 ANNUAL ACTION PLAN
Estimated FY 2024-2025 HOME Allocation: $1,708,364
The table below shows the HOME grant allocation breakdown among Stanislaus HOME Consortium members based on the FY 2023-2024 awarded funding.
ESTIMATED HOME ALLOCATIONS*
HOME CONSORTIUM MEMBER ALLOCATION
City of Ceres $143,893
City of Hughson $127,110
City of Newman $135,827
City of Oakdale $139,079
City of Patterson $133,355
City of Riverbank $134,005
City of Turlock $156,123
City of Waterford $127,500
Stanislaus County $184,381
Community Housing Development
Organization (CHDO) Set-aside @ 15%
$256,255
HOME Total $1,537,528
County Administration Total $170,836
TOTAL ALLOCATION $1,708,364
*Please Note- All allocations will be proportionally increased or decreased from the estimated funding levels to match final allocation amounts. These funds shall be allocated to individual Consortium members and will be required to be committed to an approved project within six (6) months from July 1 of each year unless such deadline is extended by the County. An approved project shall be a project included within a HUD certified Annual Action Plan and approved by the County. If there are no approved projects within 6 months, the funding will be made available to the Consortium members for projects through a Request for Proposal (RFP) selection process by the County.
ATTACHMENT C
ITEM 9
ITEM 9
COUNCIL AGENDA REPORT
CITY COUNCIL
Javier Lopez, Mayor
James C
asey, Dist.1
Rosalinda L. Vierra, Dist. 2
Bret Silveira, Dist. 3
Daniel A. Martinez, Dist. 4
MEETING DATE: April 22, 2024
TO:
FR
OM:
CONT
ACT:
SUBJECT:
Mayor and City Council
Douglas D. Dunford, City Manager
David McCann
, Community Service Officer
David
[email protected], (209) 538-5600
Resolution No. 202 4-XXX, Approving a Contract with Motorola Solutions, Inc . for a Citywide Avigilon Card Access System Upgrade, Approving a Budget Amendment , and Authorizing the City Manager to Execute the Agreement
RECOMMENDED COUNCIL ACTION:
Staf
f recommends the City Council authorize the City Manager to enter into an Agreement with Motorola Solutions, Inc. for an upgrade to the City’s Access Control System.
I. BACKGROUND:
The Ci
ty of Ceres has a card access system that has been in service for over 15 years and has long reached end of life. Administration of the card access system is very time consuming on staff. Eash time a new staff member is hired it can take city staff approximately four hours just to set up their card access system to be able to enter city facilities. As City staff must connect to a card access server at each facility to set up the new employee’s access. This is also the same process for staff to have to remove access from an employee or ex -employee. The City currently has 8 facilities with card access installed totaling approximately 87 card readers. The current access cards are very vulnerable to be copied with new RFID scanners that would then allow someone to gain access to restricted areas.
II. REASONS FOR RECOMMENDATION:
A new card access system will allow the City to protect facilities by installing a system with access cards that are not vulnerable to being compromised. The new system will also allow one point of control cutting city staff time down to set up new employee’s access to facilities. The new system will also allow for growth to expand card access to other City facilities as the City continues to grow and as the security needs change.
ITEM 10
Staff is recommending sole source as the system selected not only meets the needs of security, but also as the system connects to the City’s Domain Controller Server to allow Information Technology to easily remove an employee’s access when the need arises to remove computer access. The system also provides real -time access to access logs, longer record history of logs, allows authorized users to control doors, and automatic schedules for door locking and unlocking that adjusts to holidays. The system also will integrate with the Police Department’s long -term plan for a Real -Time Crime Center connected to the cit y’s License Plate Readers, Security Cameras, and Access Control System all on one center platform. The system also does not require ongoing licensing fees, software updates are included, along with training, and technical support.
III. FISCAL IMPACTS:
Staff is requesting $213,488.91 for the card access project upgrade with funds from The American Rescue Plan (ARPA). There would be no ongoing costs to the current system unless additional access points are needed.
IV. EXISTING POLICY / RELATIONSHIP TO THE STRATEGIC PLAN:
Approval of this agreement fulfills the strategic plan for Infrastructure “Ensure that the community has adequate, well-maintained infrastructure (including water, sewer, streets, traffic signals, parks, sidewalks, facilities) that fosters a quality community and supports a strong economy.”, and for Government Operations “Provide quality services to meet community needs, assuring that the City has helpful, well trained, properly equipped and sufficient staff who partners with other public agencies to provide efficient services. ”. As for both of those to be completed City facilities and infrastructure must be protected w ill protecting the staff charged with operating all functions.
V. POLICY ALTERNATIVES:
City Council can choose to direct staff to get bids from other systems or reject the bid.
Requesting staff to get bids from other systems would have a negative effect on the Police Department’s long- term plan to have all critical systems under one platform causing inefficient time on City staff with monitoring of multiple systems. Rejecting the bid would cause staff to continue to use the current system and wasting more staff time to update it along with allowing a security vulnerability to have access cards copied.
VI. INTERDEPARTMENTAL COORDINATION:
The requested card access system has been reviewed and demonstrated to staff from multiple departments including Information Technology, Police Department, Public Works, Human Resources, and the City Manager’s Office. With implementation of the new system all departments would work with Motorola and Telepath on the installation and implantation of the new system.
VII. PUBLIC PARTICIPATION:
N/A
ITEM 10
VIII. ENVIRONMENTAL REVIEW:
N/A
IX. STEPS FOL LOWING APPROVAL:
Following City Council approval, the City Manager shall execute the service agreement with Motorola Solutions, Inc. and the Finance Director shall record the appropriate accounting entries. The City Manager will direct staff to coordinate the project and over see the implementation.
Appr
oved by: ____________________
Douglas D. Dunford
City Manager
Atta
chments:
1. Attachment A – Resolution
2. Atta
chment B – Budget Amendment
3. Attachment C – Avigilon Access Control System Proposal & Contract ITEM 10
ITEM 10
ATTACHMENT A
RESOLUTION NO. 2024-XXX
APPROVING A CONTRACT WITH MOTOROLA SOLUTIONS, INC. FOR
A CITYWIDE AVIGILON CARD ACCESS SYSTEM UPGRADE,
APPROVING A BUDGET AMENDMENT, AND AUTHORIZING THE
CITY MANAGER TO EXECUTE THE AGREEMENT
THE CITY COUNCIL
City of Ceres
WHEREAS, the City of Ceres currently has a card access system that has been in service for over 15 years and has exceeded its lifespan; and
WHEREAS, the current system is very time consuming, taking up to four hours to program for new employees and employees that separate from the City; and
WHEREAS, there are eight facilities with card access systems installed, totaling approximately 87 card readers; and
WHEREAS, in addition, the current system is extremely vulnerable to be copied with new RFID scanners, which would allow unauthorized individuals to potentially gain access to restricted areas; and
WHEREAS, staff is recommending sole sourcing the project to Motorola Solutions, Inc. as the company’s program meets all security needs and is compatible with the City’s Domain Controller Server; and
WHEREAS, the new system provides real-time access to logs, increased historical record logs, and will integrate with the Police Department’s long- term plan for a Real - Time Crime Center that is connected to the City’s License Plate Readers, security cameras, and Access Control System; and
WHEREAS, the system does not require ongoing licensing fees, software updates are included, along with training, and technical support.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Ceres does hereby approve a contract with Motorola Solutions, Inc. for a Citywide Avigilon Card Access System Upgrade, approves a budget amendment, and authorizes the City Manager to execute the agreement.
BE IT FURTHER RESOLVED the Director of Finance is hereby authorized and directed to record the appropriate account entries.
PASSED AND ADOPTED by the Ceres City Council at a regular meeting thereof held on the 22
nd day of April 2024, by the following vote:
ITEM 10
ATTACHMENT A
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAIN: Councilmembers:
________________________________
Javier Lopez, Mayor
ATTEST:
_________________________________
Fallon Martin, City Clerk
ITEM 10
ATTACHMENT B
Appropriations:
Fund Name Fund No. Dept. Object No.
No.
American Rescue Plan Act 219 60 057300 $213,489
$213,489
0 $213,489
Estimated Revenues:
Type
No.
2023 - 2024 Current Estimated Revenue
Total Appropriation
Total Estimated Revenue
Total Estimated Revenue
Budget Amendment No.
Fiscal Year 2023 - 2024
Appropriation Amount
Fund Name Fund No. Object No. Estimated Revenue
Amt.
Requested Appropriation
2023 - 2024 Current Appropriation
Reference Resolution No. 2024 - XXX, dated April 22, 2024 authorizing appropriations for a citywide Avigilon card access system upgrade as follows:
ITEM 10
ITEM 10
The design, technical, and price information furnished with this proposal is proprietary information of Motorola Solutions, Inc. (Motorola). Such information is submitted with the restriction that it is to be used only for the evaluation of the proposal, and is not to be disclosed publicly or in any manner to anyone other than those required to evaluate the proposal, without the express written permission of Motorola Solutions, Inc.
MOTOROLA, MOTO, MOTOROLA SOLUTIONS, and the Stylized M Logo are trademarks or registered trademarks of Motorola Trademark Holdings, LLC and are used under license. All other trademarks are the property of their respective owners. © 2024 Motorola Solutions, Inc. All rights reserved.
Proposal
Ceres PD
Avigilon Access Control System
27 March 2024
ATTACHMENT C
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Table of Contents
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
27 March 2024
David McCann
City of Ceres, CA – Ceres Police Department
2727 3rd St
Ceres, CA 95307
Re: Avigilon Access Control Upgrade Project
Dear Mr. McCann,
Motorola Solutions, Inc. (“Motorola Solutions”) is pleased to have the opportunity to provide the City of Ceres Police Department (“the City”) with our enterprise Access Control systems for a city wide upgrade project. In collaboration with Telepath, Inc., (“Telepath”) the Motorola project team has taken great care to propose a solution that will meet your needs today and tomorrow, with unsurpassed value.
To meet the functional and operational requirements of the City, our solution includes a combination of hardware, software and service, provided through Telepath.
Multi-Site Access Control Upgrade at the City Hall, Community Center, Fire Station 15, Fire Station 18, Fire Station Training, Police Department, Corp Yard and Riverbluff. Upgrade includes new door controller hardware, enclosures, power supplies, and head-end server + licensing. Installation, Testing and Commissioni ng.
This proposal is subject to the Houston-Galveston Area Council (“H-GAC”) agreement entered into between Motorola Solutions and H-GAC dated September 28, 2021, RA05-21 as amended, and the terms of the enclosed H-GAC Master Customer Agreement (“H-GAC MCA”) and its addenda, which operate as an End User Agreement under Article 2 of the H-GAC Contract Special Provisions. This proposal shall remain valid for a period of ninety (90) days from the date of this cover letter. The City may accept the proposal by delivering to Motorola Solutions the H-GAC MCA signed by The City representative(s). Alternatively, Motorola would be pleased to address any concerns the City may have regarding the proposal. Any questions can be directed to your Motorola Solutions Senior Account Manager, Ian Castro (916-796-7000 / [email protected]).
We thank you for the opportunity to provide the City with the “best in class” enterprise Access Control solutions and we hope to strengthen our relationship by implementing this project. Our goal is to help you achieve the best results for communications, collaboration, safety and security in the industry for your County.
Sincerely,
MOTOROLA SOLUTIONS, INC.
Gordon Poole
Area Sales Manager
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Table of Contents
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
Table of Contents
Section 1
System Description ......................................................................................................................... 3
1.1 Overview .............................................................................................................................. 3
1.2 Assumptions and Exclusions ............................................................................................. 6 Section 2
Statement of Work .......................................................................................................................... 9
2.1 Motorola Responsibilities ................................................................................................... 9
2.2 Ceres PD Responsibilities .................................................................................................. 9 Section 3
Service/Warranty ............................................................................................................................. 1 Section 4
Project Schedule ............................................................................................................................. 1 Section 5
System Acceptance ........................................................................................................................ 2 Section 6
Pricing .............................................................................................................................................. 3
6.1 Summary .............................................................................................................................. 3
6.2 Payment Terms .................................................................................................................... 3 Section 7
Terms and Conditions .................................................................................................................... 1
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
Section 1
System Description
1.1 Overview
City of Ceres Access Control Upgrade
Motorola Solutions and Telepath are proposing an overhaul on the city-wide access control system that will upgrade all readers to HID Signo Multi Readers and integrate them to a centralized Avigilon ACM system. MSI and Telepath shall provide the installation of these upgraded readers at the following locations:
City Hall (8 Doors)
Community Center (9 Doors)
Fire Station 15 (3 Doors)
Fire Station 18 (3 Doors)
First Station Training (3 Doors)
Police Department (51 Doors)
Corp Yard (1 Door)
Riverbluff (9 Doors)
This access control upgrade will include the following equipment:
Qty Item
Headend
1 Access Control Manager Enterprise Plus 6
5 Additional 16 Doors Expansion Software Licenses for Avigilon Access Control Manager Enterprise
Riverbluff
1 Sixteen Door Mercury Dual Voltage Integrated Power System 1 Intelligent Controller
4 HID® Mercury™ MR52-S3B Controller
9 Signo20
PD
3 Additional 16 Doors Expansion Software Licenses for Avigilon Access Control Manager Enterprise 3 Sixteen Door Mercury Dual Voltage Integrated Power System ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
Qty Item
1 Eight Door Mercury Dual Voltage Integrated Power System 2 Intelligent Controller
25 HID® Mercury™ MR52-S3B Controller
4 Signo20k
47 Signo20
Fire Training
1 Four Door Mercury Dual Voltage Integrated Power System 1 Intelligent Controller
1 HID® Mercury™ MR52-S3B Controller
2 Signo20k
1 Signo20
Fire St 18
1 Four Door Mercury Dual Voltage Integrated Power System 1 Intelligent Controller
1 HID® Mercury™ MR52-S3B Controller
1 Signo20k
2 Signo20
Fire St 15
1 Four Door Mercury Dual Voltage Integrated Power System 1 Intelligent Controller
1 HID® Mercury™ MR52-S3B Controller
2 Signo20k
1 Signo20
Corp Yard
1 Two Door Mercury Dual Voltage Integrated Power System 1 Intelligent Controller
1 Signo20
Community Center
1 Sixteen Door Mercury Dual Voltage Integrated Power System ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
Qty Item
1 Intelligent Controller
4 HID® Mercury™ MR52-S3B Controller
7 Signo20
City Hall Annex
1 Four Door Mercury Dual Voltage Integrated Power System 1 Intelligent Controller
1 HID® Mercury™ MR52-S3B Controller
4 Signo20
City Hall
1 Four Door Mercury Dual Voltage Integrated Power System 1 Intelligent Controller
1 HID® Mercury™ MR52-S3B Controller
1 Signo20
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
1.2 Assumptions and Exclusions
Motorola Solutions has made several assumptions in preparing this proposal, which are noted below.
Motorola Solutions will need to seek alternate solutions in the case of invalid assumptions. This proposal is based on the customer provided information that all access control installation points quoted for “Remove and Replace” have currently functioning access control mechanisms.
Nonfunctioning access control for the above described doors will result in additional man hours to remediate function for final install. As such, this proposal does not include the work to remediate nonfunctioning access control hardware slated for re-use, including, but not limited to:
- Locks
- Cabling
- Networking
- Power
- Magnetic Strikes
- Push Buttons
- Door Hardware
- Crash Bars
Work to be done during regular business hours, Monday to Friday excluding holidays, weekends and overtime.
Project Bonding is not included.
Performance Bond is not included.
Union labor is not included.
Prevailing wages are not included.
All local permits and fees are not included.
All Door(s) and associated door hardware are not included, unless specifically identified in the scope of work and/or equipment list.
Modification of any new or existing fire doors is not included. Additional charges may apply if Motorola is requested to perform such work.
Proper door alignment and mechanical operation is the responsibility of others. Motorola representatives will provide an initial four (4) hours of system training to instruct your personnel on the operation of your system. Additional or repeat training sessions are available at an additional cost, and will be invoiced on an hourly basis plus travel and expenses. Cardholder credentials are to be provided by Customer. Any wireless panic buttons designed to elevate threat levels are not monitored devices and have limited range. It is the responsibility of the customer to monitor the range and battery life for these devices. Motorola is not responsible for failure of threat level elevation due to use of these products.
Connections between access control systems into fire/life safety and/or intrusion/alarm systems are not included.
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
No elevator control troubleshooting is included with this proposal, including the motion sensor interaction inside the elevator car. Camera replacements assume intact existing cabling infrastructure and functioning power supplies. If upon investigation, we find cabling or power issues, further labor and equipment may be quoted to complete replacement. All 120v AC Power necessary for the proper functioning of the system described above will be supplied by customer or others at all necessary locations. All Network Connections and Programming necessary for the complete system functionality to be provided by customer.
All cabling, pathway, raceway, junction boxes and infrastructure for the access control hardware to be provided by others, including category cable to camera locations, and appropriate cabling to access control points for the door contact switch, request to exit motion device, credential reader and power cabling for locking door hardware.
All existing cabling infrastructure is assumed to be intact and to be reused, additional cabling costs may apply if infrastructure is found to be faulty. Cabling Paths are to be provided by Customer, Coring or additional fees may apply if a pathway is not available.
All exposed concrete mounting surface locations will have embedded boxes in the concrete with conduit back to accessible location (MPOE, IDF, riser closet, etc). Security Systems UPS is not to be shared with other systems. Patching and painting is not included, unless damage is caused by Telepath. Intercom, camera and keypad reader replacements may require painting and patching following the installation. The customer network has sufficient bandwidth, latency and capacity to accommodate the new Access Control system. Any changes needed to customer’s network will be the responsibility of customer or may result in a change order.
Motorola Solutions is not responsible for the condition or functionality of existing equipment or new equipment provided by others. If existing equipment or equipment provided by others is found to be defective, a cost for repair or replacement will be provided. Motorola does not warranty any existing hardware or workmanship or hardware provided by others.
Components of the security system will not be "turned on" or made operable for the security staff until Motorola/Telepath technicians have determined that the system is in good working order.
Client to make available adequate mounting space for all head end devices. Mounting space requirements will be provided to Client upon award.
Any High voltage (greater than 48 vac) requirements are not quoted, unless specifically identified in the scope of work and/or the equipment list. All required installation documents and operational manuals will be provided upon request. This system proposal is intended to provide the client partial protection of the designated premises. Its design should be understood to represent a compromise between the costs, understood scope of work, and customer feedback. Accordingly, such a system may not provide ample protection from all possible threats, and Motorola shall not be responsible in such an event. Should you desire a level of protection beyond the scope of this proposal, Motorola and it’s local representing entity would be pleased to discuss and present alternate possibilities.
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
Motorola assumes that there are no hazardous materials or asbestos at the worksite. Cost of removal or abatement is excluded.
