THE CITY OF SAN DIEGO
GENERAL CONTRACT TERMS AND PROVISIONS
APPLICABLE TO GOODS, SERVICES, AND CONSULTANT CONTRACTS
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ARTICLE I
SCOPE AND TERM OF CONTRACT
1.1 Scope of Contract. The scope of contract between the City and a provider of goods and/or services (Contractor) is described in the Contract Documents. The Contract Documents are comprised of the Request for Proposal, Invitation to Bid, or other solicitation document (Solicitation); the successful bid or proposal; the letter awarding the contract to Contractor; the City’s written acceptance of exceptions or clarifications to the Solicitation, if any; and these General Contract Terms and Provisions.
1.2 Effective Date. A contract between the City and Contractor (Contract) is effective on the last date that the contract is signed by the parties and approved by the City Attorney in accordance with Charter section 40. Unless otherwise terminated, this Contract is effective until it is completed or as otherwise agreed upon in writing by the parties, whichever is the earliest. A Contract term cannot exceed five (5) years unless approved by the City Council by ordinance.
1.3 Contract Extension. The City may, in its sole discretion, unilaterally exercise an option to extend the Contract as described in the Contract Documents. In addition, the City may, in its sole discretion, unilaterally extend the Contract on a month-to-month basis following contract expiration if authorized under Charter section 99 and the Contract Documents. Contractor shall not increase its pricing in excess of the percentage increase described in the Contract.
ARTICLE II
CONTRACT ADMINISTRATOR
2.1 Contract Administrator. The Purchasing Agent or designee is the Contract Administrator for purposes of this Contract, and has the responsibilities described in this Contract, in the San Diego Charter, and in Chapter 2, Article 2, Divisions 5, 30, and 32.
2.1.1 Contractor Performance Evaluations. The Contract Administrator will evaluate Contractor’s performance as often as the Contract Administrator deems necessary throughout the term of the contract. This evaluation will be based on criteria including the quality of goods or services, the timeliness of performance, and adherence to applicable laws, including prevailing wage and living wage. City will provide Contractors who receive an unsatisfactory rating with a copy of the evaluation and an opportunity to respond. City may consider final evaluations, including Contractor’s response, in evaluating future proposals and bids for contract award.
2.2 Notices. Unless otherwise specified, in all cases where written notice is required under this Contract, service shall be deemed sufficient if the notice is personally delivered or deposited in the United States mail, with first class postage paid, attention to the Purchasing Agent. Proper notice is effective on the date of personal delivery or five (5) days after deposit in a United States postal mailbox unless provided otherwise in the Contract. Notices to the City shall be sent to:
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Purchasing Agent
City of San Diego, Purchasing and Contracting Division
1200 3rd Avenue, Suite 200
San Diego, CA 92101-4195
ARTICLE III
COMPENSATION
3.1 Manner of Payment. Contractor will be paid monthly, in arrears, for goods and/or services provided in accordance with the terms and provisions specified in the Contract.
3.2 Invoices.
3.2.1 Invoice Detail. Contractor’s invoice must be on Contractor’s stationary with Contractor’s name, address, and remittance address if different. Contractor’s invoice must have a date, an invoice number, a purchase order number, a description of the goods or services provided, and an amount due.
3.2.2 Service Contracts. Contractor must submit invoices for services to City by the 10 th of the month following the month in which Contractor provided services. Invoices must include the address of the location where services were performed and the dates in which services were provided.
3.2.3 Goods Contracts. Contractor must submit invoices for goods to City within seven days of the shipment. Invoices must describe the goods provided.
3.2.4 Parts Contracts. Contractor must submit invoices for parts to City within seven calendar (7) days of the date the parts are shipped. Invoices must include the manufacturer of the part, manufacturer’s published list price, percentage discount applied in accordance with Pricing Page(s), the net price to City, and an item description, quantity, and extension.
3.2.5 Extraordinary Work. City will not pay Contractor for extraordinary work unless Contractor receives prior written authorization from the Contract Administrator. Failure to do so will result in payment being withheld for services. If approved, Contractor will include an invoice that describes the work performed and the location where the work was performed, and a copy of the Contract Administrator’s written authorization.
3.2.6 Reporting Requirements. Contractor must submit the following reports using the City’s web-based contract compliance portal. Incomplete and/or delinquent reports may cause payment delays, non-payment of invoice, or both. For questions, please view the City’s online tutorials on how to utilize the City’s web-based contract compliance portal.
3.2.6.1 Monthly Employment Utilization Reports. Contractor and Contractor’s subcontractors and suppliers must submit Monthly Employment Utilization Reports by the fifth (5
th) day of the subsequent month.
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3.2.6.2 Monthly Invoicing and Payments. Contractor and Contractor’s subcontractors and suppliers must submit Monthly Invoicing and Payment Reports by the fifth (5th) day of the subsequent month.
3.3 Annual Appropriation of Funds. Contractor acknowledges that the Contract term may extend over multiple City fiscal years, and that work and compensation under this Contract is contingent on the City Council appropriating funding for and authorizing such work and compensation for those fiscal years. This Contract may be terminated at the end of the fiscal year for which sufficient funding is not appropriated and authorized. City is not obligated to pay Contractor for any amounts not duly appropriated and authorized by City Council.
3.4 Price Adjustments. Based on Contractor’s written request and justification, the City may approve an increase in unit prices on Contractor’s pricing pages consistent with the amount requested in the justification in an amount not to exceed the increase in the Consumer Price Index, San Diego Area, for All Urban Customers (CPI-U) as published by the Bureau of Labor Statistics, or 5.0%, whichever is less, during the preceding one year term. If the CPI-U is a negative number, then the unit prices shall not be adjusted for that option year (the unit prices will not be decreased). A negative CPI-U shall be counted against any subsequent increases in the CPI-U when calculating the unit prices for later option years. Contractor must provide such written request and justification no less than sixty days before the date in which City may exercise the option to renew the contract, or sixty days before the anniversary date of the Contract. Justification in support of the written request must include a description of the basis for the adjustment, the proposed effective date and reasons for said date, and the amount of the adjustment requested with documentation to support the requested change (e.g. CPI-U or 5.0%, whichever is less). City’s approval of this request must be in writing.
ARTICLE IV
SUSPENSION AND TERMINATION
4.1 City’s Right to Suspend for Convenience. City may suspend all or any portion of Contractor’s performance under this Contract at its sole option and for its convenience for a reasonable period of time not to exceed six (6) months. City must first give ten (10) days’ written notice to Contractor of such suspension. City will pay to Contractor a sum equivalent to the reasonable value of the goods and/or 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 Contract. Contractor will be entitled to an extension of time to complete performance under the Contract equal to the length of the suspension unless otherwise agreed to in writing by the Parties.
4.2 City’s Right to Terminate for Convenience. City may, at its sole option and for its convenience, terminate all or any portion of this Contract by giving thirty (30) days’ written notice of such termination to Contractor. The termination of the Contract shall be effective upon receipt of the notice by Contractor. After termination of all or any portion of the Contract, Contractor shall: (1) immediately discontinue all affected performance (unless the notice directs otherwise); and (2) complete any and all additional work necessary for the orderly filing of 214
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documents and closing of Contractor's affected performance under the Contract. After filing of documents and completion of performance, Contractor shall deliver to City all data, drawings, specifications, reports, estimates, summaries, and such other information and materials created or received by Contractor in performing this Contract, whether completed or in process. By accepting payment for completion, filing, and delivering documents as called for in this section, Contractor discharges City of all of City’s payment obligations and liabilities under this Contract with regard to the affected performance.
4.3 City’s Right to Terminate for Default. Contractor’s failure to satisfactorily perform any obligation required by this Contract constitutes a default. Examples of default include a determination by City that Contractor has: (1) failed to deliver goods and/or perform the services of the required quality or within the time specified; (2) failed to perform any of the obligations of this Contract; and (3) failed to make sufficient progress in performance which may jeopardize full performance.
4.3.1 If Contractor fails to satisfactorily cure a default within ten (10) calendar days of receiving written notice from City specifying the nature of the default, City may immediately cancel and/or terminate this Contract, and terminate each and every right of Contractor, and any person claiming any rights by or through Contractor under this Contract.
4.3.2 If City terminates this Contract, in whole or in part, City may procure, upon such terms and in such manner as the Purchasing Agent may deem appropriate, equivalent goods or services and Contractor shall be liable to City for any excess costs. Contractor shall also continue performance to the extent not terminated.
4.4 Termination for Bankruptcy or Assignment for the Benefit of Creditors. If Contractor files a voluntary petition in bankruptcy, is adjudicated bankrupt, or makes a general assignment for the benefit of creditors, the City may at its option and without further notice to, or demand upon Contractor, terminate this Contract, and terminate each and every right of Contractor, and any person claiming rights by and through Contractor under this Contract.
4.5 Contractor’s Right to Payment Following Contract Termination.
4.5.1 Termination for Convenience. If the termination is for the convenience of City an equitable adjustment in the Contract price shall be made. No amount shall be allowed for anticipated profit on unperformed services, and no amount shall be paid for an as needed contract beyond the Contract termination date.
4.5.2 Termination for Default. If, after City gives notice of termination for failure to fulfill Contract obligations to Contractor, it is determined that Contractor had not so failed, the termination shall be deemed to have been effected for the convenience of City. In such event, adjustment in the Contract price shall be made as provided in Section 4.3.2. City’s rights and remedies are in addition to any other rights and remedies provided by law or under this Contract.
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4.6 Remedies Cumulative. City’s remedies are cumulative and are not intended to be exclusive of any other remedies or means of redress to which City may be lawfully entitled in case of any breach or threatened breach of any provision of this Contract.
ARTICLE V
ADDITIONAL CONTRACTOR OBLIGATIONS
5.1 Inspection and Acceptance. The City will inspect and accept goods provided under this Contract at the shipment destination unless specified otherwise. Inspection will be made and acceptance will be determined by the City department shown in the shipping address of the Purchase Order or other duly authorized representative of City.
5.2 Responsibility for Lost or Damaged Shipments. Contractor bears the risk of loss or damage to goods prior to the time of their receipt and acceptance by City. City has no obligation to accept damaged shipments and reserves the right to return damaged goods, at Contractor’s sole expense, even if the damage was not apparent or discovered until after receipt.
5.3 Responsibility for Damages. Contractor is responsible for all damage that occurs as a result of Contractor’s fault or negligence or that of its’ employees, agents, or representatives in connection with the performance of this Contract. Contractor shall immediately report any such damage to people and/or property to the Contract Administrator.
5.4 Delivery. Delivery shall be made on the delivery day specified in the Contract Documents. The City, in its sole discretion, may extend the time for delivery. The City may order, in writing, the suspension, delay or interruption of delivery of goods and/or services.
5.5 Delay. Unless otherwise specified herein, time is of the essence for each and every provision of the Contract. Contractor must immediately notify City in writing if there is, or it is anticipated that there will be, a delay in performance. The written notice must explain the cause for the delay and provide a reasonable estimate of the length of the delay. City may terminate this Contract as provided herein if City, in its sole discretion, determines the delay is material.
5.5.1 If a delay in performance is caused by any unforeseen event(s) beyond the control of the parties, City may allow Contractor to a reasonable extension of time to complete performance, but Contractor will not be entitled to damages or additional compensation. Any such extension of time must be approved in writing by City. The following conditions may constitute such a delay: war; changes in law or government regulation; labor disputes; strikes; fires, floods, adverse weather or other similar condition of the elements necessitating cessation of the performance; inability to obtain materials, equipment or labor; or other specific reasons agreed to between City and Contractor. This provision does not apply to a delay caused by Contractor’s acts or omissions. Contractor is not entitled to an extension of time to perform if a delay is caused by Contractor’s inability to obtain materials, equipment, or labor unless City has received, in a timely manner, documentary proof satisfactory to City of Contractor’s inability to obtain materials, equipment, or labor, in which case City’s approval must be in writing.
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5.6 Restrictions and Regulations Requiring Contract Modification. Contractor shall immediately notify City in writing of any regulations or restrictions that may or will require Contractor to alter the material, quality, workmanship, or performance of the goods and/or services to be provided. City reserves the right to accept any such alteration, including any resulting reasonable price adjustments, or to cancel the Contract at no expense to the City.
5.7 Warranties. All goods and/or services provided under the Contract must be warranted by Contractor or manufacturer for at least twelve (12) months after acceptance by City, except automotive equipment. Automotive equipment must be warranted for a minimum of 12,000 miles or 12 months, whichever occurs first, unless otherwise stated in the Contract. Contractor is responsible to City for all warranty service, parts, and labor. Contractor is required to ensure that warranty work is performed at a facility acceptable to City and that services, parts, and labor are available and provided to meet City’s schedules and deadlines. Contractor may establish a warranty service contract with an agency satisfactory to City instead of performing the warranty service itself. If Contractor is not an authorized service center and causes any damage to equipment being serviced, which results in the existing warranty being voided, Contractor will be liable for all costs of repairs to the equipment, or the costs of replacing the equipment with new equipment that meets City’s operational needs.
5.8 Industry Standards. Contractor shall provide goods and/or services acceptable to City in strict conformance with the Contract. Contractor shall also provide goods and/or services in accordance with the standards customarily adhered to by an experienced and competent provider of the goods and/or services called for under this Contract using the degree of care and skill ordinarily exercised by reputable providers of such goods and/or services. Where approval by City, the Mayor, or other representative of City is required, it is understood to be general approval only and does not relieve Contractor of responsibility for complying with all applicable laws, codes, policies, regulations, and good business practices.
5.9 Records Retention and Examination. Contractor shall retain, protect, and maintain in an accessible location all records and documents, including paper, electronic, and computer records, relating to this Contract for five (5) years after receipt of final payment by City under this Contract. Contractor shall make all such records and documents available for inspection, copying, or other reproduction, and auditing by authorized representatives of City, including the Purchasing Agent or designee. Contractor shall make available all requested data and records at reasonable locations within City or County of San Diego at any time during normal business hours, and as often as City deems necessary. If records are not made available within the City or County of San Diego, Contractor shall pay City’s travel costs to the location where the records are maintained and shall pay for all related travel expenses. Failure to make requested records available for inspection, copying, or other reproduction, or auditing by the date requested may result in termination of the Contract. Contractor must include this provision in all subcontracts made in connection with this Contract.
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5.9.1 Contractor shall maintain records of all subcontracts entered into with all firms, all project invoices received from Subcontractors and Suppliers, all purchases of materials and services from Suppliers, and all joint venture participation. Records shall show name, telephone number including area code, and business address of each Subcontractor and Supplier, and joint venture partner, and the total amount actually paid to each firm. Project relevant records, regardless of tier, may be periodically reviewed by the City.
5.10 Quality Assurance Meetings. Upon City’s request, Contractor shall schedule one or more quality assurance meetings with City’s Contract Administrator to discuss Contractor’s performance. If requested, Contractor shall schedule the first quality assurance meeting no later than eight (8) weeks from the date of commencement of work under the Contract. At the quality assurance meeting(s), City’s Contract Administrator will provide Contractor with feedback, will note any deficiencies in Contract performance, and provide Contractor with an opportunity to address and correct such deficiencies. The total number of quality assurance meetings that may be required by City will depend upon Contractor’s performance.
5.11 Duty to Cooperate with Auditor. The City Auditor may, in his sole discretion, at no cost to the City, and for purposes of performing his responsibilities under Charter section 39.2, review Contractor’s records to confirm contract compliance. Contractor shall make reasonable efforts to cooperate with Auditor’s requests.
5.12 Safety Data Sheets. If specified by City in the solicitation or otherwise required by this Contract, Contractor must send with each shipment one (1) copy of the Safety Data Sheet (SDS) for each item shipped. Failure to comply with this procedure will be cause for immediate termination of the Contract for violation of safety procedures.
5.13 Project Personnel. Except as formally approved by the City, the key personnel identified in Contractor’s bid or proposal shall be the individuals who will actually complete the work.
Changes in staffing must be reported in writing and approved by the City.
5.13.1 Criminal Background Certification. Contractor certifies that all employees working on this Contract have had a criminal background check and that said employees are clear of any sexual and drug related convictions. Contractor further certifies that all employees hired by Contractor or a subcontractor shall be free from any felony convictions.
5.13.2 Photo Identification Badge. Contractor shall provide a company photo identification badge to any individual assigned by Contractor or subcontractor to perform services or deliver goods on City premises. Such badge must be worn at all times while on City premises. City reserves the right to require Contractor to pay fingerprinting fees for personnel assigned to work in sensitive areas. All employees shall turn in their photo identification badges to Contractor upon completion of services and prior to final payment of invoice.
5.14 Standards of Conduct. Contractor is responsible for maintaining standards of employee competence, conduct, courtesy, appearance, honesty, and integrity satisfactory to the City.
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5.14.1 Supervision. Contractor shall provide adequate and competent supervision at all times during the Contract term. Contractor shall be readily available to meet with the City.
Contractor shall provide the telephone numbers where its representative(s) can be reached.
5.14.2 City Premises. Contractor’s employees and agents shall comply with all City rules and regulations while on City premises.
5.14.3 Removal of Employees. City may request Contractor immediately remove from assignment to the City any employee found unfit to perform duties at the City. Contractor shall comply with all such requests.
5.15 Licenses and Permits. Contractor shall, without additional expense to the City, be responsible for obtaining any necessary licenses, permits, certifications, accreditations, fees and approvals for complying with any federal, state, county, municipal, and other laws, codes, and regulations applicable to Contract performance. This includes, but is not limited to, any laws or regulations requiring the use of licensed contractors to perform parts of the work.
5.16 Contractor and Subcontractor Registration Requirements. Prior to the award of the Contract or Task Order, Contractor and Contractor’s subcontractors and suppliers must register with
the City’s web-based vendor registration and bid management system. The City may not award the Contract until registration of all subcontractors and suppliers is complete. In the event this requirement is not met within the time frame specified by the City, the City reserves the right to rescind the Contract award and to make the award to the next responsive and responsible proposer of bidder.
ARTICLE VI
INTELLECTUAL PROPERTY RIGHTS
6.1 Rights in Data. If, in connection with the services performed under this Contract, Contractor or its employees, agents, or subcontractors, create artwork, audio recordings, blueprints, designs, diagrams, documentation, photographs, plans, reports, software, source code, specifications, surveys, system designs, video recordings, or any other original works of authorship, whether written or readable by machine (Deliverable Materials), all rights of Contractor or its subcontractors in the Deliverable Materials, including, but not limited to publication, and registration of copyrights, and trademarks in the Deliverable Materials, are the sole property of City. Contractor, including its employees, agents, and subcontractors, may not use any Deliverable Material for purposes unrelated to Contractor’s work on behalf of the City without prior written consent of City. Contractor may not publish or reproduce any Deliverable Materials, for purposes unrelated to Contractor’s work on behalf of the City, without the prior written consent of the City.
6. 2 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 the Deliverable Materials created by Contractor or its employees, agents, or subcontractors, including copyrights, in connection with the services performed under this Contract. Contractor 219
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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. Contractor also shall cooperate and assist in the prosecution of any action or opposition proceeding involving such intellectual property rights and any adjudication of those rights.
6. 3 Contractor Works. Contractor Works means tangible and intangible information and material that: (a) had already been conceived, invented, created, developed or acquired by Contractor prior to the effective date of this Contract; or (b) were conceived, invented, created, or developed by Contractor after the effective date of this Contract, but only to the extent such information and material do not constitute part or all of the Deliverable Materials called for in this Contract. All Contractor Works, and all modifications or derivatives of such Contractor Works, including all intellectual property rights in or pertaining to the same, shall be owned solely and exclusively by Contractor.
6. 4 Subcontracting. In the event that Contractor utilizes a subcontractor(s) for any portion of the work that comprises the whole or part of the specified Deliverable Materials to the City, the agreement between Contractor and the subcontractor shall include a statement that identifies the Deliverable Materials as a “works for hire” as described in the United States Copyright Act of 1976, as amended, and that all intellectual property rights in the Deliverable Materials, whether arising in copyright, trademark, service mark or other forms of intellectual property rights, belong to and shall vest solely with the City. Further, the agreement between Contractor and its subcontractor shall require that the subcontractor, if necessary, shall grant, transfer, sell and assign, free of charge, exclusively to City, all titles, rights and interests in and to the Deliverable Materials, including all copyrights, trademarks and other intellectual property rights.
City shall have the right to review any such agreement for compliance with this provision.
