Loading...
HomeMy WebLinkAboutUNISYS CORPORATION 8-2008 r . 'INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL DATE: MAY 8 2008 o. F r\\~ Ilnk SeN.( Z) T 0'1" UerCjen A-2008-081 SOFTWARE LICENSING AND SERVICES AGREEMENT (" Agreement") BETWEEN THE CITY OF SANTA ANA AND UNISYS CORPORATION THIS Agreement, is made and entered into this 5th day of May, 2008, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City") and Unisys Corporation ("Vendor"). WHEREAS, the City desires to retain the services of Vendor to provide the City with computer software support and software licensing. THEREFORE, in consideration oftheir mutual and respective promises, the parties hereto do hereby state as follows: 1. Terms and Conditions The term for this Agreement shall commence upon execution by both parties and expire on June 30, 2010, unless otherwise extended in writing by both parties. All terms and conditions regarding software licensing and services provided herein shall be subject to and in accordance with Unisys Consolidated Agreement - Number 99120112 (pages 1-6). Said terms and conditions are attached hereto as Exhibit A, and incorporated herein by reference. 2. Scope of Services The Vendor shall provide software licenses as set forth in Exhibit B, "Supplemental Schedule Order", attached hereto and incorporated herein by reference. 3. Compensation The City will pay to the Vendor total compensation under this Agreement in the amount of $130,589.00, plus applicable taxes, due before the commencement of the term of this Agreement. 4. Insurance Vendor is not required to provide additional insurance coverage or provide further proof of insurance. lof2 IN WITNESS WHEREOF, the parties have executed this Software Licensing Agreement as of the date of execution by both parties below. ~- --- PATRICIA E. HEAL Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By:~t7-_w LaJta Sheedy / / Assistant City Attor. e CITY OF SANTA ANA ~fJ City Manager Date: --41/ ~ UNISYS CORPORATION ~ ~\ 'cdf t ,JZA-; NDOR {S1gnat\/,1 Name: H4'/-+ ~t'"<.f Title: (, (j t-,,+ra. (3 ~ H~.... ~I~V ' Tax ID: 38-0387840 Date: Ar r 1 I J <) . ("J (}()& 20f2 1\: . .' .-.. II ",f . Agreemeftt Number t 99120112 " ~ . UNISYS - Consolidated Agreement / , Client Name and Mailing Addr.... . City of Santa Ana Mr. Thomas J. Gergen 20 Civic center Plaza Santa Ana. CA 92702 Client acknowledges it has read and understands this Agreementlincluding all attached schedules and amendments) and is not entering into this Agreement on the basis of any representation. not expressly set for1h in it. . AQreed and AccePted Unisys Corporation ~~ (StgnWt, CONTRACTS MANAGER UNlSYS CORPORATION (Prin~ rurMl 3ftsflJO (0aIe) Client !_,~cI.d<r- ;; ~).S'~O() [Oate) Thomas J. Gergen (~lIIIme\ Information Systems Manager (Tille) (Title, t of 14 ~3ll82.oo&(~\ EXHIBIT A uNiSYS .solidated Agreement . Unisys Cofpof~tion (Unilys) win sell and license Products and urvices and Client agree. to purchase and license those Products and ..rvlces under the following terms and conditions: 1. Definitions t. t Software means the ~ code vtr$ion of computer pro,ams and any rela18d cIoc:umentatlon, excluding maintenance diagnostics. SoftWare also means lIle source code version where provided by Unisys. Software also means microcode, not embedded in a circuit .11m.nt. that enablK the equipment 10 lunction according to its published specifications. . 1.2 Products means equipment. SoftWare, doewnenlation (includillg manuals and education materials) and Software maintenance releases and l4)dates t.3 Sottwa,., Procllsing Unit ("SPU"). mea", equipment which controls and executes Softwate. t.4 SURETY Support Servl~ means various rorms of installation and support for the ~rocluctll. 1.5 Proprletlry Information melns Software. diagnostica. doeu, mentation, including l1\lIooala, .nd any other inlOlTMtion confidential 10 Unisys or i1s dcensorl, 1.8 Information Services means all technical and consultative services other thall SURETY Support SllIVlcK. 1.7 Inatallallon Oate munaltlt dati Unisys colY1Jlletes installatien (IS det.rmined by Unisys) or. if equipment or Software is to b. installed by ! Client, the tenlh dly lollowing shipment 2. Enectl"e Date This A!P'eement Will become effective llIhen signed by duly authorized representattves or bOth panIM lOCI wilt continue in effect until terminated aCCXlrding to itstenns. 3, Schedule. - Ordering ProCledure 3.1 Unisys will furnish to C6ent and Client will accept and pay lor the Products and services itemize<! on the following Schedules which, together with the terms on the SeheclJles. Ble an intl!!181 part 01 this Ageemenl. Schedule name Equipment Sale SURETY Support StNices Soflwllre LiceflMS Information Sentices All references to Producl:$ and services in this Aveement are to the Products and servIceS listed on the Schedu_ and on any SChedules submitted to and accepted by Unisys pursuent to Section 3.2 and to any Products and services supplied by Unisys. such listed Products. and services. 3.2 Clienl may order addtIonaJ Products lInd services under this Agreement by submitting P'OI*'ly completed Unisys Supplemental Schedule Orders relerencing this lqeemenl. All Orders will refer to this Ageernenl by number and wiY be signed by Clienl. All eClue.tion lecture COIneS must be ordllfed on a Client Education Enrollment Application. 3.3 All orderS are subject to acceptance by Unisys. Acceptance by Unisys will be effective when communicated in witing to ClilnL Th. receipt Of deposit ~ Unisys 0' . Client down payment will not conlUtua acceptance 0' en ord.... Any down peyment received from Client will be relurned if lIle ordet is not accepted by Unisys. 3.4 Unlsys may substitute Products 01 equivalent or superior lune- tionlllity and performance in the event that any of the Products Ofdered are not available at the time or shipment. 