Customer will grant access as needed to any areas required to install equipment or software, including secure areas if necessary.
Motorola and Telepath are not responsible for delays outside of our control. This quotation assumes a standard installation schedule. Any expedited deliveries or installations are not quoted, unless specifically identified by Telepath in this proposal. Telepath reserves the right to collect a minimum charge of $250 for any appointment missed, changed, or cancelled without 24 hour notice. Additional cancellation fee may be applied depending on the nature of the requested service. Idle time incurred by Telepath employees and their subcontractors due to escorts, clearances, inability to enter workspace, and other factors beyond our control, will be invoiced at our current labor rates. This proposal includes travel to and from the site to perform our stated scope of work. Additional or duplicate site visits required due to factors beyond our control, will be invoiced at our current labor rates.
Client to coordinate with local Telepath staff to provide safe and timely right- of-passage in the work area during cable run and system installation
Client to provide and coordinate 110 VAC electrical service where needed. Client is to provide necessary static IP Addresses, POE and non-POE network ports, switching equipment to support the video surveillance, access control and Intercom systems, unless explicitly included in the proposal description.
A 20% restocking fee will apply to all returned items.
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
Section 2
Statement of Work
The document delineates the general responsibilities between Motorola and Ceres Police Department as agreed to by contract.
2.1 Motorola Responsibilities
Motorola’s general responsibilities include the following:
Perform the installation of the Motorola-supplied equipment described above. Schedule the implementation in agreement with Ceres PD. Coordinate the activities of all Motorola subcontractors under this contract. Provi de Ceres PD with the appropriate system interconnect specifications. Administer safe work procedures for installation.
Test existing cabling and map out cable locations and pathways. System Cutover and Testing.
Execute Final System Acceptance.
2.2 Ceres PD Responsibilities
Ceres PD will assume responsibility for the installation and performance of all other equipment and work necessary for completion of this project that is not provided by Motorola. General responsibilities include the following:
Provide all buildings, equipment shelters, and towers required for system installation. Customer to provide access to all work areas.
Ensure communications sites meet space, grounding, power, and connectivity requirements for the installation of all equipment.
Provide power and backup power, as required.
Provide ISP connectivity and network drops, as required. Obtain all licensing, site access, or permitting required for project implementation. Provide required system interconnections.
Ceres PD will provide a dedicated delivery point, such as a warehouse, for receipt, inventory, and storage of equipment prior to delivery to the site(s).
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Extract data from the existing Access Control system, including credential/card holder records, access control schedules and permissions.
Configure ACC and ACM access and headend provisioning. Coordinate the activities of all Ceres PD vendors or other contractors. Execute Final System Acceptance.
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Use or disclosure of this proposal is subject to the restrictions on the cover page.
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Section 3
Service/Warranty
Newly proposed Avigilon equipment will be covered by warranty terms and conditions are described in detail at this website: https://www.avigilon.com/support/warranty/limited-warranty.
Motorola Solutions and Telepath warrant that the work performed will be of sound engineering practice and professional standards.
Installation Warranty and Post-warranty system maintenance and on-call support services are not included with this proposal. A comprehensive maintenance and support offer can be provided in the future, at the request of the City.
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Section 4
Project Schedule
Major Milestone Schedule (All times are estimated and not guaranteed) Contract Signature TBD
Project Design Review To be scheduled upon successful execution of the contract Equipment Order To be placed after Design Review
Shipment of Equipment ~30 days after order, TBD
Workforce Mobilization Within 30 days of receipt of equipment and the City has all site conditions ready for installation.
Substantial Completion ~120 days after mobilization
System Final Acceptance ~45 days of Substantial Completion Important Notes
Due to the nature of this project, work of major milestones may overlap. For instance, cabling and infrastructure work may be simultaneously in progress while awaiting delivery of equipment.
The above schedule shows estimates. The scope of the project dictates that timelines may shift due to site conditions/readiness and estimated delivery of equipment based on recent supply chain constraints.
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Section 5
System Acceptance
This project will be considered complete and fully invoice able, to include any and all remaining retainage after the substantial completion phase/milestone has been submitted, testing has been completed, no outstanding punch list items remain and that the new Motorola/Avigilon system is fully functional per the Statement of Work in this proposal.
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Section 6
Pricing
6.1 Summary
Motorola Solutions is pleased to provide the following equipment and implementation services to Ceres PD:
Equipment and Services Pricing
Access Control Equipment $103,593
Access Control Installation $101,220
HGAC Contract Rate Included
Subtotal $204,813
Estimated Taxes (8.375% of Equipment only) $8675.91
Grand Total $213,488.91
*Taxes are estimated
6.2 Payment Terms
Customer will make payments to Motorola within thirty (30) days after the date of each invoice.
Customer will make payments when due in the form of a wire transfer, check, or cashier’s check from a U.S. financial institution. Motorola reserves the right to make partial shipments of equipment and invoice for partial shipment. Overdue invoices will bear simple interest at the maximum allowable rate.
Motorola Solutions suggests using the following major milestones of the project for financial billing.
1. Receipt of Order/Contract Signing (50%).
2. Final system acceptance (50 %).
Motorola reserves the right to make partial shipments of equipment and to request payment upon shipment of such equipment. In addition, Motorola reserves the right to invoice for installations completed on a site-by-site basis, when applicable.
Any adjustments in price will be done in accordance to the procedures outlined in Article 23 of the HGAC Contract No. RA05-21.
INFLATION ADJUSTMENT. For multi-year agreements, at the end of the first year of the Agreement and each year thereafter, a CPI percentage change calculation shall be performed using the U.S.
Department of Labor, Consumer Price Index, all Items, Unadjusted Urban Areas (CPI-U). Should the annual inflation rate increase greater than 3% during the previous year, Motorola shall have the right to ITEM 10
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increase all future maintenance prices by the CPI increase amount exceeding 3%. All items, not seasonally adjusted shall be used as the measure of CPI for this price adjustment. Measurement will take place once the annual average for the new year has been posted by the Bureau of Labor Statistics. For purposes of illustration, if in year 5 the CPI reported an increase of 8%, Motorola may increase the Year 6 price by 5% (8%-3% base).
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Section 7
Terms and Conditions
Motorola has provided the contractual documentation on the following pages.
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H-GAC Motorola Solutions Customer Agreement
This Motorola Solutions Customer Agreement (the “ MCA”) is entered into between Motorola Solutions, Inc., with offices at 500 W. Monroe Street, Suite 4400, Chicago, IL 60661 (“Motorola”) and the entity set forth in the signature block below (“ Customer”). Motorola and Customer will each be referred to herein as a “ Party” and collectively as the “ Parties”. This Agreement (as defined below) is effective as of the date of the last signature (the “ Effective Date”).
WHEREAS, the Customer desires to purchase communications products and services; and WHEREAS, Motorola desires to sell communications products and services to Customer; and WHEREAS, Houston-Galveston Area Council (“H -GAC”), acting as the agent for various local governmental entities who are “End Users” under interlocal agreements (including the Customer) has solicited proposals for radio communications equipment and conducted discussions with Motorola concerning its proposal and, where applicable, in accordance with the competitive procurement procedures of Texas law; and
WHEREAS, H-GAC and Motorola entered into that certain Contract No. RA05-21 executed on September 28, 2021, (the “H -GAC Contract”), which provided that End Users may purchase communications products and services from Motorola pursuant to certain terms contained therein;
WHEREAS, pursuant to Articles 2 and 6 of the Special Provisions of the H-GAC Contract, Motorola and Customer now wish to enter into this Agreement to delineate the specific terms of the purchase of communications products and services from Motorola by the Customer. For good and valuable consideration, the Parties agree as follows:
1. Agreement.
1.1. Scope; Agreement Documents. This MCA governs Customer’s purchase of Products (as defined below) and Services (as defined below) from Motorola. The H-GAC Contract, as amended, is attached hereto as Exhibit A and is incorporated into this Agreement in full by this reference. Additional terms and conditions applicable to specific Products and Services are set forth in one or more addenda attached to this MCA (each an “ Addendum”, and collectively the “Addenda”). In addition, the Parties may agree upon solution descriptions, equipment lists, statements of work, schedules, technical specifications, and other ordering documents setting forth the Products and Services to be purchased by Customer and provided by Motorola and additional rights and obligations of the Parties (the “ Ordering Documents ”). To the extent required by applicable procurement law, a proposal submitted by Motorola in response to a competitive procurement process will be included within the meaning of the term Ordering Documents. This MCA, its exhibit, the Addenda, and any Ordering Documents collectively form the Parties’ “Agreement”.
1.2. Order of Precedence . In interpreting this Agreement and resolving any ambiguities, Exhibit A shall prevail over this entire Agreement in the event of a conflict. Each Addendum will control with respect to conflicting terms in the MCA, but only as applicable to the Products and Services described in such Addendum. Each Ordering Document will control with respect to conflicting terms in the MCA or any Addenda, but only as applicable to the Products and Services described on such Ordering Document.
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2. Products and Services.
2.1. Products. Motorola will (a) sell hardware provided by Motorola (“ Equipment”), (b) license software which is either preinstalled on Equipment or installed on Customer-Provided Equipment (as defined below) and licensed to Customer by Motorola for a perpetual or other defined license term (“ Licensed Software”), and (c) license cloud -based software as a service products and other software which is either preinstalled on Equipment or installed on Customer- Provided Equipment, but licensed to Customer by Motorola on a subscription basis (“Subscription Software ”) to Customer, to the extent each is set forth in an Ordering Document, for Customer’s own use in accordance with this Agreement. The Equipment, Licensed Software, and Subscription Software shall collectively be referred to herein as “Products”, or individually as a “ Product”. At any time during the Term (as defined below), Motorola may substitute any Products at no cost to Customer, if the substitute is substantially similar to the Products set forth in the applicable Ordering Documents.
2.2. Services.
2.2.1. Motorola will provide services related to purchased Products (“ Services”), to the extent set forth in an Ordering Document.
2.2.2. Integration Services; Maintenance and Support Services . If specified in an Ordering Document, Motorola will provide, for the term of such Ordering Document, (a) design, deployment, and integration Services in order to design, install, set up, configure, and/or integrate the applicable Products at the applicable locations (“ Sites”), agreed upon by the Parties (“ Integration Services”), or (b) break/fix maintenance, technical support, or other Services (such as software integration Services) (“Maintenance and Support Services”), each as further described in the applicable statement of work. Maintenance and Support Services and Integration Services will each be considered “Services”, as defined above.
2.2.3. Service Ordering Documents . The Fees for Services will be set forth in an Ordering Document and any applicable project schedules. A Customer point of contact will be set forth in the applicable statement of work for the Services. For purposes of clarity, each statement of work will be incorporated into, and form an integral part of, the Agreement.
2.2.4. Service Completion . Unless otherwise specified in the applicable Ordering Document, Services described in an Ordering Document will be deemed complete upon Motorola’s performance of all Services listed in such Ordering Document (“ Service Completion Date ”); provided, however, that Maintenance and Support Services may be offered on an ongoing basis during a given Ordering Document term, in which case such Maintenance and Support Services will conclude upon the expiration or termination of such Ordering Document.
2.3. Non-Preclusion. If, in connection with the Products and Services provided under this Agreement, Motorola makes recommendations, including a recommendation to purchase other products or services, nothing in this Agreement precludes Motorola from participating in a future competitive bidding process or otherwise offering or selling the recommended products or other services to Customer. Customer represents that this paragraph does not violate its procurement standards or other laws, regulations, or policies.
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2.4. Customer Obligations . Customer will ensure that information Customer provides to Motorola in connection with receipt of Products and Services are accurate and complete in all material respects. Customer will make timely decisions and obtain any required management approvals that are reasonably necessary for Motorola to provide the Products and Services and perform its other duties under this Agreement. Unless the applicable Ordering Document states otherwise, Motorola may rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any assumptions or Customer information, decisions, or approvals described in this Section. If any assumptions in the Ordering Documents or information provided by Customer prove to be incorrect, or if Customer fails to perform any of its obligations under this Agreement, Motorola’s ability to perform its obligations may be impacted and changes to the Agreement, including the scope, Fees, and performance schedule may be required.
2.5. Documentation. Products and Services may be delivered with documentation for the Equipment, software Products, or data that specifies technical and performance features, capabilities, users, or operation, including training manuals, and other deliverables, such as reports, specifications, designs, plans, drawings, analytics, or other information (collectively, “Documentation”). Documentation is and will be owned by Motorola, unless otherwise expressly agreed in an Addendum or Ordering Document that certain Documentation will be owned by Customer. Motorola hereby grants Customer a limited, royalty-free, worldwide, non- exclusive license to use the Documentation solely for its internal business purposes in connection with the Products and Services.
2.6. Motorola Tools and Equipment . As part of delivering the Products and Services, Motorola may provide certain tools, equipment, models, and other materials of its own. Such tools and equipment will remain the sole property of Motorola unless they are to be purchased by Customer as Products and are explicitly listed on an Ordering Document. The tools and equipment may be held by Customer for Motorola’s use without charge and may be removed from Customer’s premises by Motorola at any time without restriction. Customer will safeguard all tools and equi pment while in Customer’s custody or control, and be liable for any loss or damage. Upon the expiration or earlier termination of this Agreement, Customer, at its expense, will return to Motorola all tools and equipment in its possession or control.
2.7. Authorized Users . Customer will ensure its employees and Authorized Users comply with the terms of this Agreement and will be liable for all acts and omissions of its employees and Authorized Users. Customer is responsible for the secure management of Authorized Users’ names, passwords and login credentials for access to Products and Services. “Authorized Users” are Customer’s employees, full -time contractors engaged for the purpose of supporting the Products and Services that are not competitors of Motorola, and the entities (if any) specified in an Ordering Document or otherwise approved by Motorola in writing (email from an authorized Motorola signatory accepted), which may include affiliates or other Customer agencies.
2.8. Export Control . Customer, its employees, and any other Authorized Users will not access or use the Products and Services in any jurisdiction in which the provision of such Products and Services is prohibited under applicable laws or regulations (a “ Prohibited Jurisdiction”), and Customer will n ot provide access to the Products and Services to any government, entity, or individual located in a Prohibited Jurisdiction. Customer represents and warrants that (a) it and its Authorized Users are not named on any U.S. government list of persons prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) it and its Authorized Users are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) Customer will not permit its Authorized Users to access or use the Products or Services in ITEM 10
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violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) Customer and its Authorized Users will comply with all applicable laws regarding the transmission of technical data exported from the U.S. and the country in which Customer, its employees, and the Authorized Users are located.
2.9. Change Orders. Unless a different change control process is agreed upon in writing by the Parties, a Party may request changes to an Addendum or an Ordering Document by submitting a change order to the other Party (each, a “ Change Order”). If a requested change in a Change Order causes an increase or decrease in the Products or Services, the Parties by means of the Change Order will make appropriate adjustments to the Fees, project schedule, or other matters. Change Orders are effective and binding on the Parties only upon execution of the Change Order by an authorized representative of both Parties.
3. Term and Termination.
3.1. Term. The term of this MCA (“ Term”) will commence on the Effective Date and continue until six (6) months after the later of (a) the termination, expiration, or discontinuance of services under the last Ordering Document in effect, or (b) the expiration of all applicable warranty periods, unless the MCA is earlier terminated as set forth herein. The applicable Addendum or Ordering Document will set forth the term for the Products and Services governed thereby.
3.2. Termination. Either Party may terminate the Agreement or the applicable Addendum or Ordering Document if the other Party breaches a material obligation under the Agreement and does not cure such breach within thirty (30) days after receipt of notice of the breach or fails to produce a cure plan within such period of time. Each Addendum and Ordering Document may be separately terminable as set forth therein.
3.3. Suspension of Services . Motorola may terminate or suspend any Products or Services under an Ordering Document if Motorola determines: (a) the related Product license has expired or has terminated for any reason; (b) the applicable Product is being used on a hardware platform, operating system, or version not approved by Motorola; (c) Customer fails to make any payments when due; or (d) Customer fails to comply with any of its other obligations or otherwise delays Motorola’s ability to perform.
3.4. Effect of Termination or Expiration. Upon termination for any reason or expiration of this Agreement, an Addendum, or an Ordering Document, Customer and the Authorized Users will return or destr oy (at Motorola’s option) all Motorola Materials and Motorola’s Confidential Information in their possession or control and, as applicable, provide proof of such destruction, except that Equipment purchased by Customer should not be returned. If Customer has any outstanding payment obligations under this Agreement, Motorola may accelerate and declare all such obligations of Customer immediately due and payable by Customer. Notwithstanding the reason for termination or expiration, Customer must pay Motorola for Products and Services already delivered. Customer has a duty to mitigate any damages under this Agreement, including in the event of default by Motorola and Customer’s termination of this Agreement.
4. Payment and Invoicing.
4.1. Fees. Fees and charges applica ble to the Products and Services (the “ Fees”) will be as set forth in the applicable Addendum or Ordering Document, and such Fees may be changed by Motorola at any time, except that Motorola will not change the Fees for Products and Services purchased by Customer during the term of an active Ordering Document or during a Subscription Term (as defined and further described in the applicable Addendum). The fees and ITEM 10
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charges include the H-GAC administrative fee. Motorola will pay H- GAC’s administrative fee in accordance with the payment terms of the H-GAC Contract. Changes in the scope of Services described in an Ordering Document may require an adjustment to the Fees due under such Ordering Document. If a specific invoicing or payment schedule is set forth in the applicable Addendum or Ordering Document, such schedule will apply solely with respect to such Addendum or Ordering Document. Unless otherwise specified in the applicable Ordering Document, the Fees for any Services exclude expenses associated with unusual and costly Site access requirements (e.g., if Site access requires a helicopter or other equipment), and Customer will reimburse Motorola for these or other expenses incurred by Motorola in connection with the Services.
4.2. Taxes. The Fees do not include any excise, sales, lease, use, property, or other taxes, assessments, duties, or regulatory charges or contribution requirements (collectively, “Taxes”), all of which will be paid by Customer, except as exempt by law, unless otherwise specified in an Ordering Document. If Motorola is required to pay any Taxes, Customer will reimburse Motorola for such Taxes (including any interest and penalties) within thirty (30) days after Customer’s receipt of an invoice therefore. Customer will be solely responsible for reporting the Products for personal property tax purposes, and Motorola will be solely responsible for reporting taxes on its income and net worth.
4.3. Invoicing. Motorola will invoice Customer at the frequency set forth in the applicable Addendum or Ordering Document, and Customer will pay all invoices within thirty (30) days of the invoice date or as otherwise specified in the applicable Addendum or Ordering Document.
Late payments will be subject to interest charges at the maximum rate permitted by law, commencing upon the due date. Motorola may invoice electronically via email, and Customer agrees to receive invoices via email at the email address set forth in an Ordering Document.
Customer acknowledges and agrees that a purchase order or other notice to proceed is not required for payment for Products or Services.