6. 5 Intellectual Property Warranty and Indemnification. Contractor represents and warrants that any materials or deliverables, including all Deliverable Materials, provided under this Contract are either original, or not encumbered, and do not infringe upon the copyright, trademark, patent or other intellectual property rights of any third party, or are in the public domain. If Deliverable Materials provided hereunder become the subject of a claim, suit or allegation of copyright, trademark or patent infringement, City shall have the right, in its sole discretion, to require Contractor to produce, at Contractor’s own expense, new non-infringing materials, deliverables or works as a means of remedying any claim of infringement in addition to any other remedy available to the City under law or equity. Contractor further agrees to indemnify, defend, and hold harmless the City, its officers, employees and agents from and against any and all claims, actions, costs, judgments or damages, of any type, alleging or threatening that any Deliverable Materials, supplies, equipment, services or works provided under this contract infringe the copyright, trademark, patent or other intellectual property or proprietary rights of any third party (Third Party Claim of Infringement). If a Third Party Claim 220
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of Infringement is threatened or made before Contractor receives payment under this Contract, City shall be entitled, upon written notice to Contractor, to withhold some or all of such payment.
6.6 Software Licensing. Contractor represents and warrants that the software, if any, as delivered to City, does not contain any program code, virus, worm, trap door, back door, time or clock that would erase data or programming or otherwise cause the software to become inoperable, inaccessible, or incapable of being used in accordance with its user manuals, either automatically, upon the occurrence of licensor-selected conditions or manually on command.
Contractor further represents and warrants that all third party software, delivered to City or used by Contractor in the performance of the Contract, is fully licensed by the appropriate licensor.
6.7 Publication. Contractor may not publish or reproduce any Deliverable Materials, for purposes unrelated to Contractor’s work on behalf of the City without prior written consent from the City.
6.8 Royalties, Licenses, and Patents. Unless otherwise specified, Contractor shall pay all royalties, license, and patent fees associated with the goods that are the subject of this solicitation. Contractor warrants that the goods, materials, supplies, and equipment to be supplied do not infringe upon any patent, trademark, or copyright, and further agrees to defend any and all suits, actions and claims for infringement that are brought against the City, and to defend, indemnify and hold harmless the City, its elected officials, officers, and employees from all liability, loss and damages, whether general, exemplary or punitive, suffered as a result of any actual or claimed infringement asserted against the City, Contractor, or those furnishing goods, materials, supplies, or equipment to Contractor under the Contract.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (with legal counsel reasonably acceptable to City), indemnify, protect, and hold harmless City and its elected officials, officers, employees, agents, and representatives (Indemnified Parties) from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of Contractor or its subcontractors), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, any goods provided or performance of services under this Contract by Contractor, any subcontractor, anyone directly or indirectly employed by either of them, or anyone that either of them control. Contractor’s duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties.
7.2 Insurance. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or 221
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in connection with the performance of the work hereunder and the results of that work by Contractor, his agents, representatives, employees or subcontractors.
Contractor shall provide, at a minimum, the following:
7.2.1 Commercial General Liability. Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury, and personal and advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
7.2.2 Commercial Automobile Liability. Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or, if Contractor has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
7.2.3 Workers' Compensation. Insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
7.2.4 Professional Liability (Errors and Omissions). For consultant contracts, insurance appropriate to Consultant’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
7.2.5 Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
7.2.5.1 Additional Insured Status. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used).
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7.2.5.2 Primary Coverage. For any claims related to this contract, Contractor’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self- insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Contractor’s insurance and shall not contribute with it.
7.2.5.3 Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to City.
7.2.5.4 Waiver of Subrogation. Contractor hereby grants to City a waiver of any right to subrogation which the Workers’ Compensation insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
7.2.5.5 Claims Made Policies (applicable only to professional liability). The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. If coverage is canceled or non- renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
7.3 Self Insured Retentions. Self-insured retentions must be declared to and approved by City. City may require Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self- insured retention may be satisfied by either the named insured or City.
7.4 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best’s rating of no less than A-VI, unless otherwise acceptable to City.
City will accept insurance provided by non-admitted, “surplus lines” carriers only if the carrier is authorized to do business in the State of California and is included on the List of Approved Surplus Lines Insurers (LASLI list). All policies of insurance carried by non-admitted carriers are subject to all of the requirements for policies of insurance provided by admitted carriers described herein.
7.5 Verification of Coverage. Contractor shall furnish City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive Contractor’s obligation to provide them. City reserves the right to require complete,
certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
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7.6 Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
7.7 Additional Insurance. Contractor may obtain additional insurance not required by this Contract.
7.8 Excess Insurance. All policies providing excess coverage to City shall follow the form of the primary policy or policies including but not limited to all endorsements.
7.9 Subcontractors. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as the CG 20 38 04 13 endorsement.
ARTICLE VIII
BONDS
8.1 Payment and Performance Bond. Prior to the execution of this Contract, City may require Contractor to post a payment and performance bond (Bond). The Bond shall guarantee Contractor’s faithful performance of this Contract and assure payment to contractors, subcontractors, and to persons furnishing goods and/or services under this Contract.
8.1.1 Bond Amount. The Bond shall be in a sum equal to twenty-five percent (25%) of the Contract amount, unless otherwise stated in the Specifications. City may file a claim against the Bond if Contractor fails or refuses to fulfill the terms and provisions of the Contract.
8.1.2 Bond Term. The Bond shall remain in full force and effect at least until complete performance of this Contract and payment of all claims for materials and labor, at which time it will convert to a ten percent (10%) warranty bond, which shall remain in place until the end of the warranty periods set forth in this Contract. The Bond shall be renewed annually, at least sixty (60) days in advance of its expiration, and Contractor shall provide timely proof of annual renewal to City.
8.1.3 Bond Surety. The Bond must be furnished by a company authorized by the State of California Department of Insurance to transact surety business in the State of California and which has a current A.M. Best rating of at least “A-, VIII.”
8.1.4 Non-Renewal or Cancellation. The Bond must provide that City and Contractor shall be provided with sixty (60) days’ advance written notice in the event of non-renewal, cancellation, or material change to its terms. In the event of non-renewal, cancellation, or material change to the Bond terms, Contractor shall provide City with evidence of the new source of surety within twenty-one (21) calendar days after the date of the notice of non-renewal, cancellation, or material change. Failure to maintain the Bond, as required herein, in full force 224
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and effect as required under this Contact, will be a material breach of the Contract subject to termination of the Contract.
8.2 Alternate Security. City may, at its sole discretion, accept alternate security in the form of an endorsed certificate of deposit, a money order, a certified check drawn on a solvent bank, or other security acceptable to the Purchasing Agent in an amount equal to the required Bond.
ARTICLE IX
CITY-MANDATED CLAUSES AND REQUIREMENTS
9.1 Contractor Certification of Compliance. By signing this Contract, Contractor certifies that Contractor is aware of, and will comply with, these City-mandated clauses throughout the duration of the Contract.
9.1.1 Drug-Free Workplace Certification. Contractor shall comply with City’s Drug-Free Workplace requirements set forth in Council Policy 100-17, which is incorporated into the Contract by this reference.
9.1.2 Contractor Certification for Americans with Disabilities Act (ADA) and State Access Laws and Regulations: Contractor shall comply with all accessibility requirements under the ADA and under Title 24 of the California Code of Regulations (Title 24).
When a conflict exists between the ADA and Title 24, Contractor shall comply with the most restrictive requirement (i.e., that which provides the most access). Contractor also shall comply with the City’s ADA Compliance/City Contractors requirements as set forth in Council Policy 100-04, which is incorporated into this Contract by reference. Contractor warrants and certifies compliance with all federal and state access laws and regulations and further certifies that any subcontract agreement for this contract contains language which indicates the subcontractor's agreement to abide by the provisions of the City’s Council Policy and any applicable access laws and regulations.
9.1.3 Non-Discrimination Requirements.
9.1.3.1 Compliance with City’s Equal Opportunity Contracting Program (EOCP). Contractor shall comply with City’s EOCP Requirements. Contractor shall not discriminate against any employee or applicant for employment on any basis prohibited by law.
Contractor shall provide equal opportunity in all employment practices. Prime Contractors shall ensure that their subcontractors comply with this program. Nothing in this Section shall be interpreted to hold a Prime Contractor liable for any discriminatory practice of its subcontractors.
9.1.3.2 Non-Discrimination Ordinance. Contractor shall not discriminate on the basis of race, gender, gender expression, gender identity, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring or treatment of subcontractors, vendors or suppliers. Contractor shall provide equal opportunity for subcontractors to participate in subcontracting opportunities. Contractor understands and agrees that violation of this clause shall be considered a material breach of the Contract and may result 225
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in Contract termination, debarment, or other sanctions. Contractor shall ensure that this language is included in contracts between Contractor and any subcontractors, vendors and suppliers.
9.1.3.3 Compliance Investigations. Upon City’s request, Contractor agrees to provide to City, within sixty calendar days, a truthful and complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past five years on any of its contracts that were undertaken within San Diego County, including the total dollar amount paid by Contractor for each subcontract or supply contract. Contractor further agrees to fully cooperate in any investigation conducted by City pursuant to City's Nondiscrimination in Contracting Ordinance. Contractor understands and agrees that violation of this clause shall be considered a material breach of the Contract and may result in Contract termination, debarment, and other sanctions.
9.1.4 Equal Benefits Ordinance Certification. Unless an exception applies, Contractor shall comply with the Equal Benefits Ordinance (EBO) codified in the San Diego Municipal Code (SDMC). Failure to maintain equal benefits is a material breach of the Contract.
9.1.5 Contractor Standards. Contractor shall comply with Contractor Standards provisions codified in the SDMC. Contractor understands and agrees that violation of Contractor Standards may be considered a material breach of the Contract and may result in Contract termination, debarment, and other sanctions.
9.1.6 Noise Abatement. Contractor shall operate, conduct, or construct without violating the City’s Noise Abatement Ordinance codified in the SDMC.
9.1.7 Storm Water Pollution Prevention Program. Contractor shall comply with the City’s Storm Water Management and Discharge Control provisions codified in Division 3 of Chapter 4 of the SDMC, as may be amended, and any and all applicable Best Management Practice guidelines and pollution elimination requirements in performing or delivering services at City owned, leased, or managed property, or in performance of services and activities on behalf of City regardless of location.
Contractor shall comply with the City’s Jurisdictional Urban Runoff Management Plan encompassing Citywide programs and activities designed to prevent and reduce storm water pollution within City boundaries as adopted by the City Council on January 22, 2008, via Resolution No. 303351, as may be amended.
Contractor shall comply with each City facility or work site’s Storm Water Pollution Prevention Plan, as applicable, and institute all controls needed while completing the services to minimize any negative impact to the storm water collection system and environment.
9.1.8 Service Worker Retention Ordinance. If applicable, Contractor shall comply with the Service Worker Retention Ordinance (SWRO) codified in the SDMC.
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9.1.9 Product Endorsement. Contractor shall comply with Council Policy 000-41 which requires that other than listing the City as a client and other limited endorsements, any advertisements, social media, promotions or other marketing referring to the City as a user of a product or service will require prior written approval of the Mayor or designee. Use of the City Seal or City logos is prohibited.
9.1.10 Business Tax Certificate. Unless the City Treasurer determines in writing that a contractor is exempt from the payment of business tax, any contractor doing business with the City of San Diego is required to obtain a Business Tax Certificate (BTC) and to provide a copy of its BTC to the City before a Contract is executed.
9.1.11 Equal Pay Ordinance. Unless an exception applies, Contractor shall comply with the Equal Pay Ordinance codified in San Diego Municipal Code sections 22.4801 through
22.4809. Contractor shall certify in writing that it will comply with the requirements of the EPO.
9.1.11.1 Contractor and Subcontract Requirement. The Equal Pay Ordinance applies to any subcontractor who performs work on behalf of a Contractor to the same extent as it would apply to that Contractor. Any Contractor subject to the Equal Pay Ordinance shall require all of its subcontractors to certify compliance with the Equal Pay Ordinance in its written subcontracts.
ARTICLE X
CONFLICT OF INTEREST AND VIOLATIONS OF LAW
10.1 Conflict of Interest Laws. Contractor is subject to all federal, state and local conflict of interest laws, regulations, and policies applicable to public contracts and procurement practices including, but not limited to, California Government Code sections 1090, et. seq. and 81000, et. seq., and the Ethics Ordinance, codified in the SDMC. City may determine that Contractor must complete one or more statements of economic interest disclosing relevant financial interests.
Upon City’s request, Contractor shall submit the necessary documents to City.
10.2 Contractor’s Responsibility for Employees and Agents. Contractor is required to establish and make known to its employees and agents appropriate safeguards to prohibit employees from using their positions for a purpose that is, or that gives the appearance of being, motivated by the desire for private gain for themselves or others, particularly those with whom they have family, business or other relationships.
10.3 Contractor’s Financial or Organizational Interests. In connection with any task, Contractor shall not recommend or specify any product, supplier, or contractor with whom Contractor has a direct or indirect financial or organizational interest or relationship that would violate conflict of interest laws, regulations, or policies.
10.4 Certification of Non-Collusion. Contractor certifies that: (1) Contractor’s bid or proposal was not made in the interest of or on behalf of any person, firm, or corporation not identified; (2) Contractor did not directly or indirectly induce or solicit any other bidder or proposer to put in a sham bid or proposal; (3) Contractor did not directly or indirectly induce or 227
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solicit any other person, firm or corporation to refrain from bidding; and (4) Contractor did not seek by collusion to secure any advantage over the other bidders or proposers.
10.5 Hiring City Employees. This Contract shall be unilaterally and immediately terminated by City if Contractor employs an individual who within the twelve (12) months immediately preceding such employment did in his/her capacity as a City officer or employee participate in negotiations with or otherwise have an influence on the selection of Contractor.
ARTICLE XI
DISPUTE RESOLUTION
11.1 Mediation. If a dispute arises out of or relates to this Contract and cannot be settled through normal contract negotiations, Contractor and City shall use mandatory non-binding mediation before having recourse in a court of law.
11.2 Selection of Mediator. A single mediator that is acceptable to both parties shall be used to mediate the dispute. The mediator will be knowledgeable in the subject matter of this Contract, if possible.
11.3 Expenses. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including required traveling and other expenses of the mediator, and the cost of any proofs or expert advice produced at the direct request of the mediator, shall be borne equally by the parties, unless they agree otherwise.
11.4 Conduct of Mediation Sessions. Mediation hearings will be conducted in an informal manner and discovery will not be allowed. The discussions, statements, writings and admissions will be confidential to the proceedings (pursuant to California Evidence Code sections 1115 through 1128) and will not be used for any other purpose unless otherwise agreed by the parties in writing. The parties may agree to exchange any information they deem necessary. Both parties shall have a representative attend the mediation who is authorized to settle the dispute, though City's recommendation of settlement may be subject to the approval of the Mayor and City Council. Either party may have attorneys, witnesses or experts present.
11.5 Mediation Results. Any agreements resulting from mediation shall be memorialized in writing. The results of the mediation shall not be final or binding unless otherwise agreed to in writing by the parties. Mediators shall not be subject to any subpoena or liability, and their actions shall not be subject to discovery.
ARTICLE XII
MANDATORY ASSISTANCE
12.1 Mandatory Assistance. If a third party dispute or litigation, or both, arises out of, or relates in any way to the services provided to the City under a Contract, Contractor , its agents, officers, and employees agree to assist in resolving the dispute or litigation upon City’s request.
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attending mediations, arbitrations, depositions, trials or any event related to the dispute resolution and/or litigation.
12.2 Compensation for Mandatory Assistance. City will compensate Contractor for fees incurred for providing Mandatory Assistance. If, however, the fees incurred for the Mandatory Assistance are determined, through resolution of the third party dispute or litigation, or both, to be attributable in whole, or in part, to the acts or omissions of Contractor, its agents, officers, and employees, Contractor shall reimburse City for all fees paid to Contractor, its agents, officers, and employees for Mandatory Assistance.
12.3 Attorneys’ Fees Related to Mandatory Assistance. In providing City with dispute or litigation assistance, Contractor or its agents, officers, and employees may incur expenses and/or costs. Contractor agrees that any attorney fees it may incur as a result of assistance provided under Section 12.2 are not reimbursable.
ARTICLE XIII
MISCELLANEOUS
13.1 Headings. All headings are for convenience only and shall not affect the interpretation of this Contract.
13.2 Non-Assignment. Contractor may not assign the obligations under this Contract, whether by express assignment or by sale of the company, nor any monies due or to become due under this Contract, without City’s prior written approval. Any assignment in violation of this paragraph shall constitute a default and is grounds for termination of this Contract at the City’s sole discretion. In no event shall any putative assignment create a contractual relationship between City and any putative assignee.
13.3 Independent Contractors. Contractor and any subcontractors employed by Contractor are independent contractors and not agents of City. Any provisions of this Contract that may appear to give City any right to direct Contractor concerning the details of performing or providing the goods and/or services, or to exercise any control over performance of the Contract, shall mean only that Contractor shall follow the direction of City concerning the end results of the performance.
13.4 Subcontractors. All persons assigned to perform any work related to this Contract, including any subcontractors, are deemed to be employees of Contractor, and Contractor shall be directly responsible for their work.
13.5 Covenants and Conditions. All provisions of this Contract expressed as either covenants or conditions on the part of City or Contractor shall be deemed to be both covenants and conditions.
13.6 Compliance with Controlling Law. Contractor shall comply with all applicable local, state, and federal laws, regulations, and policies. Contractor’s act or omission in violation of applicable local, state, and federal laws, regulations, and policies is grounds for contract 229
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termination. In addition to all other remedies or damages allowed by law, Contractor is liable to City for all damages, including costs for substitute performance, sustained as a result of the violation. In addition, Contractor may be subject to suspension, debarment, or both.
13.7 Governing Law. The Contract shall be deemed to be made under, construed in accordance with, and governed by the laws of the State of California without regard to the conflicts or choice of law provisions thereof.
13.8 Venue. The venue for any suit concerning solicitations or the Contract, the interpretation of application of any of its terms and conditions, or any related disputes shall be in the County of San Diego, State of California.
13.9 Successors in Interest. This Contract and all rights and obligations created by this Contract shall be in force and effect whether or not any parties to the Contract have been succeeded by another entity, and all rights and obligations created by this Contract shall be vested and binding on any party’s successor in interest.
13.10 No Waiver. No failure of either City or Contractor to insist upon the strict performance by the other of any covenant, term or condition of this Contract, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Contract, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Contract, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach.
13.11 Severability. The unenforceability, invalidity, or illegality of any provision of this Contract shall not render any other provision of this Contract unenforceable, invalid, or illegal.
13.12 Drafting Ambiguities. The parties acknowledge that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Contract, and the decision of whether to seek advice of legal counsel with respect to this Contract is the sole responsibility of each party. This Contract shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Contract.
13.13 Amendments. Neither this Contract nor any provision hereof may be changed, modified, amended or waived except by a written agreement executed by duly authorized representatives of City and Contractor. Any alleged oral amendments have no force or effect. The Purchasing Agent must sign all Contract amendments.
13.14 Conflicts Between Terms. If this Contract conflicts with an applicable local, state, or federal law, regulation, or court order, applicable local, state, or federal law, regulation, or court order shall control. Varying degrees of stringency among the main body of this Contract, the exhibits or attachments, and laws, regulations, or orders are not deemed conflicts, and the most stringent requirement shall control. Each party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Contract. 230
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13.15 Survival of Obligations. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with this Contract, as well as all continuing obligations indicated in this Contract, shall survive, completion and acceptance of performance and termination, expiration or completion of the Contract.
13.16 Confidentiality of Services. All services performed by Contractor, and any sub- contractor(s) if applicable, including but not limited to all drafts, data, information, correspondence, proposals, reports of any nature, estimates compiled or composed by Contractor, are for the sole use of City, its agents, and employees. Neither the documents nor their contents shall be released by Contractor or any subcontractor to any third party without the prior written consent of City. This provision does not apply to information that: (1) was publicly known, or otherwise known to Contractor, at the time it was disclosed to Contractor by City; (2) subsequently becomes publicly known through no act or omission of Contractor; or (3) otherwise becomes known to Contractor other than through disclosure by City.