4. Delivery and Installation 4_1 Unisys will arrange lor delivery of Products and Clent wia pay lor lransportallcn in accordance with the Unisys published transportation charg8$ in effecl at the lime 01 delivery or. if Unisy. hat nol publiShed any such charges, Client will pay Unisys for transpor1lltion chargn aclllally incwed. Client will al90 pay for all cable. and site-specilie installation materials required to install the equipment al en.nh site. 4.2 Unisy. wiD provide Clienl with one ccpy of the thln-c;urrent user cloclII"lenlalion, ill PIP<<' or Ilaonie form at the option of Unisys. lor use with Ihe ProdlJclS ordered Ind enviroMlental specifications for equipment. wl1tre applicable. Prior to delivery of equipment. Client will prepare the installation sile and will contlnue to maintain the installation site in accardance with such specifications. 4.3 Client will instan all items of equipnlent with the designallon "YO In the "Client installable" column when there is no inltallation cha~ listed on the EqtJipmenl Sale Schec1lle. Utlisys will install an other Items 01 equipment. Cltent will inslallllll item. of Software other than lhase for which a fiud installation charge is indicated on th. Softwlre Licenses Schedule. All Products to be installed by Unlsys will be insl8lled during Unisys normal working hours. unllJSS olheNdse provided in lIlis AlJ'.em.nt. U Client may ItT8nge for installetion by Unisys of Client inst3IIable ProdUcts. wbject to tile then.cutrent standard Unisys chargH and concilions. 4.5 If additional labor end rigging if rlqulrld lor Installatlen due to Clients specie' site requirernetlls. C6ent will pay ltlose c:osts including costs Ie meet unicln or loc.llaw requirements. 5. Payment 5.1 Charges for Products wlll be Invoiced upon shipment 5.2 Charges for SURETY Support Services will be invoiced in adVance. quarterly, annually, Of It other periodic intervals: otherwise. ch.rges ~II be invoiced after the servicn .,. performed. Hourly LIse, plllge and remote service charges will be invoic.d monthly unless otheNllst indicated. 5.3 Charges for Inlormation Services will be invoiced as the services Ire plrfooned. 5.4 All charges must be paid no later than 30 days from the date of tile invoice. Unisys may impose a late payment charge equal to the lesser of (a) 1-112% per month or (b) the maxim"" rate allowed by law. 5.5 Additional charges may apply to services rendered outside con- tracled hours or beyond normal coverage at Clients request, e.g., travel expenses. premium and minimum charges. 6. Tax.. 6.1 Client will pay any lax Unisys becomes obligated 10 pay by virtue 01 ll1is Ageemenl. exclusive of Iaxes based on the nel income of Unisys. 6.2 All personal property and simillr taxes aSSI$Sed aftiii' shipment wI! be paid by Clianl. 7. Price Protection 7. 1 TIle charges for Products In any accepted order will remain firm through d.livery. unless through no fallt 01 Unisys shipment takes place more than one year after the date of the order. If Unisys notines Client that an Increase in charges will apply &0 ils order. Client may tamllnate the affected part of Its 01'\'1., by giving witten no~e to Unisys ""thin ten days of the date of notification of the increase. 20114 4305 3982-00e (3199) .- iJ SURETY S~porl Services charges WI.' .. illUeased dlring the nl'il twelVe monltls follov.mg !hi commen f those services. The charges may be increased thereafter on eaeh anniversary of the com- mencement data fDllowing 90 dllY1 prior written notice 10 Client. unless oltteNise noted Olllhe SURETY Support Services Schedule. 7.3 Chlrges for SoltNarelic8t\s8s and InfO/mation Services will nal be increased (bing any on..y. wm. but may be inQ'eas.d prier to any subsequent term upon 90 days JlI'!OI' \\ritten nctlee 10 Client If Soltwlle a setV~es ere contr8C1Id on I month-to-monlh basis ttle charges may be increased et any time following 90 days prior written notice. 8. Security Inlerest Unisys rKIfVK I pUl'CIlaS' money security interest in equipment ul)lil payment in full is receiveci for all equipment dllliv..ed to Client and, fot that purpose, Illis Ageement Is I seelKily a","m.nl. By Signing this A;feement. Client iluthcriies Unisys or its agent to sigll on behalf of Clienlthe neceSMry Iinlm:ing statements. or 10 Iile I reproduction of a finllncing statement. A1tern.tinly, UniS'f' may filelllis Agreement (Jt a ccpy of this Agreement to perfect its security interest. If thi, Agreem.nt or a copy of it is filed. infcnnaticn concerning the seewity interest may be obtained from Unisys atlhe a~ess staled in Section 17. 9. Client'. Operational Responsibilities 9.1 Clienl acknowledges it his independently deterrmned Itlat the Products and services ordered under Ihis Ageernent meet ill requiremenls . g.2 Client has scle responsibility tor use of II\e Products. inCluding operating procedures. audit controls, Ice:uracy Ind sec:urity of input and output data, restart and recovery routines, and oltlel' procedures neces-. / sary for Clienf' intended use 01 1M Products. 9.3 Client will ensure that its personnel are, at all times. educated and trained in lhe proper use Ind operation of the ProdUcts and !hat the Prodllc:t$ 1f8 used in accordance INiIl applICable Unisys manuals Ind inslnlctions 9.4 Client will maintain beck-up data necessary to replace critical Client data in the event of loss or damage to such dBIa from any ~use. 9.5 11 Unisys is providing SURETY Suppert Services. Clienl will (I) maintain IIle operating environment in accordanc. with Unisys specifications, (b) prOllide adequat. working and storage SIlace fa usa by Unisys personllel near the equipment. (c) provide Unisys lUll access to the equipment and sufficient computer time, subject only to Client'l security rules. (d) follow Unisys proceciwes fOl p1uing service requests and determining if remedial seNice is required. (e) 10Raw Unisys In- slructions for operatOl maintenance and obtaining services, 10 provide a memory dump and additional dalB in machine readable form if 'equalled, (g) reproduce suspected errors 01 malfunctions in Soft.Nare, and (h) install ell elTor cOfTICtIonS and malntenllnco ,eIe8ses supplied by Ullisys. 