HomeMy WebLinkAbout25F - SOFTWARE LICENSEREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
MAY 5, 2008
TITLE:
AGREEMENT WITH UNISYS FOR
MAINFRAME COMPUTER SOFTWARE
LICENSES
'R 1~
~ f f~
Ire
CITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
^ As Recommended
^ As Amended
^ Ordinance on 15i Reading
^ Ordinance on 2nd Reading
^ Implementing Resolution
^ Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Approve and authorize the City Manager and Clerk of the Council to
execute the attached agreement with Unisys Corporation in the amount of
$141,000 for a two year term, subject to nonsubstantive changes approved
by the City Manager and the City Attorney.
DISCUSSION
The City currently uses a Unisys mainframe computer as the operating
platform for the City's financial systems. Unisys is the sole-source
provider of essential system software for this equipment. The City is
currently implementing a new financial system which will replace the
Unisys mainframe. This new agreement will provide software licensing
for the mainframe for a two year term covering the period before the new
financial system is in place and the legacy system can be retired. A two
year term with up front payment will provide lower pricing than the
alternative month-to-month pricing.
FISCAL IMPACT
Funds are available in the Technology Plan (account 109-700-6291).
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
25F-1
SOFTWARE LICENSING 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 of their mutual and respective promises, the parties
hereto do hereby state as follows:
Terms and Conditions
The term for this Agreement shall be for a period beginning July 30, 2008 and ending
June 30, 2010.
All terms and conditions regarding software licensing set forth in pages 1-6 of Unisys
Consolidated Agreement -Number 99120112, shall have full force and effect in this Agreement.
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.
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.
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25F-2
IN WITNESS WHEREOF, the parties have executed this Software Licensing Agreement as of
the date of execution by both parties below.
ATTEST:
PATRICIA E. HEALY
Clerk of the Council
CITY OF SANTA ANA
DAVID N. REAM
City Manager
Date:
APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By.
Laura Sheedy UNISYS CORPORATION
Assistant City At rney
VENDOR {signature}
Name:
Title:
Tax ID#
Date:
2 of 2
25F-3
r,,
-~ t4 Agtecmer-t Number
99120112
iJNI5Y5
Client Nuns and Nailing Addre~
City of Santa Ana
Mr. Thomas J. Gergen
20 Civic Center Plaza
Santa Ana, CA 92702
Client acknowledges it has read and understands this Agreement (including all attached schedules and amendments) and is not entering
into this Agreement on the basis of any representations not expressly set forth in it.
Agreed and Accepted
Unisys Corporation
• 3//3/d a
~5~„--~n~AAIDIOAE~i-- tom)
CONTRACTS MANAGER
UNISYS COR°ORhTION
(Pnniadnyp•d nvn•)
Client
;Sipnaiva) (py~)
Thomas .7. Gergen
;PmledAyped name)
Information Systems Manager
(Tm•) (Tilk)
1 of 14 1305 3D82~oB (3Ip6)
EXHIBIT A
25F-4
Consolidated
Agreement
~~ ~~J~TISYS G nsolidated A reement ~'
9
Unisys Corporation (Unisys) wilt sell and license Products and services and Client agree: to purchase and license those Products
and services under the following terms and conditions:
1. Definitions
t.1 Software means the object code version of computer programs
and say related documentation, exckrding maintenance diagnostics.
Software also means the source code version where proviaed by
Unisys. Software also means microcode, not embedded in a circuit
element, that enables the equipment to function according to its
published specifications. '
t .2 Products means equipment. Software, documentation (including
manuals and education materials) and Software maintenance releases
and updates-
1.3 Sottwue Processing Unlt ('SPU') means equipment which
controls and executes Software.
t .4 SURETY Support Services means various forms of installation
and support for the Products.
1.5 Proprietary Intarmatiott means Software, diagnostics, docu-
mentation, including manuals, and any other information confidential !o
Unisys or its Ncensors.
1.8 Information Services means all technical and consultative
services other then SURETY Support Services.
1.7 Installation Date means the date Unisys completes installation (as
determined by Unisys) or. if equipment or Software is to ha instaNed by
' Client, the tenth day following shipment.
Z Effective Date
This Agreement wdl become effective when signed by duly authorized
representatives of both parties and will continue in eBect until
terminated according to its terms.
3. Schedules -Ordering Procedure
3.1 Unisys will famish to Client and Client will accept and pay for the
Products and services item¢ed on the following Schedules which,
together with the terms on the Schedules, ere an integal part of this
Agreement.
Schedule name
Equipment Sale
SURETY support services
Software Licenses
Information Services
All references to Products and services in this Agreement are fo the
Products and services listed on the Schedules and on arty Schedules
submitted to and accepted by Unisys pursuant to Section 3.2 and to
any Products end services suppged by Unisys with such listed Products
and services.
3.2 Client may order additional products and services under this
Agreement by sulxt-itting properly completed Unisys Supplerriental
Schedule Orders referencing this Agreement. All Orders will refer to this
Ageemtnl by number and wit bs signed by Client. All education
lecture courses must be ordered on a Client Education Enrollment
Application.
3.3 All orders are subject to acceptance by Unisys. Acceptance by
Unisys wiN be effective when cormiunicated in writing to Client Ths
receipt or deposit by Unisys of a Client down payment will not constituq
acceptance of an order. Any down payment received bom Client wiN be
returned i( the order is not accepted by Unisys.