13.17 Insolvency. If Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary, Contractor agrees to furnish, by certified mail or electronic commerce method authorized by the Contract, written notification of the bankruptcy to the Purchasing Agent and the Contract Administrator responsible for administering the Contract. This notification shall be furnished within five (5) days of the initiation of the proceedings relating to bankruptcy filing. This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition was filed, and a listing of City contract numbers and contracting offices for all City contracts against which final payment has not been made. This obligation remains in effect until final payment is made under this Contract.
13.18 No Third Party Beneficiaries. Except as may be specifically set forth in this Contract, none of the provisions of this Contract are intended to benefit any third party not specifically referenced herein. No party other than City and Contractor shall have the right to enforce any of the provisions of this Contract.
13.19 Actions of City in its Governmental Capacity. Nothing in this Contract shall be interpreted as limiting the rights and obligations of City in its governmental or regulatory capacity.
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Exhibit D
1 EXHIBIT D - SPECIAL CONTRACT PROVISIONS
1. Click-wrap Licensing. Regardless of any other provision or other license terms which may be issued by Vendor after the effective date of this Contract, and irrespective of whether any such provisions have been proposed prior to or after the issuance of a Purchase Order for products licensed under this Agreement, or the fact that such other agreement may be affixed to or accompany software upon delivery (shrink -wrap), the terms and conditions set forth in this Agreement shall supersede and govern the license terms between Customers and Vendor.
2. Most-favored Customer. If Contractor, at any time during this Agreement, routinely enters into agreements with other governmental customers, and offers the same or substantially the same products/services offered to the City on a basis tha t provides prices, warranties, benefits, and or terms more favorable than those provided to the City, Contractor shall notify City within ten (10) business days thereafter of that offering and this Agreement shall be deemed to be automatically amended effective retroactively to the effective date of the most favorable contract, wherein the Contractor shall provide the same prices, warranties, benefits, or terms to the City. The City shall have the right and option at any time to decline to accept any such change, in which case the amendment shall be deemed null and void. If Contractor is of the opinion that any apparently more favorable price, warranty, benefit, or term charged and/or offered a customer during the term of this Contract is not in fact most favored treatment, Contractor shall within ten (10) business days notify the City in writing, setting forth the detailed reasons the Contractor believes aforesaid offer which has been deemed to be a most favored treatment, is not in fact most fav ored treatment. The City, after due consideration of such written explanation, may decline to accept such explanation and thereupon this Agreement between the City and Contractor shall be automatically amended, effective retroactively, to the effective date of the most favored agreement, to provide the same prices, warranties, benefits, or terms to the City.
3. Data Dump. Upon Agreement expiration or termination of the Agreement, Contractor will immediately provide to the City electronic copies of the data col lected and recorded. Data format will be agreed upon by both City and Contractor, but at a minimum, data records will be provided in ASCII comma, separated value (csv) format, with binary images in TIFF, JPG, or PDF format.
4. Financing. At its sole discretio n, the City reserves the right to enter into a financing arrangement with the successful Contractor for the provision of any Product(s) or good(s) available under this Contract. Contractor acknowledges that such a written financing arrangement may be agreed-to between the Parties for such Product(s) or good(s), at any time throughout the duration of the Contract. Notwithstanding the foregoing, the City further reserves the right to source its own financing partner for Product(s) or good(s) available under this Contract, at its sole discretion.
5. Physical Goods. In the cas e of physical goods ((e.g. equipment, material, supplies, as opposed to services), all Products offered must, unless otherwise accepted by the City, in writing, be new, unused, and not refurbished, and include any and all accessories which may or may not b e specifically mentioned herein, but which are normally furnished or which are necessary to make a delivered Product ready for its intended use.
6. Industry Standards. Where not otherwise specified, details of construction, materials, or the way in which services will be provided, are left to the discretion of the Contractor, 232
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Exhibit D
2 provided only that any offering shall conform, as a minimum, to best Industry standards and practices and to what is currently being sold in the marketplace.
7. Manuals. Unless otherwise specified or superseded herein, each product delivered under the Agreement, and if applicable any options thereto, shall be supplied with at least one (1) copy of a safety and operating manual. The cost of any such manuals must be included in the base price for any product item offered hereunder.
8. Inspection & Testing . All Products sold pursuant to this RFP shall be subject to inspection/testing by or at the direction of the City, either at the delivery destination or the place of manufacture. In the event a Product fails to meet or exceed all requirements of this Invitation, and unless otherwise agreed in advance, the cost of any inspection and/or testing , shall be borne by the Contractor.
9. Price Sheet Updates . As technology progresses over the course of the Agreement, the successful Contractor may update the existing Price Sheet with newer technology and/or products, conforming to the prevailing pricing discounts afforded to each product category.
Any variance to the specifications or performance of products offered pursuant to this RFP shall be acceptable to the City only insofar as it meets or exceeds the specifications and requirements of this RFP.
10. City Discount. The minimum discount for all products and services will be the percentage off Manufacturer’s Suggested Retail Price (“MSRP”), as specified in Exhibit E, Pricing Sheet.
11. City Price. In the event that the City intends to purchase goods or services i n volume under this Agreement, the City may negotiate more advantageous pricing or participate in promotional offers. In such event, a copy of better offerings shall be furnished to the City upon request.
12. Promotional Offers. Contractor will automatically a pply to quotations, and make available to City, any and all temporary or permanent promotional offers, discounts and/or special pricing for hardware and commodities available under this Agreement.
13. Shipping and Handling Fees. The price to the City under the resulting Agreement shall include all shipping and handling fees. Shipments will be Free On Board the City’s destination.
No additional fees shall be charged to the City for standard shipping and handling. If the City requests expedited or special delivery, the City will be responsible for any charges for expedited or special delivery.
14. Restocking Fees. No restocking fees will be charged to the City in the event of a product return.
15. Insurance Requirements. The insurance requirements herein supersede the insurance requirements in Exhibit C, General Contract Terms and Conditions. a. Contractor must have the following insurance and coverage minimums:
i. General liability insurance with a Single Occurrence limit of at least $1,000,000, and a General Aggregate limit of at least two times the Single Occurrence limit.
ii. Product liability insurance with a Single Occurrence of at least $1,000,000 and a General Aggregate limit of at least two times the Single Occurrence limit for all products.
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Exhibit D
3 iii. Property Damage or Destruction insurance is required for coverage of City-owned Hardware and equipment while in the Contractor’s possession, custody, or control. The minimum Single Occurrence limit is $500,000 and the General Aggregate limit must be at least two times the Single Occurrence limit. This insurance may be carried in several ways.
E.g., under an Inland Marine policy, as part of Automobile coverage, or under Garage Keepers policy. In any event, the coverage must be specifically and clearly listed on insurance certificate(s) submitted to the City.
b. Insurance coverage shall be in effect for the length of any contract made pursuant to this RFP, and for any extensions thereof, plus the days/months required to deliver any outstanding order after the close of the contract period. c. Original insurance certificates must be furnished to the City upon request, showing Contractor as the insured and showing coverage and limits for the insurance listed above.
d. If any products or Hardware or Service(s) will be provided by Parties other than Contractor, all such parties are required to carry the minimum insurance coverages specified herein, and if requested by City, a separate insurance certificate must be submitted for each such party.
e. City reserves the right to contact insurance underta kers to confirm policy and certificate issuance and document accuracy.
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Exhibit E
1 EXHIBIT E - PRICING SHEET
1. Core Wireless Communications Products:
Core categories are provided for Proposers in the Table s below. Proposers should refer to Exhibit F, section 3 for guidance on hardware that qualifies for each tiered category below.
The City has Estimated the quantities of each category of hardware it intends to purchase over the course of the contract. (Proposers should note, these volumes are provided as guidance only, the City reserves the right to amend volumes purchased at its so le discretion.)
Table 1. Estimated volumes of Core Products
Category Portables Mobiles Control Stations
Tier 1 105 20 5
Tier 2 200 100 5
Tier 3 4300 1800 25
Totals 4605 1920 35
Proposers should provide a unit price for each of their proposed Core Products:
Table 2. Unit Price for Core Products
Category Portables Mobiles Control Stations
Tier 1 $ $ $
Tier 2 $ $ $
Tier 3 $ $ $
Proposers should provide an annual cost t o maintain and support each of the proposed units of hardware.
Table 3. Annual Maintenance and Support Costs for each Core Product Category Portables Mobiles Control Stations
Tier 1 $ $ $
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Exhibit E
2 Tier 2 $ $ $
Tier 3 $ $ $
Proposers should confirm product codes, number of warranty years provided at purchase, a product description, the MSRP price, and the City discount- off of MSRP for each of the core products proposed.
Table 4. Core Product Details
ID Category Product Code
No. of
Warranty
Years
Standard
Product Description MSRP ($)
City
Discount
(% off
MSRP)
1 Portable Radio
– Tier 1
2 Portable Radio
– Tier 2
3 Portable Radio
– Tier 3
4 Mobile Radio –
Tier 1
5 Mobile Radio –
Tier 2
6 Mobile Radio –
Tier 3
7 Control Station
– Tier 1
8 Control Station
– Tier 2
2. Non-core Wireless Communications Products:
Proposers are requested to supply product descriptions, products codes, and applicable discounts per product exactly according to the table provided below (within each of the designated categories) . Additional space is provided for Proposers to add further categories, as may be necessary.
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Exhibit E
3 Table 5 – Non-core Wireless Communications Products Pricing ID Category Product
Code Product Description MSRP ($)
City
Discount
(% off
MSRP)
9 List Portable Radio
Accessories
10 List Mobile Radio
Accessories
11 List Control Station
Accessories
12 Software Licensing -
Portables
13 Software Licensing -
Mobiles
14 Software Licensing -
Control Stations
15 Software Upgrades -
Portables
16 Software Upgrades -
Mobiles
17 Software Upgrades –
Control Stations
18 Applications - Portables
19 Applications - Mobiles
20 Applications – Control
Stations
21 Programming
Hardware/Software -
Portables
22 Programming
Hardware/Software -
Mobiles
23 Programming
Hardware/Software -
Control Stations
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Exhibit E
4 24 Services – Subscriber
Radio Provisioning
25 Services – Training
26 Services - Maintenance
3. Related Wireless Communications Third-Party Products (optional):
Proposers may populate the following table with third -party products that may be relevant to their product offering, and per the requirements described within this RFP.
Table 6 - Related Third-Party Products Pricing
ID Category Product
Code Product Description MSRP ($)
City
Discount
(% off
MSRP)
4. Financing Option (optional*)
Proposers may provide a financing proposal for the equipment, either through direct financing or through a third-party partner. Financing proposals should include:
a. Name of entity offering financing;
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Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit E
5 b. Proposed interest rate(s) or formula to acquire interest rate; c. Proposed term(s);
d. Estimated amortization schedule(s);
e. Any additional notes or stipulations; and
f. Term sheet with key financing terms and/or draft financing agreement.
*NOTE: Section 4 (“Financing Option”) is optional. Proposers are not required to provide a financing option, and the response (if any) to section 4 will not be considered as part of the RFP evaluation.
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
1 EXHIBIT F - SPECIFICATIONS
Table of Contents
1 Introduction ................................................................................................................. 3 2 Hardware Specifications ............................................................................................... 4 3 Subscribers ................................................................................................................... 5
3.1 Overview ........................................................................................................................ 5
3.2 Price Structure ............................................................................................................... 5
3.3 General Requirements .................................................................................................. 6
3.4 Radio Description .......................................................................................................... 7
3.5 Mobiles .......................................................................................................................... 13
3.6 Portables ....................................................................................................................... 17
3.7 Control Stations ............................................................................................................ 21
3.8 Subscriber Licensing ................................................................................................... 23
3.9 Subscriber Software Feature Upgrades ..................................................................... 23
3.10 Subscriber Applications .............................................................................................. 23
3.11 Subscriber Programming ............................................................................................ 23
3.12 Subscriber Radio Offering Documentation ............................................................... 24
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Exhibit F
2 List of Tables
Table 3-1: Estimated Radio Quantities, by Category ............................................................ 6 Table 3-2: Vehicle Class Descriptions ................................................................................ 17
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
3 1 Introduction
The City of San Diego (“City”) seeks proposals from potential providers for the provision of Radio Communication, Emergency Response and Mobile Interoperability Equipment and Supporting Services (hereinafter, the “Goods and Services”).
The hardware and supporting services arising from this Request for Proposals (RFP) will enable the City to continue to provide best-in-class wireless communications services to its First Responders, with high levels of availability.
The key components of any resulting Agreement will be as follows:
1. Radios and wireless communications equipment, and
2. Warranty and training services for the aforementioned equipment Proposers should note that the requirements set forth in this document describe the City’s intent to ensure that all wireless communications systems maintain an exceptionally high level of availability, that no disruption to these critical services will be tolerated, and that the resulting system will retain seamless integration with the regional interoperability standards required (Proposers should review Exhibit B – Statement of Work for further details).
This RFP is intended to result in an Agreement for Goods and Services for an initial ten (10) year term, with two (2), two -year renewal options, to be award ed at the sole discretion of the City.
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Exhibit F
4 2 Hardware Specifications
The City has determined that Proposers’ goods and services should meet the minimum specifications and requirements expressed in this RFP.
The City has provided its minimum required specificatio ns for hardware and radios herein, inclusive of the City’s required P25 and agency interoperability requirements .
Proposers should ensure that they confirm that their Proposed E quipment adequately meets the City’s specifications and disclose any exceptions therein within their response to this RFP.
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
5 3 Subscribers
3.1 Overview
3.1.1 In support of public safety radio system operations, the City requires the Proposer to offer a range of subscriber radio equipment and accessories, providing a performance range from highest quality, highest duty rating, and highest performance electronic components down to less fully featured, less mission-critical end user devices.
3.1.2 Rather than limit the Proposer to a set of detailed equipment specifications for each item to be provided, the City expects the Proposer to offer the equipment, and then support that offering with extensive and detailed supporting information.
3.1.3 The radios shall be able to transmit and receive on any of the 700/800 MHz channels licensed to the City , as well as all analog and digital emissions authorized for use. Proposer shall also offer a tier of radios that are multi-band capable, as detailed in this RFP specification.
3.2 Price Structure
3.2.1 Pricing is t o be submitted in the form of the catalog of available models, options, optional features, and accessories at list price less a stipulated discount.
3.2.2 Subscriber radio equipment and accessories may only be ordered and delivered when directed by the City. Proposer shall provide ordering lead times for all subscriber radio s and accessories, ensuring equipment is available according to the project schedule.
3.2.3 The City shall not be required to commit to the purchase of any initial quantity of units as a requirement for preserving discounted pricing of the subscriber equipment or any other ancillary e quipment and services.
3.2.4 Options
3.2.4.1 The Proposer shall include a price list of accessories , optional features, and optional e quipment available. This listing shall become part of the price list and shall be used by the City for ordering the desired combinations. Descriptive literature fully describing each option must be included.
3.2.5 Quantities
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
6 3.2.5.1 The City anticipates that it will need the following es timated quantities of 700/800 MHz subscriber radio equipment. These numbers only reflect preliminary numbers and may change by the time orders are placed. The City reserves the right to change the total quantity and the individual quantities of radios at any time during the contract without any changes to the prices offered by the Proposer.
Category Portables Mobiles Control
Stations
Tier 1 105 20 5
Tier 2 200 100 5
Tier 3 4300 1800 25
TOTALS: 4605 1920 35
Table 3-1: Estimated Radio Quantities, by Category
3.2.6 The City anticipates that depending upon the application, radio type and configurations will vary. The Proposer shall provide the City with a list of potential radios that can be provided from more feature rich to more simplistic in operation. The City envisions that radios in the various agencies and services shall be configured as closely as possible. Exceptions will exist due to the unique nature of the agencies and services that exist.
3.3 General Requirements
3.3.1 Radio Tier
3.3.1.1 The Proposer is required to offer three (3) tiers of radios for mobiles and portables and at least two (2) tier s for control stations. Sections 3.3.1.2 through section 3.3.1.4 describe the general characteristics required of all radios being purchased to operate on the City’s Radio System — portables, mobiles, and control stations. Section 3.4 provides general required functionality of all radios being purchased to operate on the City’s Radio System — portables, mobiles, and control stations.
3.3.1.2 Tier 1
3.3.1.2.1 The low- tier radio shall be focused on basic operations , primarily used for non-public safety such as public works and transportation. The radio shall have the Basic Features listed in Section 3.4.2 below.
3.3.1.3 Tier 2
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
7 3.3.1.3.1 The mid -tier radio shall be focused on basic public- safety operations. The high- quality radio shall operate with B asic Features listed in Section 3.4.2 and Advanced Features listed in Section 3.4.3 below.
3.3.1.4 Tier 3
3.3.1.4.1 The high-tier radio shall represent the Proposer’s most capable radio and at a minimum provide Basic Features listed in Section
3.4.2 and Advanced Features listed in Section 3.4.3 E nhanced Features listed in Section 3.4.4 listed below.
3.4 Radio Description
3.4.1 The Proposer shall provide state-of-the-art, robust, public-safety- grade radios. Radios shall provide the following features, by tier, at a minimum. The following features are minimum requirements for each offered tier.
3.4.2 Basic Features
3.4.2.1 Frequency Bands
3.4.2.1.1 700/800 MHz
3.4.2.2 Protocols
3.4.2.2.1 Analog Conventional
3.4.2.2.2 TIA/EIA Project 25 Phase 1, Conventional
3.4.2.2.3 TIA/EIA Project 25 Phase 1, Trunked
3.4.2.2.4 TIA/EIA Project 25 Phase 2, Trunked
3.4.2.3 Subscriber User Interfaces and Indications
3.4.2.3.1 All subscribers shall provide the following control capabilities:
3.4.2.3.2 On/Off for Primary Power to the Radio Set
3.4.2.3.3 On/Off Power Switch (Rotary Knob 355-Degree Turn Limit)
3.4.2.3.4 Talk Group Selector (Rotary Knob 355-Degree Turn Limit)
3.4.2.3.5 Programmable Three-Position Selector Switch
3.4.2.3.6 Power On Indicator
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Exhibit F
8 3.4.2.3.7 Transmit Indicator
3.4.2.3.8 Receive Indicator
3.4.2.3.9 Volume Control (Rotary Knob 355-Degree Turn Limit)
3.4.2.3.10 Volume Control for External Speakers
3.4.2.3.11 Alphanumeric Display – 12 Character minimum (all characters used for zone/talkgroup identification as needed)
3.4.2.3.12 Conventional, trunked, analog, and digital in the same bank/zone
3.4.2.3.13 Emergency Switch
3.4.2.3.14 Menu Backlight Function
3.4.2.4 Status Tones
3.4.2.4.1 System Busy
3.4.2.4.2 Callback when Channel is Available
3.4.2.4.3 Trunking Controller Failure
3.4.2.4.4 Time-Out Time Operation
3.4.2.4.5 Access to System Denied
3.4.2.4.6 Out-of-Range of Trunked System
3.4.2.5 Subscriber User Interfaces
3.4.2.5.1 Method to Move between Protocols
3.4.2.5.2 TX Timeout Timer
3.4.2.5.3 Multiple Trunked System Capacity
3.4.2.5.4 Conventional Channel Capacity
3.4.2.5.5 Simplex Channel Capacity
3.4.2.5.6 Channel Capacity – 500 minimum
3.4.2.5.7 Talk Group Radio Organization
3.4.2.6 Scan Capabilities
3.4.2.6.1 Number of Groups
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
9 3.4.2.6.2 Priority Scan Operation
3.4.2.6.3 Priority Scan Selection
3.4.2.6.4 Scan Range/Groups
3.4.2.6.5 Scan Group Disable
3.4.2.6.6 Scan Hang Time
3.4.2.7 Emergency Alert
3.4.2.8 Emergency Call
3.4.2.9 Priority Call
3.4.2.10 Priority Call Pre-Emption
3.4.2.11 Embedded Legacy Signaling
3.4.2.12 System Busy and Queue
3.4.2.13 System Queue Callback
3.4.2.14 Recent User
3.4.2.15 Out-of-Range Indication
3.4.2.16 Selective Alerting
3.4.2.17 Radio TX Disabling
3.4.2.18 Radio Suspend and Kill
3.4.2.19 Radio Enabling
3.4.2.20 Radio Selective Listening
3.4.2.21 Radio-to-Radio Selective Call
3.4.2.22 UID Identification
3.4.2.23 Telephone Interconnect
3.4.2.24 Local Radio Programming
3.4.2.25 Batch Cloning Capability
3.4.2.26 Conventional Fallback
3.4.3 Advanced Features
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Exhibit F
10 3.4.3.1 Frequency Bands, Additional Multi-Band functionality
3.4.3.1.1 VHF High Band, 150 MHz – 174 MHz
3.4.3.1.2 UHF, 450 MHz – 512 MHz
3.4.3.2 Internal Bluetooth Capability
3.4.3.2.1 Encrypted Bluetooth connectivity (optional)
3.4.3.3 Encryption – AES
3.4.3.4 Encryption – DES/DES-OFB
3.4.3.5 Over the Air Rekeying (OTAR) (optional)
3.4.3.5.1 The Proposer should list all software, hardware and licensing required for both the subscriber and the rekeying device and/or infrastructure.