9.6 Information Services supplied by Unisys undet II\is AlJeementlre provided to ISsil1 Client. CHent, not Unisys, will be responsible fOl determining objectives and obtaining the desired results. '. 10. Protection of ProprttUly InfofmaUaft 10. t Chent will keep in c:onlldellce and protec:t Proprietary Information from disclosure 10 third parIie8 and rnlrlct lis use as provide<llt'l ItIls A~eement. Client acknovMdges thet unsuthorized disclosure of Pro- prietlry Information may cause .iGslBntill economic loss to Unisy' or its licensors. All materials contlinlftg Proprietary Information will be marked WIth 'Proprietary.' 'Conftdential,. or in a manner which gives notice of lis proprietary nature. proprtetary Informllion wi. not be copied, in whole or in parl. except when essential fOI correcting. generating a modifying ProprielBty Inlom1ation for Clients aulhonzed use. Each copy, including ils storage media. IlliU be marked by Client with all notices which appe. on th. original. 10.2 Upon termination or cancellation of any license granted under lhis Agreement, Client will dnlJoy (and. in writing, certify dt1truction) er rllum to Uni&ys all copies of the Software the Iieanse for which has been so terminated or canceled and any other related Proprietary Infolmaticn in eli.seSSion (including Proprietary Inronnation. incorporated in oth re << writings). 10 3 Ally icl8as, concepts, know-how. dati processing techniques. Software, dOcumentation, dia"ams. schematics or blueprints deve~ by Unisys peI'$Onnel (alone or jointly with Client) in connection ~th Information Services prOVided to Client will be the exclusive pl'ee.rty of Unisys. Unlsys granls to Client a non-exclusive. royally-free license to use Bny of the fOlegoing in accOldance wilh the terms of tlIis A!J'eement. 10.4 Client ackno~edges \hIt all support materials, including ""'thout Iimilatlon. diagnostic software, are the property of and include Pro- prietary Infannelion of Unisys. Client sssur=t that such materials Vlrill be used only by Unisys maintenence personnel, and lhat Unlsys haa lhe right to remove such materials from Clienfs facility at any tine. This provision appijes even though such mat"ials may be listed in !he U nisys price lists. ~atilogs, invoices ct conlracts. 10.5 Client will inform its employees of Iheir obliQlltions under this Section 10 and insfuc:t them so as to ensile sudt obligations are me.. tU This Section 10 INiIl survive termination or cancellation of this A~ent. 11, LIcense 11.t Unisys grants III Client a persanal. non-elclusive and non- hnstll'able license to use Software and related documentation ae:- cording to !he terms and conditions or ItIis Agreement, solely for elienfe inlemat data prgcessing requirements on the Unisys SPU in !he Uniled Sliltes on which Software is initially instaled. Clienfs use or Software will also be governed by .ny additional conditions which Unisys may provide on or prior In delivery of Software. Client a!J'ees that Unisys may periodically inspect lie computer site in order to audit Software supplied by Unisys installe<2 at Clenfs site at mutually agreed upon limes. \I a seplnlte license agreemenl accompanies non Unisys commodity Software. lien the separate license a!J'"ff1lnt terms will superwde the license terms in this AgrHment for that SoftWlre. 11.2 Client may modify any Unisys application Soft'Mlre and may combine this Software INitll otller programs or materials to fonn an updated wortl, provided lIlat upon termination of the license, the Unisys application Software will be removed tram the updated WOI'k and returned to Unisys. Clienl will not deCompile or disassembll anv Soflware provided under this Agreement 01' modify SoftWare which be.s a copyright notice of Iny third party. 11.3 Unisys pl'oYidel no media or documentaliOtl for So~ des, ignated 'LO- (license Only). Client may make (8) one archival copy (for backup purposes) of each ilem 0' SoftWare, and (b) one eOll'l, as required, for each liceme ~nted of Softwllre designated .LO." Each copy will conlBin alllegenclll and notices and will be subjtc:t to the same conditions and rt1tric:tions as Ihe original. Soft\wtr. designated .SUSSCRIt' (subScription) entitles Client to functional updates 11111 Unisys releases fOl the same elgible base Software during the applicable term of the subscription. provided Client has I CUlTent lie:ense and Ihe latest applicabl' Software Maintenance Releases for !tie eligible base Software. Softwwe designated "DRIVER" is for use solely with lhose models 01 device types specified in Ille drivers then~Urrent published specification and a license is required for each separately lldltessable unit of a device type. 11.04 If the SPU on which any item 01 SoftWare is licensed becomes temporarily unavlilable. use of such Software may be temporarily transferred to an alternative SPU until Ihe originll SPU becomas aVlilable. tl.5 No license is glInled to Client to \lse any Unisys proprietary operating syslem Software to assess. test or develop any llardWwe products or device handler software or operdng S)'lItem sollware ht will be mll'keted by Client or oltlers for canpensation. Client may ~- valop oll\er software progrllll1S and may test fully developed, commer- cially lvailebl, non Unisys hardware prodlK;ts or software pl'll!1ams where such testing is solely intended fot Chenrs in.mal evaluation of the fitness of such procIuct or pra",am for Client's own int",nal data processing purposes. 3 0114 43053982.