HomeMy WebLinkAboutC-2668 - Basic Agreement for Computer Software and related Services No. 2668 (Geobase System Software)MODIFICATION OF AGREEMENT
NUMBER 2668
This Modification of the Agreement Number 2668, entered into
this a8 day of January, 1988, by and between the CITY OF
NEWPORT BEACH, a municipal corporation (hereinafter referred to
as "CITY "), DELTASYSTEMS OF AUTOMETRIC, INC. (hereinafter
referred to as "DELTASYSTEMS"), and SIERRA COMPUTER SYSTEMS, INC.
(hereinafter referred to as "SIERRA ") is made with reference to
the following:
RECITALS:
A. On October 8, 1987, Agreement Number 2668, was entered
into by and between CITY and DELTASYSTEMS (hereinafter referred
to as "Agreement ").
B. CITY and DELTASYSTEMS and SIERRA desire to modify the
Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:
1. Paragraph 1 F and 1 G of the Agreement is modified
to.read as follows:
F. A Deltacom linkage to SIERRA as designed
by DELTASYSTEMS system running on a
Hewlett Packard Series 3000.
G. Software products, maintenance, and
related services from SIERRA as designed
by DELTASYSTEMS as described in Exhibits
"A" and "B".
-I-
V
follows:
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2. Paragraph 2 of the Agreement is modified to read as
2. Payment for Deltasystems Products
and Services.
The CITY agrees to pay Hewlett Packard
for all DELTASYSTEMS services as set
forth in Exhibit "N ", as amended.
Hewlett Packard shall pay DELTASYSTEMS
the amount of one hundred _ tweleve
thousand six hundred ($112,600) dollars
for products and services to be provided
under this Agreement. Payment shall be
made in the following amounts at the
completion of the following:
A. Upon final acceptance and signature
of this contract the sum of eleven
thousand one hundred sixty ($11,160)
dollars.
B. On the completion of training
described in Item C of the Products
and Services Section of this
contract, the sum of forty thousand
($40,000) dollars.
C. On installation of the Delta
products on the four (4) designate
CPU's and demonstration to the
CITY'S satisfaction that the Delta
products can utilize the local area
network for data movement and
hardcopy plotting the sum of forty
thousand ($40,000) dollars.
D. On the installation and satisfactory
completion of acceptance tests for
the Deltacom linkage, the CITY'S
Building Permit System Provider
(which is SIERRA), described in Item
F of the Products and Services
section of this contract, the sum of
twenty thousand four hundred and
forty ($20,440) dollars.
Any additional services authorized
by the CITY will be paid net thirty
(30) days after invoicing from
DELTASYSTEMS is received.
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3. Except as expressly modified herein, all other terms and
covenants set forth in the Agreement shall remain the same and
shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Modification of Agreement to be executed on the day and year
first above written.
ATTELT:
-3-
DELTASYSTEMS OOF� AUTOMETRIC, INC.
BY: / ce0 1/,P. V13 JU
SIERRA COMPUTER SYSTEMS, INC.
BY: .L
z
AGREEMENT BETWEEN
Sierra Computer Systems, Inc., hereinafter referred to as
SCSI, and City of Newport Beach, California
hereinafter referred to as User.
Executed this day of , 1988.
RECITALS
SCSI provides this "SOFTWARE" and licenses its use.
Customer Name
City
of
Newport
Beach, California
Address
3300
Newport
Boulevard
City /State /Zip Newport Beach, California 92663
Product Name PERMITS
SCSI Reference No. 8600014P
Release No. 2.5
Purchase Date
Fee $35,450.00
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EXHIBIT q
• •
TERMS AND CONDITIONS OF AGREEMENT
BETWEEN SCSI AND USER
GENERAL CONDITIONS OF 'PERMITS' LICENSE
A1.00. HEADINGS. Headings are for convenience only and
shall not be.deemed to be part of this Agreement.
A2.00. MODIFICATION. No modification or variation of
this Agreement shall be valid unless in writing signed by
both parties.
A3.00. SEVERABILITY. If any provision.of this Agreement
shall be construed to be illegal or invalid, the legality or
validity of any other provision hereof shall not be affected
thereby. Any illegal or invalid provisions of this
Agreement shall be construed by a court of competent
jurisdiction to have the broadest scope permissible under
the law of said jurisdiction, and if no validating
construction is possible, shall be severable, and all other
provisions hereof shall remain in full force and effect.
A4.00. DELAYS.
.01. Neither party shall be liable, in damages or
otherwise, for any delay in the installation and
implementation of the Licensed System or any component
thereof or any service to be rendered by it hereunder, or
for failure to give notice of any delay, when such delay is
due to the elements, acts of nature, acts of civil or
military authorities, acts of the other party which are not
provided for in this Agreement and which cause unreasonable
delay in this Agreement by the other party, any delay in
transportation or delay in delivery by its vendors beyond
its reasonable or actual control, or any other causes beyond
the reasonable or actual control of the party. Each party's
schedule of performance shall be extended by a period of
time equal to the time lost because of any such delay,
provided written notice has been given to the other party of
such delay and its estimated duration, within five (5) days
of the time the party has actual knowledge of such delay.
.02. Notwithstanding the foregoing, in every
case, the delay or failure to perform must be beyond the
control, and without the fault or negligence of, the party
claiming excusable delay.
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A5.00. PAYMENT.
.01. The sum of $35,450.00 shall
be financed within the Agreement with Hewlett Packard and is
subject to all terms and conditions of that Agreement. That
Agreement is hereby incorporated into this Agreement by
reference. Within thirty (30) days after delivery SCSI will
submit to User a letter of acceptance to be signed and
forwarded to Hewlett Packard within thirty (30) days.
.02. User agrees to pay any tax for which it is
responsible hereunder, or which is assessed against User
directly, exclusive however, of taxes based on the income of
SCSI. If any such tax is paid by SCSI, to reimburse SCSI
therefore upon receipt by User of proof of payment
acceptable to User.
.03. This License fee does not include installation
services. These services are specified in Exhibit 'A',
Installation Services.
A6.00. PATENT AND COPYRIGHT INDEMNITY.
.01. SCSI agrees to defend, hold harmless and
indemnify User from and against any claim, action,
liability, cost or damage for infringement of any patent,
copyright or similar property right (including, but not
limited to, misappropriation of trade secrets) based on any
software or any other materials furnished hereunder by
SCSI. SCSI shall have the sole right to conduct the defense
of any such claim or action and all negotiations for its
settlement or compromise, unless otherwise mutually agreed
to in writing by the parties hereto.
A7.00. IMPROVEMENT AND OTHER MODIFICATIONS. Any (i)
modification, change, addition or substitution to the
Licensed System made by User, (ii) any interfacing of the
Licensed System with any other program or programs, or (iii)
any change in the operating environment of the Licensed
System may degrade the performance of the Licensed System.
User acknowledges that any such modification, interfacing or
change shall be made at the sole request and expense of
User and that SCSI shall have no responsibility for any
consequences thereof.
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A8.00. RELATIONSHIP OF PARTIES.
.01. At all times during the term of this
Agreement, SCSI shall be an independent contractor and shall
not be an officer, agent, or employee of User. User shall
have the right to control SCSI only insofar as the result of
SCSI services rendered pursuant to this Agreement.
.02. Nothing contained in this Agreement shall
be deemed to create a partnership or joint venture. Neither
party shall incur any debts or make commitments for the
other party.
A9.00. SYSTEM SECURITY AND ACCESS.
.01. Each party acknowledges that all information
concerning the other party is "Confidential and Proprietary
Information ". Each party agrees that it will not permit the
duplication, use or disclosure of any such Confidential and
Proprietary Information to any person (other than its own
employee who must have such information for the performance
of obligations under this Agreement), unless authorized in
writing by the other party.
.02. All financial, statistical, personnel,
technical, and other information or data relating to the
User, which is designated confidential by the User but made
available to SCSI in order to carry out this Agreement, will
be protected by SCSI from unauthorized use and disclosure.
SCSI shall also observe the same or equivalent requirements
as are applicable to the User with regard to protecting
confidentiality. SCSI will instruct its personnel to keep
such information confidential. SCSI shall not be required
to keep confidential any data or information which is or
becomes publicly available, is already rightfully in SCSI's
possession, is independently developed by SCSI outside the
scope of this Agreement, or is rightfully obtained from
third parties.
A10.00. USERS INSTRUCTION.
.01. SCSI shall be responsible for ensuring
that its employees, servants, and agents will, whenever on
User's premises, obey all reasonable instructions and
directions issued by User.
.02. Unless otherwise agreed to by the parties,
SCSI personnel, while working on User's premises, shall
observe the working hours, working rules and holiday
schedules of User applicable to such User premises. User
agrees to provide reasonable working space, resources and
materials which are necessary for the performance of
services under this Agreement, provided, however, that such
working space, resources and /or materials are agreed upon by
User for such services and the use of any such working
space, resources and /or materials is arranged so as to
minimize any disruption to User's normal business
operations.
.03. User shall be responsible for inputting
all data into the computer memory and for reconciliation and
accuracy of that data and for taking such administrative
steps necessary to input that data.
All.00. COMPLIANCE WITH LAWS. SCSI agrees to comply
with all laws, regulations, rules and guidelines of the
Federal, State and Local jurisdiction and any agency thereof
governing SCSI and its operations.
Al2.00. APPLICABLE LAW.
.01. This Agreement shall be governed and
construed under the laws of the State of California. Any
action to enforce the provisions of this Agreement shall be
filed in a court located in the County of Orange,
California.
.02. There shall be no discrimination on the
basis of race, sex, religion, or national origin against any
person employed by SCSI for the performances of services
herein described.
A13.00. SOFTWARE LICENSE.
.01. SCSI grants and User accepts upon the
terms and conditions contained herein, non - exclusive, non-
transferable, perpetual license to unlimited use of
"Licensed System" solely for User's own purposes. The
license granted under this Agreement authorizes User to use
the Licensed System in machine readable form on one CPU
(object code for 'PERMITS'and MENU -GEN). The Licensed System
shall include in its meaning, documentation and technical
information provided to User in written form for use in
connection with the software.
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.02. SCSI warrants that it has good title to
such system and that User will have undisturbed use of the
system in accordance with the terms of this Agreement. SCSI
agrees to defend, hold harmless and indemnify the User from
any claims arising out of the use or possession of the
system.
.03. User expressly agrees that it will not
sell, lease, assign or in any way transfer, such Licensed
System or any rights herein to any person, partnership,
corporation or other entity.
.04. User shall include and shall not alter,'
remove or conceal, any copyright, trade secret or other
proprietary notices on the Licensed System.
.05. Title and ownership to the Licensed
System and Intellectual Property Rights is not hereby nor in
any other way transferred to User. User acknowledges that
SCSI retains the exclusive right to sell, lease, license,
assign, or otherwise transfer the Licensed System (and any
module thereof) and that SCSI may enter into similar or
identical conveyances of similar or identical rights with
other SCSI clients.
.06. User may not cause or permit disclosure
of, or access to, the License Software in whole, in part or
in any form to any person, firm, corporation or other
entity who or which are not salaried employees of the User
without the expressed prior written consent of SCSI.
.07. The User acknowledges that the Licensed
System contains valuable proprietary information and trade
secrets and that unauthorized dissemination of the Product
Programs (including, without limitation, disassembly,
decompiling or reverse engineering) could cause irreparable
harm to SCSI.
.08. The User shall not make copies of the
Program except that reserve copies of a magnetically
recorded Program that is delivered on tape or magnetic disk
media may be made to protect against Program destruction
for back -up procedures.
.09. The User may copy documentation for its own
use provided that copyright and other proprietary notices on
any copies are made in accordance with SCSI or its
suppliers' instructions. The User shall not adapt or merge
the System Programs with other programs.
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A14.00. WARRANTIES.
.01. SCSI warrants and represents that it has
full authority to enter into this Agreement and to
consummate the transaction contemplated hereby and that this
Agreement is not in conflict with any other Agreement to
which SCSI is a party or by which it may be bound.
.02. SCSI believes the software product to be
accurate and reliable. Much care has been taken in its
preparation; however, the software is provided "as is ",
without warranty of any kind, either expressed or implied.
In no event, will SCSI be liable to User or any other party
for damages, including lost profits, lost savings or other
incidental or consequential damages arising out of the use
or inability to use the software.
.03. The software provided by SCSI under this
Agreement is warranted to be free from reproducible defects
for a period of ninety (90) days from acceptance. All
material and labor to repair any such defects will be
provided free of charge for the full warranty period.
This warranty is void if:
(a) the program is used in other than its
normal customary manner;
(b) a program has been subjected to misuse;
(c) a program has been subjected to
modifications initiated by the customer or
merged with other programs without the express
prior consent and written approval of SCSI.
A15.00. WAIVER.
.01. It is expressly understood and agreed that
no waiver granted by User for any violation of any covenant,
term or condition of this Agreement shall be construed to
constitute a waiver of the same or any further violation
without the prior written approval of the User.
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A16.00. RESOLUTION OF DISPUTES.
.01. It is anticipated that disputes between
SCSI and the User will be resolved between the parties.
Disputes or questions of interpretation may be referred to a
committee composed of representatives from SCSI and the
User. The parties agree that in attempting to resolve
disputes they will act promptly, reasonable and in good
faith .
A17.00. NOTICE. All notices. requests demands and
other communication- shall be in writing and sent by
registered mail, certified mail or hand delivery, addressed
to the party's principal place of business herein written.
Either party may by notice in writing, direct that future
notices or requests, or demand be sent to a different
address. Notices given by mail shall be deemed given upon
deposit in the United States mail. Notices given by hand
delivery shall be deemed given at the time of actual
delivery .
SCSI - Sierra Computer Systems, Inc.
2378 W. Whitendale Avenue
Visalia, CA 93277
USER - Name City of Newport Beach, California
Address 3300 Newport Boulevard
Newport Beach, California 92663
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User hereby acknowledges that
understands it and agrees to
conditions. User further agree
exclusive Agreement between U
subject matter of this License.
from SCSI of a true copy of this
SCSI
By:
Typed:
2378 W. Whitendale Avenue
Visalia, CA 93277
USER
By
Typed
r�
U
User has read this License,
be bound by its terms and
s that it is the complete and
Us and SCSI relating to the
User acknowledges receipt
Agreement.
Name : City of Newport Beach, California
Address: 3300 Newport Boulevard
Newport Beach, California 92663
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EXHIBIT A TO SOFTWARE LICENSE AGREEMENT
INSTALLATION SERVICES
A. SCSI shall provide the following installation
services relating to the Software:
1. Assistance in conversion of existing CITY computer
files and County Assessor's Data Base to a format compatible
with the Software.
2. Assistance in the installation of.permit formats
and inspections /fee schedules.
3. Assist in creation of a table- driven geo -data
base. Assist in creation of a Master Street Guide and
Street Name Tables used in.the geo -data base.
4. Assist in creation of multiple structure and site
data bases.
B. SCSI shall be paid for installation services at a
prevailing rate plus reasonable expenses, in addition to the
purchase price for the Software.
1. Installation services are estimated at 300 hours
for a total of $15,000.00. The estimated expenses are
$1,500.00 and shall not be exceeded except upon prior
written consent of User.
C. SCSI shall submit semi - monthly invoices to User
detailing the installation services provided and the time
and expense incurred. User shall pay such invoices within
thirty (30) days.
D. SCSI shall be paid for User and Technical training
at User site.
1. User Training classes shall be for three (3) days.
This will be included in the purchase price of 'PERMITS'.
2. Technical Training classes shall be for two (2)
days. This will be included in the purchase price of
'PERMITS'.
3. Expenses for the training classes shall not exceed
$1,000.00.
SCSI shall submit an invoice when the training is
completed. User shall pay such invoice within thirty (30)
days.
E. SCSI shall submit semi - monthly invoices to User
detailing. the modifications provided and the time and
expenses incurred. User shall pay such invoices within
thirty (30) days.
1. Modifications are estimated at The
total amount for the modifications shall not
exceed except upon prior written consent of User.
Sierra Computer
SCSI, and Citv
hereinafter refe
AGREEMENT BETWEEN
Systems, Inc., hereinafter referred to as
as
Executed this day of , 1988.
RECITALS
SCSI provides "SOFTWARE MAINTENANCE" for the product listed
below. Software maintenance provides both software update
service and software problem resolution service. While
there is no charge for updates while under monthly
maintenance agreement, substantial product enhancements may
carry a nominal charge.
Customer Name City of Newport Beach, California
Address 3300 Newport Boulevard
City /State /Zip _Newport Beach, California 92663
Product Name PERMITS
SCSI Reference No. 8800014P
Release No. 2.5
Purchase Date
Fee $6,000.00 Per Year
1
EXHIBIT B
TERMS D CONDITIONS OF AGREEME•
BETWEEN SCSI AND USER
GENERAL CONDITIONS OF SOFTWARE MAINTENANCE
A1.00. HEADINGS. Headings are for convenience only
and shall not be deemed to be part of this Agreement.
A2.00. MODIFICATION. No modification or variation of
this Agreement shall be valid unless in writing signed by
both parties.
A3.00. SEVERABILITY. If any provision of this
Agreement shall be construed to be illegal or invalid, the
legality or validity of any other provision hereof shall not
be affected thereby. Any illegal or invalid provisions of
this Agreement shall be construed by a court of competent
jurisdiction to have the broadest scope permissible under
the law of said jurisdiction, and if no validating
construction is possible, shall be severable, and all other
provisions hereof shall remain in full force and effect.
A4.00. DELAYS.
.01. Neither party shall be liable, in damages or
otherwise, for any delay in the service to be rendered
hereunder, or for failure to give notice of any delay, when
such delay is due to the elements, acts of nature, acts of
civil or military authorities, acts of other party which are
not provided for in this Agreement and which cause
unreasonable delay in this Agreement by the other party, any
delay in transportation or delay in delivery by its vendors
beyond its reasonable or actual control, or any other causes
beyond the reasonable or actual control of the party. Each
party's schedule of performance shall be extended by a
period of time equal to the time lost because of any such
delay, provided written notice has been given to the other
party of such delay and its estimated duration, within five
(5) days of the time the party has actual knowledge of such
delay.
.02. Notwithstanding the foregoing, in every
case, the delay or failure to perform must be beyond the
control, and without the fault or negligence of, the party
claiming excusable delay.
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A5.00. STAMMENT OF WORK. •
.01. SCSI agrees to perform software problem
resolution service and software update service. While there
is no charge for updates while under this monthly
maintenance agreement, substantial product enhancements will
be offered under a separate Agreement.
.02. SCSI shall provide User with a reasonable
amount of consultation by telephone to assist the User in
the use of the software, during SCSI' normal working hours
(40 hours /week).
.03. SCSI shall provide User with remedial
maintenance of software to substantially conform the
software to SCSI' published program specification for that
release level of software identified in the invoice. SCSI
shall, within a reasonable time period, supply computer
program code to correct any reproducible error provided that
SCSI' diagnostics indicate that such non - conformity or error
was in existence during the subscription period or during
the initial Warranty Period extended to the User in the
purchase agreement for SCSI software.
.04. Suspected error conditions will be investigated
and corrected by SCSI personnel at SCSI' offices to the
extent possible. On -site corrections shall be at the
exclusive judgement of SCSI at no additional cost to the
User. User may, however, request that SCSI conduct such
investigations and travel to the location of the User at the
User's request; User will pay SCSI for reasonable travel and
subsistence expenses. If SCSI, in its reasonable judgment,
determines that the suspected error condition was
attributable to a cause other than an error in SCSI'
software or an enhancement by SCSI, the User will pay for
SCSI' efforts on a time and materials basis.
.05. SCSI may provide the User with unsolicited
error corrections or changes to the software, without
additional charge, which SCSI determines are necessary for
proper operation of its software, and User shall incorporate
these corrections or changes into the software within 180
days of release by SCSI. SCSI will provide all
documentation changes necessary as a result of changes to
the software.
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.06. SCSI will provide User all enhancements
released by SCSI as standard enhancements, and which are
generally made available to other cities purchasing
comparable software during the term of this Agreement.
A6.00. TERM OF AGREEMENT.
.01. The term of this Agreement is for a period
of 12 months and shall commence on the 1st day of
July , 1988, and shall terminate on the 30th day of
June , 19 89.
.02. Payment for software maintenance services
must be paid yearly in advance.
.03. Custom programming or consulting will be
billed in addition to yearly software maintenance and will
be billed at SCSI prevailing rate. These services will be
covered under a separate Agreement.
.04. Exclusive, however, of taxes based on the
income of SCSI, which taxes shall be paid by SCSI, User
agrees to pay any tax for which it is responsible hereunder,
or which is assessed against User directly, and, if any such
tax is paid by SCSI, to reimburse SCSI therefor upon receipt
by User of proof of payment acceptable to User.
.05. Total payment for software problem resolution
service and software update services under the terms of
this Agreement shall not exceed $6,000.00 per year.
A7.00. RELATIONSHIP OF PARTIES.
.01. At all times during the term of this
Agreement, SCSI shall be an independent contractor and shall
not be an officer, agent, or employee of User. User shall
have the right to control SCSI only insofar as the result of
SCSI services rendered pursuant to this Agreement.
.02. Nothing contained in this Agreement shall
be deemed to create a partnership or joint venture. Neither
party shall incur any debts or make commitments for the
other party.
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A8.00. SYSTEM SECURITY AND ACCESS.
.01. Each party acknowledges that all
information concerning the other party is "Confidential and
Proprietary Information ". Each party agrees that it will
not permit the duplication, use or disclosure of any such
Confidential and Proprietary Information to any person
(other than its own employee who must have such information
for the performance of obligations under this Agreement),
unless authorized in writing by the other party.
.02. No information, reports, documents or any
other materials given to or prepared by SCSI, or to which
SCSI has access by reason of this Agreement, shall be made
available to any individual or organization other than User
of User's employees without the prior written approval of
the User.
.03. All financial, statistical, personnel,
technical, and other information or data relating to the
User, which is designated confidential by the User but made
available to SCSI in order to carry out this-Agreement, will
be protected by SCSI from unauthorized use and disclosure.
SCSI shall also observe the same or equivalent requirements
as are applicable to the User with regard to protecting
confidentiality. SCSI shall instruct its personnel to keep
such information confidential. SCSI shall not be required
to keep confidential any data or information which is or
becomes publicly available.
A9.00. HOLD HARMLESS CLAUSE.
.01. During the subscription period SCSI will
use its best efforts to maintain the software free of
defects and imperfections that would prevent the software
from performing according to the original or then prevailing
specifications set forth in SCSI' published material.
Except for any express warranty contained herein, SCSI makes
no warranty of any kind whatsoever, either express or
implied, including without limitation, and express or
implied warranties of merchantability and /or fitness for a
particular purpose. The express warrant and exclusive
remedy stated herein is in lieu of all liabilities or
obligations of SCSI for damages arising out of or in
connection with the delivery, use, or performance of the
software or breach by SCSI of any term of this Agreement.
In no event shall SCSI have any obligation or liability for
damages, whether direct, incidental, consequential, or of
any other nature whatsoever, even if SCSI has been advised
of the possibility of such damages.
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A10.00. USERS INSTRUCTION.
.01. SCSI shall be responsible for ensuring
that its employees, servants, and agents will, whenever on
User's premises, obey all reasonable instructions and
directions issued by User.