5. Sites; Customer-Provided Equipment; Non-Motorola Content.
5.1. Access to Sites . Customer will be responsible for providing all necessary permits, licenses, and other approvals necessary for the installation and use of the Products and the performance of the Services at each applicable Site, including for Motorola to perform its obligations hereunder, and fo r facilitating Motorola’s access to the Sites. No waivers of liability will be imposed on Motorola or its subcontractors by Customer or others at Customer facilities or other Sites, but if and to the extent any such waivers are imposed, the Parties agree such waivers are void.
5.2. Site Conditions . Customer will ensure that (a) all Sites are safe and secure, (b) Site conditions meet all applicable industry and legal standards (including standards promulgated by OSHA or other governmental or regulatory bodies), (c) to the extent applicable, Sites have adequate physical space, air conditioning, and other environmental conditions, electrical power outlets, distribution, equipment, connections, and telephone or other communication lines (including modem access and interfacing networking capabilities), and (d) Sites are suitable for the installation, use, and maintenance of the Products and Services. 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.
5.3. Site Issues . Motorola will have the right at any time to inspect the Sites and advise Customer of any deficiencies or non-conformities with the requirements of this Section 5 – Sites; Customer-Provided Equipment; Non-Motorola Content . If Motorola or Customer ITEM 10
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identifies any deficiencies or non-conformities, Customer will promptly remediate such issues or the Parties will select a replacement Site. If a Party determines that a Site identified in an Ordering Document is not acceptable or desired, the Parties will cooperate to investigate the conditions and select a replacement Site or otherwise adjust the installation plans and specifications as necessary. A change in Site or adjustment to the installation plans and specifications may cause a change in the Fees or performance schedule under the applicable Ordering Document.
5.4. Customer-Provided Equipment. Certain components, including equipment and software, not provided by Motorola may be required for use of the Products and Services (“ Customer- Provided Equipment ”). Customer will be responsible, at its sole cost and expense, for providing and maintaining the Customer-Provided Equipment in good working order. Customer represents and warrants that it has all rights in Customer-Provided Equipment to permit Motorola to access and use the applicable Customer-Provided Equipment to provide the Products and Services under this Agreement, and such access and use will not violate any laws or infringe any third-party rights (including intellectual property rights). Customer (and not Motorola) will be fully liable for Customer-Provided Equipment, and Customer will immediately notify Motorola of any Customer-Provided Equipment damage, loss, change, or theft that may impact Motorola’s ability to provide the Products and Services under this Agreement, and Customer acknowledges that any such events may cause a change in the Fees or performance schedule under the applicable Ordering Document.
5.5. Non-Motorola Content. In certain instances, Customer may be permitted to access, use, or integrate Customer or third-party software, services, hardware, content, and data that is not provided by Motorola (collectively, “ Non-Motorola Content”) with or through the Products and Services. If Customer accesses, uses, or integrates any Non-Motorola Content with the Products or Services, Customer will first obtain all necessary rights and licenses to permit Customer’s and its Authorized Users’ use of the Non -Motorola Content in connection with the Products and Services. Customer will also obtain the necessary rights for Motorola to use such Non-Motorola Content in connection with providing the Products and Services, including the right for Motorola to access, store, and process such Non-Motorola Content (e.g., in connection with Subscription Software), and to otherwise enable interoperation with the Products and Services. Customer represents and warrants that it will obtain the foregoing rights and licenses prior to accessing, using, or integrating the applicable Non-Motorola Content with the Products and Services, and that Customer and its Authorized Users will comply with any terms and conditions applicable to such Non-Motorola Content. If any Non-Motorola Content require access to Customer Data (as defined below), Customer hereby authorizes Motorola to allow the provider of such Non-Motorola Content to access Customer Data, in connection with the interoperation of such Non-Motorola Content with the Products and Services. Customer acknowledges and agrees that Motorola is not responsible for, and makes no representations or warranties with respect to, the Non-Motorola Content (including any disclosure, modification, or deletion of Customer Data resulting from use of Non-Motorola Content or failure to properly interoperate with the Products and Services). If Customer receives notice that any Non-Motorola Content must be removed, modified, or disabled within the Products or Services, Customer will promptly do so. Motorola will have the right to disable or remove Non-Motorola Content if Motorola believes a violation of law, third- party rights, or Motorola’s policies is likely to occur, or if such Non-Motorola Content poses or may pose a security or other risk or adverse impact to the Products or Services, Motorola, Motorola’s systems, or any third party (including other Motorola customers). Motorola may provide certain Non-Motorola Content as an authorized sales representative of a third party as set out in an Ordering Document. As an authorized sales representative, the third party’s terms and conditions, as set forth in the Ordering Document, will ITEM 10
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apply to any such sales. Any orders for such Non-Motorola Content will be filled by the third party. Nothing in this Section will limit the exclusions set forth in Section 7.2 – Intellectual Property Infringement.
5.6. End User Licenses. Notwithstanding any provision to the contrary in the Agreement, certain Non-Motorola Content software are governed by a separate license, EULA, or other agreement, including terms governing third-party equipment or software, such as open source software, included in the Products and Services. Customer will comply, and ensure its Authorized Users comply, with any such additional terms applicable to third-party equipment or software. If provided for in the separate third party license, Customer may have a right to receive source code for such software; a copy of such source code may be obtained free of charge by contacting Motorola.
6. Representations and Warranties.
6.1. Mutual Representations and Warranties . Each Party represents and warrants to the other Party that (a) it has the right to enter into the Agreement and perform its obligations hereunder, and (b) the Agreement will be binding on such Party.
6.2. Motorola Warranties . Subject to the disclaimers and exclusions below, Motorola represents and warrants that (a) Services will be provided in a good and workmanlike manner and will conform in all material respects to the descriptions in the applicable Ordering Document; and (b) for a period of ninety (90) days commencing upon the Service Completion Date for one-time Services, the Services will be free of material defects in materials and workmanship. Other than as set forth in subsection (a) above, recurring Services are not warranted but rather will be subject to the requirements of the applicable Addendum or Ordering Document. Motorola provides other express warranties for Motorola-manufactured Equipment, Motorola-owned software Products, and certain Services. Such express warranties are included in the applicable Addendum or Ordering Document. Such representations and warranties will apply only to the applicable Product or Service that is the subject of such Addendum or Ordering Document.
6.3. Warranty Claims; Remedies. To assert a warranty claim, Customer must notify Motorola in writing of the claim prior to the expiration of any warranty period set forth in this MCA or the applicable Addendum or Ordering Document. Unless a different remedy is otherwise expressly set forth for a particular warranty under an Addendum, upon receipt of such claim, Motorola will investigate the claim and use commercially reasonable efforts to repair or replace any confirmed materially non-conforming Product or re-perform any non-conforming Service, at its option.
Such remedies are Customer’s sole and exclusive remedies for Motorola’s breach of a warranty. Motorola’s warranties are extended by Motorola to Customer only, and are not assignable or transferrable.
6.4. Pass-Through Warranties . Notwithstanding any provision of this Agreement to the contrary, Motorola will have no liability for third-party software or hardware provided by Motorola; provided, however, that to the extent offered by third-party providers of software or hardware and to the extent permitted by law, Motorola will pass through express warranties provided by such third parties.
6.5. WARRANTY DISCLAIMER . EXCEPT FOR THE EXPRESS AND PASS THROUGH
WARRANTIES IN THIS AGREEMENT, PRODUCTS AND SERVICES PURCHASED HEREUNDER ARE PROVIDED “AS IS” AND WITH ALL FAULTS. WARRANTIES SET FORTH
IN THE AGREEMENT ARE THE COMPLETE WARRANTIES FOR THE PRODUCTS AND ITEM 10
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SERVICES AND MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND QUALITY. MOTOROLA DOES NOT
REPRESENT OR WARRANT THAT USE OF THE PRODUCTS AND SERVICES WILL BE
UNINTERRUPTED, ERROR-FREE, OR FREE OF SECURITY VULNERABILITIES, OR THAT THEY WILL MEET CUSTOMER’S PARTICULAR REQUIREMENTS.
7. Indemnification.
7.1. General Indemnity. Motorola will defend, indemnify, and hold Customer harmless from and against any and all damages, losses, liabilities, and expenses (including reasonable fees and expenses of attorneys) arising from any actual third-party claim, demand, action, or proceeding (“ Claim”) for personal injury, death, or direct damage to tangible property to the extent caused by Motorola’s negligence, gross negligence or willful misconduct while performing its duties under an Ordering Document or an Addendum, except to the extent the claim arises from Customer’s negligence or willful misconduct. Motorola’s duties under this Section 7.1 – General Indemnity are conditioned upon: (a) Customer promptly notifying Motorola in writing of the Claim; (b) Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and (c) Customer cooperating with Motorola and, if requested by Motorola, providing reasonable assistance in the defense of the Claim.
7.2. Intellectual Property Infringement. Motorola will defend Customer against any third-party claim alleging that a Motorola- developed or manufactured Product or Service (the “ Infringing Product”) directly infringes a United States patent or copyright (“ Infringement Claim ”), and Motorola will pay all damages finally awarded against Customer by a court of competent jurisdiction for an Infringement Claim, or agreed to in writing by Motorola in settlement of an Infringement Claim. Motorola’s duties under this Section 7.2 – Intellectual Property Infringement are conditioned upon: (a) Customer promptly notifying Motorola in writing of the Infringement Claim; (b) Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and (c) Customer cooperating with Motorola and, if requested by Motorola, providing reasonable assistance in the defense of the Infringement Claim.
7.2.1. If an Infringement Claim occurs, or in Motorola’s opinion is likely to occur, Motorola may at its option and expense: (a) procure for Customer the right to continue using the Infringing Product; (b) replace or modify the Infringing Product so that it becomes non-infringing; or (c) grant Customer (i) a pro-rated refund of any amounts pre-paid for the Infringing Product (if the Infringing Product is a software Product, i.e., Licensed Software or Subscription Software) or (ii) a credit for the Infringing Product, less a reasonable charge for depreciation (if the Infringing Product is Equipment, including Equipment with embedded software).
7.2.2. In addition to the other damages disclaimed under this Agreement, Motorola will have no duty to defend or indemnify Customer for any Infringement Claim that arises from or is based upon: (a) Customer Data, Customer-Provided Equipment, Non-Motorola Content, or third-party equipment, hardware, software, data, or other third-party materials; (b) the combination of the Product or Service with any products or materials not provided by Motorola; (c) a Product or Service designed, modified, or manufactured in accordance with Customer’s designs, specifications, guidelines or instructions; (d) a modification of the Product or Service by a party other than Motorola; (e) use of the Product or Service in a ITEM 10
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manner for which the Product or Service was not designed or that is inconsistent with the terms of this Agreement; or (f) the failure by Customer to use or install an update to the Product or Service that is intended to correct the claimed infringement. In no event will Motorola’s liability resulting from an Infringement Claim extend in any way to any payments due on a royalty basis, other than a reasonable royalty based upon revenue derived by Motorola from Customer from sales or license of the Infringing Product.
7.2.3. This Section 7.2 – Intellectual Property Infringement provides Customer’s sole and exclusiv e remedies and Motorola’s entire liability in the event of an Infringement Claim. For clarity, the rights and remedies provided in this Section are subject to, and limited by, the restrictions set forth in Section 8 – Limitation of Liability below.
7.3. Customer Indemnity . Customer will defend, indemnify, and hold Motorola and its subcontractors, subsidiaries and other affiliates harmless from and against any and all damages, losses, liabilities, and expenses (including reasonable fees and expenses of attorneys) arising from any actual or threatened third-party claim, demand, action, or proceeding arising from or related to (a) Customer-Provided Equipment, Customer Data, or Non-Motorola Content, including any claim, demand, action, or proceeding alleging that any such equipment, data, or materials (or the integration or use thereof with the Products and Services) infringes or misappropriates a third-party intellectual property or other right, violates applicable law, or breaches the Agreement; (b) Customer- Provided Equipment’s failure to meet the minimum requirements set forth in the applicable Documentation or match the applicable specifications provided to Motorola by Customer in connection with the Products or Services; (c) Customer’s (or its service prov iders, agents, employees, or Authorized User’s) negligence or willful misconduct; and (d) Customer’s or its Authorized User’s breach of this Agreement. This indemnity will not apply to the extent any such claim is caused by Motorola’s use of Customer - Provided Equipment, Customer Data, or Non-Motorola Content in violation of the Agreement.
Motorola will give Customer prompt, written notice of any claim subject to the foregoing indemnity. Motorola will, at its own expense, cooperate with Customer in its defense or settlement of the claim.
8. Limitation of Liability.
8.1. DISCLAIMER OF CONSEQUENTIAL DAMAGES . EXCEPT FOR PERSONAL INJURY
OR DEATH, MOTOROLA, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, SUBCONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “ MOTOROLA PARTIES ”) WILL NOT BE LIABLE IN CONNECTION WITH THIS AGREEMENT (WHETHER UNDER MOTOROLA’S INDEMNITY
OBLIGATIONS, A CAUSE OF ACTION FOR BREACH OF CONTRACT, UNDER TORT
THEORY, OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY,
PUNITIVE, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR
REVENUES, EVEN IF MOTOROLA HAS BEEN ADVISED BY CUSTOMER OR ANY THIRD
PARTY OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND WHETHER OR NOT SUCH DAMAGES OR LOSSES ARE FORESEEABLE.
8.2. DIRECT DAMAGES . EXCEPT FOR PERSONAL INJURY OR DEATH, THE TOTAL
AGGREGATE LIABILITY OF THE MOTOROLA PARTIES, WHETHER BASED ON A CLAIM IN
CONTRACT OR IN TORT, LAW OR EQUITY, RELATING TO OR ARISING OUT OF THE
AGREEMENT WILL NOT EXCEED THE FEES SET FORTH IN THE ORDERING DOCUMENT ITEM 10
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UNDER WHICH THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, FOR ANY
SUBSCRIPTION SOFTWARE OR FOR ANY RECURRING SERVICES, THE MOTOROLA PARTIES’ TOTAL LIABILITY FOR ALL CLAIMS RELATED TO SUCH PRODUCT OR
RECURRING SERVICES IN THE AGGREGATE WILL NOT EXCEED THE TOTAL FEES PAID
FOR SUCH SUBSCRIPTION SOFTWARE OR RECURRING SERVICE, AS APPLICABLE, DURING THE CONSECUTIVE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FROM WHICH THE FIRST CLAIM AROSE.
8.3. ADDITIONAL EXCLUSIONS . NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, MOTOROLA WILL HAVE NO LIABILITY FOR DAMAGES ARISING OUT
OF (A) CUSTOMER DATA, INCLUDING ITS TRANSMISSION TO MOTOROLA, OR ANY OTHER DATA AVAILABLE THROUGH THE PRODUCTS OR SERVICES; (B) CUSTOMER-
PROVIDED EQUIPMENT, NON-MOTOROLA CONTENT, THE SITES, OR THIRD-PARTY
EQUIPMENT, HARDWARE, SOFTWARE, DATA, OR OTHER THIRD-PARTY MATERIALS, OR THE COMBINATION OF PRODUCTS AND SERVICES WITH ANY OF THE FOREGOING; (C)
LOSS OF DATA OR HACKING, RANSOMWARE, OR OTHER THIRD-PARTY ATTACKS OR DEMANDS; (D) MODIFICATION OF PRODUCTS OR SERVICES BY ANY PERSON OTHER THAN MOTOROLA; (E) RECOMMENDATIONS PROVIDED IN CONNECTION WITH OR BY THE PRODUCTS AND SERVICES; (F) DATA RECOVERY SERVICES OR DATABASE MODIFICATIONS; OR (G) CUSTOMER’S OR ANY AUTHORIZED USER’S BREACH OF THIS AGREEMENT OR MISUSE OF THE PRODUCTS AND SERVICES.
8.4. Voluntary Remedies. Motorola is not obligated to remedy, repair, replace, or refund the purchase price for the disclaimed issues in Section 8.3 – Additional Exclusions above, but if Motorola agrees to provide Services to help resolve such issues, Customer will reimburse Motorola for its reasonable time and expenses, including by paying Motorola any Fees set forth in an Ordering Document for such Services, if applicable.
8.5. Statute of Limitations . Customer may not bring any claims against a Motorola Party in connection with this Agreement or the Products and Services more than one (1) year after the date of accrual of the cause of action.
9. Confidentiality.
9.1. Confidential Information . “ Confidential Information ” means any and all non -public information provided by one Party (“ Discloser”) to the other (“ Recipient”) that is disclosed under this Agreement in oral, written, graphic, machine recognizable, or sample form, being clearly designated, labeled or marked as confidential or its equivalent or that a reasonable businessperson would consider non-public and confidential by its nature. With respect to Motorola, Confidential Information will also include Products and Services, and Documentation, as well as any other information relating to the Products and Services. The nature and existence of this Agreement are considered Confidential Information of the Parties. In order to be considered Confidential Information, information that is disclosed orally must be identified as confidential at the time of disclosure and confirmed by Discloser by submitting a written document to Recipient within thirty (30) days after such disclosure. The written document must contain a summary of the Confidential Information disclosed with enough specificity for identification purpose and must be labeled or marked as confidential or its equivalent.
9.2. Obligations of Confidentiality . During the Term and for a period of three (3) years from the expiration or termination of this Agreement, Recipient will (a) not disclose Confidential Information to any third party, except as expressly permitted in this Section 9 - Confidentiality; (b) restrict disclosure of Confidential Information to only those employees (including, employees ITEM 10
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of any wholly owned subsidiary, a parent company, any other wholly owned subsidiaries of the same parent company), agents or consultants who must access the Confidential Information for the purpose of, and who are bound by confidentiality terms substantially similar to those in, this Agreement; (c) not copy, reproduce, reverse engineer, de-compile or disassemble any Confidential Information; (d) use the same degree of care as for its own information of like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information; (e) promptly notify Discloser upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement; and (f) only use the Confidential Information as needed to fulfill its obligations and secure its rights under this Agreement.
9.3. Exceptions. Recipient is not obligated to maintain as confidential any information that Recipient can demonstrate by documentation (a) is publicly available at the time of disclosure or becomes available to the public without breach of this Agreement; (b) is lawfully obtained from a third party without a duty of confidentiality to Discloser; (c) is otherwise lawfully known to Recipient prior to such disclosure without a duty of confidentiality to Discloser; or (d) is independently developed by Recipient without the use of, or reference to, any of Dis closer’s Confidential Information or any breach of this Agreement. Additionally, Recipient may disclose Confidential Information to the extent required by law, including a judicial or legislative order or proceeding.