(106 (31991 11'.6 II Client desires to: (a) use Soltwa~elVice :lW'latI mode. (b) use Software at another location, (c) ~r. a. restricted in Section t 1 .5. eI (d) transfer operaliolUll use of the Software to a lJritd party: lhen Client must request prior permission in writing from Unisys. Unisys will then advise Client ~eltlet, and under whit terms and conditions, Unisys wiU rlCenS8 the Softwlre al requlsted, All resriclionS applicable ~ Clilllt MI_ IppIy to any permitted Ser'4lce bur.au or third perty lisen, 11.7 This Agreement dOes not transfer to Clientlitle to any intellectual pr~erty conlained in any Sott.re, documentallon or Proprietary I nforma lion 11.8 No pa-ty is antlUed to use any Software unless till plrty has a valid wiltefllicense to use such Software and aU applicable chlllJ8S rei .the use of such Softwlre have been paid. exctj:lt that Client may authortze tempanry use of Software by a third pwty. only for Cllenrs benefit. to assess, test or develop softwwe programs to !lie extent authortzed by Section 11.5 or to pIl'form conS\lltinll services and stud- Ies. provided such lhtd party agrlllS in \\Titing to be bound by tile provisions of this Agreement regarding Pr~rietlfY Infgrmation and Sottware. 11.9 This seclion applies CO 'an procurements of SoftWare and doev. mentation by or for the U.S. federal government. By Iccepting delivery of thl Sotlware and <loClImIntallon, the government hereby agrees that the Software and documentation qualifies IS ocommercial" computer sotlw8re and commercial softwlr, lSOCumentatlon WilNn tile meaning of the acquisition regulalitln(s) Ipplicable to Ibis procurement. The lerms and condilions of this license sIIa" prescribe th. government's use and disclosure 01 the Softwlre and documentation, and shall supersede any contrary provisions. The gov.nment agees to return Ibe Soflware.1IId " documentation unused if any pravision 01 tllia License does not meet the goy<<nment'l ICNa! minimum needs or iI the government objects to any term of this license and the parties are unable to reach agreement on \he terms of ilia license. The fonowing slalement applies only to procurements governed by OFARS Part 2274 (OCT 1988): 'Res.icted Rights - Use. duplication and disclosure by the Government is S41f)Jeet 10 resh:1ioni as set forth in subparl9'Ph (e)(1 )(ii) of the Rightl in Technical Data and Co~uler Software clause at DFARS 252.227-7013 (OCT 1988)" 12. W~rr.llties and Disclaimers 12.1 EXCEPT AS EXPRESSLY ST ATEO IN THIS AGREEMENT, THERE ARE NO WAARANTIES, EXPRESS ~ IMPliED, BY OPERATION OF LAW OR OTHERWISE. UNISVS DISCLAIMS THE IMPUEO WAA- RANTIES OF MERCHANTABlUTY AND FITNESS FOR A PARTICULAR PURPOSE A3 TO BOTH UNISYS NfJ NON UNISYS PRODUCTS AND SERVICES. UNISYi WARRANTIES EXTENOSOlELYTO CLIENT. YEAR 2000 WARRANTIES OF EOUlPM9T AND SOFTWARe ARE MADE SOLELY IN seCTION 12.4. 12.2 Equipment (a) Unisys WllTants that equipment will ~ rr.. from derecls in malenal and wotkmanshtl Bnd will substantially conn 10 relevant Unisys published specifications for a perIocI of twelve monUls from its In-. stallat,on Dlle. Equipment (i) mllJ be newly m.nufletured, (ii) may be assembled from new or serviceable uslel parts thaI are equivillent 10 new parts in performa~, or (ii) may have been previously installed. During this twelve month warranty period. Unisys will repair or replace any delective item of equipment or pIIrt or component of equipment promptly reported or sent to Unisys by Clienl which Unisys delermines WIIS defective due to faulty material or workmanship. Client WIll pay transportation and insurance costs 10 ship equipment if an olf,sitl repair location is designated by Unisys: Uni~s IMII pay the retum costs il tile equipment was defective. Labor costs af diagnosis arl not included in this _rranly. .(b) Secause equipnent requires on.going rTlIintenenc.. 1tle preceding II/llrranty is flot a substitute far SURETY Sl4'PQrt Services, which are available to Client !or . charge (c) Uf\i$y::! melllcos n~ r'fll'OHntation or were.nly Is to non unlsyl equipment provided to CUent, an of wIlicn is GOld or licensed to Client 'A8 IS.' Ctienl a~.Alook SOlely to the warranties and remedies, if' any, provided by ~f8cturer. 12.3 SoftWare: (al Each itam of SO/lwatl with the designation W is, in its unaJlllrecf form, warranted ror 110 days frOl'll its Installation Date to conform sut). stantialty to the then-curT.nt ptblished fundianal specifICations. ptovided such Softwlr. is used In a maMer consistent with any applicable Unisys minimum equipment and software configuration specifications. Umsys 11/111 make reasonaele enorts rc correcf such 8ITDl'I reflecting significant deviations from the functional specifteations as are reportad by Client to Unlsys during such warranty period. (bl Becaust not aU errors in SoftWare can or need be correeled, Unisys cloes not warrant thaI all Sottwwt defecls Will be corrected. Similarly. Unisys does nol warrant Ibat 1tle lunctions contained in the SoftWare 'MIl meet Clienrs requirements or that the Software will operatll in combinations selected for use by Client. (c) AU oilier Software delivlI'ed is nol warranted by Unisys and ie licensed 'AS IS." In the case of nOli Unisys Software. Client al1en to ' look solely to the walTanlles and ~emeclies, if any, provided by the Unisys ticensor or vendor. 12.4 Year 2000, Equipment and Software (a) Unisys W8/'rents thlt tile Products designated OR' in the Y2K Ready column In the relevant Schedule to this ~eement will be capeble, when used in accordance With the applicable Product documentation provided by Unisys. of accurately processing dais data OnCIuc1lng. but nol limited to calCUlating. comperlflg and sequencing) from, into and between /he 2011I and 21st centuries and19~~ and 2000. lneluclng leap Y'. cllculations. provided tl\at aR third party products and Client's customized data processing materials used In combination With Ole Products properiy exchange dete dell with the Products (hereinafter 'Vear 2000 Read'l). Unisy1 will repeir or replace Products hi do IIot accurately process date dall IS set forth above. provided: (~ Client notifies Unisys before March 31. 