3.4.3.6 DTMF Keypad
3.4.3.7 Channel Capacity – 1000 minimum
3.4.3.8 Programmable Alphanumeric Display - 2 lines, 12 characters per line minimum (all characters used for zone/talkgroup
identification as needed)
3.4.3.9 Status Messaging
3.4.3.10 Text Messaging
3.4.3.11 AVL/GPS Capable , with or without a lapel microphone.
Coordinates displayable on the radio screen.
3.4.3.12 Over-the-Air Programming (OTAP) via P25 Radio System (optional)
3.4.3.12.1 The Proposer should list all software, hardware and licensing required for both the subscriber and the OTAP device and/or infrastructure.
3.4.3.13 Over-the-Air Programming (OTAP) via Wi-Fi (optional)
3.4.3.13.1 The Proposer should list all software, hardware and licensing required for both the subscriber and the OTAP device and/or infrastructure.
3.4.4 Enhanced Features
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
11 3.4.4.1 LTE Band 14 Compatibility
3.4.4.2 Optional Enhanced Data (mobile only)
3.4.4.2.1 Radio Interface Port
3.4.4.2.2 Protocol Supported
3.4.4.2.3 Data Speeds
3.4.4.2.4 Typical Applications
3.4.5 Radio Functionality
3.4.5.1 The Proposer shall describe the following with regards to each of the tier radio being offered.
3.4.5.2 Programming
3.4.5.2.1 Radio programming must require a hardware- based system key(s) to program any trunked mode. No software -based system keys may be created for City of San Diego radio
networks.
3.4.5.2.2 Radio must have the ability to be upgraded with optional features not initially chosen at the time of purchase. These upgrades must be added through computer programming
software.
3.4.5.2.3 Interface Methods (local, Wi-Fi, OTAP, etc.)
3.4.5.2.4 Tuning and Alignment Capabilities
3.4.5.2.5 Adding Additional Channels or Sites
3.4.5.3 User Operation
3.4.5.3.1 Compatibility across Tiers of Radios
3.4.5.3.2 Compatibility across Mobiles/Portables/Control Stations
3.4.5.4 Audio Performance
3.4.5.4.1 General Microphone and Speaker Characteristics
3.4.5.4.2 Vocoder Performance in High-Noise Environments
3.4.5.5 RF Specifications
3.4.5.5.1 The Proposer shall provide radios and accessories that are type accepted and that operate e ffectively in a congested spectrum 250
RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
12 environment and that are tolerant of normal to high levels of RF noise. Describe the following specifications of each radio that will be offered:
3.4.5.5.2 TX Frequency Range
3.4.5.5.3 RX Frequency Range
3.4.5.5.4 Power Requirements
3.4.5.5.5 Operating Temperature (Full Performance)
3.4.5.5.6 Humidity
3.4.5.5.7 Duty Cycle
3.4.5.5.8 Shock and Vibration
3.4.5.5.9 TX Modulation
3.4.5.5.10 TX RF Output Power
3.4.5.5.11 Low Power
3.4.5.5.12 High Power
3.4.5.5.13 TX Frequency Stability
3.4.5.5.14 TX FCC Emission Designators
3.4.5.5.15 TX Audio Distortion
3.4.5.5.16 TX Spurious and Harmonic Signals
3.4.5.5.17 TX FM Hum and Noise
3.4.5.5.18 RX Frequency Range
3.4.5.5.19 RX Sensitivity
3.4.5.5.20 RX 12 dB SINAD
3.4.5.5.21 RX 20 dB Quieting
3.4.5.5.22 RX Digital Bit Error Rate
3.4.5.5.23 RX Selectivity
3.4.5.5.24 RX Spurious and Image Rejection
3.4.5.5.25 RX Intermodulation
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Exhibit F
13 3.4.5.5.26 RX Adjacent Channel Rejection
3.4.5.5.27 RX Audio Response
3.4.5.5.28 RX Audio Output, Internal Speaker
3.4.5.5.29 RX Frequency Stability
3.4.5.5.30 RX Intermodulation Rejection
3.4.5.6 Physical Characteristics
3.4.5.6.1 The Proposer shall provide state -of-the-art, robust, public - safety-grade radios. Describe the following specifications of each radio that will be offered:
3.4.5.6.2 Mechanical Specifications
3.4.5.6.3 Physical Specifications
3.4.5.6.4 Form Variations
3.4.5.6.5 MIL Standards
3.4.5.6.6 Intrinsically Safe
3.4.5.6.7 Electrical Specifications
3.4.5.6.8 Battery Life (Portable Only)
3.4.5.6.9 Operating Temperature-30 C to +60 C
3.5 Mobiles
3.5.1 This section further defines the characteristics required of the mobiles that the City is requiring.
3.5.2 Configuration
3.5.2.1 For the specification pricing, each mobile radio shall consist of the dash mounted radio unit, 3 dB roof -mounted antenna, external speaker, and all necessary hardware, materials, labor and programming necessary for a complete, working installation (i.e. closed coil on antennas, elevated feed, coax cut to length, etc.).
3.5.2.2 Additional installation pricing will be based upon the various type of units listed in the vehicle class and installation type. The Proposer will quote the cost of each in accordance with the table in the following pages.
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Exhibit F
14 3.5.2.3 Mobile radios shall be offered in several varieties including dash mount, remote, mount with control head and remote mount with dual control heads.
3.5.2.4 Mobile radios shall also offer a handheld control head.
3.5.2.5 Describe how a radio is offered as a remote mount and how a dash mount can be converted to a remote mount and/or converted back to a dash mount. Include any additional parts that may be required.
3.5.3 Physical Characteristics
3.5.3.1 Meet or exceed current MIL -STD-810 for high and low temperature, vibration, shock, dust, humidity, driven rain, and solar radiation.
3.5.3.2 Die-cast construction of radio chassis is required. Metal covers, while not required, are desirable. The chassis shall be made of plated or painted steel or aluminum of sufficient gauge to provide for adequate protection in a mobile environment.
3.5.3.3 The cabling shall be constructed so that frequent exposure to typical automotive liquids such as hydraulic fluids and petroleum- based oils or typical automotive vibration or shock does not cause the cable to degrade beyond operational use.
3.5.3.4 The radios shall provide long-term reliability and functionality in a public safety environment. The radios shall operate in environments with high RF energy, DC input voltage fluctuations, noise introduced in the DC line, typical temperature fluctuation, and exposure to dust, dirt, moisture, and shock.
3.5.4 Installation Requirements
3.5.4.1 An acceptable mobile radio shall operate without degradation with voltages ranging from 11.5 to 14.8 VDC.
3.5.4.2 All power and ground leads must run directly to battery with only specific soldered connections.
3.5.4.3 There must be a separate fuse on the ground lead of the installation.
3.5.4.4 All radios and accessories must be able to be turned on and off via a common ignition switch. The ignition switch sense cable must be fused.
3.5.4.5 A separate fuse lead is required running directly to the battery for dual remote head installations.
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
15 3.5.4.6 Radio, microphone clips, control heads and remote heads must be a grounded per manufacturers specification.
3.5.4.7 All power modes must not allow long-term battery to drain when the radio switch or ignition switch is set to the off position.
3.5.4.8 The radio set shall be equipped with suitable reverse polarity protection to avoid dam age if the radio or battery is incorrectly installed. The mobile radio shall be protected against source voltages above 14 VDC and operate at source voltages as low as 11 VDC without "motor-boating" or emitting any spurious emission or loss of programming.
3.5.4.9 Be capable of use in positive ground vehicles with the installation of an inverter.
3.5.4.10 Some installations use a David Clark or other interface for communications with the rear cab control. Some vehicles require a Molex connector to communicate with the David Clark.
3.5.4.11 Some vehicles will require unique mounting configurations and electrical system interfaces, including 24 VDC to 12 VDC converters and battery switches.
3.5.4.12 Large trucks have fabricated special front bezels to hold the loose- fitted radios securely in the console pocket.
3.5.5 Antenna System
3.5.5.1 The basic mobile antenna system shall consist of a 3 dB antenna, mount, transmission line and connectors.
3.5.5.2 Multiband mobile antennas shall be included to support multi band mobile radios being offered.
3.5.5.3 Connectors on the ca ble must mate directly with the radio. The use of adapters will not be accepted.
3.5.5.4 Other required antenna features are:
3.5.5.4.1 The antenna radiating element shall be removable and replaceable without disturbing the mount.
3.5.5.4.2 Stainless steel radiating element
3.5.5.4.3 Aluminum and plated steel base
3.5.5.5 Above and beyond the basic mobile antenna, Proposer shall provide the following additional antenna options:
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
16 3.5.5.5.1 3 dB Collinear Roof or Trunk Mount Antennas
3.5.5.5.2 3 dB on Glass Stealth Antenna
3.5.5.5.3 Unity Gain Low Silhouette Antenna
3.5.5.5.4 Transit Style Antenna
3.5.5.6 Additional specialty antennas may be required for vehicles currently owned by the City or purchased for use in the future.
Proposer shall provide a complete list of specialty antennas available for purchase, as well as a process to approve an d add specialty antennas as required.
3.5.5.7 Antenna cable
3.5.5.7.1 Low-loss cable, minimum 95% shield.
3.5.5.7.2 The Proposer shall wrap all exposed cable in flexible tubing and attach with a solid wire and fasteners to a secure location. All cables should be attached to a secur e location within 2 inches of the cable termination point. The length of the cable should allow for slight movement and placement of the Equipment. In no case shall the wire be coiled. The Proposer shall use low - loss Teflon antenna cable, and all connectors shall be soldered to the cable.
3.5.5.8 There are certain classes of vehicles that will require special antennas, such as elevated feed and transit antennas. Proposer shall provide a complete list of all available antennas that may be used with the mobile radio.
3.5.6 Accessories Options
3.5.6.1 The Proposer shall provide additional accessories for the various services using the mobile radio. The accessories should include:
3.5.6.2 Water-Resistant Heavy-Duty Microphone (Standard and DTMF)
3.5.6.3 Water Resistant Headset for Use Outside the Vehicle
3.5.6.4 Noise Canceling Microphone (Standard and DTMF)
3.5.6.5 Bluetooth Capability
3.5.6.6 Aux Microphone Connector for Headsets
3.5.6.7 Waterproof Speakers for Use Outside the Vehicle 255
RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
17 3.5.6.8 GPS and antenna to support AVL services
3.5.6.9 Describe the other accessories that the Proposer shall provide for each radio for a transportation agency.
3.5.6.10 The mobile shall have the ability to use third -party accessories.
Describe the accessories kits that are available to allow third-party suppliers. Provide a list of third -party suppliers that supply accessories for the mobile radio.
Install Type
Mobile
Install
Time
Installs Per
Day
Vehicle Class
Description
POLICE VEHICLE TYPES
Remote Mt Standard 3 hrs 3-4 SUV
Remote 4 hrs 3 Electric Vehicle
sedan
Remote Mt 5 hrs 2-3 Undercover vehicles
Dash Mt Special 8 hrs 1 Command RV/Truck
Remote Mt Dual Head 10 hrs 1 Command RV/Truck
Dash Mt Special 8 hrs 1 Boat/Vessel
Dash Mt Special 3 hrs 3-4 Motorcycles
FIRE/LIFEGUARD VEHICLE TYPES
Remote Mt Special Dual Head 24 hrs Engine/Heavy rescue Remote Mt Special this takes 7
radios 160 hrs Suburban/BC
Remote Mt Special 6 hrs 1 Brush rig
Remote Mt Special 3 hrs 5-6 SUV
Remote Mt Special 16 hrs 4-5 LG Vehicles (all
Toyota models)
Remote Mt Special 8 hrs 1 LG Boat/Fire
OTHER VEHICLE TYPES (i.e. street sweepers, trash trucks) Dash Mt Special 3 hrs 4-5 Trash/sweeper
Dash Mt Special 3 hrs 4-5 Street/P&R
Remote Mt Special 5 hrs 2-3 Park Ranger
Table 3-2: Vehicle Class Descriptions
3.6 Portables
3.6.1 This section further defines the characteristics of the portables that the City is requiring.
3.6.2 Configuration
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
18 3.6.2.1 Portable unit pricing should include the antenna, base radio, twelve-hour battery, single unit charger, and initial
programming.
3.6.3 Physical Characteristics
3.6.3.1 Portable Environment
3.6.3.1.1 The portable radio shall meet or exceed the current MIL -STD- 810 and shall be sealed against dust, dirt, moisture, and water.
3.6.3.2 The chassis shall be constructed of a high -impact material.
Portable radio housings must meet or exceed the EIA drop test requirements. The case shall be sealed so that the internal circuitry is protected from dust, moisture, and splashing water with or without the battery connected. Portables shall have an engraved or stamped multi-digit unique serial number applied to each unit. These shall be of such type, and located in such a position, that their removal or alteration is difficult to do.
3.6.3.3 Housing
3.6.3.3.1 The radio shall be enclosed in a high impact resistant material housing.
3.6.3.3.2 The radio shall have the option of availability in colored material housing (i.e. orange, green, etc.).
3.6.3.4 Survivability
3.6.3.4.1 Portable radios offered for service in the specification must withstand a fall from a distance of one (1) meter onto a hard, bare concrete floor and suffer no damage externally or
internally, regardless of the radio surface(s) contacting the floor, including the top.
3.6.3.4.2 Each portable radio shall be weatherproof in that it will not be damaged by moisture or temperature extremes such as those experienced in fire and police use, including exposure to sunlight or driving rain, wet snow, and ice combined with freezing temperatures or extreme heat with high humidity without the protection of a carrying case or other covering.
3.6.3.5 Operating Temperature
3.6.3.5.1 The radio shall perform without degradation over the temperature range of -30 C to +60 C.
3.6.3.6 Electrical/Power Source
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Exhibit F
19 3.6.3.6.1 The battery shall be a rechargeable lithium ion battery, which shall be quickly and easily removed. Battery life, based on a 5% transmit, 5% receive,90% stand -by duty cycle, measured in accordance with EIA standards of audio output, shall be at least twelve (12) hours.
3.6.3.6.2 Each portable radio shall have one spare lithium ion battery.
3.6.3.6.3 The battery shall be encased in a high impact resistant plastic- like material and finished and colored to match the portable case.
3.6.3.6.4 Batteries shall be externally connected to the radio and shall be secured with an easily operated release that cannot be
accidentally activated.
3.6.3.6.5 Proposer shall offer an Intrinsically Safe battery that is certified for use on the portable radio.
3.6.4 Antennas
3.6.4.1 The an tenna must screw into a connector on top of the radio making a waterproof connection.
3.6.4.2 It must be a full-size device to maximize the transfer of RF energy from the transmitter into the atmosphere and pick up the greatest amount of signal possible that has been transmitted by other units.
3.6.4.3 "Stubby" or other types of antennas that exhibit a negative gain are not acceptable.
3.6.4.4 The antenna shall be flexible and covered with soft plastic or rubber with a blunt safety tip.
3.6.4.5 Rigid or semi-rigid designs will not be accepted.
3.6.5 Accessories Options
3.6.5.1 The Proposer shall provide additional accessories for the various services using the portable. The accessories should include:
3.6.5.1.1 Water Resistant Headset
3.6.5.1.2 Lapel Microphone with Emergency, and Volume Control
3.6.5.1.3 Lapel Microphone with Emergency, Volume Control and GPS
3.6.5.1.4 Lapel Bluetooth Microphone with Emergency, and Volume Control
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RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
20 3.6.5.1.5 Leather Carrying Case
3.6.5.1.6 Carrying Clip with a D Ring
3.6.5.1.7 Carrying Case with a Clip Suitable for Attaching the Radio to a Belt
3.6.5.1.8 Carrying Clip with a Case
3.6.5.1.9 Third-Party Accessories
3.6.5.2 Describe the other accessories Proposer will provide with each radio. The portable shall have the ability to use third-party accessories. Describe the accessories kits that are available to allow third-party suppliers. List third-party suppliers that supply accessories for the portable radio.
3.6.6 Battery Chargers
3.6.6.1 Single Unit Charger
3.6.6.1.1 The charger shall come equipped with a 115/120 AC 60 Hz line cord with standard grounded plug.
3.6.6.1.2 The standard rate charger shall charge either a lithium ion battery alone, or the radio/battery combination in 16 hours or less from a totally discharged state. An indicator light shall indicate “charging” as well as “charging complete”.
3.6.6.1.3 Proposer shall also offer a r apid rate charger that charges a lithium ion battery alone, or the radio/battery combination at a rate faster than the standard rate charger. Proposer shall indicate the charge time for the rapid rate charger from a totally discharged state. An indicator light shall indicate “charging” as well as “charging complete”.
3.6.6.2 Multi-Unit Charger
3.6.6.2.1 This charger shall perform the tasks and operate as the single unit rapid rate charger above except that it shall handle a minimum of 4 such units at the same time. All indicators shall be provided per lithium ion battery charging pocket so the charging state of each battery in easily discernible. This unit shall have a common AC plug and on/off switch for all charging pockets.
3.6.6.3 Vehicular Chargers 259
RFP No. 10089713-21-K Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit F
21 3.6.6.3.1 The charger shall charge either a lithium io n battery alone, or the radio/battery combination in two hours or less from a totally discharged state.
3.6.6.3.2 The charger shall come equipped with an adapter for 12-volt DC power with cable. Provide an explanation of any additional capabilities the charger provides.
3.7 Control Stations
3.7.1 Configuration
3.7.1.1 The Proposer shall provide both standalone tabletop and remote- control configurations. The antenna cabling and the remote -to- radio cable shall be provided separately.
3.7.1.2 Each control station system shall consist of a mobile type radio unit meeting the specifications for the mobile radios, an AC power supply specified herein, pl us 3db outdoor antenna with an N - female connector and all necessary hardware, materials and labor needed for a complete and acceptable installation.
3.7.2 Physical Characteristics
3.7.2.1 The radio physical characteristics shall be the same as identified in section 3.5.3.
3.7.2.2 Operating Temperature
3.7.2.3 The radio shall perform without degradation over the temperature range of -30 C to +60 C.
3.7.3 RF Specifications
3.7.3.1 The transmitter and receiver specifications shall be the same as in the related subsections of section 3.5.
3.7.4 Antenna
3.7.4.1 The basic control station antenna shall be an omnidirectional, 3 dB gain, installed outside the location (roof or wall mount) of the control station.
3.7.4.2 Proposer shall also provide a directional antenna option that can be installed outside the location (roof or wall mount) of the control station.
3.7.5 Accessories Options
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Exhibit F
22 3.7.5.1 The Proposer shall offer additional control station accessories, including, but not limited to:
3.7.5.1.1 Remote-to-Radio Audio Control Cable (per Foot)
3.7.5.1.2 Remote Speakers
3.7.5.1.3 Remote Deskset (up to 10)
3.7.5.2 Describe the other accessories that the Proposer shall provide for each control station for the City.
3.7.5.3 The control station shall have the ability to use third-party accessories. Describe the accessories kits that are available to allow third-party suppliers. List third-party suppliers that supply accessories for the control station.
3.7.6 Desk Sets and Interfaces – Physical Interface
3.7.6.1 Display must be able to provide talk group information and incoming call information.
3.7.6.2 Handset and speaker capability.
3.7.6.3 Connections for extra amplified speaker.
3.7.6.4 Individual volume control.
3.7.6.5 Intercom capability between desk sets.
3.7.6.6 Foot switch
3.7.6.7 Headset
3.7.7 Desk Sets and Interfaces – Interface/Controller/Panel Capability
3.7.7.1 Desk set to interface/controller/panel
3.7.7.1.1 Remote capability up to 300 feet
3.7.7.1.2 Up to 10 desk sets connection to interface/controller/panel to a single control station and interface.
3.7.7.2 RF unit to Interface/Controller/panel
3.7.7.2.1 Remote capability up to 300 feet
3.7.8 Desk Set Capabilities
3.7.8.1 Change radio group from any desk set
261
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Exhibit F
23 3.7.8.2 Interface can either alias remote channels or import radio channel names from radio which the interface is connect to for display on desk set.