9.4. Ownership of Confidential Information. All Confidential Information is and will remain the property of Discloser and will not be copied or reproduced without the express written permission of Discloser (including as permitted herein). Within ten (10) days of receipt of Discloser’s written reque st, Recipient will return or destroy all Confidential Information to Discloser along with all copies and portions thereof, or certify in writing that all such Confidential Information has been destroyed. However, Recipient may retain (a) one (1) archival copy of the Confidential Information for use only in case of a dispute concerning this Agreement and (b) Confidential Information that has been automatically stored in accordance with Recipient’s standard backup or recordkeeping procedures, provided, however that Recipient will remain subject to the obligations of this Agreement with respect to any Confidential Information retained subject to clauses (a) or (b). No license, express or implied, in the Confidential Information is granted to the Recipient other than to use the Confidential Information in the manner and to the extent authorized by this Agreement. Discloser represents and warrants that it is authorized to disclose any Confidential Information it discloses pursuant to this Agreement.
10. Proprietary Rights; Data; Feedback.
10.1. Data Definitions. The following terms will have the stated meanings: “Customer Contact Data” means data Motorola collects from Customer, its Authorized Users, and their end users for business contact purposes, including marketing, advertising, licensing and sales purposes; “Service Use Data” means data generated by Customer’s use of the Products and Services or by Motorola’s support of the Products and Services, including personal information, product performance and error information, activity logs and date and time of use; “ Customer Data” means data, information, and content, including images, text, videos, documents, audio, telemetry, location and structured data base records, provided by, through, or on behalf of Customer, its Authorized Users, and their end users through the use of the Products and Services. Customer Data does not include Customer Contact Data, Service Use Data, or information from publicly available sources or other Third-Party Data or Motorola Data; “Third- Party Data” means information obtained by Motorola from publicly available sources or its third ITEM 10
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party content providers and made available to Customer through the Products or Services; “Motorola Data” means data owned or licensed by Motorola; “Feedback” means comments or information, in oral or written form, given to Motorola by Customer or Authorized Users, including their end users, in connection with or relating to the Products or Services; and “Process” or “Processing” means any operation or set of operations which is performed on personal information or on sets of personal information, whether or not by automated means, such as collection, recording, copying, analyzing, caching, organization, structuring, storage, adaptation, or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
10.2. Motorola Materials. Customer acknowledges that Motorola may use or provide Customer with access to software, tools, data, and other materials, including designs, utilities, models, methodologies, systems, and specifications, which Motorola has developed or licensed from third parties (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de-compilations, disassemblies, or derivative works of the foregoing, whether made by Motorola or another party) (collectively, “ Motorola Materials”). The Products and Services, Motorola Data, Third-Party Data, and Documentation, are considered Motorola Materials. Except when Motorola has expressly transferred title or other interest to Customer by way of an Addendum or Ordering Document, the Motorola Materials are the property of Motorola or its licensors, and Motorola or its licensors retain all right, title and interest in and to the Motorola Materials (including, all rights in patents, copyrights, trademarks, trade names, trade secrets, know-how, other intellectual property and proprietary rights, and all associated goodwill and moral rights). For clarity, this Agreement does not grant to Customer any shared development rights in or to any Motorola Materials or other intellectual property, and Customer agrees to execute any documents and take any other actions reasonably requested by Motorola to effectuate the foregoing. Motorola and its licensors reserve all rights not expressly granted to Customer, and no rights, other than those expressly granted herein, are granted to Customer by implication, estoppel or otherwise. Customer will not modify, disassemble, reverse engineer, derive source code or create derivative works from, merge with other software, distribute, sublicense, sell, or export the Products and Services or other Motorola Materials, or permit any third party to do so.
10.3. Ownership of Customer Data . Customer retains all right, title and interest, including intellectual property rights, if any, in and to Customer Data. Motorola acquires no rights to Customer Data except those rights granted under this Agreement including the right to Process and use the Customer Data as set forth in Section 10.4 – Processing Customer Data below and in other applicable Addenda. The Parties agree that with regard to the Processing of personal information which may be part of Customer Data, Customer is the controller and Motorola is the processor, and may engage sub-processors pursuant to Section 10.4.3 – Sub- processors.
10.4. Processing Customer Data.
10.4.1. Motorola Use of Customer Data. To the extent permitted by law, Customer grants Motorola and its subcontractors a right to use Customer Data and a royalty-free, worldwide, non-exclusive license to use Customer Data (including to process, host, cache, store, reproduce, copy, modify, combine, analyze, create derivative works from such Customer Data and to communicate, transmit, and distribute such Customer Data to third parties engaged by Motorola) to (a) perform Services and provide Products under the Agreement, (b) analyze the Customer Data to operate, maintain, manage, and improve Motorola Products and ITEM 10
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Services, and (c) create new products and services. Customer agrees that this Agreement, along with the Documentation, are Customer’s complete and final documented instructions to Motorola for the processing of Customer Data. Any additional or alternate instructions must be agreed to according to the Change Order process. Customer represents and warrants to Motorola that Customer’s instructions, including appointment of Motorola as a processor or sub-processor, have been authorized by the relevant controller.
10.4.2. Collection, Creation, Use of Customer Data . Customer further represents and warrants that the Customer Data, Customer’s collection, creation, and use of the Customer Data (including in connection with Motorola’s Products and Services), and Motorola’s use of such Customer Dat a in accordance with the Agreement, will comply with all laws and will not violate any applicable privacy notices or infringe any third-party rights (including intellectual property and privacy rights). It is Customer’s responsibility to obtain all require d consents, provided all necessary notices, and meet any other applicable legal requirements with respect to collection and use (including Motorola’s use) of the Customer Data as described in the Agreement.
10.4.3. Sub-processors. Customer agrees that Motorola may engage sub-processors who in turn may engage additional sub-processors to Process personal data in accordance with this Agreement. When engaging sub-processors, Motorola will enter into agreements with the sub-processors to bind them to data processing obligations to the extent required by law.
10.5. Data Retention and Deletion . Except as expressly provided otherwise under the Agreement, Motorola will delete all Customer Data following termination or expiration of this MCA or the applicable Addendum or Ordering Document, with such deletion to occur no later than ninety (90) days following the applicable date of termination or expiration, unless otherwise required to comply with applicable law. Any requests for the exportation or download of Customer Data must be made by Customer to Motorola in writing before expiration or termination, subject to Section 13.9 – Notices. Motorola will have no obligation to retain such Customer Data beyond expiration or termination unless the Customer has purchased extended storage from Motorola through a mutually executed Ordering Document.
10.6. Service Use Data. Customer understands and agrees that Motorola may collect and use Service Use Data for its own purposes, including the uses described below. Motorola may use Service Use Data to (a) operate, maintain, manage, and improve existing and create ne w products and services, (b) test products and services, (c) to aggregate Service Use Data and combine it with that of other users, and (d) to use anonymized or aggregated data for marketing, research or other business purposes. Service Use Data may be disclosed to third parties. It is Customer’s responsibility to notify Authorized Users of Motorola’s collection and use of Service Use Data and to obtain any required consents, provide all necessary notices, and meet any other applicable legal requirements with respect to such collection and use, and Customer represents and warrants to Motorola that it has complied and will continue to comply with this Section.
10.7. Third-Party Data and Motorola Data . Motorola Data and Third-Party Data may be available to Customer through the Products and Services. Customer and its Authorized Users may use Motorola Data and Third-Party Data as permitted by Motorola and the applicable Third- Party Data provider, as described in the applicable Addendum. Unless expressly permitted in ITEM 10
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the applicable Addendum, Customer will not, and will ensure its Authorized Users will not: (a) use the Motorola Data or Third- Party Data for any purpose other than Customer’s internal business purposes; (b) disclose the data to third parties; (c) “white label” such data or otherwise misrepresent its source or ownership, or resell, distribute, sublicense, or commercially exploit the data in any manner; (d) use such data in violation of applicable laws; (e) remove, obscure, alter, or falsify any marks or proprietary rights notices indicating the source, origin, or ownership of the data; or (f) modify such data or combine it with Customer Data or other data or use the data to build databases. Additional restrictions may be set forth in the applicable Addendum.
Any rights granted to Customer or Authorized Users with respect to Motorola Data or Third- Party Data will immediately terminate upon termination or expiration of the applicable Addendum, Ordering Document, or this MCA. Further, Motorola or the applicable Third-Party Data provider may suspend, change, or terminate Customer’s or any Authorized User’s access to Motorola Data or Third-Party Data if Motorola or such Third-Party Data provider believes Customer’s or the Authorized User’s use of the data violates th e Agreement, applicable law or Motorola’s agreement with the applicable Third -Party Data provider. Upon termination of Customer’s rights to use any Motorola Data or Third -Party Data, Customer and all Authorized Users will immediately discontinue use of such data, delete all copies of such data, and certify such deletion to Motorola. Notwithstanding any provision of the Agreement to the contrary, Motorola will have no liability for Third-Party Data or Motorola Data available through the Products and Services. Motorola and its Third-Party Data providers reserve all rights in and to Motorola Data and Third-Party Data not expressly granted in an Addendum or Ordering Document.
10.8. Feedback. Any Feedback provided by Customer is entirely voluntary, and will not create any confidentiality obligation for Motorola, even if designated as confidential by Customer.
Motorola may use, reproduce, license, and otherwise distribute and exploit the Feedback without any obligation or payment to Customer or Authorized Users and Customer represents and warrants that it has obtained all necessary rights and consents to grant Motorola the foregoing rights.
10.9. Improvements; Products and Services . The Parties agree that, notwithstanding any provision of this MCA or the Agreement to the contrary, all fixes, modifications and improvements to the Services or Products conceived of or made by or on behalf of Motorola that are based either in whole or in part on the Feedback, Customer Data, or Service Use Data (or otherwise) are the exclusive property of Motorola and all right, title and interest in and to such fixes, modifications or improvements will vest solely in Motorola. Customer agrees to execute any written documents necessary to assign any intellectual property or other rights it may have in such fixes, modifications or improvements to Motorola.
11. Force Majeure; Delays Caused by Customer.
11.1. Force Majeure. Except for Customer’s payment obligations hereunder, neither Party will be responsible for nonperformance or delayed performance due to events outside of its reasonable control. If performance will be significantly delayed, the affected Party will provide notice to the other Party, and the Parties will agree (in writing) upon a reasonable extension to any applicable performance schedule.
11.2. Delays Caused by Customer . Motorola’s performance of the Products and Services will be excused for delays caused by Customer or its Authorized Users or subcontractors, or by failure of any assumptions set forth in this Agreement (including in any Addendum or Ordering Document). In the event of a delay under this Section 11.2 – Delays Caused by Customer, (a) ITEM 10
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Customer will continue to pay the Fees as required hereunder, (b) the Parties will agree (in writing) upon a reasonable extension to any applicable performance schedule, and (c) Customer will compensate Motorola for its out- of-pocket costs incurred due to the delay (including those incurred by Motorola’s affiliates, vendors, and subcontractors).
12. Disputes. The Parties will use the following procedure to resolve any disputes relating to or arising out of this Agreement (each, a “Dispute”):
12.1. Governing Law. All matters relating to or arising out of the Agreement are governed by the laws of the State of Illinois, unless Customer is the United States Government (or an agency thereof), in which case all matters relating to or arising out of the Agreement will be governed by the laws of the State in which the Products and Services are provided. The terms of the U.N.
Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply.
12.2. Negotiation; Mediation . Either Party may initiate dispute resolution procedures by sending a notice of Dispute (“ Notice of Dispute”) to the other Party. The Parties will atte mpt to resolve the Dispute promptly through good faith negotiations, including timely escalation of the Dispute to executives who have authority to settle the Dispute (and who are at a higher level of management than the persons with direct responsibility for the matter). If a Dispute is not resolved through negotiation, either Party may initiate mediation by sending a notice of mediation (“Notice of Mediation ”) to the other Party. The Parties will choose an independent mediator within thirty (30) days of such Notice of Mediation. Neither Party may unreasonably withhold consent to the selection of a mediator, but if the Parties are unable to agree upon a mediator, either Party may request that the American Arbitration Association nominate a mediator. Each Party will bear its own costs of mediation, but the Parties will share the cost of the mediator equally. Each Party will participate in the mediation in good faith and will be represented at the mediation by a business executive with authority to settle the Dispute. All in person meetings under this Section 12.2 – Negotiation; Mediation will take place in Chicago, Illinois, and all communication relating to the Dispute resolution will be maintained in strict confidence by the Parties. Notwithstanding the foregoing, any Dispute arising from or relating to Motorola’s intellectual property rights will not be subject to negotiation or mediation in accordance with this Section, but instead will be decided by a court of competent jurisdiction, in accordance with Section 12.3 – Litigation, Venue, Jurisdiction below.
12.3. Litigation, Venue, Jurisdiction. If the Dispute has not been resolved by mediation within sixty (60) days from the Notice of Mediation, either Party may submit the Dispute exclusively to a court in Cook County, Illinois. Each Party expressly consents to the exclusive jurisdiction of such courts for resolution of any Dispute and to enforce the outcome of any mediation.
13. General.
13.1. Compliance with Laws. Each Party will comply with applicable laws in connection with the performance of its obligations under this Agreement, including that Customer will ensure its and its Authorized Users’ use of the Products and Services complies with law (including privacy laws), and Customer will obtain any FCC and other licenses or authorizations (including licenses or authorizations required by foreign regulatory bodies) required for its and its Authorized Users’ use of the Products and Services. Motorola may, at its discretion, cease providing or otherwise modify Products and Services (or any terms related thereto in an Addendum or Ordering Document), in order to comply with any changes in applicable law.
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13.2. Audit; Monitoring. Motorola will have the right to monitor and audit use of the Products, which may also include access by Motorola to Customer Data and Service Use Data. Customer will provide notice of such monitoring to its Authorized Users and obtain any required consents, including individual end users, and will cooperate with Motorola in any monitoring or audit.
Customer will maintain during the Term, and for two (2) years thereafter, accurate records relating to any software licenses granted under this Agreement to verify compliance with this Agreement. Motorola or a third party (“ Auditor”) may inspect Customer’s and, as applicable, Authorized Users’ premises, books, and records. Motorola will pay expenses and costs of the Auditor, unless Customer is found to be in violation of the terms of the Agreement, in which case Customer will be responsible for such expenses and costs.
13.3. Assignment and Subcontracting . Neither Party may assign or otherwise transfer this Agreement without the prior written approval of the other Party. Motorola may assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without consent (a) for financing purposes, (b) in connection with a merger, acquisition or sale of all or substantially all of its assets, (c) as part of a corporate reorganization, or (d) to a subsidiary corporation. Subject to the foregoing, this Agreement will be binding upon the Parties and their respective successors and assigns.
13.4. Waiver. A delay or omission by either Party to exercise any right under this Agreement will not be construed to be a waiver of such right. A waiver by either Party of any of the obligations to be performed by the other, or any breach thereof, will not be construed to be a waiver of any succeeding breach or of any other obligation. All waivers must be in writing and signed by the Party waiving its rights.
13.5. Severability. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, such provision will be deemed to be modified to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remaining provisions of this Agreement will not be affected, and each such provision will be valid and enforceable to the full extent permitted by applicable law.
13.6. Independent Contractors. Each Party will perform its duties under this Agreement as an independent contractor. The Parties and their personnel will not be considered to be employees or agents of the other Party. Nothing in this Agreement will be interpreted as granting either Party the right or authority to make commitments of any kind for the other. This Agreement will not constitute, create, or be interpreted as a joint venture, partnership, or formal business organization of any kind.
13.7. Third-Party Beneficiaries. The Agreement is entered into solely between, and may be enforced only by, the Parties. Each Party intends that the Agreement will not benefit, or create any right or cause of action in or on behalf of, any entity other than the Parties. Notwithstanding the foregoing, a licensor or supplier of third-party software included in the software Products will be a direct and intended third-party beneficiary of this Agreement.
13.8. Interpretation. The section headings in this Agreement are included only for convenience The words “including” and “include” will be deemed to be followed by the phrase “without limitation”. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party.
13.9. Notices. Notices required under this Agreement to be given by one Party to the other must be in writing and either personally delivered or sent to the address provided by the other ITEM 10
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Party by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as FedEx, UPS, or DHL), and will be effective upon receipt.
13.10. Cumulative Remedies . Except as specifically stated in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to, and not in lieu of, any other remedies available to either Party at law, in equity, by contract, or otherwise. Except as specifically stated in this Agreement, the election by a Party of any remedy provided for in this Agreement or otherwise available to such Party will not preclude such Party from pursuing any other remedies available to such Party at law, in equity, by contract, or otherwise.
13.11. Survival. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 2.4 – Customer Obligations ; Section 3.4 – Effect of Termination or Expiration ; Section 4 – Payment and Invoicing ; Section 6.5 – Warranty Disclaimer; Section 7.3 – Customer Indemnity; Section 8 – Limitation of Liability; Section 9 – Confidentiality; Section 10 – Proprietary Rights; Data ; Feedback; Section 11 – Force Majeure; Delays Caused by Customer; Section 12 – Disputes; and Section 13 – General.
13.12. Entire Agreement . This Agreement, including all Addenda and Ordering Documents, constitutes the entire agreement of the Parties regarding the subject matter hereto, and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Agreement may be executed in multiple counterparts, and will have the same legal force and effect as if the Parties had executed it as a single document.
The Parties may sign in writing or by electronic signature. An electronic signature, facsimile copy, or computer image of a signature, will be treated, and will have the same effect as an original signature, and will have the same effect, as an original signed copy of this document.
This Agreement may be 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 or part of this Agreement, even if a representative of each Party signs such document.
The Parties hereby enter into this MCA as of the Effective Date.
Motorola: Motorola Solutions, Inc. Customer: [___________] By: ______________________________ By: ______________________________ Name: ___________________________ Name: ____________________________ Title: ____________________________ Title: _______________ ______________ Date: ____________________________ Date: ____________________________
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H-GAC Contract No. RA05-21
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Data Processing Addendum V.2022.12 1
Equipment Purchase and Software License Addendum
This Equipment Purchase and Software License Addendum (this “ EPSLA”) is entered into between Motorola Solutions, Inc., with offices at 500 W. Monroe Street, Suite 4400, Chicago, IL 60661 (“Motorola”) and the entity set forth in the signature block below or in the MCA (“Customer”), and will be subject to, and governed by, the terms of the Motorola Solutions Customer Agreement entered into between the Parties, effective as of [________] (the “MCA”).
Capitalized terms used in this EPSLA, but not defined herein, will have the meanings set forth in the MCA.
1. Addendum. This EPSLA governs Customer’s purchase of Equipment and license of Licensed Software (and, if set forth in an Ordering Document, related Services) from Motorola, and will form part of the Parties’ Agreement.
