Indio City Council
December 7, 2022

City of Indio
City Council
December 7, 2022

STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Mike Washburn, Chief of Police
Subject: Six-Year Professional Services Agreement (PSA) with Dailey and Wells Communications, Inc. for mobile and portable radios and installation services utilizing cooperative purchasing procedures in the amount not-to-exceed $1,527,401.00, and budget adjustments.

RECOMMENDATION:

Approve a six-year Professional Services Agreement (PSA) between the City of Indio ("City") and Dailey and Wells Communications, Inc. to provide mobile and portable radios and installation services for the Police Department, utilizing cooperative purchasing procedures in the amount not-to-exceed $1,527,401, beginning December 15, 2022, through December 14, 2028; and direct the Finance Department to make the necessary budget adjustments as reflected in the financial analysis section of the staff report.

SUMMARY:

This action will approve a six-year agreement with Dailey and Wells Communications, Inc. (Attachment A) in the amount not-to-exceed $1,527,401, for radios and installation services. This amount includes a five-year warranty and maintenance package on all mobile and portable radios.

Dailey and Wells Communications, Inc., has offered the opportunity to "piggyback" on the City of Palm Springs radio and installation contract (approved by their City Council on September 29, 2022) and will provide the City with competitively-bid pricing terms for mobile and portable radios and installation services.

BACKGROUND INFORMATION:

In July 2008, the Cities of Indio, Cathedral City, Desert Hot Springs, and Palm Springs formed the Eastern Riverside County Interoperable Communications Authority (ERICA) pursuant to a Joint Exercise of Powers Agreement (JPA) in order to acquire, plan, design, finance, construct, operate and maintain a regional communication system serving the Coachella Valley and individual political jurisdictions therein. The City of Beaumont joined ERICA in January 2009. ERICA is the primary communications network used by the police departments of the partnering agencies.

At the April 21, 2021, Eastern Riverside County Interoperable Communications Authority (ERICA) Study Session, City of Indio staff, along with representatives from the County's Public Safety Enterprise Communications (PSEC) radio system, presented information on both the ERICA system and the County's PSEC system. Additionally, staff sought City Council's feedback in regard to a potential exit from ERICA and a new partnership with Riverside County through PSEC. Under the provisions of the JPA, an agency may leave the JPA with 90 days' written notice. At that time, City AGENDA ITEM #13.8
Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 265 of 764 Council provided direction to staff to proceed with a transition plan for the City of Indio to join the County's PSEC system.

In recent months, several ERICA agencies, to include the cities of Palm Springs and Cathedral City, have started their PSEC transition and have already purchased new radio equipment as part of their transition plan. Similarly, a transition plan to PSEC will require the City of Indio to replace its existing radio equipment. The proposed purchase of Harris-brand mobile and portable radios will replace the original equipment that was initially purchased in 2008, and which is now at the end of its useful life (i.e., the manufacturer no longer makes parts and equipment necessary to service the product). The purchased radios come with a standard two-year warranty and the City is adding an extended threeyear warranty and maintenance, for a total of a five-year warranty and maintenance package on all the radios. Additionally, the new radio equipment meets the Project 25 (P25) suite of standards for interoperable digital two-way radio compliance requirements.

Public agencies are permitted to use cooperative purchasing agreements, also known as "piggybacking" with other agencies. This approach allows an agency to agree to competitively-bid services at the same cost using the competitive bidding process already completed by other public agencies. In July 2022, the City of Palm Springs issued an Invitation for Bids for radios and installation services, and Dailey and Wells Communications, Inc., was awarded the contract in September 2022.

Dailey and Wells Communications, Inc., has agreed to provide radio and installation services under the terms and conditions in the City of Palm Springs' contract (Attachment B). Pursuant to the authority in Section 33.116 (c)(4)(c) of the Indio Municipal Code, staff recommends that the City move forward with this cooperative purchasing process.

The City of Indio's transition to PSEC will also require additional approvals and radio equipment procurement. The following item will be brought to Council at a later date:
• Formal approval of an agreement to transition to and utilize the PSEC radio system and related interoperable communications equipment procurement and upgrades.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$1,527,401.00 In current year budget: No
Current FY General
Fund Impact:
$1,318,166.00 Budget adjustment: Yes
Next FY Financial
Impact:
$0.00 Strategic Objective: Public Safety
Source of funds: General Fund Assigned Fund
Balance & SHSP Grant
Fund-Org-Object
Reference:
101-304015 and 227-
555005
Additional Financial Details:

The City Council set aside $1 million for public safety radio replacements in Fiscal Year 2019-20.

That set aside was increased to $2 million the following fiscal year (FY 2020-21). Upon approval, $1,318,166 will be appropriated this year, leaving $681,834 earmarked within the General Fund for future radio costs associated with the transition from the Eastern Riverside Interoperable Communications Authority (ERICA) system over to the Riverside County Public Safety Enterprise Communication (PSEC) system. Additionally, the City was awarded a Fiscal Year 2021 State Homeland Security Program (SHSP) grant in the amount of $209,235 to offset the cost of the City's

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 266 of 764 radio purchase. These one-time funds are available and have been incorporated into the Police Department's current fiscal year SHSP Special Revenue Fund budget (227-555005).

Increase appropriations:
1014215-555005 Machinery and Equipment $1,318,166
Expected offset:
101-304015 Assigned Fund Balance $1,318,166
Staff would also like to draw City Council's attention to future annual PSEC costs, once the City has transitioned to the PSEC system. The projected annual PSEC subscriber cost is estimated to be $423,221 in Year 1 (using FY 23/24 PSEC yearly rate projections). PSEC staff estimates that subscriber costs will decrease as they continue to onboard new users. The Police Department is proposing to use Prop. 172 special revenue funds, as well as the Police Department's annual Supplemental Law Enforcement Services Account (SLESA) allocation to help offset the City's annual PSEC subscriber costs.

ATTACHMENTS:

Attachment B Dailey Wells Letter
Attachment A Indio and Dailey Wells Professional Services Agreement (PSA) Attachment C Dailey Wells Radios & Installation Unit Cost APPROVAL(S):

Mike Washburn, Chief of Police Approved - 22 Nov 2022
Steven Graham, City Attorney Approved - 22 Nov 2022
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 23 Nov 2022 Bryan H. Montgomery, City Manager Approved - 28 Nov 2022

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 267 of 764 City of Indio
City Council
December 7, 2022

STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Mike Washburn, Chief of Police
Subject: Six-Year Professional Services Agreement (PSA) with Dailey and Wells Communications, Inc. for mobile and portable radios and installation services utilizing cooperative purchasing procedures in the amount not-to-exceed $1,527,401.00, and budget adjustments.

RECOMMENDATION:

Approve a six-year Professional Services Agreement (PSA) between the City of Indio ("City") and Dailey and Wells Communications, Inc. to provide mobile and portable radios and installation services for the Police Department, utilizing cooperative purchasing procedures in the amount not-to-exceed $1,527,401.00, beginning December 15, 2022, through December 14, 2028; and direct the Finance Department to make the necessary budget adjustments as reflected in the financial analysis section of the staff report.

SUMMARY:

This action will approve a six-year agreement with Dailey and Wells Communications, Inc. in the amount not-to-exceed $1,527,401.00, for radios and installation services. This amount includes a fiveyear warranty package on all mobile and portable radios. Dailey and Wells Communications, Inc., has offered the opportunity to "piggyback" on the City of Palm Springs' radio and installation contract (approved by their City Council on September 29, 2022) and will provide the City with competitivelybid pricing terms for mobile and portable radios and installation services.

BACKGROUND INFORMATION:

In July 2008, the Cities of Indio, Cathedral City, Desert Hot Springs, and Palm Springs formed the Eastern Riverside County Interoperable Communications Authority (ERICA) pursuant to a Joint Exercise of Powers Agreement (JPA) in order to acquire, plan, design, finance, construct, operate and maintain a regional communication system serving the Coachella Valley and individual political jurisdiction therein. The City of Beaumont joined ERICA in January 2009. ERICA is the primary communications network used by the police departments of the partnering agencies.

At the April 21, 2021, Eastern Riverside County Interoperable Communications Authority (ERICA) Study Session, City of Indio staff, along with representatives from the County's Public Safety Enterprise Communications (PSEC) radio system, presented information on both the ERICA system and the County's PSEC system. Additionally, staff sought City Council's feedback in regard to a potential exit from ERICA and a new partnership with Riverside County through PSEC. Under the provisions of the JPA, an agency may leave the JPA with 90 days' written notice. At that time, City

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 268 of 764 Council provided direction to staff to proceed with a transition plan for the City of Indio to join the County's PSEC system.

In recent months, several ERICA agencies, to include the cities of Palm Springs and Cathedral City, have started their PSEC transition and have already purchased new radio equipment as part of their transition plan. Similarly, a transition plan to PSEC will require the City of Indio to replace its existing radio equipment. The proposed purchase of Harris-brand mobile and portable radios will replace the original equipment that was initially purchased in 2008, and which is now at the end of its useful life (i.e., the manufacturer no longer makes parts and equipment necessary to service the product).

Additionally, the new radio equipment meets the Project 25 (P25) suite of standards for interoperable digital two-way radio compliance requirements.

Public agencies are permitted to use cooperative purchasing agreements, also known as "piggybacking" with other agencies. This approach allows an agency to agree to competitively-bid services at the same cost using the competitive bidding process already completed by other public agencies. In July 2022, the City of Palm Springs issued an Invitation for Bids for radios and installation services, and Dailey and Wells Communications, Inc., was awarded the contract in September 2022.

Dailey and Wells Communications, Inc., has agreed to provide radio and installation services under the terms and conditions in the City of Palm Springs' contract (Attachment C). Pursuant to the authority in Section 33.116 (c)(4)(c) of the Indio Municipal Code, staff recommends that the City move forward with this cooperative purchasing process.

The City of Indio's transition to PSEC will also require additional approvals and radio equipment procurement. The following item will be brought to Council at a later date:
• Formal approval of an agreement to transition to and utilize the PSEC radio system and related interoperable communications equipment procurement and upgrades.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$1,527,401.00 In current year budget: No
Current FY General
Fund Impact:
$1,318,166.00 Budget adjustment: Yes
Next FY Financial
Impact:
$0.00 Strategic Objective: Public Safety
Source of funds: General Fund Assigned Fund
Balance & SHSP Grant
Fund-Org-Object
Reference:
101-304015 and 227-
555005
Additional Financial Details:

The City Council set aside $1 million for public safety radio replacements in Fiscal Year 2019-20.

That set aside was increased to $2 million the following fiscal year, Fiscal Year 2020-21. Upon approval, $1,318,166 will be appropriated this year, leaving $681,834 earmarked within the General Fund for future radio costs associated with the transition from the Eastern Riverside Interoperable Communications Authority (ERICA) system over to the Riverside County Public Safety Enterprise Communication (PSEC) system.

Increase appropriations:
1014215-555005 Machinery and Equipment $1,318,166

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 269 of 764 Expected offset:
101-304015 Assigned Fund Balance $1,318,166
Additionally, the Police Department was awarded a Fiscal Year 2021 State Homeland Security Program (SHSP) grant in the amount of $209,235 to offset the cost of the City's radio purchase.

These one-time funds are available and have been incorporated into the current fiscal year SHSP Special Revenue Fund 227-555005.

Staff would also like to draw City Council's attention to future annual PSEC costs, once the City has transitioned to the PSEC system. The projected annual PSEC subscriber cost is estimated to be $423,221 in Year 1 (using FY 23/24 PSEC yearly rate projections). PSEC staff estimate that subscriber costs will decrease as they continue to onboard new users. Staff is proposing to use Prop. 172 special revenue funds, as well as the Police Department's annual Supplemental Law Enforcement Services Account (SLESA) allocation to help offset the City's annual PSEC subscriber costs.

ATTACHMENTS:

Dailey Wells Piggyback Letter

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 270 of 764 L3HARRlS
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ll/(W!/, /If/50/I!/I(, 00//(
October 24, 2022
TO: Erika Martinez
Division Chief of Support Services
Indio Police Department
Referring to: PSEC Public Safety Radios - Procurement Vehicle Ms. Martinez:

Daile & Wells Communications, Inc. (DWC) understands that the City of Indio Police Department is desirous of procuring L3Harris PSEC Radios and Services in support of the Departments critical and evolving radio communications needs. DWC is excited about the opportunity to provide the most advanced Project 25, multi-band, multi-mode radios available anywhere, at any price with award-winning local support and unmatched response times To this end, DWC has submitted pricing models to the Department for review, discussion and consideration. The pricing provided is modeled after a competitively-bid Purchasing Agreement (Agreement Number: A9213; PSEC Radios & Installation Services) recently executed (9/29/2022) with the City of Palm Springs Police Department.

Because the products offered to Palm Springs PD are identical in nature to those desired by Indio PD, it is reasonable and ?scally prudent for the City to consider use of the same purchasing vehicle, attaining the greatest value for the City.

DWC hereby agrees to offer the City of Indio the same terms, conditions and pricing contained in Agreement Number A9213 for any intended radio procurement by the City. Included with this letter, as Exhibit 1, is Agreement Number A9213.

We are con?dent that after your team completes its review, you will conclude that L3Harris and Dailey-Wells are uniquely qualified to serve you.

A building of our partnership for the future comes without question. We are ready to begin, and we invite you to share in the certainty of that commitment.

Sincerely,
immerle
Director, Western Region Attachments: Exhibit 1; PS Agreement # A9213 FROM: Gary Kimmerle
Director, Western Region
Dailey & Wells Communications, Inc
(714) 404-5719
Ga[[email protected]
Dailey &Wells Communications, Inc 9,0 3440 E Houston St, San Antonio, TX 78219 9,4 (888) 311-8064

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 271 of 764

PROFESSIONAL SERVICES AGREEMENT

BY AND BETWEEN

THE CITY OF INDIO,

A CALIFORNIA MUNICIPAL CORPORATION
AND
DAILEY AND WELLS COMMUNICATIONS, INC., A TEXAS

CORPORATION

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 272 of 764 Page | 1

PROFESSIONAL SERVICES AGREEMENT

FOR RADIO AND INSTALLATION SERVICES
BETWEEN THE CITY OF INDIO AND DAILEY AND WELLS COMMUNICATIONS, INC.

THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 15th day of December 2022 (“Effective Date”), by and between the CITY OF INDIO (“City”), a California municipal corporation and Dailey and Wells Communications, Inc. a Texas Corporation (“Contractor”). For the purposes of this Agreement City and Contractor are sometimes hereinafter referred to as “Party” and hereinafter collectively referred to as the “Parties.”

RECITALS

1. City has sought by cooperative purchasing procedures for the purchase and installation of radios as defined and described particularly in Section 2, “Scope of Services and Schedule of Performance” of this Agreement.

2. Contractor was selected by City to perform those services, utilizing cooperative purchasing procedures.

3. Contractor was selected by City on the basis of the Contractor’s demonstrated competence and the professional qualifications necessary for the satisfactory performance of the services required.

4. Pursuant to the Chapter 33 of the Indio Municipal Code, City has authority to enter into this Agreement and the City Manager has authority to execute this Agreement.

5. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Section 2 “Scope of Services and Schedule of Performance” of this Agreement and desire that the terms of that performance be as particularly defined and described herein.

OPERATIVE PROVISIONS
NOW, THEREFORE, for and in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:

SECTION 1. TERM OF AGREEMENT
(a) Subject to the provisions of Section 20 "Termination of Agreement" of this Agreement, the Term of this Agreement is six-years, commencing on December 15, 2022 and ending on December 14, 2028, unless otherwise extended by written agreement of the Parties. (b) The City Manager may, in his or her sole discretion, unilaterally exercise an option to extend the Agreement on a month-to-month basis following expiration on the same terms

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and conditions, including compensation as set forth in Section 4 “Compensation and Method of Payment.”
(c) Contractor acknowledges that the Agreement term may extend over multiple City fiscal years, and that work and compensation under this Agreement is contingent on the City Council appropriating funding for and authorizing such work and compensation for those fiscal years. This Agreement may be terminated by the City Manager at the end of a fiscal year when sufficient funding is not appropriated and authorized for the subsequent fiscal year. City is not obligated to pay Contractor for any amounts not duly appropriated and authorized by City Council.

SECTION 2. SCOPE OF SERVICES AND SCHEDULE OF PERFORMANCE (a) SCOPE OF SERVICES. Subject to this Agreement, all addendums and exhibits attached and incorporated hereto, Contractor agrees to perform the services and tasks set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and the City agrees to retain and does hereby retain Contractor for the Services.
(b) SCHEDULE OF PERFORMANCE. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Contractor shall be deemed to be in Default of this Agreement. The City, in its sole discretion, may choose not to enforce Section 21, “Default” of this Agreement and may instead allow Contractor to continue performing the Services.

SECTION 3. ADDITIONAL SERVICES.

Contractor shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.

SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed one million five hundred twenty-seven thousand four hundred one dollars $1,527,401.00, unless additional compensation is approved in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. Payment shall be made in accordance with City’s usual accounting procedures upon receipt and approval of an itemized invoice setting forth the services performed. The invoices shall be delivered to City at the address set forth in Section 24, “Notices” hereof.

Under no circumstances shall the total amount paid to Contractor under this Agreement

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exceed the City Manager’s authority under Indio Municipal Code Section 33.116 (C)(2) without approval by the City Council.
(b) Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and subcontractor contracts. Subcontractor charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Exhibit “B” include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of tasks performed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission. (c) Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, City will use its best efforts to cause Contractor to be paid within fortyfive (45) days of receipt of Contractor’s correct and undisputed invoice. (d) Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
(e) If this Agreement is extended pursuant to Section 1 “Term of Agreement,” the City shall pay the same rates specified in Exhibit “B” “Compensation.” SECTION 5. INSPECTION AND FINAL ACCEPTANCE.

City may inspect and accept or reject any of Contractor’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Contractor’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Contractor’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of Contractor’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 16 “Indemnification” and Section 17 “Insurance.”

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SECTION 6. OWNERSHIP OF DOCUMENTS.

All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.

If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement, Contractor’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
(a) INTELLECTUAL PROPERTY RIGHTS ASSIGNMENT. For no additional compensation, Contractor hereby assigns to City all of Contractor’s rights, title, and interest in and to the content of all deliverable materials created by Contractor or its employees, agents, or subContractors, including copyrights, in connection with the Services performed under this Agreement. Contractor shall promptly execute and deliver, and shall cause its employees, agents, and subContractors to promptly execute and deliver, upon request by the City or any of its successors or assigns at any time and without further compensation of any kind, any power of attorney, assignment, application for copyright, patent, trademark or other intellectual property right protection, or other papers or instruments which may be necessary or desirable to fully secure, perfect or otherwise protect to or for the City, its successors and assigns, all right, title and interest in and to the content of the deliverable materials. For purposes of this section deliverable materials includes all works, tangible or not, created under this Agreement including, without limitation, documents, material, data, reports, manuals, specifications, artwork, drawings, sketches, computer programs and databases, schematics, photographs, video and audiovisual recordings, sound recordings, marks, logos, graphic designs, notes, website, domain names, inventions, processes, formulas matters and combinations thereof, and all forms of intellectual property. The provisions of this paragraph are binding on the successors, assigns and heirs of Contractor and shall survive the termination of Contractor’s Services under this Agreement.

SECTION 7. CONTRACTOR’S BOOKS AND RECORDS.
(a) Contractor shall maintain any and all documents and records demonstrating or relating to Contractor’s performance of the Services. Contractor shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to work, services, expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in

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accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Contractor pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. (b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Contractor’s address indicated for receipt of notices, “Section 24,” of this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Contractor’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors in interest and authorized representatives.

SECTION 8. INDEPENDENT CONTRACTOR.
(a) Contractor is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Contractor shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. (b) The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Contractor or any of Contractor’s officers, employees, subContractors or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. (c) Neither Contractor, nor any of Contractor’s officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor may have to any such rights.

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SECTION 9. STANDARD OF PERFORMANCE.

Contractor represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Contractor under this Agreement, and shall use such skill, prudence, and diligence as other members of Contractor’s profession commonly possess and exercise. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Services” that shall also be applicable to Contractor’s work under this Agreement. Where there is a conflict between a general and a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.

SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.