.02. Unless other wise agreed by the parties,
SCSI personnel, while working on User's premises, shall
observe the working hours, working rules and holiday
schedules of User applicable to such User premises. User
agrees to provide reasonable working space, resources and
materials which are necessary for the performance of
services under this Agreement, provided, however, that such
working space, resources and /or materials are agreed upon by
User for such services and the use of any such working
space, resources and /or materials is arranged so as to
minimize any disruption to User's normal business
operations.
.03. User agrees that all enhancements provided
by SCSI shall be the exclusive property of SCSI pursuant to
the previous SCSI Software License Agreement.
.04. User will be responsible for maintaining
the computer hardware, communications equipment, telephone
lines, cabling, modems, and all other hardware equipment.
User will make available computer time for the testing and
maintenance of software. User will make available all
necessary supplies such as paper, magnetic tape, and.disk
packs.
.05. Software service requires the installation
by the User of any Bell 212 - compatible antoanswer 1200 baud
(minimum) modem, at User expense. This device will permit
SCSI to effect software diagnostics, changes, and
corrections from a remote location, when appropriate.
.06. Maintenance service is provided during
SCSI' normal forty (40) hour work week. Certain critical
conditions may exist which require work outside these hours,
and SCSI will make a best effort to respond. However, SCSI
reserves the right to provide a price quotation and estimate
of time for service requested by the User which requires
substantial work outside SCSI' normal working hours.
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All.00. COMPLIANCE WITH LAWS.
.01. SCSI agrees to comply with all laws,
regulations, rules and guidelines of the Federal, State and
Local jurisdictions and any agency thereof governing SCSI
and its operations.
.02. This Agreement shall be governed and
construed under the laws of the State of California. Any
action to enforce the provisions of this Agreement shall be
filed in a court located in the County of Orange,
California.
.03. There shall be no discrimination on the
basis of race, sex, religion, or national origin against any
person employed by SCSI for the performances of services
herein described.
Al2.00. WARRANTIES. SCSI warrants and represents
that it has full authority to enter into this Agreement and
to consummate the transaction contemplated hereby and that
this Agreement is not in conflict with any other agreement
to which SCSI is a party or by which it may be bound.
A13.00. TERMINATION.
.01. This Agreement automatically terminates on
June 30. 1989 , and is subject to renewal only if mutually
agreed upon.
A14.00. WAIVER.
.01. It is expressly understood and agreed that
no waiver granted by the User for any violation of any
covenant, term or condition of this Agreement shall be
construed to constitute a waiver of the same of any further
violation without the prior written approval of the User.
A15.00. ASSIGNMENT AND DELEGATION.
.01. Neither party shall assign, sublet or
transfer any interest in or duty under this Agreement
without the written consent of the other, and no assignment
shall be of any force or effect whatsoever unless and until
the other party shall have so consented in writing.
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A16.00. RESOLUTION OF DISPUTES.
.01. It is anticipated that disputes between
SCSI and the User will be resolved between the parties. The
parties agree that in attempting to resolve disputes they
will act promptly, reasonably, and in good faith.
A17.00. NOTICE., All notices, requests, demands and
other communication shall be in writing and sent by
registered mail, certified mail or hand delivery, addressed
to the party's principal place of business herein written.
Either party may by notice in writing, direct that future
notices, requests, or demands be sent to a different
address. Notices given by personal delivery shall be deemed
given at the time of actual delivery.
SCSI - Sierra Computer Systems, Inc.
2378 W. Whitendale Avenue
Visalia, CA 93277
USER - Name City of Newport Beach, California
Address 3300 Newport Boulevard
Newport Beach, California 92663
• •
User hereby acknowledges that User has read this Agreement
understands it and agrees to be bound by its terms and
conditions. User further agrees that it is the complete and
exclusive Agreement between User and SCSI relating to the
subject matter of this Agreement. User acknowledges receipt
from SCSI of a true copy of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
SCSI
By:
Typed:
USER
By
Typed
2378 W. Whitendale Avenue
Visalia, CA 93277
Name : City of Newport Beach, California
Address: 3300 Newport Boulevard
Newport Beach, California 92663
F]
HEWLETT
PACKARD
NEELY SALES REGION - 24 Inverness Place East, Englewood, Colorado 80112 • Telephone (303) 649 -5000
January 19, 1988
Mr. Ted Kramp
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
RE: HP Lease 4124 -05896
Amendment #2
Dear Mr. Kramp:
This amendment shall serve to
identify
and authorize
those products that are
to be deleted and returned,
and those
items that
are to be added to your
systems configuration. In
addition
to these configuration
changes is a
complete listing of the revised
order
with a line
item break -out. Your
contract is hereby amended as
follows:
1 91480
36 "x48" digit.
ITEMS TO DELETE
- 502.32
3865.68
3865.68
2 91360
ITEM
4069.00
ITEM EXTENDED
QTY MODEL# DESCRIPTION
LIST
DISCOUNT
NET NET
1 7957A 81mb disc
5200.00
- 598.00
4602.00 4602.00
1 7475A Plotter
1895.00
- 217.92
1677.08 1677.08
1 #002 RS232
0.00
0.00
0.00 0.00
2 91600 44 "x60" surface
5108.00
- 587.38
4520.62 9041.24
ITEMS TO ADD
1 7958A
Disc
7850.00
- 902.75
6947.25
6947.25
1 7570A
Plotter
4900.00
- 563.50
4336.50
4336.50
1 5061 -2403
Cable
54.00
-6.21
47.79
47.79
1 91480
36 "x48" digit.
4368.00
- 502.32
3865.68
3865.68
2 91360
2411x36" digit.
4069.00
- 467.94
3601.06
7202.12
1 91001
RS232 port
497.00
-57.16
439.84
439.84
1 91053
Power supply
252.00
-28.98
223.02
223.02
1 91041
Cable
95.00
-10.93
84.07
84.07
1 91036
16 button curs
392.00
-45.08
346.92
346.92
1 91021
High accur.
275.00
-31.63
243.37
243.37
1 91070
Power lift
1262.00
- 145.13
1116.87
1116.87
0
Mr. Ted Kramp
City of Newport Beach
Amendment #2
January 19, 1988
E
Net price hardware
FROM: $ 65,257.00
TO: $ 66,524.53
Net price software
26,700.00
24,390.60*
Bundled system disc.
- 10,575.00
* **
Net price equipment
81,382.00
90,915.13
6% sales tax
4,882.92
5,454.91
Balance to finance
86,264.92
96,370.04
Monthly payment
1,336.24
1,492.77
Interest expense
25,979.24
29,022.64
*($761.10 HP, $23629.50 Holguin)
** *included in line item totals
Holguin has agreed to replace ADC800 and ADC250 software with Mountaintop when
available at no charge.
All other terms and
IRS8038G and "Addendui
amendment and return
Packing lists will be
their respective HP
restocking charae.
LESS
BY:
TITL
DATE
conditions shall remain the same. Enclosed is a new
n A". Please sign these two documents as well as this
the package to me (Susan Shiramizu /HP Englewood).
sent to you for the return.of the disc and plotter to
factories, as well as a net 30 invoice for the 5%
LESSOR: �lett- Packard Company
BY: �.
TITLE:
DATE:
0 0
HEWLETT PACKARD AGREEMENT 4124 -05896
Equipment Schedule #1
(Revision 01/19/88)
SECTION A
HP Hardware
Item Item
List Net Extended
tr
Model #
Description
Enio
Discount
Price
Price
24 "x36" surface
4069.00
1
98583C
Model 350C sys
32900.00
- 3783.50
29116.50
29116.50
1
9122S
Flex disc drive
1090.00
- 125.35
964.65
964.65
1
46087A
HP -HIL digitizer
795.00
-91.43
703.58
703.58
1
#001
4 button cursor
260.00
-29.90
230.10
230.10
1
2392A
Display terminal
1375.00
- 158.13
1216.88
1216.88
1
#301
US modem cable
85.00
-9.78
75.23
75.23
1
98642A
4 -ch async I/F
600.00
-69.00
531.00
531.00
1
22278
Quietjet plus
799.00
-91.89
707.11
707.11
1
98568A
8 slot expander
1900.00
- 218.50
1681.50
1681.50
1
#132
32 bit conversn
410.00
-47.15
362.85
362.85
1
10833A
HP -IB cable 1M
80.00
-9.20
70.80
70.80
1
10833C
HP -IB cable 4M
100.00
-11.50
88.50
88.50
1
98616A
Basic 5.0
0.00
0.00
0.00
0.00
1
#045
3 1/2" two side
860.00
-98.90
761.10
761.10
l
92211L
Taboret cabinet
239.00
-27.49
211.51
211.51
1
92213B
CAD /CAM table
799.00
-91.89
707.11
707.11
3
5061 -2403
Modem cable
54.00
-6.21
47.79
143.37
1
7570A
Graphics plotter
4900.00
- 563.50
4336.50
4336.50
1
7958A
130mb disc
7850.00
- 902.75
6947.25
6947.25
$48855.54
SECTION B
Holguin Corporation
1 91480
36 "x48" surface
4368.00
- 502.32
3865.68
3865.68
2 91360
24 "x36" surface
4069.00
- 467.93
3601.07
7202.14
3 91001
RS232 port
497.00
-57.16
439.84
1319.52
3 91053
Power supply
252.00
-28.98
223.02
669.06
3 91041
Cable
95.00
-10.93
84.07
252.21
3 91036
16 button cursor
392.00
-45.08
346.92
1040.76
3 91021
High accur.
275.00
-31.63
243.37
730.11
3 91070
Power lift
1262.00
- 145.13
1116.87
3350.61
$18430.09
0
SECTION B (Continued)
Holguin Corporation
Model# Description
Holguin CAD /CIVIL Package
consisting of:
MTX900 Expert Draft
MTX965 3 -d Modeling
MTX985 DIAS Technology
MTX990 EasyDATA
MTX IGES
ADC251 Disc Mgt. Syst.
ADC252 Field Control
ADC253 Geomet Design
ADC254 Master Design
ADC255 Auto Draft
ADC257G Digit System
ADC290 EasyDATA
Item
List
Price
26700.00
0
Discount
- 3070.50
Item
Net Extended
Price Price
23629.50 23629.50
TOTAL AMOUNT TO FINANCE: $90,915.13
0 0
ADDITIONAL TERMS
This Exhibit is attached to and made a part of Agreement# 4124 -05896
I. The Payment Commencement Date for all Equipment sold hereunder
shall be the same date that delivery acceptance takes place for
Lessor's Equipment notwithstanding a different acceptance date and
without regard as to whether or not delivery and acceptance has
taken place tar equipment or services and products provided
hereunder by any person or entity other than Lessor.
2. Lessee acknowledges that it has selected both H 1 n Cor oration
(herein called "Vendor ") and the products lists Ssc on B of
the Equipment Schedule. It is Lessee's sole responsibility to
acquire source or object code, updates or other backup or
necessary documentation to the Vendor's Products. The Software
License Terms shall apply to Vendor's Products listed in Section B
and any reference in such terms to "HP" or "Software" shall mean
"Vendor" or "Vendor's Products ".
The Vendor may impose additional terms and conditions on the
Lessee which may be more stringent than those imposed in this
Agreement. If the Lessee should forfeit any rights with the
Vendor or if the Vendor shall terminate any rights granted to the
Lessees the payment shall continue uninterrupted to Lessor.
LESSOR MAIMS NO WARRANTY EXPRESS OR IMPLIED AS TO ANY MATTER OR
PRODUCT LISTED IN SECTION 8 OF THE EQUIPMENT SCHEDULE WHATSOEVER
INCLUDING THE CONDITION OF THE PRODUCT(S), OR THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
AND AS TO LESSOR, LESSEE LEASES THE PRODUCT "AS IS ".
3. If the Product is not properly installed, does not operate as
represented or warranted by Vendor or is unsatisfactory for any
reason, Lessee shall make any claim on account thereof solely
against Vendor and shall, nevertheless, pay Lessor all payments
due under this Agreement, Lessee hereby waiving all claims against
Lessor. Lessor may include as a condition of this Agreement that
Vendor agree that all warranties, agreements and representations,
if any, which may be made by Vendor to Lessee or Lessor may be
enforced by %&ease or Lessor in their own name(s).
4. Lessee understands and agrees that neither the Vendor nor any
salesman or other agent of the Vendor is an agent of Lessor. No
salesman or agent of Vendor is authorized to waive or altar any
terms or condition of this Agreement, and no representations as
to the Product or any other matter by ths.Vandor shall in any way
affect Lessee's duty to make payments and perform its other
obligations as sat forth in this Agreement.
APPROVED AND-AGREED TO BY:
LESSOR:
COMPANY LESSEE:
TITLE: bW iAU3
ATL-03
BY:
s
Addendum "A"
-TO-
STATE /LOCAL GOVERNMENT RIDER
(Agreement #4124 - 05896)
The following additional provisions are hereby incorporated in and made a part
of the above- referenced Agreement:
1. OWNERSHIP /USE OF EQUIPMENT. Unless otherwise specifically acknowledged
and argreed to by HP, Customer hereby represents and warrants that it is
and will remain the exclusive owner, user and operator of the Equipment
covered under this Agreement.
2. FORM 8038 -G FILING REQUIREMENTS. Customer hereby acknowledges and agrees
that:
(a) Pursuant to the requirements of Section 149(e) of the "Internal
Revenue Code of 1986 ", Customer is responsible for preparing, exe-
cuting and timely filing an "Information Return for Tax - Exempt
Governmental Bond Issues" (I.R.S. Form #8038 -G) in connection with
this transaction.
(b) Customer will provide HP with a copy of the Form 8038 -G on or before
45 days following the end of the calendar quarter in which this trans-
action was funded.
(c) Should Customer fail to properly and timely file a Form 8038 -G and to
provide HP with a copy of the same as provided for above, Customer's
monthly payment shall be increased from $1492.77 per month to $1574.69
per month, retroactive to the original Rent Commencement Date under the
above Agreement.
(d) HP will, on a best efforts basis, assist Customer in the preparation
and filing of any Form 8038 -G required hereunder.
3. If the Agreement referenced above is an Installment Sales Agreement then,
as used herein, the term "HP" shall mean and include the term "Seller" and
the term "Customer" shall mean and include the term "Buyer ". If the agree-
ment referenced above is a Lease Agreement, then the term "HP" shall mean
and include the term "Lessor ", and the term "Customer" shall mean and
include ths,term "Lessee ".
:VICjLi of Nao"eadif Hewlet
By:
Name /X,Alk:
Date:
Name /Title: /°gJ"G4,rnJn sn�3
Date:
V"
r Form 8038 -0
(December 1986)
Department of the Treasury
Internal Revenue Sery e
IMM ReDoirtiniz Author
I Issuer's name
City of Newport E
3 Number and street
300 Newport Blvd.
S Cny or town, state, and ZIP code
I *rmatlon Return for Tax -Exen*
Governmental Bond Issues
► Under Section 149(e)
(Use Form 8038-GC if issue rnke is under $100,000.)
We No. 15450720
Expires 12 -31 -89
box if Arnertded Return ► Li
2 Issuer's employer rdenb5cabon number
4 Report number
r_T On
7 Check box if bonds are tax or other revenue anticipation bonds ► ❑
8 Check box if bonds are in the form of a lease or installment sale ►
9 ❑ Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10 ❑ Health and hospital . . . . . . . . . . . . . . . . . . . . . . .
11 ❑ Transportation . . . . . . . . . . . . . . . . . . . . . . . . . .
12 ❑ Public safety . . . . . . . . . . . . . . . . . . . . . . . . . .
13 ❑ Environment (including sewage bonds) . . . . . . . . . . . . . . . . . . . .
14 ❑ Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15 ❑ Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16 ❑ Other. Describe (see instructions) ►
(a) I (b) I (c) I stated
Mr date Interest rate Issue ome arc.
17 Final maturity .
18 Entire issue .
(f)
(O
Net interest
19 Proceeds used for accrued interest . . .. . . . . . . . . . . . . . . .
20 Proceeds used for bond issuance costs ( including underwriters' discount) . . . . . . . . . . .
21 Proceeds used for credit enhancement .. . . . . . . . . . . . . . . . .
22 Proceeds allocated to reasonably required reserve or replacement fund . . . . . .
23 Proceeds used to refund prior issues
24 Nonrefundin¢ proceeds of the issue (subtract lines 20.21.22. and 23 from line 18. column (c)) . . .
1f1
I v
20
21
22
0
23
24
25 Enter the remaining—weighted average maturity of the bonds to be refunded . . . . . . . . . ► none years
26 Enter the last date on which the refunded bonds will be called . . . . . . . . ► none
27 Enter the dates the refunded bonds were issued ► none
Mlscellanecus
28 Enter the amount (if any) of the state volume cap allocated to this issue . . . . . . . . ► 0
29 Arbitragerebate: n/a
a Check box if the small governmental unit exception to the arbitrage rebate requirement applies . . . . . . . . . . . . ❑
b Check box if the 6-month temporary investment exception to the arbitrage rebate requirement is expected to apply . . . . . ❑
c Check box if you expect to earn and rebate arbitrage profits to the U.S. . . . . . . . . ❑
30 Enter the amount of the bonds designated by the issuer under section 265(bx3)(8xii) ► 0 '
31 Pooled financings: n/a
a Check box if any of the proceeds of this issue are to be used to make loans to other governmental units to ❑ and
enter the amount ►
b Check box if this issue is a loan made from the proceeds of another tax-exempt issue ► ❑ and enter the name of the
issuer ► and.the date of the issue P-
er I r Cure gftl& mine i return and accompanying schedules and statements and to the best of my knowledge and War
Please they true • co mpiere
Sign
Here 'Sgn eofo + + Date
For Paperwork ductkln let Notice, see page 1 of thVinitructions. Form 8038•G (12 -86)
Y
x.,n h . n . .P ..(.✓ n =.y .... „xl a.e .m e4 .., tla:m :.e .,. .'�., : -.. v. v.. ., ,.. .1� ^•1
0 MAYA a
LEASE WITH OPTION TO PURCHASE EQUIPMENT SCHEDULE & PAYMENT AGREEMENT
LESSOR: HEWLETT - PACKARD COMPANY Lease Agreement # 4124-05897(B)
Finance and Remarketing Division Ref: Master Lease Agreement # 4124 -05896
972 East Arques, 70FA
Sunnyvale, CA 94086
LESSOR TAX I.D. #: 94-1081436
LESSEE: Newport Beach, City of
(Full Legal Name of Leasee)
(Street Address)
Newport Beach Orange California 92663
(aryl (county) (Stare) (LP)
Ted Kramp
(Wnteet Name and Phone Number)
EQUIPMENT LOCATION, IF OTHER THAN ADDRESS OF LESSEE:
Street
City
County
State Zip
Exhibits:
The following Exhibits checked below are incorporated herein and by this reference made a part of this Agreement:
Master Lease Agreement # 4124 -05896
® Purchase Discount Agreement # G1921
u
❑ HP Product Warranty; Form # Ref: G1921 , Rev.
❑ HP Software Terms, Form #
EN
The following Exhibits checked below are attached hereto and made a part of this Agreement:
® Early Buyout Schedule dated 11/1187 ® Addendum "A"
® HP State and Local Government Rider Form # FRD/RT dGr Rev. 12/86 ❑
Terms and Conditions:
1. Non- Concelkble Agreement: THIS AGREEMENT CANNOT BE CANCELLED
OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN.
2. Term: The term of this Schedule and Agreement for each item of Equipment
covered hereunder shall commence upon the date Lessor executes the same
and shall expire —29 months following the "Rent Commencement Date"
as defined in paragraph 2 of the above - referenced Master Agreement, or on
the expiration of any applicable renewal period. However, if Lessee has
executed this Schedule and Agreement and the Equipment ordered has been
delivered prior to Lessor's execution thereof, the term of this Schedule and
Agreement shall be effective on the date of execution by Lessee. .
3. Rent: As rent for the Equipment leased hereunder throughout the term
hereof, Lessee agrees to pay Lessor, its successors or assigns the sum of
$ 1 33 . i10 per month,*9x=iy9 of applicable use taxes.
Rent shall begin to accrue upon delivery and acceptance of the Equipment
as defined in the above referenced Master Lease Agreement.
*inclusive
4. Amount Financed: The total mount financed under this Equipment Schedule
and Pa ant Agreement, after deducting all applicable credits and discounts
is$ 8433.63
5. Purchase, Renewal, Return Options: Provided that no event of default has
occurred or is continuing to occur at the and of the initial non - cancellable lease
term, Lessee shall have the option to exercise the following options by pro.
viding Lessor with sixty (60) days prior written notice of its intention to:
Rev.
(I) purchase all or some of the Equipment covered by this Agreement for
(CHECK ONE)
❑ ten percent (10%) of the:
Net Price of Equipment to be Purchased x I Amount to I OR
LTotal Net Price of Equipment J LFinance J
❑ the then Fair Market Value of each hem of Equipment to be pur-
chased; OR
® One Dollar ($1.00) for all items of Equipment (available only for
State and Local Government Leases or with special approvaq;
plus any accrued late charges and taxes applicable to the transfer of
of this Equipment;
(ii) renew all or some of the Equipment covered by this Agreement on a
month -to -month basis for the:
[Nat Price of Equipment x to be Renewed] LOriginal Monthlyyy]I
Total Net Prk:e of Equipment Payment
for a six (6) month period after which time title to the Equipment shall pass
to Lessee;
(iii) return In accordance with the above referenced Master Lease Agreement
any Equipment covered by this Schedule and Agreement that is not pur-
chased or renewed.
If Lessee fails to notify Lessor of its intentions sixty (60) days prior to the expira-
tion of this Agreement and Schedule, It is agreed that Lessee shall renew all of
the Equipment covered hereunder in accordance with option (ii) above.
During the renewal period, Lessee may return all or some of the Equipment in
accordance with the above referenced Master Lease Agreement or purchase all
or some of the Equipment covered hereunder for the price computed in accor-
dance with option () above or the Fair Market Value, whichever is less, by pro-
viding Lessor with sixty (60) days prior written notice.
IF LESSEE EXERCISES ITS OPTION TO PURCHASE THE EQUIPMENT, IT IS
SOLD IN ITS THEN "AS IS" CONDITION AT ITS LOCATION WHEN THE OPTION
IS EXERCISED.
6. Early Buyout Optlon: At its option beginning with the thirteenth (13th) month
following the Rem Commencement Date, Leases may purchase all of the Equip-
ment in its then "as is" condition at its location when the option is exercised.
The purchase price shall be determined from the above - referenced Early Buyout
Schedule.
Equipment Schedule:
Qty. Modol Description
5 33444A 2M Byte Memory
3 9144A Tape Drive
Total Interest Charged: $2,472.23
i
7. Equipment Upgrade /Add -On: At its option but subject to Lessor's prior writ-
ten consent, Lessee may lease additional equipment and/or upgraded equip-
ment for those Items covered under this Schedule and Agreement on a then
currently marketed Lessor upgrade program. Such additional or upgraded
equipment shall be scheduled on a new Equipment Schedule and Payment
Agreement.
8. Upgrade Credit: If this Equipment Schedule and Payment Agreement reflects
an upgrade credit for equipment to be returned by Buyer to Seiler, Buyer agrees
to return such equipment to Sailer within thirty (30) days of delivery and accept-
ance of the new Equipment acquired hereunder.