2. Delivery of Equipment and Licensed Software.
2.1. Delivery and Risk of Loss . Motorola will provide to Customer the Products (and, if applicable, related Services) set forth in an Ordering Document, in accordance with the terms of the Agreement. Motorola will, using commercially reasonable practices, pack the ordered Equipment and ship such Equipment to the Customer address set forth in the applicable Ordering Document or otherwise provided by Customer in writing, using a carrier selected by Motorola. Notwithstanding the foregoing, delivery of Equipment (and any incorporated Licensed Software) will occur, and title and risk of loss for the Equipment will pass to Customer, upon shipment by Motorola in accordance with Ex Works, Motorola’s premises (Incoterms 2020).
Customer will pay all shipping costs, taxes, and other charges applicable to the shipment and import or export of the Products and Services, as applicable, and Customer will be responsible for reporting the Products for personal property tax purposes. Delivery of Licensed Software for installation on Equipment or Customer-Provided Equipment will occur upon the earlier of (a) electronic delivery of the Licensed Software by Motorola, and (b) the date Motorola otherwise makes the Licensed Software available for download by Customer. If agreed upon in an Ordering Document, Motorola will also provide Services related to such Products.
2.2. Delays. Any shipping dates set forth in an Ordering Document are approximate, and while Motorola will make reasonable efforts to ship Products by any such estimated shipping date, Motorola will not be liable for any delay or related damages to Customer. Time for delivery will not be of the essence, and delays will not constitute grounds for cancellation, penalties, termination, or a refund.
2.3. Beta Services . If Motorola makes any beta version of a software application (“ Beta Service”) available to Customer, Customer may choose to use such Beta Service at its own discretion, provided, however, that Customer will use the Beta Service solely for purposes of Customer’s evaluation of such Beta Service, and for no other purpose. Customer acknowledges and agrees that all Beta Services are offered “as -is” and without any representations or warranties or other commitments or protections from Motorola. Motorola will determine the duration of the evaluation period for any Beta Service, in its sole discretion, and Motorola may discontinue any Beta Service at any time. Customer acknowledges that Beta Services, by their nature, have not been fully tested and may contain defects or deficiencies.
3. Licensed Software License and Restrictions.
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3.1. Licensed Software License. Subject to Customer’s and its Authorized Users’ compliance with the Agreement (including payment terms), Motorola hereby grants Customer and its Authorized Users a limited, non-transferable, non-sublicenseable, and non-exclusive license to use the Licensed Software identified in an Ordering Document, in object code form only, and the associated Documentation, solely in connection with the Equipment provided by Motorola or authorized Custom er-Provided Equipment (as applicable, the “ Designated Products ”) and solely for Customer’s internal business purposes. Unless otherwise stated in an Addendum or the Ordering Document, the foregoing license grant will be limited to the number of licenses se t forth in the applicable Ordering Document and will continue for the life of the applicable Designated Product. Except as otherwise permitted in an applicable Addendum or Ordering Document, Customer may install, access, and use Licensed Software only in Customer’s owned or controlled facilities, including any authorized mobile sites; provided, however, that Authorized Users using authorized mobile or handheld devices may also log into and access the Licensed Software remotely from any location.
3.2. Subscription License Model . If the Parties mutually agree that any Licensed Software purchased under this EPSLA will be replaced with or upgraded to Subscription Software, then upon such time which the Parties execute the applicable Ordering Document, the licenses granted under this EPSLA will automatically terminate, and such Subscription Software will be governed by the terms of the applicable Addendum under this Agreement.
3.3. Customer Restrictions. Customers and Authorized Users will comply with the applicable Documentation in connection with their use of the Products. Customer will not and will not allow others, including the Authorized Users, to: (a) make the Licensed Software available for use by unauthorized third parties, including via a commercial rental or sharing arrangement; (b) reverse engineer, disassemble, or reprogram the Licensed Software or any portion thereof to a human- readable form; (c) modify, create derivative works of, or merge the Licensed Software with other software or equipment; (d) copy, reproduce, distribute, lend, lease, or transfer the Licensed Software or Documentation for or to any third party without the prior express written permission of Motorola; (e) take any action that would cause the Licensed Software or Documentation to be placed in the public domain; (f) use the Licensed Software to compete with Motorola; or (g) remove, alter, or obscure, any copyright or other notice.
3.4. Copies. Customer may make one (1) copy of the Licensed Software solely for archival, back-up, or disaster recovery purposes during the term of the applicable Licensed Software license. Customer may make as many copies of the Documentation reasonably required for the internal use of the Licensed Software during such Licensed Software’s license term. Unless otherwise authorized by Motorola in writing, Customer will not, and will not enable or allow any third party to: (a) install a licensed copy of the Licensed Software on more than one (1) unit of a Designated Product; or (b) copy onto or transfer Licensed Software installed in a unit of a Designated Product onto another device. Customer may temporarily transfer Licensed Software installed on a Designated Product to another device if the Designated Product is inoperable or malfunctioning, if Customer provides written notice to Motorola of the temporary transfer and identifies the device on which the Licensed is transferred. Temporary transfer of the Licensed Software to another device must be discontinued when the original Designated Product is returned to operation and the Licensed Software must be removed from the other device. Customer must provide prompt written notice to Motorola at the time temporary transfer is discontinued.
3.5. Resale of Equipment. Equipment contains embedded Licensed Software. If Customer desires to sell its used Equipment to a third party, Customer must first receive prior written ITEM 10
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authorization from Motorola and obtain written acceptance of the applicable Licensed Software license terms, including the obligation to pay relevant license fees, from such third party.
4. Term.
4.1. Term. The term of this EPSLA (the “ EPSLA Term”) will commence upon either (a) the Effective Date of the MCA, if this EPSLA is attached to the MCA as of such Effective Date, or (b) the EPSLA Date set forth on the signature page below, if this EPSLA is executed after the MCA Effective Date, and will continue until the later of (i) three (3) years after the first order for Products is placed via an Ordering Document, or (ii) the expiration of all applicable warranty periods (as set forth in Section 6.1 – Motorola Warranties below) under this EPSLA, unless this EPSLA or the Agreement is earlier terminated in accordance with the terms of the Agreement.
4.2. Termination. Notwithstanding the termination provisions of the MCA, Motorola may terminate this EPSLA (and any Ordering Documents hereunder) immediately upon notice to Customer if Customer breaches Section 3 – Licensed Software License and Restrictions of this EPSLA, or any other provision related to Licensed Software license scope or restrictions set forth in an Ordering Document, EULA, or other applicable Addendum. For clarity, upon termination or expiration of the EPSLA Term, all Motorola obligations under this EPSLA (including with respect to Equipment and Licensed Software delivered hereunder) will terminate.
If Customer desires to purchase additional Services in connection with such Equipment or Licensed Software, Customer may enter into a separate Addendum with Motorola, governing such Services. Customer acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Licensed Software and Documentation, and that Customer’s breach of the Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches this Agreement, in addition to termination, Motorola will be entitled to all available remedies at law or in equity, including immediate injunctive relief and repossession of all non-embedded Licensed Software and associated Documentation.
4.3. Equipment as a Service. In the event that Customer purchases any Equipment at a price below the MSRP for such Equipment in connection Customer entering into a fixed- or minimum required-term agreement for Subscription Software, and Customer or Motorola terminates the Agreement, this EPSLA, or other applicable Addendum (such as the Addendum governing the purchase of such Subscription Software) prior to the expiration of such fixed- or minimum required-term, then Motorola will have the right to invoice Customer for, and Customer will pay, the amount of the discount to the MSRP for the Equipment or such other amount set forth in the applicable Addendum or Ordering Document. This Section will not limit any other remedies Motorola may have with respect to an early termination.
5. Payment. Customer will pay invoices for the Products and Services provided under this EPSLA in accordance with the invoice payment terms set forth in the MCA. Generally, invoices are issued after shipment of Equipment or upon Motorola’s delivery of Licensed Software (in accordance with Section 2.1 – Delivery and Risk of Loss ), as applicable, but if a specific invoicing or payment schedule is set forth in the applicable Ordering Document, EULA or other Addendum, such schedule will control with respect to the applicable Products and Services referenced therein. Motorola will have the right to suspend future deliveries of Products and Services if Customer fails to make any payments when due.
6. Representations and Warranties; Liability.
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6.1. Motorola Warranties. Subject to the disclaimers and exclusions set forth in the MCA and this EPSLA, (a) for a period of one (1) year commencing upon the delivery of Motorola- manufactured Equipment under Section 2.1 – Delivery and Risk of Loss, Motorola represents and warrants that such Motorola-manufactured Equipment, under normal use, will be free from material defects in materials and workmanship; (b) to the extent permitted by the providers of third-party software or hardware included in the Products and Services, Motorola will pass through to Customer any warranties provided by such third parties, which warranties will apply for the period defined by the applicable third party; and (c) for a period of ninety (90) days commencing upon the delivery of Motorola-owned Licensed Software under Section 2.1 – Delivery and Risk of Loss , Motorola represents and warrants that such Licensed Software, when used in accordance with the Documentation and the Agreement, will be free from reproducible defects that prevent operation of features critical to the primary functionality or successful operation of the Motorola-developed Licensed Software (as determined by Motorola). The warranty set forth in subsection (c) will be referred to as the “Motorola Licensed Software Warranty”. As Customer’s sole and exclusive remedy for any breach of the Motorola Licensed Software Warranty, Motorola will use commercially reasonable efforts to remedy the material defect in the applicable Licensed Software; provided, however, that if Motorola does not remedy such material defect within a reasonable time, then at Motorola’s sole option, Motorola will either replace the defective Licensed Software with functiona lly-equivalent software, provide substitute software to Customer, or terminate the applicable software license and refund any paid license fees to Customer on a pro-rata basis. For clarity, the Motorola Licensed Software Warranty applies only to the most current version of the Licensed Software issued by Motorola, and issuance of updated versions of any Licensed Software does not result in a renewal or extension of the Motorola Licensed Software Warranty beyond the ninety (90) day warranty period.
6.2. ADDITIONAL EXCLUSIONS. IN ADDITION TO THE EXCLUSIONS FROM DAMAGES
SET FORTH IN THE MCA, AND NOTWITHSTANDING ANY PROVISION OF THE
AGREEMENT TO THE CONTRARY, MOTOROLA WILL HAVE NO LIABILITY FOR (A)
DEFECTS IN OR DAMAGE TO PRODUCTS RESULTING FROM USE OTHER THAN IN THE NORMAL AUTHORIZED MANNER, OR FROM ACCIDENT, LIQUIDS, OR NEGLECT; (B)
TESTING, MAINTENANCE, REPAIR, INSTALLATION, OR MODIFICATION BY PARTIES OTHER THAN MOTOROLA; (C) CUSTOMER’S OR ANY AUTHORIZED USER’S FAILURE TO COMPLY WITH INDUSTRY AND OSHA OR OTHER LEGAL STANDARDS; (D) DAMAGE TO RADIO ANTENNAS, UNLESS CAUSED BY DEFECTS IN MATERIAL OR WORKMANSHIP; (E) EQUIPMENT WITH NO SERIAL NUMBER; (F) BATTERIES OR CONSUMABLES; (G) FREIGHT COSTS FOR SHIPMENT TO REPAIR DEPOTS; (H) COSMETIC DAMAGE THAT DOES NOT AFFECT OPERATION; (I) NORMAL WEAR AND TEAR; (J) ISSUES OR
OBSOLESCENCE OF LICENSED SOFTWARE DUE TO CHANGES IN CUSTOMER OR AUTHORIZED USER REQUIREMENTS, EQUIPMENT, OR SYSTEMS; (K) TRACKING AND LOCATION-BASED SERVICES; OR (L) BETA SERVICES.
6.3. Voluntary Remedies. Motorola is not obligated to remedy, repair, replace, or refund the purchase price for the disclaimed or excluded issues in the MCA or Section 6.2 – Additional Exclusions above, but if Motorola agrees to provide Services to help resolve such issues, Customer will reimburse Motorola for its reasonable time and expenses, including by paying Motorola any Fees set forth in an Ordering Document for such Services, if applicable.
7. Copyright Notices. The existence of a copyright notice on any Licensed Software will not be construed as an admission or presumption of publication of the Licensed Software or public disclosure of any trade secrets associated with the Licensed Software.
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8. Survival. The following provisions will survive the expiration or termination of this EPSLA for any reason: Section 3 – Licensed Software License and Restrictions ; Section 4 – Term; Section 5 – Payment; Section 6.2 – Additional Exclusions; Section 8 – Survival.
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Data Processing Addendum
This Data Processing Addendum, including its Schedules and Annexes (“DPA”), forms part of the Motorola Solutions Customer Agreement (“MCA” or “Agreement”)) to reflect the parties’ agreement with regard to the Processing of Customer Data, which may include Personal Data.
In the event of a conflict between this DPA, the MCA or any Schedule, Annex or other addenda to the MCA, this DPA must prevail.
When Customer renews or purchases new Products or Services, the then-current DPA must apply and must not change during the applicable Term. When Motorola provides new features or supplements the Product or Service, Motorola may provide additional terms or make updates to this DPA that must apply to Customer’s use of those new features or supplements.
1. Definitions.
All capitalized terms not defined herein must have the meaning set forth in the Agreement. “Customer Data” means data including images, text, videos, and audio, that are provided to Motorola by, through, or on behalf of Customer and its Authorized Users or their end users, through the use of the Products and Services. Customer Data does not include Customer Contact Data, Service Use Data, other than that portion comprised of Personal Information , or Third Party Data.
“Customer Contact Data” means data Motorola collects from Customer, its Authorized Users, and their end users for business contact purposes, including without limitation marketing, advertising, licensing, and sales purposes.
“Data Protection Laws” means all data protection laws and regulations applicable to a Party with respect to the Processing of Personal Data under the Agreement. “Data Subjects” means the identified or identifiable person to whom Personal Data relates. “Metadata” means data that describes other data.
“Motorola Data” means data owned by Motorola and made available to Customer in connection with the Products and Services.
“Personal Data” or “Personal Information” means any information relating to an identified or identifiable natural person transmitted to Motorola by, through, or on behalf of Customer and its Authorized Users or their end users as part of Customer Data. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an id entification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Process” or “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, copying, analyzing, caching, organization, structuring, storage, adaptation, ITEM 10
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or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. “Security Incident” means an incident leading to the accidental or unlawful destruction, loss, alteration or disclosure of, or access to Customer Data, which may include Personal Data, while processed by Motorola.
“Service Use Data” means data generated about the use of the Products and Services through Customer’s use or Motorola’s support of the Products and Services, which may include Metadata, Personal Data, product performance and error information, activity logs, and date and time of use.
“Sub-processor” means other processors engaged by Motorola to Process Customer Data which may include Personal Data.
“Third Party Data” means information obtained by Motorola from publicly available sources or its third party content providers and made available to Customer through the Products or Services.
2. Processing of Customer Data
2.1. Roles of the Parties . The Parties agree that with regard to the Processing of Personal Data hereunder, Customer is the Controller and Motorola is the Processor who may engage Sub-processors pursuant to the requirements of Section 6 entitled “Sub-processors” below.
2.2. Motorola’s Processing of Customer Data . Motorola and Customer agree that Motorola may only use and Process Customer Data, including the Personal Information embedded in Service Use Data, in accordance with applicable law and Customer’s documented instructions for the following purposes: (i) to perform Services and provide Products under the Agreement; (ii) analyze Customer Data to operate, maintain, manage, and improve Motorola products and services; and (iii) create new products and services. Customer agrees that its Agreement (including this DPA), along with the Product and Service Documentation and Customer’s use and configuration of features in the Products and Services, are Customer’s complete and final documented instructions to Motorola for the processing of Customer Data.
Any additional or alternate instructions must be agreed to according to the process for amending Customer’s Agreement. Customer represents and warrants to Motorola that Customer’s instructions, including appointment of Motorola as a Process or or sub-processor, have been authorized by the relevant controller. Customer Data may be processed by Motorola at any of its global locations and/or disclosed to Subprocessors. It is Customer’s responsibility to notify Authorized Users of Motorola’s collection and use of Customer Data, and to obtain any required consents, provide all necessary notices, and meet any other applicable legal requirements with respect to such collection and use. Customer represents and warrants to Motorola that it has complied with the terms of this provision.
2.3. Details of Processing . The subject-matter of Processing of Personal Data by Motorola hereunder, the duration of the Processing, the categories of Data Subjects and types of Personal Data are set forth on Annex I to this DPA.
2.4. Disclosure of Processed Data . Motorola must not disclose to or share any Customer Data with any third party except to Motorola’s sub -processors, suppliers and channel partners ITEM 10
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as necessary to provide the products and services unless permitted under this Agreement , authorized by Customer or required by law. In the event a government or supervisory authority demands access to Customer Data, to the extent allowable by law, Motorola must provide Customer with notice of receipt of the demand to provide sufficient time for Customer to seek appropriate relief in the relevant jurisdiction. In all circumstances, Motorola retains the right to comply with applicable law. Motorola must ensure that its personnel are subject to a duty of confidentiality, and will contractually obligate its sub-processors to a duty of confidentiality, with respect to the handling of Customer Data and any Personal Data contained in Service Use Data.
2.5. Customer’s Obligations. Customer is solely responsible for its compliance with all Data Protection Laws and establishing and maintaining its own policies and procedures to ensure such compliance. Customer must not use the Products and Services in a manner that would violate applicable Data Protection Laws. Customer must have sole responsibility for (i) the lawfulness of any transfer of Personal Data to Motorola, (ii) the accuracy, quality, and legality of Personal Data provided to Motorola; (iii) the means by which Customer acquired Personal Data, and (iv) the provision of any required notices to, and obtaining any necessary acknowledgements, authorizations or consents from Data Subjects. Customer takes full responsibility to keep the amount of Personal Data provided to Motorola to the minimum necessary for Motorola to perform in accordance with the Agreement. Customer must be solely responsible for its compliance with applicable Data Protection Laws.
2.6. Customer Indemnity . Customer will defend, indemnify, and hold Motorola and its subcontractors, subsidiaries and other affiliates harmless from and against any and all damages, losses, liabilities, and expenses (including reasonable fees and expenses of attorneys) arising from any actual or threatened third-party claim, demand, action, or proceeding arising from or related to Customer’s failure to comply with its obligations under this Agreement and/or applicable Data Protection Laws. Motorola will give Customer prompt, written notice of any claim subject to the foregoing indemnity. Motorola will, at its own expense, cooperate with Customer in its defense or settlement of the claim.
3. Service Use Data . Except to the extent that it is Personal Information, Customer understands and agrees that Motorola may collect and use Service Use Data for its own purposes, provided that such purposes are compliant with applicable Data Protection Laws .
Service Use Data may be processed by Motorola at any of its global locations and/or disclosed to Sub processors.