Contractor shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Contractor shall at all times observe and comply with all such laws, ordinances and regulations, and shall be solely responsible for any failure to comply with all applicable laws, ordinances and regulations. Contractor represents and warrants that Contractor has obtained or shall promptly obtain all necessary licenses to perform the Services set forth in this Agreement and that such licenses are in good standing. Contractor further represents and warrants that the services provided herein shall conform to all ordinances, policies and practices of the City. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Contractor to comply with this section.

SECTION 11. PREVAILING WAGE LAWS.
(a) Contractor is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects.

To the extent applicable, Contractor shall defend, indemnify, and hold the City, its elected officials, officers, employees, and agents free and harmless form any claim or liability arising out of any failure or alleged failure of Contractor to comply with the Prevailing Wage Laws.
(b) It is the understanding of City and Contractor that Prevailing Wage Laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work

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performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.

SECTION 12. NONDISCRIMINATION.

Contractor shall not discriminate, in any way, against any person on the basis of race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement.

SECTION 13. UNAUTHORIZED ALIENS.

Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of the Services, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.

SECTION 14. CONFLICTS OF INTEREST.
(a) Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of the Services. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. (b) City understands and acknowledges that Contractor is, as of the date of execution of this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Contractor is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Contractor will, perform non-related services for other governmental agencies and private parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section.

SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.

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(b) Contractor, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena. (c) If Contractor, or any officer, employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Contractor’s conduct. (d) Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.

SECTION 16. INDEMNIFICATION.
(a) INDEMNIFICATION BY CONTRACTOR. To the fullest extent permitted by law, Contractor shall indemnify, protect, defend (with legal counsel reasonably acceptable to City) and hold harmless City and any and all of its elected and appointed officials, officers, employees, representatives and agents (“Indemnified Parties”) from and against any and all claims, actions and proceedings (whether at law or equity, administrative or judicial), demands, orders, judgments, losses, injuries (including, without limitation, injury to or death of an employee of Contractor or subcontractors), liabilities of every kind (including, without limitation, incidental and consequential damages, court costs, and litigation expenses, and fees of expert Contractors or expert witnesses incurred in connection therewith and cost of investigation), damages, costs and expenses, including attorney’s fees and costs, (collectively "Claims") that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, any goods provided or performance of Services by Contractor, its officers, agents, employees, representatives, subcontractors, anyone directly or indirectly employed by any of them, or anyone that they control. Contractor’s duty to indemnify, protect, defend and hold harmless Indemnified Parties, shall not include any Claims arising from the sole negligence or willful misconduct of the Indemnified parties. (b) INDEMNIFICATION FROM SUB-CONTRACTORS. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, subcontractor or any other person or entity involved by, for,

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with or on behalf of Contractor in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Contractor and shall survive the termination of this Agreement and this section.

SECTION 17. INSURANCE.

Contractor agrees to obtain and maintain in full force and effect during the Term of this Agreement the insurance policies set forth in Addendum “1” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content.

These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Contractor agrees to provide City with copies of required policies upon request.

SECTION 18. ASSIGNMENT.

The expertise and experience of Contractor are material considerations for this Agreement.

City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Contractor under this Agreement. In recognition of that interest, Contractor shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Contractor’s duties or obligations under this Agreement without the prior written consent of the City, which may be given in the sole and absolute discretion of the City Manager. Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 20 “Termination of Agreement.” City acknowledges, however, that Contractor, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.

If in the performance of its duties Contractor utilizes subcontractors or subcontractors, Contractor covenants that subcontracts, if any, shall contain a provision making subcontractors or subcontractors subject to all provisions stipulated in this Agreement, including without limitation, the insurance obligations set forth in Section 17 “Insurance.” The Contractor acknowledges and agrees that the City is an intended beneficiary of any work performedby any subcontractor or subcontractor for purposes of establishing a duty of care between any subcontractor or subcontractor and the City.

SECTION 19. CONTINUITY OF PERSONNEL.

Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors / subcontractors, if any, assigned to perform the Services.

Contractor shall notify City of any changes in Contractor’s staff and subcontractors / subcontractors, if any, assigned to perform the Services prior to and during any such performance.

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SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving written notice of termination to Contractor. In the event such notice is given, Contractor shall cease immediately all work in progress.
(b) Contractor may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Contractor or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Contractor, or City may terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Contractor or City, all property belonging exclusively to City which is in Contractor’s possession shall be returned to City. Contractor shall furnish to City a final invoice for work performed and expenses incurred by Contractor, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. (e) Upon written notice, City may suspend all or any portion of Contractor’s performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. City will pay to Contractor a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. City may rescind the suspension prior to or at six (6) months by providing Contractor with written notice of the rescission, at which time Contractor would be required to resume performance in compliance with the terms and provisions of this Agreement. Contractor will be entitled to an extension of time to complete performance under this Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.

SECTION 21. DEFAULT.

In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default.

This timeframe is presumptively thirty (30) days, but may be extended or reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.

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SECTION 22. EXCUSABLE DELAYS.

Contractor shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Contractor. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.

SECTION 23. COOPERATION BY CITY.

All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Contractor in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.

SECTION 24. NOTICES.

All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:

To City: City of Indio
Attn: City Manager
100 Civic Circle Drive
Indio, CA 92201
To Contractor: Dailey and Wells Communications, Inc.

Attn: Gary Kimmerle, Director
3440 E. Houston Street
San Antonio, TX 78219
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.

SECTION 25. AUTHORITY TO EXECUTE.

The person or persons executing this Agreement on behalf of Contractor represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Contractor to the performance of its obligations hereunder.

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SECTION 26. ADMINISTRATION AND IMPLEMENTATION.

This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the Indio Municipal Code.

SECTION 27. BINDING EFFECT.

This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

SECTION 28. AMENDMENT.

No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Contractor and by City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agreement, as amended, would not exceed the City Manager’s contracting authority under the Indio Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.

SECTION 29. WAIVER.

Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement.

Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement.

SECTION 30. LAW TO GOVERN; VENUE.

This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.

SECTION 31. ATTORNEY’S FEES, COSTS AND EXPENSES.

In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.

SECTION 32. ENTIRE AGREEMENT.

This Agreement, including the attached Exhibits and Addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings,

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whether oral or written, or entered into between Contractor and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.

SECTION 33. SEVERABILITY.

If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).

SECTION 34. INCORPORATION AND CONFLICTING TERMS.
(a) The following documents are incorporated and made part of this Agreement by this reference:

1. Insurance requirements (“Addendum 1”)

2. All Exhibits and Addendums

3. All amendments

4. Contractor’s proposal, if any

5. Any laws, regulations, requirements, or restrictions, applicable to the funding source used by City to pay Contractor for any portion of work done under Agreement (“Funding Restrictions”)
(b) The documents listed above shall be referred to collectively as the “Agreement Documents.” The Agreement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, Exhibits and Addendums, and Contractor’s proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.

SECTION 35. TIME OF ESSENCE.

Time is of the essence for each and every provision of this Agreement.

SECTION 36. GRANT FUNDS.

In the event the Services are funded either in whole or in part by a federal and state grants, Contractor shall comply with the requirements of Addendum “2” “Grant Funds.” [SIGNATURE PAGE FOLLOWS]

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PROFESSIONAL CONTRACTOR SERVICES AGREEMENT

FOR RADIOS AND INSTALLATION SERVICES
BETWEEN THE CITY OF INDIO AND DAILEY AND WELLS COMMUNICATIONS, INC.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.

CITY OF INDIO
___________________________
Bryan H. Montgomery
City Manager
ATTEST:

CITY CLERK
By: ___________________________
APPROVED AS TO FORM:

CITY ATTORNEY
By: ____________________________

CONTRACTOR
By:

Its:

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EXHIBIT “A”
CONTRACTOR’S SCOPE OF SERVICES

INCLUDING,

SCHEDULE OF FEES
AND

SCHEDULE OF PERFORMANCE

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1.1 Background:

The City of Indio will be transitioning from the Eastern Riverside Interoperable Communications Authority (ERICA) radio system to the Public Safety Enterprise Communications (PSEC) radio system. This transition is projected to take place in 2023 and will necessitate the purchase of new mobile radios, portable radios, and radio accessories for the Police Department. All radios will be required to meet the Project 25 (P25) suite of standards for interoperable digital two-way radio products as indicated below. Information on Project 25 Standards can be found here: Project 25 Technology Interest Group.

1.2 Scope:

A. General Scope: All mobile radios and portable radios will be required to meet P25 standards; meaning they will be required to have the following features: P25 Phase 2 TDMA (Time Division Multiple Access); Multi Key 256-AES encryption; Hardware Programming Key; and minimally operate on 700mhz/800mhz (with the exception of the Police Group which will also require VHF and UHF operation). Additionally, all radios purchased by the City must be on PSEC approved radio list, which includes Motorola APX Series portables and mobiles; Scope specific to Police: All mobile and portable radios must be tri-band (700/800 MHz, VHF, and UHF) and meet P25 standards. Portable radios will be carried in radio pouches or on the outer vests of patrol officers and therefore must be limited in physical dimensions and in weight. Portable radios, including batteries, shall not exceed the following physical dimensions: 6” high; 3” wide; 1.7” deep; and shall weigh no more than 18 ounces. Each portable radio shall include a charger, battery, and a speaker microphone accessory.

1.3 Warranty:

The Contractor warrants and guarantees that all equipment, materials, or supplies used or furnished, and all workmanship are of the type and quality specified herein. The Contractor further guarantees that any latent fault in construction or defective material discovered within five years after acceptance of the work shall be remedied by Contractor without cost to the City, upon written notice given to Contractor. Other subsequent latent defects shall be covered by responsibilities set forth in the law.

1.4 Annual Maintenance:

All portable and mobile radios shall include at minimum, a five-year maintenance package that includes software updates, firmware upgrades, and phone support. Contract radio maintenance shall include all parts, labor and travel required to repair and maintain the mobile and portable radios, bases, and other related equipment, that have become defective through normal wear and use. All accessories shall include a one-year warranty. Accessory maintenance shall include, repair and maintenance of the accessories that have become deflective through normal wear and use.

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1.5 Onsite Installation:

Contractor to provide installation services. Installation of all mobile radios into vehicles, including radio control heads and remote radio control heads shall take place onsite at a location provided by the City. Installation shall also include mobile radios in certain specified office locations, and will include all necessary wiring, connectors, and antennas for indoor installation.

1.6 Schedule:

The Contractor shall deliver all radios, accessories, and other necessary equipment within four months of award. The Contractor shall complete all required installations within six months of award.

1.7 Delivery:

All radios and accessories shall be delivered to the PSEC Facility within the Riverside County Sheriff Communications Center, located at 7195 Alessandro Blvd, Riverside, California 92506. The City shall be notified when the radio order has shipped and when the order has been delivered to the PSEC Facility.

1.8 Compensation:

Work will be compensated on a unit price basis as outlined in the agreement pricing form, Exhibit B to this agreement. Items will be purchased on an as needed basis and no guarantee is made by the City that the full order will be fulfilled. The pricing listed in the agreement includes all labor, expenses, and incidentals to fulfill the agreement requirements.

1.9 Allowance:

Since quantities shown are estimates only, an allowance has been established to cover any adjustments in the number or type of items ordered based on actual needs. This allowance is for use by the City and is not guaranteed to be used. The Contractor has no rights to the allowance unless additional items are authorized by the City. Any additional items to be purchased will be at the unit prices provided.

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EXHIBIT “B”

COMPENSATION
The following is the proposed unit cost for City of Indio’s Radios & Installation Services:

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ADDENDUM “1”

INSURANCE
(A)INSURANCE REQUIREMENTS. Contractor shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Contractor, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Contractor shall provide the following scope and limits of insurance:

1. MINIMUM SCOPE OF INSURANCE. Contractor shall maintain the following types and limits of insurance.

2. MINIMUM LIMITS OF INSURANCE.

GENERAL LIABILITY INSURANCE. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.

AUTOMOBILE LIABILITY INSURANCE. Contractor shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Contractor shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Contractor agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.

WORKERS’ COMPENSATION INSURANCE. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 per accident or disease). Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.

UMBRELLA OR EXCESS LIABILITY INSURANCE. [Optional depending on limits required]. As an option to meet the limits of insurance required by this Agreement, Contractor may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary

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coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
(B) OTHER PROVISIONS. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. (C) OTHER REQUIREMENTS. Contractor agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Contractor furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.

1. Upon request from the City, Contractor shall furnish certificates and endorsements from each subcontractor identical to those Contractor provides.

2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.

3. The procuring of such required policy or policies of insurance shall not be construed to limit Contractor’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.

4. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be

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endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

5. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors.

6. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.

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ADDENDUM “2"

GRANT FUNDS

DEPARTMENT OF HOMELAND SECURITY

FEDERAL REQUIREMENTS

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Standard Assurances Federal Grant Programs
[Insert City Resolution and FY21 Standard Federal Grant Program Information]

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FY 2022 DHS Standard Terms and Conditions

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Addendum 2B
[Insert City Invitation for Bids, Instructions for Applicants and public integrity disclosure]

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 334 of 764 Dailey-Wells Communications, Inc. November 21, 2022
Revision D
Company Confidential Page 1 of 1
Item Part Number Description Quantity Unit List Disc % Unit Sale Ext List Ext Sale Subtotals 10 XL-PFM1M PORTABLE,XL-200P,FULL,MIDNT BLK,US 139 $ 3,160.00 45% $ 1,738.00 $ 439,240.00 $ 241,582.00 20 XL-Y3EWP SERVICE ASSIST, EXT WARRANTY 3YR, XL200P 139 $ 200.00 0% $ 200.00 $ 27,800.00 $ 27,800.00 30 XL-PL8N FEATURE, IN-BAND GPS 139 $ 300.00 45% $ 165.00 $ 41,700.00 $ 22,935.00 40 XL-FW2X OPERATION,LOAD NIFOG PERSONALITY 139 $ 0.01 0% $ 0.01 $ 1.39 $ 1.39 50 XL-PL4F FEATURE,P25 PHASE 2 TDMA 139 $ 250.00 45% $ 137.50 $ 34,750.00 $ 19,112.50 60 XL-PKG8F FEATURE,256-AES,64-DES ENCRYPTION 139 $ 750.00 45% $ 412.50 $ 104,250.00 $ 57,337.50 70 XL-PKGPT FEATURE PACKAGE,P25 TRUNKING 139 $ 1,600.00 45% $ 880.00 $ 222,400.00 $ 122,320.00 80 XL-PKGF3 FEATURE PACKAGE,DUAL BAND VHF+7/800 139 $ 1,100.00 45% $ 605.00 $ 152,900.00 $ 84,095.00 90 XL-PA3V BATTERY,LI-ION,3100 MAH 303 $ 150.00 45% $ 82.50 $ 45,450.00 $ 24,997.50 100 XL-NC8F ANTENNA,WHIP,1/4 WAVE,762-870MHZ, 3.7 IN. 139 $ 40.00 45% $ 22.00 $ 5,560.00 $ 3,058.00 110 XL-NC5Z ANTENNA,FLEX,HELICAL,136-870 MHZ, 7.8 IN. 20 $ 110.00 45% $ 60.50 $ 2,200.00 $ 1,210.00 120 XL-AE2V-3.5MM SPEAKER MIC REVO NC2, C1D2, 3.5MM AUDIO JACK 139 $ 190.00 45% $ 104.50 $ 26,410.00 $ 14,525.50 130 XL-AE3Z-3.5MM EARPHONE,LAPEK MICROPHONE,3.5MM AUDIO JACK 50 $ 65.00 30% $ 45.50 $ 3,250.00 $ 2,275.00 140 A06-0004-005 TUBE & EARTIP ASSY, QTY 5 PER BAG 2 $ 65.00 30% $ 45.50 $ 130.00 $ 91.00 150 XL-PL5L FEATURE,P25 OTAR(OVER-THE-AIR-REKEYING) 139 $ 625.00 45% $ 343.75 $ 86,875.00 $ 47,781.25 160 XL-HC3L BELT CLIP,METAL 50 $ 30.00 45% $ 16.50 $ 1,500.00 $ 825.00 170 XL-CH5A CHARGER,6-BAY 5 $ 895.00 45% $ 492.25 $ 4,475.00 $ 2,461.25 180 XL-CH6F CHARGER, 2-BAY, CHARGES LI-ION BATT + XL-200P 139 $ 245.00 30% $ 171.50 $ 34,055.00 $ 23,838.50 $ 696,246.39 190 XZ-MPM1M MOBILE, XL-200M, MULTIBAND 88 $ 3,815.00 50% $ 1,907.50 $ 335,720.00 $ 167,860.00 200 XZ-Y3EWP SERVICE ASSIST,EXT WARRANTY 3 YR, XL200M 88 $ 200.00 0% $ 200.00 $ 17,600.00 $ 17,600.00 210 XZ-PL4F FEATURE, PHASE 2 TDMA 88 $ 250.00 50% $ 125.00 $ 22,000.00 $ 11,000.00 220 XZ-PL5L FEATURE, OTAR 88 $ 625.00 50% $ 312.50 $ 55,000.00 $ 27,500.00 230 XZ-PL8N FEATURE, IN-BAND GPS 88 $ 300.00 50% $ 150.00 $ 26,400.00 $ 13,200.00 240 XZ-PKG8F FEATURE, 256-AES, 64-DES ENCRYPTION 88 $ 750.00 50% $ 375.00 $ 66,000.00 $ 33,000.00 250 XZ-PKGPT FEATURE PACKAGE, P25 TRUNKING 88 $ 1,600.00 50% $ 800.00 $ 140,800.00 $ 70,400.00 260 XZ-MA4A KIT, MOUNTING XL-MOBILE UNIVERSAL 88 $ 600.00 50% $ 300.00 $ 52,800.00 $ 26,400.00 270 XZ-MC6A MICROPHONE, XL, STANDARD MOBILE 88 $ 105.00 50% $ 52.50 $ 9,240.00 $ 4,620.00 280 XZ-AN3H ANTENNA,ELEMENT,700/800MHZ,3DB 88 $ 75.00 30% $ 52.50 $ 6,600.00 $ 4,620.00 290 XZ-AN6U ANTENNA, BASE, STD ROOF MOUNT LOW LOSS 88 $ 80.00 50% $ 40.00 $ 7,040.00 $ 3,520.00 300 XZ-AN5F ANTENNA, GPS, ROOF MOUNT 88 $ 155.00 50% $ 77.50 $ 13,640.00 $ 6,820.00 310 XZ-LS6A SPEAKER, EXTERNAL, MOBILE 88 $ 60.00 50% $ 30.00 $ 5,280.00 $ 2,640.00 320 XZ-CA6F CABLE, XL-MOBILE, SPEAKER ACCY 88 $ 222.00 50% $ 111.00 $ 19,536.00 $ 9,768.00 330 XZ-CP6A CONTROL UNIT, XL-CH 88 $ 1,650.00 50% $ 825.00 $ 145,200.00 $ 72,600.00 $ 471,548.00 340 XZ-MPM1M MOBILE, XL-200M, MULTIBAND 11 $ 3,815.00 50% $ 1,907.50 $ 41,965.00 $ 20,982.50 350 XZ-Y3EWP SERVICE ASSIST,EXT WARRANTY 3 YR, XL200M 11 $ 200.00 0% $ 200.00 $ 2,200.00 $ 2,200.00 360 XZ-PL4J FEATURE, VHF BAND 11 $ 550.00 50% $ 275.00 $ 6,050.00 $ 3,025.00 370 XZ-PL4K FEATURE, UHF BAND 11 $ 550.00 50% $ 275.00 $ 6,050.00 $ 3,025.00 380 XZ-PL4L FEATURE, 700/800 MHZ BAND 11 $ 550.00 50% $ 275.00 $ 6,050.00 $ 3,025.00 390 XZ-PL4F FEATURE, PHASE 2 TDMA 11 $ 250.00 50% $ 125.00 $ 2,750.00 $ 1,375.00 400 XZ-PL5L FEATURE, OTAR 11 $ 625.00 50% $ 312.50 $ 6,875.00 $ 3,437.50 410 XZ-PKG8F FEATURE, 256-AES, 64-DES ENCRYPTION 11 $ 750.00 50% $ 375.00 $ 8,250.00 $ 4,125.00 420 XZ-PKGPT FEATURE PACKAGE, P25 TRUNKING 11 $ 1,600.00 50% $ 800.00 $ 17,600.00 $ 8,800.00 430 XZ-CA6L CABINET, XL DESKTOP 11 $ 650.00 50% $ 325.00 $ 7,150.00 $ 3,575.00 440 XZ-CA6C CABLE, POWER, VCH 11 $ 105.00 50% $ 52.50 $ 1,155.00 $ 577.50 450 XZ-CA6D CABLE, POWER, XL-CH 11 $ 87.00 50% $ 43.50 $ 957.00 $ 478.50 460 XZ-CA6A CABLE, XL-MOBILE, ETHERNET, 45CM 11 $ 16.00 50% $ 8.00 $ 176.00 $ 88.00 470 XZ-MC6C MICROPHONE, XL-MOBILE, DESKTOP 11 $ 245.00 50% $ 122.50 $ 2,695.00 $ 1,347.50 480 XZ-CA6M CABLE, XL DESKTOP, ACCESSORY 11 $ 250.00 50% $ 125.00 $ 2,750.00 $ 1,375.00 490 XZ-MA4C BRACKET, MOUNTING, XL CONTROL HEAD 11 $ 68.00 50% $ 34.00 $ 748.00 $ 374.00 500 XZ-LS6A SPEAKER, EXTERNAL, MOBILE 11 $ 60.00 50% $ 30.00 $ 660.00 $ 330.00 510 XZ-CA6F CABLE, XL-MOBILE, SPEAKER ACCY 11 $ 222.00 50% $ 111.00 $ 2,442.00 $ 1,221.00 520 XZ-CP6A CONTROL UNIT, XL-CH 11 $ 1,650.00 50% $ 825.00 $ 18,150.00 $ 9,075.00 530 ANTSUBSYS DESKTOP ANTENNA SUBSYSTEM W/MULTIBAND ANT 11 $ 750.56 0% $ 750.56 $ 8,256.12 $ 8,256.12 $ 68,436.50 540 YSSN1U DESKTOP RADIO INSTALLATION SERVICES (No Tax) 11 $ 750.00 0% $ 750.00 $ 8,250.00 $ 8,250.00 550 YSSN1U MOBILE RADIO INSTALLATION SERVICES (No Tax) 88 $ 750.00 0% $ 750.00 $ 66,000.00 $ 66,000.00 $ 74,250.00 $ 1,236,230.89
$ 100,000.00
$ 116,920.20
$ 74,250.00
Included
$ 1,527,401.09
Notes:
(1) Total price shown includes tax and shipping.
(2) Pricing excludes programming and/or encryption key loading services; these services are provided by PSEC. (3) Pricing is in accordance with Palm Springs Agreement No. A9213, Radios and Installation. (4) All radios (Mobile & Portable) carry a standard 2-year Warranty; the Extended Warranty (Items 20, 200 & 350) add a 3-year extended Warranty for a total of a 5-year Warranty. (5) All accessories (chargers, antennas, batteries, earphones, speaker/mics, mobile speaker, etc.) carry a 1-year Warranty only.

