Resolution No. 72301
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RESOLUTION NO. 7230
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF VERNON APPROVING AND AUTHORIZING THE
EXECUTION OF A PRODUCT LOAN AGREEMENT AND A
MOTOROLA SOFTWARE LICENSE AGREEMENT BETWEEN
THE CITY OF VERNON AND MOTOROLA, INC.
WHEREAS, Motorola, Inc. ("Motorola") has a program under
which certain mobile communications equipment is made available to
governmental agencies on a temporary basis; and
WHEREAS, the purpose of the program is to enable
governmental agencies to use the equipment without charge before
deciding to make,a purchase; and
WHEREAS, Motorola has presented the City with a Product
Loan Agreement, including a Motorola Software License Agreement
attached as Exhibit "B" thereto, which together contain the terms
and conditions applicable to-City's participation in the program;
and
WHEREAS, it is in the public interest that the City of
Vernon participate in said program.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon
hereby finds and determines that the recitals contained
hereinabove are true and correct.
SECTION 2: The City Council of the City of Vernon
hereby approves the Product Loan Agreement and the Motorola
Software License Agreement, copies of which have been presented to
the City Council concurrently with this resolution, and the City
Council hereby orders said Agreements to be received and filed by
the City Clerk.
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SECTION 3: The City Council of the City of Vernon
hereby authorizes the Mayor and the City Clerk to execute said
Agreements for, and on behalf of, the City of Vernon.
SECTION 4: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 3rd day of November, 1998.
ATTEST•
BRUCE V. MALKENHORST, City Clerk
OMAS A. YBAXRA, Mayor Pro Tem
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1 STATE OF CALIFORNIA )
)ss
2 COUNTY OF LOS ANGELES )
3 I, BRUCE V. MALKENHORST, City Clerk of the City of
4 Vernon, do hereby certify that the foregoing Resolution, being
5 Resolution No. 7230, was duly adopted by the City Council of the
6 City of Vernon at a regular meeting of the City Council duly held
7 on Tuesday, November 3, 1998, and thereafter was duly signed by
8 the Mayor of the City of Vernon.
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10 v
BRUCE V. MALKENHORST, City Clerk
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( SEAL)
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SUPPORTING
DOCUMENTS
C&C Number: 98-13054/BKP
PRODUCT LOAN AGREEMENT
This Product Loan Agreement (the "Agreement"), dated , 1998, is entered into
by and between the City of Vernon, California (the "City") nd Motorola, Inc. ("Motorola").
This Agreement provides for Motorola to loan a Mobile Workstation 520 for City's use for
evaluation purposes only.
1. Loaned Items. Motorola agrees to loan to City certain products ("Loaned
Items"), identified in Exhibit A, and referring to this Agreement. The replacement value of the
Loaned Items shall be set forth in Exhibit A, and by signing this Agreement, City acknowledges
receipt of the Loaned Items described therein.
2. Program License. Licensed Programs are loaned to City under the terms and
conditions of the End -User Software License Agreement, executed concurrently with this
Agreement, and attached hereto as Exhibit B.
3. Agreement Period and Termination. The Agreement Period for this product
loan program commences upon signing by Motorola for a period not to exceed 45 days from
signing, unless terminated sooner by Motorola. Motorola may, at its option, terminate either this
Agreement or the loan period for any Loaned Items if City fails to comply with any terms and
conditions of this Agreement, the Software License Agreement, or any exhibits hereto.
4. Ownership and Authorized Use. The Loaned Items are and shall remain
Motorola's property during the Agreement Period. Loaned Items are loaned to City solely for
use under the terms of this Agreement ("Authorized Use"). City may not encumber the Loaned
Items in any way. Loaned Items are not transferable.
5. Charges. There are no charges for the Authorized Use of the Loaned Items. If
City wishes to use the Loaned Items before or after the period of Authorized Use or for
purposes other than that set forth in this Agreement, City must contact Motorola and lease,
purchase, and/or license the Loaned Items under Motorola's applicable agreements, for the
then current charges and prices. In the event the equipment is not returned to Motorola within
the 30 day demonstration period, the City will be invoiced $7,950.00 the total cost of product.