4. Third-Party Data and Motorola Data . Motorola Data and Third Party Data may be available to Customer through the Products and Services. Customer and its Authorized Users may use the Motorola Data and Third Party Data as permitted by Motorola and the applicable third-party data provider, as described in the Agreement or applicable Addendum. Unless expressly permitted in the Agreement or applicable Addendum, Customer must not, and must ensure its Authorized Users must not: (a) use the Motorola Data or Third-Party Data for any purpose other than Customer’s internal business purposes or disclose the data to third parties; (b) “white label” such data or otherwise misrepresent its source or ownership, or resell, distribute, sublicense, or commercially exploit the data in any manner; (c) use such data in violation of applicable laws ; (d) use such data for activities or purposes where reliance upon the data could lead to death, injury, or property damage; (e) remove, obscure, alter, or falsify any marks or proprietary rights notices indicating the source, origin, or ownership of the data; or (f) modify such data or combine it with Customer Data or other data or use the data to build databases. Additional restrictions may be set forth in the Agreement o r applicable Addendum.
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Any rights granted to Customer or Authorized Users with respect to Motorola Data or Third- Party Data must immediately terminate upon termination or expiration of the applicable Addendum, Ordering Document, or the MCA. Further, Motorola or the applicable Third Party Data provider may suspend, change, or terminate Customer’s or any Authorized User’s access to Motorola Data or Third-Party Data if Motorola or such Third Party Data provider believes Customer’s or the Authorized User’s use of the data violates the Agreement, applicable law or by Motorola’s agreement with the applicable Third Party Data provider. Upon termination of Customer’s rights to use of any Motorola Data or Third-Party Data, Customer and all Authorized Users must immediately discontinue use of such data, delete all copies of such data, and certify such deletion to Motorola. Notwithstanding any provision of the Agreement to the contrary, Motorola has no liability for Third-Party Data or Motorola Data available through the Products and Services. Motorola and its Third Party Data providers reserve all rights in and to Motorola Data and Third-Party Data not expressly granted in an Addendum or Ordering Document.
5. Motorola as a Controller or Joint Controller. In all instances where Motorola acts as a Controller it must c omply with the applicable provisions of the Motorola Privacy Statement at https://www.motorolasolutions.com/en_us/about/privacy-policy.html#privacystatement as each may be updated from time to time. Motorola holds all Customer Contact Data as a Controller and must Process such Customer Contact Data in accordance with the Motorola Privacy Statement. In instances where Motorola is acting as a Joint Controller with Customer, the Parties must enter into a separate addendum to the Agreement to allocate the respective roles as joint controllers.
6. Sub-processors.
6.1. Use of Sub-processors . Customer agrees that Motorola may engage Sub-processors who in turn may engage Sub-processors to Process Personal Data in accordance with the DPA.
A current list of Sub-processors is set forth at Annex III. When engaging Sub-processors, Motorola must enter into agreements with the Sub-processors to bind them to obligations which are substantially similar or more stringent than those set out in this DPA.
6.2. Changes to Sub-processing . The Customer hereby consents to Motorola engaging Sub-processors to process Customer Data provided that: (i) Motorola must use its reasonable endeavours to provide at least 10 days' prior notice of the addition or removal of any Sub- processor, which may be given by posting details of such addition or removal at a URL provided to Customer in Annex III; (ii) Motorola imposes data protection terms on any Sub-processor it appoints that protect the Customer Data to the same standard provided for by this Addendum; and (iii) Motorola remains fully liable for any breach of this clause that is caused by an act, error or omission of its Sub- processor(s). The Customer may object to Motorola’s appointment or replacement of a Sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Motorola will either appoint or replace the Sub-processor or, if in Motorola’s discretion this is not feasible, the Customer may terminate this Agreement and receive a pro-rata refund of any prepaid service or support fees as full satisfaction of any claim arising out of such termination.
6.3. Data Subject Requests. Motorola must, to the extent legally permitted, promptly notify Customer if it receives a request from a Data Subject, including without limitation requests for access to, correction, amendment, transport or deletion of such Data Subject’s Personal Data and, to the extent applicable, Motorola must provide Customer with commercially reasonable cooperation and assistance in relation to any complaint, notice, or communication from a Data Subject. Customer must respond to and resolve promptly all requests from Data Subjects which ITEM 10
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Motorola provides to Customer. Customer must be responsible for any reasonable costs arising from Motorola’s provision of such assistance under this Section.
7. Data Transfers
Motorola agrees that it must not make transfers of Personal Data under this Agreement from one jurisdiction to another unless such transfers are performed in compliance with this Addendum and applicable Data Protection Laws. Motorola agrees to enter into appropriate agreements with its affiliates and Sub-processors, which will permit Motorola to transfer Personal Data to its affiliates and Sub-processors. Motorola agrees to amend as necessary its agreement with Customer to permit transfer of Personal Data from Motorola to Customer.
Motorola also agrees to assist the Customer in entering into agreements with its affiliates and Sub-processors if required by applicable Data Protection Laws for necessary transfers.
8. Security. Motorola must implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk posed by the Processing of Personal Data, taking into account the costs of implementation; the nature, scope, context, and purposes of the Processing; and the risk of varying likelihood and severity of harm to the data subjects. The appropriate technical and organizational measures implemented by Motorola are set forth in Annex III . In assessing the appropriate level of security, Motorola must weigh the risks presented by Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise Processed.
9. Security Incident Notification . If Motorola becomes aware of a Security Incident, then Motorola must (i) notify Customer of the Security Incident without undue delay, (ii) investigate the Security Incident and apprise Customer of the details of the Security Incident and (iii) take commercially reasonable steps to stop any ongoing loss of Personal Data due to the Security Incident if in the control of Motorola. Notification of a Security Incident must not be construed as an acknowledgement or admission by Motorola of any fault or liability in connection with the Security Incident. Motorola must make reasonable efforts to assist Customer in fulfilling Customer’s obligations under Data Protection Laws to notify the relevant supervisory authority and Data Subjects about such incident.
10. Data Retention and Deletion .
Except for anonymized Customer Data, as described above, or as otherwise provided under the Agreement, Motorola must delete all Customer Data no later than ninety (90) days following termination or expiration of the MCA or the applicable Addendum or Ordering Document unless otherwise required to comply with applicable law.
11. Audit Rights
11.1 Periodic Audit. Motorola will allow Customer to perform an audit of reasonable scope and duration of Motorola operations relevant to the Products and Services purchased under the Agreement, at Customer’s sole expense, for verification of compliance with the technical and organizational measures set forth in Annex II if (i) Motorola notifies Customer of a Security Incident that results in actual compromise to the Products and/or Services purchased; or (ii) if Customer reasonably believes Motorola is not in compliance with its security commitments under this DPA, or (iii) if such audit is legally required by the Data Protection Laws. Any audit ITEM 10
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must be conducted in accordance with the procedures set forth in Section 11.3 of this DPA and may not be conducted more than one time per year. If any such audit requires access to confidential information of Motorola’s other customers, s uppliers or agents, such portion of the audit may only be conducted by Customer’s nationally recognized independent third party auditors in accordance with the procedures set forth in Section 11.3 of this DPA. Unless mandated by GDPR or otherwise mandated by law or court order, no audits are allowed within a data center for security and compliance reasons. Motorola must, in no circumstances, provide Customer with the ability to audit any portion of its software, products, and services which would be reasonably expected to compromise the confidentiality of any third party’s informatio n or Personal Data.
11.2 Satisfaction of Audit Request. Upon receipt of a written request to audit, and subject to Customer’s agreement, Motorola may satisfy s uch audit request by providing Customer with a confidential copy of a Motorola’s applicable most recent third party security review performed by a nationally recognized independent third party auditor, such as a SOC2 Type II report or ISO 27001 certificati on, in order that Customer may reasonably verify Motorola’s compliance with national standards.
11.3 Audit Process. Customer must provide at least sixty days (60) days prior written notice to Motorola of a request to conduct the audit described in Section 11.1. All audits must be conducted during normal business hours, at applicable locations or remotely, as designated by Motorola. Audit locations, if not remote will generally be those location(s) where Customer Data is accessed, or Processed. The audit must not unreasonably interfere with Motorola’s day to day operations. An audit must be conducted at Customer’s sole cost and expense and subject to the terms of the confidentiality obligations set forth in the Agreement. Before the commencement of any such audit, Motorola and Customer must mutually agree upon the time, and duration of the audit. Motorola must provide reasonable cooperation with the audit, including providing the appointed auditor a right to review, but not copy, Motorola security information or materials provided such auditor has executed an appropriate non-disclosure agreement. Motorola’s policy is to share methodology and executive summary information, not raw data or private information. Customer must, at no charge, provide to Motorola a full copy of all findings of the audit.
12. Regulation Specific Terms
12.1. HIPAA Business Associate. If Customer is a “covered entity” or a “business associate” and includes "protected health information" in Customer Data as those terms are defined in 45 CFR § 160.103, execution of the MCA includes execution of the Motorola HIPAA Business Associate Agreement Addendum (“BAA”). Customer may opt out of the BAA by sending the following information to Motorola in a written notice under the terms of the Custom er’s Agreement: “Customer and Motorola agree that no Business Associate Agreement is required.
Motorola is not a Business Associate of Customer’s, and Customer agrees that it will not share or provide access to Protected Health Information to Motorola or Motorola’s sub processors.”
12.2. FERPA. If Customer is an educational agency or institution to which regulations under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA), apply, Motorola acknowledges that for the purposes of the DPA, Moto rola is a “school official” with “legitimate educational interests” in the Customer Data, as those terms have been defined under FERPA and its implementing regulations, and Motorola agrees to abide by the limitations and ITEM 10
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requirements imposed by 34 CFR 99.33(a) on school officials. Customer understands that Motorola may possess limited or no contact information for Customer’s students and students’ parents. Consequently, Customer must be responsible for obtaining any parental consent for any end user’s use of the Online Service that may be required by applicable law and to convey notification on behalf of Motorola to students (or, with respect to a student under 18 years of age and not in attendance at a post- secondary institution, to the student’s parent) of any judicial order or lawfully- issued subpoena requiring the disclosure of Customer Data in Motorola’s possession as may be required under applicable law.
12.3. CJIS. Motorola agrees to support the Customer’s obligation to comply with the Federal Bureau of Investigation Criminal Justice Information Services (CJIS) Security Policy and must comply with the terms of the CJIS Security Addendum for the Term of this Agreement and such CJIS Security Addendum is incorporated herein by reference. Customer hereby consents to allow Motorola “screened” personnel as defined by the CJIS Security Policy to serve as an authorized “escort” within the meaning of CJIS Security Policy for escorting unscreened Motorola personnel that require access to unencrypted Criminal Justice Information for purposes of Tier 3 support (e.g. troubleshooting or development resources). In the event Customer requires access to Service Use Data for its compliance with the CJIS Security Policy, Motorola must make such access available following Custom er’s request. Notwithstanding the foregoing, in the event the MCA or applicable Ordering Document terminates, Motorola must carry out deletion of Customer Data in compliance with Section 10 herein and may likewise delete Service Use Data within the time frame specified therein. To the extent Customer objects to deletion of its Customer Data or Service Use Data and seeks retention for a longer period, it must provide written notice to Motorola prior to expiration of the 30 day period for data retention to arrange return of the Customer Data and retention of the Service Use Data for a specified longer period of time.
12.4. CCPA / CPRA. If Motorola is Processing Personal Data within the scope of the California Consumer Protection Act (“CCPA”) and/or the California Privacy Rights Act (“CPRA”) (collectively referred to as the “California Privacy Acts”) , Customer acknowledges that Motorola is a “Service Provider” within the meaning of C alifornia Privacy Acts. Motorola must process Customer Data and Personal Data on behalf of Customer and, not retain, use, or disclose that data for any purpose other than for the purposes set out in this DPA and as permitted under the California Privacy Acts, including under any “sale” exemption. In no event will Motorola sell any such data, nor will M. If a California Privacy Act applies, Personal Data must also include any data identified with the California Privacy Act or Act’s definition of personal data. Motorola shall provide Customer with notice should it determine that it can no longer meet its obligations under the California Privacy Acts, and the parties agree that, if appropriate and reasonable, Customer may take steps necessary to stop and remediate unauthorized use of the impacted Personal Data.
12.5 CPA, CTDPA, VCDPA. If Motorola is Processing Personal Data within the scope of the Colorado Privacy Rights Act (“CPA”), the Connecticut Data Privacy Act (“CTDPA”), or the Virginia Consumer Data Protection Act (“VCDPA”) Motorola will comply with its obligations under the applicable legislation, and shall make available to Customer all information in its possession necessary to demonstrate compliance with obligations in accordance with such legislation. Motorola Contact. If Customer believes that Motorola is not adhering to its privacy or security obligations hereunder, Customer must contact the Motorola Data Protection Officer at Motorola Solutions, Inc., 500 W. Monroe, Chicago, IL USA 90661-3618 or at [email protected].
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ITEM 10
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ANNEX I
A. LIST OF PARTIES
Data exporter(s): [Identity and contact details of the data exporter(s) and, where applicable, of its/their data protection officer and/or representative in the European Union]
1. Name: …
Address: …
Contact person’s name, position and contact details: …
Activities relevant to the data transferred under these Clauses: … Signature and date: …
Role (controller/processor): Controller
2. …
Data importer(s): [Identity and contact details of the data importer(s), including any contact person with responsibility for data protection]
1. Name: Motorola Solutions, Inc.
Address: …
Contact person’s name, position and contact details: …
Activities relevant to the data transferred under these Clauses: …
Signature and date: …
Role (controller/processor): Processor
2. …
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B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred Data subjects include the data exporter’s representatives and end-users including employees, contractors, collaborators, and customers of the data exporter. Data subjects may also include individuals attempting to communicate or transfer personal information to users of the services provided by data importer. Mo torola acknowledges that, depending on Customer’s use of the Online Service, Customer may elect to include personal data from any of the following types of data subjects in the Customer Data:
● Employees, contractors, and temporary workers (current, former, prospective) of data exporter;
● Dependents of the above;
● Data exporter's collaborators/contact persons (natural persons) or employees, contractors or temporary workers of legal entity collaborators/contact persons (current, prospective, former);
● Users (e.g., customers, clients, patients, visitors, etc.) and other data subjects that are users of data exporter's services;
● Partners, stakeholders or individuals who actively collaborate, communicate or otherwise interact with employees of the data exporter and/or use communication tools such as apps and websites provided by the data exporter;
● Stakeholders or individuals who passively interact with data exporter (e.g., because they are the subject of an investigation, research or mentioned in documents or correspondence from or to the data exporter);
● Minors; or
● Professionals with professional privilege (e.g., doctors, lawyers, notaries, religious workers, etc.).
Categories of personal data transferred
Customer’s use of the Products and Services, Customer may elect to include personal data from any of the following categories in the Customer Data:
● Basic personal data (for example place of birth, street name, and house number (address), Agreemental code, city of residence, country of residence, mobile phone number, first name, last name, initials, email address, gender, date of birth), including basic personal data about family members and children;
● Authentication data (for example user name, password or PIN code, security question, audit trail);
● Contact information (for example addresses, email, phone numbers, social media identifiers; emergency contact details);
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● Unique identification numbers and signatures (for example Social Security number, bank account number, passport and ID card number, driver's license number and vehicle registration data, IP addresses, employee number, student number, patient number, signature, unique identifier in tracking cookies or similar technology); ● Pseudonymous identifiers;
● Financial and insurance information (for example insurance number, bank account name and number, credit card name and number, invoice number, income, type of assurance, payment behavior, creditworthiness);
● Commercial Information (for example history of purchases, special offers, subscription information, payment history);
● Biometric Information (for example DNA, fingerprints and iris scans); ● Location data (for example, Cell ID, geo-location network data, location by start call/end of the call. Location data derived from use of wifi access points); ● Photos, video, and audio;
● Internet activity (for example browsing history, search history, reading, television viewing, radio listening activities);
● Device identification (for example IMEI-number, SIM card number, MAC address); ● Profiling (for example based on observed criminal or anti-social behavior or pseudonymous profiles based on visited URLs, click streams, browsing logs, IP-addresses, domains, apps installed, or profiles based on marketing preferences); ● HR and recruitment data (for example declaration of employment status, recruitment information (such as curriculum vitae, employment history, education history details), job and position data, including worked hours, assessments and salary, work permit details, availability, terms of employment, tax details, payment details, insurance details and location, and organizations);
● Education data (for example education history, current education, grades and results, highest degree achieved, learning disability);
● Citizenship and residency information (for example citizenship, naturalization status, marital status, nationality, immigration status, passport data, details of residency or work permit); ● Information processed for the performance of a task carried out in the public interest or in the exercise of an official authority;
● Special categories of data (for example racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, data concerning a natural person’s sex life or sexual orientation, or data relating to criminal convictions or offences); or
● Any other personal data identified under applicable law or regulation.
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Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialized training), keeping a reco rd of access to the data, restrictions for onward transfers or additional security measures.
…
The frequency of the transfer (e.g. whether the data is transferred on a one -off or continuous basis).
Data may be transferred on a continuous basis during the term of the MCA or other agreement to which this DPA applies.
Nature of the processing
The nature, scope and purpose of processing personal data is to carry out performance of Motorola’s obligations with respect to provision of the Products and Services p urchased under the MCA and applicable Ordering Documents. The data importer utilizes a global network of data centers and management/support facilities, and processing may take place in any jurisdiction where data importer or its sub-processors utilize such facilities Purpose(s) of the data transfer and further processing
The nature, scope and purpose of processing personal data is to carry out performance of Motorola’s obligations with respect to provision of the Products and Services purchased under the MCA and applicable Ordering Documents. The data importer utilizes a global network of data centers and management/support facilities, and processing may take place in any jurisdiction where data importer or its sub-processors utilize such facilities
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
Data retention is governed by Section 10 of this Data Processing Addendum For transfers to (sub -) processors, also specify subject matter, nature and duration of the processing
Transfers to sub-processors will only be for carrying out the performance of Motorola’s obligations with respect to provision of the Products and Services purchased under the MCA and applicable Ordering Documents. The data importer utilizes a global networ k of data centers and management/support facilities, and processing may take place in any jurisdiction where data importer or its sub-processors utilize such facilities. In accordance with the DPA, the data exporter agrees the data importer may hire othe r companies to provide limited services on data importer’s ITEM 10
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behalf, such as providing customer support. Any such sub -processors must be permitted to obtain Customer Data only to deliver the services the data importer has retained them to provide, and they are prohibited from using Customer Data for any other purpose.
ANNEX II
TECHNICAL AND ORGANIZATIONAL MEASURES INCLUDING TECHNICAL AND
ORGANIZATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Measures of pseudonymisation and encryption of personal data Where technically feasible and when not impacting services provided:
● We minimize the data we collect to information we believe is necessary to communicate, provide, and support products and services and information necessary to comply with legal obligations.
● We encrypt in transit and at rest.
● We pseudonymize and limit administrative accounts that have access to reverse pseudonymisation.