Indio Police Department --- PSEC Radios --- (139) Portables & (99) Mobiles w/Installation Svcs.

Subtotal, Radio Equipment/Materials:

Tax (8.75%):

Subtotal, Mobile Radio Installation Services (No Tax):

Shipping:

TOTAL:

Contingency Funding:

Six-Year Professional Services Agreement (PSA) with Dailey and Wells Com... Page 335 of 764 City of Indio
City Council
December 7, 2022

STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Mike Washburn, Chief of Police
Subject: Professional Services Agreement (PSA) with Motorola Solutions, Inc., for upgrades to current Dispatch Center equipment and a six-year service upgrade agreement of $330,638, and appropriate budget adjustments.

RECOMMENDATION:

Approve the Professional Services Agreement (PSA) with Motorola Solutions, Inc., for upgrades to current Dispatch Center equipment and a six-year service upgrade agreement of $330,638, beginning December 15, 2022, through December 14, 2028; and direct the Finance Department to make the necessary budget adjustments as reflected in the financial analysis section of the staff report.

SUMMARY:

On April 21, 2021, City Council provided direction to staff to proceed with a transition plan for the City of Indio to join the County's Public Safety Enterprise Communications (“PSEC”) radio system and exit the Eastern Riverside County Interoperable Communications Authority (“ERICA”). The transition plan requires equipment and software upgrades to the existing infrastructure of the Dispatch Center to ensure interoperability and compatibility with PSEC. Motorola Solutions provided the Indio Police Department a quote for the required upgrades and equipment, totaling $330,638 over a six-year service agreement (Attachment A) .

BACKGROUND INFORMATION:

In July 2008, the Cities of Indio, Cathedral City, Desert Hot Springs, and Palm Springs formed the Eastern Riverside County Interoperable Communications Authority (“ERICA”) pursuant to a Joint Exercise of Powers Agreement (JPA) in order to acquire, plan, design, finance, construct, operate and maintain a regional communication system serving the Coachella Valley and individual political jurisdiction therein.

City Council held a study session on April 21, 2021, to discuss and provide input for the future of ERICA and received a presentation from a representative of the Riverside County Sheriff’s Department regarding the Public Safety Enterprise Communications (“PSEC”) radio system. City Staff presented information on both the ERICA system and the PSEC system to seek City Council's feedback regarding a potential exit from ERICA and a new partnership with Riverside County through PSEC. Under the provisions of the JPA, an agency may leave the JPA with 90 days written notice. At that time, City Council provided direction to staff to proceed with a transition plan for the City of Indio to join the County's PSEC system.

One of the components of a transition to PSEC includes software upgrades to existing Dispatch Center consoles required for interoperability and compatibility with the new system. In October 2022, AGENDA ITEM #13.9
Professional Services Agreement (PSA) with Motorola Solutions, Inc., for... Page 336 of 764 ERICA agencies received a quote for the necessary equipment and software upgrades needed from the PSEC sole source vendor, Motorola Solutions, equipped to upgrade the consoles in the amount of $330,638 over a six-year period (Attachment A). Motorola’s SUA II and Tech Support services for the installed Dispatch Center equipment, 6 MCC 7500E Consoles, 1 Console Alias Manager, 1 Playback Station, and Nokia MPLS router support will be invoiced annually in advance. As the onetime fee includes the first year of the SUA II agreement, there will be no charge until FY 24-25.

The Indio Police Department is also requesting this software upgrade be conducted pursuant to the "limited availability/sole source" exemption under Section 33.116 (C)(4)(b) of the Indio Municipal Code. Motorola Solutions Inc. contains proprietary hardware and software components that are not commercially available except through Motorola and its channel partners (Attachment B).

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$172,153.00 In current year budget: No
Current FY General
Fund Impact:
$0.00 Budget adjustment: Yes
Next FY Financial
Impact:
$40,196.00 Strategic Objective: Public Safety
Source of funds: Supplemental Law Enforcement
Services Account (SLESA)
Fund-Org-Object
Reference:
221-555009
Additional Financial Details:

The Police Department is proposing to use a special revenue fund, the Supplemental Law Enforcement Services Account (SLESA), to pay for the Motorola software upgrade expense this fiscal year ($172,153). In subsequent years, the Department will continue to use its annual SLESA allocation to pay for the associated annual warranty and maintenance costs, more specifically described below:

Description FY22/23 FY 23/24 FY24/25 FY25/26 FY26/27 FY27/28 Software Upgrade Cost $172,153 $0.00
(one-time cost)
Extended Warranty/Support $0.00 $40,196 $38,724 $39,418 $40,147 Total Cost $172,153 $40,196 $38,724 $39,418 $40,147
Increase appropriations:
221-555009 Capital Software $172,153
Expected offset:
221-304015 Assigned Fund Balance $172,153
ATTACHMENTS:

Attachment C - Indio_ERICA_Migration Pricing Summary
Attachment A - Six-Year Agreement
Attachment B - Indio Sole Source Justification

Professional Services Agreement (PSA) with Motorola Solutions, Inc., for... Page 337 of 764 APPROVAL(S):

Mike Washburn, Chief of Police Approved - 22 Nov 2022
Steven Graham, City Attorney Approved - 22 Nov 2022
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 23 Nov 2022 Bryan H. Montgomery, City Manager Approved - 28 Nov 2022

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Professional Services Agreement (PSA) with Motorola Solutions, Inc., for... Page 341 of 764 Indio Police Department November 28, 2022
ERICA Migration MCC7500 and Site Equipment Replacement
Contractual Documentation
Use or disclosure of this proposal is subject to the restrictions on the cover page.

Motorola Solutions

Section 9
Contractual Documentation
SUA related tasks and activities, identified in Section 5 of this proposal, shall be subject to the terms and conditions of the Eastern Riverside County Interoperable Communications Authority (ERICA) ASTRO P25 SYSTEM Upgrade Agreement dated on June 7, 2013 between Motorola Solutions, Inc and the Eastern Riverside County Interoperable Communications Authority. For all other additional tasks and activities not identified in Section 5of this proposal, the terms and conditions of the attached Communication System and Services Agreement, including its exhibits and Addendum, will apply.

Communications System and Services Agreement
Motorola Solutions, Inc. (“Motorola”) and _______________________________________ (“Customer”) enter into this “Agreement,” pursuant to which Customer will purchase and Motorola will sell the System and Services, as described below. Motorola and Customer may be referred to individually as a “Party” and collectively as the “Parties.” For good and valuable consideration, the Parties agree as follows:

Section 1 ATTACHMENTS

1.1. EXHIBITS. The Exhibits listed below are exhibits related to the System sale and implementation.

These Exhibits are incorporated into and made a part of this Agreement.

Exhibit A “Motorola Software License Agreement”
Exhibit B “Payment”
Exhibit C Technical and Implementation Documents
C-1 “System Description” dated _______________
C-2 “Pricing Summary & Equipment List” dated _______________ C-3 “Implementation Statement of Work” dated _______________ C-4 “Acceptance Test Plan” or “ATP” dated _______________ C-5 “Performance Schedule” dated _______________
Exhibit D “System Acceptance Certificate”

Professional Services Agreement (PSA) with Motorola Solutions, Inc., for... Page 342 of 764 Indio Police Department November 28, 2022
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Motorola Solutions

1.2. ADDENDUM (ADDENDA). Customer may elect to purchase professional or subscription services in addition to the System and related services. Any such services will be governed by the terms in the main body of the Agreement and an applicable Addendum containing terms specific to such service. Such Addenda will be labeled with the name of the service being purchased.

1.3 ORDER OF PRECEDENCE. In interpreting this Agreement and resolving any ambiguities: 1) the main body of this Agreement takes precedence over the exhibits (unless otherwise specified in an exhibit), and any inconsistency between Exhibits A through D will be resolved in their listed order, and 2) The applicable service Addendum will take precedence over the main body of the Agreement and the Exhibits.

Section 2 DEFINITIONS
Capitalized terms used in this Agreement have the following meanings:
“Acceptance Tests” means those tests described in the Acceptance Test Plan. “Addendum (Addenda)” is the title of the document(s) containing a specific set of terms and conditions applicable to a particular service or other offering beyond the Communication System and System implementation services. The terms in the Addendum are applicable only to the specific service or offering described therein.
“Administrative User Credentials” means an account that has total access over the operating system, files, end user accounts and passwords at either the System level or box level. Customer’s personnel with access to the Administrative User Credentials may be referred to as the Administrative User. “Beneficial Use” means when Customer first uses the System or a Subsystem for operational purposes (excluding training or testing).

Professional Services Agreement (PSA) with Motorola Solutions, Inc., for... Page 343 of 764 Indio Police Department November 28, 2022
ERICA Migration MCC7500 and Site Equipment Replacement
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Motorola Solutions

“Confidential Information” means all information consistent with the fulfillment of this Agreement that is (i) disclosed under this Agreement in oral, written, graphic, machine recognizable, and/or sample form, being clearly designated, labeled or marked as confidential or its equivalent or (ii) obtained by examination, testing or analysis of any hardware, software or any component part thereof provided by discloser to recipient. The nature and existence of this Agreement are considered Confidential Information. Confidential Information that is disclosed orally must be identified as confidential at the time of disclosure and confirmed by the discloser by submitting a written document to the 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. “Contract Price” means the price for the System and implementation Services, excluding applicable sales or similar taxes and freight charges. Further, unless otherwise stated in Exhibit B, “Payment” or the pricing pages of the proposal, recurring fees for maintenance, SUA, or subscription services are not included in the Contract Price.
“Deliverables” means all written information (such as reports, specifications, designs, plans, drawings, analytics, Solution Data, or other technical or business information) that Motorola prepares for Customer in the performance of the Services and is obligated to provide to Customer under this Agreement. The Deliverables, if any, are more fully described in the Statement of Work. “Derivative Proprietary Materials” means derivatives of the Proprietary Materials that Motorola may from time to time, including during the course of providing the Services, develop and/or use and/or to which Motorola provides Customer access.
“Effective Date” means that date upon which the last Party executes this Agreement. “Equipment” means the hardware components of the Solution that Customer purchases from Motorola under this Agreement. Equipment that is part of the System is described in the Equipment List. “Feedback” means comments or information, in oral or written form, given to Motorola by Customer in connection with or relating to Equipment or Services, during the term of this Agreement.

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“Force Majeure” means an event, circumstance, or act that is beyond a Party’s reasonable control, such as an act of God, an act of the public enemy, an act of a government entity, strikes, other labor disturbances, supplier performance, hurricanes, earthquakes, fires, floods, epidemics, embargoes, war, riots, or any other similar cause.
“Motorola Software” means software that Motorola or its affiliated companies owns. “Non-Motorola Software” means software that a party other than Motorola or its affiliated companies owns. “Open Source Software” (also called “freeware” or “shareware”) means software with either freely obtainable source code, license for modification, or permission for free distribution. “Proprietary Materials” means certain software tools and/or other technical materials, including, but not limited to, data, modules, components, designs, utilities, subsets, objects, program listings, models, methodologies, programs, systems, analysis frameworks, leading practices and specifications which Motorola has developed prior to, or independently from, the provision of the Services and/or which Motorola licenses from third parties.
“Proprietary Rights” means the patents, patent applications, inventions, copyrights, trade secrets, trademarks, trade names, mask works, know-how, and other intellectual property rights in and to the Equipment and Software, including those created or produced by Motorola under this Agreement and any corrections, bug fixes, enhancements, updates or modifications to or derivative works from the Software whether made by Motorola or another party.
“Services” means system implementation, maintenance, support, subscription, or other professional services provided under this Agreement, which may be further described in the applicable Addendum and/or SOW. “Software” (i) means proprietary software in object code format, and adaptations, translations, decompilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third

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party software provided under separate license or third party software not licensable under the terms of this Agreement.
“Software License Agreement” means the Motorola Software License Agreement (Exhibit A). “Software Support Policy” (“SwSP”) means the policy set forth at https://www.motorolasolutions.com/content/dam/msi/secure/services/software_policy.pdf describing the specific technical support that will be provided to Customers under the Warranty Period and during any paid maintenance support period for Motorola Software. This policy may be modified from time to time at Motorola’s discretion.
“Solution” means the combination of the System(s) and Services provided by Motorola under this Agreement. “Solution Data” means Customer data that is transformed, altered, processed, aggregated, correlated or operated on by Motorola, its vendors or other data sources and data that has been manipulated or retrieved using Motorola know-how to produce value-added content to data consumers, including customers or citizens which is made available to Customer with the Solution and Services. “Specifications” means the functionality and performance requirements that are described in the Technical and Implementation Documents.
“SUA” or “SUA II” means Motorola’s Software Upgrade Agreement program. “Subsystem” means a major part of the System that performs specific functions or operations. Subsystems are described in the Technical and Implementation Documents. “System” means the Equipment, including incidental hardware and materials, Software, and design, installation and implementation services that are combined together into an integrated system; the System(s) is (are) described in the Technical and Implementation Documents.

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“System Acceptance” means the Acceptance Tests have been successfully completed. “System Data” means data created by, in connection with or in relation to Equipment or the performance of Services under this Agreement.
“Warranty Period” for System Hardware, Software, or services related to system implementation means one (1) year from the date of System Acceptance or Beneficial Use, whichever occurs first. Unless otherwise stated in the applicable Addendum, Warranty Period for other Services means ninety (90) days from performance of the Service.

Section 3 SCOPE OF AGREEMENT AND TERM

3.1. SCOPE OF WORK. Motorola will provide, install and test the System(s), and perform its other contractual responsibilities to provide the Solution, all in accordance with this Agreement. Customer will perform its contractual responsibilities in accordance with this Agreement.

3.2. CHANGE ORDERS. Either Party may request changes within the general scope of this Agreement. If a requested change causes an increase or decrease in the cost or time required to perform this Agreement, the Parties will agree to an equitable adjustment of the Contract Price or applicable subscription fees, Performance Schedule, or both, and will reflect the adjustment in a change order or Addendum. Neither Party is obligated to perform requested changes unless both Parties execute a written change order.

3.3. TERM. Unless terminated in accordance with other provisions of this Agreement or extended by mutual agreement of the Parties, the term of this Agreement begins on the Effective Date and continues until the date of Final Project Acceptance or expiration of the Warranty Period, or completion of the Services, whichever occurs last. The term and the effective date of recurring Services will be set forth in the applicable Addendum.

3.4. ADDITIONAL EQUIPMENT OR SOFTWARE. For three (3) years after the expiration date of the Agreement, Customer may order additional Equipment or Software, if it is then available. Each purchase order must refer to this Agreement, the expiration date of the Agreement, and must specify the pricing and delivery terms. The Parties agree that, notwithstanding expiration of the Agreement, the applicable provisions of this Agreement (except for pricing, delivery, passage of title and risk of loss to Equipment, warranty commencement, and payment terms) will govern the purchase and sale of the additional Equipment or Software. Additional or contrary terms in the purchase order will be inapplicable, unless signed by both parties. Title and risk of loss to

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additional Equipment will pass at shipment, warranty will commence upon delivery, and payment is due within thirty (30) days after the invoice date. Motorola will send Customer an invoice as the additional Equipment is shipped or Software is licensed. Alternatively, Customer may register with and place orders through Motorola Online (“MOL”), and this Agreement will be the “Underlying Agreement” for those MOL transactions rather than the MOL On-Line Terms and Conditions of Sale. MOL registration and other information may be found at https://businessonline.motorolasolutions.com and the MOL telephone number is (800) 814-0601.

3.5. MOTOROLA SOFTWARE. Any Motorola Software, including subsequent releases, is licensed to Customer solely in accordance with the Software License Agreement. Customer hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement.

3.6. NON-MOTOROLA SOFTWARE. Any Non-Motorola Software is licensed to Customer in accordance with the standard license, terms, and restrictions of the copyright owner on the Effective Date unless the copyright owner has granted to Motorola the right to sublicense the Non-Motorola Software pursuant to the Software License Agreement, in which case it applies and the copyright owner will have all of Licensor’s rights and protections under the Software License Agreement. Motorola makes no representations or warranties of any kind regarding Non-Motorola Software. Non-Motorola Software may include Open Source Software.

3.7. SUBSTITUTIONS. At no additional cost to Customer, Motorola may substitute any Equipment, Software, or services to be provided by Motorola, if the substitute meets or exceeds the Specifications and is of equivalent or better quality to the Customer. Any substitution will be reflected in a change order.

3.8. OPTIONAL EQUIPMENT OR SOFTWARE. This paragraph applies only if a “Priced Options” exhibit is shown in Section 1, or if the parties amend this Agreement to add a Priced Options exhibit. During the term of the option as stated in the Priced Options exhibit (or if no term is stated, then for one (1) year after the Effective Date), Customer has the right and option to purchase the equipment, software, and related services that are described in the Priced Options exhibit. Customer may exercise this option by giving written notice to Seller which must designate what equipment, software, and related services Customer is selecting (including quantities, if applicable). To the extent they apply, the terms and conditions of this Agreement will govern the transaction; however, the parties acknowledge that certain provisions must be agreed upon, and they agree to negotiate those in good faith promptly after Customer delivers the option exercise notice. Examples of provisions that may need to be negotiated are: specific lists of deliverables, statements of work, acceptance test plans, delivery and implementation schedules, payment terms, maintenance and support provisions, additions to or modifications of the Software License Agreement, hosting terms, and modifications to the acceptance and warranty provisions.