9. Financing Statement: LESSEE HEREBY NOMINATES AND APPOINTS
LESSOR AS ITS ATTORNEY -IN -FACT FOR THE PURPOSE OF EXECUTING
ON ITS BEHALF FINANCING STATEMENTS (AND ANY APPROPRIATE
AMENDMENTS THERETO) UNDER THE PROVISIONS OF THE UNIFORM
COMMERCIAL CODE, FOR PROTECTIVE PURPOSES, RELATIVE TO THIS
AGREEMENT AND THE EQUIPMENT RENTED HEREUNDER.
Item item Extended
List Item Net Not
Price (Discount) Price Price
995.00 33% 666.65 3,333.25
2,300.00 33% 1,541.00 4,623.00
NET PRICE — HARDWARE
7,956.25
NET PRICE — SOFTWARE
–0–
TOTAL NET PRICE — EQUIPMENT
7,956.25
OTHER COSTS ( tax)
477-39
LESS: DOWN PAYMENT/CREDRS
–n–
AMOUNT TO FINANCE
9,43363
By execution hereof, the signer hereby certifies that he /she has read this Agreement and the attached Exhibits and that he/she is duly authorized to execute this
Agreement on behalf of Lessee.
LESSOR: LEW ETT- RD COMPANY .
BY: c'/' .
Amnorhea s�enew�,
NAME/TITLE: Patrick Cavaney /Area Sales Sup Mar.
DATE;
[hJ HEWLETT
PACKARD
FRDILWOP 12-88
0
E
EARLY BUYOUT / UPGRADE SCHEDULE
---------- ---- -- --------- - - - - --
CUSTOMER : CITY OF NEWPORT BEACH
LEASE 4 4124 - 05897(8)
TYPE OF LEASE STATE /LOCAL GOVT ( 82 MONTHS)
LEASE RATE : 1.577 MONTHLY
EFFECTIVE DATE OF RATES USED : 11/1/87
PROPERTY TAX 15 INCLUDED IN RATE
* BUYOUT
BUYOUT IS 87.93% AFTER PAYMENT 13 * BUYOUT
BUYOUT IS 85.80% AFTER PAYMENT 15 * BUYOUT
BUYOUT IS 83.65% AFTER PAYMENT 17 * BUYOUT
BUYOUT IS 81.48%, AFTER PAYMENT 19 * BUYOUT
BUYOUT IS 79.29% AFTER PAYMENT 21 * BUYOUT
BUYOUT IS 77.08% AFTER PAYMENT 23 * BUYOUT
BUYOUT IS 74.64% AFTER PAYMENT ZS * BUYOUT
BUYOUT IS 72.38% AFTER PAYMENT 27 * BUYOUT
BUYOUT IS 70.11% AFTER PAYMENT 29 * BUYOUT
BUYOUT IS 67.81% AFTER PAYMENT 31 * BUYOUT
BUYOUT IS 65.48% AFTER PAYMENT 33 * BUYOUT
BUYOUT IS 63.14% AFTER PAYMENT 35 * BUYOUT
BUYOUT IS 60.57% AFTER PAYMENT 37 * BUYOUT
BUYOUT IS 58.19% AFTER PAYMENT 39 * BUYOUT
BUYOUT IS 55.77% AFTER PAYMENT 41 * BUYOUT
BUYOUT IS 53.34% AFTER PAYMENT 43 * BUYOUT
BUYOUT IS 50.88% AFTER PAYMENT 45 * BUYOUT
BUYOUT IS 48.40% AFTER PAYMENT 47 * BUYOUT
BUYOUT IS 45.69% AFTER PAYMENT 49 * BUYOUT
BUYOUT IS 43.16% AFTER PAYMENT 51 * BUYOUT
BUYOUT IS 40.61% AFTER PAYMENT 53 * BUYOUT
BUYOUT IS 38.03% AFTER PAYMENT 55 * BUYOUT
BUYOUT IS 35.43% AFTER PAYMENT 57 * BUYOUT
BUYOUT IS 32.80% AFTER PAYMENT 59 * BUYOUT
BUYOUT IS 29.94% AFTER PAYMENT 61 * BUYOUT
BUYOUT IS 27.27% AFTER PAYMENT 63 * BUYOUT
BUYOUT IS 24.56% AFTER PAYMENT 65 * BUYOUT
BUYOUT IS 21.83% AFTER PAYMENT 67 * BUYOUT
BUYOUT IS 19.07 %, AFTER PAYMENT 69 * BUYOUT
BUYOUT IS 16.29% AFTER PAYMENT 71 * BUYOUT
BUYOUT IS 13.48% AFTER PAYMENT 73 * BUYOUT
BUYOUT IS 10.64% AFTER PAYMENT 75 * BUYOUT
BUYOUT IS 7.78% AFTER PAYMENT 77 * BUYOUT
BUYOUT IS 4.89% AFTER PAYMENT 79 * BUYOUT
BUYOUT IS 1.97% AFTER PAYMENT 81 * BUYOUT
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
I9
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
IS
I9
IS
IS
IS
IS
IS
IS
88.99% AFTER PAYMENT 12
86.87% AFTER PAYMENT 14
84.73% AFTER PAYMENT 16
82.57% AFTER PAYMENT 18
80.39% AFTER PAYMENT 20
78.18% AFTER PAYMENT 22
75.76% AFTER PAYMENT 24
73.51% AFTER PAYMENT 26
71.25% AFTER PAYMENT 28
68.96% AFTER PAYMENT 30
66.65% AFTER PAYMENT 32
64.32% AFTER PAYMENT 34
61.76% AFTER PAYMENT 36
59.38% AFTER PAYMENT 38
56.98% AFTER PAYMENT 40
54.56% AFTER PAYMENT 42
52.11% AFTER PAYMENT 44
49.64% AFTER PAYMENT 46
46.95% AFTER PAYMENT 48
44.43% AFTER PAYMENT 50
41.89% AFTER PAYMENT 52
39.32% AFTER PAYMENT 54
36.73% AFTER PAYMENT 56
34.12% AFTER PAYMENT 58
31.27% AFTER PAYMENT 60
28.61% AFTER PAYMENT 62
25.92% AFTER PAYMENT 64
23.20% AFTER PAYMENT 66
20.46% AFTER PAYMENT 68
17.69% AFTER PAYMENT 70
14.89% AFTER PAYMENT 72
12.07% AFTER PAYMENT 74
9.22% AFTER PAYMENT 76
6.34% AFTER PAYMENT 78
3.43% AFTER PAYMENT 80
AFTER PAYMENT 82
THE ABOVE BUYOUT PERCENTAGES ARE PREDICATED UPON THE
FOLLOWING ASSUMPTIONS :
*THAT NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING
AT THE TIME THE BUYOUT IS QUOTED
*THAT ALL RENTS DUE ARE CURRENT
*THE ABOVE PERCENTS APPLY TO THE AMOUNT FINANCED ONLY AND
DO NOT INCLUDE APPLICABLE TAXES IF ANY
H EWLrTT- PACKARD
STATE/LOCAL GOVERNMENT RIDER
Equipment Schedule and Payment Agreement # 4124 - 05897(8)
Master Agreement # 4124 -05896
The provisions of the aforementioned Agreement notwithstanding, Hewlett- Packard ( "HP ") and Customer mutually agree that:"
AVAILABILITY OF FUNDS, NONAPPROPRIATION OF FUNDS
Customer reasonably believes that funds can be obtained sufficient
to pay all monies due during the Agreement Term and hereby
covenants that it will do all things lawfully within its power to obtain,
maintain and properly request and pursue funds from which the
Agreement Payments may be made, including making provisions for
such payments to the extent necessary in each budget submitted
for the purpose of obtaining funding, using its bona fide best efforts
to have such portion of the budget approved and exhausting all
available administrative reviews and appeals in the event such por-
tion of the budget is not approved. It is Customer's intent to make
Agreement Payments for the full Agreement Term if funds are legally
available therefor and in that regard Customer represents that the
use of the Equipment is essential to its proper, efficient and economic
operation.
In the event no funds or insufficient funds are appropriated and
budgeted or are otherwise legally available by any means whatsoever
in any fiscal period for Agreement Payments due under this Agree-
ment, then the Customer will immediately notify HP or its assigns
of such occurrence and this Agreement shall terminate on the last
day of the fiscal period for which appropriations were received without
penalty or expense to Customer of any kind whatsoever, except as
to the portions of Agreement Payments herein agreed upon for which
funds shall have been appropriated and budgeted or otherwise
available. In the event of such termination, Customer agrees to
peaceably surrender possession of the Equipment to HP or its assigns
on the date of such termination, packed for shipment in accordance
with manufacturer specifications and freight prepaid and insured to
any location in the continental United States designated by HP. HP
will have all legal and equitable rights and remedies to take posses-
sion of the Equipment.
Notwithstanding the foregoing, Customer agrees (i) that it will not
cancel this Agreement under the provisions of this paragraph if any
funds are appropriated to it, or by it, for the acquisition, retention or
operation of the Equipment or other Equipment performing functions
similar to the Equipment for the fiscal period in which such termina-
tion occurs or the next succeeding fiscal period thereafter and (it)
that it will not during the Agreement Term give priority in the applica-
tion of funds to any other functionally similar Equipment. This
paragraph will not be construed so as to permit Customer to terminate
this Agreement in order to acquire any other Equipment or to allocate
funds directly or indirectly to perform essentially the same applica-
tion for which the Equipment is intended.
2. INCOME TAX INDEMNITY
This Agreement has been entered into on the basis that HP or any
Assignee of HP shall claim that the Interest paid hereunder is ex-
empt from Federal income tax under Section 103(a)(1) of the Internal
Revenue Code of 1954 as amended. Should the United States
Government disallow, eliminate, reduce, recapture, or disqualify, In
whole or in part, any benefits of such exemption as a result of any
acts or omissions by Customer or as a result of the inapplicability
of such section at the time this Agreement is entered into because
of the status of Customer, Customer shall then indemnify HP by pay-
ment, at HP's election, of either:
(a) Supplemental Payment to HP during the remaining period
of the Agreement Term in an amount necessary to permit HP to
receive (on an after tax basis over the full term of the Agreement)
the same rate of return that HP would have realized had there
not been a loss or disallowance of such benefits, together with
the amount of any interest or penalty which may be assessed
by the governmental authority with respect to such loss or
disallowance; or
(b) A lump sum payable upon demand to HP which shall be equal
to the amount necessary to permit HP to receive (on an after tax
basis over the full term of the Agreement) the same rate of return
that HP would have realized had there not been a loss or
disallowance of such benefits together with the amount of any
interest or penalty which may be assessed by the governmental
authority with respect to such loss or disallowance.
3. AUTHORITY AND AUTHORIZATION
Customer represents and warrants that: (i) Customer is a fully con-
stituted political subdivision or agency of the state or local govern-
mental unit where the Equipment is located; (ii) the execution, delivery
and performance by the Customer of this Agreement have been duly
authorized by all necessary action on the part of Customer; and (iii)
this Agreement constitutes a legal, valid and binding obligation of
the Customer enforceable in accordance with its terms. Customer
agrees that (t) It will do or cause to be done all things necessary to
preserve and keep the Agreement in full force and effect, (ii) it has
complied with all bidding requirements where necessary and by due
notification presented this Agreement for approval and adoption as
a valid obligation on its part, and (iii) it has sufficient appropriations
or other funds available to pay all amounts due hereunder for the
current fiscal period.
4. NON - ASSIGNABILITY BY HP
HP agrees that it shall not and will not sell, discount, factor,
hypothecate or otherwise dispose of its interest In the Equipment
and /or the above - referenced Equipment Schedule and Payment
Agreement.
5. INTEREST RECOGNITION
Customer and HP recognize and agree that a portion of the rem here-
under is interest based on the total equipment cost as shown on the
equipment schedule, and calculated at the rate of cPvpn and
percent( 7.807 %) per annum. eight hundred seven
thousandths
'If this Rider is used in connection with an Installment Sale Agreement, the term, "HP" shall mean and include the term "Seller' and the term "Customer" shall mean
and include the term "Buyer'. If this Rider is used in connection with a Lease Agreement, the term "HP" shall mean and include the term "Lessor ", and the term
"Customer" shall mean and include the term "Lessee ". -
j[b HEWLETT
P PACKARD FRD /RIDER- 112-86
The following additional provisions are hereby incorporated in and made a part
of the above referenced agreement:
1. OWNERSHIP /USE OF EQUIPMENT. Unless otherwise specifically acknowledged
and agreed to by Hewlett - Packard, Customer hereby represents and warrants
that it is and will remain the exclusive owner /user and operator of the
equipment covered under this agreement.
2. FORM 8038 -G FILING REQUIREMENTS. Customer hereby acknowledges and agrees
that:
3
(a) Pursuant to the requirements of Section 149 (e) of the "Internal
Revenue Code of 1986 ", Customer is responsible for preparing,
executing and timely filing an "Information Return for Tax - Exempt
Governmental Bond Issues" (I.R.S. Form #8038 -G) in connection with
this transaction.
(b) Customer will provide Hewlett- Packard with a copy of the Form
8038 -G on or before 45 days following the end of-the calendar
quarter in which this transaction was funded.
(c) Should Customer fail to properly and timely file a Form 8038 -G
and to provide Hewlett - Packard with a copy of the same as
provided for above, Customer's Annual Percentage Rate shall
be increased from 7.807% to 10.25% retroactive to
the original Rent Commencement Date under the above agreement.
(d) Hewlett- Packard will, on a best efforts basis, assist Customer
in the preparation and filing of any form 8038 -G required hereunder.
If the agreement referenced above is an Installment Sale Agreement then,
used herein, the term "Hewlett- Packard" shall mean and include the term
"Seller" and the term "Customer" shall mean and include the term "Buyer ".
If the agreement referenced above is a Lease Agreement, then the term
"Hewlett- Packard" shall mean and include the term "Lessor ", and the term
"Customer" shall mean and include the + ^�-
HEWLETT- PACKARD MPANY
BY:
NAME /TITLE: Joan Degani
Region Sales Fin. Spvsr.
DATE:
as
DATE:
MCDIFICATION OF LEASE
NUMBER 2669 (fl)
This Modlfication of the Lease Number 2669, entered into
this &5 of October, 1987, by and between the CITY OF
NEWPORT BEACH, a municipal corporation (hereinafter "City ") and
Hewlett- Packard Company (hereinafter "Consultant "), is made with
reference to the following:
RECITALS:
A. - On September 28, 1987, Lease Number 2669, was
entered into by and between City and Contractor (hereinafter
"Lease ").
B. City and Consultant desire to modify the Lease on
the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as fql lows i; ,
1. Section B of Equipment Schedule of the Lease is
modified to read as follows:
Section B:
Delta Systems Software $112,600.00
Sierra Computer Systems, Inc. 359450.00
Skantek Products 165,335.00
2. All references. to "Infocomp Software" shall be
deleted and replaced with "Sierra Computer Systems, Inc."
3. Except as expressly modified herein, all other
terms and covenants set for.th in the Lease shall remain the same
and shall be in full force and effect.
EXHIBIT N
MODIFICATION OF LEASE
NUMBER 2669 (�1
This Modification of the Lease Number 2669, entered into
this J(Zfv day of October, 1987, by and between the CITY OF
NEWPORT BEACH, a municipal corporation (hereinafter "City ") and
Hewlett- Packard Company (hereinafter "Consultant "), is made with
reference to the following:
RECITALS:
A. On September 28, 1987, Lease Number 2669, was
entered into by and between City and Contractor (hereinafter
"Lease ") .
B. City and Consultant desire to modify the Lease on
the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:-
f
1. Section B of Equipment Schedule of the Lease is
modified to read as follows:
Section B:
Delta Systems Software $112,600.00
Sierra Computer Systems, Inc. 35,450.00
Skantek Products 165,335.00
2. All references to "Infocomp Software" shall be
deleted and replaced with "Sierra Computer Systems, Inc."
3. Except as expressly modified herein, all other
terms and covenants set forth in the Lease shall remain the same
and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Modification of Lease to be executed on the day and year first
above written.
CITY OF NEWPORT BEACH,
a municipa^orporation
BY:
PROVED AS TO FORM:
c9-Q N . 6N.
CITY ATTORNEY
CONSULTANT
HEWLETT- PACKARD CCMPANY
ATTE ST: i
City Clerk (Assistant)
r(
Exhibit A
a.
BASIC AGREEMENT FOR COMPUTER SOFTWARE
AND RELATED SERVICES
COME NOW, Building Permt.System Vendor and
the City of Newport Beach of the State of California, a a municipality
(CITY), and for their agreement for to provide software and
'other related services to CITY, do agree as follows:
GENERAL PROVISIONS:
1. DOCUMENTS: This agreement.consists of the following documents, all of
which are incorporated herein:
a. This basic agreement;
b. System Design Document (when completed);
c. Amendments hereto, (when signed by both parties);
d. Attachment A (CITY'S request for proposal);
e. Attachment B ( ' proposal #2151);
f. Attachment C (Non - disclosure agreement, A282 -01);
g. Attachment D (Warranties and Indemnity)
h. Attachment E (Executive Order #11246)
i. Attachment F1 (Leasing agreement)
No variance of the foregoing, or waiver of the terms of such, shall
be valid unless reduced to a written document signed by both parties.
Following execution of this agreement, the parties shall jointly
prepare a System Design Document which will precisely define the scope of
the software to be provided by to CITY based on the proposal at-
tached hereto as Attachment B. Upon approval by both parties,
will proceed to implement such software in accordance with such System
Design Document.
In the event of any conflict between this basic agreement and any
attachment or amendment hereto, said Attachment or Amendment shall super-
sede this basic agreement only with respect to such conflict.
2. METHOD OF PAYMENT: Payment for work performed by shall be
due in accordance with the terms of the Attachments hereto, upon presenta-
tion by , of invoices to CITY. Invoices shall separately state
all taxes, delivery charges, insurance, supervision or installation charg-
es, hourly charges for labor, or other charges to be separately itemized.
Same shall contain City's specification or contract numbers.
City shall handle payment for the foregoing invoices in an ex-
peditious manner. payment of invoices, other than final payment, shall
not be construed as acceptance of work in progress.
Unless otherwise agreed, payment shall be according to the
following schedule:
•
Application software:. 258 of contract price at signing of this
agreement. Upon delivery of each module or sub - module, remaining
balance of price of each such module, due thirty days after suc-
cessful demonstration and invoicing to CITY.
Miscellaneous Tasks: Net 30 days after completion of services ren-
dered and invoicing.
System and Facility Support: Net 15 days as incurred.
3. FINAL PAYMENT:. Upon delivery of all software, documentation, and in-
voicing by final payment shall be due unless arbitration as set
forth below is promptly demanded by CITY. Acceptance of final payment by
,-_ shall act as a release of CITY, its employees and officers of all
claims by against CITY except with respect to facility support.
4. TIME: Work shall be scheduled as set forth in the Attachments hereto.
shall not be liable for delays beyond its reasonable control,
may delay work scheduled upon the written agreement of CITY and
provided that same shall not automatically allow for an increase in price
for work or expense incurred by beyond the scheduled date.
In the event CITY requests a delay, - 1. shall estimate any
additional charges occasioned by such delay and same, upon approval by
CITY, shall be added to the price for work performed under this agreement.
5. LICENSE: by virtue of this agreement, and upon full perfor-
mance by the parties hereto, grants to CITY a non - transferable and non-
exclusive license for five years subject to the conditions of the non-
disclosure agreement at Attachment C. Thereafter, said license shall only
prevent CITY from conveying, leasing or otherwise making copies of the
software for use by a third party.
6. TESTING'AND ACCEPTANCE
Acceptance of the software or component thereof furnished hereunder
will not be made by CITY and /or CITY'S representative until the software
or component thereof has been placed in operation and tested and found to
have met successfully all performance warranties made by
However, if said performance tests are delayed beyond a period of one year
from the date the work is placed in operation and provided said operating
dare is not unreasonably delayed by CITY and such delays are not due to
deliveries or performance limitations, then
liability for its warranties of performance shall terminate unless other
terms of liability are mutually agreed upon at the end of this one year
period. Upon fulfillment of all the terms of this agreement, CITY and /or
CITY's representative will so notify • - in writing; and, such writ-
ten notice only shall constitute acceptance and fulfillment of this agree-
ment, subject, however, to the warranties contained in this agreement.
7. TERMINATION
0 0
This agreement may be terminated by the parties as follows:
By -' for non - payment; failure of CITY to cooperate in in-
stallation of software; unreasonable delay occasioned by CITY; and
requests for modifications of software beyond the specifications set forth
in this agreement and attachments or modifications to such specifications
without agreement for additional compensation to
By CITY for failure to perform work inaccordance with this
agreement.
Each party shall be obligated to provide fifteen (15) days notice
of the alleged breach, shall reasonably negotiate with the other party to
cure such breach, and shall terminate this agreement only upon breach of
the negotiated settlement subject to the rights of the parties to ar-
bitrate as set forth hereunder.
CITY may suspend or terminate, by written notice, the work being
performed pursuant to this contract if the CITY shall be required or deems
it advisable as a direct or indirect consequence of anv governmental
necessity or action by another governmental body. . - thereupon
shall take whatever action is necessary with respect to work in progress
as will tend to minimize its claim against CITY. CITY will pay a
reasonable suspension or termination charge, including an allowance for
anticipated profits on the unperformed portion of the work.
S. CLAIMS AND DAMAGES
If claims compensation for damage caused by CITY,
shall notify CITY within thirty (30) days of discovery thereof including a
written statement of such damages and the estimated amount thereof.
Unless so filed, said claim shall be deemed waived.
Damages shall not be allowed for unforeseen difficulties except ef-
forts by requested by CITY which are beyond the scope of
INFOCOMP'S specific proposal.
Damages for breach of this agreement (except as provided under
Warranties shall be limited to costs in excess of the contract price for
substitute performance by another supplier (in the event of breach by
) or lost profits and cost of work to date of breach (in the event
of breach by CITY), and costs of litigation and reasonable attorney fees
if awarded by a board of arbitrators or a court of competent jurisdiction.
9. DISPUTES AND ARBITRATION
Any dispute arising between CITY or its agents and " under
any provision hereof which cannot be settled by the parties within a
reasonable time shall be submitted by either party to arbitration conduc-
ted under the rules of the American Arbitration Association. All disputes
to be arbitrated shall be submitted to and- decided by a board of {hree
arbitrators, one to be appointed by . one by CITY (each 4 lihich
may be an employee) and the third by the two so appointed. If either
party shall fail or refuse to appoint an arbitrator within 30 days after
written notice has been given to it by the other party naming the letter's
arbitrator, the party giving such notice shall have the right to request a
court of competent jurisdiction to appoint an arbitrator for the other
party so in default. If the two arbitrators thus chosen shall be unable
to agree upon a third arbitrator, such arbitrator shall be appointed, upon
application by either party, by such court. The decision of a majority of
the arbitrators, after a hearing at which both parties shall have an op-
portunity to be heard and to introduce evidence, shall be binding upon the
parties hereto. The fees and costs of the arbitrator appointed by each
party shall be paid by the respective party, and the fees and costs of the
third arbitrator shall be born equally by and by CITY.
In the event that either party may refuse or fail to perform the
arbitrator's award or decision, same may be enforced in a court of com-
petent jurisdiction.