Measures for ensuring ongoing confidentiality, integrity, availability and resilience of processing systems and services
In order to ensure ongoing confidentiality, integrity, availability and resilience of processing systems and services, Motorola Solutions Information Protection policy mandates the institutionalization of information protection throughout solution developm ent and operational lifecycles. Motorola Solutions maintains dedicated security teams for its internal information security and its products and services. Its security practices and policies are integral to its business and mandatory for all Motorola Solut ions employees and contractors The Motorola Chief Information Security Officer maintains responsibility and executive oversight for such policies, including formal governance, revision management, personnel education and compliance.
Motorola Solutions generally aligns to the NIST Cybersecurity Framework as well as ISO 27001.
Measures for ensuring the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident Security Incident Procedures Motorola Solutions maintains a global incident response plan to address any physical or technical incident in an expeditious manner. Motorola maintains a record of security breaches with a description of the breach, the time period, the consequ ences of the breach, the name of the reporter, and to whom the breach was reported, and the procedure for recovering data. For each security breach that is a Security Incident, notification will be made in accordance with the Security Incident Notification section of this DPA.
Business Continuity and Disaster Preparedness Motorola maintains business continuity and disaster preparedness plans for critical functions and systems within Motorola’s control that support the Products and Services purchased under t he Agreement in order to avoid services disruptions and minimize recovery risks.
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Processes for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures in order to ensure the security of the processing
Motorola periodically evaluates its processes and systems to ensure continued compliance with obligations imposed by law, regulation or contract with respect to the confidentiality, integrity, availability, and security of Customer Data, including personal information. Motorola documents the results of these evaluations and any remediation activities taken in response to such evaluations. Motorola periodically has third party assessments performed against applicable industry standards, such as ISO 27001, 27017, 27018 and 27701.
Measures for user identification and authorization
Identification and Authentication. Motorola uses industry standard practices to identify and authenticate users who attempt to access Motorola information systems. Where authentication mechanisms are based on passwords, Motorola requires that the passwords are at least eight characters long and are changed regularly. Motorola uses industry standard password protection practices, including practices designed to maintain the confidentiality and integrity of passwords when they are assigned and distributed, and during storage.
Access Policy and Administration.. Motorola maintains a record of security privileges of individuals having access to Customer Data. including personal information. Motorola maintains appropriate processes for requesting, approving and administering accounts and access privileges in connection with the Processing of Customer Data. Only authorized personnel may grant, alter or cancel authorized access to data and resources. Where an individual has access to systems containing Customer Data, the individuals are assigned separate, unique identifiers. Motorola deactivates authentication credentials on a periodic basis.
Measures for the protection of data during transmission Data is generally encrypted during transmission within the Motorola managed environments.
Encryption in transit is also generally required of any sub-processors. Further, protection of data in transit is also achieved through the access controls , physical and environmental security, and personnel security described throughout this Annex II.
Measures for the protection of data during storage
Data is generally encrypted during storage within the Motorola managed environments. Encryption in storage is also generally required of any sub -processors. Further, protection of data in storage is also achieved through the access controls, physical and environmental security, and personnel security described throughout this Annex II.
Measures for ensuring physical security of locations at which personal data are processed ITEM 10
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Motorola maintains appropriate physical and environment security controls to prevent unauthorized access to Customer Data, including personal information. This includes appropriate physical entry controls to Motorola facilities such as card -controlled entry points, and a staffed reception desk to protect against unauthorized entry. Access to controlled areas within a facility will be limited by job role and subject to authorized approval. Us e of an access badge to enter a controlled area will be logged and such logs will be retained in accordance with Motorola policy. Motorola revokes personnel access to Motorola facilities and controlled areas upon separation of employment in accordance with Motorola policies. Motorola policies impose industry standard workstation, device and media controls designed to further protect Customer Data, including personal information.
Measures for ensuring personnel security
Access to Customer Data. Motorola maintains processes for authorizing and supervising its employees, and contractors with respect to monitoring access to Customer Data. Motorola requires its employees, contractors and agents who have, or may be expected to have, access to Customer Data to comply with the provisions of the Agreement, including this Annex and any other applicable agreements binding upon Motorola.
Security and Privacy Awareness. Motorola must ensure that its employees and contractors remain aware of industry standard security and privacy practices, and their responsibilities for protecting Customer Data and Personal Data. This must include, but not be limited to, protection against malicious software, password protection, and management, and use of workstations and computer system accounts. Motorola requires periodic Information security training, privacy training, and business ethics training for all employees and contract resources
Sanction Policy. Motorola maintains a sanction policy to address violations of Motorola's internal security requirements as well as those imposed by law, regulation, or contract.
Background Checks. Motorola follows its standard mandatory employment verification requirements for all new hires. In accordance with Motorola internal policy, these requirements must be periodically reviewed and include, but may not be limited to, criminal background checks, proof of identity validation and any additional checks as deemed necessary by Motorola.
Measures for ensuring events logging
Protection, and Response. Motorola assesses organization’s effectiveness annually via external assessors who report and shar e the assessment findings with Motorola Audit Services who tracks any identified remediation. For more information, please see the Motorola Trust Center at https://www.motorolasolutions.com/en_us/about/trust-center/security.html
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Measures for certification/assurance of processes and products Motorola performs internal Secure Application Review and Secure Design Review security audits and Production Readiness Review se curity readiness reviews prior to service release. Where appropriate, privacy assessments are performed for Motorola's products and services. A risk register is created as a result of internal audits with assignments tasked to appropriate personnel.
Security audits are performed annually with additional audits as needed. Additional privacy assessments, including updated data maps, occur when material changes are made to the products or services. Further, Motorola Solution has achieved AICPA SOC2 Type 2 rep orting and ISO/IEC 27001:2013 certification for many of its development and support operations.
Measures for ensuring data minimization
Motorola Solutions policies require processing of all personal information in accordance with applicable law, including when that law requires data minimization. Further, Motorola Solutions conducts privacy assessments of its products and services and evaluates if those products and services support the principles of processing, such as data minimization.
Measures for ensuring data quality
Motorola Solutions policies require processing of all personal information in accordance with applicable law, including when that law requires ensuring the quality and accuracy of data.
Further, Motorola Solutions conducts privacy assessments of its products and services and evaluates if those products and services support the principles of processing, such as ensuring data quality.
Measures for ensuring limited data retention
Motorola Solutions maintains a data retention policy that provides a retention schedule outlining storage periods for personal data. The schedule is based on business needs and provides sufficient information to identify all records and to implement disposal decisions in line with the schedule. The policy is periodically reviewed and updated.
Measures for ensuring accountability
To ensure compliance with the principle of accountability, Motorola Solutions maintains a Privacy Program which generally aligns its activities to both the Nymity Privacy Management and Accountability Framework and NIST Privacy Framework. The Privacy Program is audited annually by Motorola Solutions Audit Services.
Measures for allowing data portability and ensuring erasure When subject to a data subject request to move, copy or transfer their personal data, Motorola Solutions will provide personal data to the Controller in a structured, commonly used and machine readable format. Where possible and if the Controller requests it, Motorola Solutions can directly transmit the personal information to another organization.
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For transfers to (sub-) processors
If, in the course of providing products and services under the MCA, Motorola Solutions transfers information containing personal data to third parties, said third parties will be subjected to a security assessment and bound by obligations substantially similar, but at least as stringent, as those included in this DPA.
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ANNEX III
LIST OF SUB-PROCESSORS
EXPLANATORY NOTE:
This Annex must be completed in case of the specific authorization of sub -processors The controller has authorized the use of the following sub-processors:
1. Name: …
Description of processing (including a clear delimitation of responsibilities in case several sub- processors are authorized): …
2. …
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Subscription Software Addendum V.2023.02.17 1
Subscription Software Addendum
This Subscription Software Addendum (this “ SSA”) is entered into between Motorola Solutions, Inc., with offices at 500 W. Monroe Street, Suite 4400, Chicago, IL 60661 (“ Motorola”) and the entity set forth in the signature block below or in the MCA (“Customer”), and will be subject to, and governed by, the terms of the Motorola Solutions Customer Agreement entered into between the Parties, effective as of [________] (the “MCA”). Capitalized terms used in this SSA, but not defined herein, will have the meanings set forth in the MCA.
1. Addendum. This SSA governs Customer’s purchase of Subscription Software (and, if set forth in an Ordering Document, related Services) from Motorola, and will form part of the Parties’ Agreement. Additional Subscription Software-specific Addenda or other terms and conditions may apply to certain Subscription Software, where such terms are provided or presented to Customer.
2. Delivery of Subscription Software.
2.1. Delivery. During the applicable Subscription Term (as defined below), Motorola will provide to Customer the Subscription Software set forth in an Ordering Document, in accordance with the terms of the Agreement. Motorola will provide Customer advance notice (which may be provided electronically) of any planned downtime. Delivery will occur upon Customer’s receipt of credentials required for access to the Subscription Software or upon Motorola otherwise providing access to the Subscription Software. If agreed upon in an Ordering Document, Motorola will also provide Services related to such Subscription Software.
2.2. Modifications. In addition to other rights to modify the Products and Services set forth in the MCA, Motorola may modify the Subscription Software, any associated recurring Services and any related systems so long as their functionality (as described in the applicable Ordering Document) is not materially degraded. Documentation for the Subscription Software may be updated to reflect such modifications. For clarity, new features or enhancements that are added to any Subscription Software may be subject to additional Fees.
2.3. User Credentials . If applicable, Motorola will provide Customer with administrative user credentials for the Subscription Software, and Customer will ensure such administrative user credentials are accessed and used only by Customer’s employees with training on their proper use. Customer will protect, and will cause its Authorized Users to protect, the confidentiality and security of all user credentials, including any administrative user credentials, and maintain user credential validity, including by updating passwords. Customer will be liable for any use of the Subscription Software through such user credential (including through any administrative user credentials), including any changes made to the Subscription Software or issues or user impact arising therefrom. To the extent Motorola provides Services to Customer in order to help resolve issues resulting from changes made to the Subscription Software through user credentials, including through any administrative user credentials, or issues otherwise created by Authorized Users, such Services will be billed to Customer on a time and materials basis, and Customer will pay all invoices in accordance with the payment terms of the MCA.
2.4. Beta Services . If Motorola makes any beta version of a software application (“ Beta Service”) avail able to Customer, Customer may choose to use such Beta Service at its own discretion, provided, however, that Customer will use the Beta Service solely for purposes of Customer’s evaluation of such Beta Service, and for no other purpose. Customer acknowled ges and agrees that all Beta Services are offered “as -is” and without any representations or warranties or other commitments or protections from Motorola. Motorola will determine the duration of the ITEM 10
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evaluation period for any Beta Service, in its sole discretion, and Motorola may discontinue any Beta Service at any time. Customer acknowledges that Beta Services, by their nature, have not been fully tested and may contain defects or deficiencies.
3. Subscription Software License and Restrictions.
3.1. Subscription Software License. Subject to Customer’s and its Authorized Users’ compliance with the Agreement, including payment terms, Motorola hereby grants Customer and its Authorized Users a limited, non-transferable, non-sublicenseable, and non-exclusive license to use the Subscription Software identified in an Ordering Document, and the associated Documentation, solely for Customer’s internal business purposes. The foregoing license grant will be limited to use in the territory and to the number of licenses set forth in an Ordering Document (if applicable), and will continue for the applicable Subscription Term. Customer may access, and use the Subscription Software only in Customer’s owned or controlled facilities, including any authorized mobile sites; provided, however, that Authorized Users using authorized mobile or handheld devices may also log into and access the Subscription Software remotely from any location. No custom development work will be performed under this Addendum.
3.2. End User Licenses . Motorola may use, engage, resell, or otherwise interface with third- party software, hardware or services providers (such as, for example, third-party end point detection and response providers) and other sub-processors, who in turn may engage additional sub-processors to process personal data and other Customer Data. Customer agrees that such third-party software or services providers, sub-processors or their respective sub-processors may process and use personal and other Customer Data in accordance with and subject to their own respective licenses or terms and in accordance with applicable law. Customer authorizes and will provide and obtain all required notices and consents, if any, and comply with other applicable legal requirements, if any, with respect to such collection and use of personal data and other Customer Data by Motorola, and its subcontractors, sub-processors and/or third-party software, hardware or services providers. Notwithstanding any provision to the contrary, to the extent the use or performance of certain Services is governed by any separate license, data requirement, EULA, privacy statement, or other applicable agreement, including terms governing third-party software, hardware or services, including open source software, Customer will comply, and ensure its Authorized Users comply, with any such agreements or terms, which shall govern any such Services.
3.3. Customer Restrictions . Customers and Authorized Users will comply with the applicable Documentation and the copyright laws of the United States and all other relevant jurisdictions (including the copyright laws where Customer uses the Subscription Software) in connection with their use of the Subscription Software. Customer will not, and will not allow others including the Authorized Users, to make the Subscription Software available for use by unauthorized third parties, including via a commercial rental or sharing arrangement; reverse engineer, disassemble, or reprogram software used to provide the Subscription Software or any portion thereof to a human-readable form; modify, create derivative works of, or merge the Subscription Software or software used to provide the Subscription Software with other software; copy, reproduce, distribute, lend, or lease the Subscription Software or Documentation for or to any third party; take any action that would cause the Subscription Software, software used to provide the Subscription Software, or Documentation to be placed in the public domain; use the Subscription Software to compete with Motorola; remove, alter, or obscure, any copyright or other notice; share user credentials (including among Authorized Users); use the Subscription Software to store or transmit malicious code; or attempt to gain unauthorized access to the Subscription Software or its related systems or networks.
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4. Term.
4.1. Subscription Terms . The duration of Customer’s subscription to the first Subscription Software and any associated recurring Services ordered under this SSA (or the first Subscription Software or recurring Service, if multiple are ordered at once) will commence upon delivery of such Subscription Software (and recurring Services, if applicable) and will continue for a twelve (12) month period or such longer period identified in an Ordering Document (the “ Initial Subscription Period”). Following the Initial Subscription Period, Customer’s subscription to the Subscription Software and any recurring Services will automatically renew for additional twelve (12) month periods (each, a “ Renewal Subscription Year”), unless either Party notifies the other Party of its intent not to renew at least thirty (30) days before the conclusion of the then-current Subscription Term. (The Initial Subscription Period and each Renewal Subscription Year will each be referred to herein as a “Subscription Term”.) Motorola may increase Fees prior to any Renewal Subscription Year. In such case, Motorola will notify Customer of such proposed increase no later than thirty (30) days prior to commencement of such Renewal Subscription Year. Unless otherwise specified in the applicable Ordering Document, if Customer orders any additional Subscription Software or recurring Services under this SSA during an in-process Subscription Term, the subscription for each new Subscription Software or recurring Service will (a) commence upon delivery of such Subscription Software or recurring Service, and continue until the conclusion of Customer’s then - current Subscription Term (a “ Partial Subscription Year ”), and (b) automatically renew for Renewal Subscription Years thereafter, unless either Party notifies the other Party of its intent not to renew at least thirty (30) days before the conclusion of the then-current Subscription Term.
Thus, unless otherwise specified in the applicable Ordering Document, the Subscription Terms for all Subscription Software and recurring Services hereunder will be synchronized.
4.2. Term. The term of this SSA (the “ SSA Term”) will commence upon either (a) the Effective Date of the MCA, if this SSA is attached to the MCA as of such Effective Date, or (b) the SSA Date set forth on the signature page below, if this SSA is executed after the MCA Effective Date, and will continue until the expiration or termination of all Subscription Terms under this SSA, unless this SSA or the Agreement is earlier terminated in accordance with the terms of the Agreement.
4.3. Termination. Notwithstanding the termination provisions of the MCA, Motorola may terminate this SSA (or any Addendum or Ordering Documents hereunder), or suspend delivery of Subscription Software or Services, immediately upon notice to Customer if (a) Customer breaches Section 3 – Subscription Software License and Restrictions of this SSA, or any other provision related to Subscription Software license scope or restrictions set forth in an Addendum or Ordering Document, or (b) it determines that Customer’s use of the Subscription Software poses, or may pose, a security or other risk or adverse impact to any Subscription Software, Motorola, Motorola’s systems, or any third party (including other Motorola customers). Customer acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Subscription Software and Documentation, and that Customer’s breach of the Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Customer breaches this Agreement, in addition to termination, Motorola will be entitled to all available remedies at law or in equity (including immediate injunctive relief).
4.4. Wind Down of Subscription Software . In addition to the termination rights in the MCA, Motorola may terminate any Ordering Document and Subscription Term, in whole or in part, in the event Motorola plans to cease offering the applicable Subscription Software or Service to customers.
5. Payment.
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5.1. Payment. Unless otherwise provided in an Ordering Document (and notwithstanding the provisions of the MCA), Customer will prepay an annual subscription Fee set forth in an Ordering Document for each Subscription Software and associated recurring Service, before the commencement of each Subscription Term. For any Partial Subscription Year, the applicable annual subscription Fee will be prorated based on the number of months in the Partial Subscription Year. The annual subscription Fee for Subscription Software and associated recurring Services may include certain one-time Fees, such as start-up fees, license fees, or other fees set forth in an Ordering Document. Motorola will have the right to suspend the Subscription Software and any recurring Services if Customer fails to make any payments when due. The parties acknowledge that pricing for Cyber Services is dependent on the full term or subscription periods specified in any such Ordering Document. Motorola will have the right to suspend the Services if Customer fails to make any payments when due
5.2. License True- Up. Motorola will have the right to conduct an audit of total user licenses credentialed by Customer for any Subscription Software during a Subscription Term, and Customer will cooperate with such audit. If Motorola determines that Customer’s usage of the Subscription Software during the applicable Subscription Term exceeded the total number of licenses purchased by Customer, Motorola may invoice Customer for the additional licenses used by Customer, pro-rated for each additional license from the date such license was activated, and Customer will pay such invoice in accordance with the payment terms in the MCA.
5.3. Customer Data . For avoidance of doubt, for Cyber Services so long as not specifically identifying the Customer, “Customer Data,” as defined in the MCA, shall not include, and Motorola shall be free to use, share and leverage security threat intelligence and mitigation data generally, including without limitation, third party threat vectors and IP addresses, file hash information, domain names, malware signatures and information, information obtained from third party sources, indicators of compromise, and tactics, techniques, and procedures used, learned or developed in the course of providing Services
5.4. Future Regulatory Requirements. The Parties acknowledge and agree that Cyber Service is an evolving technological area and therefore, laws and regulations regarding Services may change. Changes to existing Services required to achieve regulatory compliance may be available for an additional fee. Any required changes may also impact the price for Services.