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Section 4 SERVICES

4.1. If Customer desires and Motorola agrees to continue Services beyond the Term, Customer’s issuance and Motorola’s acceptance of a purchase order for Services will serve as an automatic extension of the Agreement for purposes of the continuing Services. Only the terms and conditions applicable to the performance of Services will apply to the extended Agreement.

4.2. During the Warranty Period, in addition to warranty services, Motorola will provide maintenance Services for the Equipment and support for the Motorola Software pursuant to the applicable maintenance and support Statements of Work. Support for the Motorola Software will be in accordance with Motorola's established Software Support Policy. Copies of the SwSP can be found at https://www.motorolasolutions.com/content/dam/msi/secure/services/software_policy.pdf and will be sent by mail, email or fax to Customer upon written request. Maintenance Services and support during the Warranty Period are included in the Contract Price. Unless already included in the Contract Price, if Customer wishes to purchase 1) additional maintenance or software support services during the Warranty Period; or 2) continue or expand maintenance, software support, installation, and/or SUA services after the Warranty Period, Motorola will provide the description of and pricing for such services in a separate proposal document. Unless otherwise agreed by the parties in writing, the terms and conditions in this Agreement applicable to maintenance, support, installation, and/or SUA Services, will be included in the Maintenance and Support Addendum, SUA Addendum, the applicable Statements of Work, and the proposal, (if applicable). These collective terms will govern the provision of such Services.

To obtain any such additional Services, Customer will issue a purchase order referring to this Agreement and the separate proposal document. Omission of reference to this Agreement in Customer’s purchase order will not affect the applicability of this Agreement. Motorola’s proposal may include a cover page entitled “Service Agreement” or “Installation Agreement”, as applicable, and other attachments. These cover pages and other attachments are incorporated into this Agreement by this reference

4.3. PROFESSIONAL AND SUBSCRIPTION SERVICES. If Customer purchases professional or subscription Services as part of the Solution, additional or different terms specific to such Service will be included in the applicable Addendum and will apply to those Services. Customer may purchase additional professional or subscription services by issuing a purchase order referencing this Agreement and Motorola’s proposal for such additional services.

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4.4. Any information in the form of specifications, drawings, reprints, technical information or otherwise furnished to Customer in providing Services under this Agreement or Motorola data viewed, accessed, will remain Motorola’s property, will be deemed proprietary, Confidential Information. This Confidential Information will be promptly returned at Motorola's request.

4.5. TOOLS. All tools, equipment, dies, gauges, models, drawings or other materials paid for or furnished by Motorola for the purpose of providing Services under this Agreement will be and remain the sole property of Motorola. Customer will safeguard all such property while it is in Customer’s custody or control, be liable for any loss or damage to this property, and return it to Motorola upon request. This property will 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. Upon termination of the contract for any reason, Customer shall return to Motorola all equipment delivered to Customer.

4.6. COVENANT NOT TO EMPLOY. During the term of this Agreement and continuing for a period of two (2) years thereafter, Customer will not hire, engage on contract, solicit the employment of, or recommend employment to any third party of any employee of Motorola or its subcontractors without the prior written authorization of Motorola. This provision applies only to those employees of Motorola or its subcontractors who are responsible for rendering Services under this Agreement. If this provision is found to be overly broad under applicable law, it will be modified as necessary to conform to applicable law.

4.7. CUSTOMER OBLIGATIONS. If the applicable Statement of Work or Addendum contains assumptions that affect the Services or Deliverables, Customer will verify that they are accurate and complete. Any information that Customer provides to Motorola concerning the Services or Deliverables will be 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 perform the Services and its other duties under this Agreement.

Unless the Statement of Work states the contrary, Motorola may rely upon and is not required to evaluate, confirm, reject, modify, or provide advice concerning any assumptions and Customer-provided information, decisions and approvals described in this paragraph.

4.8. ASSUMPTIONS. If any assumptions or conditions contained in this Agreement, applicable Addenda or Statements of Work prove to be incorrect or if Customer’s obligations are not performed, Motorola’s ability to perform under this Agreement may be impacted and changes to the Contract Price, subscription fees, project schedule, Deliverables, or other changes may be necessary.

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4.9. NON-PRECLUSION. If, as a result of the Services performed under this Agreement, Motorola recommends that Customer purchase products or other 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 or other laws, regulations, or policies.

4.10. PROPRIETARY MATERIALS. Customer acknowledges that Motorola may use and/or provide Customer with access to Proprietary Materials and Derivative Proprietary Materials. The Proprietary Materials and the Derivative Proprietary Materials are the sole and exclusive property of Motorola and Motorola retains all right, title and interest in and to the Proprietary Materials and Derivative Proprietary Materials.

4.11. ADDITIONAL SERVICES. Any services performed by Motorola outside the scope of this Agreement at the direction of Customer will be considered to be additional Services which are subject to additional charges. Any agreement to perform additional Services will be reflected in a written and executed change order, Addendum or amendment to this Agreement.

Section 5 PERFORMANCE SCHEDULE
The Parties will perform their respective responsibilities in accordance with the Performance Schedule. By executing this Agreement, Customer authorizes Motorola to proceed with contract performance.

Section 6 CONTRACT PRICE, PAYMENT AND INVOICING

6.1. Customer affirms that a purchase order or notice to proceed is not required for contract performance or for subsequent years of service, if any, and that sufficient funds have been appropriated in accordance with applicable law. The Customer will pay all invoices as received from Motorola and any changes in scope will be subject to the change order process as described in this Agreement. At the time of execution of this Agreement, the Customer will provide all necessary reference information to include on invoices for payment in accordance with this Agreement.

6.2. CONTRACT PRICE. The Contract Price in U.S. dollars is $________________________. If applicable, a pricing summary is included with the Payment schedule in Exhibit B. Motorola has priced the Services, Software,

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and Equipment as an integrated System. A change in Software or Equipment quantities, or Services, may affect the overall Contract Price, including discounts if applicable. Fees for professional, SUA, and/or subscription services which are not included in the Contract Price may be listed in Exhibit B, the pricing pages of the proposal, or the applicable Addendum.

6.3. INVOICING AND PAYMENT. Motorola will submit invoices to Customer according to the Payment schedule in Exhibit B. Invoices will be mailed or emailed to Customer pursuant to Section 6.5, Invoicing and Shipping Addresses. Except for a payment that is due on the Effective Date, 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. Overdue invoices will bear simple interest at the maximum allowable rate. For reference, the Federal Tax Identification Number for Motorola is 36-1115800.

6.4. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the invoices.

Title and risk of loss to the Equipment will pass to Customer upon shipment. Title to Software will not pass to Customer at any time. Motorola will pack and ship all Equipment in accordance with good commercial practices.

6.5. INVOICING AND SHIPPING ADDRESSES. Invoices will be sent to the Customer at the following address:

Name:______________________________________________________________________________ Address:_____________________________________________________________________________ Phone:______________________________________________________________________________ E-INVOICE. To receive invoices via email:

Customer Account Number:____________________________________________________________ Customer Accounts Payable Email:______________________________________________________ Customer CC(optional) Email: __________________________________________________________ The address which is the ultimate destination where the Equipment will be delivered to Customer is:

Name:______________________________________________________________________________ Address:_____________________________________________________________________________

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The Equipment will be shipped to the Customer at the following address (insert if this information is known):

Name:______________________________________________________________________________ Address:_____________________________________________________________________________ Phone:______________________________________________________________________________ Customer may change this information by giving written notice to Motorola.

Section 7 SITES AND SITE CONDITIONS

7.1. ACCESS TO SITES. In addition to its responsibilities described elsewhere in this Agreement, Customer will provide a designated project manager; all necessary construction and building permits, zoning variances, licenses, and any other approvals that are necessary to develop or use the sites and mounting locations; and access to the worksites or vehicles identified in the Technical and Implementation Documents as reasonably requested by Motorola so that it may perform its duties in accordance with the Performance Schedule and Statement of Work. If the Statement of Work so indicates, Motorola may assist Customer in the local building permit process.

7.2. SITE CONDITIONS. Customer will ensure that all work sites it provides will be safe, secure, and in compliance with all applicable industry and OSHA standards. To the extent applicable and unless the Statement of Work states to the contrary, Customer will ensure that these work sites have adequate: physical space; air conditioning and other environmental conditions; adequate and appropriate electrical power outlets, distribution, equipment and connections; and adequate telephone or other communication lines (including modem access and adequate interfacing networking capabilities), all for the installation, use and maintenance of the System. Before installing the Equipment or Software at a work site, Motorola may inspect the work site and advise Customer of any apparent deficiencies or non-conformities with the requirements of this Section. This Agreement is predicated upon normal soil conditions as defined by the version of E.I.A. standard RS-222 in effect on the Effective Date.

7.3. SITE ISSUES. If a Party determines that the sites identified in the Technical and Implementation Documents are no longer available or desired, or if subsurface, structural, adverse environmental or latent conditions at any site differ from those indicated in the Technical and Implementation Documents, the Parties

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will promptly investigate the conditions and will select replacement sites or adjust the installation plans and specifications as necessary. If change in sites or adjustment to the installation plans and specifications causes a change in the cost or time to perform, the Parties will equitably amend the Contract Price, Performance Schedule, or both, by a change order.

Section 8 TRAINING
Any training to be provided by Motorola to Customer will be described in the applicable Statement of Work.

Customer will notify Motorola immediately if a date change for a scheduled training program is required. If Motorola incurs additional costs because Customer reschedules a training program less than thirty (30) days before its scheduled start date, Motorola may recover these additional costs.

Section 9 SYSTEM ACCEPTANCE

9.1. COMMENCEMENT OF ACCEPTANCE TESTING. Motorola will provide to Customer at least ten (10) days notice before the Acceptance Tests commence. System testing will occur only in accordance with the Acceptance Test Plan.

9.2. SYSTEM ACCEPTANCE. System Acceptance will occur upon successful completion of the Acceptance Tests. Upon System Acceptance, the Parties will memorialize this event by promptly executing a System Acceptance Certificate. If the Acceptance Test Plan includes separate tests for individual Subsystems or phases of the System, acceptance of the individual Subsystem or phase will occur upon the successful completion of the Acceptance Tests for the Subsystem or phase, and the Parties will promptly execute an acceptance certificate for the Subsystem or phase. If Customer believes the System has failed the completed Acceptance Tests, Customer will provide to Motorola a written notice that includes the specific details of the failure. If Customer does not provide to Motorola a failure notice within thirty (30) days after completion of the Acceptance Tests, System Acceptance will be deemed to have occurred as of the completion of the Acceptance Tests. Minor omissions or variances in the System that do not materially impair the operation of the System as a whole will not postpone System Acceptance or Subsystem acceptance, but will be corrected according to a mutually agreed schedule.

9.3. BENEFICIAL USE. Customer acknowledges that Motorola’s ability to perform its implementation and testing responsibilities may be impeded if Customer begins using the System before System Acceptance.

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Therefore, Customer will not commence Beneficial Use before System Acceptance without Motorola’s prior written authorization, which will not be unreasonably withheld. Motorola is not responsible for System performance deficiencies that occur during unauthorized Beneficial Use. Upon commencement of Beneficial Use, Customer assumes responsibility for the use and operation of the System.

9.4. FINAL PROJECT ACCEPTANCE. Final Project Acceptance will occur after System Acceptance when all deliverables and other work have been completed. When Final Project Acceptance occurs, the parties will promptly memorialize this final event by so indicating on the System Acceptance Certificate.

Section 10 REPRESENTATIONS AND WARRANTIES

10.1. SYSTEM FUNCTIONALITY. Motorola represents that the System will perform in accordance with the Specifications in all material respects. Upon System Acceptance or Beneficial Use, whichever occurs first, this System functionality representation is fulfilled. Motorola is not responsible for System performance deficiencies that are caused by ancillary equipment not furnished by Motorola which is attached to or used in connection with the System or for reasons or parties beyond Motorola’s control, such as natural causes; the construction of a building that adversely affects the microwave path reliability or radio frequency (RF) coverage; the addition of frequencies at System sites that cause RF interference or intermodulation; or Customer changes to load usage or configuration outside the Specifications.

10.2. EQUIPMENT WARRANTY. During the Warranty Period, Motorola warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. If System Acceptance is delayed beyond six (6) months after shipment of the Equipment by events or causes beyond Motorola’s control, this warranty expires eighteen (18) months after the shipment of the Equipment.

10.3. SOFTWARE WARRANTY. Except as described in the SwSP and unless otherwise stated in the Software License Agreement, during the Warranty Period, Motorola warrants the Software in accordance with the warranty terms set forth in the Software License Agreement and the provisions of this Section that are applicable to the Software. If System Acceptance is delayed beyond six (6) months after shipment of the Motorola Software by events or causes beyond Motorola’s control, this warranty expires eighteen (18) months after the shipment of the Motorola Software. Nothing in this Warranty provision is intended to conflict or modify the Software Support Policy. In the event of an ambiguity or conflict between the Software Warranty and Software Support Policy, the Software Support Policy governs.

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10.4. EXCLUSIONS TO EQUIPMENT AND SOFTWARE WARRANTIES. These warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Software in other than its normal, customary, and authorized manner; accident, liquids, neglect, or acts of God; testing, maintenance, disassembly, repair, installation, alteration, modification, or adjustment not provided or authorized in writing by Motorola; Customer’s failure to comply with all applicable industry and OSHA standards; (ii) breakage of or damage to antennas unless caused directly by defects in material or workmanship; (iii) Equipment that has had the serial number removed or made illegible; (iv) batteries (because they carry their own separate limited warranty) or consumables; (v) freight costs to ship Equipment to the repair depot; (vi) scratches or other cosmetic damage to Equipment surfaces that does not affect the operation of the Equipment; and (vii) normal or customary wear and tear.

10.5. SERVICE WARRANTY. During the Warranty Period, Motorola warrants that the Services will be provided in a good and workmanlike manner and will conform in all material respects to the applicable Statement of Work. Services will be free of defects in materials and workmanship for a period of ninety (90) days from the date the performance of the Services are completed. Customer acknowledges that the Deliverables may contain recommendations, suggestions or advice from Motorola to Customer (collectively, “recommendations”).

Motorola makes no warranties concerning those recommendations, and Customer alone accepts responsibility for choosing whether and how to implement the recommendations and the results to be realized from implementing them.

10.6. WARRANTY CLAIMS. To assert a warranty claim, Customer must notify Motorola in writing of the claim before the expiration of the Warranty Period. Upon receipt of this notice, Motorola will investigate the warranty claim. If this investigation confirms a valid Equipment or Software warranty claim, Motorola will (at its option and at no additional charge to Customer) repair the defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the price of the defective Equipment or Motorola Software.

These actions will be the full extent of Motorola’s liability for the warranty claim. In the event of a valid Services warranty claim, Customer’s sole remedy is to require Motorola to re-perform the non-conforming Service or to refund, on a pro-rata basis, the fees paid for the non-conforming Service. If this investigation indicates the warranty claim is not valid, then Motorola may invoice Customer for responding to the claim on a time and materials basis using Motorola’s then current labor rates. Repaired or replaced product is warranted for the balance of the original applicable warranty period. All replaced products or parts will become the property of Motorola.

10.7. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Motorola to the original user purchasing the System or Services for commercial, industrial, or governmental use only, and are not assignable or transferable.

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10.8. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE

EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. MOTOROLA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,

INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

Section 11 DELAYS

11.1. FORCE MAJEURE. Neither Party will be liable for its non-performance or delayed performance if caused by a Force Majeure. A Party that becomes aware of a Force Majeure that will significantly delay performance will notify the other Party promptly (but in no event later than fifteen days) after it discovers the Force Majeure.

If a Force Majeure occurs, the Parties will execute a change order to extend the Performance Schedule or applicable Addenda for a time period that is reasonable under the circumstances.

11.2. PERFORMANCE SCHEDULE DELAYS CAUSED BY CUSTOMER. If Customer (including its other contractors) delays the Performance Schedule, it will make the promised payments according to the Payment schedule as if no delay occurred; and the Parties will execute a change order to extend the Performance Schedule and, if requested, compensate Motorola for all reasonable charges incurred because of the delay. Delay charges may include costs incurred by Motorola or its subcontractors for additional freight, warehousing and handling of Equipment; extension of the warranties; travel; suspending and re-mobilizing the work; additional engineering, project management, and standby time calculated at then current rates; and preparing and implementing an alternative implementation plan.

Section 12 DISPUTES
The Parties will use the following procedure to address any dispute arising under this Agreement (a “Dispute”).

12.1. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State in which the System is installed.

12.2. NEGOTIATION. Either Party may initiate the Dispute resolution procedures by sending a notice of Dispute (“Notice of Dispute”). The Parties will attempt to resolve the Dispute promptly through good faith

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negotiations including 1) 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 and 2) direct communication between the executives. If the Dispute has not been resolved within ten (10) days from the Notice of Dispute, the Parties will proceed to mediation.

12.3. MEDIATION. The Parties will choose an independent mediator within thirty (30) days of a notice to mediate from either Party (“Notice of Mediation”). Neither Party may unreasonably withhold consent to the selection of a mediator. If the Parties are unable to agree upon a mediator, either Party may request that 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.

12.4. LITIGATION, VENUE and JURISDICTION. If a Dispute remains unresolved for sixty (60) days after receipt of the Notice of Mediation, either Party may then submit the Dispute to a court of competent jurisdiction in the state in which the System is installed. Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts in such state over any claim or matter arising under or in connection with this Agreement.

12.5. CONFIDENTIALITY. All communications pursuant to subsections 12.2 and 12.3 will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence and any additional confidentiality protections provided by applicable law. The use of these Dispute resolution procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either Party.

Section 13 DEFAULT AND TERMINATION

13.1. DEFAULT BY A PARTY. If either Party fails to perform a material obligation under this Agreement, the other Party may consider the non-performing Party to be in default (unless a Force Majeure causes the failure) and may assert a default claim by giving the non-performing Party a written and detailed notice of default.

Except for a default by Customer for failing to pay any amount when due under this Agreement which must be cured immediately, the defaulting Party will have thirty (30) days after receipt of the notice of default to either cure the default or, if the default is not curable within thirty (30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan immediately after receipt of notice by the other Party that it approves the plan. If Customer is the defaulting Party, Motorola may stop work on the project until it approves the Customer’s cure plan.

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13.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section 13.1, unless otherwise agreed in writing, the non-defaulting Party may terminate any unfulfilled portion of this Agreement.

In the event of termination for default, the defaulting Party will promptly return to the non-defaulting Party any of its Confidential Information. If Customer is the non-defaulting Party, terminates this Agreement as permitted by this Section, and completes the System through a third Party, Customer may as its exclusive remedy recover from Motorola reasonable costs incurred to complete the System to a capability not exceeding that specified in this Agreement less the unpaid portion of the Contract Price. Customer will mitigate damages and provide Motorola with detailed invoices substantiating the charges. In the event Customer elects to terminate this Agreement for any reason other than default, Customer shall pay Motorola for the conforming Equipment and/or Software delivered and all services performed.

Section 14 INDEMNIFICATION

14.1. GENERAL INDEMNITY BY Motorola. Motorola will indemnify and hold Customer harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against Customer to the extent it is caused by the negligence of Motorola, its subcontractors, or their employees or agents, while performing their duties under this Agreement, if Customer gives Motorola prompt, written notice of any claim or suit. Customer will cooperate with Motorola in its defense or settlement of the claim or suit. This Section sets forth the full extent of Motorola’s general indemnification of Customer from liabilities that are in any way related to Motorola’s performance under this Agreement.

14.2. GENERAL INDEMNITY BY CUSTOMER. Customer will indemnify and hold Motorola harmless from any and all liability, expense, judgment, suit, cause of action, or demand for personal injury, death, or direct damage to tangible property which may accrue against Motorola to the extent it is caused by the negligence of Customer, its other contractors, or their employees or agents, while performing their duties under this Agreement, if Motorola gives Customer prompt, written notice of any the claim or suit. Motorola will cooperate with Customer in its defense or settlement of the claim or suit. This Section sets forth the full extent of Customer’s general indemnification of Motorola from liabilities that are in any way related to Customer’s performance under this Agreement.