6. Security and Return of Loaned Items. City will provide, at no cost to Motorola,
adequate security to protect the Loaned Items from theft, damage, or misuse. City ZZN4,"r.-
N re sonable care in the use of all Loaned Items. City will keep the Loaned Items at WtAb ry _. City will not move the Loaned Items to another location without
Motorola's prior written approval. City will return the Loaned Items to Motorola upon the
expiration or termination of the Agreement Period or an applicable loan period in the same
condition as when delivered to City, reasonable wear and tear excepted. City will permit
Motorola access during Motorola's normal business hours to allow Motorola to remove the
Loaned Items. City will return or certify the destruction of the original and all copies of the
Licensed Programs upon termination or expiration of the Agreement Period or an applicable
loan period. Except for programming of Loaned Items, City will not alter the Loaned Items in
any manner without Motorola's prior written approval.
j`
7. Service Support. City will be responsible for all service and support to cause the
Loaned Items to operate in accordance with Motorola's applicable published specifications.
8. Disclaimer of Warranty. LOANED ITEMS ARE PROVIDED ON AN "AS IS" BASIS.
MOTOROLA MAKES NO WARRANTY, EXPRESS OR IMPLIED. WITH RESPECT TO SUCH
ITEMS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
9. Changes. Motorola may make substitutions of equivalent products for Loaned Items or
may provide additional products to City for inclusion as Loaned Items during the Agreement
Period. In each such case, such products shall be identified as Loaned Items in additional or
amended Exhibits and use of these additional Loaned Items will be subject to the terms and
conditions set forth in this Agreement.
10. Limitation of Remedies and Liability. Motorola's entire liability and City's exclusive
remedy for actual damages for any cause whatsoever relating to the subject matter of this
Agreement will be limited to $1.00. This limitation will apply, except as otherwise stated in this
Section 10, regardless of the form of action, whether in contract or in tort, including negligence.
IN NO EVENT WILL MOTOROLA BE LIABLE FOR ANY LOST PROFITS, LOST
SAVINGS, INCIDENTAL DAMAGES, OR OTHER CONSEQUENTIAL DAMAGES, even if.
Motorola has been advised of the possibility of such damages. In addition, Motorola will not be
liable for any damages claimed by City based on any third -party claim. Motorola is not liable for
any damages caused by performance or nonperformance of the Loaned Items. In no event will
Motorola be liable for any damages caused by City's failure to perform City's responsibilities.
11. General. In the event of any termination or expiration of this Agreement or its
Agreement Period, the provisions of Sections 4 and 10 shall survive and continue and shall bind
City and Motorola.
If there is a conflict between the End -User Software License Agreement (described in
Section 2) and this Agreement and its Exhibit(s), the terms and conditions of this Agreement
and its Exhibit(s), shall prevail, unless and until City purchases, leases, or licenses the Loaned
Items from Motorola. Otherwise, all the terms and conditions of this Agreement and the
Exhibit(s), including the Software License Agreement, shall control.
In Witness Whereof, the parties have caused duly authorized representatives to execute this
Agreement on the dates set forth below.
Motorola, Inc. Customer
By:
Name:
Title:
Date:
By, CITY OF VERNON
Name: !"�� --
Thomas A. Yba ra
Title: Mayor Pro Tem
Date: *ff
ATT j
Bruce V. Ma ken orst, City C er.1K
APPROVED AS TO FORM:
David Brearley, C Attorne;7
Exhibit A
LOANED ITEMS
ITEM UC�� ANTITY DESCRIPTION
1 1 MW-520 Mobile Workstation & Software
2 1 MW-520 Mounting Assembly
3 1 Trunnion/Hardware
4 1 800MHz Roof Top Antenna
Total
CO
$7,575.00
300.00
60.00
15.00
$7,950.00
Exhibit B
MOTOROLA SOFTWARE LICENSE AGREEMENT
This Software License Agreement is between Motorola, Inc., a Delaware corporation
("Motorola"), and the City of Vernon ("Licensee").