10. INDEMNITY
shall indemnify CITY, its officers, agents and employees
against all loss, damage, expense and liability resulting from injury to
or death of any person, including, but not limited to employees of CITY
and /or or injury to property, including, but not limited to
property of CITY and /or - arising out of, the technical direction
of installation, inspection and instruction performed by • - . repre-
sentative at CITY'S work site. Excepting only such injury or death as may
be caused by the negligence or willful misconduct of CITY.
shall, on CITY'S request, defend any suit asserting a claim covered by
this indemnity. shall pay all costs that may be incurred by
CITY in enforcing the indemnity, including actual attorney's fees.
11. MISCELLANEOUS PROVISIONS
In the event of breach of this agreement (including any
Attachment), the non - defaulting party (as determined by a board of ar-
bitrators or a court of competent jurisdiction) shall be entitled to its
costs and reasonable attorney's fees incurred in litigation, including
arbitration.
This agreement shall be governed by, subject to and construed in
accordance with the laws of the State of California, and shall inure to
the benefit of the parties, their successor's in interest, or assigns.
The waiver or failure of either party to exercise any right
provided for in this agreement shall not be deemed a waiver of any further
or future rights hereunder.
All notices provided for in this agreement shall be in writing and
addressed to the appropriate party at the respective addresses set forth
below or to such other then current address as is then specified.by the
parties hereto in writing, and if such notices are sent by mail they shall
be certified with return receipt requested.
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Paragraph headings are included in this agreement for convenience
only and are not deemed to be apart of this agreement.
This agreement together with the attachments thereto constitutes
the complete agreement between the parties hereto and no provisions of
this agreement may be changed or modified except by subsequent agreement
in writing signed by both parties.
WARRANTIES AND INDEMNITIES
0
All royalties or other charges for any patent, trademark, trade
secret or copyright to be used in the software shall be considered as in-
cluded in the contract price and, unless otherwise agreed, shall be paid
by to the party entitled to such royalty or charge. .
shall indemnify and save harmless USER against any and all
judgments, costs, damages, and expenses which may be awarded against USER
any suit, action or proceeding brought against USER for infringement or
alleged infringement of a patent, trademark, trade secret or copyright by
a Court of competent jurisdiction, arising out of the use by USER of the
software furnished hereunder in the ordinary use for the purposes of USER.
If any suit or suits for infringement of a patent, trademark, trade secret
or copyright be instituted against the USER on account of the use of said
software or component thereof, and if promptly notified within five days
of institution of such suit, shall assume the defense of such
suit or suits and all expenses incidental to the defense thereof; but it
is expressly understood that in assuming the defense of such suit or
suits, shall have control of same, USER shall be kept fully in-
formed as to the progress thereof, and have the right to confer about and
give advice and assistance regarding the same and shall cooperate in good
faith with
If enjoined from the use of such software or component t.iereof by a
Court of competent jurisdiction, may supply alternative software,
subject to the specifications set forth in the Attachments hereto.
shall pay all additional costs of installing such software.
warrants that the software developed and all components
thereof furnished by 1, shall be of the kind and quality described
in the contract documents; will be free of defects in workmanship, shall
be o` merchantable quality . ^.n(1 shall be fit for its latc:udcd purr':.;.:.
further warrants that same complies, when install >d, with the
laws of the State of California as of the date of installation.
agrees that if it shall appear within twelve (12) months
from the date the application software is placed in operation, provided
the same is not unreasonably delayed by the USER, that the software or
component thereof delivered hereunder does not meet the warranties
specified above, and provided that the USER notifies , promptly
upon the discovery of such defect or nonconformity; then shall
acknowledge receipt of such notice of defect or nonconformity and shall
inform the USER in writing within fifteen days of receipt of such notice
as to whether:
a) will, at expense, immediately modify or
replace the software or component thereof or otherwise correct work so
that it. will meet and conform to the warranties specified above, provided,
however, that if should elect to correct or modify, such shall be
effected in such a manner as not.to interfere with operations conducted by
USER, or
b) will authorize USER to modify or replace the software
or component thereof, so that the software or component thereof will meet
and conform to the warranty specified above, and agrees to pay USER the
cost of such modification, replacement, or correction.
If is obligated to correct defects as herein provided, the
warranty period for the modified or replaced software or component thereof
only shall be extended for twelve (12) months from date the modified or
replacement software is placed in operation provided the same is not un -.
reasonably delayed by USER. 1.
It shall be agreed that if shall so replace, modify or
otherwise correct the defect or nonconformity, or so authorize the USER to
modify, replace or otherwise correct the defect or nonconformity and pays
or agrees in writing to pay such cost of such modification, replacement or
other correction, such shall constitute fulfillment of all liabilities of
to USER for any claim based upon such defect or nonconformity,
and in such event, shall not be liable for special or consequen-
tial damages. If supplier so modifies, replaces or otherwise corrects the
nonconformity, or so authorized the USER to do so and pays the cost of
same, and it is subsequently determined by agreement between the parties
or any court of competent jurisdiction that is not responsible
for same, USER will refund or repay the sums paid by with reason-
able interest allowed by state law.
The foregoing warranty shall apply only on hardware systems con-
figured as set forth in the Attachments and shall apply only to modifica-
tions of the software or component thereof performed by Use of
other hardware or software modifications of software performed by USER or
a third party (unless agreed to and approved by INFOCOMP in writing) shall
void the foregoing Warranty or Indemnification automatically.
In any event, � liability for any claim based upon such
defect, nonconformity or noncompliance shall not exceed the total price of
the software or component thereof furnished under this agreement.
NONDISCLOSURE AGREEMENT
Whereas
doing business at "' is the
developer and owner of certain computer software programs designed for use
in the governmental market place and
Whereas the City of Newport Beach (hereinafter the City), located at 3300
Newport Boulevard, Newport Beach, CA 92663, desires to evaluate said com-
puter programs as candidates for purchase,
It is hereby agreed by the parties that:
1. will disclose such data relative to their computer programs as
deemed necessary by . for the City's understanding of the
capabilities and content thereof. It is understood that the data so
provided is confidential to and contains trade secrets and the proper-
ty of
2. Access to data supplied to the City by I is severely limited. The
City by its execution of this agreement agrees to notify in writ-
ing of the identities of all specific persons who will have access to
said data. Disclosure is strictly limited to permanent employees
and /or officers of the City who have been previously identified to
and who agree to be bound by the confidentiality herein expressed.
3. The City agrees that it will not disclose data provided under this
agreement to any party or parties not in the direct employ of the City
and identified to nor will it use the information provided in com-
petition with I directly or indirectly in any market where the soft-
ware programs might find application. Sale or use by the City or use
for in programming of any data provided to the City under this agree-
ment is expressly prohibited.
4. Data provided under this agreement is generally categorized as "Users
Documentation" and is clearly designated as proprietary information on
each copy thereof. This agreement covers all data, or other materials
disclosed, to include, but not be limited to, the following categories
of data:
a) Users Manuals /Ins.tructions
b) Data Processing Documentation
• Program Descriptions
• Flow Charts or Diagrams
• Computer Operations Data
c) Operating Programs on Machine Readable Mein
ATTACHMENT E
EXECUTIVE ORDER 11246
During the performance of this agreement and to the extent that
Executive Order 11246 may be applicable to this agreement, the
agrees as follows:
The will not discriminate against any employee or applicant
for employment because of race, color, religion, sex, or national origin.
Such action shall include, but not be limited to, the following: employ-
ment, upgrading, demotion or tranpfer;. recruitment or recruitment adver-
tising; layoff or termination; rates of pay or other forms of compensa-
tion; and selection for training, including apprenticeship. The
agrees to post in conspicuous places, available to employees and ap-
plicants for employment, notices to be provided by the contracting officer
setting forth the provisions of this non nondiscrimination clause.
The _ will furnish all information and reports required by
Executive Order No. 11246 of September 24, 1965, and by the rules, regula-
tions and orders of the Secretary of Labor, or pursuant thereto, and will
permit access to his books, records and accounts by the contracting agency
and the Secretary of Labor for purposes of investigation to ascertain com-
pliance with such rules, regulations and orders.
In the event of the " noncompliance with the nondiscrimina-
tion clauses of this agreement or with any such rules, regulations or or-
ders, this agreement may be cancelled, terminated or suspended in whole or
in part and the Contractor may be declared ineligible for further con-
tracts in accordance with procedures authorized in Executive Order No.
11246 of September 24, 1965, or by rule, regulation or order of the
Secretary of Labor, or as otherwise provided by law.
0
ATTACHMENT F -1
ADDENDUM TO SOFTWARE CONTRACT (LEASE)
COMES NOW '_' r._ (SUPPLIER) and the CITY OF NEWPORT BEACH
(CITY); and for an amendment to their contract for providing computer
software to CITY, state and agree as follows:
1. SUPPLIER and CITY have entered into an agreement regarding software
delivery to CITY, all to be utilized on computers and peripherals
leased form Hewlett- Packard, Inc.;
2. CITY has or intends to pay or finance the hardware and the software
rendered by SUPPLIER to CITY through a lease with Hewlett Packard
Company for a combined package of hardware and software.
NOW THEREFORE,
1. As indicated in Section 2.0 of the contract, SUPPLIER shall be entit-
led to payment of a deposit of 258 of the contract price upon contract
award and execution. SUPPLIER will also be entitled to invoice CITY
and Hewlett Packard for the entire amount called for under the soft-
ware contract at the time of delivery of the software.
2. The parties anticipate that Hewlett Packard will then pay to SUPPLIER
the agreed sums. CITY shall be entitled to immediate payment from
such funds of an amount not greater than the deposit paid to SUPPLIER
by CITY upon CITY's award of a contract between SUPPLIER and CITY.
3. In the event of a dispute regarding performance by SUPPLIER (either
full or partial) or a dispute regarding payment due SUPPLIER from such
account, the parties have agreed to binding arbitration. The award of
the arbitrators or other written agreement of the parties shall deter-
mine the amount of and the entitlement of each party to interest on
such account.'.
4. The term of this agreement shall be until completion of the contract
between the parties.
Exhibit "F" Holquin: Software license and confidentiality
agreement (training).
Exhibit "G" Holquin: Software license and confidentiality
agreement (software support).
Exhibit
"H"
Skantek:
System quotation.
TABLE OF EXHIBITS
Exhibit "A"
Building Permit System
Vendor:
Exhibit
Basic agreement for
computer software and
Software license agreement.
related services.
"K"
Exhibit "B"
Building Permit System Vendor: Insosery
Exhibit
agreement between
the City of Newport Beach
Software maintenance agreement.
and Building Permit
System Vendor.
Exhibit "C"
Holquin: Software
license and confidentiality
Hewlett- Packard: Lease with Option to
agreement (ARC 800,
and civil software).
Exhibit "D"
Holguin: Hardware
sales order.
Exhibit "E"
Holquin: Software
program support agreement
(U.S.)
Exhibit "F" Holquin: Software license and confidentiality
agreement (training).
Exhibit "G" Holquin: Software license and confidentiality
agreement (software support).
Exhibit
"H"
Skantek:
System quotation.
Exhibit
"I"
Skantek:
Terms and conditions of sale.
Exhibit
"J"
Skantek:
Software license agreement.
Exhibit
"K"
Skantek:
Hardware maintenance agreement.
Exhibit
"L"
Skantek:
Software maintenance agreement.
Exhibit
"M"
Deltasystems: Consulting services.
Exhibit
"N"
Hewlett- Packard: Lease with Option to
Purchase
Equipment Schedule and Payment
Agreement
INFOSERV AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
• Exhibit B
(Hereinafter referred to as "USER ")
AND
(Hereinafter referred to as " '")
agrees to provide and USER agrees to accept those products and
services (hereinafter referred to as "INFOSERV ") which are described and
incorporated herein, in accordance with the terms and conditions set forth
as follows:
1. EFFECTIVE DATE AND DURATION
This agreement shall be effective as of and will ter-
minate
2. OBLIGATIONS
agrees to provide INFOSERV support services in accordance
with the descriptions and specifications set forth in Appendix A of
this agreement for compensation as also set forth therein which shall
not exceed ; per year.
3. SOFTWARE COVERED
USER's software systems configuration covered by this agreement and
base charges applied by -are only as set forth in Appendix B
of this agreement.
Modifications to software systems configuration covered by this
agreement will be supported at no additional cost through the end of
any prepayment period (up to a maximum of one year) for which payment
was made prior to the installation of the modification.
Additions to software or systems configuration by USER shall not be
covered unless and until notification is given to and addi-
tional charges are agreed to by amendment to this agreement.
4. WARRANTY
The remedies provided herein are USER's sole and exclusive remedies.
shall not be liable for any direct, indirect, special,
1
incidental, or consequential damages whether based on contract, tort,
or-any other legal theory.
5. PRODUCT WARRANTY
So long as this agreement is continuously in effect, the standard
warranty for any covered product shall remain effective.
6. NON - DISCLOSURE
So long as this agreement is in effect, all non - disclosure agreements
between and USER shall be deemed extended for a term (in ad-
dition to the basic term) not to exceed the duration of this agree-
ment. Termination of this agreement shall not be construed to ter-
minate such non - disclosure agreements if they are still individually
in effect.
7. SECURITY
and personnel will at all times comply with all
security regulations in effect at the USER's premises which are made
known in writing by USER to Materials belonging to the
USER or the project will be safeguarded by to at least the
same extent as safeguards proprietary information relating
to its own business.
8. LIAISON
USER will designate in writing one or more persons of their personnel
who shall have the duty of acting as a point of contact with
Project Coordinator to assure the expeditious execution of
this agreement.
9. USER - FURNISHED DATA /INFORMATION
The USER agrees to provide to at no cost to INFOCOMP, such
data and /or information as the parties mutually deem necessary to ex-
ecute the tasks assigned to . under this agreement. .
10. OFF -HOURS EMERGENCY SUPPORT OPTION NOT EXERCISED
USER has elected not to request the Infosery off -hours emergency sup-
port option.
11. HEWLETT PACKARD "V" SITE SUPPORT OPTION NOT EXERCISED
USER has elected not to request Hewlett Packard "V" site option and
will obtain its hardware and system software support from Hewlett
Packard or another party.
2
12. PAYMENT
agrees to prepare and submit to the USER an original and one
copy of an invoice for the period of service covered by this agree-
ment. Payment is due upon receipt of invoice and may be made quart-
erly (no discount), semi- annually (58 discount), or annually (108
discount) in advance.
13. TERMINATION
The USER may terminate this agreement at any time by giving written
notice to the of such termination and specifying the effec-
tive date thereof, at least thirty (30) days before the effective
date of such termination.
may terminate this agreement at any time by giving written
notice to the USER of such termination and specifying the effective
date thereof, at least thirty (30) days before the effective date of
such termination.
In the event of termination, all sums due either or USER are
immediately due without further notice.
14. CAUSES BEYOND CONTROL
Neither party shall be responsible for delays or failure in perfor-
mance resulting from acts beyond the control of such party. Such
acts shall include but not be limited to acts of God, strikes, riots,
lockouts, acts of war, epidemics, governmental regulations superim-
posed after the fact, fire, communication line failures, power
failures, earthquakes, or other disasters.
15. PATENT AND OTHER PROPRIETARY RIGHTS INDEMNITY
INFOCOMP warrants that all materials and /or products produced
hereunder will not infringe upon or violate any patent, copyright,
trade secret, or any other proprietary right of any third party. In
the event of any claim by any third party against USER, USER shall
promptly notify - and shall. defend such claim, in
USER's name, but at expense and shall indemnify USER
against any loss, expense, or liability arising out of such claim,
whether or not such claim is successful.
16. ASSIGNMENT
This agreement shall be binding upon and shall inure to the benefit
of the parties hereto and to their respective successors'and ascirnq
provided, however, that this agreement may not be assigned or ti•
ferred without the prior written consent of the USER.
3
- Answers to routine hardware questions
(eg. terminal hang -up)
- Error recovery assistance
- Remote diagnosis via tele - support, including downloading
of software patches
- Application consulting and problem solving
System operator consulting and problem solving
Procedure refreshing
Warranty Support:
Problems which are warranty are those cases where the software does not
work as described in the appropriate section of the System Design
Document (SDD), and User's Manual for the specific site and application.
By contract, Infocomp must correct these errors and bring the software
into compliance with the SDD and User's Manual during the twelve months
following final installation.
This warranty is extended for as long as Infosery support is con-
tinuously maintained for a product past the twelve month initial war-
ranty period.
Additional Support: (Beyond Infosery or Warranty Support)
Modifications, enhancements, and customization of application software
to change, it from the configuration defined in the SDD and User's
Manual are beyond the scope of Infosery support or warranty but will be
accomplished by 1. at client request. Requests are submitted to
Infosery by the Client, and Infosery responds with a defined task at a
fixed cost. Upon approval by the requestor, this work is scheduled for
accomplishment based on Client requests and resource availability.
Such requests are tracked through the Infosery administrative system to
provide direct monitoring and control from request to completion.
INFOSERV INITIATION
Infosery support begins after final installation and training is complete
and the system has been accepted by the user. To allow for adaptation in
using the system, direct product specialist support continues for 30 days
after final installation at no charge to the Client. To facilitate
management of inquiries and problems during this 30 -day period, initial
contact for. each question should be through the assigned 800 number.
After this 30 -day period, Infosery support begins.
17. DEFAULT
If . or USER is in default under this agreement and such
default continues for thirty (30) days after written notice thereof
by the non - defaulting party, either party, at their option, has the
right to submit the dispute to arbitration. Once submitted by either
party, the rules and procedures of the American Arbitration
Association shall apply.
18. MUTUAL CONSENT
USER and m represents that this agreement supercedes all
previous contracts, agreements, negotiations, and all other com-
munications between the parties with respect to the subject matter
hereof, except those included as part of this agreement.
This agreement contains all of the terms and conditions agreed upon
by the parties. No other understandings, oral or otherwise, regard-
ing the subject matter of this agreement, shall be deemed to exist or
to bind any of the parties hereto.
19. EQUAL OPPORTUNITY
shall abide by the requirements of Title VII of the Civil
rights Act of 1964, and shall not discriminate against employees or
applicants due to race, color, religion, sex or national origin.
Furthermore, the . shall take Affirmative Action pursuant to
Executive Order 11246, and the Vocational Rehabilitation Act of 1973
to provide for a positive posture in.employing and upgrading persons
without regard to race, color, religion, sex, national origin, or
handicap, and shall take Affirmative Action as provided in the
Vietnam Era Veteran's Readjustment Act of 1974. - ' shall also
abide by the requirements of Title VI of the Civil Rights Act of 1964
and the Vocational Rehabilitation Act of 1973 and insure that all
services are delivered without discrimination due to race, color, na-
tional origin or handicap.
20. MODIFICATIONS OF THIS AGREEMENT
Any alterations, variations, modifications or waivers of provisions
of this agreement shall be valid only when they have been reduced to
writing, duly signed and attached to the original signed copy of this
agreement. No claim for services furnished by the not
specifically provided in this agreement will be allowed by the USER.
21. GOVERNING LAW
This agreement shall be construed in accordance with and governed by
the laws of the State of California.
4
INFOSERV AGREEMENT APPENDIX A
DESCRIPTION OF SERVICES TO BE PROVIDED - ISSUE DATE: 3/1/87
INTRODUCTION
Infosery is provided by to support its software products
after the initial installation is completed. It provides the user access
to the resources of Infocomp Systems to solve the broad spectrum of infor-
mation management issues that arise as a user assumes complete control of
the software products.
INFOSERV OBJECTIVE
The single objective of Infosery is to provide better service to our cus-
tomers. The system provides management and control of all service
requests and gives high visibility to all unresolved issues. It
facilitates more effective application of resources to customer
problems, increases our ioint tonhnical productivity, and strengthens the
relationship between and each user. In particular, it
provides:
- An 800 number for all requests for service.
- Monitoring and tracking of all requests.
- Base system updates to address government- required format
changes, tax table updates, etc.
- Periodic base system enhancements.
- Support of embedded third party software.
- Semi - annual on -site system reviews.
- Increased management attention to critical problems.
CATEGORIES OF SERVICE
All problems associated with the operational use of software on
an HP 3000 computer can be put into one of the following categories:
Infosery Support:
Questions and problems associated with application software
and its operation on the HP 3000 system not included in Warranty are
covered under Infoserv. Examples of items are:
INFOSERV PROCEDURES
All questions regarding • - products are routed through the Infosery
800 number. General data processing and related systems questions will be
answered immediately by Infoserv, if possible. For more difficult ques-
tions, Infosery personnel will record the nature of the problem, determine
the specific product or other system involved, and characterize the urgen-
cy of the problem.
Once this information is recorded, Infosery personnel will enter the
request for service into the Infosery tracking system and refer the
request for service to the appropriate product specialist or to a systems
specialist. The user is given an Infosery identification number to be used
for status inquiries. The Infosery Support Center then monitors the
progress of the service request and informs the requestor of the status
when appropriate. The product or system specialist solves the problem
based on the available information or obtains more detailed information
directly from the user when required. Additional technical resources will
be used to solve the problem if necessary. The Infosery Support Center
will close the service request in the tracking system only after the user
acknowledges that the problem has been solved.
This procedure is used for all service requests, All requests are tracked
and monitored with the Infosery system including warranty and requests for
additional support. This provides positive control of all changes to in-
stalled software products and enhances timely accomplishment of all ser-
vice requests.
INFOSERV NORMAL HOURS AND RESPONSE
Infosery lines are normally manned by members of Infocomp's technical
staff between the hours of 8 :00 AM and 5:00 PM Mountain .time, Monday
through Friday, except holidays.
If calls received during these hours cannot be taken directly by a member
of _ _ technical staff, your call will be returned by a technical
staff member within two (2) hours.
Calls after 5:00 PM Mountain time, Monday through Friday, and calls made
on Saturdays, Sundays, and holidays will initially be answered by
Infoserv's voice communications computer. A member of . - s techni-
cal staff will return your call no later than 10:00 AM Mountain time on
the first normal work period following the call.
INFOSERV OFF -HOURS EMERGENCY SUPPORT (OPTION).
Users desiring to have emergency Infosery support available on a 24 hour,
seven day a week, basis may arrange for this service by requesting the
Infosery off -hours emergency support option.
0 0
Users requesting this option will be issued an access code which will en-
able them to contact a member of the technical staff after 5:00 PM
Mountain time, Monday through Friday, and Saturdays, Sundays and holidays.
Use of this code will obligate user to pay off -hours emergency billing at
$100 per hour with a $300 minimum. This rate applies irrespective of
whether the off -hours support requested is Infosery support, warranty sup-
port, or additional support.
After the minimum is satisfied, the off -hours emergency billing rate ap-
plies only to requested off -hours component of the work.
INFOSERV COST
Infosery costs are based on a percentage of the cost of the installed
software product. The percentage is determined by configuration status of
the application, i.e. whether the product has been customized for
specific site application or not. The specific schedule of percentages is
given below:
8 per month
Base (Standard) Product .7%
Modified Component 1.28
During the initial twelve months after Infosery initiation, this fee pays
for solution of all problems which are not warranty, modification, or en-
hancement. As use of the system matures, these requests for service
should decrease as long as trained city personnel operate the system.