2000 or. ;f later. before the Ixpiratlon of any general _ranty period lor the Products under Sections 12.2 or 12.3 above; and (ii) Client keeps tne Products at tile t~en<urT.nt release level(s) and. in the absence of a general W8rTlnly or alter any general WIlTanty pll'iod. enrollec:t continuously unc:ter Untsys maintenance. (b) Unj~ makes no warranty for dale data functionality for Products designated '\I" in tile Y2K Ready column. Unisys obtains these ProduC1s from tnird parties and ~II pess on to CNent well tlate data functionality warranties, if any. as tile Product vendor permits Unlsys to peM along on the Product vendor'. behalf to end users. C~ent agrees to IOClk solely to such Product vendclts lor correction or repair of defects in dale data functionality of such Products. (c) Products deSign.tld 'Re' in the Y2K RB8dy column are obtained from Ihird parties and are WllIl'anted.s 'R" according to Section 12,4(a). above. when: (~ acquired from Unlsys: and (Ii) designated by lkIisyc for use as I component in I Unisys packaged style designaled oR:' and (10 used by Client onty as a component in that unlsys packaged style. In an other instlncas, a Product designated 'Re' will be deemed and treated IS a 'V' Product under Section 12 .4jb). above (d) Unisys makes no v.wranty for date data functionality for Products designated 'W or 'U" or for Products with no designation in thl 't'2K Ready column. Client acknOYo4edges that it understandS that Products designated 'NO are not and will nol be made Year 2000 Ready and that Unisys disclaims any warranty 01 the Product's abitity to function corrllct~ ""en dealing Mth dates. Client has independently evaluated the Products and. noNrilbstanding the foregoing. confirms its erder for the said Products and 19'88' its use of such PrD4.1cts will be at its sole risk. 12.5 SURETY Support Servic..: (a) Unisys warrant. thaI equipment and Software will be suppor1llld in accordance With !lie specific SURETY Support Service seleclied. UnlS'(1 sell and exclusive obligations undar this 'MIIIT8nty will be to conform CD Itte :SUReTY ~upport Service Oeseripuons. Equipnent parts wnlcll are removed for replacement by Unisys become the property 01 Unisys. ~3()5 3982-006 13199) ,. 0114 ; " (bi :TO detemline eli9bili~ a~ prerequi~or SURETY Supt:)Clrt SINM;8S. Unisys may requn Iftspec;tion. ~t expeMe. of equep. ment which (i) has not been maintained continuousl'f by Unisys from tt1e date of purchne by Client or (i1) has been relocated. (c) unisys requires tile same SURETY Suppor1 Service level lor the SPU and all equipment and Sollwllre that is eligible fOl SURET'f Support Services and interoper1r.a wilh the SPU. Application softMlr.. 10cII area netwcrts. wcrtslatioM. and remote data communicaUons . Products are excluded from III. requirement. (d) SURETY Support Services de nat cover the parts and service reql.lired to repair damlga or cmect errors attributable 10 (i) alterations or OUI-cf,specitlcalion suppl~. (ii) accidellls. misuse. negligence or failure of Client to fallow instructions for proper use, care and cleaning of eqJipment. ~ii) extemal factors (e.g.. failure or fluctuation 01 elecijcal power or ai' conditioning. fire, Rood). or (iv) failure by Cflent to comply with UniSyS environmental specifications. (e) SURETY &\4lPort Services apply only to properly configurlCl Proc1ucts at the minimum hardware Md so/twar. levels designated by Unisys for $Upp0lt of tile aprlIieable Product specification. SUREn Support Services will include repair or correclion of matefial deviations that prevent tile Prodllctfrorn being Year 2000 Ready only il the Product is Wlrl'Inted as -R" according to Sections 12.4(a) and (c) and Unisys is then currently providing <Iev,lopment center support (also caned engineering support) fOl tile Product or. if Unisys discontinues development center support. a Unisy$ created repair or CCllfec:tion already ellists for the same deviation. Except as provided in the immediately preceding sentence. .,1 SURETY Su~ort Servtees provided by Unisys ellclude repair of damage or correction of errors related 10 date data functiDnality. / (f) SURETY Support Services do not include correction or repair of , defects. Including any related to date data fIlnclionality, in the design.. manufacture, materials 01' workmanship of eittlet (i) non Unisys servic:1$ Of products without a Unisys brand, Qt (ii) Product(s) for wl\icn Unisys has discontinuld development center support 12.& Information Slrvlces: (a) Unisys will endeavor to provide Informalion Services on a timely basis subject 10 availability of qualified personnel and lhe dilllcutty and scope of the setVices to b. provided. (b) Unisys may Inign. r"$Slgn and substitute personnel at any lime and may provide the same or simil. services and ma1erials to olhtr clien13. Ic) Information Services under this Agreement do nol include any services related to date data functionality, including setVic:es pertaining to Yur 2000. , . 13. Alterations and Atbchments 13.1 If UnisY$ is providlllG SURETY Support Services. Client "". give Unisys prior written notice of .ny proposed altefations or allachmenls to equipmenl. Unisys hiS no obligation tD provide SURElY Support Services fOI non Unisys attachments, allered equipment 01 modified Software. Should Unisys a~.. to maintain. support or correct altered Products, Unisys may impose IIddiIionaI cIIaf~S. 13.2 Unisys is not rl$poIl8ibII for allY malfunction. nonpetfonnanca or degadation of petfonnanee 01 Products, SlJAlHe:s or maintenance suppcrt materials caused by or r..uJlIng directly at indireclly from any alteration or attachment unless Unisys is maintaining and Client has notified Unisys of the alt"aUOn or attachment that causes Ule malfunction. 13.3 Unisys warranties will not apply if attachment of non Unisys equipment 01' alteration of Prcclucl:s directly or indireclly results in any malfunction, nonperformance at degrad8don of performance of Un;.y. Praclucts; in addillon, Client will be solely responsible for resulting infringement. personal inilrf or damage to property and Products. 13.4 Fat PWPOMS 01 this ~eement. "alterations" includes. but is not limited 10. the incorporation of non Unisys components. boardS and subassemblies Inll> equipment, 8S Will as modifications to Software. 