3.4 Unisys may substitute Products of equivalent or superior funC-
tionality and performance in the event that any of the Products ordered
are not available at the time of shipment.
4. Delivery and Installation
4.1 Unisys will arrange for delivery of Products and Client wit pay fa
transportation in accordance with the Unisys published transportation
charges in effect at the time of delivery or, if Unisys has not published
any such charges, Client vdlt pay Unisys for transportation charges
actually incurred. Client will also pay for all cables and site-specific
installation materiels requaed !b install the equipment et Clients sits.
4.2 Unisys will provide Client with one copy of the then-current user
documenMtion, in paper or electronic farm al the option of Unisys, for
use with the Products ordered and environmental specifrcatior>s for
equipment, where applicable. Prior to delivery of equipment, Client will
prepare the installation site and wilt continue to maintain the installation
site in accordance with such specifications.
4.3 Client wiN instal aN items of equipment with the designation 'Y' in
the 'Client installable' column when theta is no installation charge listed
on the Equipment Sale Schedule. Unisys will instal aU other items of
equipment. Client will instaN al items of Software other than chose for
which a fixed installation charge is indicated on the Software licenses
Schedule. All Products to be instated by Unisys will be installed during
Unisys normal working hours, unless otherwise provided in this
Agreement.
4.4 Client may arrange for insulation by Unisys of Client instatiable
Products, subject to the then-current standard Unisys changes and
concitions.
4.5 It additional labor and rigging is required to Installation duo to
Clients special site requirements, Cftent wiN pay those costs atcluding
costs to meet union or local law requirements.
5. Payment
5.1 Charges for Products will be invoiced upon sh~xxrtent.
5.2 Charges for SURETY Support Services will be invoiced in advance,
quarterly, annually, a at other periodic intervals; otherwise, charges wilt
be invoiced after the services aro pertonned. Hourly use, page and
remote service charges will be invoiced monthly unless otherwise
indicated.
5.3 Charges for Information Services wNl De invoiced as the services are
performed.
5.4 All charges must be paid no later than 30 days from the date of the
invoice. Unisys msy impose a late payment charge equal to the lesser of
(a} 1-1/296 per month or (b) the maxatium rate allowed by law.
5.5 Additional charges may apply to services rendered outside con-
tracted hours or beyond normal coverage at ClienCs request, e.g., travel
expenses, premium end minimum charges.
ti. Taxes
6.1 Client will pay any tax Unisys becomes obligated to pay by virtue
of this Agreement. exclusive of taxes based on the net income of
Unisys.
6.2 Ali personal property and similar taxes assessed after shipment will
be paid by CNent.
T. Price Protxction
7.1 The charges far Products in any accepted order vriH remain fxm
through delivery, unless through no fault of Unisys shipment takes place
more than one you after the date of the order. It Unisys notifies Client
that an increase in charges will apply to its order, Client may tsrrriinate
the affected part at its order by giving written notice to Unisys within ten
days of the date of notification of the increase.
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~sos seas-0oe tit
25F-5
7.2'SURFTY Support Services charges will ~e increased dttring the
firgt ;4aefve months following ttx commence>k~,t of those services. The
charges may be increased thereafter on each anniversary of the com-
mencement date toltawing gt] days prior wrrtten notice to Client, unless
otherwise noted on the SURETY Support Services Schedule.
7.3 Charges for Software Licenses and Information Services will not be
increased during any ores-ysx trmt, but may be increased prior to arty
subsequent term upon 90 days prior written notice to Client. It Software
or services are contracted on a month-to-monftt basis the charges may
be increased at any time following 90 days prior written notice.
8. Security Interest
Unisys reserves a purchase money security interest in equipment until
payment in full is received for all equipment delivered to Client and, for
that purpose, this Ageement is a security agreement. By signing this
Agreement. Client authorizes Unisys or its agent 1o sign on behalf o/
Client the necessary financing statements, or to fik a reproduction of a
financing statement. Alternativery, Unisys may file this Agreement or a
copy of this Agreement to perfect its secwity interest. If this Agreement
a a copy of it is filed. intarmation concerning the security interest may be
obtained ham Unisys at the address stated in Section 17.
9. Cllent'a Operational Responsibilities
g. t Client acknowledges it has ir~ependenty determined That the
Products and services ordered under this Ageement meet its
requrcements.
9.2 Client has sole responsibility for use of the Products, including
operating procedures, audit controls, accuracy and security of input and
output data, restart and recovery routines, and other procedures neces-
sary for ClienCs intended use of the Products.
9.3 Client vrilt ensure that its personnel are, et all times, educated and
trained in the proper use and operation of the Products and that the
Products era used in accordance urith applicable Unisys manuals and
instructions
9.4 Client volt maintain back-up data necessary to replace uiticai Client
data in the event of toss or image to such data from any cause.
9.5 If Unisys is providing SURETY Support Services. Client unp (s)
maintain the operating environment in accordance unU Unisys
specifications, (b) provide adequate working and storage space far use
by Unisys personnel near the equipment. (c) provide Unisys full access
to the equipment and suflrcienl computer time, subject only to Client's
security rules. (d) follow Unisys procedures rot placing serrrice requests
and determining if remedial service is required, (e) fohrow Unisys in-
structions for operator maintenance and obtaining services, (~ provide a
memory dump and additional data in machine readat>lo brm if requested,
(g) reproduce suspected errors or malfunctions in Software, and (h)
install ell error carractions and maintenance releases supplied by Unisys.