After this twelve -month period, the Infosery fee extends the warranty and
covers the routine questions of systems operations that will occur as
users require refreshing on less frequently used options or new personnel
need assistance as they become familiar with the application and system
software.
METHOD OF PAYMENT
Infosery may be paid quarterly, semiannually (58 discount), or annually
(108 discount) in advance.
Infosery off -hours emergency support (if applicable) will be billed at
each occurance. Terms are net 30 days.
ALTERNATIVES TO INFOSERV
After the 30 day post - installation period is over, a non - warranty support
inquiry will be separately .identified by our service administrator.
Non - Infosery subscribers will pay for all time expended by personnel
1.
responding to such calls at standard support rates. After receipt of the
inquiry and determination that it is chargeable, the service administrator
will notify the caller of the estimated cost of solving the problem. A
minimum charge of 2 hours is incurred for each approved task. The service
administrator will notify the requester when actual time expended exceeds
the approved amount.
All requests for service from both Infosery subscribers and non-
subscribers will be managed through our service administration system
(i.e. must be called in to the designated 800 number).
HEWLETT- PACKARD "V" SITE SUPPORT (Option)
In addition to Infocomp product support, °u;`- 1 %4— offers its users
"V" site support of HP installed software products. If this option is
selected, Infosery is responsible for solving all HP system and utility
software problems. If a service request is determined to be an HP system
software problem, Infosery will contact HP Phone -In Consulting Service
(PICS), communicate the problem, and determine a solution. This solution
is then communicated by Infosery to the user. For more difficult
problems, Infosery and HP PICS will work jointly to resolve the problem.
Specific services provided under HP V -Site are:
Product usage and problem solving assistance - for prompt answers to
your questions and help with apparent problems through,
-- Access to HP's Response Center - for help from specialists.
-- HP Tele- Support - for remote diagnosis and assistance, including
downloading of software patches.
- Software problem verification - two -day communication with HP
regarding software or documentation discrepancies.
-- Software /Firmware Releases - as improvements are developed for HP
software, they will be incorporated into planned software /firmware
updates.
HEWLETT- PACKARD "V" SITE COST
The primary objective of the "V" site option is to give the Infacomp user
a single source for resolution of all data processing and data management
problems. The cost of "V" site support is the same as the cost of HP
direct ASC level service.
INFOSERV AGREEMENT APPENDIX B
CITY OF NEWPORT BEACH
ITEMS COVERED BY INFOSERV AGREEMENT DATED
APPLICATION
IMMIS Geobase
IMMIS Building
Permits
DBMGR Data Base
Utility
Deltamap
Interface
Tape Interface to
County Assessor
TOTAL
ORIGINAL
BASE COST MOD COST
$17,250
9,000
1,800
4,400
3,000
$35,450
0
INFOSERV
MONTHLY
COST ANNUAL
$121
$1,542
63
756
N/A
300
31
372
21
252
$236
$3,222
(HOLGUIN
SOFTWARE LICENSE AND CONFIDENTIALITY AGREEMENT
Holguin Corporation grants to Licensee named below a paid -up license
to use the software listed below on one CPU, subject to all of the terms
and conditions set out in the face and reverse side hereof.
r
Licensee:City of Newport
B Address 3300 Newport Blvd. S
I H
L P.O. Box - - -- 1
L City, State, Zip. Newport, CA 92663 P
T _ T
O Phone (714) 644 -3092 O
Contact Ted Kr I=
Company Name
Exhibit C
5822 Cromo Drive
El Paso, Texas 79912
(915) 581 -1171
DATE duly 131 1987
Holguin Order No.
Client Order No.
These prices effective 30 days from date shown above.
Item. Number
Software Description
Qty.
Unit Price
Amount
1
Page 1 of 2
ADC800 2 -D Drafting
1
2
ADC860 3 -D Modeling
1
3
1 ADC880 Attribase Spreadsheet
1
14,900
4
ADC801 Extended Memory
1
500
5
ADC893 Easy Data
1
500
6
ADC891 Initial Graphics Exchange Specs (IGES)
1
2,500
7
DC800 Symbols Library
1
N/C
8
DMS Disc Management System
1
N/C
9
IFCS.Field Control System
11
1,000
Purchase is subject to all applicable state & local sales and use taxes. SUBTOTAL Continued
If financing is through a third party lease, this section is to be filled out before ,
acceptance and third party lease attached. Appropriate Deposit Required
Leasing Co. P.O. No.
NET AMOUNT DUE
Address Date
Signature of Authorized Representative of Licensee Date NA 0 prase. al
Print or Type Name of Authorized Representative
Title
Holguin Representative
TIA/UEb
Corporate Office Acceptance Date
WHITE - CORPORATE OFFICE ! YELLOW - ACCEPTANCE (RETURN TO LICENSEE( / BLUE LICENSEE I GREEN - SALES
(HOLGUIN)
SOFTWARE LICENSE AND CONFIDENTIALITY AGREEMENT
Holguin Corporation grants to Licensee named below a paid -up license
to use the software listed below on one CPU, subject to all of the terms
and conditions set out in the face and reverse side hereof.
B
L
L
Licensee:
City of Newport
Address 3300 Newport Blvd.
City, State, Zip
T (714)
O Phone
Newport, CA 92663
644 -3092
Contact Ted Kramp
S
H
P
;0]
Company Name
5822 Cromo Drive'
El Paso, Texas 79912
(915) 581 -1171
DATE JuTy 13, 1987
Holguin Order No.
Client Order No.
These prices effective 30 days from date shown above.
Item Number
Software Description
Qty.
Unit Price
Amount
10
GDS Geometric Design System
1
1,800
11
MDS Master Design System
1
1,000
12
ADS Automated Drafting System
1
2,000
13
DCS -G Digitize System for GDS
1
2,000
14
ADC293H Easy Data
1
500
Less Bundled System Discount
(3,070)
Purchase is subject to all applicable state & local sales and use taxes. SUBTOTAL $23,630
If financing is through a third party lease, this section is to be filled out before
acceptance and third party lease attached. Appropriate Deposit Required
Leasing Co. P.O. No. NET AMOUNT DUE
Address Date
Signature of Authorized Representative of Licensee Date
Print or Type Name of Authorized Representative
Title
Sales epresentetfva
Hol Re e t e
G __
Corporate Office Acceptance Data
WHITE - CORPORATE OFFICE / YELLOW - ACCEPTANCE (RETURN TO LICENSEEI / BLUE LICENSEE / GREEN - SALES
(HOLGU[N
HARDWARE SALES ORDER
This order is subject to all of the items and conditions
set out on the face and reverse side hereof.
Licensee:
Address
City of Newport
3300 Newport Blvd. S
B
I
H
L P.O. Box
I
L City, State, Zip Newport, CA 92663 P
T
T
O Phone
(714) 644 -3092 O
$32,900
Contact
Ted Kramp
Company Name
Exhibit D
5822 Cromo Drive.
El Paso, Texas 79912
(915) 581 -1171
DATE July 13, 1987
Holguin Order No.
Client Order No.
These prices effective 30 days from date shown above.
Item Number
Hardware Description
Qty.
Unit Price
Amount
1
Page 1 of, 4
98583C Model 350C, High Performance 19" Color Wksta.
1
$32,900
2
7957A 81 Mb Winchester Disc
1
5,200
3
91225 3 l /2" Floppy Disc Drive
1
1,090
4
46687A "A" Size Tablet
1
795
5
OPT001 4- Button Cursor
1
260
6
2392A Alpha /Numeric Terminal
1
1,375
7
OPT301 Cable
1
85
8
98642A RS232 Multiplexor
1
600
9
92211L Cabinet Rack
1
239
THIS ORDER IS SUBJECT TO A CHARGE IF CANCELLED OR RESCHEDULED BY SUBTOTAL
LICENSEE. INFORMATION REGARDING SPECIFIC CHARGES AVAILABLE UPON
REQUEST.
Pnmhaee Ic enhiam to ml tnto —A i—i —iee Aoordoriate Deposit Recuired
Continued
NOTE: if multiple hardware manufacturers, are involved in a lease order, separate
Purchase Orders are required or partial payments must be authorized. -
This Sales Order is: (a) Not effective unless and until accepted by Holguin Corporation.at its corporate office in El Paso, Texas and (b) Subject to
Holguin Corporation Terms and Conditions of Agreement - Hardware -
C Freight Included ❑ Freight Will Be Invoiced Does not include interface
Check applicable terms: C Customer installed C Manufacturer Installed cables or control board
Signature of Authorized Representative of Licensee Date
Print or Type Name of Authorized Representative
This
Saks Repre Kent
sales eluesentative
Holguin Representative
WW77VL;D
Corporate Office Acceptance - Date
WHITE - CORPORATE OFFICE / YELLOW - ACCEPTANCE (RETURN TO LICENSEEI / BLUE LICENSEE / GREEN - SALES
H N
HARDWARE SALES ORDER
This order is subject to all of the items and conditions
set out on the face and reverse side hereof.
Company Name
1
5822 Cromo Drive
El Paso, Texas 79912
(915) 581 -1171
DATE July 13, 1987
Holguin Order No.
City of Newport
Licensee:
Item Number
Address
3300 Newport Blvd.
B
S
10
H
L P.O. Box
I
L City, State, Zip Newport, CA 92663 P
11
2227B Quietjet Printer
O Phone
(714) 644 -3092 p
699
12
Contact
Ted Kramp
Company Name
1
5822 Cromo Drive
El Paso, Texas 79912
(915) 581 -1171
DATE July 13, 1987
Holguin Order No.
Client Order No.
These prices effective 30 days from date shown above.
Item Number
Hardware Description
Page 2 4
Oty.
Unit Price
Amount
10
of
922138 CAD Table
1
$ 799
11
2227B Quietjet Printer
1
699
12
7475A "A -B" Size, 6 Pen Plotter with
1
1,895
OPT002 - HPIB I/F
13
98568A Bus Expander
1
1,900
14
OPT132 Required with 350
1
410
15
10633A 1m Cable
1
�80
16
10833C 4m Cable
1
100
17
13232U Modem Bypass Cable
2
100
200
THIS ORDER IS SUBJECT TO A CHARGE IF CANCELLED OR RESCHEDULED BY SUBTOTAL
LICENSEE. INFORMATION REGARDING SPECIFIC CHARGES AVAILABLE UPON
REQUEST.
-_ ---- __..._ Aoorooriate Deoosit Recuired
Continued
NOTE: if multiple hardware manufacturers are involved in a lease order, separate
Purchase Orders are required,or partial payments must be authorized.
This Sales Order is: (al Not effective unless and until accepted by Holguin Corporation at its corporate office in El Paso, Texas and (b) Subject to
Holguin Corporation Terms and Conditions of Agreement - Hardware
❑ Freight Included Freight Will Be Invoiced Does not include interface
Check applicable terms: ❑ Customer installed O Manufacturer Installed cables or control board
Gladys Kent
Signature of Authorized Representative of Licensee Date Sales Representative
Print or Type Name of Authorized Representative Holguin Representative
Title Corporate Office Acceptance Data
WHITE - CORPORATE OFFICE / YELLOW - ACCEPTANCE (RETURN TO LICENSEEI / BLUE LICENSEE / GREEN - SALES .
�HDLGUIN
HARDWARE SALES ORDER
This order is subject to all of the items and conditions
set out on the face and reverse side hereof.
Licensee:City of Newport
B Address 3300 Newport Blvd.
L P.O. Box
L City, State, Zip Newport, CA 92663
T
O Phone (714) 644 -3092
Contact Ted Kramp
S
H
T
O'
Company Name
5822 Cromo Drive
El Paso, Texas 79912
(915) 581 -1171
DATE duly 13, 1987
Holguin Order No.
Client Order No..
These prices effective 30 days from date shown above.
Item Number
Hardware Description
Qty.
Unit Price
Amount
18
Page 3 of 4
98613C Basic 5.0 Language
1
860
19
91600 Calcomp 9100 Digitizer 44" x 60"
2
4,862
9,724
20
91001 RS232 Dual Port +
2
497
994
21
91053 120V /60HZ 2 AMP Power Supply
2
252
504
22
91041 RS232 Cable
2
95
190
23
91036 16 Button Cursor
2
392
784
24
91021 High Accuracy
2
275
550
25
91070 Power Lift Base
2
250
500
26
Calcomp Installation Charge 12
1,262
2,524
THIS ORDER IS SUBJECT TO A CHARGE IF CANCELLED OR RESCHEDULED BY SUBTOTAL
LICENSEE. INFORMATION REGARDING SPECIFIC CHARGES AVAILABLE UPON
REQUEST.
Purchase is subiect to all applir.RhlR .ateto Rnd local Appropriate Deposit Required
Continued
NOTE: if multiple hardware manufacturers are involved in a lease order, separate
Purchase Orders are required or partial payments must be authorized.
This Sales Order is: (a) Not effective unless and until accepted by Holguin Corporation at its corporate office in El Paso, Texas and (b) Subject to
Holguin Corporation Terms and Conditions of Agreement - Hardware
❑ Freight Included Q Freight Will Be Invoiced Does not include interface
Check applicable terms: ❑ Customer installed ❑ Manufacturer Installed cables or control board
Signature of Authorized Representative of Licensee Date
Print or Type Name of Authorized Representative
Title
Sw3i"erKM
Holguin Representative
d0W A&U b
Corporate Office Acceptance Dale
WHITE - CORPORATE OFFICE I YELLOW - ACCEPTANCE (RETURN TO LICENSEE) I BLUE LICENSEE I GREEN - SALES
(HOLGUIN]
HARDWARE SALES ORDER
This order is subject to all of the items and conditions
set out on the face and reverse side hereof.
Licensee:
Address
Ci ty of Newport
3300 Newport Blvd.
These prices effective 30 deYB from date shown above.
B
I
Hardware Description
S
H
L P.O. Box
Amount
I
L City, State, zip Newport, CA 92663
P
T
$65,257
T
O Phone
(714) 644 -3092
O
Less Bundled System Discount
Contact
Ted Kramp
(7,505)
Company Name
5822 Cromo Drive
El Paso, Texas 79912
(915) 581 -1171
DATE July 13,1987
Holguin Order No.
Client Order No.
These prices effective 30 deYB from date shown above.
Item Number
Hardware Description
City.
Unit Price
Amount
Total Hardware
$65,257
Less Bundled System Discount
(7,505)
THIS ORDER IS SUBJECT TO A CHARGE IF CANCELLED OR RESCHEDULED BY SUBTOTAL
LICENSEE. INFORMATION REGARDING SPECIFIC CHARGES AVAILABLE UPON
REQUEST.
Aoorooriate Deoosit Reduired
$57,752
ruicumx 1s suulecl m an appnuaoie state and local sales and use taxes.
NOTE: if multiple hardware manufacturers are involved in a lease order, separate
Purchase Orders are required or partial payments must be authorized.
This Sales Order is: fal Not effective unless and until accepted by Holguin Corporation at its corporate office in El Paso, Texas and (b) Subject to
Holguin Corporation Terms and Conditions of Agreement - Hardware
O Freight Included ❑ Freight Will Be Invoiced ❑ Does not include interface
Check applicable terms: ❑ Customer installed ❑ Manufacturer Installed cables or control board
Signature of Authorized Representative of Licensee Date
Prim or Type Name of Authorized Representative
Title
_f`l arlvc Van+
Sales Repr !I.atWe
Hol R e tats
// ?7
Corporate Office Acceptance Date
WHITE - CORPORATE OFFICE I YELLOW - ACCEPTANCE (RETURN TO LICENSEE) I BLUE LICENSEE I GREEN - SALES
Exhibit E
HOLGUIN
SOFTWARE
PROGRAM SUPPORT AGREEMENT
U.S.
AGREEMENT BETWEEN The City of Newport )CUSTOMER)
AND HOLGUIN CORPORATION
EFFECTIVE DATE SOFTWARE ADC 800, 860, 880, Easy Data
CPU # SERIAL #
7. GENERAL 6. PRIMARY CONTACT
This document represents the Mutual Agreement between Holguin
Corporation (HOLGUINJ and the Customer regarding support of the
computer software program(s) set forth in Exhibit A hereto (the
"Software "). The support services to be provided by Holguin to
Customer for the Software are specified in Exhibit A hereto.
2. TERM
(aJ This Agreement shall commence on the Effective Date, which
shall be the 915t day after shipment of the Software, and shall
continue in effect for a minimum period of 12 months. Thereafter,
this Agreement may be terminated in accordance with this sec-
tion. Support Services, as defined in Exhibit A, shall be provided
at no charge to Customer prior to the Effective Date.
(b) Customer may terminate this Agreement at any time subsequent
to the 12 month minimum period upon thirty days written notice
to HOLGUIN, and HOLGUIN may terminate upon sixty days
written notice to Customer. Termination shall not relieve Cus-
tomer of its obligation to pay all Support Service charges incurred
through the date specified in the notice of termination (the "Ter-
mination Date"J.
3. CONDITIONS OF SUPPORT
HOLGUIN shall be under no obligation to furnish Support
Services to Customer under any one or more of the following cir-
cumstances:.
(a[ improper use of the Software;
(b) failure to pay support charges to HOLGUIN as due and
payable;
(c) failure to acquire and maintain computer hardware, subsystems,
and operating system compatible with the Software;
(d) modification in any manner of the Software by other than
HOLGUIN personnel; and/or
[e[ after the effective Termination Date of this Agreement.
If Support Services are required under any of the foregoing dr-
cumstances, Such Services shall be provided at HOLGUIN's sole dis-
cretion and option, and at HOLGUIN's standard rates for labor,
travel, and material in effect at the time of service.
4. MEDIA AND SHIPPING
Support Services include media in the form of diskettes, magnetic
tape or cassettes required to transmit software corrections and up-
dates, and normal shipping fees. Media other than diskettes, magnetic
tape or cassettes will be invoiced to the Customer at HOLGUIN's
cost. If overnight shipping is requested, the shipment will be Sent
collect.
S. CHANGES TO SUPPORT SERVICES
Support Services provided are subject to change or modification by
HOLGUIN upon sixty days written notice to Customer.
Customer shall designate a primary and a secondary contact for the
purpose of Telephone Support Services, as defined in Exhibit A.
Changes should be submitted to HOLGUIN as necessary. List names
below (please type or print):
PRIMARY CONTACT_
SECONDARY CONTACT
7. CHARGES AND INVOICES
(a[ Customer Selects the following method of invoicing of charges
for Support Services [initial as appropriate[.
Quart,_
x Semi - Annually
Annually
[b) Charges for Support Services will be invoiced not more than sixty
days in advance. Support Service charges are due and payable
upon receipt of invoice. HOLGUIN reserves the right to withhold,
without liability, any Support Services if Customer is thirty days
delinquent in the payment for any Support Service charges due
under this Agreement, and to change the credit terms herein
when, in HOLGUIN's sole discretion and opinion, the financial
condition or previous payment record of the Customer so war-
rants.
(c) HOLGUIN reserves the right to change Support Service
charges after the Agreement has been in effect for the initial
twelve month period. Customer will be notified in writing sixty
days prior to the.effective date of the change in the Support
service charge.
(d) If Customer fails to pay any amouniS due under this
Agreement, Customer agrees to pay all costs and expenses of
collection including reasonable attorney's fees permitted by law.
(e[ All charges stated herein are exclusive of, and subject
to the addition of, any tax or charge now existing or hereafter
imposed by arty federal, state, or local authority.
iPl_ 7; IGURATION CHANGE
�- Cu,' acknowledges that it may be necessary for Customer to
hase,Vtirely M Customer's expense, computer hardware and/or
re ird` addition to the initially approved configuration because
f;: ges � the manufacturer in computer hardware, wbsystems
Y ory ratin ystems, or in order to implement Software updates.
�„ N.
ACCEPTED THIS:
/- day of 1917—
HOLGUIN CORPORATION
Cusco
Authorized Signature
&2A0_ -xZ0 L /_ EI?
Typed or Printed Name/Title
5822 Cromo Drive
El Paso, Texas 79912
L �
PLEASE INCLUDE BILLING ADDRESS IF DIFFERENT FROM ABOVE.
ATTEST.
0
City Clerk
9. FORCE MAJEURE
14. ACCEPTANCE
HOLGUIN shall not be liable for failure to perform any obligation
This Agreement shall become effective only upon acceptance by
under this Agreement when such failure arises from causes beyond
HOLGUIN at its office in El Paso, Texas.
HOLGUIN's exclusive control, including (but not limited to) such
15. NOTICES
causes as war, civil commotion, force majeure, acts of a public enemy,
Any notices required to be given hereunder shall be given in writing
sabotage, vandalism, accident, statute, ordinances, embargoes, gov-
at the address of each party set forth below or to such other address
emmental regulations, priorities or allocations, interruption or delay
as either party may substitute by written notice to the other.
in transportation, inadequacy, shortage or failure of supply materials,
equipment, fuel or electrical power, delay in shipments by the
16. SEVERABILTTY.
hardware manufacturer, labor controversies (whether at HOLGUIN's
Should any provision of this Agreement be held invalid or unenforce-
oace or elsewhere), shut -downs for repairs, natural phenomena,
able by any court of competentjurisdiction, the remaining provisions
whether such cause exists on the effective day hereof, or arises
shall remain in full force and effect.
thereafter, or from compliance with any order or request of the
17. WAIVER
United States Government, or any state or local government, or any
HOLGUIN's failure to exercise any of its rights hereunder shall not
officer, department agency, instrumentality or committee thereof.
constitute or be deemed a waiver or forfeiture of such rights. Al of
10. WARRANTY DISCLAIMER.
HOLGUIN's rights hereunder shall be cumulative, and may be exer-
HOLGUIN makes no warranty whatsoever, expressed or implied,
cised in any order and in any combination in HOLGUIN's sole discre-
regarding the Support Services provided under this Agreement.
tion.
11. LIMITATION OF LIABILITY
18. CANCELLATION
In no event shall HOLGUIN be liable for any indirect special, or
In the event of any proceedings, voluntary or involuntary, in ban.
consequential damages (induding loss of profits) whether based on
kruptcy or insolvency by or against the Customer, or in the event
contract tort, or any other legal theory. HOLGUIN shall not be liable
of the appointment, with or without the Customer's consent of any
for any amount whatsoever, including direct damages, in excess of
assignee for the benefit of creditors, or of a receiver, HOLGUIN may
an amount equal to the charge provided for herein for twelve months
elect to cancel any unfilled part of this Agreement.
of basic Support Services.
19. TITLES AND HEADINGS
12. ASSIGNMENT AND SUBCONTRACTORS
The paragraph headings contained in this Agreement are for con-
This Agreement shall not be assignable in whole or in part by Cus-
venience only and shall not be considered in interpreting this Agree -
tomer, except with prior written consent of HOLGUIN in connection
ment
with an authorized transfer of the related Software. This Agreement
20 ATTORNEYS FEES
may not be assigned by HOLGUIN, but HOLGUIN's duties may be
In the event that HOLGUIN retains an attorney to enforce this
subcontracted to other persons or firms. This Agreement shall extend
agreement Customer agrees to pay, in addition to any sums
to the benefit of and be binding upon the successors and assigns of
otherwise due hereunder, HOLGUIN's expenses, court costs and
the parties hereto.
attorney's fees incurred in connection with enforcing this Agreement.