'AlIacllmenls' includes. but is not limited to. any non Unisys 5 of 14 equipment. salW.~on.nts 01' deviees whieh ara connecttd to Unisy1 Products. 14. L.lmlt.aUon of Liability 14. t UNLESS FURTHER UMITEO ELSEWHERE IN THIS AGREEMENT, THE EN11RE UA8lUTY OF UNISYS AND WENT'S exCLUSIVe REMEDY FOR DAMAGES FROM ~Y CAUSE RELATeD TO OR AA1~ IHG OUT OF TIIS AGREEMENT, REGARDlESS OF THE FORM OF ACTION, METHER IN CONTRACT OR IN TORT, W1U NOT EXCEED THE GREATER OF (a) $100,000 OR (b) THE CHARGES PAID TO UNISYS DURING THE 24-MONTH PERIOD IMMEDIATELY PRIOR TO CUENT'S NOTICE PURSUANT TO SeCTION 1&.1 FOR THE PRODUCTS OR SERVICES WHICH ARE THE SUBJECT MATTER OF OR DIRECTLY RELATeD TO THE CAUses OF ACTION ASSERTED. THIS SECTION 1..1 DOES NOT APPLY TO CLAIMS COVERED BY SECTION 15. 14.2 IN NO EVENT W1U IMISYS BE LIABLE FOR (a) NlY INCI- DENTAl, INDI~CT, SPECIAL OR CONSEQUENTIAL. DAlMGES, INQ.UDlNG, BUT NOT UIltTED TO. lOSS CF USE, REVENUES, PROFITS OR SAVINGS. EVEN IF UNISYS KNEW OR SHOULD HAve KNOWN OF THE POSSIBIUTY OF SUCH DAMAGeS, (b) C~MS. oeMANDS OR ACTIONS AGAINST ClIENT BY AllY PERSON, exCEPT AS PROVIDED IN SECTION 15, OR (e) LOSS OF OR DAMAGE TO CUENT DATA FROM AJtf CAUSE. . 14.3 The entira Dability or Unisys an:.! Clienrs exdusive remedy for any defective non Unisys Product$ provicled under thi$ Agreement is limittd to tllail' relUm to Unisys within 9Q days aft. shipment fat refund 0' ttle amount paid Ie Unily$ for such Products (not including any amounla paid lor related services). 14.4 Unisya may direct Client tc third parties having products 0( services which may be of Inwest 10 Client ror use In conjunetlon with the Products. Not\l/it1lstanding any Unily$ rec<<nmendatlon, rel'en'al or introduetion, Client win independenUy investigate and test non Uoisys produets and SefVicet and will have $Ole respansitlitity for detenninint suitability lor IIse of non Unisys products and services. Unisys has no liability with respect to claims relating 10 Of arising from use of non Unisys products and services. including, wltl\out limitation. claims arislOg from Ia~"e of non Unisys products 10 provide propel limit and date Iunctiona~ly. 15. Patent. Copyright and Trade Secret Indemnification 15.1 Unisys, at its 0\Ml expense. will defend and indemnify Client against claims that Products furnished under this Agreement inrringe . United States patent 01 copyright or misaFFoprlate trade secreta pr0- tected under United Stat8$ law. provided Client (a) gives UniS)'$ prompt written notice of such claims pursuant to Section t7. ~) pemlits Unisys to defend or settle lI1e clams, and (c) Pfovides all reasonllble assistance to Unisys in defending or settling the claims. 15.2 As 10 any Product whiCh Is subleclto a claim of infringement Of' misappropriation. Unisy. may la} obtain the right of continued use or the Product for Client or (b) replace or modify lhe Product to avoid tile claim. If neither alternative is avaiBble on cOlmlercially reasonable terms. lhen. at the rCque'Jlt of Unisys. any applicable Software license and its charge$ will end, Client will slop using the Product, and Client will return the Pradue! to Unisys. Upon retum of the Produet. Unisys will giva Client a credit far till price paid to Unlsys. less a reasonable offset ror use Ind obsolescence. 15.3 Unisys will not defend or indemnify Client if any claim or In- frin!jlment or misapprop'iation (e) is usarted by a parent. subsidiwy 01 affiliate of Client (b) results "om Client's design or alteration 0' any Producl. (c) rnutts from use of any Produc:t in conilination with any nen Unisys product. or (d) relates to a non Unr.sys Product alone. t5.4 This Seclion 15 slates tile entire liability of Unisys and CII.nts sole and exclusive remedies for patent or copyright intingement and trade secret mislppl'opriaUon. 16. Termination and CuceUatioll 16.1 Unisys may suspend SURETY Support Services if any payme'" fer such s8fVice und.. this Aveement is past due more !han 30 days. 4305 31182-OOi (3199) . . , {B.2 Unisys mlY ttmlinate SURETY ~0rviCAs or change sup- port to Cliellt far a Product IC)On silc.,':i's .itten notice Of at lhe expiration of the lIIen,current term for SURETY Suppor1 Services, whichlNer occurs ..rtier 18.3 Either party may terminate any licensl for Software 01 any SURETY Suppcx1 Serve. upon expiratiol\ of the ajlplieeble term by providing 30 dayS prior.itIIn neb. Faiure to give such nodc.win result in a renewal or exleneion of Iht license or service in accordlllC8 with the pl'owlsions of lIIis Ageemenl The licenses for any Software automatically terminate upon ClIenrs discontinuanc. of USl of the SPU on which ttw Software was f1censed, atlllhich lime Client must either destroy or re(lI1l !he Software and dOcumentation to Unisys. Upon termination 0( cancellallon of SURETY Support Services. all diagnostics . will b. relUmed to Unisys. . 16.4 Without prejudice to olher remedies. Unisys mlY cancel tllis ~eement or any order placed under it. for dllault and repoSllAlSS Products (lllCeluding only equipment for which the purchl$8 price has been fully paid). if. ~ \llrittan notice, Client "Is 10 (a) make any payment identified as delinquent (including payment 01 ch.gn I" . services) within ten d8y$ or (b) cure any derault relating to S~tions 10 or 1 1 IlIittlin 30 days. I e.s Unisys may lerminate SURElY Support Services on 30 days prior 'Mitten notice if Unisys determines lIIat any altl!'llions, attaclmenls, Client Software modiflcalion or failll'e to install 8 maintenance releasl wllllnt.fere with ltIe provilion of such services. 18.8 T ermillltion or cancellation of tllis Agteement will not afflct any rights or dulies arising under it with respect to Proprie1alY Inlormation or . seell'ity int<<est. / '17. Notic;.. 17.1 AU notices required by ItIis Agreement 10 be ~en to Client wilt be sent to its address on ltIe cOlIer page of lhis ~eemenl. 