9.6 Information Services supplied by Unisys under this Ageement era
provided to assist Client. Client, not Unisys, wit! be responsible
tot determining objectives and obtaining the desired results.
10. Protection of Proprietary Intbnrtatlort
t0.1 Client will keep in conAdertce rind protect Proprietary Information
hom disclosure to thud parties and restrict its use as provided in this
Agreement. Client acknowledges that unauttiarized disclosure of Pro-
prietary Information may cause substantial economic toss to Unisys ar its
licensors. All materials containing Proprietary Infomation will be marked
vnth'Praprietary," 'Confidential' or in a manner which gives notice of its
proprietary nature. Proprietary fntormation will not be copied, in whole a
in part. except when essential to correcting. generating or modirying
Proprietary Information for ClienCs authored use. Each Copy, including
its stooge media, wig be marked by Client with all notices which appear
on the original.
10.2 Upon termination or cancellation of any license granted under this
Agreement, Client will destroy {and, in writing, certify destruction) a
return to Unisys all copies of the Sortwaro the license for which has
been so terminated or canceled and any other related Proprietary
3dt4
Infortnaticn in Clwr~ossession (including Proprietary Information
incorporated in other;.~tware or wrAings).
10 3 Any ideas, concepts, know-how, data processing techniques,
SofhMdre, documentation, diagrams, schematics or blueprints developed
by Unisys personnel {atone or jointly with Client) in connedien wiffi
Information Services provided to Client wilt be the exclusive prc~ rty of
Unisys. Unisys grants to Chant anon-exclusive. royalty-Tree license to
use any of the foregoing in accordance with the terms of this
Agreement.
td.4 Client acknowledges that all support materials, inckrding without
limitation, diagnostic software, are the property of and include Pro-
prietary Intormaton of Unisys. Client assures that such materials wilt be
used only by Unisys mainter~ancs personnel, and that Unisys has the
right to remove such materials (ram ClienCs facility at any time. TAis
provision appkes even though such materials may ha listed in the
Unisys price lists, catalogs, invoices or contracts.
10.E Client will inform its employees of their obligations under this
Section 10 and instruct them so as to ensure sitrlt obligations are met.
t0.d This Section 10 will survive termination or cancellation of this
Agreement.
11. License
11.1 Unisys grants to Client a personal, non-exclusive and non-
transferable license to use Software and related documentation st-
cording to the terms and conditions of tliis Agreement, solely for
ClienCs intemat data processing requirements on Me Unisys SPU in the
Unked States on whid- Software is initially installed ClienCs use of
5ofturare wdl also be governed by any additions! eondifans which
Unisys may provide on or prior to delivery of Softvran. Cleat
ogees that Unisys may periodically inspect the computer site in order b
audit Software wppiied by Unisys installed at ClenCs site et mutually
agreed upon times. If s separate license agreement accompanies non
Unisys commodity Software. then tits separate license agreement terms
will supersede the license terms in this Agreement for that So(tWare.
11.2 Client may modify any Unisys application Software end may
combine this Software with other programs ar materials to lortn an
updated work, provided that upon termination of the license, the Unisys
application Software will be remand from the updated work and
returned to Unisys. Client will not decompile or disassarnbla any
Software provided under this Agreement or modify Software wtuch
bears a copyright notice of any third party-
11.3 Unisys providaa no media or documentation for Softwars des-
ignated 'LO' (License Only). Client may make (a) one archival
copy (for backup purposes) of each item of Software, and (b) one
copy, as required, for each license granted of Software designs#ed'LO'
Each copy will contain all legends and notices and wilt be subject to the
same conditions and restrictions as the original. Software designated
'SUBSCRN' (subsuip6on) entitles Client to functional updates that
Unisys releases for the same eligible base Software doting the
applicable term of the subscription, provided Client has a current license
and the latest applicable Software Maintenance Releases for the eNgtble
base Software. Software designated 'dRIVER' is for use solely vviM
those models of device types specified in the drivers then-content
published specification and a license is required fa each separately
addressable unit of a device type.
11.4 If the SPU on which any item of Software is licensed becomes
temporarily unavailable. use of such Software may be temporarily
Uansferred to an alternative SPU until the original SPU becomes
available.
11.5 No license is gronled to Client to use any Unisys proprietary
operating system Software to assess, test or develop any hardware
products or device hander software or operating system sothvare that
vrill be marketed by Client or others for compensation. Client may de-
velop other software progams and may fast fully developed, commer-
cially available non Unisys hardware products or software progams
where such testing is solely intended for Client's inEarnal
evawaGon of U-e fitness of such product or program fret Client's own
internal data processing purposes.
4305 3982-008 (3190)
25F-6
1'1:6 If Client desires to: (a) use Software r^ service ouroau mode
rp) use Software at another location, (c} trst'~uftware as restricted m
Section t t .5, or (d) transfer operational uss of the Software to a third
party; then Client roust request prior permission in writing from Unisys.