13. GOVERNING LAW
21. ENTIRE AGREEMENT
This Agreement shall in all respects be governed by the laws of the
This Agreement contains the entire Agreement of the parties and
State of Texas.. The parties hereby agree that any dispute relating to
supersedes all prior agreements expressed or implied (written or oral)
the services provided for herein shall be subject to the jurisdiction
with respect to the subject matter hereof,
of the courts of the State of Texas.
22. EXHIBITS
Exhibit A attached hereto is incorporated herein for all purposes.
ACCEPTED THIS:
/- day of 1917—
HOLGUIN CORPORATION
Cusco
Authorized Signature
&2A0_ -xZ0 L /_ EI?
Typed or Printed Name/Title
5822 Cromo Drive
El Paso, Texas 79912
L �
PLEASE INCLUDE BILLING ADDRESS IF DIFFERENT FROM ABOVE.
ATTEST.
0
City Clerk
• HOLGUIN •
SOFTWARE
PROGRAM SUPPORT AGREEMENT
U.S.
AGREEMENT BETWEEN The City of Newport - CUSTOMER)
AND HOLGUIN CORPORATION
EFFECTIVE DATE
CPU #.
1. GENERAL
This document represents the Mutual Agreement between Holguin
Corporation (HOLGUIN) and the Customer regarding support of the
computer software program(s) set forth in Exhibit A hereto (the
"Software'). The support services to be provided by Holguin to
Customer for the Software are specified in Exhibit A hereto.
Z. TERM
(a) This Agreement shall commence on the Effective Date, which
shall be the 91st day after shipment of the Software, and shall
continue in effect for a minimum period of 12 months. Thereafter,
this Agreement may be terminated in accordance with this sec-
tion. Support Services, as defined in Exhibit A, shall be provided
at no charge to Customer prior to the Effective Date.
Ibl Customer may terminate this Agreement at any time subsequent
to the 12 month minimum period upon thirty days written notice
to HOLGUIN, and HOLGUIN may terminate upon sixty days
written notice to Customer. Termination shall not relieve Cus-
tomer of its obligation to pay all Support Service charges incurred
through the date specified in the notice of termination (the "Ter-
mination Date"I.
3. CONDITIONS OF SUPPORT
HOLGUIN shall be under no obligation to furnish Support
Services to Customer under any one or more of the following cir-
cumstances:.
(al improper use of the Software;
Ibl failure to pay support charges to HOLGUIN as due and
payable;
JcJ failure to acquire and maintain computer hardware, subsystems,
and operating system compatible with the Software;
Id) modification in any manner of the Software by other than
HOLGUIN personnel; and /or
(eJ after the effective Termination Date of this Agreement.
If Support Services are required under any of the foregoing cir-
cumstances, such services shall be provided at HOLGUIN's sole dis-
cretion and option, and at HOLGUIN's standard rates for labor,
travel, and material In effect at the time of service.
4. MEDIA AND SHIPPING
Support Services include media in the form of diskettes, magnetic
tape or cassettes required to transmit software corrections and up-
dates, and normal shipping fees. Media other than diskettes, magnetic
tape or cassettes will be invoiced to the Customer at HOLGUIN's
cost. If overnight shipping is requested, the Shipment will be sent
collect
S. CHANGES TO SUPPORT SERVICES
Support Services provided are subject to change or modification by
HOLGUIN upon sixty days written notice to Customer.
SOFTWARE ADC 250, Easy Data
SERIAL #
b. PRIMARY CONTACT
Customer shall designate a primary and a secondary contact for the
purpose of Telephone Support Services, as defined in Exhibit A.
Changes should be submitted to HOLGUIN as necessary. List names
below (please type or print): -•
PRIMARY CONTACT
SECONDARY
7. CHARGES AND INVOICES
fa) Customer selects the following method of invoicing of charges
for Support Services (initial as appropriate(.
Ouarterly
Semi - Annually
(b) Charges for Support Services will be invoiced not more than sixty
days in advance. Support Service charges are due and payable
upon receipt of invoice. HOLGUIN reserves the right to withhold,
without liability, any Support Services if Customer is thirty days
delinquent in the payment for any Support Service charges due
under this Agreement, and to change the credit terms herein
when, in HOLGUIN's sole discretion and opinion, the financial
Condition or previous payment record of the Customer so war-
rants.
(C) HOLGUIN reserves the right to change Support Service
charges after the Agreement has been in effect for the initial
twelve month period. Customer will be noted in writing sixty
days prior to the effective dare of the charge in the support
service charge.
(dl If Customer fails to pay any amounts due under this
Agreement, Customer agrees to pay all costs and expenses of
Collection including reasonable attorney's fees permitted by law.
(e) All charges stated herein are exclusive of, and Subject
to the addition of, any tax or charge now existing or hereafter
imposed by any federal, state, or local authority.
CbURATION CHANGE
, utome'r acknowledges that it may be necessary for Customer to
T pjachase , -rely at Customer's expense, computer hardware andlor
e ared addition to the initially approved configuration because
m angeEby the manufacturer in computer hardware, subsystems
opera systems, or In order to Implement Software updates.
a� t•.:ii =111S r_Ill =tRTa
10.
11.
12.
13.
HOLGUIN shall not be liable for failure to perform any obligation
under this Agreement when such failure arises from causes beyond
HOLGUIN's exclusive control, including (but not limited to) such
causes as war, civil commotion, force majeure, acts of a public enemy,
sabotage, vandalism, accident statute, ordinances, embargoes, gov-
emmenttal regulations, priorities or allocations, interruption or delay
in transportation, inadequacy, shortage or failure of supply materials,
equipment, fuel or electrical power, delay in shipments by the
hardware manufacturer, labor controversies (whether M HOLGUIN's
office a elsewhere), shut -downs for repairs, natural phenomena,
whether such cause exists on the effective day hereof, or arises
thereafter, or from compliance with any order or request of the
United States Government or any state or local government or any
officer, department agency, instrumentality or committee thereof.
WARRANTY DISCLAIMER.
HOLGUIN makes no warranty whatsoever, expressed or implied,
regarding the Support Services provided under this Agreement
LIMITATION OF LIABILF Y
In no event shall HOLGUIN be liable for any indirect, special, or
consequential damages )including loss of profits) whether based on
contract, tort or any other legal theory. HOLGUIN shall not be liable
for any amount whatsoever, including direct damages, in excess of
an amount equal to the charge provided for herein for twelve months
of basic Support Services.
ASSIGNMENT AND SUBCONTRACTORS
This Agreement shall not be assignable in whole or in part by Cus-
tomer, except with prior written consent of HOLGUIN in connection
with an authorized transfer of the related Software. This Agreement
may not be assigned by HOLGUIN, but HOLGUIN's duties may be
subcontracted to other persons or firms. This Agreement shall extend
to the benefit of and be binding upon the successors and assigns of
the parties hereto.
GOVERNING LAW
This Agreement shall in all respects be governed by the laws of the
State of Texas. The parties hereby agree that any dispute relating to
the services provided for herein shall be subject to the jurisdiction
of the courts of the Stare of Texas.
ACCEPT D G:
Hday of
HOLGUIN CORPORATION a
Custom
rized I nature
coAvrF,o1,1_CR
Typed or Printed NameRtle
5822 Cromo Drive
El Paso, Texas 79912
14. ACCEPTANCE
This Agreement shall become effective only upon acceptance by
HOLGUIN at its office in El Paso, Texas,
15. NOTICES
Any notices required to be given hereunder shall be given in writing
at the address of each parry set forth below or to such other address
as either parry may substitute by written notice to the other.
16. SEVERAMLMY.
Should any provision of this Agreement be held invalid or unenforce-
able by arty court of competentjurisdiction, the remaining provisions
shall remain in full force and effect.
17. WAIVER
HOLGUIN's failure to exercise any of its rights hereunder shall not
constitute or be deemed a waiver or forfeiture of such rights. All of
HOLGUIN's rights hereunder shall be cumulative, and may be exer-
cised in any order and in any combination in HOLGUIN's sole discre-
tion.
18. CANCELLATION
In the event of any proceedings, voluntary or involuntary, in ban-
kruptcy or insolvency by.or against the Customer, or in the event
of the appointment with or without the Customer's consent of any
assignee for the benefit of creditors, or of a receiver, HOLGUIN may
elect to cancel any unfilled part of this Agreement.
19. TITLES AND HEADINGS
The paragraph headings contained in this Agreement are for con -
venience only and shall not be considered in interpreting this Agree-
ment
20 ATTORNEYS FEES
In the event that HOLGUIN retains an attorney to enforce this
agreement, Customer agrees to pay, in addition to any sums
otherwise due hereunder, HOLGUIN's expenses, court costs and
attorney's fees incurred in connection with enforcing thisAgreement.
21. ENTIRE AGREEMENT
This Agreement contains the entire Agreement of the parties and
supersedes all prior agreements expressed or implied (written or oral)
with respect to the subject matter hereof.
22. EXHIBITS
Exhibit A attached hereto is incorporated herein for all purposes.
i/ .. ` 2 =
�eie71T,��.Tn:S•sar Rr
Newport. CA 92663
PLEASE IN UDE BILLING ADDRESS IF DIFFERENT FROM ABOVE.
ATTE T
0
City Clerk
(HOLGUIN)
Exhibit F
_These prices effective 30 days from date shown above. -
5822 Cromo Drive
-
El Paso, Texas 79912
SOFTWARE LICENSE AND CONFIDENTIALITY AGREEMENT
(91 5) 581-1171
Holguin Corporation grants to Licensee named below a paid -up license
TRAINING:
to use the software listed below on one CPU, subject to all of the terms
and conditions set out in the face and reverse side hereof.
Licensee:City of Newport
Address 3300 Newport Blvd.
L P.O. Box — - -- - --
L City, State, Zip Newport, CA 92663 P
T T
O Phone 714 ,644 -3092 O
Contact Ted KramD
Company
DATE July 13, 1987
Holguin Order No.
Client Order No.
_These prices effective 30 days from date shown above. -
Item Number
Software Description
Qty.
Unit Price
Amount
TRAINING:
ADC 800, 860, 880 - 4 1/2 Days
3
$ 2,700
ADC 250 - Civil - 4 Days
3
1,600
Purchase is subject to all applicable state & local sales and use taxes. SUBTOTAL $ 4,300
If financing is through a third party lease, this section is to be filled out before
acceptance and third party lease attached. Appropriate Deposit Required
Leasing Co. P.O. No. NET AMOUNT DUE
Address Date
Signature of Authorized Representative of Licensee Date
Print or Type Name of Authorized Representative
Title
Sees resen abve
H n pre
orporate office Acceptance Date
WHITE - CORPORATE OFFICE / YELLOW - ACCEPTANCE (RETURN TO LICENSEE) / BLUE LICENSEE / GREEN - SALES
H
SOFTWARE LICENSE AND CONFIDENTIALITY AGREEMENT
Holguin Corporation grants to Licensee named below a paid -up license
to use the software listed below on one CPU, subject to all of the terms
and conditions set out in the face and reverse side hereof.
LicenseeCity of NeWpept
Client Order No.
Address 3300 Newport 0'T�� —-
Item Number
e
B
I
H
P.O. Box - - - -- —
_S4ftwdre Support i
L
L
P
City, State, Zip allewport, GA 912.663
T
T
O Phone _. ,� ..
O
�.
„ -r, 4-399
Contact Ted-Krmp--
Company
Exhibit G
5822 Cromo Drive
El Paso, Texas 79912
(916) 581 -1171
DATE juts 13, 1987
Holguin Order No.
Client Order No.
These prices effective 30 days from date shown above.
Item Number
Software Description
Qty.
Unit Price
Amount
_S4ftwdre Support i
ADC 250 and Eas Data $125/M0.
ADC 8__00,860x880 _EasyData $220/MO__
1
$ 4,140
Purchase is subject to all applicable state & local sales and use taxes. SUBTOTAL 4,140
If financing is through a third party lease, this section is to be filled out before
acceptance and third party lease attached. Appropriate Deposit Required
Leasing Co. P.O. No.
NET AMOUNT DUE
Address Date
Signature of Authorized Representative of Licensee Data
Print or Type Name of Authorized Representative
Title
Sales Representative
G1 s Ke
Hol se eti
IZA
rporate Office Acceptance Date
WHITE - CORPORATE OFFICE / YELLOW - ACCEPTANCE (RETURN TO LICENSEEI / BLUE LICENSEE 1 GREEN - SALES
t' • -�
,. Exhibit H
SYSTEM
QUOTATION SKANTEK
PAGE 1 OF 4 .
FOR QUOTATION NO.
CITY OF NEWPORT BEACH 87 -CE -2077
ADDRESS DATE SUBMITTED
3300 NEWPORT BLVD. 8/11/87
NEWPORT BEACH, CA 92663 EXPIRATION DATE 9/11/87
APPROVED BY
AL TURNAUER0j
MR. TED KRAMP
DELIVERY
30 -60 DAYS A.R.O.
ITEM
NO.
QTY,
DESCRIPTION
UNIT
EXTENSION
1.
1 ea
SK -2020C DRAWING SCANNING, CONVERSION
$155,000
AND COLOR EDITING SYSTEM
Provides the capability to convert engin-
eering drawings to a CAD or raster
electronic data base for the purpose of
restoration, revision, distribution,
storage, view, plot and management.
Includes:
- SK -1000 Automatic Large Document
Scanner
Provides high speed (42 ipm) capture of
engineering documents at user control -
lable resolutions of 200, 254, 300, 400
and 500 dots.per inch.
• SK -800 Automatic Uniform Threshold-
Automatically calculates a brightness
and contrast value over an operator
selected drawing area.
• SK -901 Parallel Interface Cables
• SK -909 Desk with rack for mounting
SK -1000, tape drive, and optional disk
drive.
- SK -5001C SKAN /EDIT Color Workstation/
Server - 19 inch color display with
1152 x 900 resolution,. keyboard, mouse,
4 MB Motorola 16.67 Mhz 68020 Sun -3',
floating point co- processor, 12 slot
card cage and Ethernet interface.
THIS QUOTATION SUBJECT TO SKANTEK CORPORATION STANDARD TERMS AND CONDITIONS (ATTACHED)
V'*
' SYSTEM
QUOTATION
11
0
SKANTEK
PAGE OF
FOR QUOTATION NO.
CITY OF NEWPORT BEACH 87 -CE -2077
ITE
QTY'
DESCRIPTION
UNIT
EXTENSION
• SK -8535 142 MB Disk Subsystem - 51
inch Winchester Disk (170 MB
unformatted capacity), SCSI Disk
Controller, installed in system
pedestal.
• SK -851S Magnetic Tape Subsystem - 9
track, # inch, 1600/3200 BPI streaming
magnetic tape drive and controller.
• SK -8205 Programmable Image Processor -
Provides for hardware vectorization
processing, thereby freeing the 5001C
Sun -3" workstation for interactive
editing functions.
• SK -4405 Basic Software System License
Includes SUN operating system, drawing
management system, remote plotting,
queuing of batch processes, queue
management, SK -1000 scanner control
and data acquisition.
• SK- 45OS.Image Processing Software
License Includes:
- Geometry Preprocessor which uses the
SK -820 Programmable Image Processor
to process a raster drawing and
produce a node /segment data
structure.
- Geometry Recognition which
identifies geometry and creates a
data base.
- Interactive screens for selecting
operations and parameters and
executing standard and optional
modules.
-.IGES Output Preprocessor formats the
database created by the SK -4505
Image Processing and SK -4805.
SKAN /CAD Conversion Editor in IGES
V2.0.
-- WIS-QUOTATION SUBJECTTOSKANTEKCORP ORATION STANDAR¢ TERNISANQCONDITTQNS'(ATTACHED)7 7i
. y.
SYSTEM
QUOTATION
SKANTEK
PAGE 3 OF 4
FOR QUOTATION NO.
CITY OF NEWPORT REACH R7 -CF -2077
ITEM
NO.
QTY.
DESCRIPTION
UNIT
EXTENSION
• SK -4705 SKAN /DRAFT Raster Editor License
Includes raster editor for restoration
and revision of drawings, font
generation module, symbol creation
module and symbol library module.
• SK -4805 SKAN CAD Conversion Editor
License
Includes capability to edit vectorized
files and to create CAD output files.
• SK -906 Modem - For remote diagnostic
capability. Requires customer -
supplied telephone line and RJ -11
jack.
• SK -950 SK -2020 System Manual
• SK -951 Set of SUN Manuals
2.
1 ea.
SK -451S LAYER SEPARATION SOFTWARE LICENSE
$ 5,00
$ 5,000
Automatically separates drawing into three
layers: drawing border, text and graphics.
3.
1 ea.
SK -8595 VERSATEC PLOTTER INTERFACE
$ 4,50
$ 4,500
When used with SK -4705 SKAN /DRAFT, provides
plotting of raster files on Versatec' 7000
Series and V -80 Plotters. When used with
SK -4805 SKAN /CAD, provides plotting of
vector files. Includes interface card and
driver software for SUN VME Bus systems.
Does not include plotter cable.
4.
1 ea.
SK -801 DYNAMIC THRESHOLD PROCESSOR
$ 5,0010
$ 5,000
AND NOISE FILTER
Provides SK -1000 with optimum contrast
adjustment over each 1/16 square inch
region of the document and reduces
background noise.
- .7-T HIS" QUOTATIONSUBJECTTOSKANTEKCORPORATIONSTAIVDARD =MS- AND'CQNDITIONS(ATTACHED}� .-
U
SYSTEM S KA N T E K
QUOTATION
PAGE 4 OF 4
FOR QUOTATION NO.
CITY OF NEWPORT BEACH 87 -CE -2077
ITEM
NO.
QTY.
DESCRIPTION
RICE
EXTENSION
5.
1 ea.
SK -861S ADDITIONAL 4 MBYTE RAM
$ 4,80C
$ 4,800
Improves throughput of CAD conversion process
during concurrent editing. Improves response
time of SKAN /CAD conversion editors on large
drawings. (For SK- 500114, SK- 5001C, and SK-5012M
only; limit one per workstation).
(Recommended for all servers on which
vectorization will be performed during editing
and on all workstations doing vector editing
on multiple workstation systems).
Hardware Total
169,300
Software Total
5,000
System Total
174,300
Less 5% Hardware Discount
( 8,465
Less 10% Software Discount
( 500
Net Purchase Price
$165,335
INSTALLATION AND TRAINING
Prices include installation and four
credits for training at Skantek's
Warren, NJ facility. See training
outline for,details.
SHIPPING
1779797�hipping Point (Warren, NJ)
i
i
'. ? THIS" QUOTATIONSUB. IECTTOSKANTEKCORPORATIONSTANDABQTERMSANaCONfJiTfONS (ATTA(5fEDI-
,�
. • Exhibit I
SKANTEK CORPORATION
TERMS AND CONDITIONS OF SALE
The following are the terms and conditions under which SKANTEK Corporation
(SKANTEK) sells and /or licenses its Products in the United States of America.
Orders and any changes to these Terms and Conditions will only be binding upon
SKANTEK after specific written acceptance by an authorized representative of
SKANTEK at its corporate headquarters.
1. WATIONS
Quotations are issued for the purpose of describing configurations and
prices of Equipment components and Software. Each quotation shall be based
upon these Terms and Conditions and shall be valid until the date indicated
on said quotation or, if no date is indicated, then ninety (90) days after
issuance.
2. TAXES
3.
Prices are exclusive of, and Buyer is responsible for, all sales, use and
like taxes.
SKANTEK will provide one (1) se
exclusive use in the operation,
Buyer may order additional manuals
4. SITE PREPARATION, INSTALLATION
t of standard manuals to Buyer for its
maintenance, and repair of the Product.
at the then- current price.
Buyer shall make available a safe and suitable place for installation in
accordance with SKANTEK'S installation and site preparation procedures.
Acceptance shall occur: (i) upon successful completion of the test proce-
dures and /or pprograms established by SKANTEK, for Products installed by
SKANTEK, or (ii) upon delivery, for Products not installed by SKANTEK,
unless SKANTEK is notified in writing within eight (8) days of receipt of
the Product by Buyer that the Product does not conform to SKANTEK'S Product
Specification. Notwithstanding the above, SKANTEK does not accept respon-
sibility to connect SKANTEK products to non-SKANTEK products. However,
should SKAhTEK, as a convenience to Buyer, connect such products, SKANTEK
3/10/86
SKANTEK - 1 - SKANTEK
does so only on the condition it has no liability for any damage which may
result.
S. DELIVERY, SEl1AtITY INPERE5T L DELAYS
A. Delivery will be F.O.B. SKANTEK - Warren, N.J. Buyer assumes all title
to and all risk of loss of, Products upon delivery of the Products by
SKANTEK to the carrier packed and ready for shipment to Buyer. Buyer
will be responsible for all subsequent charges. Unless otherwise
directed by Buyer SKANTEK will, however, prepay the freight and bill
Buyer for transportation charges, provided that such charges shall not
exceed the applicable rates published by the carrier for the Product
shipped. In the absence of instructions to the contrary, SKANTEK, on
behalf of Buyer, will select the mode of conveyance and carrier or
carriers, but shall not be deemed thereby to assume any liability in
connection with the shipment nor shall the carrier be construed to be
the agent of SKANTEK. If Buyer specifies the carrier in writing to
SKANTEK, or if Buyer requests actual carrier invoices, then shipment
will be made collect. Insurance will be provided by SKANTEK on the
Products while in transit, unless instructions to the contrary are
clearly given in writing to SKANTEK. Buyer will be charged for such
insurance at a rate of $0.20 per $100.00 of valuation. SKANTEK shall
cooperate with Buyer in the documentation and proof of loss of claims
promptly presented by Buyer to the appropriate carrier and /or insurer.
SKANTEK may withhold or suspend in whole or in part shipment or other
performance hereunder in the event Buyer fails to pay invoices for
Products shipped or to otherwise perform hereunder.
B. To secure payment for the Products purchased hereunder, Buyer hereby
grants to SKANTEK a security interest in, and lien on, the Products and
in any way and all proceeds thereof (including accounts receiveable).
Whenever and as often as requested by SKANTEK, Buyer shall execute,
file, and /or record any and all instruments, documents and financing
statements as may be reasonably requested by SKANTEK to perfect or
protect such security interests in all applicable jurisdictions.
C. SKANTEK shall not be liable for any damages or penalty for delay in
delivery or for failure to give notice of delay when such delay is due
to the elements, acts of God, delays in transportation, delay in deliv-
ery by SKANfEK'S vendors or any other cause beyond the reasonable
control of SKANTEK. In the event of any such delay, the date of deliv-
ery shall, at the option of SKANTEK, be extended for a period of time
equal to the period of such delay. SKANTEK shall make reasonable
efforts to make deliveries in a timely fashion.
SKANTEK - 2 - SKANTEK
! 0
6. PADOW
Buyer shall pay to SKANTEK the purchase price for, and all other amounts in
respect of, all Products shipped hereunder within thirty (30) days from
date of SKANTEK'S invoice, subject to Buyer maintaining credit arrangements
satisfactory to SKANTEK. Otherwise, payment must be made in cash on deliv-
ery. Service charges, not exceeding 1 -1 /2t per month, or the highest rate
allowed by applicable law, whichever is less, shall be due on past due
accounts.