Section 1 SCOPE
Licensee may acquire from Motorola's Land Mobile Products Sector ("LMPS") radio
communication products ("Products") that contain embedded or pre -loaded Motorola
software such as in a ROM, PROM, or EPROM, or other Motorola software provided on
media such as a floppy disk, tape, diskette, or CD-ROM. All such software (including
Radio Service Software and FLASHport® Software) is referred to as "Motorola
Software." This Agreement contains the terms under which Licensee may use Motorola
Software acquired from LMPS.
Section 2 GRANT OF LICENSE
Motorola hereby grants to Licensee a personal, non-exclusive license under Motorola's
applicable proprietary rights to use Motorola Software in accordance with the terms of
this Agreement.
Section 3 LIMITATIONS ON USE
Licensee may use Motorola Software only for Licensee's internal business purposes and
only,as described in the Motorola Software or Product documentation. Any other use of
Motorola Software is strictly prohibited and will be deemed a breach of this Agreement.
Licensee may not copy, modify, adapt, merge with other software, reverse engineer,
prepare derivative works of, or disassemble any Motorola Software for any reason,
except that Licensee may make at most two copies of Motorola Software provided with
infrastructure equipment for back-up purposes. Licensee must purchase a copy of
Radio Service Software for each site at which Licensee uses Radio Service Software;
Licensee may make one additional copy for each computer owned or controlled by
Licensee at each such site. Licensee may temporarily use Radio Service Software on
portable or lap -top computers at other sites. Prior to acquiring any Radio Service
Software or upon Motorola's request, Licensee must provide a written list of all sites
where Licensee uses or intends to use Radio Service Software. Licensee must
reproduce all Motorola copyright and trademark notices on all copies of Motorola
Software.
Section 4 TRANSFERS
If Licensee transfers ownership of Products to a third party, Licensee may assign its
rights to use Motorola Software (other than Radio Service Software and FLASHport®
Software) embedded in or furnished for use with those Products provided that (a)
Licensee transfers all copies of such Motorola Software to the new owner and (b)
Motorola receives a transfer form (which Motorola will provide upon request) completed
and signed by the new owner. Otherwise, Licensee may not transfer or make available
any Motorola Software to any third party.
Section 5 OWNERSHIP AND TITLE
Title to all copies of Motorola Software in any form, including all rights in patents,
copyrights, trade secrets, and other intellectual properties, remains vested exclusively in
Motorola.
Section 6 CONFIDENTIALITY
Licensee acknowledges that all Motorola Software contains valuable proprietary
information and trade secrets and that unauthorized dissemination, distribution,
modification, reverse engineering, disassembly, or other improper use of Motorola
Software will result in irreparable harm to Motorola for which monetary damages would
be inadequate. Accordingly, Licensee will limit access to Motorola Software to those of
its employees and agents who need to use Motorola Software for Licensee's internal
business purposes, and Licensee will take appropriate action with those employees and
agents to preserve the confidentiality of Motorola Software.
Section 7 MAINTENANCE AND SUPPORT
No maintenance or support is provided under this Agreement. Maintenance or support,
if available, will be provided under a Motorola Software Maintenance and Support
Agreement.