Unisys will tfien advise Cfient wheCtet, and under what terms and
conditions. Unisys wiA license the Software as requested. All restrictions
applicable b Client will also appty >n any permitted service bureau or
third party users,
11.7 This Agreement does not transfer to C~ient title to any +ntellactual
property contained in any Software, documenation or Proprietary
Information
11.8 No party is entitled to use any Software unless the party has a
valid written license to use such Software ar-d atl applicable charges for
the use of such Software have boon paid, except that Client may
authorize temporary use of Software by a third party, only for Client's
benefit, to assess, test or develop software programs to the extant
authorized by Section 11.5 a to perform consulting services and stud-
+es. provided such third party agrees in writing to be bound by the
provisions of Nis Agreement regarding Proprietary Information and
Software.
t 1.9 This section applies to ~atl procurements of Software and docu-
insntafton by or fa the U_S. federal government. 6y accepting delivery
of the Software and doctrmentatlon, the government hereby agrees That
the Software and documentation qualifies as 'commeraal' computer
software and commercial software documentation vrtthin tl+e meaning of
the acgtusitlon regulation(s) applicable to this procurement. Ths terms
and conditions of this license shah prescribe the government's use and
disclosure of the Software and documentation, and shall supersede any
contrary provisions. The government agrees to return the Softwars.and
documentation unused ii any provision of this License does oat meet
the govarnrnent'a actual minimum needs or i! the government objects to
any term of this license and the parties are unable to reach agreement
on the terms of the license. The totlowing statement applies only to
procurements governed by OFARS PaN 227.4 (OCT 1988}: 'Restricted
Rigt-ts -Use. duplication and disclosure by the Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in
Technical Data and Computer Software clause at OFARS 252.221-7013
(OCT 1988).'
12. Warranties and Oisclaimets
12.1 EXCEPT AS EXPRESSLY STATED IN THIS AGREE1dENT, THERE
ARE NO WARRANTIES, EXPRESS OR IMPLIED, 8Y C+PERATfON OF
t11W OR OTHERWISE. UNISYS DISCLAIkIS THE 1r+lPUED WAR-
RANTiES OF MERCHANTABILITY ANO FITNESS FOR A PARTICULAR
PURPOSE AS TO 80TH UNISYS AND NON UMSYS PRODUCTS AND
SERVICES. UNISYS WARRANTIES EXTEND SOLELY TO CLIENT. YEAR
2000 WARRANTIES OF EQIAPMtJdT A!!D SOFTWARE ARE MADE
SOLELY IN SECTION 12.4.
12.2 Equipment:
(a} Unisys warrants that equipment wilt t» Iron from defects in matenal
and vrorkmanshgr and will substantietty conform to relevant Unisys
published specincatans for a parted of twelve months from its In-_
stallation Date. Equipment (~ may be newly manufactured, (ii) may he
assembled from new or serviceable used parts that are equivalent to
new parts +n performance, a C~7 may have been previously instatled.
During this twelve month viratra+nty period. Unisys will repair or replace
any defective item of equipment or part or component of equipment
promptly reported or sent to Unisys by Client which Unisys determines
was defective due to faulty malarial or vartvnanship. Client vaill pay
transportation and instxance costs to ship equipment if an oft-site repair
location fs designated by Unisys; Unisys will pay the retum costs if the
equipment was defective. Labor costs of diagnosis are not included in
this warranty.
(b) Because equipment requires on-going maintsnancs, the preceding
warranty is not a substitute for SURETY Support Services, which are
available to Client for a charge.
(cj Unisys makes no representation of warranty as to non tlnlsys
equipment provided to Client, all of which is sold or licensed to Client
Latta
'AS IS." Client afire~~-look solely to the warranties and remedies, if
any, provided by the ti~aufscturer.
12.3 Sottwarr
(a) Each item of Software with the designation W is, in its unaltsred
form, wananted for 90 days from its Installation Oate to conform sub-
stanbalty to the then~unent published functional specifications.
provided such Software is used +n a manner cons+stent with any
applicable Unisys minimum equipment and software configuration
specittcations_ Unisys will make roasonable efforts m correct such errors
retlecting significant deviations from the hrnctional speciftcations as are
reported by CI'+ent to Unisys during such warrenty period.
Cb) Because not art errors in Software can of need bs corrected, Unisys
does not warrant that ell Software defects uvifl be corrected. Similarly,
Unisys does not warrant that the functions containtrd in the Software vdll
meet Clients requirements tx that the Saitware wiN operate in
combinations selected for use by Client
(c) AA otlter Software delivered is not wartanled by Unisys and is
licensed 'A5 IS.' In the case of non Uniaya Software. Client agrees to
look solely to Ma warranties and remedies, if any, provided by the
Unisys licensor or vendor.
12.4 Year 2000 -Equipment and Software
(a) Unisys warrants that Ors Products designated 'R' in the Y2K Ready
column in the relevant Schedule to this Agreement will be capable,
when used in accordance with the applicable Product documentation
provided by Unirys. of accuratety processing dots data (including, but
not limited to calculating, comparing and sequencing) from, into acrd
between tM 20th and 21st centuries and 1999 and 2000, including leap
year calculations. provided that ant third party products and Client's
customized data processing materials used in combination vinCt he
Products properly exchange date data with the Products (hereinaAer
'Year 2000 Ready'). Unisys will repair or replace Prodects that do not
aaurately process date data as set forts above, provided: () Client
notices Unisys before March 31, 20b0 or..f later, before the sxp~atan
of any general warranty period for the Products undo Sections 12.2 or
12.9 above; and (ii) Client keeps the Products at the then-currant
release level(s) end, in the absence of a general warranty or after any
general warranty period, enrolled continuously under Unisys
maintenance.