11.2 All nolicn required by Sections 16 and 18.1 and al reqUK15 for information under Section 8 wiD be sent by certifted or registered mail and, When given III Unjs~s. adctessed to: Office of General Counsel Unisys Corpontion Unisys Way BlueBell PA 19424 cc; Regional VICe Presidetlt 17.3 All oltler notices to Unisys will be sent 10 lIIe Unisys offiCI which has been servicing Clilnl. 18. Dispute Resolution 18.1 Disputes and Demands 0 ANt ClAII OR CONTROVERSY RfLATED TO OR ARISING OUT Of THIS AGREEMENT WHETlER IN CONTRACT OR IN TORT ("DlSPUTE1, WILL BE RESOlVED ON A CONADENTIAL. BASIS ACCORDING TO TIE FOllOWING PROCESS. WHICH EITHER PNtTY lAY START BY DELM!R1NG TO THE OTHER PARTY A WRITTEN NOnCE DESCRHING THE DISPUTE AND THE AMOUNT INVOLVSJ ("DEIIAND"). 18.2 Negotiation and IIedItIItJaft 0 AFTER RECEIPT Of A DEMAND, AUTHORiZED REPRESENTATlVE& OF THE PNtTIES WlU.IlEET AT A MUTUALLY AGREED UPON TIlE AND PLACE TO TRY TO ReSOL.VE THE DISPUTE BY NEGOTIATION. IF THE DISPUTE REMAINS UN- RESOLVED AFTER THIS MEETING, EITHER PARTY UAY&TART MANDATORY NON-SINDlNG IEDlATION UNDER THE COMMERCIAL MEDIATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (A.M). 18.3 Ar'Oltrlllon. IF THE DISPUTE REMAINS UNRESOlVED 45 DAYS AFTER THE RECEIPT OF THE DEMAND, ElnB PARTY MAY START BINDING ARBITRATION lJU)ER THE COMMERCIAL ARBITRATION RULES OF TIE AM. THE ARBITRATION WlU. Be BEFORE ONE ARBITRATOR; HOWEVER. BEFORe THE SELECTION OF THI!! ARBITRATOR. A PARTY ~OSE IDENTITY WlLJ. NOT BE RMALEO TO THE ARBITRATORS) MAY REQUIRE, AT ITS sa.e ADDITIONAL EXPENSE, A T~BITRATOft PNEL. AT lEA.ST ONE Mil- TRATOR WILL .~ ATTORNEY. NO STATEMENTS SV, OR COMMUMCATICNS BETWEEN, THE PARTIES CURING NEGOTIATION OR MEDIATION, OR SOTH, UNDER SECTION 11.2, ABOVE. WIll BE ADMISSIBLE FOR Am PURPOSe IN ARSITRAnON, THE ARSITRA- TOR(S) WILL HAVE NO AUTHORITY TO AWARD PUNlTIVI! DAMAGES OR A14Y OTHER MONET MY RELIEF NOT MEASURED BY THe PREVAILING PARTY'S ACTUAl. DAMAGES (ADJUSTMENTS FOR TIMe v AWE OF MONEY PERMITTED), AJ#D WIlL NOT MA.I<E Nff tECISION INCONSISTENT WITH THe TERMS AND CCIOTIONS OF TIo1IS AGREEMENT. EACH PARTY WILL SEM ITS OWN INTERNAL EXPENSES AND ATTORNEY'S FEES. 1ll.4 Court . NOTHING IN THIS SECTION 18 WIU. PRECLUDE A PARTY'S RECOURSE TO A COURT '* COMPETENT J\RSOlCTlON TO (II ENFORCE THE TERMS OF, OR AN AJUrRATION AWAIm UNDER, THIS SECTION; (b) SEEK TEMPORARY EQUITABlE RJ:UEF NECESSARY TO PROTECT ITS INTERESTS; OR (c) RECOVER SPECIFIC PROPERTV,INa.UOING 1M ACTION IN REPLeVIN. 18.5 Time LimIt, NEITHER ARBITRATION UNDfR THIS SfCTION NOR NIY LEGAL ACTION, REGAAa..ESS OF ITS FORM. RELATeD TO OR ARISING OUT OF THIS AGREEMENT MAY BE BROUGHr MORE THAN 2 YEARS AfTER THE CAUSE Of ACTION FIRST ACCRUED, EXcePT IF A DEMAND IS MADE WITHIN 45 DAYS BEFORE THE END OF THIS 2 YEAR PERIOO, THE PMTIES 'MLL HAVE 60 AOOlTIONAl DAYS FROM THe DEMAND TO STNtT ARBITRATION UNDER THS AGREEMENT. 19, Other Provisions t 9' All risk of loss or damage to Products w~1 pass to Client upon delivlll)' to Clienfs localion. . t 92 Neitl\er party w~1 be liable f<< failure to lulfia its obliga1lcns wilen due to causes beyond ill reasonable control. 19.3 Any 'allure or delay by either patty in ellerc:ising any right or remedy wiR not constitute 8 waiver. 19.4 THIS AGREEMENT WILL BE GOVERNED BY THE LOCAL LAW OF THE COMMONWEAl. TH Of PENNSYLVANIA. 19.5 This ~eement constitutes tile entre agreement between the parties wi1h respect to the Products and services pC'ovided hereunder and $upenedes all prior proposals and alJtements, bolh v.ritten and CInII, and all other written and oral communications bet.wen the parties. Statements made to you in the course 01 th~ sala are subject to the Year 2000 Informalion and Readiness Disclosure Act (15 U,S.C. t.note). In the 1:8$' of a dispute. this Act mlY reduce your legal ri~ts regarding 111. use of any such stelem.nt., unless olllerwise specified by your contractor tarin. The terms and conditions of this Agreement win supersede all other terms and conditions submitted by CUent, including any preprinted terms on any Client purcllase orders. 19.e Unisys may assign lhis Agreement or its interest in any equipment 01 assign the right to receive payments, WIthout Client's c:onseflt. Ally such assignment. hOW8'ller. wUI not change the obligations of lJnlays to Clie~t. Cticnt will not assign or trans'" its rights or obligations undlt this AlJeement \iAthout prior v.fitten consent of Unisys. Any assignment or transfer prohibited by this provision will be void. Unisys mlY subconlract any serviCes desCfibed In this Agreement to third parties selected by Unisys. 19.7 The terms and conditions of this Agreement may be modified only by a lM'iting Signed by a Uni$Ys Vice President, General Manager or Contracts Manager. 19.8 Each paraf1aph and prOVIsion of this A,.eement is severable, and il one or more p8r&g1llPhs or provisions IIrll declared invalid. the remaining provisions of ltIls Agreement will remain in full tace and effect. 19.9 Prodllcls and services provided under this 1qeement may be subjllC! Ie U.S. and other govllfTlment export eonltol regula1ion.. Client assures ttlIt it will comply with all applicable export laws and regulations ",elated to lIIe use, disclosure. IXPort. or reexport of these Products and services. 