3.7.8.3 Display UID of transmitting radio
3.7.8.4 Proposer is to provide details of how their desk set interface a control stations, any limitation on the make and model of control stations. Proposer shall provide a list of other capabilities beyond those listed above that a standard desk set interface to a control station will provide.
3.8 Subscriber Licensing
3.8.1 The Proposer is to provide all licensing costs that are associated with any of the Basic, Advanced, or Enhanced features. All licensing to enable the feature or function to operate at the various tiers should be included.
3.8.2 The Proposer should include a list and cost of all licensing associated with the use of a subscriber radio.
3.9 Subscriber Software Feature Upgrades
3.9.1 The Proposer is to provide all software feature upgrade costs that are associated with any of the Basic, Advanced, or Enhanced features. All costs to enable the feature or function to operate at the various tiers should be included.
3.9.2 The Proposer should include a list and cost of all software feature upgrades available for the subscriber radios provided.
3.10 Subscriber Applications
3.10.1 The Proposer is to provide all appl ication costs that are associated with any of the Basic, Advanced , or Enhanced features. All costs to enable the applications to operate at the various tiers should be included.
3.10.2 The Proposer should include a list and cost of all applications available for the subscriber radios provided.
3.11 Subscriber Programming
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Exhibit F
24 3.11.1 The Proposer should include a list and costs of all software and hardware required to program the proposed subscriber radios.
3.11.2 The Proposer should include a list and costs of all software and hardware required to modify the enable encryption of the proposed subscriber radios.
3.12 Subscriber Radio Offering Documentation
3.12.1 Provide datasheets and product descriptions for all subscriber radios offered for the City’s Radio System. Provide documentation on a per- tier basis, as described in section 3.3.
263
RFP No. 10089713-21-K
Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit G
1 EXHIBIT G – ACRONYMS
AES Advanced Encryption Standard
ANSI American National Standards Institute
ASR Astro Site Repeater
AVL Automatic Vehicle Locator
CPRA California Public Records Act
CSV Comma Separated Value
DES Data Encryption Standard
DTMF Dual Tone Multi Frequency
FCC Federal Communications Commission
FDMA Frequency Division Multiple Access
GPS Global Positioning System
IRS IntelliRepeater
IRS Inland Revenue Service
LG Life Guard
LTE Long Term Evolution
MHz Mega Hertz
MSRP Manufacturer's Suggested Retail Price
OEM Original Equipment Manufacturer
OTAP Over The Air Programming
OTAR Over The Air Rekeying
P25 Project 25
P&C Purchasing & Contracting
264
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Radio Communication, Emergency Response and Mobile Interoperability equipment and Supporting Services
Exhibit G
2 PDF Portable Document Format
PTT Push to Talk Transaction
RF Radio Frequency
RFP Request for Proposal
SDFD San Diego Fire Department
SDMC San Diego Municipal Code
SDPD San Diego Police Department
SINAD Signal to Noise And Distortion ratio
SME Subject Matter Expert
SSN Social Security Number
STP San Diego Sewage Treatment Plant
TDMA Time Division Multiple Access
TIA Telecommunications Industry Association
TIN Taxpayer Identification Number
UHF Ultra High Frequency
VHF Very High Frequency
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1 Communications System and Services Agreement
Motorola Solutions, Inc. (“Motorola”) and the City of Murrieta (“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 “System Acceptance Certificate”
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 C will be reso lved 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 syste m, 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).
“Confidential Information” means all information consistent with the fulfillment of this Agreement that is (i) disclosed under this Agreement in oral, written, graphic, mach ine 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 d ocument 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.
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2 “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 mainten ance, 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.
“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 “freew are” 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 practic es 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 fu rther described in the applicable Addendum and/or SOW.
“Software” (i) means proprietary software in object code format, and adaptations, translations, de - compilations, 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 267
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3 third 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.
“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 f rom 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 Part ies 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 268
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4 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 co mmencement, 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 additional Equipmen t will pass at shipment, warranty will commence upon delivery, and payment is due within t hirty (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 the Motorola Solutions Customer Portal eCommerce Shop, and this Agreement will be the “Underlying Agreement” for those eCommerce transactions rather than the eCommerce Shop Terms and Conditions of Sale. eCommerc e Shop registration and other information may be found at https://www.motorolasolutions.com/en_us/registration and the shop support 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 own er 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 an d 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 Pric ed 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 exerci se 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 go vern 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 neg otiated 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.
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 269
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5 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 s uch 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 Sup port 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 “I nstallation 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.
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 propri etary, 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 pro viding 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 upo n 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. 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.
4.7. 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, 270
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6 subscription fees, project schedule, Deliverables, or other changes may be necessary.
4.8. NON-PRECLUSION. If, as a result of the Service s 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.
4.9. PROPRIETARY MATERIALS. Customer acknowledges that Motorola may use and/or provide Customer w ith 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 P roprietary Materials and Derivative Proprietary Materials.
4.10. 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 p ay 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 inc lude on invoices for payment in accordance with this Agreement.
6.2. CONTRACT PRICE. The Contract Price in U.S. dollars is $ 1,222,876.30. If applicable, a pricing summary is included with the Payment schedule in Exhibit B. Motorola has priced the Services, Software, 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 profes sional, 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 invoic e. 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:
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7 Name:___City of Murrieta, Police Department, ATTN: Dawnn Jackson______________________ Address:_2 Town Square, Murrieta, CA 92562________________________________________ Phone:__(951) 461-6321_________________________________________________________
E-INVOICE. To receive invoices via email:
Customer Account Number:____________________________________________________________ Customer Accounts Payable Email:[email protected]______________________________ Customer CC(optional) Email: _______________________________________________________ ___
The address which is the ultimate destination where the Equipment will be delivered to Customer is:
Name:____Murrieta Police Department, ATTN: Captain Phil Gomez______________________________ Address:_2 Town Square, Murrieta, CA 92562_______________________________________________
The Equipment will be shipped to the Customer at the following address (insert if this information is known):
Name:____Murrieta Police Department, ATTN: Captain Phil Gomez______________________________ Address:_2 Town Square, Murrieta, CA 92562_______________________________________________ Phone:__(951) 461-6356________________________________________________________________
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 p erform 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 s ites 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 th e 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 will prom ptly 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. 272
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8 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 Certifica te. If the Accept ance 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 pro mptly 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 Custom er 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 ab ility to perform its implementation and testing responsibilities may be impeded if Customer begins using the System before System Acceptance. 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 operat ion 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 a ddition 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 Equipme nt 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. 273
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9 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 ack nowledges 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 ch oosing 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 val id 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 v alid, 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 replac ed 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.
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 disc overs 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 B Y CUSTOMER. If Customer (including its other contractors) delays the Performance Schedule, it will make the promised payments according to the 274
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10 Payment schedule as if no delay occurred; and the Parties will execute a change order to extend the Performance S chedule 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 Pa rties 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 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 an d 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 irrevoca bly 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 la ches, 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.
13.2. FAILURE TO CURE. If a defaulting Party fails to cure the default as provided above in Section 275
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11 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 real or personal 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 liabiliti es 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 Motor ola 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 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 neg otiations 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 b ecomes 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, spe cifications, guidelines or instructions, if the alleged infringement would not have 276
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12 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.
Section 15 LIMITATION OF LIABILITY
Except for personal injury or death, Motorola's total liability, whether for breach of contract, warran ty, 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 whic h 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 e xceed 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 thr ee (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, emp loyees 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 confidentia lity 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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13 16.1.2. Recipient is not obligated to maintain as confidential, Confide ntial 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 th is 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 deriv ative 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.
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 w ill 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 prope rty of Motorola and all right, title and 278
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14 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 oth er 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 rig ht 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 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 affi liates, 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 r ight 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 o f 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 gi ven 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.
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15 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 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 REQU IREMENTS. 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 t o 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 Crede ntials 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 Use r 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 (Di sputes); Section 15 (Limitation of Liability); and Section 16 (Confidentiality and Proprietary Rights); and all of the General provisions in Section 17.
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 shal l 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 280
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16 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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17 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 techni cal 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 f reely 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.
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, de - compilations, 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 "Softwar e" 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 deliver y 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.
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18 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 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, back -up, or disaster recovery purposes; provided that Licensee may not ope rate 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 M otorola 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 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 licens e 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 Licen see's facility and 283
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19 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, inc luding, 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 de veloped, 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 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 opti on, 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 284
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20 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, a nd Licensee and the 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 ackn owledges 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 grant ed 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 onl y if: (i) Licensee transfers all copies of 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 285
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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, ship or reship, or divert, thr ough 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 r egulations 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.
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22 13.7. SURVIVAL. Sections 4, 5, 6.4, 7, 8, 9, 10, 11 and 13 survive the termination of this Agreement.
13.8. ORDER OF PRECEDENCE. In the event of inconsistencies between this Exhibit and the Prima ry 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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23 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. 25% of the Contract Price due upon contract execution (due upon effective date);
2. 60% of the Contract Price due upon shipment of equipment from Staging;
3. 10% of the Contract Price due upon installation of equipment; and
4. 5% of the Contract Price due upon Final Acceptance.
If Subscribers are purchased, 100% of the Subscriber Contract Price will be invoiced upon shipment (as shipped).
Motorola shall make partial ship ments 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 s hipped/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.
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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24 EXHIBIT C
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: ________________________________
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: ________________________________ 289
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Subscription Services Addendum
This Subscription Services Addendum to the Communications System and Services Agreement or other previously executed and currently in force agreement, as applicable (“Primary Agreement”) is entered into between Motorola Solutions, Inc., with offices at 500 W. Monroe Street, Suite 4400, Chicago, IL 60661 (“Motorola”) and the entity set forth in the signature block below or in the Primary Agreement (“Customer”) (“SSA”). Capitalized terms used in this SSA, but not defined herein, will have the meanings set forth in the Primary Agreement.
1. Addendum.
1.1. Scope. This SSA governs Customer’s purchase of Subscription Services (and, if set forth in an Ordering Document, related Services) from Motorola and provides additional and/or different terms and conditions that govern the sale of Subscription Services. This SSA will be subject to, and governed by, the terms of the Primary Agreement. To the extent there is a conflict or inconsistency between the terms and conditions of the SSA and an associated Ordering Document, the terms and conditions of the Ordering Document will take precedence over the SSA. Additional Subscription Services-specific Addenda or other terms and conditions may apply to certain Subscription Services, where such terms are provided or presented to Customer.
1.2. Definitions. Capitalized terms used in this SSA shall have the following meanings:
1.2.1. “Authorized Users” shall mean Customer’s employees, full -time contractors engaged for the purpose of supporting the Subscription Services that are not competitors of Motorola, and the entities (if any) specified in an Ordering Document or otherwise approved by Motorola in writing (email from an authorized Motorola signatory accepted), which may include affiliates or other Customer agencies.
1.2.2. “Customer Contact Data” shall mean data Motorola collects from Customer, its Authorized Users, and their end users for business contact purposes.
1.2.3. “Customer Data” shall mean data, information, and content, including images, text, videos, documents, audio, telemetry and structured data base records, provided by, through, or on behalf of Customer, its Authorized Users, and their end users thr ough the use of the Subscription Services. Customer Data does not include Customer Contact Data, Service Use Data, or information from publicly available sources or other Third-Party Data or Motorola Data;
1.2.4. “Customer-Provided Equipment” shall mean certain components, including equipment and software, not provided by Motorola that may be required for use of the Subscription Services.
1.2.5. “Documentation” shall mean documentation for the Subscription Services, Motorola Software, or data that specifies technical an d performance features, capabilities, users, or operation, including training manuals, and other deliverables, such as reports, specifications, designs, plans, drawings, analytics, or other information.
1.2.6. “Equipment” shall mean hardware provided by Motorola.
1.2.7. “Feedback” shall mean comments or information, in oral or written form, given to Motorola by Customer or Authorized Users, including their end users, in connection with or relating to the Products or Services.
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1.2.8. “Fees” shall mean fees and charges applicable to the Subscription Services and set forth in an Ordering Document.
1.2.9. “Motorola Data” shall mean data owned or licensed by Motorola;
1.2.10. “Ordering Documents” shall mean statements of work, technical specifications, and other ordering documents setting forth the Subscription Services to be purchased by Customer and provided by Motorola.
1.2.11. “Process” or “Processing” shall mean any operation or set of operations which is performed on personal information or on sets of personal information, whether or not by automated means, such as collection, recording, copying, analyzing, caching, organization, structuring, storage, adaptation, or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combinati on, restriction, erasure or destruction.
1.2.12. “Service Use Data” shall mean data generated by Customer’s use of the Subscription Services or by Motorola’s support of the Subscription Services, including personal information, location, monitoring and recording activity, product performance and error information, activity logs and date and time of use;
1.2.13. “Subscription Services” shall mean hosted software -as-a-service provided to Customer, and other software which is either preinstalled on Equipment or installed on Customer-Provided Equipment and licensed to Customer by Motorola on a subscription basis.
1.2.14. “Subscription Software” shall mean software which is either preinstalled on Equipment or installed on Customer -Provided Equipment and licensed to Customer by Motorola on a subscription basis associated with the Subscription Services.
1.2.15. “Third-Party Data” shall mean information obtained by Motorola from publicly available sources or its third party content providers and made available to Customer through the Subscription Services.
2. Delivery of Subscription Services.
2.1. Delivery. During the applicable Subscription Term (as defined below), Motorola will provide to Customer the Subscription Services set forth in an Ordering Document, in accordance with the terms of this SSA. Motorola will provide Customer advance notice (which may be provided electronically) of any planned downtime. Delivery will occur upon Customer’s receipt of credentials required for access to the Subscription Services or upon Motorola otherwise providing access to the Subscription Services. If agreed upon in an Ordering Document, Motorola will also provide Services related to such Subscription Services.
2.2. Modifications. Motorola may modify the Subscription Services, any associated recurring Services and any related systems so long as their functionality (as descr ibed in the applicable Ordering Document) is not materially degraded. Documentation for the Subscription Services may be updated to reflect such modifications. For clarity, new features or enhancements that are added to any Subscription Services may be subject to additional Fees.
2.3. User Credentials . If applicable, Motorola will provide Customer with administrative user credentials for the Subscription Services, and Customer will ensure such administrative user credentials are accessed and used only by Customer’s employees with training on their proper use.
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of all user credentials, including any administrative user credentials, and maintain user credential validity, including by updating passwords. Customer will be liable for any use of the Subscription Services through such user credential (including through any administrative user credentials), including any changes made to the Subscription Services or issues or user impact arising therefrom.
To the extent Motorola provides Services to Customer in order to help resolve issues resulting from changes made to the Subscription Services through user credentials, including through any administrative user credentials, or issues otherwise created by Authorized Users, such Services will be billed to Customer on a time and materials basis, and Customer will pay all invoices in accordance with the payment terms provided herein.
2.4. Beta Services. If Motorola makes any beta version of a software application (“Beta Service”) available to Customer, Customer may choose to use such Beta Service at its own discretion, provided, however, that Customer will use the Beta Service solely for purposes of Customer’s evaluation of such Beta Service, and for no other purpose. Customer acknowledges and agrees that all Beta Services are offered “as -is” and without any representations or warranties or other commitments or protections from Motorola. Motorola will determine the duration of the e valuation period for any Beta Service, in its sole discretion, and Motorola may discontinue any Beta Service at any time. Customer acknowledges that Beta Services, by their nature, have not been fully tested and may contain defects or deficiencies.
2.5. Equipment Title. Unless Customer is purchasing equipment pursuant to the terms in the Primary Agreement and unless stated differently in this SSA or in the Ordering Documents, title to any Equipment provided to Customer in connection with the Subscription Service s remains vested in Motorola at all times. Any sale of equipment pursuant to this SSA will be governed by the terms and conditions set forth in the Primary Agreement.
3. Subscription Software License, Restrictions, and Obligations.
3.1. Subscription Software License. Subject to Customer’s and its Authorized Users’ compliance with this SSA, including payment terms, Motorola hereby grants Customer and its Authorized Users a limited, non-transferable, non-sublicenseable, and non-exclusive license to use the Subscription Software identified in an Ordering Document, and the associated Documentation, solely for Customer’s internal business purposes. The foregoing license grant will be limited to use in the territory and to the number of licenses set forth in an Ordering Document (if applicable), and will continue for the applicable Subscription Term. Customer may access, and use the Subscription Software only in Customer’s owned or controlled facilities, including any authorized mobile sites; provided, however, that Authorized Users using authorized mobile or handheld devices may also log into and access the Subscription Services remotely from any location. No custom development work will be performed under this Addendum.
3.2. End User Licenses . Notwithstanding any pr ovision to the contrary in this SSA, certain Subscription Software is governed by a separate license, EULA, or other agreement, including terms governing third-party software, such as open source software, included in the Subscription Software.
Customer wi ll comply, and ensure its Authorized Users comply, with such additional license agreements.
3.3. Customer Restrictions . Customers and Authorized Users will comply with the applicable Documentation and the copyright laws of the United States and all other rele vant jurisdictions in connection with their use of the Subscription Services. Customer will not, and will not allow others including the Authorized Users, to make the Subscription Software and Subscription Services available for use by unauthorized third p arties, including via a commercial rental or sharing arrangement; reverse engineer, disassemble, or reprogram software used to provide the Subscription Software or Subscription Services or any portion thereof to a human -readable form; 292
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modify, create derivative works of, or merge the Subscription Software or software used to provide the Subscription Software or Subscription Services with other software; copy, reproduce, distribute, lend, or lease the Subscription Software, Subscription Services or Documentation for or to any third party; take any action that would cause the Subscription Software, software used to provide the Subscription Services, or Documentation to be placed in the public domain; use the Subscription Software or Subscription Services to compete with Motorola; remove, alter, or obscure, any copyright or other notice; share user credentials (including among Authorized Users); use the Subscription Software or Subscription Services to store or transmit malicious code; or attempt to gain unauthorized access to the Subscription Software, Subscription Services or its related systems or networks.
3.4. Customer-Provided Equipment. Customer will be responsible, at its sole cost and expense, for providing and maintaining the Customer -Provided Equipment in good working order. Customer represents and warrants that it has all rights in Customer-Provided Equipment to permit Motorola to access and use the applicable Customer-Provided Equipment to provide the Subscription Services under this SSA, and such access and use will not violate any laws or infringe any third -party rights (including intellectual property rights). Customer (and not Motorola) will be fully liable for Customer- Provided Equipment, and Customer will immediately notify Motorola of any Customer -Provided Equipment damage, loss, change, or theft that may impact Motorola’s ability to provide the Subscription Services under this SSA, and Customer acknowledges that any such events may cause a change in the Fees or performance schedule under the applicable Ordering Document.
3.5. Non-Motorola Content. In certain instances, Customer may be permitted to access, use, or integrate Customer or third -party software, services, content, and data that is not provided by Motorola (collectively, “Non -Motorola Content”) w ith or through the Subscription Services . If Customer accesses, uses, or integrates any Non -Motorola Content with the Subscription Services, Customer will first obtain all necessary rights and licenses to permit Customer’s and its Authorized Users’ use of the Non-Motorola Content in connection with the Subscription Services. Customer will also obtain the necessary rights for Motorola to use such Non -Motorola Content in connection with providing the Subscription Services, including the right for Motorola to access, store, and process such Non-Motorola Content, and to otherwise enable interoperation with the Subscription Services.
Customer represents and warrants that it will obtain the foregoing rights and licenses prior to accessing, using, or integrating the applicable Non-Motorola Content with the Subscription Services, and that Customer and its Authorized Users will comply with any terms and conditions applicable to such Non -Motorola Content. If any Non -Motorola Content require access to Customer Data (as defined below), Customer hereby authorizes Motorola to allow the provider of such Non -Motorola Content to access Customer Data, in connection with the interoperation of such Non -Motorola Content with the Subscription Services. Customer acknowledges and agr ees that Motorola is not responsible for, and makes no representations or warranties with respect to, the Non -Motorola Content (including any disclosure, modification, or deletion of Customer Data resulting from use of Non-Motorola Content or failure to properly interoperate with the Subscription Services). If Customer receives notice that any Non -Motorola Content must be removed, modified, or disabled within the Subscription Services, Customer will promptly do so. Motorola will have the right to disable or remove Non-Motorola Content if Motorola believes a violation of law, third-party rights, or Motorola’s policies is likely to occur, or if such Non -Motorola Content poses or may pose a security or other risk or adverse impact to the Subscription Services, Motorola, Motorola’s systems, or any third party (including other Motorola customers). Nothing in this Section will limit the exclusions set forth in Section 14.3 – Intellectual Property Infringement of the Primary Agreement.