(b) Unisys makes no urarranty for date data functionality for Products
designated'V" in tfie Y2K Ready column. Unisys obtains these Products
from third parties and will pass on to Clien! such date dam functionality
warranties, if any, as the Product vendor permits Unisys to pass along
on the Product vendor's Dshalf to end users. Client agrees to look solely
to such Product vendors for correction or repair of defects in date data
functionality of such Products.
(c) Products designated 'RC- in Ute Y2K Ready column are obtained
from third parties and are warranted as'R' accordng to Section 12.4(a).
above. when: () acquired from Unisys: and (i} designated by Unisys for
use as a component in a Unisys packaged style designatsd'R:' and (r)
used by Client only as a component in Utat Unisys packaged styli, In atl
other instances, a Product designated'RC' will be deemed and treated
as a 'V' Product under Section 12.4(b), above.
(d) Unisys makes no warranty for date data functionality for Products
designated 'N" or 'U' or for Products with no designation in the Y2K
Ready column. Client acknowledges that it understands that Products
designated 'N' are not and will not be made Year 2004 Ready and that
Unisys disclaims any warranty of the Products ability to function
correctly when dealing with dates. Client has independently evaluated
the Products and, notvntltstanding the foregoing, confirms its order for
the said Products and agrees its use of such Products will be at its sole
risk.
12.5 SURETY Support Services:
(a) Unisys warrants that equipment and Software will be supported in
accordance with the specific SURETY Support Service selected. Unisys
sole and exclusnre obliga8ons under this warranty will be to conform to
me SURETY support service Osscripuons. Equipment parts which are
removed far replacement by Unisys become the property of Unisys.
X305 3984-00613199)
25F-7
(b) Ta determine eligibility and prerequisi_~~jor SURETY Support
Servx>es, Unisys may require inspection. ai~,ient expense, of equip•
ment which (i) has not been maintained continuousy by Unisys from the
date of purchase by Client or (ii) has been relocated.
(c} Unisys requires the same SURETY Support Service Level for the
SPU and ell equipment and Sofhwere that is eligible for SURETY
Support Services and inEeroperatss wilt the SPU. Application software.
local area networks. wtxkstations, and remote data communications
Products are excluded from tltis requirement
(d) SURETY Support Services do not cover the parts and service
required to repair damage or correct errors attrdiutabls to (i) alterations
or out-of•specificatian supplies, (ii) accidents, misuse, negligence a
(ailura of Client -o folbw instructions for proper use, care and cleaning
of equiprrtsnt, (iii) external (atlas (e.g., failtre a nuctuation of electrical
power or air condtiioning, fire, flood), or (iv) failure by Client to comply
with Unisys environmental specifications.
(a) SURETY Support Services apply only to properly configured
Products at the minimum hardv~rare and softurare levels 4esignated Dy
Unisys for support of the applicable Product specification. SURETY
Support Services will include repair a correction of material deviatans
that prevent the Product from being Year 2000 Ready onry if the Product
is warranted as 'R• according to Sectiats 12.4(a) and (c) and Unisys is
then curtently provid'mg development csater support (also retied
engineering support) for the Produc! or. if Unisys discontinues
devebpment center support, a Unisys created repair or correction
already exists for the same deviation. Except as provided in the
immediatery preceding sentence, all SURETY Support Services
provided by Unisys exclude repa'a of damage a rorrection of errors
related to date data functionality.
,~ (Q SURETY Support Services do not include correction or repair of
detects. including any related to date date functionality, in the design.
manufacture, materials or vuorkmanshQ of either (i) non Unisys services
a products without a Unisys brand, or (ii) Product(s) to which Unisys
has discontinued development center support.
12.ti Information Services:
(a} Unisys will endeavor to provide Information Services on a timely
basis subject m availability of qualified personnel and the difficulty and
scope of the services b be provided.
(b} Unisys may assign, reassign and substitute personnel at any lime
and may provide Me same or similar services and materials to other
clienb.
(c) Information Services under this Agreement do not include any
services related to date data functionality, including services pertaining
to Ysar 2000.
13. Alterations and Attachments
13.1 If Unisys is providng SURETY Support Services, Giant wiL give
Unisys prat written notice of any proposed alterations or atlactvnents b
equipment. Unisys has no obligation to provide SURETY Support
Services for non Unisys attachments, altered equipment a modified
Software. Should Unisys agree fA maintain, support a coaect altered
Products, Unisys may impose eddttiorpll charges.
13.2 Unisys is not responttdble for arty malfunction, nonperformance a
degradation of performarta of Products, supplies a maintenance
support materials caused by or resulting d'vectly a indirectly (ran any
alteration or attachment unless Unisys is maintaining and Client has
notified Unisys of the alteration or attachment that causes the
malfunction.
13.3 Unisys warranties wilt not apply if attachment of non Unisys
equipment a alteration of Products directty a indirectly results in any
malfunction, nonperformance a degradation of psrtormarice of Unisys
Products; in addition, Client will be solely responsible for resulting
infringement. personal injury a damage to property and Products.