Section 8 LIMITED WARRANTY
For the first 120 days after initial shipment of Motorola Software, or, if the Motorola
Software is provided pursuant to a Communications System Agreement between
Motorola and Licensee, for the Warranty Period specified in such Agreement, Motorola
warrants that the Motorola Software, when used properly, will be free from reproducible
defects that materially vary from its published specifications. MOTOROLA'S TOTAL
LIABILITY, AND LICENSEE'S SOLE REMEDY, FOR ANY BREACH OF THIS
WARRANTY WILL BE LIMITED TO, AT MOTOROLA'S OPTION, REPAIR OR
REPLACEMENT OF THE MOTOROLA SOFTWARE OR PAYMENT OF LICENSEE'S
DIRECT DAMAGES UP TO THE AMOUNT PAID TO MOTOROLA FOR THE
MOTOROLA SOFTWARE OR THE INDIVIDUAL PRODUCT IN WHICH THE
MOTOROLA SOFTWARE IS EMBEDDED OR FOR WHICH IT WAS PROVIDED. THIS
WARRANTY EXTENDS ONLY TO THE FIRST LICENSEE; SUBSEQUENT
TRANSFEREES MUST ACCEPT THE MOTOROLA SOFTWARE "AS IS" AND WITH
NO WARRANTIES OF ANY KIND. MOTOROLA DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 9 LIMITATION OF LIABILITY
IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
Section 10 TERM AND TERMINATION
Licensee's right to use Motorola Software will begin when Licensee sends a duly
executed copy of this Agreement to Motorola, and either (a) Motorola returns a fully
executed Agreement to Licensee or (b) Motorola ships Motorola Software or a Product
containing Motorola Software to Licensee, and will continue in perpetuity unless
terminated as follows. Licensee's right to use Motorola Software will terminate without
notice upon a breach of this Agreement by Licensee. In addition, if Motorola reasonably
believes that Licensee intends to breach this Agreement with respect to Radio Service
Software or FLASHport® Software, Motorola may, by notice to Licensee, terminate
Licensee's right to use such Motorola Software. Upon termination, Motorola will be
entitled to immediate injunctive relief without proving damages and, unless Licensee is a
sovereign government entity, Motorola will have the right to repossess all Radio Service
Software and FLASHport@ Software in Licensee's possession. Within thirty days after
termination of Licensee's right to use any Motorola Software, Licensee must certify in
writing to Motorola that all copies of such Motorola Software have been returned to
Motorola or destroyed.
Section 11 NOTICES
All notices, consents, and waivers permitted or required under this Agreement will be
deemed given upon receipt and must be delivered in writing to the addresses at the top
of this Agreement and, if to Motorola, to the LMPS Technical Assets Manager, Room
2305. Change of address must be in writing to the other party.
Section 12 GENERAL
A. COPYRIGHT NOTICES: The existence of a copyright notice on Motorola Software
will not be construed as an admission or presumption that public disclosure of
Motorola Software or any trade secrets associated with Motorola Software has
occurred.
B. NON-MOTOROLA SOFTWARE: Motorola may provide non -Motorola software to
Licensee under the terms of separate license agreements with the owners of such
software. Licensee will abide by the terms of these licenses.
C. CAUSES OF ACTION: Licensee must bring any action under this Agreement within
one year after the cause of action arises.
D. WAIVERS: No waiver of a right or remedy of a party will constitute a waiver of
another right or remedy of that party.
E. ASSIGNMENTS: Motorola may assign any of its rights or subcontract any of its
obligations under this Agreement, or encumber or sell any of its rights in any
Motorola Software, without prior notice to or consent of Licensee.
F. ENTIRE AGREEMENT AND AMENDMENT: This Agreement contains the parties'
entire agreement regarding Licensee's use of Motorola Software and may be
amended only in a writing signed by both parties, except that Motorola may modify
this Agreement as necessary to comply with applicable laws and regulations
including FCC regulations.
G. GOVERNING LAW: This Agreement will be governed by the laws of the United
States of America to the extent that they apply and otherwise by the laws of the
State of Illinois.
In witness whereof, the parties have caused duly authorized representatives to execute this
Agreement on the dates set forth below.
Motorola, Inc.
By:
Name:
Title:
Date:
Licensee
By:
CITY OF VERNON
Name '
1 omas 4 rra
Title: Mayor Pro Tem
Date:
ATTE
Bruce V. Ma kenhorst, City
APPROVED AS TO FORM:
Da;717'a Brear ey, City At)torne.,