6. Liability.
6.1. ADDITIONAL EXCLUSIONS. IN ADDITION TO THE EXCLUSIONS FROM DAMAGES SET
FORTH IN THE MCA, AND NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT TO
THE CONTRARY, MOTOROLA WILL HAVE NO LIABILITY FOR (A) INTERRUPTION OR FAILURE OF CONNECTIVITY, VULNERABILITIES, OR SECURITY EVENTS; (B) DISRUPTION OF OR DAMAGE TO CUSTOMER’S OR THIRD PARTIES’ SYSTEMS, EQUIPMENT, OR DATA,
INCLUDING DENIAL OF ACCESS TO USERS, OR SHUTDOWN OF SYSTEMS CAUSED BY INTRUSION DETECTION SOFTWARE OR HARDWARE; (C) AVAILABILITY OR ACCURACY OF
ANY DATA AVAILABLE THROUGH THE SUBSCRIPTION SOFTWARE OR SERVICES, OR INTERPRETATION, USE, OR MISUSE THEREOF; (D) TRACKING AND LOCATION-BASED SERVICES; OR (E) BETA SERVICES.
6.2. Direct Damages . For avoidance of doubt, notwithstanding the limitation set out in Section
8.2 of the MCA, the direct damages limitation for Cyber services provided under this SSA and limited to the fees, or the portion of fees, relating only to the Cyber Security Services under this SSA, even if such Services are offered or bundled with other Motorola services.
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6.3. Voluntary Remedies . Motorola is not obligated to remedy, repair, replace, or refund the purchase price for the disclaimed or excluded issues in the MCA or Section 6.1 – Additional Exclusions above, but if Motorola agrees to provide Services to help resolve such issues, Customer will reimburse Motorola for its reasonable time and expenses, including by paying Motorola any Fees set forth in an Ordering Document for such Services, if applicable.
7. Motorola as a Controller or Joint Controller. In all instances where Motorola acts as a controller of data, it will comply with the applicable provisions of the Motorola Privacy Statement at https://www.motorolasolutions.com/en_us/about/privacy-policy.html#privacystatement, as may be updated from time to time. Motorola holds all Customer Contact Data as a controller and shall Process such Customer Contact Data in accordance with the Motorola Privacy Statement. In instances where Motorola is acting as a joint controller with Customer, the Parties will enter into a separate Addendum to the Agreement to allocate the respective roles as joint controllers.
8. Survival. The following provisions will survive the expiration or termination of this SSA for any reason: Section 4 – Term; Section 5 – Payment; Section 6.1 – Additional Exclusions ; Section 8 – Survival.
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Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
AVIGILON CORPORATION
ACCESS CONTROL MANAGER (ACM) software
ACM Embedded Controller (ACM EC) software Terms and Conditions of Use IMPORTANT - PLEASE READ CAREFULLY: These terms ("Agreement") constitute a legal agreement between you (either an individual person, the company, or the organization that has licensed this software, who will be referred to as "Licensee", "You" and, where appropriate, "Your") and Avigilon Corporation for the Avigilon software product and related materials that accompany this agreement. By clicking the "Accept" button, opening the package, downloading the product, using the equipment that contains this software, or otherwise using this software, You acknowledge that You have read, understand, and agree to become bound by the terms of this agreement.
If You do not agree with the terms of this agreement, do not install and/or use the software or equipment containing the software; instead, You should return the software to Your place of purchase for a full refund. If You do not have the authority to bind the Licensee to these terms, do not install and/or use the software or equipment containing the software.
1. Definitions
1.1 “Appliance Products” means all computer hardware, access control components and accessories purchased from the Company and utilized in conjunction with the Software.
1.2 “Authorized Systems” means computer systems and related Appliance Products purchased by Licensee, and authorized pursuant to the Documentation, and shall be further limited to systems owned, operated or under the supervision and control of Licensee.
1.3 “Authorized Users” means persons authorized by the Licensee to install, operate or use the Software.
1.4 1.4. “Company” means Avigilon Corporation with an address at Suite 378, 101 -1001 West Broadway, Vancouver, British Columbia, Canada, V6H 4E4, and its affiliates.
1.5 “Documentation” means Company’s standard user manuals and/or related documentation respecting the Software
1.6 “Equipment” means computer systems and related Appliance Products purchased by Licensee, and authorized pursuant to the documentation provided with this Software, and shall be further limited to systems owned, operated or under the supervision and control of Licensee.
1.7 “Licensee” means the employer, company or other legal entity, on behalf of which You enter into this Agreement; provided that You have the legal authority on behalf of such employer, company or other legal entity to bind the employer, company or other legal entity to the terms and conditions of this Agreement; provided further that in the event that You do not, then You and the Licensee shall not be authorized to use the Software and any use shall constitute a violation of law.
1.8 “Software” means the Avigilon Access Control Manager (“ACM”) or the Avigilon Access Control Manager Embedded Controller (“ACM EC”) packa ged computer program and patches, including upgrades, updates and new releases, in object code and related documentation that is provided along with this Agreement.
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
1.9 “Third Party Components” means all third party code, software, and APIs, including third party code included or embedded in the Software and components referenced in the delivered file ACM THIRDPARTYLICENSE.TXT or in any file entitled "README", "COPYING", "COPYRIGHT", "LICENSE", "AGREEMENT " or a substantially similar title (any such file referred to herein as a “README FILE”), included with the Software or a fix pack or update to the Software.
1.10 “You” (and where appropriate “Your”) means the person accepting this Agreement on behalf of the Licensee and for him/herself, consistent with the preamble to this Agreement.
2. License
2.1 Subject to the terms and conditions of this Agreement, Company hereby grants to Licensee a non-exclusive, non-transferable, non-sublicenseable right and license to install and operate the Software on one (1) or more Authorized Systems, solely in accordance with applicable Documentation provided by Company, solely for use by Authorized Users, and solely for Licensee’s internal business purposes. Each copy of the Software is licensed for use within the scope provided for by the license key or written permission.
2.2 Subject to the terms and conditions of this Agreement, Company hereby grants to Licensee a non-exclusive, non-transferable, non- sublicenseable right and license to make a reasonable number of copies of the Documentation provided by Company, solely for use by Authorized Users in connection with the exercise of rights granted in Section 3.1.
2.3 Licensee acknowledges and agrees that it shall be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User, which, if undertaken by Licensee, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Licensee. Licensee shall undertake reasonable efforts to make all Authorized Users aware of the provisions of t his Agreement as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions.
2.4 Delivery of one (1) copy of each of the Software and the Documentation shall be deemed complete upon download of the Software and Documentation, or receipt by Licensee of media upon which the Software and Documentation are digitally stored, and such download or receipt (as the case may be) shall constitute acceptance by Licensee of the Software and Documentation. Unless otherwise agreed between the Parties in a separate written agreement, Company shall have no obligation to install or configure the Software for or on behalf of Licensee.
2.5 Licensee may not and may not have any third party copy, reproduce, modify or otherwise adapt the Software, including for the purposes of correcting any errors thereof, translate, disassemble, decompile or reverse engineer the Software or perform any other act in order to reconstitute the source code, for itself or on behalf of any third party, company or legal entity. All rights not expressly granted herein are reserved by Company.
2.6 It is Licensee’s responsibility to provide the adequate hardware and software equipment necessary to ensure the proper functioning of the Software.
2.7 No software component integrated into the Software can be used independently of the Software except if Licensee has been granted independent rights of use for the software components under a separate written license agreement with Company.
2.8 Licensee will not use the Software or Documentation for any purposes beyond the scope of the licenses granted in this Agreement.
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
2.9 Without limiting the generality of the foregoing, Licensee will not (i) authorize or permit use of the Software or Documentation by persons other than Authorized Users; (ii) market or distribute the Software or Documentation; (iii) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Licensee’s rights under the licenses granted herein; (iv) use the Software in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party; (v) modify the Software or Documentation, except with the prior written consent of Company; (vi) combine or integrate the Software with hardware, software or technology not provided to Licensee by Company hereunder, provided that use of the standard application programming interface of the Software, as contemplated in the Documentation, will not be considered to violate the foregoing; or (vii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Software is compiled or interpreted, and Licensee hereby acknowledges that nothing in this Agreement shall be construed to grant Licensee any right to obtain or use such source code.
3. Ownership of copyright – indemnification
3.1 Company retains all exclusive right, title, interest and ownership in and to the Software and components and all derivative works, modifications, and extensions thereto, no matter by whom such is created as well as any patent, trademark or copyrights associated with the Software and components and all derivative works, modifications, and extensions thereto and its related documentation (the “Works”). Additionally, this Agreement does not grant You any rights in connection with any trademarks of the Company.
3.2 In the event any such Works do not fall within the specifically enumerated works that constitute works made for hire under the applicable copyright or patent laws, Licensee hereby, on its own behalf and on behalf of any entity that it is contracting with, irrevocably, expressly and automatically assigns all right, title and interest worldwide in and to such Works to Company, including, without limitation, all copyright, patent rights, trade secrets, trademarks, moral rights and all other applicable proprietary and intellectual property rights. Licensee shall not, nor permit the entity on whose behalf You act, otherwise copy, translate, modify, decompile, disassemble, reverse engineer or adapt in any manner the Software, except as specifically authorized under applicable laws or by Company in writing; provided that where Company has specifically granted Licensee in writing the right to use the Software in order to deliver Software components that are executable and as source code specifically for the purpose of customizing Licensee’s own dashboard and tools, Licensee may use the Software for that specific purpose.
3.3 If an action is brought against Licensee claiming that the Software infringes a patent or copyright, Company will defend Licensee at Company’s expense and, subject to this section and Section 7, pay the damages and costs finally awarded against Licensee in the infringement action, but only if (1) Licensee notifies Company immediately upon learning that the claim might be asserted, (2) Company has sole control over the defense of the claim and any negotiation for its settlement or compromise, and (3) Licensee takes no action that, in Company’s judgment, is contrary to Company’s interest. This indemnity is not provided to the extent excluded under Section 5 below.
3.4 If a claim described in the above section may be or has been asserted, Licensee will permit Company, at Company’s sole option and expense, to (1) procure the right to continue using the Software, (2) replace or modify the Software to eliminate the infringement while providing functionally equivalent performance, or (3) accept the return of the Software and refund to Licensee an amount equal to the pro-rata portion of the license price actually paid by Licensee over the period the Software could not be used.
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
4. Third Party Components
4.1 Notwithstanding the terms and conditions of any other agreement the Licensee may have entered into with Company, whether orally or in writing, the following terms and conditions apply to all Third Party Components.
4.2 The Software and future updates and fix packs to the Software may contain certain Third Party Components which are provided to Licensee under terms and conditions which are different from this Agreement, or which require Company to provide Licensee with certain notices and/or information. The Third Party Component will contain or be accompanied by its own license agreement set out in the applicable delivered file as per Section 2.8, or included among the Software's paper documentation, if any.
4.3 Licensee’s use of each Third Party Component which contains, or is accompanied by, its own license agreement, or for which Company has identified a license agreement in a delivered file as per Section 2.8 (or in a file or files referenced therein), will be subject to the terms and conditions of such other license agreement, and not this Agreement.
4.4 By using or not uninstalling such Third Party Components after the initial installation of such Third Party Components (thereby giving You access to the applicable license agreements, notices and information), Licensee acknowledges and agrees to all such license agreements, notices and information, including those provided only in the English language. Licensee agrees to review any updated delivered files as per Section 2.8, which accompany updates and fix packs to the Software.
4.5 All Third Party Components are provided on an "AS IS" basis. Company DISCLAIMS
ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT
NOT LIMITED TO, THE WARRANTY OF NON- INFRINGEMENT, AGAINST LATENT DEFECTS,
OR INTERFERENCE, AND THE IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY, UNSATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. Company will not be liable to You, or indemnify You, for any claims related to the Third Party Components and Company will not be liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages with respect to the Third Party Components.
5. No warranty
5.1 THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. COMPANY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, UNSATISFACTORY
QUALITY, AGAINST LATENT DEFECTS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
5.2 COMPANY DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE (A) OPERATES OR WILL OPERATE ERROR FREE OR UNINTERRUPTED; (B) WILL OPERATE IN
COMBINATION WITH ANY SOFTWARE, HARDWARE OR OTHER COMPONENT WHICH MAY BE SELECTED FOR USE BY LICENSEE; OR (C) HAS OR WILL HAVE ALL PROGRAM DEFECTS CORRECTED.
5.3 THE SOFTWARE AND RELATED APPLIANCE PRODUCTS ARE NOT DESIGNED,
MADE, CONCEIVED AND/OR LICENSED FOR USE IN DANGEROUS OR HAZARDOUS
ENVIRONMENTS, NOR DOES THE SOFTWARE ENSURE THAT THERE WILL BE NO SECURITY BREACHES. LICENSEE AGREES AND LICENSEE ACKNOWLEDGES THAT IT WILL ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
PROCURE INSURANCE COVERAGE FOR THE PURPOSE OF PROTECTING IT AGAINST ALL
RISKS RELATING TO LOSSES ASSOCIATED WITH SECURITY OR SAFETY BREACHES, VIOLATIONS, OR ISSUES. Any product description (whether in specifications, samples, models, bulletin, drawings, diagrams, engineering sheets, or similar materials used in connection with the Licensee’s order) are for the sole purpose of identifying the Software or Appliance Products and shall not be construed as an express warranty or condition. Any suggestions by Company or Company’s agents regarding use, applications, or suitability of the Appliance Products shall not be construed as an express warranty or condition unless confirmed to be such in writing by Company.
Company does not represent that the products it sells (including without limitation the Appliance Products) may not be compromised or circumvented; that the products will prevent any personal injury or property loss by burglary, robbery, fire or otherwise, or that the Comp any’s products (including without limitation the Appliance Products) will in all cases provide adequate warning or protection. Licensee understands and will cause its customers to understand that a properly installed and maintained access control solution is not insurance or a guarantee that burglary, robbery, fire, or otherwise will not occur or will not cause or lead to personal injury or property loss.
CONSEQUENTLY, COMPANY SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY,
PROPERTY DAMAGE OR OTHER LOSS BASED ON ANY CLAIM AT ALL INCLUDING A CLAIM THE APPLIANCE PRODUCT FAILED TO GIVE ADEQUATE WARNING. However, if Company is held liable whether directly or indirectly for any loss or damage with respect to the Software or any products it sells, regardless of cause or origin, its maximum liability shall not in any case exceed the purchase price of the Appliance Product, which shall be fixed as liquidated damages and not as a penalty, and shall be the complete and exclusive remedy against the Company in such event.
6. Limitation of liability
6.1 UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON LICENSEE’S CLAIMS
OR THOSE OF ITS USERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, USE OF MONEY OR USE OF THE SOFTWARE, INTERRUPTION IN USE OR
AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS)
ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF
CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR IN TORT OR OTHERWISE.
6.2 IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH COMPANY MAY INCUR IN
ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SPECIFIC SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE. THIS SECTION
SHALL NOT APPLY TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY EXCLUDES ITS ENFORCABILITY, DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
7. Confidentiality
7.1 Licensee acknowledges that the Software incorporates confidential information developed or acquired by or licensed to Company. The confidential information includes without limitation, source code, object code, interfaces, APIs, dashboards, and all components of the Software. Licensee agrees that it will not use the Software and any confidential information provided therein, except for authorized use as specifically provided herein, that it shall not disclose to any third party nor permit any other to disclose the Software and any confidential information to any person or entity that is not a Licensee as defined herein, and agrees to take all reasonable precautions necessary to safeguard the confidentiality of the Software and any confidential information provided therein.
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
8. Terminati on
8.1 Upon termination of this Agreement for any reason, all rights granted to Licensee hereunder shall cease, and Licensee shall destroy all copies of the Software, and at Company’s request certify such destruction in writing.
8.2 The provisions of Sections 4.1, 4.2, 6, 7, 8, 12 and any payment obligations will survive the termination of this Agreement.
9. Assignment
9.1 Licensee shall not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without Company’s prior approval, which it may withhold at its sole discretion. Any assignment, delegation or transfer in violation of this clause shall be deemed null and void.
9.2 Company shall have the right to immediately terminate this Agreement and any licenses contained herein at any time if Licensee changes controls pursuant to the acquisition, through sale, merger or otherwise of more than 50% of its shares or voting rights.
10. U.S. GOVERNMENT RESTRICTED RIGHTS
10.1 This Section only applies if the end user is a department, agency, or instrumentality of the government of the United States of America. The Software and Documentation are “Commercial Items”, as that term is defined at FAR 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in FAR 12.212 or DFAR 227.7202 (as applicable), and: (a) were developed at private expense prior to provision to any U.S.
Government entity; and (b) are provided wi th “restricted rights” and under licenses customarily provided to the public to the extent such licenses are consistent with U.S. federal law and otherwise satisfy the U.S. government’s needs. Accordingly, consistent with FAR 12.212 or DFAR 227.7202 -1 through 227.7202-4 (as applicable), the Software and Documentation are being licensed to U.S.
Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
11. COLLECTION OF DATA
11.1 By Licensee’s acceptance of the terms of this Agreement, Licensee agrees that Company may collect, from time to time, information about the computer(s) on which Licensee has installed or will be using the Software. This information represents a configuration of Licensee’s computer(s) but includes no personal information, information about other software or data on Licensee’s computer, or information about the specific make or model of Licensee’s computer(s). A hash of this information may be disclosed to a third party vendor, Flexera Software LLC (“Flexera”), to assist with management and enforcement of Licensee’s hardware and software keys. Company may also disclose to Flexera Licensee’s business name, the business name from whom Licensee purchased the Software, the name of the site on which the Software is installed, and the other hardware and software keys installed at that site (if any). The information will be used solely to associate Licensee’s computer(s) with the hardware and software keys and to identify Licensee’s computer(s). The Flexera Privacy Policy can be found at:
https://www.flexerasoftware.com/legal/privacy-policy.html.
12. Miscellaneous
ITEM 10
Ceres PD 27 March 2024
Unity Video and Access Control System
Use or disclosure of this proposal is subject to the restrictions on the cover page.
Motorola Solutions Confidential Restricted
12.1 It is agreed by Licensee that any violation of the scope of any license provided in this Agreement, or any intellectual property right in this Agreement shall entitle Company to injunctive relief or other equitable remedies from any court of competent jurisdiction.
12.2 This Agreement and performance hereunder will be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein without reference to principles of conflicts of laws and the courts in Vancouver, British Columbia and the courts of appeal therefrom will have exclusive jurisdiction to hear any proceedings relating to this Agreement.
12.3 If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless Company in good faith deems the unenforceable provision to be essential, in which case Company may terminate this Agreement effective immediately upon notice to Licensee.
12.4 Except as specifically stated herein, this Agreement constitutes the complete and entire statement of all conditions and representations of the agreement between Company and Licensee with respect to its subject matter and supersedes all prior writings or understandings. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
12.5 The waiver or failure of Company to exercise in any respect any right provided herein will not be deemed a waiver of any further right hereunder.
12.6 If You are a business, company or organization, You agree that upon request from Company or its authorized representative You will within thirty (30) days fully document and certify that use of any and all Company software at the time of the request is in conformity with Your valid license(s) from Company.
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