14.3. PATENT AND COPYRIGHT INFRINGEMENT.

14.3.1. Motorola will defend at its expense any suit brought against Customer to the extent it is based on a third-party claim alleging that the Equipment manufactured by Motorola or the Motorola Software (“Motorola

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Product”) directly infringes a United States patent or copyright (“Infringement Claim”). Motorola’s duties to defend and indemnify are conditioned upon: Customer promptly notifying Motorola in writing of the Infringement Claim; Motorola having sole control of the defense of the suit and all negotiations for its settlement or compromise; and Customer providing to Motorola cooperation and, if requested by Motorola, reasonable assistance in the defense of the Infringement Claim. In addition to Motorola’s obligation to defend, and subject to the same conditions, 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.

14.3.2 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 Motorola Product; (b) replace or modify the Motorola Product so that it becomes non-infringing while providing functionally equivalent performance; or (c) accept the return of the Motorola Product and grant Customer a credit for the Motorola Product, less a reasonable charge for depreciation. The depreciation amount will be calculated based upon generally accepted accounting standards.

14.3.3 Motorola will have no duty to defend or indemnify for any Infringement Claim that is based upon: (a) the combination of the Motorola Product with any software, apparatus or device not furnished by Motorola; (b) the use of ancillary equipment or software not furnished by Motorola and that is attached to or used in connection with the Motorola Product; (c) Motorola Product designed or manufactured in accordance with Customer’s designs, specifications, guidelines or instructions, if the alleged infringement would not have occurred without such designs, specifications, guidelines or instructions; (d) a modification of the Motorola Product by a party other than Motorola; (e) use of the Motorola Product in a manner for which the Motorola Product was not designed or that is inconsistent with the terms of this Agreement; or (f) the failure by Customer to install an enhancement release to the Motorola Software that is intended to correct the claimed infringement. In no event will Motorola’s liability resulting from its indemnity obligation to Customer extend in any way to royalties payable on a per use basis or the Customer’s revenues, or any royalty basis other than a reasonable royalty based upon revenue derived by Motorola from Customer from sales or license of the infringing Motorola Product.

14.3.4. This Section 14 provides Customer’s sole and exclusive remedies and Motorola’s entire liability in the event of an Infringement Claim. Customer has no right to recover and Motorola has no obligation to provide any other or further remedies, whether under another provision of this Agreement or any other legal theory or principle, in connection with an Infringement Claim. In addition, the rights and remedies provided in this Section 14 are subject to and limited by the restrictions set forth in Section 15.

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Section 15 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipment, Software, or implementation and other one-time Services with respect to which losses or damages are claimed. With respect to all subscription or other ongoing Services and unless as otherwise provided under the applicable Addenda, Motorola’s total liability will be limited to the direct damages recoverable under law, but not to exceed the price of twelve (12) months of Services preceding the incident giving rise to the claim. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF

SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS, INCONVENIENCE, LOSS OF USE, LOSS TIME, DATA, GOODWILL, REVENUES, PROFITS OR SAVINGS; OR OTHER

SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM

THIS AGREEMENT, THE SALE OR USE OF THE EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the expiration or termination of the Agreement and applies notwithstanding any contrary provision. No action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of the cause of action, except for money due upon an open account.

Section 16 CONFIDENTIALITY AND PROPRIETARY RIGHTS

16.1. CONFIDENTIAL INFORMATION.

16.1.1. Each party is a disclosing party (“Discloser”) and a receiving party (“Recipient”) under this Agreement. All Deliverables will be deemed to be Motorola’s Confidential Information. During the term of this Agreement and for a period of three (3) years from the expiration or termination of this Agreement, Recipient will (i) not disclose Confidential Information to any third party; (ii) restrict disclosure of Confidential Information to only those employees (including, but not limited to, employees of any wholly owned subsidiary, a parent company, any other wholly owned subsidiaries of the same parent company), agents or consultants who must be directly involved with the Confidential Information for the purpose and who are bound by confidentiality terms substantially similar to those in this Agreement; (iii) not copy, reproduce, reverse engineer, decompile, or disassemble any Confidential Information; (iv) 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; (v) 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 (vi) only use the Confidential Information as needed to fulfill this Agreement.

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16.1.2. Recipient is not obligated to maintain as confidential, Confidential Information that Recipient can demonstrate by documentation (i) is now available or becomes available to the public without breach of this agreement; (ii) is explicitly approved for release by written authorization of Discloser; (iii) is lawfully obtained from a third party or parties without a duty of confidentiality; (iv) is known to the Recipient prior to such disclosure; or (v) is independently developed by Recipient without the use of any of Discloser’s Confidential Information or any breach of this Agreement.

16.1.3. All Confidential Information remains the property of the Discloser and will not be copied or reproduced without the express written permission of the Discloser, except for copies that are absolutely necessary in order to fulfill this Agreement. Within ten (10) days of receipt of Discloser’s written request, Recipient will return 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 one (1) archival copy of the Confidential Information that it may use only in case of a dispute concerning this Agreement. No license, express or implied, in the Confidential Information is granted other than to use the Confidential Information in the manner and to the extent authorized by this Agreement. The Discloser warrants that it is authorized to disclose any Confidential Information it discloses pursuant to this Agreement.

16.2. PRESERVATION OF MOTOROLA’S PROPRIETARY RIGHTS. Motorola, the third party manufacturer of any Equipment, and the copyright owner of any Non-Motorola Software own and retain all of their respective Proprietary Rights in the Equipment and Software, and nothing in this Agreement is intended to restrict their Proprietary Rights. All intellectual property developed, originated, or prepared by Motorola in connection with providing to Customer the Equipment, Software, or related services remain vested exclusively in Motorola, and this Agreement does not grant to Customer any shared development rights of intellectual property. Except as explicitly provided in the Software License Agreement, Motorola does not grant to Customer, either directly or by implication, estoppel, or otherwise, any right, title or interest in Motorola’s Proprietary Rights. Customer will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell or export the Software, or permit or encourage any third party to do so.

The preceding sentence does not apply to Open Source Software which is governed by the standard license of the copyright owner.

16.3 VOLUNTARY DISCLOSURE. Except as required to fulfill its obligations under this Agreement, Motorola will have no obligation to provide Customer with access to its Confidential Information and/or proprietary information. Under no circumstances will Motorola be required to provide any data related to cost and pricing.

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16.4 DATA AND FEEDBACK.

16.4.1 To the extent permitted by law, Customer owns all right, title and interest in System Data created solely by it or its agents (hereafter, “Customer Data”), and grants to Motorola the right to use, host, cache, store, reproduce, copy, modify, combine, analyze, create derivatives from, communicate, transmit, publish, display, and distribute such Customer Data.

16.4.2 Motorola owns all right, title and interest in data resulting from System Data that is or has been transformed, altered, processed, aggregated, correlated or operated on (hereafter, “Derivative Data”).

16.4.3 Any Feedback given by Customer is and will be entirely voluntary and, even if designated as confidential, will not create any confidentiality obligation for Motorola. Motorola will be free to use, reproduce, license or otherwise distribute and exploit the Feedback without any obligation to Customer. Customer acknowledges that Motorola’s receipt of the Feedback does not imply or create recognition by Motorola of either the novelty or originality of any idea. The parties further agree that all fixes, modifications and improvements made to Motorola products or services conceived of or made by Motorola that are based, either in whole or in part, on the Feedback are the exclusive property of Motorola and all right, title and interest in and to such fixes, modifications or improvements to the Motorola product or service will vest solely in Motorola.

Section 17 GENERAL

17.1. TAXES. The Contract Price does not include any excise, sales, lease, use, property, or other taxes, assessments or duties, all of which will be paid by Customer except as exempt by law. If Motorola is required to pay any of these taxes, Motorola will send an invoice to Customer and Customer will pay to Motorola the amount of the taxes (including any interest and penalties) within thirty (30) days after the date of the invoice.

Customer will be solely responsible for reporting the Equipment for personal property tax purposes, and Motorola will be solely responsible for reporting taxes on its income or net worth.

17.2. ASSIGNABILITY AND SUBCONTRACTING. Except as provided herein, neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any attempted assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the foregoing, Motorola may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of Customer. In addition, in the event Motorola separates one or more of its businesses (each a “Separated Business”), whether by way of a sale, establishment of a joint venture, spin-off or otherwise (each a “Separation Event”), Motorola may, without the

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prior written consent of the other Party and at no additional cost to Motorola, assign this Agreement such that it will continue to benefit the Separated Business and its affiliates (and Motorola and its affiliates, to the extent applicable) following the Separation Event. Motorola may subcontract any of the work, but subcontracting will not relieve Motorola of its duties under this Agreement.

17.3. WAIVER. Failure or delay by either Party to exercise a right or power under this Agreement will not be a waiver of the right or power. For a waiver of a right or power to be effective, it must be in a writing signed by the waiving Party. An effective waiver of a right or power will not be construed as either a future or continuing waiver of that same right or power, or the waiver of any other right or power.

17.4. SEVERABILITY. If a court of competent jurisdiction renders any part of this Agreement invalid or unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect.

17.5. 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.

17.6. HEADINGS AND SECTION REFERENCES. The section headings in this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular section to which the heading refers. This Agreement will be fairly interpreted in accordance with its terms and conditions and not for or against either Party.

17.7. 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 Party by certified mail, return receipt requested and postage prepaid (or by a recognized courier service, such as Federal Express, UPS, or DHL), or by facsimile with correct answerback received, and will be effective upon receipt.

17.8. COMPLIANCE WITH APPLICABLE LAWS. Each Party will comply with all applicable federal, state, and local laws, regulations and rules concerning the performance of this Agreement or use of the System. Customer will obtain and comply with all Federal Communications Commission (“FCC”) licenses and authorizations required

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for the installation, operation and use of the System before the scheduled installation of the Equipment.

Although Motorola might assist Customer in the preparation of its FCC license applications, neither Motorola nor any of its employees is an agent or representative of Customer in FCC or other matters.

17.9 FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an evolving technological area and therefore, laws and regulations regarding Services and use of Solution may change.

Changes to existing Services or the Solution required to achieve regulatory compliance may be available for an additional fee. Any required changes may also impact the price for Services.

17.10. AUTHORITY TO EXECUTE AGREEMENT. Each Party represents that it has obtained all necessary approvals, consents and authorizations to enter into this Agreement and to perform its duties under this Agreement; the person executing this Agreement on its behalf has the authority to do so; upon execution and delivery of this Agreement by the Parties, it is a valid and binding contract, enforceable in accordance with its terms; and the execution, delivery, and performance of this Agreement does not violate any bylaw, charter, regulation, law or any other governing authority of the Party.

17.11. ADMINISTRATOR LEVEL ACCOUNT ACCESS. If applicable to the type of System purchased by Customer, Motorola will provide Customer with Administrative User Credentials. Customer agrees to only grant access to the Administrative User Credentials to those personnel with the training and experience to correctly use them.

Customer is responsible for protecting Administrative User Credentials from disclosure and maintaining Credential validity by, among other things, updating passwords when required. Customer may be asked to provide valid Administrative User Credentials when in contact with Motorola System support personnel.

Customer understands that changes made as the Administrative User can significantly impact the performance of the System. Customer agrees that it will be solely responsible for any negative impact on the System or its users by any such changes. System issues occurring as a result of changes made using the Administrative User Credentials may impact Motorola’s ability to perform Services or other obligations under the Agreement. In such cases, a revision to the appropriate provisions of the Agreement, including the Statement of Work, may be necessary. To the extent Motorola provides assistance to correct any issues caused by or arising out of the use of or failure to maintain Administrative User Credentials, Motorola will be entitled to bill Customer and Customer will pay Motorola on a time and materials basis for resolving the issue.

17.12. SURVIVAL OF TERMS. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 3.5 (Motorola Software); Section 3.6 (Non-Motorola Software); if any payment obligations exist, Sections 6.2 and 6.3 (Contract Price and Invoicing and Payment); Subsection 10.8 (Disclaimer of Implied Warranties); Section 12 (Disputes); Section 15 (Limitation of Liability); and Section 16 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 17.

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17.13. ENTIRE AGREEMENT. This Agreement, including all Exhibits, constitutes the entire agreement of the Parties regarding the subject matter of the Agreement 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 shall 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, including by email. An electronic signature, or a facsimile copy or computer image, such as a PDF or tiff image, of a signature, shall be treated as and shall have the same effect as an original signature. In addition, an electronic signature, a true and correct facsimile copy or computer image of this Agreement shall be treated as and shall 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 or purchase order, acknowledgment or other form will not be considered an amendment or modification of this Agreement, even if a representative of each Party signs that document.

The Parties hereby enter into this Agreement as of the Effective Date.

Motorola Solutions, Inc. Customer

By: ______________________________ By: ______________________________ Name: ___________________________ Name: ____________________________ Title: ____________________________ Title: _____________________________ Date: ____________________________ Date: _____________________________

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Exhibit A

MOTOROLA SOFTWARE LICENSE AGREEMENT
This Exhibit A Motorola Software License Agreement ("Agreement") is between Motorola Solutions, Inc., (“Motorola"), and ______________________________________ (“Licensee”).

For good and valuable consideration, the parties agree as follows:

Section 1 DEFINITIONS

1.1 “Designated Products” means products provided by Motorola to Licensee with which or for which the Software and Documentation is licensed for use.

1.2 “Documentation” means product and software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which such information is provided).

1.3 “Open Source Software” means software with either freely obtainable source code, license for modification, or permission for free distribution.

1.4 “Open Source Software License” means the terms or conditions under which the Open Source Software is licensed.

1.5 “Primary Agreement” means the agreement to which this exhibit is attached.

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1.6 “Security Vulnerability” means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach such that data is compromised, manipulated or stolen or the system damaged.

1.7 “Software” (i) means proprietary software in object code format, and adaptations, translations, decompilations, disassemblies, emulations, or derivative works of such software; (ii) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (iii) may contain one or more items of software owned by a third party supplier. The term "Software" does not include any third party software provided under separate license or third party software not licensable under the terms of this Agreement.

Section 2 SCOPE
Motorola and Licensee enter into this Agreement in connection with Motorola's delivery of certain proprietary software or products containing embedded or pre-loaded proprietary software, or both. This Agreement contains the terms and conditions of the license Motorola is providing to Licensee, and Licensee’s use of the proprietary software and affiliated documentation.

Section 3 GRANT OF LICENSE

3.1. Subject to the provisions of this Agreement and the payment of applicable license fees, Motorola grants to Licensee a personal, limited, non-transferable (except as permitted in Section 7) and non-exclusive license under Motorola’s copyrights and Confidential Information (as defined in the Primary Agreement) embodied in the Software to use the Software, in object code form, and the Documentation solely in connection with Licensee's use of the Designated Products. This Agreement does not grant any rights to source code.

3.2. If the Software licensed under this Agreement contains or is derived from Open Source Software, the terms and conditions governing the use of such Open Source Software are in the Open Source Software Licenses of the copyright owner and not this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of the Open Source Software Licenses governing Licensee’s use of the Open Source Software, the terms and conditions of the license grant of the applicable Open Source Software Licenses will take precedence over the license grants in this Agreement. If requested by Licensee, Motorola will

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use commercially reasonable efforts to: (i) determine whether any Open Source Software is provided under this Agreement; and (ii) identify the Open Source Software (or specify where that license may be found).

3.3 TO THE EXTENT, IF ANY, THAT THERE IS A SEPARATE LICENSE AGREEMENT PACKAGED WITH, OR

PROVIDED ELECTRONICALLY WITH, A PARTICULAR PRODUCT THAT BECOMES EFFECTIVE ON AN ACT OF

ACCEPTANCE BY THE END USER, THEN THAT AGREEMENT SUPERSEDES THE SOFTWARE LICENSE AGREEMENT AS TO THE END USER OF EACH SUCH PRODUCT.

Section 4 LIMITATIONS ON USE

4.1. Licensee may use the Software only for Licensee's internal business purposes and only in accordance with the Documentation. Any other use of the Software is strictly prohibited. Without limiting the general nature of these restrictions, Licensee will not make the Software available for use by third parties on a "time sharing," "application service provider," or "service bureau" basis or for any other similar commercial rental or sharing arrangement.

4.2. Licensee will not, and will not allow or enable any third party to: (i) reverse engineer, disassemble, peel components, decompile, reprogram or otherwise reduce the Software or any portion to a human perceptible form or otherwise attempt to recreate the source code; (ii) modify, adapt, create derivative works of, or merge the Software; (iii) copy, reproduce, distribute, lend, or lease the Software or Documentation to any third party, grant any sublicense or other rights in the Software or Documentation to any third party, or take any action that would cause the Software or Documentation to be placed in the public domain; (iv) remove, or in any way alter or obscure, any copyright notice or other notice of Motorola's proprietary rights; (v) provide, copy, transmit, disclose, divulge or make the Software or Documentation available to, or permit the use of the Software by any third party or on any machine except as expressly authorized by this Agreement; or (vi) use, or permit the use of, the Software in a manner that would result in the production of a copy of the Software solely by activating a machine containing the Software. Licensee may make one copy of Software to be used solely for archival, backup, or disaster recovery purposes; provided that Licensee may not operate that copy of the Software at the same time as the original Software is being operated. Licensee may make as many copies of the Documentation as it may reasonably require for the internal use of the Software.

4.3. Unless otherwise authorized by Motorola in writing, Licensee will not, and will not enable or allow any third party to: (i) install a licensed copy of the Software on more than one unit of a Designated Product; or (ii) copy onto or transfer Software installed in one unit of a Designated Product onto one other device. Licensee may temporarily transfer Software installed on a Designated Product to another device if the Designated

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Product is inoperable or malfunctioning, if Licensee provides written notice to Motorola of the temporary transfer and identifies the device on which the Software is transferred. Temporary transfer of the Software to another device must be discontinued when the original Designated Product is returned to operation and the Software must be removed from the other device. Licensee must provide prompt written notice to Motorola at the time temporary transfer is discontinued.

4.4 Licensee will maintain, during the term of this Agreement and for a period of two years thereafter, accurate records relating to this license grant to verify compliance with this Agreement. Motorola or an independent third party (“Auditor”) may inspect Licensee’s premises, books and records, upon reasonable prior notice to Licensee, during Licensee’s normal business hours and subject to Licensee's facility and security regulations. Motorola is responsible for the payment of all expenses and costs of the Auditor. Any information obtained by Motorola and the Auditor will be kept in strict confidence by Motorola and the Auditor and used solely for the purpose of verifying Licensee's compliance with the terms of this Agreement.

Section 5 OWNERSHIP AND TITLE
Motorola, its licensors, and its suppliers retain all of their proprietary rights in any form in and to the Software and Documentation, including, but not limited to, all rights in patents, patent applications, inventions, copyrights, trademarks, trade secrets, trade names, and other proprietary rights in or relating to the Software and Documentation (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de-compilations, disassemblies, emulations to or derivative works from the Software or Documentation, whether made by Motorola or another party, or any improvements that result from Motorola’s processes or, provision of information services). No rights are granted to Licensee under this Agreement by implication, estoppel or otherwise, except for those rights which are expressly granted to Licensee in this Agreement. All intellectual property developed, originated, or prepared by Motorola in connection with providing the Software, Designated Products, Documentation or related services, remains vested exclusively in Motorola, and Licensee will not have any shared development or other intellectual property rights.

Section 6 LIMITED WARRANTY; DISCLAIMER OF WARRANTY

6.1. Unless otherwise stated in the Primary Agreement, the commencement date and the term of the Software warranty will be a period of ninety (90) days from Motorola's shipment of the Software (the "Warranty Period"). If Licensee is not in breach of any of its obligations under this Agreement, Motorola warrants that the unmodified Software, when used properly and in accordance with the Documentation and this Agreement, will be free from a reproducible defect that eliminates the functionality or successful operation of a feature critical

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to the primary functionality or successful operation of the Software. Whether a defect occurs will be determined by Motorola solely with reference to the Documentation. Motorola does not warrant that Licensee’s use of the Software or the Designated Products will be uninterrupted, error-free, completely free of Security Vulnerabilities, or that the Software or the Designated Products will meet Licensee’s particular requirements. Motorola makes no representations or warranties with respect to any third party software included in the Software. Notwithstanding, any warranty provided by a copyright owner in its standard license terms will flow through to Licensee for third party software provided by Motorola.