7. WARRANTY
A. Hardware and Software SKANTEK warrants that: (i) it will convey to
Buyer good title to the Product free and clear of all liens other than
such as may secure payment of the purchase price therefor or which
arise out of other activities of Buyer, (ii) the Product will; at the
time of delivery, conform to and perform in accordance with the Product
Specification under normal use and service, and (iii) for a period of
ninety (90) days from the date of its installation (or if SKANIU is
not to install, from date of delivery) or for a period of one hundred
and twenty (120) days from the date of its shipment, whichever period
first expires, the hardware sold hereunder will be free from defects in
workmanship and materials, and the Software licensed hereunder will be
substantially free from errors. SKANTEK'S sole responsibility under
this warranty, (a) with respect to hardware, will be at its option
either to repair or replace, during SKANTEK'S normal working hours, any
element of a Product purchased hereunder which fails in the course of
normal intended use and service during the warranty period. The new
elements or parts may consist in whole or in part of used elements or
parts which are warranted equivalent to new when used in the Product.
All replaced elements or parts shall become the property of SKANTEK.
For products installed by SKANTEK, SKANTEK will perform the warranty at
Buyer's site within the United States, except Alaska and Hawaii. For
all other Products, SKANTEK will perform the warranty at a SKANTEK
repair facility in the United States designated by SKANTEK.
B. Limitations on Warranties The stated warranties are conditioned upon
proper. treatment, storage, installation, maintenance and use of the
products and maintenance of a safe and suitable site and environment.
SKANTEK will have no liability under the foregoing warranty if repair
is attempted by other than SKANTEK designated personnel. EXCEPT FOR
THE EXPRESS WARRANTIES, STATED HEREIN, SKANTEK DISCLAIMS ALL WARRAN-
TIES, EXPRESS AND IMPLIED, ON PRODUCTS FURNISHED HEREUNDER, INCLUDING
WITHOUr LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE; and the stated express warranties
are in lieu of all obligations or liabilities on the part of SKANTEK
SKANTEK - 3 - SKANTEK
•
arising out of, or in connection with, the performance of the Prod-
ucts. Without limiting the generality of the foregoing, SKANTEK does
not warrant that the functions contained in the Software will meet the
Buyer's requirements or will operate in the combinations which may be
selected for use by Buyer, or that the Products will operate uninter-
rupted or error free, or all defects and inefficiencies in the Software
will be corrected.
All above warranties are contingent upon .proper use of the Products.
These warranties will not apply:(i) if adjustment, repair, elements or
parts replacement is required because of normal wear or tear results in
whole or in part from catastrophe, fault, or negligence of Buyer or
anyone claiming through, or on behalf of Buyer, or from improper or
unauthorized use of a Product or use of a Product in a manner for which
it was not designed, or (ii) if a Product has been modified or the
Software has been modified, merged into or added to other program
material or if any other software program is written into the Product,
or (iii) where any manufacturers' serial number of warranty decal, or
where any proprietary legend or copyright notice has been removed or
altered. In addition to the foregoing, any applicable on -site warranty
will not apply if prerequisite products (as specified in the applicable
price list, Product Specification, or contracts) are missing.
8. PATI NIS AMID COPYRIG7ITS
A. On the terms and conditions set forth herein, SKANTEK shall defend
Buyer, at SKANTEK'S expense, from and against any claim, suit or pro-
ceeding against Buyer so far as it is based on any claim that use of
any Product furnished hereunder infringes a valid United States patent
or copyright, and SKANTEK shall pay all costs and damages finally
awarded therein against Buyer, provided that: (i) SKANTEK is given
prompt written notice of such claim and is given information and rea-
sonable assistance in connection therewith, and (ii) SKANTEK shall have
sole control and authority with respect to the defense, settlement and
compromise thereof. If any Product delivered hereunder becomes, or in
SKANfEK'S opinion, is likely to become the subject of any such claim,
SKANTEK may, at its option, obtain for Buyer the right to continue
using the Products, replace or modify the Products so that they become
non - infringing or, if such remedies are not reasonably available, grant
Buyer a credit for the Products, as depreciated or as amortized by an
equal amount over the life of such Product as reasonably determined by
SKANTEK, and accept their return. SKANTEK may withhold further ship-
ment of such infringing or allegedly infringing Products.
B. SKANTEK shall have no liability or obligation hereunder to Buyer or
anyone claiming through, or on behalf of Buyer, with respect to any
patent or copyright infringement or claim thereof based upon: (i)
SKANTEK - 4 - SKANTEK
9.
\� J
a')
6'
10.
r !
compliance with one or more designs, plans, programs or specifications
of buyer; (ii) use or sale of the Product in combination with a device
or product not purchased from SKANTEK where the Product would not
itself be infringing; (iii) use of the Product in an application or
environment for which such Product was not designed or contemplated;
(iv) modification of the Product; or (v) any claim of infringement or a
patent in which Buyer or a subsidiary or affiliate of Buyer has an
interest or license. THE FOREGOING STATES THE ENTIRE LIABILITY OF
SKANTEK WITH RESPECT TO INFRINGEMENT OF PATENTS OR COPYRIGHTS BY THE
PRODUCTS OR ANY PART THEREOF OR BY ITS OPERATION.
LIMITATIONS OF REMEDIES
A. SKANTEK'S liability to Buyer or anyone claiming through, or on behalf
of Buyer, for any breach of these Terms and Conditions will not exceed
the purchase price of the Products with respect to which
such liability
is claimed, or where appropriate and at the option of
SKANTEK, shall be
limited to replacement of the Products of equitable
adjustment of the
purchase price. IN NO EVENT WILL SKANTEK BE LIABLE
FOR (A) SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY
DAMAGES RESULTING
FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR
LOSS OF BUSINESS
ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS
AND CONDITIONS OR
THE USE AND PERFORMANCE OF THE FRODUCT OR SOFTWARE,
WHETHER IN ACTION
OF CONTRACT OR TORT, INCLUDING NEGLIGENCE, EVEN IF
SKANTEK HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) ANY CLAIM OR DEMAND
AGAINST BUYER BY ANY OTHER PARTY ON ACCOUNT OF, OR
ARISING FROM, THE
USE AND PERFORMANCE OF THE PRODUCT OR SOFTWARE.
B. No action, whether in contract or tort, including negligence, arising
out of, or in connection with, these Terms and Conditions may be
brought by either party more than eighteen (18) months after the cause
of action has accrued, except an action for non - payment may be brought
within eighteen (18) months of the date of the last payment. This
subsection shall not apply to actions for breaches of the Software
License provisions, or to actions for violations or infringements of
SKANfEK "S rights relating to the Software or other confidential or
proprietary information.
Regardless of any disclosure made by Buyer to SKANTEK of an ultimate des-
tination of a Product, Buyer will not export or transmit either directly or
indirectly any Product without first advising SKANTEK and also obtaining a
license from the Office of Export Administration of the United States
Department of Commerce or any other agency or department of the United
States Government, as required.
SKANTEK - 5 -
11. CANCELLATION AND RESCHEDULE CHARGES
In the event Buyer: (i) cancels any order or portion thereof, or (ii) fails
to meet any obligation hereunder, causing cancelling or rescheduling of any
order or portion thereof, or (iii) requests a rescheduling of scheduled
equipment and such request is accepted by SKWfEK, Buyer agrees to pay to
SKANTEK, in addition to all other rights provided herein or by law to which
SKANTEK shall hereby be entitled, cancel lation/reschedule charges as a
percentage of the list price of the cancelled or rescheduled Products, such
charges having been agreed upon, not as a penalty, but.as a result of the
difficulty of computing actual damages. Such charges are as follows:
Cancellation or Reschedule
Notice Received
61 -90 days prior to
Scheduled Delivery Month
31 -60 days prior to
Scheduled Delivery Month
30 days or less prior to
Scheduled Delivery Month
During Scheduled Delivery Month
Cancellation/Reschedule Charge
(Expressed as a Percentage of the
List Price of the Products Ordered)
5;
10%
15%
251
Any such amount paid in respect of the rescheduling of scheduled equipment
as aforesaid shall be deducted from the purchase price payable by Buyer
therefor. Buyer may not cancel or reschedule any order or portion thereof
after delivery.
12. GENERAL
A. A contract will become binding only when a written acceptance of
Buyer's order is sent to Buyer by SKANTEK. The contract will consti-
tute the entire agreement between the parties with respect to the
subject matter of the contract. These Terms and Conditions shall
prevail notwithstanding any other terms or conditions on any order
submitted by Buyer.
B. The contract is not assignable without the prior written approval of
SKANTEK.
C. All rights and remedies conferred under the contract or by any other
instrument of law shall be cumulative and may be exercised singularly
or concurrently. Failure by either party to enforce any contract term
SEAKM - 6 -
shall not be deemed a waiver of future enforcement of that or any other
time on any other occasion.
D. These Terms and Conditions, and transactions pursuant hereto or the
Purchase Agreement, will be deemed made in the State of New Jersey and
shall be governed by, and construed and enforced in accordance with the
laws of the State of New Jersey.
E. If any provision of these Terms and Conditions is determined to be
invalid, unlawful or incapable of being enforced, by reason of any rule
of law or public policy, all other provisions of these Terms and Condi-
tions which can be given effect without the invalid, unlawful or un-
enforceable provision shall, nevertheless, remain in full force and
effect, and no provision shall be deemed dependent upon any other
provision unless so expressed herein.
F. No modification or amendment of these Terms and Conditions or waiver of
any of its terms shall be valid unless in writing and signed by the
party or parties to be charged.
G. These Terms and Conditions shall be binding upon and inure to the
benefit of SKANI'EK and Buyer, their respective successors and assigns,
but Buyer shall not have the right or authority to assign these Terms
and Conditions or any right hereunder without the prior written consent
of SKANTEK.
H. The headings herein shall be for the convenience of the parties only
and shall not be deemed to be a substantive part of these Terms and
Conditions.
BUYER
I ---I,
SKANTEK CDRPORATION
mom
Robert Haddow
Director of Finance .
Title
0
Exhibit J
F�.::
This agreement between SKANIU Corporation, 150 Mount Bethel Road, Warren, New
Jersey 07060 (hereinafter "SKANTEK" and
(hereinafter "Licensee ") for the licensing by SKANTEK to Licensee of the use of
certain computer software programs.
1. LICENSE
A. DEFINITION
I. "Licensed Program" means a software program listed on Schedule A and
any updated, improved, or otherwise modified version Melease" of
such program and any related materials, in machine readable and /or
printed form, furnished to Licensee by, or on behalf of, SKANTEK,
including any materials provided under SKANTEK software service, and
any full or partial copies of any of the foregoing.
These Licensed Programs include, but are not limited to, the follow-
ing which are supplied on the system disk, magnetic tapes, and
floppy disks:
- Unix Operation Systems and Associated Unix Executables
- SKANTEK Executables
- SKANTEK Source Programs
- SKANTEK Shell Programs
- SKANTEK ASCII and Binary Data Files
2. "Designated Equipment" means, with respect to each Licensed Program,
the specific central processing unit(s) ( "CPU"s) listed on the same
Schedule A, or, with respect to any subsequent Releases, the partic-
ular CPU for which Licensee has paid SKANTEK applicable fee, if such
fee is paid for only part of the equipment listed on such Schedule A.
3/10/86
SEANTF.K - 1 - SKANTEK
V�
n
U
3. "Schedule A" means a schedule in the form attached to this Agreement
which has been made a part of this Agreement by execution by both
parties.
" SKANTEK Program" means a Licensed Program which is owned by
SKANTEK, or for which SKANTEK has the independent ability, including
the right to use source code, to provide maintenance and support for
its customers.
B. LICENSE GRANT AND SCOPE
1. Subject to the terms of this Agreement, and upon full payment,
SKANTEK grants to Licensee a non - exclusive license or sublicense
(without the right to further sublicense) to use each Licensed
Program, and any releases thereof, only on the Designated Equipment
on which the software is first installed. Licensee understands that
a Licensed Program cannot be transferred to, or used in connection
with, any CPU that is not licensed by SKANTEK to operate the soft-
ware in question.
2. Upon request, SKANTEK will license Licensee, for an additional
license fee, to use the Licensed Programs in connection with addi-
tional CPU's which SKANTEK determines to be compatible after con-
ducting an inspection at SKANTEK'S then current charges.
3. Licensee may obtain Releases beyond those originally furnished for
particular Designated Equipment by either: (i) entering into a
Software Maintenance Agreement covering the Licensed Program and
Designated Equipment, or (ii) placing a purchase order which identi-
fies the Licensed Program, Release Number, and Designated Equipment,
and in either case, paying SKANTEK'S applicable fee.
C. ASSIGNMENT RANSFER
Neither the licenses granted hereunder nor the Licensed Programs may be
assigned or transferred without prior written consent of SKANTEK, and
any such attempt will void the licenses. If Licensee desires to trans-
fer the Designated Equipment to a third party for continuing use by such
party, SKANTEK agrees, upon Licensee's request and subject to SKANTEK'S
reasonable approval, to offer to enter into a standard SKANTEK License
Agreement with such third party. After third party and SKANTEK have
executed an agreement covering the Licensed Program(s), Licensee may
transfer the Licensed Program(s) to such third party. In the absence of
such an agreement, if Licensee transfers the Designated Equipment,
Licensee shall promptly return to SKANTEK the Licensed Programs, includ-
ing all copies which contain any portion of a Licensed Program, provided
SKANIU - 2 - SKANTEK
D.
E.
•
that Licensee may remove from such copies any modifications made by
Licensee.
CDPIES/MUDIFICATION
1. SKANTEK will supply Licensee with a copy of the Licensed Program.
The Licensed Program may be copied, in whole or in part, only for
use by Licensee with the Designated Equipment in which it is first
installed for archive or emergency restart purposes or to replace a
worn copy. No right to copy the Licensed Program, in whole or in
part, is granted hereby except as expressly provided herein. The
original and any copies of the Licensed Program, in whole or in
part, which are made or used by, or in the possession of Licensee,
shall be the property of SKANTEK, and kept by Licensee, at the
location of the Designated Equipment in which it is first installed.
2. Without the prior written approval of SKANTEK, Licensee shall not
modify the Licensed Program nor merge it into, or add it to, other
program material to form an updated work or otherwise, for any
reason whatsoever. Without limiting the generality of the fore-
going, Licensee hereby agrees not to write any software or program
into the Product, all of which must be written and installed by
SKANTEK.
3. Licensee agrees not to remove or interfere with the display of, and
to reproduce and include as part of the informational content, any
patent, copyright, proprietary or other notice or notices as SKANTEK
from time to time may believe to be necessary or advisable in order
to protect the rights of SKANTEK or anyone else designated by
SKANTEK, or any copies in any form it has or makes of the Licensed
Program, in whole or in part, whether or not modified, and in the
case of disk, tape, or other storage media, also in visibly readable
form on the exterior of the container.
Title to all Licensed Programs and documentation supplied by SKANTEK to
Licensee and all rights therein, including all rights to patents, trade
names and copyrights applicable thereto, shall remain vested in SKANTEK,
and such Licensed Program and documentation are understood to be trade
secrets and confidential information of SKANTEK. Licensee acknowledges
that SKANTEK has a proprietary interest in such Licensed Program and
documentation, together with all ideas and concepts contained therein,
and shall hold such Licensed Program and documentation in strictest
confidence.
- 3 -
0
F. PROTECTION OF LICENSED PROGRAM
•
Licensee hereby acknowledges and agrees that the Licensed Program and
all such information furnished by SKANM to Licensee are furnished on a
strictly confidential basis, for the exclusive use of Licensee, and
Licensee will not take any action in derogation of such confidential-
ity. Licensee shall take all reasonable steps to insure that the
Licensed Program (including, without limitation, ideas, processes,
methods, and concepts utilized therein) and documentation is not used
by, or made available or furnished to, any person, firm or entity other
than Licensee's employees or agents directly concerned with Licensee's
licensed use of the Licensed Program, including, but not limited to,
taking all steps it takes to protect information, data or other tangible
and intangible property of its own that it regards as proprietary or
confidential.
A. TERM AND TERMINATION
Each license granted herein shall remain in force until Licensee discon-
tinues use of the Licensed Program on the Designated Equipment or until
SKANTEK terminates this Agreement or the license for such Licensed
Program. SKANTEK may terminate this Agreement or any license hereunder:
(i) effective immediately upon notice if Licensee provides or otherwise
makes available to any third party any Licensed Program or portion
thereof, or (ii) upon thirty (30) days notice if Licensee attempts to
use any licensed Program on equipment other than the Designated Equip-
ment for the Release in question, or attempts to transfer any license or
assign this agreement without the prior written consent of SKANTEK, or
fails to perform any other material obligation under this Agreement, and
does not cure such breach within such period. Immediately upon termina-
tion, Licensee shall return to SKANTEK the Licensed Program(s) and all
copies thereof, provided that Licensee may remove from such copies any
modifications made by Licensee.
B. EXCUSABLE DELAYS
SKANTEK shall not be liable for delays or failures in performing its
obligations arising out of, or resulting from. (a) an act of God; (b)
any other cause beyond SKANTEK'S reasonable control, including, but not
limited to, the inability to obtain necessary labor, materials, equip-
ment, utilities, services, or facilities; or (c) any act, failure to
act, or delay in action on the part of any government authority or of
Licensee; strikes or other labor difficulties; accidents or disruption
- 4 SKANTEK
• M
such as fire, flood, civil disturbance or breakdown of essential machi-
nery or equipment; or delays or shortages in transportation. In the
event of any such delay, the time for SKANTEK'S performance shall be
extended by a period equal to the time lost by reason of such delay.
C. LIIIITATIONS OF LIABILITY
1. SKANTEK'S liability to Licensee or anyone claiming through, or on
behalf of Licensee, for any breach of this Agreement, will not
exceed the purchase price of the Licensed Programs with respect to
which such liability is claimed, or where appropriate and at the
option of SKANTEK, shall be limited to replacement of Licensed
Program or equitable adjustment of the purchase price.
2. IN NO EVENT WILL SKANTEK BE LIABLE FOR: (A) SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING ANY DAMAGES RESULTING FROM LOSS OF
USE, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF BUSINESS ARISING OUT
OF, OR IN CONNECTION WITH, THIS AGREEMENT OR THE USE AND PERFORMANCE
OF THE LICENSED PROGRAM, WHETHER IN ACTION OR CONTRACT OR TORT,
INCLUDING NEGLIGENCE, EVEN IF SKANTEK HAS BEEN ADVISED OF THE POSSI-
BILITY OF SUCH DAMAGES, OR (B) ANY CLAIM OR DEMAND AGAINST LICENSEE
BY ANY OTHER PARTY ON ACCOUNT OF, OR ARISING FROM, THE USE AND
PERFORMANCE OF THE LICENSED PROGRAM.
3. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SKARMIS TERMS AND
CONDITIONS OF SALE, SKANTEK DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, ON LICENSED PROGRAMS FURNISHED HEREUNDER, INCLUDING WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS
FOR ANY PARTICULAR PURPOSE: and the stated express warranties are in
lieu of all obligations or liabilities on the part of SKANTEK aris-
ing out of, or in connection with, the performance of the Licensed
Programs. Without limiting the generality of the foregoing, SKANTEK
does not warrant that the functions contained in the Licensed Pro-
grams will meet Licensee's requirements or will operate in the
combinations which may be selected for use by Licensee, or that the
Licensed Programs will operate uninterrupted or error free or all
defects and inefficiencies in the Licensed Program will be corrected.
D. PROTECTION AGAINST INFRINGEMENT CLAIMS
On the terms and conditions set forth herein, SKANTEK shall defend
Licensee, at SKANTEKIS expense, from and against any claim, suit or
proceeding against Licensee so far as it is based on any claim that
use of any Licensed Program furnished hereunder infringes a valid
United States patent or copyright, and SKANTEK shall pay all costs
and damages finally awarded therein against Licensee, provided that:
(i) SKANTEK is given prompt written notice of such claim and is
- S - SKANTEK
E.
given information and reasonable assistance in connection therewith,
and (ii) SKANTEK shall have sole control and authority with respect
to the defense, settlement and compromise thereof. If any Licensed
Program delivered hereunder becomes, or in SKANTEK'S opinion is
likely to become, the subject of any such claim, SKANTEK may, at its
option, obtain for Licensee the right to continue using the Licensed
Program so that they become noninfringing or, if such remedies are
not reasonably available, grant Licensee a credit for the Licensed
Programs, as depreciated or as amortized by an equal amount over the
life of such Licensed Program as reasonably determined by SKANIU,
and accept their return. SKANTEK may withhold further shipment of
such infringing or allegedly infringing Licensed Program.
SKANTEK shall have no liability or obligation hereunder to Licensee
or anyone claiming through, or on behalf of Licensee, with respect
to any patent or copyright infringement or claim thereof based
upon: (i) compliance with one or more designs, plans, programs, or
specifications of Licensee; (ii) use or sale of the Licensed Program
in combination with a device or product not purchased from SKANTEK
where the Licensed Program would not itself be infringing; (iii) use
of the Licensed Program in an application or environment for which
such Licensed Program was not designed or contemplated; (iv) modifi-
cation of the Licensed Program, or (v) any claim of infringement of
a patent in which Licensee or a subsidiary or affiliate of Licensee
has an interest or license. THE FOREGOING STATES THE ENTIRE LIABIL-
ITY OF SKANTEK WITH RESPECT TO INFRINGEMENT OR PATENTS OR COPYRIGHTS
BY THE LICENSED PROGRAM OR ANY PART THEREOF OR BY ITS OPERATION.
1. No modification or amendment to
its terms shall be valid unless
or parties to be charged.
this Agreement or waiver of any of
in writing and signed by the party
2. The validity, in whole or in part, of any provision of this Agree -
vent shall not affect the validity of enforceability or any other
provision hereof.
3. Licensee shall pay all taxes or similar charges resulting from this
Agreement or any activities hereunder, exclusive of taxes based on
SKAhTEKIS net income.
4. Fees and term of payment, shipment and delivery will be as provided
in the applicable SKANTEK Sales or Maintenance Agreement Quotation.
S. This Agreement shall control and have precedence over the provisions
of any purchase order or other document, constitutes the entire
SKANTEK - 6 - SKANTEK
0
agreement between the parties respecting the subject matter hereof,
and supersedes all previous and collateral agreements, representa-
tions, and warranties. No representation, warranty, course of
dealing, trade usage, term or condition not contained or referenced
herein shall be binding on either party.
6. Licensee's obligation under this Agreement shall survive these terms
and conditions. If SKANTEK has a reasonable basis to believe Buyer
has breached any obligation specified in this Agreement, SKANTEK may
request, and Licensee shall promptly certify in writing, that it has
not provided the Licensed program to any third party except in
accordance with this Agreement. If Licensee is unable to provide
this certification, it shall promptly provide a detailed, written
explanation of its reasons.
7. This Agreement will be deemed made in the State of New Jersey and
shall be governed by, and construed and enforced in accordance with,
the laws of the State of New Jersey.
/ r
i
SKANTEK CORPORATION
Robert Haddow
Director of Finance
Title
August 15, 1987
to
-7-
11
N
2 -iylt i'
•
SKANTEK CORPORATION
SOFTWARE LICENSE AGREEMENT
SK -1010 Serial Number
Item
Model Number
-a -
i
Description
Customer Billing Address
P.O. Number
Telephone
�J
HARDWARE MAINTENANCE AGREBdENT
Agreement Number
Installation Location
Contact
Telephone (Voice)
Telephone (Diagnostic)
Exhibit K
SKANfEK agrees to provide and the Customer agrees to accept maintenance services
on the equipment listed below, at the monthly charge indicated. This Agreement
will be governed by the Terms and Conditions for Hardware Maintenance annexed
hereto and made a part thereof.