13.4 For purposes of this Agreement, 'alterations' includes, but is not
limited to, the incorporation of non Unisys components, boards and
subassemblies into equipment, as well as modifications to Software.
'Attachments' includes, but is not limited to, any non Unisys
equipment, softvrar~rtpanents a devices which are connected b
Unisys Products. ~--'
14. Limitation of Liability
t4 1 UNLESS FURTHfft LIMITED ELSEWHERE M THIS AGREEMENT,
THE ENTIRE I.IABIUTY OF UNISYS ANO CLIENT'S EXCLUSIVE
REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARIS-
ING OUT OF THIS AGREEMENT, REGAROI.ESS OF tHE FORM OF
ACTION, WHETHER IN CONTRACT OR IN TORT, MILL NOT EXCEED
THE GREATER OF (a) =100,1X10 OR (b) THE CHARGES PAID TO
UNISYS DURING THE- 2t-INONTH PERIOD IMMEDIATELY PRIOR TO
CLIENT'S NOTICE PURSUANT TO SECTION 1ti.1 FOR THE PRODUCTS
Oil SERVICES WHICH ARE THE SUBJECT MATTER OF OR DIRECTLY
RELATED TO THE CAUSES OF ACTION ASSERTI~_ TMS SECTION
14.1 DOES NOT APPLY TO CLAIMS COVERED BY SECTION 15_
14.2 IN NO EVENT WILL UNISYS t3E LIABLE FOR (a) ANY INCI-
DENTAL, INDIRECT, SPECIAL OR CONSECUENTIAL OAMA,GES,
INCLUDING, BUT NOT UNITED T0, LOSS OF USE, REVENUES,
PROFITS lXt SAVINGS, EVEN IF UNISYS KNEW OR SHOULD HAVE
KNOWN OF THE POSSIt31UTY OF SUCH OANAGES, (b) CLa11fr1S,
DEMANDS OR ACTIONS AGAINST CLIENT 8Y ANY PERSON, EXCEPT
AS PROVIDED 1N SECTION t5, OR {cj LOSS OF OR DAMAGE TO
CLIENT DATA FROM ANY CAUSE.
14.3 The entree Lability of Unisys and Clients exclusrve remedy for any
defective non Utvsys Products provided under this Agreement is limited
to their rotirrn to Unisys within 90 days alter shipment fa refund of the
amount paid to Unisys for such Products {not incluctng any amounts
paid for related services).
14.4 Unisys may desct Client to third parties having products a
services which may be of interest to Client far use in conjunction vuitli
the Products. Notwithstand'atg any Unisys ret:ortimendation, referral or
introduction, Client unL independently investigate and Lest non Unisys
products and services and will have sole responsibility for deterrrtining
suitabiNty tar use of non Unisys products and services. Unisys hsas no
liability wish respect to claims relating b a arising horn Ilse of non
Unisys products and services, including, without limitation, claims
arising from failure of non Unisys products to provide proper time and
date functionality.
15. Patent, Copyright and Trade Secret Indemnification
t5.1 Unisys, at its own expense, will defend and Indemnify Client
against claims that Products famished under this Agreement infringe a
United States patent a copyright or misappropriate trade secrets pro-
tected under United States law, provided Client (a) gives Unisys prompt
written notice of such claims pursuant to Section 17, (b) permits Unisys
to defend or settle Me clauris, and (c) provides all reasonable
assistance to Unisys in defending or settkng the claims.
15.2 As to any Product which is subject to a claim of infringriment or
misappropriation, Unisy: may (a) obtain the right of continued use of the
Product for Client a (b) replace or modify the Product to avoid the
claim. If neither altsrnativa is available on commercially reasonable
terms, Men, at the request of Unisys. arty applicable Software license
and its charges will end, Client will stop using Me Product, and Client
will return the Product to Unisys. Upon return of the Product, Unisys will
give Client a credit for the price paid to Unisys, less a reasonable offset
for use and obsolescence.
15.3 Unisys will not defend or indemnify Client if any claim of in-
fringement or misappropriation (a) is asserted by a parent, subsidiary a
affiliate of Client. (b) results from Clients design ar alteration of any
Produce, (c) results from use of arty Product in combination witty any non
Unisys product, or (d) rotates b a non Unisys Product atone.
15.4 This Section 15 slates the entire IiabiNty of Unisys and Clisnrs
sole and exclusive remedies for patent a copyright infringement and
trade secret misappropriation.
16. Term(nation and Cancellation
5 of t4
18. t Unisys may suspend SURETY Support Services i}any payment la
such service under this Agreement is past due more than 30 days.
1303 3982-006 t3J99)
25F-8
~te_2 Unisys may terminate SURETY Suppo rvicss a change sup-
pai to Client for a Product upon srx mot~;~s written notice a at
the expiration of the then-current term to SURETY Support Services,
whichever occurs earlier
18.3 Either party may terminate any license fa Software or arty
SURETY Support Services upon expiration of the applicable term
by providing 30 days prior writltM notice. FaYure to give such notice wiU
result in a renevwal or extertaion of the license a service in accordance
with the provisions of this Agreement The licenses tar any Software
automatlcalry terminate upon CtienCs discontinuance of use of the SPU
on which itte Software was Ctcensed, at uArich time Client must either
destroy a return the Softvrrrs and docurnenbtion to Unisys.. Upon
termination a cancellation o15URETY Support Services. all diagnostics
will be tattooed to Unisys.