4. Term.
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4.1. Subscription Terms. The duration of Customer’s subscription to the Subscription Services and any associated recurring Services ordered under this SSA (or the first Subscription Services or recurring Service, if multiple are ordered at once) will commence upon delivery of such Subscription Services (and recurring Services, if applicable) and will continue for a twelve (12) month period or such longer period identified in an Ordering Document (the “Initial Subscription Period”). Following the Initial Subscription Period, Customer’s subscription to the Subscription Services and any recurring Services will automatically renew for additional twelve (12) month periods (each, a “Renewal Subscription Year”), unless either Party notifies the other Party of its intent not to renew at least thirty (30) days before the conclusion of the then -current Subscription Term. (The Initial Subscription Period and each Renewal Subscription Year will each be referred to herein as a “Subscription Term”.) Motorola may increase Fees prior to any Renewal Subscription Year. In such case, Motorola will notify Customer of such proposed increase no later than thirty (30) days prior to commencement of such Renewal Subscription Year. Unless otherwise specified in the applicable Ordering Document, if Customer orders any additional or subsequent Subscription Services or recurring Services under this SSA during an in-process Subscription Term, the subscription for each such additional or subsequent Subscription Services or recurring Service will (a) commence upon delivery of such Subscription Services or recurring Service, and continue until the conclusion of Customer’s then-current Subscription Term (a “ Partial Subscription Year”), and (b) automatically renew for Renewal Subscription Years thereafter, unless either Par ty notifies the other Party of its intent not to renew at least thirty (30) days before the conclusion of the then -current Subscription Term. Thus, unless otherwise specified in the applicable Ordering Document, the Subscription Terms for all Subscription Services and recurring Services hereunder will be synchronized.
4.2. Term. The term of this SSA (the “ SSA Term”) will commence upon either (a) the Effective Date of the Primary Agreement, if this SSA is attached to the Primary Agreement as of such Effective Date, or (b) the SSA Date set forth on the signature page below, if this SSA is executed after the Primary Agreement Effective Date, and will continue until the expiration or termination of all Subscription Terms under this SSA, unless this SSA or the Primary Agreement is earlier terminated in accordance with the terms of the Primary Agreement.
4.3. Termination. Notwithstanding the termination provisions of the Primary Agreement, Motorola may terminate this SSA (or any Addendum or Ordering Documents hereunder), or suspend delivery of Subscription Services or Services, immediately upon notice to Customer if (a) Customer breaches Section 3 – Subscription Software License and Restrictions of this SSA, or any other provision related to Subscription Services terms of se rvice, Subscription Software license scope, or other terms set forth in an Addendum or Ordering Document, or (b) it determines that Customer’s use of the Subscription Services poses, or may pose, a security or other risk or adverse impact to any Subscription Services, Motorola, Motorola’s systems, or any third party (including other Motorola customers). Customer acknowledges that Motorola made a considerable investment of resources in the development, marketing, and distribution of the Subscription Services and Documentation, and that Customer’s breach of this SSA will result in irreparable harm to Motorola for which monetary damages would be inadequate. If Customer breaches this SSA, in addition to termination, Motorola will be entitled to all available remedies at law or in equity (including immediate injunctive relief).
4.4. Return of Discount. If Customer is afforded a discount in exchange for a term commitment longer than one -year, early termination by Customer will result in an early termination fee, representing a return of the discount off of list price.
4.5. Cancellation Fee. If a minimum Initial Subscription Period applies and Customer terminates prior to the end of the minimum Initial Subscription Period , Customer will be required to pay a cancellation fee o f up to fifty percent (50%) of the remaining balance of subscription fees for the minimum Initial Subscription Period.
294
Subscription Services Addendum 6
4.6. No Refund. If a subscription is terminated for any reason prior to the end of the Subscription Term, other subscription period set forth in the Ordering Documents, or otherwise agreed to in writing by the Parties, no refund or credit will be provided.
4.7. Suspension of Services. Motorola may terminate or suspend any Subscription Services or Services under an Ordering Document if Motorola determines: (a) the related Subscription Software license has expired or has terminated for any reason; (b) the applicable Subscription Services i s being used on a hardware platform, operating system, or version not approved by Motorola; (c) Customer fails to make any payments when due; or (d) Customer fails to comply with any of its other obligations or otherwise delays Motorola’s ability to perform.
4.8. Wind Down of Subscription Services . In addition to the termination rights in the Primary Agreement, Motorola may terminate any Ordering Document and Subscription Term, in whole or in part, in the event Motorola plans to cease offering the applicable Subscription Services or Services to customers.
4.9. Effect of Termination or Expiration . Upon termination for any reason or expiration of the Primary Agreement, this SSA, an Addendum, or an Ordering Document, Customer and the Authorized Users will return or destroy (at Motorola’s option) all Motorola Materials and Motorola’s Confidential Information in their possession or co ntrol and, as applicable, provide proof of such destruction. If Customer has any outstanding payment obligations under this SSA, Motorola may accelerate and declare all such obligations of Customer immediately due and payable by Customer.
Notwithstanding t he reason for termination or expiration, Customer must pay Motorola for Subscription Services already delivered. Customer has a duty to mitigate any damages under this SSA, including in the event of default by Motorola and Customer’s termination of this SSA.
5. Payment.
5.1. Payment. Unless otherwise provided in an Ordering Document (and notwithstanding the provisions of the Primary Agreement), Customer will prepay an annual subscription Fee set forth in an Ordering Document for each Subscription Services and associated recurring Service, before the commencement of each Subscription Term. For any Partial Subscription Year, the applicable annual subscription Fee will be prorated based on the number of months in the Partial Subscription Year.
The annual subscription Fee for Subscription Services and associated recurring Services may include certain one -time Fees, such as start -up fees, license fees, or other fees set forth in an Ordering Document. Motorola will have the right to suspend the Subscription Services and a ny recurring Services if Customer fails to make any payments when due.
5.2. No Price Guarantee. Notwithstanding any language to the contrary, the pricing and Fees associated with this SSA will not be subject to any most favored pricing commitment or other similar low price guarantees.
5.3. Taxes. The Fees do not include any excise, sales, lease, use, property, or other taxes, assessments, duties, or regulatory charges or contribution requirements (collectively, “Taxes”), all of which will be paid by Customer, except as exempt by law, unless otherwise specified in an Ordering Document. If Motorola is required to pay any Taxes, Customer will reimburse Motorola for such Taxes (including any interest and penalties) within thirty (30) days after Customer’s receipt of an invoice therefore. Customer will be solely responsible for reporting the Subscription Services for personal property tax purposes, and Motorola will be solely responsible for reporting taxes on its income and net worth.
5.4. Invoicing. Motorola will invoice Customer at the frequency set forth in the applicable Addendum or Ordering Document, and Customer will pay all invoices within thirty (30) days of the 295
Subscription Services Addendum 7
invoice date or as otherwise specified in the applicable Addendum or Ordering Doc ument. Late payments will be subject to interest charges at the maximum rate permitted by law, commencing upon the due date. Motorola may invoice electronically via email, and Customer agrees to receive invoices via email at the email address set forth in an Ordering Document. Customer acknowledges and agrees that a purchase order or other notice to proceed is not required for payment for the Subscription Services.
5.5. License True -Up. Motorola will have the right to conduct an audit of total user licenses credentialed by Customer for any Subscription Services during a Subscription Term, and Customer will cooperate with such audit. If Motorola determines that Customer’s usage of the Subscription Services during the applicable Subscription Term exceeded the total number of licenses purchased by Customer, Motorola may invoice Customer for the additional license s used by Customer, pro - rated for each additional license from the date such license was activated, and Customer will pay such invoice in accordance with the payment terms in the Primary Agreement.
6. Liability.
6.1. ADDITIONAL EXCLUSIONS. THE SUBSCRIPTION SERVICES ARE PROVIDED “AS -IS”.
IN ADDITION TO THE EXCLUSIONS FROM DAMAGES SET FORTH IN THE PRIMARY
AGREEMENT, AND NOTWITHSTANDING ANY PROVISION OF PRIMARY AGREEMENT TO THE
CONTRARY, MOTOROLA WILL HAVE NO LIABILITY FOR (A) INTERRUPTION OR FAILURE OF CONNECTIVITY, VULNERABILITIES, OR SECURITY EVENTS; (B) DISRUPTION OF OR DAMAGE TO CUSTOMER’S OR THIRD PARTIES’ SYSTEMS, EQUIPMENT, OR DATA, INCLUDING DENIAL
OF ACCESS TO USERS, OR SHUTDOWN OF SYSTEMS CAUSED BY INTRUSION DETECTION SOFTWARE OR HARDWARE; (C) AVAILABILITY OR ACCURACY OF ANY DATA AVAILABLE
THROUGH THE SUBSCRIPTION SOFTWARE OR SERVICES, OR INTERPRETATION, USE, OR MISUSE THEREOF; (D) TRACKING AND LOCATION-BASED SERVICES; (E) BETA SERVICES; (F) CUSTOMER DATA, INCLUDING ITS TRANSMISSION TO MOTOROLA, OR ANY OTHER DATA AVAILABLE THROUGH THE SUBSCRIPTION SERVICES; (G) CUSTOMER-PROVIDED
EQUIPMENT, NON-MOTOROLA CONTENT, THE SITES, OR THIRD-PARTY EQUIPMENT,
HARDWARE, SOFTWARE, DATA, OR OTHER THIRD-PARTY MATERIALS, OR THE COMBINATION OF SUBSCRIPTION SERVICES WITH ANY OF THE FOREGOING; (H) LOSS OF DATA OR HACKING; (I) MODIFICATION OF SUBSCRIPTION SERVICES BY ANY PERSON OTHER THAN MOTOROLA; (J) RECOMMENDATIONS PROVIDED IN CONNECTION WITH THE SUBSCRIPTION SERVICES; (K) DATA RECOVERY SERVICES OR DATABASE MODIFICATIONS; OR (L) CUSTOMER’S OR ANY AUTHORIZED USER’S BREACH OF THIS SSA OR MISUSE OF THE SUBSCRIPTION SERVICES.
6.2. Voluntary Remedies . Motorola is not obligated to remedy, repair, replace, or refund the purchase price for the disclaimed or excluded issues in the Primary Agreement or Section 6.1 – Additional Exclusions above, but if Motorola agrees to provide Services to help resolve suc h issues, Customer will reimburse Motorola for its reasonable time and expenses, including by paying Motorola any Fees set forth in an Ordering Document for such Services, if applicable.
7. Proprietary Rights; Data; Feedback.
7.1. Motorola Materials. Customer acknowledges that Motorola may use or provide Customer with access to software, tools, data, and other materials, including designs, utilities, models, methodologies, systems, and specifications, which Motorola has developed or licensed from third parties (including any corrections, bug fixes, enhancements, updates, modifications, adaptations, translations, de-compilations, disassemblies, or derivative works of the foregoing, whether made by Motorola or another party) (collectively, “Motorola Materials”). T he Subscription Services, Motorola Data, Third -Party Data, and Documentation, are considered Motorola Materials. Except when 296
Subscription Services Addendum 8
Motorola has expressly transferred title or other interest to Customer by way of an Ordering Document or under the Primary Agreement, the Motorola Materials are the property of Motorola or its licensors, and Motorola or its licensors retain all right, title and interest in and to the Motorola Materials (including, all rights in patents, copyrights, trademarks, trade names, trade secrets, know- how, other intellectual property and proprietary rights, and all associated goodwill and moral rights).
For clarity, this SSA does not grant to Customer any shared development rights in or to any Motorola Materials or other intellectual property, and Customer agrees to execute any documents and take any other actions reasonably requested by Motorola to effectuate the foregoing. Motorola and its licensors reserve all rights not expressly granted to Customer, and no rights, other than those expressly granted herein, are granted to Customer by implication, estoppel or otherwise. Customer will not modify, disassemble, reverse engineer, derive source code or create derivative works from, merge with other software, distribute, sublicense, sell, or export the Subscription Services or other Motorola Materials, or permit any third party to do so.
7.2. Ownership of Customer Data . Customer retains all right, title and interest, including intellectual property rights, if any, in and to Customer Data. Motorola acquires no rights to Customer Data except those rights granted under this SSA including the right to Process and use the Customer Data as set forth in Section 7.3 – Processing Customer Data below and in other applicable Addenda.
The Parties agree that with regar d to the Processing of personal information which may be part of Customer Data, Customer is the controller and Motorola is the processor, and may engage sub - processors pursuant to Section 7.3.3 – Sub-processors.
7.3. Processing Customer Data.
7.3.1. Motorola Use of Customer Data. To the extent permitted by law, Customer grants Motorola and its subcontractors a right to use Customer Data and a royalty-free, worldwide, non-exclusive license to use Customer Data (including to process, host, cache, store, reproduce, copy, modify, combine, analyze, create derivative works from such Customer Data and to communicate, transmit, and distribute such Customer Data to third parties engaged by Motorola) to (a) perform Services and provide Subscription Services under this SSA, (b) analyze the Customer Data to operate, maintain, manage, and improve Motorola products and services, and (c) create new products and services. Customer agrees that this SSA , along with the Documentation, are Customer’s complete and final documented instr uctions to Motorola for the processing of Customer Data. Any additional or alternate instructions must be agreed to according to the Change Order process. Customer represents and warrants to Motorola that Customer’s instructions, including appointment of M otorola as a processor or sub -processor, have been authorized by the relevant controller.
7.3.2. Collection, Creation, Use of Customer Data. Customer further represents and warrants that the Customer Data, Customer’s collection, creation, and use of the Customer Data (including in connection with the Subscription Services ), and Motorola’s use of such Customer Data in accordance with this SSA, will not violate any laws or applicable privacy notices or infringe any third-party rights (including intellectual proper ty and privacy rights). Customer also represents and warrants that the Customer Data will be accurate and complete, and that Customer has obtained all required consents, provided all necessary notices, and met any other applicable legal requirements with r espect to collection and use (including Motorola’s and its subcontractors’ use) of the Customer Data as described in this SSA.
7.3.3. Sub-processors. Customer agrees that Motorola may engage sub -processors who in turn may engage additional sub-processors to Process personal data in accordance with this SSA.
When engaging sub-processors, Motorola will enter into agreements with the sub-processors to bind them to data processing obligations to the extent required by law. 297
Subscription Services Addendum 9
7.4. Data Retention and Deletion. Except for anonymized Customer Data, as described above, or as otherwise provided under this SSA, Motorola will delete all Customer Data following termination or expiration of this SSA, the applicable Addendum , or Ordering Document, with such deletion to occur no later than ninety (90) days following the applicable date of termination or expiration, unless otherwise required to comply with applicable law. Any requests for the exportation or download of Customer Data must be made by Customer to Motorola in writing before ex piration or termination, subject to Section 17.7 – Notices of the Primary Agreement. Motorola will have no obligation to retain such Customer Data beyond expiration or termination unless the Customer has purchased extended storage from Motorola through a mutually executed Ordering Document.
7.5. Service Use Data. Customer understands and agrees that Motorola may collect and use Service Use Data for its own purposes, including the uses described below. Motorola may use Service Use Data to (a) operate, maintain, manage, and improve existing and create new products and services, (b) test products and services, (c) to aggregate Service Use Data and combine it with that of other users, and (d) to use anonymized or aggregated data for marketing, research or other business purposes. Service Use Data may be disclosed to third parties. It is Customer’s responsibility to notify Authorized Users of Motorola’s collection and use of Service Use Data and to obtain any required consents, provide all necessary notices, and mee t any other applicable legal requirements with respect to such collection and use, and Customer represents and warrants to Motorola that it has complied and will continue to comply with this Section.
7.6. Third-Party Data and Motorola Data. Motorola Data and Third-Party Data may be available to Customer through the Subscription Services . Customer and its Authorized Users may use Motorola Data and Third-Party Data as permitted by Motorola and the applicable Third -Party Data provider, as described in an Ordering D ocument or Subscription Services -specific Addendum.
Unless expressly permitted in the applicable Addendum, Customer will not, and will ensure its Authorized Users will not: (a) use the Motorola Data or Third-Party Data for any purpose other than Customer’s internal business purposes; (b) disclose the data to third parties; (c) “white label” such data or otherwise misrepresent its source or ownership, or resell, distribute, sublicense, or commercially exploit the data in any manner; (d) use such data in violation of applicable laws; (e) remove, obscure, alter, or falsify any marks or proprietary rights notices indicating the source, origin, or ownership of the data; or (f) modify such data or combine it with Customer Data or other data or use the data to build databases. Additional restrictions may be set forth in the applicable Addendum.
Any rights granted to Customer or Authorized Users with respect to Motorola Data or Third -Party Data will immediately terminate upon termination or expiration of the applicable Addendum, Ordering Document, or this SSA. Further, Motorola or the applicable Third-Party Data provider may suspend, change, or terminate Customer’s or any Authorized User’s access to Motorola Data or Third -Party Data if Motorola or such Third-Party Data provider believes Customer’s or the Authorized User’s use of the data violates this SSA, applicable law or Motorola’s agreement with the applicable Third-Party Data provider. Upon termination of Customer’s rights to use any Motorola Data or Third-Party Data, Customer and all Authorized Users will immediately discontinue use of such data, delete all copies of such data, and certify such deletion to Motorola. Notwithstanding any provision of this SSA to the contrary, Motorola will have no liability for Third -Party Data or Motorola Data available th rough the Subscription Services . Motorola and its Third -Party Data providers reserve all rights in and to Motorola Data and Third-Party Data not expressly granted in an Addendum or Ordering Document.
7.7. Feedback. Any Feedback provided by Customer is entirely voluntary, and will not create any confidentiality obligation for Motorola, even if designated as confidential by Customer. Motorola may use, reproduce, license, and otherwise distribute and exploit the Feedback without any obligation or payment to Custom er or Authorized Users and Customer represents and warrants that it has obtained all necessary rights and consents to grant Motorola the foregoing rights. 298
Subscription Services Addendum 10
7.8. Improvements; Products and Services. The Parties agree that, notwithstanding any provision of this SSA or Primary Agreement to the contrary, all fixes, modifications and improvements to the Subscription Services conceived of or made by or on behalf of Motorola that are based either in whole or in part on the Feedback, Customer Data, or Service Use Data (o r otherwise) are the exclusive property of Motorola and all right, title and interest in and to such fixes, modifications or improvements will vest solely in Motorola. Customer agrees to execute any written documents necessary to assign any intellectual property or other rights it may have in such fixes, modifications or improvements to Motorola.
7.9. Motorola as a Controller or Joint Controller . In all instances where Motorola acts as a controller of data, it will comply with the applicable provisions of the M otorola Privacy Statement at https://www.motorolasolutions.com/en_us/about/privacy-policy.html#privacystatement, as may be updated from time to time. Mo torola holds all Customer Contact Data as a controller and shall Process such Customer Contact Data in accordance with the Motorola Privacy Statement. In instances where Motorola is acting as a joint controller with Customer, the Parties will enter into a separate Addendum to the Primary Agreement to allocate the respective roles as joint controllers.
8. Security.
8.1. Industry Standard. Motorola will maintain industry standard security measures to protect the Subscription Services from intrusion, breach, or corru ption. During the term of this SSA , if the Subscription Services enables access to Criminal Justice Information (“CJI”), as defined by the Criminal Justice Information Services Security Policy (“CJIS”), Motorola will provide and comply with a CJIS Security Addendum. Any additional security measure desired by Customer may be available for an additional fee.
8.2. Background checks. Motorola will require its personnel that access CJI to submit to a background check based on submission of FBI fingerprint cards.
8.3. Customer Security Measures. Customer is independently responsible for establishing and maintaining its own policies and procedures and for ensuring compliance with CJIS and other security requirements that are outside the scope of the Subscription Services p rovided. Customer must establish and ensure compliance with access control policies and procedures, including password security measures. Further, Customer must maintain industry standard security measures.