6.2 Motorola’s sole obligation to Licensee and Licensee’s exclusive remedy under this warranty is to use reasonable efforts to remedy any material Software defect covered by this warranty. These efforts will involve either replacing the media or attempting to correct significant, demonstrable program or documentation errors or Security Vulnerabilities. If Motorola cannot correct the defect within a reasonable time, then at Motorola’s option, Motorola will replace the defective Software with functionally-equivalent Software, license to Licensee substitute Software which will accomplish the same objective, or terminate the license and refund the Licensee’s paid license fee.

6.3. Warranty claims are described in the Primary Agreement.

6.4. The express warranties set forth in this Section 6 are in lieu of, and Motorola disclaims, any and all other warranties (express or implied, oral or written) with respect to the Software or Documentation, including, without limitation, any and all implied warranties of condition, title, non-infringement, merchantability, or fitness for a particular purpose or use by Licensee (whether or not Motorola knows, has reason to know, has been advised, or is otherwise aware of any such purpose or use), whether arising by law, by reason of custom or usage of trade, or by course of dealing. In addition, Motorola disclaims any warranty to any person other than Licensee with respect to the Software or Documentation.

Section 7 TRANSFERS
Licensee will not transfer the Software or Documentation to any third party without Motorola's prior written consent. Motorola’s consent may be withheld at its discretion and may be conditioned upon transferee paying all applicable license fees and agreeing to be bound by this Agreement. If the Designated Products are Motorola's radio products and Licensee transfers ownership of the Motorola radio products to a third party, Licensee may assign its right to use the Software (other than CPS and Motorola's FLASHport® software) which is embedded in or furnished for use with the radio products and the related Documentation; provided that Licensee transfers all copies of the Software and Documentation to the transferee, and Licensee and the

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transferee sign a transfer form to be provided by Motorola upon request, obligating the transferee to be bound by this Agreement.

Section 8 TERM AND TERMINATION

8.1 Licensee’s right to use the Software and Documentation will begin when the Primary Agreement is signed by both parties and will continue for the life of the Designated Products with which or for which the Software and Documentation have been provided by Motorola, unless Licensee breaches this Agreement, in which case this Agreement and Licensee's right to use the Software and Documentation may be terminated immediately upon notice by Motorola.

8.2 Within thirty (30) days after termination of this Agreement, Licensee must certify in writing to Motorola that all copies of the Software have been removed or deleted from the Designated Products and that all copies of the Software and Documentation have been returned to Motorola or destroyed by Licensee and are no longer in use by Licensee.

8.3 Licensee acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Software and Documentation and that Licensee's breach of this Agreement will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Licensee breaches this Agreement, Motorola may terminate this Agreement and be entitled to all available remedies at law or in equity (including immediate injunctive relief and repossession of all non-embedded Software and associated Documentation unless Licensee is a Federal agency of the United States Government).

Section 9 Commercial Computer Software

9.1 This Section 9 only applies to U.S. Government end users. The Software, Documentation and updates are commercial items as that term is defined at 48 C.F.R. Part 2.101, consisting of “commercial computer software” and “computer software documentation” as such terms are defined in 48 C.F.R. Part 252.227-7014(a)(1) and 48 C.F.R. Part 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48 C.F.R. Part 227.7202, as applicable.

Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-7015, 48 C.F.R. Part 227.7202-1 through 227.7202- 4, 48 C.F.R. Part 52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Software, Documentation and Updates are distributed and licensed to U.S. Government end users: (i) only as commercial items, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions contained herein.

9.2 If Licensee is licensing Software for end use by the United States Government or a United States Government agency, Licensee may transfer such Software license, but only if: (i) Licensee transfers all copies of

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such Software and Documentation to such United States Government entity or interim transferee, and (ii) Licensee has first obtained from the transferee (if applicable) and ultimate end user an enforceable end user license agreement containing restrictions substantially identical to the ones contained in this Agreement.

Except as stated in the foregoing, Licensee and any transferee(s) authorized by this subsection 9.2 may not otherwise use or transfer or make available any Motorola software to any third party nor permit any party to do so.

Section 10 CONFIDENTIALITY
Licensee acknowledges that the Software and Documentation contain Motorola’s valuable proprietary and Confidential Information and are Motorola’s trade secrets, and that the provisions in the Primary Agreement concerning Confidential Information apply.

Section 11 LIMITATION OF LIABILITY
The Limitation of Liability provision is described in the Primary Agreement.

Section 12 NOTICES
Notices are described in the Primary Agreement.

Section 13 GENERAL

13.1. COPYRIGHT NOTICES. The existence of a copyright notice on the Software will not be construed as an admission or presumption of publication of the Software or public disclosure of any trade secrets associated with the Software.

13.2. COMPLIANCE WITH LAWS. Licensee acknowledges that the Software is subject to the laws and regulations of the United States and Licensee will comply with all applicable laws and regulations, including export laws and regulations of the United States. Licensee will not, without the prior authorization of Motorola and the appropriate governmental authority of the United States, in any form export or re-export, sell or resell,

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ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the United States Government or any of its agencies at the time of the action, requires an export license or other governmental approval.

Violation of this provision is a material breach of this Agreement.

13.3 FUTURE REGULATORY REQUIREMENTS. The Parties acknowledge and agree that this is an evolving technological area and therefore, laws and regulations regarding Services and use of Solution may change.

Changes to existing Services or the Solution required to achieve regulatory compliance may be available for an additional fee. Any required changes may also impact the price for Services.

13.4. ASSIGNMENTS AND SUBCONTRACTING. Motorola may assign its rights or subcontract its obligations under this Agreement, or encumber or sell its rights in any Software, without prior notice to or consent of Licensee.

13.5. GOVERNING LAW. This Agreement is governed by the laws of the United States to the extent that they apply and otherwise by the internal substantive laws of the State to which the Software is shipped if Licensee is a sovereign government entity, or the internal substantive laws of the State of Illinois if Licensee is not a sovereign government entity. The terms of the U.N. Convention on Contracts for the International Sale of Goods do not apply. In the event that the Uniform Computer Information Transaction Act, any version of this Act, or a substantially similar law (collectively "UCITA") becomes applicable to a party's performance under this Agreement, UCITA does not govern any aspect of this Agreement or any license granted under this Agreement, or any of the parties' rights or obligations under this Agreement. The governing law will be that in effect prior to the applicability of UCITA.

13.6. THIRD PARTY BENEFICIARIES. This Agreement is entered into solely for the benefit of Motorola and Licensee. No third party has the right to make any claim or assert any right under this Agreement, and no third party is deemed a beneficiary of this Agreement. Notwithstanding the foregoing, any licensor or supplier of third party software included in the Software will be a direct and intended third party beneficiary of this Agreement.

13.7. SURVIVAL. Sections 4, 5, 6.4, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement.

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13.8. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the Primary Agreement, the parties agree that this Exhibit prevails, only with respect to the specific subject matter of this Exhibit, and not the Primary Agreement or any other exhibit as it applies to any other subject matter.

13.9. SECURITY. Motorola uses reasonable means in the design and writing of its own Software and the acquisition of third party Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, Motorola will take the steps set forth in Section 6 of this Agreement.

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Exhibit B

PAYMENT
Except for a payment that is due on the Effective Date, 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 check, cashier’s check, or wire transfer drawn on a U.S. financial institution. If Customer has purchased additional Professional or Subscription services, payment will be in accordance with the applicable addenda. Payment for the System purchase will be in accordance with the following milestones.

System Purchase (excluding Subscribers, if applicable)

1. 50% of the Contract Price due upon contract execution (due upon effective date);

2. 50% of the Contract Price due upon Final Acceptance.

3. Motorola’s SUA II and Tech Support services Nokia MPLS router support will be invoiced annually in advance.

If Subscribers are purchased, 100% of the Subscriber Contract Price will be invoiced upon shipment (as shipped).

Motorola shall make partial shipments of equipment and will request payment upon shipment of such equipment. In addition, Motorola shall invoice for installations completed on a site-by-site basis or when professional services are completed, when applicable. The value of the equipment shipped/services performed will be determined by the value shipped/services performed as a percentage of the total milestone value.

Unless otherwise specified, contract discounts are based upon all items proposed and overall system package.

For invoicing purposes only, discounts will be applied proportionately to the FNE and Subscriber equipment values to total contract price. Overdue invoices will bear simple interest at the maximum allowable rate by state law.

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For Lifecycle Support Plan and Subscription Based Services:

Motorola will invoice Customer annually in advance of each year of the plan.

The chart below outlines the hourly labor rates for Motorola System Integration resources to be used. The staffing requirements shall be multiplied by the appropriate rate per resource in the table below. The hourly labor rates are fully burdened. The hourly rates per resource type and level are listed in Table 1.

These rates apply to ordinary days and times (Monday to Friday during the hours 8am to 5pm). Additional surcharges may apply to work done outside these timeframes. The minimum charge for any resource will be 4 hours. Travel expenses are not included in these rates and may be charged separately. The qualifications of each type and level of resource are defined in the tables found at https://www.motorolasolutions.com/content/dam/msi/secure/services/labor-rates-exhibit-160408.pdf. All Motorola System Integration personnel assigned to this project will be classified according these levels. Project Administrative roles are varied and their specific duties and qualifications will be determined by the complexity and requirements of each project.

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EXHIBIT D
System Acceptance Certificate
Customer Name: ______________________________________________________ Project Name: ________________________________________________________ This System Acceptance Certificate memorializes the occurrence of System Acceptance. Motorola and Customer acknowledge that:

1. The Acceptance Tests set forth in the Acceptance Test Plan have been successfully completed.

2. The System is accepted.

Customer Representative: Motorola Representative:

Signature: ____________________________ Signature: ____________________________ Print Name: ___________________________ Print Name: ___________________________ Title: ________________________________ Title: ________________________________ Date: ________________________________ Date: ________________________________

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FINAL PROJECT ACCEPTANCE:

Motorola has provided and Customer has received all deliverables, and Motorola has performed all other work required for Final Project Acceptance.

Customer Representative: Motorola Representative:

Signature: ____________________________ Signature: ____________________________ Print Name: ___________________________ Print Name: ___________________________ Title: ________________________________ Title: ________________________________ Date: ________________________________ Date: ________________________________

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MAINTENANCE, SUPPORT AND LIFECYCLE MANAGEMENT ADDENDUM
This Addendum to the Communications System and Services Agreement or other previously executed Agreement currently in force, as applicable (“Primary Agreement”) provides additional or different terms and conditions to govern the sale of Maintenance, Support and Lifecycle Management services. The terms in this Addendum are integral to and incorporated into the Primary Agreement signed by the Parties.

1. DEFINITIONS
All capitalized terms not otherwise defined herein shall have the same meaning as defined in the Primary Agreement.
"MUA" means Microwave Upgrade Agreement (MUA).
"NUA" means Network Upgrade Agreement (NUA).
“SUA” or “SUA II” means Motorola’s Software Upgrade Agreement program for Motorola’s P25 radio system.

2. SCOPE
Motorola will provide Maintenance and Support Services and/or Lifecycle Management as further described in the applicable Statement of Work, or attachment to Motorola’s proposal for additional services.

3. TERMS AND CONDITIONS
The terms of the Primary Agreement combined with the terms of this Addendum will govern the products and services offered pursuant to this Addendum. To the extent there is a conflict between the terms and conditions of the Primary Agreement and the terms and conditions of this Addendum, this Addendum takes precedence.

3.1 MAINTENANCE AND SUPPORT SERVICES

3.1.1 PURCHASE ORDER ACCEPTANCE. Purchase orders for additional, continued, or expanded maintenance and software support, during the Warranty Period or after the Warranty Period, become binding only when accepted in writing by Motorola.

3.1.2 START DATE. The “Start Date” for Maintenance and Support Services will be indicated in the proposal or a cover page entitled “Service Agreement”.

3.1.3 AUTO RENEWAL. Unless the cover page or SOW specifically states a termination date or one Party notifies the other in writing of its intention to discontinue the Services, this Agreement will renew for an additional one (1) year term on every anniversary of the Start Date. At the anniversary date, Motorola may adjust the price of the Services to reflect the renewal rate.

3.1.4 TERMINATION. Written notice of intent to terminate must be provided thirty (30) days or more prior to the anniversary date. If Motorola provides Services after the termination or expiration of

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this Addendum, the terms and conditions in effect at the time of termination or expiration will apply to those Services and Customer agrees to pay for those services on a time and materials basis at Motorola’s then effective hourly rates.

3.1.5 EQUIPMENT DEFINITION. For maintenance and support services, Equipment will be defined to mean the hardware specified in the applicable SOW or attachments to the maintenance and support proposal.

3.1.6 ADDITIONAL HARDWARE. If Customer purchases additional hardware from Motorola that becomes part of the System, the additional hardware may be added to this Addendum and will be billed at the applicable rates after the warranty period for that additional equipment expires. Such hardware will be included in the definition of Equipment.

3.1.7 MAINTENANCE. Equipment will be maintained at levels set forth in the manufacturer’s product manuals and routine procedures that are prescribed by Motorola will be followed. Motorola parts or parts of equal quality will be used for Equipment maintenance.

3.1.8 EQUIPMENT CONDITION. All Equipment must be in good working order on the Start Date or when additional equipment is added to the Addendum. Upon reasonable request by Motorola, Customer will provide a complete serial and model number list of the Equipment. Customer must promptly notify Motorola in writing when any Equipment is lost, damaged, stolen or taken out of service.

Customer’s obligation to pay maintenance and support fees for this Equipment will terminate at the end of the month in which Motorola receives the written notice. If Equipment cannot, in Motorola’s reasonable opinion, be properly or economically maintained for any reason, Motorola may modify the scope of Services related to that Equipment; remove that Equipment from the Agreement; or increase the price to maintain that Equipment.

3.1.9 EQUIPMENT FAILURE. Customer must promptly notify Motorola of any Equipment failure. Motorola will respond to Customer's notification in a manner consistent with the level of Service purchased as indicated in this Addendum and applicable SOW.

3.1.10 INTRINSICALLY SAFE. Customer must specifically identify any Equipment that is labeled intrinsically safe for use in hazardous environments.

3.1.11 EXCLUDED SERVICES.
a) Service excludes the repair or replacement of Equipment that has become defective or damaged from use in other than the normal, customary, intended, and authorized manner; use not in compliance with applicable industry standards; excessive wear and tear; or accident, liquids, power surges, neglect, acts of God or other force majeure events.
b) Unless specifically included in this Addendum, Service excludes items that are consumed in the normal operation of the Equipment, such as batteries or magnetic tapes.; upgrading or reprogramming Equipment; accessories, belt clips, battery chargers, custom or special products, modified units, or software; and repair or maintenance of any transmission line, antenna, microwave equipment, tower or tower lighting, duplexer, combiner, or multicoupler. Motorola has no obligations for any transmission medium, such as telephone lines, computer networks, the internet or the worldwide web, or for Equipment malfunction caused by the transmission medium.

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3.1.12 TIME AND PLACE. Service will be provided at the location specified in this Addendum and/or the SOW. When Motorola performs maintenance, support, or installation at Customer’s location, Customer will provide Motorola, at no charge, a non-hazardous work environment with adequate shelter, heat, light, and power and with full and free access to the Equipment. Waivers of liability from Motorola or its subcontractors will not be imposed as a site access requirement. Customer will provide all information pertaining to the hardware and software elements of any system with which the Equipment is interfacing so that Motorola may perform its Services. Unless otherwise stated in this Addendum or applicable SOW, the hours of Service will be 8:30 a.m. to 4:30 p.m., local time, excluding weekends and holidays. Unless otherwise stated in this Addendum or applicable SOW, the price for the Services exclude any charges or expenses associated with helicopter or other unusual access requirements; if these charges or expenses are reasonably incurred by Motorola in rendering the Services, Customer agrees to reimburse Motorola for those charges and expenses.

3.1.13 CUSTOMER CONTACT. Customer will provide Motorola with designated points of contact (list of names and phone numbers) that will be available twenty-four (24) hours per day, seven (7) days per week, and an escalation procedure to enable Customer’s personnel to maintain contact, as needed, with Motorola.

3.2 LIFECYCLE MANAGEMENT SERVICES

3.2.1 The Software License Agreement included as Exhibit A to the Primary Agreement applies to any Motorola Software provided as part of the Lifecycle Management transactions.

3.2.2 The term of this Addendum is __________ years, commencing on _________, 202_.

The Lifecycle Management Price for the ___ years of services is $______________, excluding applicable sales or use taxes but including discounts as more fully set forth in the pricing pages.

Because the Lifecycle Management is a subscription service as more fully described in the applicable Lifecycle Management Statement of Work, payment from Customer is due in advance and will not be in accordance with any Payment Milestone Schedule.

3.2.3 The System upgrade will be scheduled during the subscription period and will be performed when Motorola’s system upgrade operation resources are available. Because there might be a significant time frame between when this Addendum is executed and when a System upgrade transaction is performed, Motorola may substitute any of the promised Equipment or Software so long as the substitute is equivalent or superior to the initially promised Equipment or Software.

3.2.4 Acceptance of a Lifecycle Management transaction occurs when the Equipment (if any) and Software are delivered and the Lifecycle Management services are fully performed; there is no Acceptance Testing with a Lifecycle Management transaction.

3.2.5 The Warranty Period for any Equipment or Motorola Software provided under a Lifecycle Management transaction will commence upon shipment and not on System Acceptance or Beneficial Use, and is for a period of ninety (90) days rather than one (1) year. The ninety (90) day warranty for Lifecycle Management services is set forth in the Lifecycle Management Statement of Work.

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3.2.6 In addition to the description of the Lifecycle Management services and exclusions provided in the Lifecycle Management Statement of Work, the following apply:
a) Upon reasonable request by Motorola, Customer will provide a complete serial and model number list of the Equipment.
b) Lifecycle Management services exclude the repair or replacement of Equipment that has become defective or damaged from use in other than the normal, customary, intended, and authorized manner; use not in compliance with applicable industry standards; excessive wear and tear; or accident, liquids, power surges, neglect, acts of God or other force majeure events.
c) Unless specifically included in this Addendum or the Lifecycle Management Statement of Work, Lifecycle Management services exclude items that are consumed in the normal operation of the Equipment; accessories; and repair or maintenance of any transmission line, antenna, microwave equipment, tower or tower lighting, duplexer, combiner, or multicoupler. Motorola has no obligations for any transmission medium, such as telephone lines, computer networks, the internet or the worldwide web, or for Equipment malfunction caused by the transmission medium.
d) Customer will provide Motorola with designated points of contact (list of names and phone numbers) that will be available during the performance of the Lifecycle Management services.

3.2.7 The Lifecycle Management annualized price is based on the fulfillment of the two year cycle. If Customer terminates this service during a two year cycle, except for Motorola’s default, then Customer will be required to pay for the balance of payments owed for the two year cycle if a major system release has been implemented before the point of termination.

3.2.8 If Customer terminates this service and contractual commitment before the end of the __ year term, for any reason other than Motorola’s default, then the Customer will pay to Motorola a termination fee equal to the discount applied to the last three years of service payments related to the __ year commitment.

4. PAYMENT

4.1 Unless alternative payment terms are stated in this Agreement, Motorola will invoice Customer in advance for each payment period. All other charges will be billed monthly, and the Customer must pay each invoice in U.S. dollars within thirty (30) days of the invoice date. Customer will reimburse Motorola for all property taxes, sales and use taxes, excise taxes, and other taxes or assessments that are levied as a result of Services rendered under this Agreement (except income, profit, and franchise taxes of Motorola) by any governmental entity.

4.2 INFLATION REVIEW. For multi-year agreements, at the end of the first year of the Agreement and

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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 increase all future maintenance prices by the CPI increase amount exceeding 3%. Items,” not seasonally adjusted shall be used as the measure of CPI for this price adjustment. The adjustment calculation will be based upon the CPI for the most recent twelve (12) month increment beginning from the most current month available as posted by the U.S. Department of Labor (http://www.bls.gov) immediately preceding the new maintenance year. 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).