6 of 14 430~ 3982.006 (3188) UNISYS Supplemental Schedule Order rgreem:~~::7~ Client City of Santa Ana Description of Products/Services V Series ETP License. This order and term shall end on 6/30/2010. Payment is due before 6/30/2008. Exhibit B This Order consists of the Products and/or services described on the forms listed and checked below: Check if Number Total dollars Form number Description applicable of pages 0 43054931-006 Equipment Sale Schedule ~ 1 130,589 4305 4933-006 Software Licenses Schedule - 0 4305 4934-001 Information Services Schedule - 0 4305 4940-005 Support Services Addendum - 0 4305 4942-002 Support Services Schedule - 0 4305 4944-002 Support Services Schedule for Desktop Equipment 0 4305 4935-001 Systems Integration Addendum - 0 4305 4936-002 State and Local Government Addendum - 0 4305 5383-002 Statement of Work - 0 4305 7940-002 OS2200 Metering Software Schedule - 0 4305 7942-003 MCP Metering Software Schedule - 0 4305 7944-001 NDP Measured Software Schedule 0 4305 7975-002 Application Software Support Services Addendum - 0 4305 7983-001 Application Support Services Schedule 0 - 0 - This Supplemental Schedule Order ("Order") is placed under the Agreement identified by the Agreement Number listed above. Unisys may accept or decline this Order. The terms and conditions of the Agreement will govern this Order. If there is no Agreement Number listed above when Client signs this Order, the Order will be governed by the Agreement that is identified below and attached to this Order, and Unisys will assign an Agreement Number upon its acceptance of the Order. Agreement title and form number (complete only if there is no Agreement Number in the block above) Agreed and Accepted Client: t:1 -. ,., 4-t~~ t ' i:tirr...J /-<:::/?~. ..~ (/. - (Signature) (/ Thomas Jo Gergen (Printed/typed name) Manager, Information (Title) 4/29/08 (Date) (S I I Hl1t+ V e r-, (Printed/typed name) Coo.'\'~ {""tch (Title) Services 4305 6209-009 (9/05) Unisys Software License Schedule Equipment Location CITY OF SANTA ANA 20 Civic Center Plz Santa Ana, CA 92701-4058 List of Products Applicable to this Agreement Agreement Number 199120112 Currency: use Item Style Description Qly Warranty License License Initial Ucense Installation No. Plan Charge Charge Charge 1 V300-CE1 DEV AI D:CANDE 1 W ETP24 19,990 2 V300-COB CMPLRCOBOL 74 1 W ETP24 30,982 3 V300-DM2 DATAMGT:DATA MGMT II 1 W ETP24 102,937 Software Discount -23,320 Page: Purrnase Price Page: Install Charge License Plan 130,589 1. The initial license term (and the corresponding charges for licenses) will begin upon Unisys Shipment or Clienfs Total perchase price Total Install Charge download of the Software or Software key. Temporary backup use of Software may require Client to purchase 130,589 0 additional enabled performance for the backup SPU. Grand total 130,589 2, Software licenses for which Unisys charges either an Annual License Charge (ALC) or a Monthly License Charge (MLC) will continue on a month-to-month basis and the ALC will renew annually until the license is terminated or canceled in accordance with the Termination and Cancellation section in this Agreement 3. For certain licenses, Unisys may charge an Initial License Charge which includes the first monthly or annual license charge. 4, Extended Term Plan (ETP): Software licenses for which Unisys charges a single fee may have a 12 to 84 month extended term. Upon expiration of the extended term, the license will be automatically continued on a month.to- month basis for a Monthly License Charge, unless terminated in accordance with the Termination and Cancellation section of this Agreement, or Client may pay another ETP fee for an additional extended term, if available. 5. One Time Charge (OTC): Client may use the Software for so long as Client continues to use the Software on the equipment, include SPU(s), for which it was licensed in accordance with the Agreement 6. Software that has no license charge listed on this Schedule will have a license term that is coterminous with Client's possession and use of the equipment on which the Software is installed. UNISYS SHALL HAVE NO LIABILITY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION BASED SOLELY ON OPEN SOURCE SOFTWARE OR THIRD PARTY SOFTWARE CONTAINED IN ANY UNISYS PRODUCT, . Software designated Subscription ("SUBSCRN") enti~es Client to receive functional update releases for the Software during the subscription term, provided Client has a current license and the latest applicable Maintenance Releases for the Software. Software designated License Only ("LO") is provided without media or documentation; Client may make (a) one copy of the item for each LO license granted by Unisys, and (b) one copy for backup purposes, with each copy retaining all onginal notices and legends. Software designated Driver is for use solely with the device models specified in the drive(s then-current published specification; a separate license is required for each individual addressable device. 43054933-007 (11/06) approved by the City Manager and City Attorney, (Items 25,A through 25,Q,) 25.A. AGMT 2008-076 HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2008-02 - With, Jeffrey P. and Kathleen T. Dobias for the structure located at 1920 North Greenleaf Street - Planning and Building Agency 25.B. AGMT 2008-077 HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2008-03 - With Karen R. Klosterman for the structure located at 2301 North Flower Street - Planning and Building Agency 25.C. AGMT 2008-078 HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2008-04 - Steven E. Nickols for the structure located at 2448 North Riverside Drive - Planning and Building Agency 25.0. AGMT 2008-079 HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2008-05 - With Steven and Kimberly Rodriguez for the structure located at 2460 North Heliotrope Drive - Planning and Building Agency 25.E. AGMT 2008-080 HISTORIC PROPERTY PRESERVATION AGREEMENT NO. 2008-06 - With Angel Barnes for the structure located at 2006 North Victoria Drive - Planning and Building Agency 25.F. AGMT 2008-081 - MAINFRAME COMPUTER SOFTWARE LICENSES - With Unisys Corporation in the amount of $141,000 for a two year term- Finance & Management Services Agency 25.G. AGMT 2008-082 - FIRE ALARM SYSTEMS MAINTENANCE AND TIME CLOCK SUPPLIES - With Simplex Grinnell in an annual amount not to exceed $65,000 - Finance & Management Services Agency 25.H. AGMT 2008-083 - COOPERATIVE AGREEMENT FOR COUNTY'S PROPOSITION 1 B ALLOCATION FOR CITY STREETS - With the County of Orange to receive a portion of the County's Proposition 1 B State allocation funds - Public Works Agency MOTION: Benavides SECOND: Tinajero VOTE: AYES: Alvarez, Benavides, Bustamante, Martinez, Pulido, Sarmiento, Tinajero (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) CITY COUNCIL MINUTES 10 MAY 5, 2008