Motorola disclaims any responsibility or liabili ty whatsoever for the security or preservation of Customer Data or Customer Contact Data once accessed or viewed by Customer or its representatives. Motorola further disclaims any responsibility or liability whatsoever that relates to or arise from Customer's failure to maintain industry standard security measures and controls, including but not limited to lost or stolen passwords. Motorola reserves the right to terminate the Subscription Services if Customer’s failure to maintain or comply with industry standard security and control measures negatively impacts the Subscription Services or Motorola’s own security measures.
8.4. Breach Response Plan. Both parties will maintain and follow a breach response plan consistent with the standards of their respective industries.
9. General Provisions.
9.1. Third-Party Beneficiaries. This SSA is entered into solely between, and may be enforced only by, the Parties. Each Party intends that this SSA will not benefit, or create any right or cause of action in or on behalf of, any entity other than the Parties. Notwithstanding the foregoing, a licensor or supplier of third-party software included in the software Products will be a direct and intended third- party beneficiary of this SSA.
299
Subscription Services Addendum 11
9.2. Cumulative Remedies. Except as specifically stated in this SSA, all remedies provided for in this SSA will be cumulative and in addition to, and not in lieu of, any other remedies available to either Party at law, in equity, by contract, or otherwise. Except as specifically stated in this SSA, the election by a Party of any remedy provided for in this SSA or otherwise available to such Party will not preclude such Party from pursuing any other remedies available to such Party at law, in equity, by contract, or otherwise.
9.3. Audit; Monitoring. Motorola will have the right to monitor and audit use of the Subscription Services, which may also include access by Motorola to Customer Data and Service Use Data.
Customer will provide notice of such monitoring to its Authorized Users and obtain any required consents, including individual end users, and will cooperate with Motorola in any monitoring or audit.
Customer will maintain during the Subscription Term, and for two (2) years thereafter, accurate records relating to any software licenses granted under this SSA to verify compliance with this SSA.
Motorola or a third party (“Audit or”) may inspect Customer’s and, as applicable, Authorized Users’ premises, books, and records. Motorola will pay expenses and costs of the Auditor, unless Customer is found to be in violation of the terms of this SSA, in which case Customer will be respon sible for such expenses and costs.
9.4. Survival. The following provisions will survive the expiration or termination of this SSA for any reason: Section 4 – Term; Section 5 – Payment; Section 6.1 – Additional Exclusions; Section 7 – Proprietary Rights; Data, Feedback, Section 8 – General Provisions, and where the context of any section indicates an intent that such section shall survive the term of this SSA, then such section shall survive.
END
300
1 Motorola – Cyber Addendum (11-18-2021)
301
Billing Address:
MURRIETA POLICE DEPT
24701 JEFFERSON
MURRIETA, CA 92562
US
Quote Date:08/04/2023
Expiration Date:10/04/2023
Quote Created By:
Lauren Kirkland
Lauren.Kirkland@
motorolasolutions.com
End Customer:
MURRIETA POLICE DEPT
Contract: 37723 - SoCAL PROMOTION
Line #
Item Number
Description
Qty
Term
List Price
Sale Price
Ext. Sale Price
APX™ NEXT
APX NEXT SINGLE BAND
1 H45TGT9PW8AN
APX NEXT SINGLE BAND
MODEL 4.5 PORTABLE*
125
$6,641.00
$3,984.60
$498,075.00
1a
QA00569AP
ADD: 7/800MHZ BAND
125
$0.00
$0.00
$0.00
1b
QA00570AW
ADD: VHF BAND+
125
$800.00
$480.00
$60,000.00
1c
H38DA
ADD: SMARTZONE
OPERATION
125
$1,320.00
$792.00
$99,000.00
1d
Q806CH
ADD: ASTRO DIGITAL CAI
OPERATION
125
$567.00
$340.20
$42,525.00
1e
Q361CD
ADD: P25 9600 BAUD
TRUNKING
125
$330.00
$198.00
$24,750.00
1f
QA00580BA
ADD: TDMA OPERATION
125
$495.00
$297.00
$37,125.00
1g
QA09001AM
ADD: WIFI CAPABILITY
125
$330.00
$198.00
$24,750.00
1h
Q629BD
ENH: AES ENCRYPTION
AND ADP
125
$523.00
$313.80
$39,225.00
1i
Q498BN
ENH: ASTRO 25 OTAR W/
MULTIKEY
125
$814.00
$488.40
$61,050.00
1j
Q173CA
ADD: SMARTZONE
OMNILINK
125
$0.00
$0.00
$0.00
1k
QA09030AA
ADD: MOTOROLA
HOSTED RADIOCENTRAL
W CPS*
125
$0.00
$0.00
$0.00
QUOTE-2192494
(125) APX NEXT + access
Any sales transaction following Motorola's quote is based on and subject to the terms and conditions of the valid and executed written contract between Customer and Motorola (the ""Underlying Agreement"") that authorizes Customer to purchase equipment and/or services or license software (collectively ""Products""). If no Underlying Agreement exists between Motorola and Customer, then Motorola's Standard Terms of Use and Motorola's Standard Terms and Conditions of Sales and Supply shall govern the purchase of the Products.
Motorola Solutions, Inc.: 500 West Monroe, United States - 60661 ~ #: 36-1115800
302
Line #
Item Number
Description
Qty
Term
List Price
Sale Price
Ext. Sale Price
1l
H636AB
ADD: APX NEXT
APPLICATION BUNDLE
PROMO+
125
-$300.00
-$300.00
-$37,500.00
1m
H637AB
ADD: RADIO CENTRAL
PROGRAMMING PROMO
CARVE OUT+
125
-$32.04
-$32.04
-$4,005.00
1n
QA09016AA
ADD: LTE FOR VERIZON
LTE SERVICE*
125
$0.00
$0.00
$0.00
2 SSV01P01407B
SMARTPROGRAMMING
PROMO+
125
1 YEAR
$75.00
$75.00
$9,375.00
3 SSV01P01406A
SMARTCONNECT
PROMO+
125
1 YEAR
$75.00
$75.00
$9,375.00
4 SSV01P01685B
ELIGIBLE FOR PROMO -
CC AWARE STARTER+
125
1 YEAR
$0.00
$0.00
$0.00
5 LSV01P03092A
RADIOCENTRAL
PROGRAMMING PROMO
125
1 YEAR
$32.04
$32.04
$4,005.00
6 LSV01S03082A
RADIOCENTRAL
PROGRAMMING
125
2 YEARS
$64.08
$64.08
$8,010.00
7 LSV01S03446A
APX NEXT DMS
ESSENTIAL
125
3 YEARS
$230.76
$138.46
$17,307.50
8 SSV01P01476A
SMARTLOCATE PROMO+
125
1 YEAR
$75.00
$75.00
$9,375.00
9 SSV01P01902A
SMARTMAPPING
PROMO+
125
1 YEAR
$75.00
$75.00
$9,375.00
10 PMPN4604A
CHARGER,CHGR
DESKTOP SINGLE UNIT
IMPRES 2 EXT US
125
$207.14
$155.36
$19,420.00
11 PMMN4136B
XVP830 REMOTE
SPEAKER MICROPHONE
NO CHANNEL KNOB
125
$486.00
$364.50
$45,562.50
Subtotal
$1,600,997.50
Total Discount Amount
$624,197.50
Estimated Tax
$83,254.72
Grand Total
$1,060,054.72(USD)
QUOTE-2192494
(125) APX NEXT + access
Any sales transaction following Motorola's quote is based on and subject to the terms and conditions of the valid and executed written contract between Customer and Motorola (the ""Underlying Agreement"") that authorizes Customer to purchase equipment and/or services or license software (collectively ""Products""). If no Underlying Agreement exists between Motorola and Customer, then Motorola's Standard Terms of Use and Motorola's Standard Terms and Conditions of Sales and Supply shall govern the purchase of the Products.
Motorola Solutions, Inc.: 500 West Monroe, United States - 60661 ~ #: 36-1115800
303
Pricing Summary
List Price Sale Price
Upfront Costs for Hardware, Accessories and Implementation (if applicable), plus Subscription Fee $1,573,757.50 $957,251.67 Year 2 Subscription Fee $13,620.00 $9,774.17
Year 3 Subscription Fee $13,620.00 $9,774.17
Grand Total System Price $1,600,997.50 $976,800.00
Notes:
●
Additional information is required for one or more items on the quote for an order.
+
Promotional pricing for 1 year Application Service trial.
Motorola's quote (Quote Number: ________________ Dated: ____________ ) is based on and subject to the terms and conditions of the valid and executed written contract between Customer and Motorola (the "Underlying Agreement") that authorizes Customer to purchase equipment and/or services or license software (collectively "Products"). If no Underlying Agreement exists between Motorola and Customer, then the following Motorola's Standard Terms of use and Purchase Terms and Conditions govern the purchase of the Products which is found at http://www.motorolasolutions.com/msi/omterms.
The Parties hereby enter into this Agreement as of the Effective Date.
Motorola Solutions, Inc.
Customer
By: ______________________________
By: ______________________________
Name: ___________________________
Name: ____________________________
Title: ____________________________
Title: ____________________________
Date: ____________________________
Date: ____________________________
QUOTE-2192494
(125) APX NEXT + access
Any sales transaction following Motorola's quote is based on and subject to the terms and conditions of the valid and executed written contract between Customer and Motorola (the ""Underlying Agreement"") that authorizes Customer to purchase equipment and/or services or license software (collectively ""Products""). If no Underlying Agreement exists between Motorola and Customer, then Motorola's Standard Terms of Use and Motorola's Standard Terms and Conditions of Sales and Supply shall govern the purchase of the Products.
Motorola Solutions, Inc.: 500 West Monroe, United States - 60661 ~ #: 36-1115800
304
Date: August 7, 2023
Financing proposal for: City of Murrieta, CA
Motorola Customer Financing recognizes that each opportunity presents unique issues and characteristics. Therefore, our approach involves understanding our customer’s operational goals and financial objectives. Should you feel another financing structure is required, Motorola Customer Financing would welcome the opportunity to work with you.
Transaction Type: Municipal Lease-Purchase Agreement / Tax Exempt Financing Lessor: Motorola Solutions, Inc. (or its Assignee)
Lessee: City of Murrieta, CA
Amount: $1,060,054.74
Down Payment: $0.00
Balance to Finance: $1,060,054.74
Equipment: As per the Motorola Solutions equipment proposal.
Title, Insurance, & Title to the equipment will vest with the Lessee, and the Lessee will be Maintenance responsible to insure & maintain the equipment as outlined in the lease contract.
Taxes: Personal property, sales, leasing, use, stamp, or other taxes are for the account of the Lessee.
Option One Option Two
Lease Term: Five Years Five Years
Payment Frequency: Annual Annual
Lease Rate: 4.96% 5.29%
Lease Factor: 0.230719 0.221148
Lease Factor: 0.230719 0.221148
Lease Payment: $244,575.26 $234,428.54
Payment Structure: Arrears Advance
Payment Commencement:First payment due
one year after
contract execution.
First payment due
upon contract
execution.
Please be advised the rates above are indicative of current market conditions and should be used for INFORMATIONAL PURPOSES ONLY. The actual lease rates will be locked on a mutually agreed upon date closer to the actual order date and will reflect then-current market conditions.
Program Highlights: Lease Payments are subject to annual appropriation, so the Lessee DOES NOT pledge its full faith and credit.
Low, tax exempt financing interest rates…the most cost effective & convenient way for State & Locals to raise cash.
No pre-payment penalties provided payment is made in-full on a regularly scheduled lease payment date.
Eliminate miscellaneous financing costs associated with bonding…NO special counsel fees, underwriter's fees, origination costs, or reserve fund requirements.
Every dollar you borrow gets allocated towards your project.
Qualifications: Receipt of a properly executed documentation package.
The interest portion of the Lease Payments shall be excludable from the Lessor's gross income pursuant to Section 103 of the Internal Revenue Code.
Receipt of a copy of the last 2 year's audited financial statements and current year's budget from the Lessee.
This proposal should not be construed as a commitment to finance.
It is subject to final credit approval.
For questions concerning this quote, please contact:Sam Gainer Motorola Solutions Credit Company LLC
201-605-7206
[email protected]@motorolasolutions.com 305
Holder Identifier : 7777777707070700077763616065553330742715666224545707750214441737121072651644144331020726351310041303007326135732572310077441042472757550767734373167551307633513540557021077727252025773110777777707000707007 6666666606060600062606466204446200622200606004200006002204262260002060022262602400220620200404026200206200204262042000060000260622620020620220406226002006220004240042202066646062240664440666666606000606006 Certificate No : 570100376417
CERTIFICATE OF LIABILITY INSURANCE
DATE(MM/DD/YYYY )
06/28/2023
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATI ON ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AM END, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE P OLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONST ITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AU THORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
PRODUCER
Aon Risk Services Central, Inc.
Chicago IL Office
200 East Randolph
Chicago IL 60601 USA
PHONE
(A/C. No. Ext):
E-MAIL
ADDRESS :
INSURER(S) AFFORDING COVERAGE NAIC #
(866) 283-7122
INSURED 19437 Lexington Insurance Company INSURER A :
23035 Liberty Mutual Fire Ins Co INSURER B :
42404 Liberty Insurance Corporation INSURER C :
INSURER D :
INSURER E :
INSURER F :
FAX
(A/C. No .): (800) 363-0105
CONTACT
NAME:
Motorola Solutions, Inc.
Attn Stephanie Lampi
500 West Monroe
Chicago IL 60661 USA
COVERAGES CERTIFICATE NUMBER : 570100376417 REVISION NUMBER :
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE L ISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED A BOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH R ESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSUR ANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS S UBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS . Limits shown are as requested
POLICY EXP
(MM /DD /YYYY )
POLICY EFF
(MM /DD /YYYY )
SUBR
WVD
INSR
LTR
ADDL
INSD POLICY NUMBER TYPE OF INSURANCE LIMITS
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
POLICY LOC
EACH OCCURRENCE
DAMAGE TO RENTED
PREMISES (Ea occurrence )
MED EXP (Any one person )
PERSONAL & ADV INJURY
GENERAL AGGREGATE
PRODUCTS - COMP /OP AGG
X
X
X
GEN 'L AGGREGATE LIMIT APPLIES PER :
$1,000,000
$250,000
$10,000
$1,000,000
$2,000,000
$2,000,000
B 07/01/2023 07/01/2024 TB2641005169073
PRO-
JECT
OTHER :
AUTOMOBILE LIABILITY
ANY AUTO
OWNED
AUTOS ONLY
SCHEDULED
AUTOS
HIRED AUTOS
ONLY
NON-OWNED
AUTOS ONLY
BODILY INJURY ( Per person)
PROPERTY DAMAGE
(Per accident)
X
BODILY INJURY (Per accident)
$1,000,000 B 07/01/2023 07/01/2024 COMBINED SINGLE LIMIT (Ea accident)
AS2-641-005169-013
EXCESS LIAB
OCCUR
CLAIMS-MADE AGGREGATE
EACH OCCURRENCE
DED
UMBRELLA LIAB
RETENTION
E.L. DISEASE-EA EMPLOYEE
E.L. DISEASE-POLICY LIMIT
E.L. EACH ACCIDENT
$1,000,000
X OTH-
ER
PER STATUTE C 07/01/2023 07/01/2024
All Other States
WC7641005169093
C 07/01/2023 07/01/2024
$1,000,000
Y / N
(Mandatory in NH)
ANY PROPRIETOR / PARTNER / EXECUTIVE
OFFICER/MEMBER EXCLUDED? N / AN
WI
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY
If yes, describe under
DESCRIPTION OF OPERATIONS below
$1,000,000
WA764D005169083
Each Claim 011663682 07/01/2023 07/01/2024
Professional/Cyber/E&O $1,000,000 Aggregate
E&O - Miscellaneous
Professional-Primary
A
SIR applies per policy terms & conditions
$1,000,000
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Evidence of Coverage.
CANCELLATION CERTIFICATE HOLDER
AUTHORIZED REPRESENTATIVE
Motorola Solutions, Inc.
500 W. Monroe
Chicago IL 60661 USA
ACORD 25 (2016/03)
©1988-2015 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCE LLED BEFORE THE
EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS .
306
CITY OF MURRIETA
City Council Meeting Agenda
Report
10/3/2023
Agenda Item No. 8.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David Chantarangsu, AICP - Development Services Director PREPARED BY: Aaron Rintamaki, Associate Planner
SUBJECT: Revised Permit 2021-2429, Tentative Tract Map 2021-2428, Master Development Plan 2021-2430 Ivy House
RECOMMENDATION
Conduct a Public Hearing;
Consider and approve the Addendum to the Mitigated Negative Declaration pursuant to the California Environmental Quality Act Guidelines (Cal. Code Regs. Title 14) Section 15164; Introduce and conduct the first reading of Ordinance No. 597-23 entitled: An Ordinance of the City Council of the City of Murrieta, California, Approving and Adopting Amended Master Development Plan Mdp-2021-2430 on a 22-Acre Site to be Developed with 62 Single-Family Detached Lots with Related Improvements for Circulation, Infrastructure, and Murrieta Creek Located East of Murrieta Creek, West of New Clay Avenue, and South of “B”Street within the Residential Single-Family 1 (RS-1) Zone of the Downtown Murrieta Specific Plan (DMSP) Area (APN’s 906-193-001, 906-200-001, 002, 906-212-001, 906-221-001,002); and Adopt Resolution No. 23-4707 entitled: A Resolution of the City Council of the City of Murrieta Approving the Environmental Determination, Amended Master Development Plan 2021-2430, Revised Tentative Tract Map 2021-2428, and Revised Development Plan Permit 2021-2429 for Ivy House, a 22-Acre Site to be Developed with 62 Single-Family Detached Lots and Related Improvements for Circulation, Infrastructure, and Murrieta Creek Drainage Channel Located East of Murrieta Creek, West of New Clay Avenue, and South of “B”Street within the Residential Single-Family 1 (RS-1) Zone of the Downtown Murrieta Specific Plan Area.
PRIOR ACTION/VOTE
On May 6, 2008, the City Council introduced an ordinance to adopt Master Development Plan MDP-006-1884 and adopt Resolution No. 08-1994 approving a Tenative Tract Map TTM-005-1824 and implementing Development Plan DP0-005-1825 (Vote 5-0).
On January 15, 2019, the Housing Authority provided direction to appraise and dispose of 42310 B Street (Property) pursuant to Health and Safety Code Section 34176.1 (Dissolution of Redevelopment Agencies).
On July 21, 2020, the Housing Authority approved a Purchase and Sale Agreement with Diversified Pacific (Applicant) for the Property, which was then fully executed by all parties on July 28, 2020. Subsequently, CITY OF MURRIETA Printed on 1/22/2024Page 1 of 7
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escrow closed on February 18, 2022, completing the disposition of the Property by the City (Vote:5-0).
On October 5, 2021, the City Council adopted Housing Authority Resolution No. 2021-34 allowing for the execution of SCIP Preliminary Application for CSCDA financing for improvements associated with the residential development of the Property (Vote: 5-0).
On June 14, 2023, the Planning Commission held a public hearing and recommended that the City Council adopt an Addendum to the MND and approve Revised Permit 2021-2429, Revised Tentative Tract Map 2021- 2428, and an amended Master Development Plan 2021-2430 through Planning Commission Resolution No.
PC-2023-07, (Vote: 5-0).
CITY COUNCIL GOAL
Aggressively pursue economic development.
BACKGROUND
On May 6, 2008, the City Council approved a residential development for this site consisting of a Master Development Plan (MDP) 2006-1884, Development Plan (DP-005-1825), and Tentative Tract Map 34439 (TTM-005-1824) called Ivy House. The 2008, project consisted of a 60-lot subdivision, a Development Plan for the construction of the site, and a Master Development Plan establishing the number of lots, minimum lot size, minimum setbacks, and design parameters for any development in the described area. The 2008 approval has remained valid as a result of numerous extensions the state provided to projects that include tentative tract maps. The 2008, project approvals are valid until January 2026.
The City of Murrieta’s(City) Redevelopment Agency purchased the land when it became available in August 2010. Subsequently, it became an asset of the City’sHousing Authority as the City’sSuccessor Agency when the state dissolved redevelopment agencies in 2013. The City then determined in 2019, that the Property was to be disposed of, with the proceeds from the sale going to the development of affordable housing on the City’s Adams Avenue property, which is currently under construction.