5. ENTIRE AGREEMENT. This Addendum, any related attachments, and the Primary Agreement, constitutes the entire agreement of the Parties regarding the subject matter of this Addendum and supersedes all previous agreements, proposals, and understandings, whether written or oral, relating to this subject matter. This Addendum 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 or purchase order, acknowledgment or other form will not be considered an amendment or modification of this Addendum, even if a representative of each Party signs that document.

END
.

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Motorola Solutions, Inc.
10680 Treena St., Suite 200
San Diego, CA 92131
November 16th, 2022
Div. Chief Erika Martinez
City of Indio Police Department
Subject: Motorola Solutions Sole Source- ASTRO25 APX RADIO EQUIPMENT/PSAP Migration Division Chief Martinez
Motorola Solutions, Inc. (“Motorola”) is the market leader in radio communications systems and products for the U.S. Government and Public Safety Market and is pleased to have the City of Indio Police Department as a valued customer. The ASTRO25 radio subscribers we design and manufacture contain proprietary hardware and software components which are not commercially available except through Motorola and its channel partners.

The Motorola Radio Equipment and Options that will be purchased by the City of Indio Police Department can be used on their existing Motorola ASTRO P25 Trunked System that both ERICA and PSEC agencies currently operate. These radios will operate on P25 Trunked equipment that has proprietary features operating on Motorola solutions core equipment located at PSEC Master Site operated by the Riverside County Sheriffs.

Additionally, migration services will need to be performed in order to transition the City of Indio’s Motorola MCC7500 dispatch consoles from the ERICA radio system to Riverside County’s P25 PSEC radio system. This migration will entail hardware and software upgrades to the console site as well as networking and configuration changes. The ERICA P25 Core will also need to be accesses and reconfiguration performed. Motorola’s public safety security requirements dictate that this work be done by Motorola and Motorola trained engineers. Cutover downtime and equipment functionality is of the utmost priority and concern.

If you have any questions regarding our radio equipment, please contact your Account Executive, Joshua Asbill 951 285 7996.

Sincerely,
Motorola Solutions, Inc.

Joshua Asbill
Sr. Account Executive

Professional Services Agreement (PSA) with Motorola Solutions, Inc., for... Page 385 of 764 City of Indio
City Council
December 7, 2022

STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Construction Contract with Urban Habitat in an amount not-to-exceed $1,637,508.80 for the South Jackson Park and Davis Fields Improvements Project (Project No. PK1801)
RECOMMENDATION:

Approve the project plans and specifications for the South Jackson Park and Davis Fields Improvements Project (Project No. PK1801), award a construction contract to Urban Habitat in an amount not-to-exceed $1,397,508.80 and approve a soft cost allowance in the amount of $240,000, allowing for unexpected costs, preparation of bid documents, construction materials testing and help with project management, for a total project amount of $1,637,508.80.

SUMMARY:

On November 9, 2022, the Deputy City Clerk received four (4) sealed bids for the South Jackson Park and Davis Fields Improvements Project (Project No. PK1801). After performing a thorough analysis and due diligence, staff determined that Urban Habitat was the lowest responsible bidder per the bid opening.

BACKGROUND INFORMATION:

The strategic goal of this project is community beautification. The project will add trees, crack fill and slurry seal the parking lots, provide ADA parking spaces, ADA access to park fields and amenities, as well as 5 exercise stations, and replacing both playtoys and the shade fabric over the playtoys at the Soccer Park.

ADA improvements to the interiors of the restrooms is not a part of this project and will be taken care of in a separate project.

The City received four (4) sealed bids as shown below:

Contractor Location Bid Amount
Urban Habitat La Quinta, CA $1,441,148.38
Three Peaks Calimesa, CA $1,808,314.33
Desert Concepts Indio, CA $2,603,498.25
C. S. Legacy Walnut, CA $2,914,334.90
AGENDA ITEM #13.10
Construction Contract with Urban Habitat in an amount not-to-exceed $1,6... Page 386 of 764 Urban Habitat submitted the low bid of $1,441,148.38. Public Works staff examined all of the bids and after a careful review of the bid requirements and bid documents, staff determined that the lowest responsible bidder is Urban Habitat. This company is properly licensed and qualified to perform the work within the project plans and specifications. The overall bid amount for Urban Habitat included an Alternate C Additive for crack fill and sill coat (2 coats) in the amount of $46,639.59, for a total bid amount of $1,441,148.38. The awarding contract amount is the base bid, plus Alternates A and B, as shown below.

Base Bid $1,298,516.65
Alternate A Additive (Bollards) $ 24,345.50
Alternate B Additive (Crack Fill/Slurry Seal) $ 74,646.55 Total Contract Amount $1,397,508.80
Staff recommends awarding the contract to Urban Habitat in the amount of $1,397,508.80.

In addition, the City Engineer reviewed the plans and specifications for the project and in his opinion, the project plans and specifications are reasonable and meet professional engineering standards.

Therefore, the City Engineer recommends that the City Council also approve the project plans and specifications which are on file in the Department of Public Works.

Additional costs for bid document preparation, unexpected costs, construction materials testing and help with project management adding up to $240,000, for a total project cost of $1,637,508.80.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$818,754.40 In current year budget: Yes
Current FY General
Fund Impact:
$492,504.40 Budget adjustment: N/A
Next FY Financial
Impact:
$818,754.40 Strategic Objective:

Source of funds: Various Fund-Org-Object
Reference:

Various - See Financial
Analysis
Additional Financial Details:

The City will be using a Land and Water Conservation Fund (LWCF) grant, executed on March 4, 2022, in the amount of $652,500 to help offset the construction costs. Measure X funds, allocated within the CIP budget, in the amount of $1,344,500 was set aside for the South Jackson Park and Davis Fields Improvements Project.

Total Construction Cost $1,637,508.80
Less LWCF Grant $ 652,500.00
City Responsibility Amount $ 985,008.80
The City’s responsibility amount of $985,008.80 is within the $1,344,500 of Measure X funds that were allocated for this project.

ATTACHMENTS:

Attachment 1

Construction Contract with Urban Habitat in an amount not-to-exceed $1,6... Page 387 of 764 Attachment 2
APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 29 Nov 2022 Steven Graham, City Attorney Approved - 29 Nov 2022
Hernan Vargas, Accountant Approved - 01 Dec 2022
Bryan H. Montgomery, City Manager Approved - 01 Dec 2022

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Location Map

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AVENUE46
H41
OASIS ARABIA ST ST.

LOCATION MA

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Construction Contract with Urban Habitat in an amount not-to-exceed $1,6... Page 392 of 764 compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the Work of this Contract."

8. Titles. The titles used in this Contract are for convenience only and shall in no way define, limit or describe the scope or intent of this Contract or any part of it.

9. Authority. Any person executing this Contract on behalf of Contractor warrants and represents that he or she has the authority to execute this Contract on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder.

10. Entire Agreement. This Contract, including the Contract Documents and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between City and Contractor. This Contract supersedes all prior oral or written negotiations, representations or agreements. This Contract may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties that expressly refers to this Contract.

11. Counterparts. This Contract may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes.

IN WITNESS WHEREOF, the parties hereto have executed the Contract the day and year first above written.

ATTEST:

By:

Dated:

Project PK1801
Cynthia Hernandez
City Clerk
C-2

CITY OF INDIO
By:------------
Oscar Ortiz
Mayor
APPROVED AS TO FORM:

By:

Steven Graham
City Attorney
Urban Habitat
("CONTRACTOR")
By:

By:

City of Indio Public Works

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City Council
December 7, 2022

STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: One-year agreement, with two optional one-year extensions, with Dynamic Building Maintenance for janitorial services to be performed at City facilities and park restrooms, in an amount not-to-exceed $200,400 per year.

RECOMMENDATION:

Approve a one-year agreement, with two optional one-year extensions, with Dynamic Building Maintenance for janitorial services to be performed at City facilities and park restrooms, in an amount not-to-exceed $200,400 per year.

SUMMARY:

The agreement with Paul’s Janitorial expired on September 30, 2022. The current agreement for janitorial services for City facilities and park restrooms with E&M Janitorial Service is a temporary month-to-month, pending approval of the agreement with Dynamic Building Maintenance. On September 13, 2022, the City of Indio received seven (7) proposals for Janitorial Services. After performing a thorough analysis and due diligence, staff determined that Dynamic Building Maintenance was the lowest responsible bidder per the bid opening.

BACKGROUND INFORMATION:

The City of Indio has a number of facilities citywide that require daily custodial services. On July 18, 2022, the City floated a Request for Proposals (RFP) for Facilities Janitorial Services. The RFP presented the requirements necessary to qualify as the service provider, in addition to a mandatory pre-proposal walk-through of all City facilities and park restrooms. Seven (7) Janitorial Services companies attended the mandatory pre-proposal walk-through. The RFP closed on September 13, 2022, with all seven (7) contractors present at the mandatory pre-proposal walk-through submitted a proposal. The City facilities and park restrooms to receive janitorial services, per this agreement, are included in Attachment 1.

The City received seven (7) proposals as shown below:

Contractor Location Proposal Amount
Dynamic Building Maint. Riverside, CA $200,400.00
Verde Custodial Service Phoenix, AZ $221,136.00
Vested Solutions Palm Desert, CA $250,000.56
JJ Property Pasadena, CA $253,757.00
AGENDA ITEM #13.11
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Merchants Building Maint. Pomona, CA $365,012.46
Clean Excel La Quinta, CA $567,456.00
E&M Janitorial Indio, CA $272,535.12
The Janitorial Services Agreement is for a one-year term from the date of execution, with two optional one-year extensions. Staff recommends approval of the agreement with Dynamic Building Maintenance in the amount of $200,400 per year.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$200,400 In current year budget: Yes
Current FY General
Fund Impact:
$0 Budget adjustment: No
Next FY Financial
Impact:
$200,400 Strategic Objective:

Source of funds: Various - See Financial Analysis Fund-Org-Object Reference:

Various - See Financial
Analysis
Additional Financial Details:

General building janitorial-service costs are charged to an internal service fund (604) and allocated citywide based on spacing metrics. Park restroom janitorial-service costs are charged to the General Fund Park and Parkway budget (1013131). Attachment 1 provides additional detail.

City Buildings: $131,400 Account 604-523009
Park Restrooms: $ 69,000 Account 1013131-523009
Total: $200,400
ATTACHMENTS:

Attachment 1
Attachment 2
APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 29 Nov 2022 Steven Graham, City Attorney Approved - 01 Dec 2022
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 01 Dec 2022 Bryan H. Montgomery, City Manager Approved - 01 Dec 2022

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LIST OF CITY FACILITIES AND PARK RESTROOMS

JANITORIAL SERVICES

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JANITORIAL SERVICES AGREEMENT

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CITY OF INDIO

FACILITIES JANITORIAL SERVICES AGREEMENT
This Services Agreement (“Agreement”) is entered into as of December 7, 2022, between City of Indio, a California municipal corporation (“City”), and Dynamic Building Maintenance, a California Corporation.

RECITALS
WHEREAS, Contractor will perform Janitorial Services in accordance to the specifications set forth in the current agreement; and
WHEREAS, City desires to use the services of Contractor as an independent contractor to provide janitorial services at the City of Indio Buildings and Parks in accordance with the specifications set forth in the current scope of work; and WHEREAS, Contractor represents that it has the experience and holds all necessary licenses and certificates to practice and perform the services covered in this Agreement; NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:

AGREEMENT
Section 1. Scope of Services. Contractor shall provide the services specified in the Scope of Services attached hereto and incorporated herein as Exhibit A.

Section 2. Compensation. The annual compensation amount shall not exceed Two Hundred Thousand Four Hundred dollars ($200,400.00), including consumables. The compensation shall be paid in accordance with the rates set forth in the Schedule of Compensation attached hereto and incorporated herein as Exhibit B.

Section 3. Time of Performance; Term. The services of Contractor are to commence upon execution of this Agreement and shall be carried out in accordance with the schedule set forth in Exhibit A. This Agreement shall continue for a period of a one (1) year term from the date of execution, unless terminated as provided herein or as otherwise agreed to in writing by the parties.

City reserves the right to renew this Agreement for up to two (2) additional one (1) year periods Section 4. Method of Payment. Contractor shall submit monthly billings to City describing the work performed during the preceding month. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. Contractor shall not receive compensation for any services provided outside the Scope of Services identified in Exhibit A to

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Section 5. Indemnity. To the fullest extent permitted by law, Contractor shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Contractor, its officers, agents, servants, employees, subcontractors, materialmen, contractors or their officers, agents, servants or employees (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties. Contractor shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees and experts’ costs actually incurred in connection with such defense. Contractor shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.

Section 6. Insurance Requirements. Contractor, at its own cost, shall maintain insurance as required and set forth on the Exhibit C, Insurance Requirements, attached hereto and incorporated herein by this reference.

Section 7. Termination of Agreement.
a. City may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to Contractor at least five calendar days before the termination is to be effective. Contractor may terminate this Agreement only in the event of a default by City of any of the terms or conditions of this Agreement, after giving written notice to City at least 60 calendar days before the termination is to be effective. b. Upon termination, Contractor shall be compensated only for those services which have been adequately rendered to City, and Contractor shall be entitled to no further compensation.

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To City: Director of Public Works
City of Indio
100 Civic Center Mall
Indio, CA 92201
To
Contractor:

Dynamic Building Maintenance
4187 Flat Rock Drive, Ste. 300
Riverside, CA 92505
Section 9. Confidentiality. Employees of Contractor may, in the course of their performance of this Agreement, have access to financial, accounting, statistical, personnel, and similar information. Contractor covenants that all such data, documents, or other information are deemed confidential and shall not be disclosed by Contractor without written authorization by City. This obligation shall survive the termination of this Agreement.

Section 10. Miscellaneous Provisions.
a. Ownership of Documents. Contractor shall maintain complete and accurate records with respect to time, costs, expenses, receipts, correspondence, and other such information required by City that relate to the performance of the Services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to City, its designees and representatives at reasonable times, and shall allow City to examine and audit the books and records, to make transcripts therefrom as necessary, and to inspect all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three years after receipt of final payment. b. Independent Contractor; Absence of Conflicts. The parties agree that Contractor is acting as an independent contractor and not as an agent or employee of City.

Contractor shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Contractor or any of Contractor’s employees, except to the limited extent set forth in this Agreement. Contractor shall obtain no rights to retirement or other employee benefits. c. Prohibition of Assignment and Delegation. Contractor shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without City’s prior written consent.
d. Compliance with Laws; Licenses. Contractor shall comply with all applicable laws. Contractor shall maintain a City of Indio business license.

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f. Litigation. This Agreement is governed by California law, and any action brought under this Agreement shall be held exclusively in a state court in Riverside County. g. Attorneys’ Fees. In any litigation or other proceeding by which a party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be shall be awarded reasonable attorneys’ fees together with any costs and expenses, to resolve the dispute and to enforce the final judgment.
h. Recitals. The Recitals set forth above are incorporated herein as if restated in full.

EXECUTED this ____day of _________, ______, at Indio, California.

CITY OF INDIO:

Waymond Fermon
Mayor
ATTEST:

CYNTHIA HERNANDEZ
City Clerk
Contractor: Dynamic Building Maintenance
Art Ojeda
Co-Director / President
APPROVED AS TO FORM:

Steven Graham
City Attorney

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EXHIBIT A
Scope of Services
The work shall consist of furnishing all tools, equipment, materials, including cleaning products, and labor to provide all custodial services for the various public facilities within the City of Indio with the exception of the following janitorial supplies to he procured and provided by the City of lndio:
• Paper Towels
• Bathroom Tissue
• Toilet Seat Covers
• Urinal Pads
• Waterless Urinal Cleaners
• Hand Soap
• Air Fresheners
• Facial Tissue
• Trash Bags

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EXHIBIT B
Compensation

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EXHIBIT C
Insurance

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City Council
December 7, 2022

STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Kevin H. Snyder, Dir. Of Community Development Subject: Second Reading of Ordinance No. 1789, a Development Agreement between the City of Indio and Bravo Collection, LLC and finding said adoption is exempt from further environmental review pursuant to the provisions of Section 15004 of the California Environmental Quality Act (CEQA) Guidelines RECOMMENDATION:

Approve Second Reading of Ordinance No. 1789 and request the City Clerk to read the ordinance by title only
SUMMARY:

Development Agreement for operation of short-term rentals between the City of Indio and Bravo Collection, LLC
BACKGROUND INFORMATION:

Bravo Collection, LLC has submitted for and paid required fees for consideration of a Development Agreement (City File No. DA-22-07-38) with the City of Indio for for the development of certain real property to use as a residential community that includes and would allow for the development, permitting, operation and use of up to sixteen (16) residences constructed or be constructed within the site as short-term rentals pursuant to Chapter 37 of the Indio Municipal Code. Bravo Collection, LLC has requested that the term of the Development Agreement be fifty (50) years from the effective date of the Agreement and this term would be in effect unless terminated, modified or extended.

The certain real properties are comprised of the following parcels: Parcel 1: (APN: 616-489-039), Parcel 2: (APN: 616-480-037), Parcel 3: (APN: 616-480-035), Parcel 4: (APN: 616-471-011), Parcel 5: (APN: 616-471-010), Parcel 6: (APN: 616-471-009), Parcel 7: (APN: 616-471-008), Parcel 8: (APN:
616-471-012), Parcel 9: (APN: 616-471-013), Parcel 10 (APN: 616-471-014), Parcel 11: (APN: 616- 471-015), Parcel 12: (APN: 616-471-005), Parcel 13: (APN: 616-471-06), Parcel 14: (APN: 616-471- 017), Parcel 15: (APN: 616-471-021), Parcel 16: (APN: 616-471-022), Parcel 17: (APN: 616-480- 0012), Parcel 18: (APN: 616-480-043), Parcel 19: (APN: 616-480-023), Parcel No. 20 (APN: 616-471- 020), Parcel 21 (APN: 616-471-019), Parcel No 22 (APN: 616-480-011), Parcel No. 23 (APN: 616- 480-045). These properties are located northwest of the intersection of Madison Street and Avenue 50 within the corporate limits of the City of Indio.

For the October 26, 2022 Planning Commission public hearing for this Development Agreement, the City published a legal notice in the October 14, 2022 edition of the Desert Sun, the newspaper of AGENDA ITEM #13.12
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The public benefit derived from the City entering into the proposed Development Agreement is addressed in Section 1.4 (B) of the Agreement. Specifically, this Section identifies the imposition of a Housing Community Benefits Fee that will be an additional 1% of the gross receipts for all amounts charged by the Developer to be paid annually concurrent with the Developer's payment of any applicable Business License Tax for each of the 16 properties. This amount will be deposited in the City's General Fund and can be available for any lawful municipal purposes, but the intention is to use these funds to help mitigate the effect that short-term rental housing has on the local housing market, including but not limited to down payment assistance and rental assistance programs.

DEVELOPMENT AGREEMENTS - STATUTORY REQUIREMENTS
Finding (s):

California Government Code Section 65865 (a) specifies that any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article. Bravo Collection, LLC has legal ownership interest in the existing sixteen (16 parcels of land that are addressed in the proposed Development Agreement.

California Government Code Section 65865.1 specifies that procedures established pursuant to Section 65865 shall include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the local agency finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the local agency may terminate or modify the agreement. Section 4.3 of the proposed Development Agreement specifies periodic review at least once every 12 months and requires that the City find the Developer is in compliance with the provisions of the Development Agreement.

California Government Code Section 65865.2 specifies that a development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time and that the agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time. The proposed Development Agreement specifies a term of fifty (50) years from the effective date of the Development Agreement. The Development Agreement specifically focuses on the operation of 16 single-family residences as short-term rentals pursuant to Chapter 37 of the Indio Municipal Code. The 16 single-family residences are separately regulated by the applicable zoning regulations and prior development approvals for the affected properties relative to permitted uses, density and intensity of uses, height and size of proposed buildings and dedication of land for public purposes. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 463 of 764 California Government Code Section 65865.4 specifies that unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the city, county, or city and county entering the agreement, which alters or amends the rules, regulations, or policies specified in Section 65866. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 singlefamily residences as short-term rentals.