16.4 Without prejudice to other remedies. Unisys may cancel this
Agreement or any order placed under it. for default and repossess
Products (excluding only equipment far which the purchase price has
been fully paid). if, upon traitten notice, Clent tails to {s) make any
payment identified as delinquent {includ'Ing payment of charges to
services) within ten days or (b} cure any default relating to Sections 10
a 11 within 3o days.
18.5 Unisys may terminate SURETY Support Services on 30 days prig
Witten notice if Unisys determines that any alterations, attachments,
Client Software modification or failure to install a maintenance release
will Interfere with the provision of such services.
18.6 Termiaa6on a canceNation of this Agreement will not affect any
rights a duties arising under it with respect W Proprietary Information a
security interest.
'1T. Notices
t i. f Alt notices required by this Agreement to be gitren to Client wiU be
sent to its address on Me cover page of this Agreement.
17.2 AIt notices required by Sections 15 and 16.1 and aB requests for
information under Section 8 wip be sent by certified a registered mail
and, when given to Unisys. addressed to:
Office of General Counsel
Unisys Corporation
URlsys Way
Blue Bell PA 19424
cc: Regional Vice President
11.3 AN other notices to Unisys will tx sent to the Unisys office which
has been servicing Client.
18. Dispute Resolution
18.1 Disputes and Demands ANY CLAIM OR CONTROVERSY
RELATED TO OR ARISING OUT OF THIS AGREEMENT WHETHER IN
CONTRACT OR iN TORT ("DISPUTE'), MALL BE RESOLVED ON A
CONFlDENTIAL BASIS ACCORDING TO THE FOLLOWING PROCESS.
WHICH EITHER PARTY MAY STAttT BY DELNERING TO THE OTHER
PARTY A WRITTEN NOTICE DESCRtB1Nfi THE DISPUTE AND THE
AMOUNT INVOLVED ("
18.2 Negotiation and Wdlbrtlon -AFTER RECEIPT OF A DEMAND,
AUTHORED REPRESENTATIVES OF THE PARTIES WILL MEET AT A
MUTUALLY AGREED UPON T1YE AND PLACE TO TRY TO RESOLVE
THE DISPUTE t3Y NEGOTIATION. IF THE DISPUTE REMAINS UN-
RESOLVED AFTER THIS MEETING, EITHER PARTY MAY START
MANDATORY NON-BIt~ING MEDIATION UN~R THE COMMERCIAL
MEDIATION ROUES OF TIC AMERICAN ARBITRATION ASSOCWTK)N
(AAA).
18.3 Arbitration - IF THE DISPUTE REMAINS UNRESOl.VEO 45 DAYS
AFTER THE RECENT OF THE DEMAND, EITHER PARTY MAY START
BINdNIG ARBITRATION Ut~ER THE COMMERCIAL ARBITRATION
ROUES OF THE AAA. THE ARBITRATION WILL BE BEFORE ONE
ARBITRATOR; HOWEVER, BEFORE THE SELECTION OF THE
ARBITRATOR, A PARTY (NMOSE IDENTITY YNLL NOT BE REVEALED
TO THE ARBITRATOttS) MAY REQUIRE, AT ITS SOLE ADdTIONAL
EXPENSE, A THRE~''3BITRATOR PANEL. AT LEAST ONE AiiBl-
TRATOR WILL BE`tiei ATTORNEY. f+IO STATEMENTS t3Y, OR
COMMUFNCATKkIS BETWEEN, THE PARTIES DURING NEGOTIATION
OR MEDUTION, OR 80TH, UMOER SECTION 18.z ABOVE, WILL BE
ADMISSIBLE FOR ANY PURPOSE IN ARBITRATION. THE ARBITRA-
TOR(S) WILL HAVE NO AUTHORITY TO AWARD PUNITIVE DAMAGES
OR ANY OTHER MONETARY RELIEF NOT MEASURED t3Y THE
PREVAILING PARTY'S ACTUAL DAMAGES {ADJUSTMENTS FOR TIME
VALUE OF MONEY PERMITTED}, AND WILL NOT MAKE ANY DECISION
INCONSISTENT WITH THE TERMS AND CCNOITIONS OF THIS
AGREEMENT. EACH PARTY WILL BEAR ITS OWN INTERNAL
EXPENSES AND ATTORNEY'S FEES.
18.4 Court .NOTHING IN TIES SECTION 18 WILL PRECLUDE A
PARTY'S RECOURSE TO A COURT OF COMPETENT JURISDICTION
TO (a) ENFORCE THE TERNS OF, OR AN ARI3RRATtON AWARD
UNDF.Ft, THIS SECTION; (b) SEEK TEMPORARY EQUITABLE RELIEF
NECESSARY TO PROTECT ITS INTERESTS; OR (c) RECOVER
SPECIFIC PROPERTY, I1Vq.UDIPIG AN ACTION IN REPLEVIN.