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The revisions proposed for this project by the Applicant are subject to the Downtown Murrieta Specific Plan (DMSP). The changes to the project consist of a revised map for reconfiguration of the lots, resulting in a change from 60 lots to 62 lots. The development of 62 single-family homes may also result in 62 Accessory Dwelling Units (ADUs) subject to the development standards of the amended MDP and designed to reflect the architectural styles envisioned by the DMSP, and a multipurpose trail on the approximately 21.96 acres gross project site (approximately 13.23 acres net). Staff notes that ADUs may or may not be developed on each lot depending on the preference of the buyer. Proposed floor plans provide buyers with the option to maintain a single-family home or include an ADU with a few interior modifications to the floor plan. The proposal is hereinafter referred to as the “Project.”
The General Plan Economic Development Element expresses a desire for a revitalized and economically stable Historic Downtown Murrieta and provides for consideration of opportunities for the development of higher-density residential uses to support commercial development within the Historic Downtown. The Project preserves and dedicates natural resources related to Murrieta Creek and implements several components of the site design and architectural standards identified in the DMSP, such as landscaped parkways, street trees for each lot, alleys with alley-loaded garages, and front porches.
Planning goals and policies for the DMSP are found in Section 3.4 of the plan. Goal 2 seeks to develop a land use pattern that respects and incorporates the City’shistory and that provides opportunities for a variety of uses within a pedestrian-friendly environment. The plan provides for an integrated network of residential, park, business, and civic-related uses. The Project is the first single-family residential proposal within the new DMSP land use pattern to further facilitate the implementation of the plan to bring more residents within walking distance of the businesses along Washington Avenue. Polices in Section 3.4 are specific actions that direct the City on how to reach its goals.
The Project would implement the following policies:
1. Create appropriate land use planning areas and ensure that standards emphasize the compatibility of uses.
The Project is located within the residential planning area established by the DMSP and would be compatible with existing residential uses surrounding the site.
2. Provide for residential land uses that help achieve a “downtown”atmosphere. The Project is implementing the DMSP by proposing housing in an established residential land use location that complies with the density envisioned by the DMSP, contributing towards achieving the downtown atmosphere.
3. Provide development regulations and design guidelines that clearly identify the City’sexpectations for high- quality development to ensure that new development is consistent with a “downtown”scale and character. The Project is implementing DMSP design guidelines through the site design, proposed architectural elevations, and the revised MDP, ensuring high-quality development.
4. Provide housing options, ranging from single-family and multi-family residential development, in different settings. This Project will add additional housing options within the DMSP located adjacent to Murrieta Creek within a residential setting.
5. Encourage housing that is within proximity to commercial and employment-related uses. The Project site location is situated less than four city blocks (1,250 feet) away from the commercial and employment-related uses along Washington Avenue, all within walking distance from the new residential homes. The Project implements these policies through its location and design, and through the implementation of the amended MDP.
For Murrieta, the Downtown is associated with community desires to have a destination where people have opportunities to live, work, and shop in an environment that creates a feeling of cohesiveness and CITY OF MURRIETA Printed on 1/22/2024Page 3 of 7
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opportunities to live, work, and shop in an environment that creates a feeling of cohesiveness and compactness - a place that encourages pedestrians to stroll tree-lined streets, shop in stores, and dine. This is the design approach created for the City’s Downtown through the DMSP, where land use planning and development standards establish policies to create a series of neighborhoods working together to develop the area as a vibrant destination. The DMSP allows for a density of up to 5 units per acre for properties zoned RS-
1. The 62 residential lots represent an overall density of 3.5 du/ac based on a gross area of 22 acres, which is within the designated density range. Lot sizes for the Project range from 5,200 square feet to 9,530 square feet, with typical lot sizes falling within a range of approximately 5,000-6,000 square feet.
The graphic to the right depicts the proximity of the Project to the future Pioneer Park site, local businesses along Washington Avenue, and Town Square Park. The Project will provide new housing within walking distance (1/4 mile) of the business corridor along Washington Avenue and promote a pedestrian-oriented design. On-site pedestrian amenities, including benches and trash receptacles along walkways, have been incorporated into the Project and are shown on the preliminary landscape plan.
The amended MDP will set a separate standard from the DMSP to allow the Project to exceed the maximum lot coverage and reduce setbacks, which enables greater preservation of natural features on the site, including Murrieta Creek and the future dedication of land for a Murrieta Creek improvement project. Approximately 40 percent of the Property will be dedicated as open space for natural drainage, wildlife connectors, conservation, open space, and water quality management improvements. As part of the Project improvements, the developer must install an interim multi-use trail between the northerly and southerly boundaries of the site.
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The proposed home elevations provide a quality style and architecture for the Project and this part of the DMSP. The architectural themes of the DMSP are intended to establish a “stylisticrealm”within which various projects are to be designed. The Project has incorporated the required Craftsman, Spanish Colonial Revival, and American Mercantile architectural styles through building massing, design, and building placement oriented to form a distinctive streetscape that establishes an attractive frontage for New Clay Street between Ivy and B Streets. The Project is consistent with the off-street parking requirements of the DMSP and the Development Code by providing two enclosed parking spaces per dwelling unit and one additional parking space for each ADU.
Access to the Project will be taken from New Clay Avenue from the east, north, and south and B Street from the west. These improvements require New Clay Street frontage to be improved to a half width of 50 feet centerline to right-of-way, and B Street frontage will be improved to a half width of 40 feet centerline to right-of- way per the DMSP. The proposed subdivision includes segments of four public streets and three private alleys.
All interior streets will be improved per City Standard Drawing 106 (Local Street). The street sections reflect improvements consistent with City standards in the DMSP.
The Property is adjacent to Murrieta Creek and is shown within a Federal Emergency Management Agency (FEMA) flood zone in the General Plan Safety Element. The Project has been conditioned to process a Conditional Letter of Map Revision (CLOMR) with FEMA to remove the required areas of the Project from the flood zone before grading permit approval.
Planning Commission
The Project was considered for recommendation by the Planning Commission at a public hearing. A notice of hearing was sent to adjacent property owners within a 300’radius of the Project, the newspaper, and the site posted with signs. During the public notice period for the hearing, no public comments (written, in person, or via phone) were received. On June 14, 2023, the Commission heard during the public comment period of the hearing that seven speakers presented their concerns about the Project. Four of the speakers were in opposition to the Project, and three speakers were neutral. The issues raised included the following:
Issues:
1. Proposed homes being too close to one another;
2. Increased traffic on B Street with no stop-signs from the intersection of B Street and New Clay to Washington Street to control speeding;
3. Additional water required to serve homes;
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Agenda Item No. 8.
4. The cumulative Project impact on existing flood-zone conditions to surrounding homes;
5. The lack of sidewalks along the route to school for future residents; and
6. Increased crime with homeless coming from the adjacent creek impacting the new neighborhood the Project creates.
Staff is able to provide the following responses to the public comments presented to the Planning Commission:
Response 1
The Property is zoned RS-1 within the DMSP, which allows for a density of up to 5 dwelling units per acre (du/ac). The 62 residential lots represent an overall density of 3.5 du/ac, which is below the maximum density and within the density range allowed by the plan. The five-foot side yard setbacks are necessary to achieve the density allowed by this zone.
Response 2
Stop signs are installed to establish right-of-way at an intersection and not to control speeding. The California Manual on Uniform Traffic Control Devices (CA MUTCD) identifies warrants that must be met to install an all- way stop. The Project was not conditioned to install additional stop signs along B Street because it did not meet the warrants identified in the CA MUTCD. Placing stop signs at intersections that do not meet technical requirements for placement creates unintended consequences that impact pedestrian safety, result in speeding, and more ambient noise.
Response 3
The new homes will receive water and sewer service through Western Municipal Water District (WMWD). The Project involves localized infrastructure improvements and connections to accommodate site development.
The Project would be required to pay fees to accommodate infrastructure improvements for water and sewer.
WMWD relies upon projected population and growth rate projections as determined by land use policies in the general plan, ensuring that adequate supplies are planned for existing and future water users. WMWD has signed the required availability letters to provide the necessary services.
Response 4
The Project does not exacerbate the current FEMA flood zone conditions in the area. The Project is processing a CLOMR, removing the area to be developed from a flood plain. The Project improvements will collect water runoff on New Clay and direct it into culverts and modular wetland systems and into Murrieta Creek. This approach intercepts water runoff at the Project frontage that would otherwise sheet flow south and east to surrounding properties.
Response 5
The Project will construct the sidewalks fronting the Property. For offsite sidewalks from the Project site to a route to school, the City continues to look for opportunities for grants from Safe Routes to School to create safe and healthy walking experiences.
Response 6
The Murrieta Police Department provides police protection services. Besides responding to incidents involving safety and law enforcement, the Police Department actively promotes safety through education programs, community partnerships, and providing advice on incorporating Crime Prevention through environmental design principles into development projects. The City has been successful in providing funding to local organizations for providing shelter and services to individuals that may experience homelessness. The City is a co-founder of the Regional Homeless Alliance, a collaboration of five cities that coordinate homeless services. Within the Murrieta Police Department, a Community Behavioral Assessment Team pairs a licensed clinical social worker with an officer specially trained in mental health issues to provide services, including to homeless individuals. These services are available to homeless residents who may be located on the Project CITY OF MURRIETA Printed on 1/22/2024Page 6 of 7
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site now or in the future.
During the Commission hearing, some Commissioners also noted concerns about safety regarding the lighting of home addresses to identify each home on the alleyway and the public street and lighting in the alleyways to increase visibility and safety. The Planning Commission (PC) concluded the public hearing and recommended the City Council's approval of the Project via Resolution (Attachment 4) with the provision that staff work with the Applicant to address alleyway lighting and lighted addresses on the front and back of the home. Staff has worked with the Applicant and has added conditions of approval to address alleyway lighting and lighting of home addresses on the front and rear of the homes (Attachment 2, COA #’s 44-46).
Department Recommendation
The Development Services Department recommends approval of the proposed Project. Attachment 1 introduces Ordinance No. 597-23 to amend the MDP for the Project. Attachment 2 is the resolution to approve the Project. Additional information is available in staff’s report to the PC (Attachment 5).
Environmental Determination
An addendum to the previously certified MND was prepared in compliance with CEQA Guidelines Sections 15162 and 15164. The revised Project will not result in any changes that will require substantial revisions to the adopted MND due to the involvement of new significant environmental effects or an increase in the severity of any previously identified significant effects; there have been no new substantial changes in the circumstances under which the Project was undertaken which will require major revisions of the previous certified MND; and there is no new information of substantial importance. The Project is subject to the previous Mitigation Measures identified in the Monitoring and Reporting Program (MMRP) (see Attachment 7).
Noticing
The Project was noticed in compliance with Section 16.76 of the Development Code. The City mailed notices to property owners within a 300-foot radius, and advertised in the newspaper a minimum of 10 days prior to the hearing.
FISCAL IMPACT
The Project will result in an increase in the City’spopulation consistent with the General Plan. Demand for City services will increase proportionately with the increase in population. Property taxes, sales tax, and other cost recovery efforts used by the City may help recover some, but not all of the costs associated with providing services to new residents.
ATTACHMENTS
1. Ordinance No. 597-23
2. Resolution No. 23-4707
3. Vicinity Map
4. Planning Commission Resolution
5. Planning Commission Staff Report (June 14, 2023 - without attachments)
6. Project Plans (Architecture, Landscape, MDP/Map/Grading)
7. CEQA (Addendum, Initial Study, MMRP, Notice of Determination) CITY OF MURRIETA Printed on 1/22/2024Page 7 of 7
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ORDINANCE NO. 597-23
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MURRIETA,
CALIFORNIA, APPROVING AND ADOPTING AMENDED MASTER
DEVELOPMENT PLAN MDP-2021-2430 ON A 22 -ACRE SITE TO BE DEVELOPED WITH 62 SINGLE -FAMILY DETACHED LOTS WITH RELATED
IMPROVEMENTS FOR CIRCULATION, INFRASTRUCTURE, AND MURRIETA
CREEK LOCATED EAST OF MURRIETA CREEK, WEST OF NEW CLAY
AVENUE, AND SOUTH OF “B” STREET WITHIN THE RESIDENTIAL SINGLE - FAMILY 1 (RS -1) ZONE OF THE DOWNTOWN MURRIETA SPECIFIC PLAN (DMSP) AREA (APN’s 906-193-001, 906-200-001, 002, 906-212-001, 906-221-001, 002)
WHEREAS, the applicant, Diversified Pacific Development Group LLC., (Permittee/Owner) submitted applications for an Amended Master Development Plan (MDP-2021-2430), Revised Tentative Tract Map (TTM-2021-2428) and Revised Development Plan Permit (RP -2021-2429) for the development and subdivision of 22 gross acres for 62 single -family detached and neotraditional residential units known as Ivy House (“Project”). The site has a Land Use Des ignation of Si ngle Family in the General Plan and is zoned Residential Single Family 1 (RS-1); and
WHEREAS, The project site is located in the Downtown Murrieta Specific Plan (DMSP) area and is subject to the requirements of the Re sidential Single-Family 1 ( RS-1) zone. The RS-1 zone within the DMSP requires a minimum lot size of 7,200 square feet but allows lots as small as 5,000 with the adoption of a Master Plan Overlay. The Master Development Plan development standards also wo uld apply. The DMSP serves as a Master Plan Overlay pursuant to Section 16.16.10.C.1. of the Development Code; and
WHEREAS, a public hearing was duly noticed for the Planning Commission meeting of June 14, 2023, by mailing a notice to property owners within a 300-foot radius of the site on June 4, 2023, publishing the notice in The Press-Enterprise newspaper on June 4, 2023, and posting the Project site on June 4, 2023; and
WHEREAS, pursuant to Development Code section 16.64.040, the City Council is authorized to approve master development p lans and amendments. The Planning C ommission shall provide written recommendations to the council regarding master development plan adoption and amendments; and WHEREAS, on June 14 , 202 3, the Pla nning Commiss ion of the City of Murrieta held a duly noticed public hearing, and after considering all written and oral reports of staff, public testimony on the matter, and written and oral testimony pr ovided by the applicant, recommended the City Council approve the Master Development Plan Amendment; Development Plan Revision and Tentative Tract Map Revision ; and
WHEREAS, a public hearing for the Project was held by the Planning Commission on June 14, 2023, at which time reports, recommendations, and public statements were considered; and WHEREAS, at its meeting on June 14, 2023, the Planning Commission used its independent judgment and considered all the reports, recommendations, and testimony set forth above , voted (5-0) recommending approval to the City Council; and
WHEREAS, a hearing on the matter was duly noticed as provided in Development Code section 16.76 for the City Council meeting of October 3, 2023; and
WHEREAS, a public hearing was duly noticed for the City Council meeting of October 17, 2023, for the Second Reading,
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Ordinance No. 597-23
WHEREAS, the City Council has consider ed the facts presented in this case, including the written and oral staff reports on the Project, public testimony, and written and oral evidence presente d to the Planning Commission,
NOW, THEREFORE, the City Council of the City of Murrieta, California, does ordain as follows:
SECTION 1. FINDINGS
Based upon the substantial evidence presented at the public hearing s on June 14, 2023, including written and oral staff reports and public and applicant written and oral testimony on the record from the Planning Commission public hearing, in accordance with Murrieta Development Code chapter 16. 64, the City Council of the City of Murrieta approves the Revised Master Development Plan MDP -2021-2430 in accordance with the following findings pursuant to Development Code Section16.64.110:
1. The proposed Master Development Plan is consistent with the objectives, policies, general land uses, programs, and actions of all elements of the general plan.
FACTS: The proposed amended Master Development Plan establishes standar ds consistent with the General Plan and Downtown Murrieta Specific Plan, including Goal LU-17: Historic Murrieta as the City’s cultural, civic , and community center. Policy LU-17.3 Encourage the loc ation of civic, institutional, office, and other job-creating uses in Historic Murrieta. Supportive residential development should be encouraged. This project provides supportive residential development to implement Goal and Policy LU-17, LU-17.3. Goal ED-10: A revitalized and economically stable Historic Down town Mu rrieta. Policy ED-10.5 Consider opportunities for the development of higher-density residential uses to support commercial development within the Historic Downtown. The standards for the Residential Single Family 1 (RS -1) zone, the site design, and architectural standards are in Section 5.0. The revised Master Development Plan identifies the distribution, location, and extent of land uses within a development site and identifies regulations and criteria for the development of the site. The density is 3.5 d.u. per acre for the RS-1 zoned properties and is within the permitted range of this zone with the adoption of the revised Master Development Plan. The Project preserves and dedicates nat ural resources rela ted t o Murrieta Creek and implements se veral c omponents of the site design and architect ural standards in Section 5.0 of the Downtown Specific Plan such as landscaped parkways, street trees for each lot, alleys and alley-loaded garages, and front porches.
2. The Master Development Plan ade quately addresses the physical development charac teristics of the subject site.
FACTS: The project site will be graded and include stormwater treatment and drainage facilities to comply with flood zone requireme nts of the Federal Emerg ency Management Age ncy (FEMA). The proposed project design preserves approximately 40% of the project site as open space. The project does not adversely impact and is found to be consistent with the Army Corps of Engineers and R iverside County Flood Control District Murri eta Creek Improvement project regarding establishing the top of the bank and setbacks from ultimate improvements. The Drainage Study, CLOMR, and grading plan show a design that can provide adequat e setbacks from the floodway of Murrieta Creek to provide a flood-free Project.
3. The development standards contained in the Master Development Plan serve to protect the pu blic convenience, health, safety, and general welfare.
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FACTS: The revised Master Development Plan wi ll contribute to the compl etion of links and improvements in the City’s circulation and trail system. The proposed project incorporates water quality ma nagement measures and furthers the objectives of the Downtown Murrieta Specific Plan. Development stan dards have be en evaluated and found to b e consi stent with the Development Code to protect the public convenience, health, safety, and general welfare.
4. The Master De velopment Plan is consistent with all applicable requirements of local ordinances and state law.
FACTS: The proposed Master De velopment Plan is consistent with the Downtown Murrieta Specific Plan, including the standards for th e RS-1 zone (landscaping, setbacks, building heights) as well as lighting standards unique to the DMSP, and stormwater desig n. Purs uant to S ection
16.16.10 C. 1. of the Development Code, a Master Plan Ove rlay shall be imple mented by a Master Development Plan and the Downtown Murrieta Specific Plan serves a s the overlay. The project has been subject to a joint projec t review and findi ngs by th e Regional Con servation Authority which found that the project i s consistent with t he criteria of the Multi ple Species Habitat Conservation Plan. All permits relating to building permits, water quality management, regional drainage systems, and natural watercourses will be obtained and are conditioned with the Project.
5. The proposed Master Development Plan or amendme nt would be in compliance with the provisions of the California Environmental Quality Act (CEQA).
FACTS: An addendum to the previously certified Mitigated Negative Declara tion (MND) was prepared in compliance with Section 15164 of the California Environm ental Quality Act. The residential development is not proposing any substantial cha nges that will require any significant revisions to the certified MND due to the involvement of new significant environmental effects or an increase in the severity of any identified significant effects; there h ave been no new substantial changes in the circumstances under which the Projec t was u ndertaken which will require major revisions of the previous certified MND, and new information of substantial importance has not been discover ed. The Project is subject to the previous Mitigation Measures identified in t he Mitigation Monitoring and Reporting Program (MMRP).
6. The pr oposed master development plan amendment would not create internal inconsistencies within the master development plan and is consistent with the purpose and intent of the master development plan it is amending.
FACTS: The Amended Master Developmen t Plan is consistent with the Downtown Murrieta Specific Plan, including the standards for the RS -1 zone. Purs uant to Section 16.16.10 C. 1. of the Development Code, a Master Plan Overlay shall be im plemented by a Master Development Plan and the Downtown Murrieta Specific Plan serves as the overlay. The amended Mast er Development Plan replaces and voids the previous master development plan and would not create internal inconsistencies within the mast er development plan. The project has been subject to a joint project review and findings by the Regional Conservatio n Authority which found that the project is consistent with the criteria of the Multiple Species Habitat Conservation Plan.
7. The proposed Master De velopment Plan would be in compliance with the provisions of the Multiple Species Habitat Conservation Plan (MSHCP).
FACTS: The City of Murrieta adopted the Multiple Species Habitat Conservation Plan (MSHCP) on September 16, 2003 . The proposed developme nt site is within Crite ria Area #6314 and 316
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