California Government Code Section 65866.A specifies that unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of these existing or new rules, regulations, and policies. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

California Government Code Section 65867 specifies that a public hearing on an application for a development agreement shall be held by the planning agency and by the legislative body and Notice of intention to consider adoption of a development agreement shall be given as provided in Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement. The proposed Development Agreement was considered by the City of Indio Planning Commission, the City's planning agency, in a duly noticed public hearing format on October 26, 2022. The City Council is scheduled to consider the Planning Commission's recommendation at its November 16, 2022 regular meeting.

California Government Code Section 65867.5 (a) specifies that a development agreement is a legislative act that shall be approved by ordinance and is subject to referendum. The City Council will consider potential first reading of an ordinance pertaining to the Development Agreement at its November 16, 2022 regular meeting with the second reading tentatively scheduled for its December 7, 2022 regular meeting.

California Government Code Section 65867.5 (b) specifies that a development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan. The 16 parcels of land were previously considered and approved in September 2004 by the City of Indio through Zone Change No. 04-7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04-7-40 and was reviewed pursuant to the adopted General Plan and zoning regulations in effect at the time - there is no adopted specific plan applicable to the subject site. The subject site comprising the 16 parcels of land has received previously entitlement approvals as part of the Stonefield 100 Project and is legally authorized for the construction of 16 single-family residential structures.

Conclusion (s):

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CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
Finding (s):

Pursuant to Section 15004 of the California Environmental Quality Act (“CEQA”) Guidelines, a public agency may enter into a preliminary agreement regarding a project regarding a project prior to its approval (s), provided that such agreement shall not commit an agency to the project. California State law requires that each city adopt a general plan to describe its long-term goals and its policies and programs to achieve those goals. Pursuant to the requirements of the State of California Government Code Section 65300 et. seq., the City of Indio previously prepared a comprehensive update of its General Plan in September 2019 known as General Plan 2040 that contains certain elements, describes its long-term goals. Accordingly, the general plan is a long-range, comprehensive document that serves as a guide for the orderly development of the City of Indio. Also, in September 2019, the City Council certified the Program Final Environmental Impact Report (PFEIR) for the General Plan 2040.

The City of Indio previously issued in September 2004, a Mitigated Negative Declaration (MND) for the Stonefield 100 Project comprised of: Zone Change No. 04-7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04-7-40. The subject site was part of the Stonefield 100 Project. The proposed project is a development agreement pertaining to short-term rentals for singlefamily residential lots already considered under the California Environmental Quality Act (CEQA) environmental review for the aforementioned Stonefield 100 Project.

Conclusion (s):

Pursuant to the provisions of CEQA Guidelines Title 14, Subsection 15004, the Community Development Director determined that the entering into said development agreement is consistent with the provisions of Subsection 15004.b.4 and that there is no substantive change in environmental conditions that require further environmental analysis, therefore, no such analysis is required for consideration and action for the proposed Development Agreement.

PLANNING COMMISSION CONSIDERATION AND RECOMMENDATION:

The Planning Commission conducted a duly noticed public hearing for the proposed Development Agreement on October 26, 2022. The applicant presented to the Commission during the public hearing portion for the agenda item, however, there was no other written or verbal testimony submitted into the record. Following the close of the public hearing and deliberation, the Commission approved a motion vote to recommend to the City Council the approval of the Development Agreement.

PUBLIC NOTICE FOR CITY COUNCIL PUBLIC HEARING:

A notice of public hearing for the City Council's November 16, 2022 public hearing for the Development Agreement was published in the November 2, 2022 edition of the Desert Sun, the newspaper of record. Mailed notices were sent to property owners of record within 300 feet on all sides of the perimeter of the project site on October 31, 2022.

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Attachment1_OrdinanceNo1789_DevelopmentAgreementCOIBravoCollectionLLC_Exhibit Attachment2_LocationVicincityMap
Attachment3_Chaper37_ShortTermRentalRegulations

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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA

APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF INDIO AND

BRAVO COLLECTION, LLC AND FINDING SAID ADOPTION IS EXEMPT FROM

FURTHER ENVIRONMENTAL REVIEW FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT PURSUANT TO THE PROVISIONS OF SECTION 15004 OF THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) GUIDELINES
WHEREAS, on July 12, 2022, Bravo Collection, LLC submitted a City of Indio application and paid required fees for consideration of a Development Agreement; and, WHEREAS, California Government Code Section 65865 (a) specifies that any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article; and,
WHEREAS, California Government Code Section 65865.1 specifies that procedures established pursuant to Section 65865 shall include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the local agency finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the local agency may terminate or modify the agreement; and, WHEREAS, California Government Code Section 65865.2 specifies that a development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement.

The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time and that the agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time; and, WHEREAS, California Government Code Section 65865.4 specifies that unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 467 of 764 2 regulation adopted by the city, county, or city and county entering the agreement, which alters or amends the rules, regulations, or policies specified in Section 65866; and, WHEREAS, California Government Code Section 65866 specifies that unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of these existing or new rules, regulations, and policies; and, WHEREAS, California Government Code Section 65867 specifies that a public hearing on an application for a development agreement shall be held by the planning agency and by the legislative body and Notice of intention to consider adoption of a development agreement shall be given as provided in Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement; and,
WHEREAS, California Government Code Section 65867.5 (a) specifies that a development agreement is a legislative act that shall be approved by ordinance and is subject to referendum; and,
WHEREAS, California Government Code Section 65867.5 (b) specifies that a development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan; and,
WHEREAS, pursuant to Section 15004 of the California Environmental Quality Act (“CEQA”) Guidelines, a public agency may enter into a preliminary agreement regarding a project regarding a project prior to its approval (s), provided that such agreement shall not commit an agency to the project; and,
WHEREAS, California State law requires that each city adopt a general plan to describe its long-term goals and its policies and programs to achieve those goals.

Accordingly, the general plan is a long-range, comprehensive document that serves as a guide for the orderly development of the City of Indio and, WHEREAS, pursuant to the requirements of the State of California Government Code Section 65300 et. seq., the City of Indio previously prepared a comprehensive update of its General Plan that contains certain elements, describes its long-term goals,

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 468 of 764 3 and was adopted on September 18, 2019; and,
WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code § 21000 et seq.), the City as the lead agency determined that an environmental impact report should be prepared to analyze all potential adverse environmental impacts of the Indio 2040 General Plan and the City of Indio Climate Action Plan and further determined that a program environmental impact report was appropriate for the Project; and,
WHEREAS, on September 18, 2019, the City Council certified via Resolution action the Program Final Environmental Impact Report (PFEIR) for the General Plan 2040; and,
WHEREAS, the City of Indio previously issued in September 2004, a Mitigated Negative Declaration (MND) for the Stonefield 100 Project comprised of: Zone Change No. 04-7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04-7-40 of which the sixteen (16) lots that are the subject of the Development Agreement were a part of; and,
WHEREAS, on October 14, 2022, the City mailed notices of public hearing to all property owners within 300 feet on all sides of the certain real properties affected by the Development Agreement and published a legal notice of public hearing in the Desert Sun, the newspaper of record; and,
WHEREAS, on October 26, 2022, the Planning Commission held a duly noticed public hearing to consider the Development Agreement and the facts surrounding said Agreement during which evidence, both written and oral, including the staff report and supporting documents was presented at said hearing. At the conclusion of the public hearing, the Planning Commission adopted this Resolution recommending to the City Council that it approve the Development Agreement between the City of Indio and Bravo Collection, LLC; and,
WHEREAS, on October 31, 2022, the City mailed notices of public hearing to all property owners within 300 feet on all sides of the certain real properties affected by the Development Agreement;
WHEREAS, on November 2, 2022, the City published a legal notice of public hearing in the Desert Sun, the newspaper of record; and, WHEREAS, on November 16, 2022, the City Council held a duly noticed public hearing to consider the Development Agreement and the facts surrounding said Agreement during which evidence, both written and oral, including the staff report and supporting documents was presented at said hearing. At the conclusion of the

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 469 of 764 4 public hearing, the City Council approved this Ordinance authorizing the Development Agreement between the City of Indio and Bravo Collection, LLC.

NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF

INDIO, CALIFORNIA, HEREBY RESOLVES, FINDS AND DETERMINES AS FOLLOWS:

Section 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this Ordinance are true and correct, are incorporated into this Ordinance by reference and constitute a material part of this Ordinance.

Section 2. Based upon the evidence presented at the public hearing, including the staff report, the City Council hereby finds the aforementioned Development Agreement attached hereto as Exhibit “A” to be consistent with applicable California Government Code Sections and the City of Indio General Plan 2040 based on the following:

1. California Government Code Section 65865 (a) specifies that any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article. Bravo Collection, LLC has legal ownership interest in the existing sixteen (16 parcels of land that are addressed in the proposed Development Agreement.

2. California Government Code Section 65865.1 specifies that procedures established pursuant to Section 65865 shall include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the local agency finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the local agency may terminate or modify the agreement. Section 4.3 of the proposed Development Agreement specifies periodic review at least once every 12 months and requires that the City find the Developer is in compliance with the provisions of the Development Agreement.

3. California Government Code Section 65865.2 specifies that a development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that construction shall be

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 470 of 764 5 commenced within a specified time and that the project or any phase thereof be completed within a specified time and that the agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time. The proposed Development Agreement specifies a term of fifty (50) years from the effective date of the Development Agreement. The Development Agreement specifically focuses on the operation of 16 single-family residences as short-term rentals pursuant to Chapter 37 of the Indio Municipal Code.

The 16 single-family residences are separately regulated by the applicable zoning regulations and prior development approvals for the affected properties relative to permitted uses, density and intensity of uses, height and size of proposed buildings and dedication of land for public purposes. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

4. California Government Code Section 65865.4 specifies that unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the city, county, or city and county entering the agreement, which alters or amends the rules, regulations, or policies specified in Section 65866.

The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

5. California Government Code Section 65866.A specifies that unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of these existing or new rules, regulations, and policies. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

6. California Government Code Section 65867 specifies that a public hearing on an application for a development agreement shall be held by the planning agency and by

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 471 of 764 6 the legislative body and Notice of intention to consider adoption of a development agreement shall be given as provided in Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement. The proposed Development Agreement was considered by the City of Indio Planning Commission, the City's planning agency, in a duly noticed public hearing format on October 26, 2022. The City Council is scheduled to consider the Planning Commission's recommendation at its November 16, 2022 regular meeting.

7. California Government Code Section 65867.5 (a) specifies that a development agreement is a legislative act that shall be approved by ordinance and is subject to referendum. The City Council will consider potential first reading of an ordinance pertaining to the Development Agreement at its November 16, 2022 regular meeting with the second reading tentatively scheduled for its December 7, 2022 regular meeting.

8. California Government Code Section 65867.5 (b) specifies that a development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan.

The 16 parcels of land were previously considered and approved in September 2004 by the City of Indio through Zone Change No. 04-7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04-7-40 and was reviewed pursuant to the adopted General Plan and zoning regulations in effect at the time - there is no adopted specific plan applicable to the subject site. The subject site comprising the 16 parcels of land has received previously entitlement approvals as part of the Stonefield 100 Project and is legally authorized for the construction of 16 single-family residential structures.

9. Pursuant to Section 15004 of the California Environmental Quality Act (“CEQA”) Guidelines, a public agency may enter into a preliminary agreement regarding a project regarding a project prior to its approval (s), provided that such agreement shall not commit an agency to the project. California State law requires that each city adopt a general plan to describe its long-term goals and its policies and programs to achieve those goals. Pursuant to the requirements of the State of California Government Code Section 65300 et. seq., the City of Indio previously prepared a comprehensive update of its General Plan in September 2019 known as General Plan 2040 that contains certain elements, describes its long-term goals. Accordingly, the general plan is a long-range, comprehensive document that serves as a guide for the orderly development of the City of Indio. Also, in September 2019, the City Council certified the Program Final Environmental Impact Report (PFEIR) for the General Plan 2040.

10.The City of Indio previously issued in September 2004, a Mitigated Negative Declaration (MND) for the Stonefield 100 Project comprised of: Zone Change No. 04- 7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04-7-

40. The subject site was part of the Stonefield 100 Project. The proposed project is a

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 472 of 764 7 development agreement pertaining to short-term rentals for single-family residential lots already considered under the California Environmental Quality Act (CEQA) environmental review for the aforementioned Stonefield 100 Project.

11.Pursuant to the provisions of CEQA Guidelines Title 14, Subsection 15004, the Community Development Director has determined that the entering into said development agreement is consistent with the provisions of Subsection 15004.b.4 and that there is no substantive change in environmental conditions that require further environmental analysis, therefore, no such analysis is required for consideration and action for the proposed Development Agreement.

Section 3. The City Council hereby approves the Development Agreement attached hereto as Exhibit “A” and authorizes the City Manager and City Attorney to execute said Agreement.

Section 4. Consistent with the provisions of California Government Code Section 65865.1 the Development Agreement attached hereto as Exhibit “A” shall be periodically reviewed at least every 12 months, at which time the applicant, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the City finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the City may terminate or modify the agreement;
Section 5. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or its application to any person or circumstance, is for any reason held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this ordinance, or its application to any other person or circumstance. The City Council declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, phrase hereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable..

Section 6. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law.

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 473 of 764 8 PASSED, APPROVED, and ADOPTED this 7
th day of December 2022.

WAYMOND FERMON
MAYOR
ATTEST:

CYNTHIA HERNANDEZ, CMC

CITY CLERK

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 474 of 764 a11/08/22

RECORDING REQUESTED BY AND

WHEN RECORDED MAIL TO
City of Indio
100 Civic Center Drive
Indio, CA 92201
Attn: City Clerk
Space Above This Line for Recorder’s Use
(Exempt from Recording Fee per Gov’t Code §6103
and §27383)

DEVELOPMENT AGREEMENT BY AND BETWEEN
THE

CITY OF INDIO
AND

BRAVO COLLECTION, LLC

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 475 of 764 -1-

DEVELOPMENT AGREEMENT
This Development Agreement (the “Agreement”) is entered into as of the day of ______________, 2022 (“Reference Date”), by and between the CITY OF INDIO, a California municipal corporation organized and existing under the Constitution of the State of the California (“City”), and BRAVO COLLECTION, LLC, a California limited liability company, (“Developer”), with reference to the following:

RECITALS:

A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the California Legislature adopted Government Code Section 65864 et seq. (“Development Agreement Act”) which authorizes City to enter into a binding development agreement for the development of real property within its jurisdiction with persons having a legal or equitable interest in such real property.

B. Consistent with the Development Agreement Act, and pursuant to Government Code Section 65865, the City has adopted Section 6.05.02 of the Unified Development Code (Ordinance No. 1782) establishing procedures and requirements for such development agreements (“Development Agreement Ordinance”).

C. Developer owns a fee interest in certain vacant real property consisting of sixteen (16) unimproved residential lots in the City of Indio, County of Riverside, State of California, as more particularly described in the legal descriptions in Exhibit A attached hereto and incorporated herein by this reference (collectively, the “Property” and each individual parcel, and any improvements thereon, may be referred to herein as “One of the Properties”), and more particularly depicted on the Site Map (with corresponding street addresses and APNs) attached hereto as Exhibit B , which is incorporated herein by this reference (the “Site”). The Site includes the Property and any improvements now or hereafter located thereon.

D. Developer has duly submitted an application for a development agreement and environmental assessment for the development of the Property to use as a residential community that includes and would allow for the development, permitting, operation and use of up to sixteen (16) residences constructed or be constructed within the Site as short-term rentals pursuant to Chapter 37 of the Indio Municipal Code (briefly summarized here as the “Project” and more fully defined below in this Agreement). For reference purposes only, a copy of Chapter 37, as that chapter exists on the Effective Date, is attached to this Agreement as Exhibit C. The Project is more fully described in, and subject to (i) this Agreement, (ii) the City’s General Plan,(iii) Final Tract Map Nos. 32339 and 332339-1, and any conditions of approval appurtenant thereto (iv) any applicable specific plan or site development permit in effect as of the Effective Date, and any conditions of approval appurtenant thereto, (v) any future discretionary or ministerial approvals and/or permits issued for the Property, Site or Project (collectively, the “Project Site Development Permits”); and (vi) Certificates of Compliance for Lot Line Adjustment 2020-13 and Lot Line Adjustment 2006-12, and any conditions of approval appurtenant thereto. The documents, permits, approvals, and conditions described in the foregoing clauses (i)-(vi) are collectively referred to herein as the “Project Approvals,” and are, or when approved or issued shall be, on file with the City Clerk.

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 476 of 764 -2-
D. As of the recording date of this Agreement, Developer owns fee simple title to the Property, and by their execution of this Agreement, City and Developer consent to recordation of this Agreement against the Property, including, without limitation, each One of the Properties that comprise the Site.

E. Consistent with the Development Agreement Act and Development Agreement Ordinance, City and Developer desire to enter into a binding agreement that shall be construed as a development agreement within the meaning of the Development Agreement Act and Development Agreement Ordinance. This Agreement will eliminate uncertainty in planning for and secure the orderly development of the Project, ensure a desirable and functional community environment, provide effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project, and assure attainment of the maximum effective utilization of resources within the City, by achieving the goals and purposes of the Development Agreement Act and Development Agreement Ordinance. In exchange for these benefits to City, Developer desires to receive the assurance that it may proceed with development of the Project in accordance with the terms and conditions of this Agreement and the Project Approvals, all as more particularly set forth herein.

G. The Planning Commission and the City Council have determined that the Project and this Agreement are consistent with the City’s General Plan, including the goals and objectives thereof[***Add references to public hearing dates and determinations for PC and CC when scheduled***].

H. All actions taken by City have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (“CEQA”), and all other requirements for notice, public hearings, findings, votes and other procedural matters.

I. On ___________, 2022, the City Council adopted its Ordinance No. ______ approving this Agreement.

AGREEMENT:

NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the Parties do hereby agree as follows:

1. GENERAL

1.1 Definitions

1.1.1 “Affiliated Party” shall mean (i) any person or entity that directly or indirectly owns or has voting or management rights of Developer or its members or managers, (ii) any entity that is directly or indirectly owned, controlled or managed by Developer or its members or managers, or such members’ or managers’ shareholders, or (iii) any entity that is a permitted assignee under the Purchase/Sale Agreement which meets the criteria in either clause (i) or (ii) of this Section 1.1.1.

Second Reading of Ordinance No. 1789 , a Development Agreement between t... Page 477 of 764 -3-

1.1.2 “Agreement” means this Development Agreement and all amendments and modifications thereto.

1.1.3 “Applicable Rules” means the rules, regulations,
ordinances and officially adopted policies of the City of Indio in full force and effect as of the Effective Date of this Agreement, including, but not limited to, the City’s General Plan, Chapter

3.25 of the Indio Municipal Code, and any applicable zoning ordinance and specific plan.

Additionally, notwithstanding the language of this Section or any other language in this Agreement, all specifications, standards and policies regarding the design and construction of public works facilities required with respect to the Project, if any, shall be those that are in effect at the time any of said Project applications and plans are being processed for approval and/or under construction.

1.1.4 “Assignment and Assumption Agreement” shall have the meaning set forth in Section 1.8.1 of this Agreement.

1.1.5 “CEQA” means the California Environmental Quality Act (Cal. Public Resources Code Sections 21000 et seq.) and the State CEQA Guidelines (Cal. Code of Regs., Title 14, Sections 15000 et seq.).

1.1.6 “City” means the City of Indio, a municipal corporation, including each and every agency, department, board, commission, authority, employee, and/or official acting under the authority of the City, including without limitation the City Council and the Planning Commission.

1.1.7 “City Council” means the City Council of the City and the legislative body of the City pursuant to California Government Code Section 65867.

1.1.8 “Community Development Director” means the Director of the City’s Community Development Department, or his or her designee.

1.1.9 “Developer” means the Developer identified in the preamble of this Agreement.

1.1.10 “Development Agreement Act” means Section 65864 et seq., of the California Government Code.

1.1.11 “Discretionary Action” means an action which requires the exercise of judgment, deliberation or a decision on the part of City, including any board, commission, committee, or department or any officer or employee thereof, in the process of approving or disapproving a particular activity, as distinguished from an activity which merely requires City, including any board, commission or department or any officer or employee thereof, to determine whether there has been compliance with statutes, ordinances, regulations, or other adopted policies.

1.1.12 “Effective Date” shall have the meaning set forth in Section

1.3 of this Agreement.