18.5 Time Limit -NEITHER ARBRRATION UNDER THIS SECTK)N
NOR ANY LEt3AL ACTION, REGAR~ESS OF ITS FORM, RELATED TO
OR ARISING OUT OF THS AGREEMENT MAY BE BROUGHT MORE
THAN 2 YEARS AFTER THE CAUSE OF ACTION FIRST ACCRUED,
EXCEPT IF A DEMAND 1S MADE WtTHN 45 DAYS BEFORE THE END
OF THS 2 YEAR PERI00, THE PARTIES WILL HAVE ti0 ADDITIONAL
DAYS FROM THE DEMAND TO START ARBITRATION UNDER THS
AGREEMENT.
19. Atlter Provisions
15.1 All risk of toss a damage to Products will pass to Client upon
delivery to Clients location.
f9.2 Neither parry wilt De liable for failure to fulfill its obliga0orts when
due to causes beyond its reasonable control.
19.3 Any (allure a delay by either party in exercising soy right a
remedy will not constitute a waiver.
19.4 THIS AGREEMENT WILL BE GOVERNED BY THE LOCAL. LAW OF
THE COMMONWEALTH OF PENNSYLVANUI
19.5 This Ageement constitutes the entire agreement between the
parties with respect to the Products and services prov'~ded hereunder
and supersedes aU prior proposals and agreements, both written and
Drat, and all other written and orel communications between the parties.
Statements made to you in the course of this sate are subject to the
Year 2000 Infomtation and Readiness Oiscbsure Act (15 U.S.C.
1-note). In the case of a dispute. this Act may reduce your legal rights
regarding the use of arty such statements, unless oMerwise spxlned by
your contract a tariff. The terms and conditions of this Agreement trrt8
supersede all other terms and conditions submitted try Client, including
any preprinted terms on any Client purchase orders.
t 9.8 Unisys may assign this Agreement a its interest in any equipment.
a assign the right to receive payments, without Clients consent. Any
such assignment, however, w~l not change the obligations of Unisys to
Client. Client urill not assign or transfer its rights or obligations under
this Agreement without prior written consent of Unisys. Any assignment
or transfer prohibited by this provision will be void. Unisys may
subcontract any services desaibed in this Agreement to third parties
selected by Unisys.
19.7 The terms and conditions of this Agreement may be modified Dory
by a writing signed by a Unisys Vice President, General Manager a
Contracts Manager.
t9.8 Each paragraph and provision of this Agreement is severable, and
if one or more paragraphs or provisions ~e declared invalid. the
remaining provisions of this Agreement wilt remain in full farce and
effect.
19.9 Products and services provided under this Agreement may be
subject to U.S. and other gov~rtment export control regulations. Client
assures that it vdll compry with all appHcabte export lays and regulations
Kelated to the use, disclosure, export. a reexport of these Products and
services.
6of14
1305 3982-006 (3x661
25F-9
. Agreement Number
UNISYS Supplemental Schedule Order 99120112
Client
City of Santa Ana
Description of ProductslServices
V Series ETP License. This order and term shalt end on 6/30/10. Payment is due before 6/30/08.
Exhibit A
This Order consists of the Products andlor services described on the forms listed and checked below:
Check if Number Total dollars Form number Description
applicable of pages
^ 4305 4931-006 Equipment Sale Schedule
® 1 130,589 4305 4933-006 Software Licenses Schedule
^ 4305 4934-001 Information Services Schedule
^ 4305 4940-005 Support Services Addendum
^ 4305 4942-002 Support Services Schedule
^ 4305 4944-002 Support Services Schedule for Desktop Equipment
^ 4305 4935-001 Systems Integration Addendum
^ 4305 4936-002 State and Local Government Addendum
^ 4305 5383-002 Statement of Work
^ 4305 7940-002 OS2200 Metering Software Schedule
^ 4305 7942-003 MCP Metering Software Schedule
^ 4305 7944-001 NDP Measured Software Schedule
^ 4305 7975-002 Application Software Support Services Addendum
^ 4305 7983-001 Application Support Services Schedule
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
Unisys Corporation
(Signature) (Date)
(Printed/typed name)
Client:
(Signature) (Date)
T'homa:~ + . GeM~er.
(Printedltyped name)
:fana~cr, Tn~nr*~~^tion Serv_`_ccs
(Title)
4305 6209-009 (9/05)
25F-10 ~xH~BiT g
UNISYS Software License Schedule
Agreement Number
99120112
Equipment Location
CITY OF SANTA ANA 20 Civic Center Plz
Santa Ana, CA 92701-4058 USA
L' t f Products A licable to this Agreement Currency: USD
Is
Item o pp
Sryle
Description
Qty
Warranty
License
License
Initial License
Installation
No. Plan Charge Charge Charge
1 V300-CE1 DEV AID:CANDE 1 W ETP24 19,990
2 V300-COB CMPLR:COBOL 74 1 W ETP24 30,982
3 V300-DM2 DATAMGT:DATA MGMT II 1 W ETP24 102,937
Software Discount -23,320
Page: Purchase 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 Clients Total purchase 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. C,rand 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 amonth-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 I'ISted on this Schedule will have a license term that is coterminous with
Clients possession and use of the equipment on which the Software is installed.
UNISYS SHALL HAVE NO LUIBILITY 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")entitles
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 Onty ("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 original notices and legends.
Software designated Driver is for use solely with the device
models specified in the driver's then-current published
specification; a separate license is required for each
individual addressable device.
4305 4933-007 (11106)
25F-11
25F-12