ITIM MODEL Number S/N DESCRIPTION QTY Unit Chg Mo. Charge
Commencement Date
Date
ATTEST:
3/10/86
SYANfH1c
City Clerk
.n-
Robert Haddow
Director of Finance
Title
v
TERMS AND CONDITIONS
FOR
SLAM HARIMARE MAINTENANCE
1. TERM
This Agreement shall be effective when signed by both parties. The initial
term is twelve (12) months from the Commencement Date, after which this
Agreement may be terminated by either party upon ninety (90) days prior
written notice.
2. ELIGIBILITY FOR SERVICE
A. Equipment is eligible for service under this Agreement provided it is in
good operating condition and SAANTEK'S site and environmental conditions
are met. Prior to the commencement date of the Agreement, equipment
repairs and /or adjustments SKANTEK determined to be necessary shall be
made at SKANTEK'S rates, terms and conditions then in effect.
Site requirements:
1. Normal office environment, with adequate space for service proce-
dures to be performed. A six foot by seven foot rectangular area
is considered adequate.
2. Electric service: 120 V, 20 AMP, three wire, grounded circuit
(equipment normally draws 12 amps).
3. Telephone: 2 lines:
. Outside, direct dial voice grade line with modular jack
(not routed through local PBX switchboard).
. Voice grade with handset for operator instructions by phone
(may be routed through local PBX switchboard).
B. Equipment may be located within the contiguous forty -eight (48) United
States and the District of Columbia.
3. SERVICE RESPONSIBILITIES OF SKANfEK.
A. SKANTEK shall maintain the equipment in good operating condition and
furnish service for calls received within the designated Call Window.
Specifically, SKANTEK shall:
SLANTEK - 2 - SKANTM
1. Provide scheduled preventive maintenance if required (based on
the specific needs of the equipment as determined by SKANTEK)
within the Call Window or a mutually agreeable time.
2. Provide remedial service response within the time specified below
from a designated SKANTEK Field Service Office following prompt
notification within the Call Window of equipment malfunction:
Phone response to initiate remote diagnostic within four (4) hours
during SKANTEK'S regular business hours.
Site Visitation:
Distance from SKANTEK'S Service Center Response Time
0 -100 miles 24 hours
100+ miles 48 hours
3. Provide replacement parts, either new parts or parts of equal
quality. (Exchanged parts removed from the equipment become the
property of SKANTEK.)
4. Install applicable Field Engineering Change Orders (FCO's) at no
additional cost.
B. SKANTEK shall provide remote diagnosis service on eligible equipment if
specified on the face of this Agreement.
4. SERVICE LD41TATIONS
A. The following maintenance services are not included under this Agree -
ment: requests for service outside the Call Window and services which,
in SKANTEK'S opinion, are required due to improper treatment or use of
the equipment; unauthorized attempts by other than SKANM personnel to
repair, maintain or modify the equipment; or causes external to SKANM
maintained equipment.
B. Maintenance materials, tools, documentation, Site Management Guide,
diagnostics and test equipment provided by SKANTEK shall remain the
exclusive property of SKANTEK.
C. Unless otherwise noted, service excludes coverage on locally observed
SKANTEK holidays, which are: New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving
Day, Friday following Thanksgiving, Christmas Eve Day, Christmas Day,
and New Year's Eve Day.
SKANTEK - 3 - SKANTEK
D. SKANTEK reserves the right to terminate or refuse service when, in
SKANTEK'S opinion, conditions at the equipment location represent a
hazard to the safety or health of any SKANTEK employee.
S. RESPONSIBILITIES OF CUSTOM
A. Customer shall: (i) notify SKANTEK immediately of equipment malfunction,
(ii) allow SKANTEK full and unrestricted access to all equipment and
communications facilities, (iii) ensure that a Customer's representative
is present during service, and (iv) provide SKANTEK reasonable work
space and storage facilities.
B. Throughout the term of this Agreement, Customer shall maintain site
conditions within the common environmental range of all system devices
(and media) as specified by SKANTEK.
C. For equipment having remote diagnosis service, customer shall prove and
bear the costs of a dedicated direct dialing, voice grade telephone line
for use in diagnostic procedures. This line cannot be routed through a
PBX System.
6. CHARGES
A. Payment of total monthly charge is due thirty (30) days from the date of
invoice.
B. Charges for maintenance services not covered under this Agreement shall
be invoiced at SKANTEK'S rates, terms and conditions in effect when
service is performed.
C. SKANTEK may adjust the total monthly charge after initial term upon
ninety (90) days prior written notice.
D. Charges are exclusive of, and Customer is responsible for, all sales,
use and like taxes.
A I VkV is
A. In the event the Customer wishes to make a move of the equipment which
would require any disassembly of the equipment, the Customer shall
notify SKANTEK thirty (30) days prior to the move. SKANTEK shall be
under no obligation to continue service if equipment is moved without
prior written approval of SKANTEK.
SKANTEK - 4 - SKANIEK
B. SKANTEK, at its option, shall supervise the deinstallation and reinstal-
lation of equipment the Customer wishes to move. Monthly charges will
be suspended when the equipment is deinstalled. Charges will be re-
instated on the day following equipment reinstallation. Customer shall
pay for labor, materials, and travel costs provided during the movement
of equipment at SKANTEKIS then current rates, terms and conditions.
S. LIMITATION OF LIABILITY AND WARLMM
A. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, SKANTEK DISCLAIMS ALL
WARRANTIES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
B. CUSTOMER'S RIGHT TO RECOVER PROPERTY DAMAGES CAUSED BY SKANTEK'S FAULT
OR NEGLIGENCE SHALL BE LIMITED TO FIFTY THOUSAND ($50,000) DOLLARS.
SKANIU WILL NOT BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA,
PROFITS, USE OF PRODUCTS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. This limitation of
SKANTEK'S liability will apply regardless of the form of action, whether
in contract or tort, including negligence. Any action against SKANTEK
must be brought within eighteen (18) months after the cause of action
accrues.
C. SKANIU shall not be liable for any delay in performance due to causes
beyond the reasonable control of SKANTEK.
9. GENERAL
If either party fails to perform its obligation under this or any other
agreement between the parties, and such failure continues for a period of
twenty (20) days after written notice, the other party shall have the right
to terminate this Agreement. This Agreement is the complete and prevailing
Agreement between the parties with respect to the subject matter herein, and
there are not other understandings, oral or written. The provisions of this
Agreement are declared to be severable. Neither party may assign this
Agreement unless mutually agreed. This Agreement is governed by the laws of
the Commonwealth of New Jersey.
- 5 -
SK N U CORPORATION
SOFTK4RE MAINTENANCE AQaSONT
Agreement Number
Customer Billing Address
P.O. Number
Telephone
Installation Location
Contact
Telephone (Voice)
Telephone (Diagnostic)
Exhibit L
SRANTEX agrees to provide, and the Customer agrees to accept, maintenance serv-
ices on the software listed below, at the monthly charge indicated. This Agree-
ment will be governed by the Terms and Conditions for Software Maintenance
annexed hereto and made a part thereof.
Item Model Number Description
Commencement Date
to
4CIty 3/10 /8b
SSANTEK
erk
Qty Unit Chg Mo. Charge
Corporation
� i
dO—wli .,a, 4: li-i,
W n
Robert Haddow
Director of Finance
Title
!IU
v
j7k
Iry
THM AND CONDITIONIS
a
SLANTEK SOFTWARE MAINTENANCE
1. TERM
This Agreement shall be effective when signed by both parties. The initial term
is twelve (12) months from the Commencement Date, after which this Agreement may
be terminated by either party upon ninety (90) days written notice.
2. DEFINITIONS
A. 'Supported Software" means standard (i.e., unmodified) software program
routines which are listed in both the current Software Price List and
this Agreement and are being used in accordance with the applicable
SKANTEK Software License. SKANTEK may, at its sole discretion, reclas-
sify software products without obligation to the Subscriber, except that
a reclassification shall not become effective until after thirty (30)
days notice to the Subscriber or when this Agreement expires, whichever
is later.
B. "Supported System" means the system to which the Supported Software is
licensed.
C. "Update" means a release of Supported Software which contains correc-
tions, by- passes or other technical modifications. Updates are subject
to SKANTEK's then current standard software license terms and conditions.
3. RESPONSIBILITIES
Skantek shall, at no additional charge:
a. Provide to Subscriber, Updates to Supported Software as they are re-
leased to the general public,
b. Provide Subscriber's system manager with technical telephone assistance
between 8:00 a.m and 8:00 p.m. EST, Monday through Friday, SKANTEK
holidays excluded,
c. Provide remedial software support by attempting to correct or by -pass a
reported defect.
SIANTEK - 2 SKANTEK
4. LITERATURE
SKANTEK shall, at no additional charge, provide as released, software liter-
ature, such as:
a. Release Notes, highlighting the modifications in the latest Update, and
b. Documentation Modifications, as released.
5. RESPONSIBILITIES OF SUBSCRIBER
Subscriber shall:
a. Appoint a system manager and alternate, who shall maintain the integrity
of the Supported System and shall act as the Subscriber's contact; all
material provided in accordance with the Agreement shall be sent to the
attention of this individual.
b. Properly maintain the Supported System to the latest SKANTEK revision
level. Any repairs, adjustments, or other service deemed necessary by
SKANTEK shall be performed at Subscriber's expense prior to the com-
mencement or continuation of the software support services. Should the
entire system be subject to a SKANTEK Hardware Maintenance Agreement, it
shall be deemed to have been maintained to the latest SKANTEK revision
level.
c. Use the most current Updates which are available to Subscriber.
d. Notify SKANTEK of any software malfunction.
6. SERVICE LIMITATIONS
Software Support Service does not include:
a. Services to be provided to software located outside of the contiguous
forty -eight (48) United States,
b. On -site support, operating supplies or accessories, or services required
due to the fault or negligence of the Subscriber,
c. Application engineering support,
d. Support for customer products, subscriber - written applications, pre-
release software, or non - current versions of released software.
SICANTEK - 3 - SKANTEK
Exki6it 'ii►L
RFOIi)MANCE AGREEMENT BETWEEN
THE CITY OF NEWMRT BEACH
AND DELTASYSTIMS.
This Agreement is made this 8th day of October 1987,
between The City of Newport Beach hereinafter referred to as the
"City" or "Licensee" and Deltasystems of Autometric, Inc., having
its principal place of business at Suite 330, 2629 Redwing Road,
Fort Collins, Colorado 80526, hereinafter referred to as
" Deltasystems."
Where as the City wishes to obtain certain products and
services necessary to support the operation of computerized land
information system and Deltasystems is willing to provide such
products and services, the parties agree as follows:
1. Products and Services.
Deltasystems agrees as the prime contractor to provide
the following products and services:
A. One initial copy of Deltamap, Deltacell, and
Deltaref, proprietary software systems, as described in the
April, 1987 User's Manual, in machine readable medium together
with appropriate user manuals. Three (3) subsequent copies of
Deltamap will also be provided together with appropriate User's
Manuals.
B. Installation to render the software systems
operational on the City's computer system.
C. Training for City employees consisting of two (2)
four (4) day sessions of classroom and hands on instruction for
up to eight (8) City employees in the use of Deltamap. Training
for City employees consisting of one (1) two (2) day sessions of
classroom and hands on instruction for up to eight (8) City
employees in the use of Deltacell.
D. Software system maintenance for a one (1) year
period from the date of installation to include appropriate
bulletins and visits to the City's computer site. Deltasystems
will be the sole point of contact for software maintenance.
Software maintenance after the first (1st) year will be available
to the City at standard published rates (see attached Support
Agreement.)
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E. A non - exclusive, non - transferrable, revocable
license to use the proprietary software described in Item 1, on
the following computer systems:
1) HP 9000 350 (Deltamap, Deltacell, Deltaref,
Deltacom.)
F. A Deltacom linkage to the City's Building Permit
System Vendor as designed by Deltasystems system running on a
Hewlett Packard Series 3000.
G. Software products, maintenance, and related
services from Building Permit System Vendor as designed by
Deltasystems as described in Exhibits "A" and "B."
H. Computer aided drafting and civil engineering
software, required services, hardware, digitizing tablets, and
required services from Holquin Corporation as described in
Exhibits "C," "D," "E," "F," and "G."
I. Scanning data conversion hardware, software,
maintenance, and related services as described in Exhibits "H,"
"I," "J," "K," and "L."
J. Project management, contract administration, and
coordination services as described in Exhibit "M."
K. Any services required by the City which are not
included as part of the standard installation, testing, or
training package described in paragraphs A through J above will
be provided by Deltasystems at the following rates:
Program Manager
Senior Sc lent ist
Senior Analyst
Programmer
Scientist, Training
Specialist
Technical Writer,
Graphic Artist
Clerical Support
$100 /hour or $800 /day
$ 80 /hour or $640 /day
$ 80 /hour or $640 /day
$ 75 /hour or $600 /day
$ 60 /hour or $480 /day
$ 30 /hour or $240 /day
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The services provided under this rate schedule are
exclusive of travel and reasonable living expenses. Travel and
living expenses will be invoiced as part of any service which
includes travel.
2. Payment for Deltasystems Products and Services.
The City agrees to pay Hewlett Packard for all
Deltasystems services as set forth in Exhibit "N ". Hewlett
Packard shall pay Deltasystems the amount of one hundred twelve
thousand six hundred ($112,600) dollars for products and services
to be provided under this Agreement. Payment shall be made in
the following amounts at the completion of the following:
A. Upon final acceptance and signature of this
contract the sum of eleven thousand one hundred sixty ($11,160)
dollars.
B. On the completion of training described in Item 3
of the Products and Services Section of this contract the sum of
forty thousand ($40,000) dollars.
C. On installation of the Delta products on the four
(4) designate CPU's and demonstration to the City's satisfaction
that the Delta products can utilize the local area network for
data movement and hardcopy plotting the sum of forty thousand
($40,000) dollars.
D. On the installation and satisfactory completion of
acceptance tests for the Deltacom linkage the City's Building Permit
System provider described in Item F of the Products and Services section
of this contract the sum of twenty thousand four hundred and
forty ($20,440) dollars.
Any additional services authorized by the City will be
paid net thirty (30) days after invoicing from Deltasytems is
received.
3. 1larranty.
Deltasystems warrants to Licensee that for a period of
one (1) year after initial delivery to Licensee of the Software,
the Software will perform those functions described in accordance
with the documentation delivered by Deltasystems with the
Licensee's copy of the Software. If during the one (1) year
period the Licensee notifies Deltasystems that such Licensee
suspects an error in the program logic or documentation of the
Software, Deltasystems shall use its best efforts to confirm the
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0
existence of such an error without charge to Licensee and correct
the error so that the software will function in accordance with
documentation. If Deltasystems determines that no such error
exists, Licensee shall pay Deltasystems for Del tasystems I
services in attempting to confirm the existence of the error at
Deltasytems' standard rates then in effect and shall also pay and
reimburse Deltasystems for travel and reasonable living expenses
incurred by Deltasystems and its personnel in performing said
services.
The foregoing warranty is in lieu of all other
warranties expressed or implied, including but not limited to
implied warranties of merchantability or fitness for a particular
purpose, and all such other warranties are expressly
disclaimed. The foregoing warranty does not apply to the
software if used, in whole or in part, at any place other than
Licensee's facility or with equipment other than that on which
the system was installed by Deltasystems under this Agreement;
and such warranty shall be null and void in the event the
Licensee or anyone other than Deltasystems or its employees shall
modify the Software or any part thereof or in the event the
Licensee shall use or permit or allow the software to be used in
a manner inconsistent with the specifications of the system
contained in the documentation delivered to the Licensee relating
to the software.
The foregoing remedy for Breach of Warranty (correction
of the defect) shall be the sole and exclusive remedy of Licensee
for Breach of Warranty obligations. In no event shall
Deltasystems be liable for any indirect, special, incidental, or
consequential damages arising out of any Breach of Warranty or
arising out of the use by Licensee of the Software or any other
programs, documentation and service provided by Deltasystems
hereunder, or otherwise arising out of or under this Agreement.
In the event any defect in program logic or documentation shall
be discovered which Deltasystems is unable to correct,
Deltasystems shall in no event be liable for damages in respect
thereof in excess of $111,600., U.S. dollars.
4. Term.
This Agreement shall continue in effect for so long
as: Licensee does not sell, lease, or otherwise transfer the
Software in connection with a transfer of the Hardware or any
other purpose without the prior written consent of Deltasystems.
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Deltasystems reserves the right to terminate Licensee's
right to use and possess the Software upon any breach by Licensee
of Licensee's obligations herein set forth.
5. Responsibilities of City.
The City will maintain the software in the same form as
it Is installed by Deltasystems.
In the case the City requires Deltasystems to maintain
the Software on the City's site, the City will provide the
following access:
A. Access to the Software on the City Hardware.
B. Adequate working space and facilities within a
reasonable distance of the City's Hardware.
C. Access to and use of all information and facilities
determined necessary by Deltasystems to service the Software.
The City is responsible for maintaining a procedure
external to the Software, for the reconstruction of lost or
altered files, data, or programs to the extent deemed necessary
by the City, and, for actually reconstructing any lost or altered
files, data, or programs.
6. Protection and Security of Licensed Materials.
For purposes of this section, the Software, together
with all documentation, manuals, and other related materials
supplied by Deltasystems in connection with the Software (but not
including the Hardware) shall be collectively referred to as the
"System."
Title to the System and all rights therein (including,
without limitation, all rights in patents or copyrights now or
hereafter applicable thereto) is and shall remain vested in
Deltasystems. Licensee acknowledges that the System constitutes
a valuable asset and Trade Secret of, and is the property of
Deltasystems accordingly. Licensee agrees that:
A. It will hold the System in strict confidence;
B. It will not, and will instruct its agents and
employees not to sell, lease, assign, transfer, or otherwise make
available the System or the benefit thereof to others, except as
specifically permitted herein;
-5-
• •
C. It will not, and will instruct its agents and
employees, not to reveal any information relating to the System
if the effect thereof might be to adversely affect Deltasystems'
proprietary rights or its ability to enter into Agreements with
others for the use or license of the System;
D. It will not copy or duplicate by any means, in
whole or in part, the System or any documentation or other
materials furnished by or on behalf of Deltasystems as a part of
the System, except for one (1) archival copy of the Software and
such limited number of copies of the documentation and manuals
provided therewith as shall be necessary for Licensee's own data
processing operations;
E. It will reproduce and include Deltasystems'
copyright notice (in the form specified by Deltasystems) on all
copies, in any form, including partial copies, of the System or
any documentation or materials furnished by Deltasystems with or
as part of the System;
F. It will limit access to the System to only those of
its employees who need access to the System in order to operate
the System or to use the product thereof for Licensee's business,
and will require its employees to execute, upon request by
Deltasystems, an appropriate non - disclosure Agreement; and
G. It will not, and will instruct its agents, and
employees not to, use any information, in tangible or intangible
form, which has been or may be disclosed to it or its employees
by Deltasystems under or in connection with this Agreement for
the purpose of creating or duplication or attempting to create or
duplicate the System, any documentation furnished with or
included in the System or any computer programs which perform
functions like or similar to the functions performed by the
computer programs included in and a part of the System, except as
permitted by Item (d) above.
H. Licensee will not remove any product identification
including the Deltasystems' logo, product names, serial numbers,
trademarks and notices of proprietary restrictions placed on the
Products by Deltasystems.
In the event Licensee shall become aware that any person
or entity (including, without limitation, employees of Licensee)
Is taking or threatens to take any action which would violate any
of the foregoing provisions were that person or entity a party to
this Agreement, the Licensee shall promptly and fully advise
Deltasystems (with written confirmation as soon as practical
-6-
• •
thereafter) of all facts known to Licensee concerning such action
or threatened action. Licensee shall not in any way aid, abet,
or encourage any such action or threatened action. Licensee
shall cooperate in all ways reasonable requests by Deltasystems
to prevent or stop the taking of any such action or threatened
action; including, without limitation, inst itut ing or permitting
to be instituted in Licensee's own name (but solely at the
expense of Deltasystems) legal action to prevent such action or
threatened action, and shall otherwise do all things and
cooperate in all ways as may be reasonably requested to protect
Deltasystems' Trade Secret, copyright, and other property rights
in and to the System.
Upon termination in writing of this License for breach
of any of the obligations of Licensee set forth above, Licensee
shall cease all use of the System, shall delete the System in its
entirety from any computer equipment of Licensee on which the
System is then installed and shall return to Deltasystems all
tangible portions of the System deliverd or disclosed to Licensee
by Deltasystems under or in connection with this Agreement,
together will all copies thereof (other than copies which
Licensee warrants it has destroyed) at any time made by
Licensee. The provisions of this Agreement relating to the
confidentiality and non - disclosure of the System shall survive
the termination or expiration of this Agreement and the Licensee
granted hereunder.
7. Scope.
All of the provisions of this Agreement shall apply not
only to the Software as herein defined and the manuals and
documentation supplied therewith, but also to any updates or
modifications thereof, any previous versions of the Software, or
functionally similar software heretofore furnished to Licensee,
and any additional proprietary software hereafter provided by
Deltasystems directly to Licensee, together with any manuals and
documentation supplied therewith, and from and after the date of
receipt of any such additional materials, the terms "Software"
and "System" herein shall be deemed to include such materials.
The purpose of this provision is to eliminate the necessity of
executing a separate license agreement in connection with every
transaction between Deltasystems and Licensee involving
proprietary software or related materials. Any software and all
related materials hereafter provided by Deltasystems to Licensee
shall be deemed "proprietary software" unless Deltasystems shall
otherwise agree in writing.
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8. Govern ing Law.
This Agreement and the construction, interpretation, and
enforcement hereof shall be governed by the laws of the State of
California and the United States of America.
9. Standard of Care.
Deltasystems warrants and guarantees that all services
performed pursuant to the Agreement shall be provided in a manner
commensurate with the highest professional standards and shall be
performed by qualified and experienced personnel.
10. Independent Contractor.
City and Deltasystems intend that the relation between
them created by this Agreement is that of employer- independent
contractor. The manner and means of conducting the work are
under the control of Deltasystems, except to the extent they are
limited by statute, rule or regulation and the express terms of
this Agreement. No civil service status or other right of
employment will be acquired by virtue of Deltasystems'
services. None of the benefits provided by City to its
employees, including but not limited to unemployment insurance,
workers' compensation plans, vacation and sick leave are
available from City to Deltasystems, its employees or agents.
Deductions shall not be made for any state or federal taxes, FICA
payments, PERS payments, or other purposes normally associated
with an employer - employee relationship from any fees due
Deltasystems. Payments of the above items, if required, are the
responsibility of Deltasystems.
11. Attorney's Fees.
If any legal action is
provision hereof or for damages by
of any provisions of this Agreement
be entitled to receive from the
expenses in such amount as the court
attorneys' fees.
18. Hold Harmless.
necessary to enforce any
reason for an alleged breach
, the prevailing party shall
losing party all costs and
may adjudge to be reasonable
Deltasystems agrees to indemnify, defend and save
harmless the City, its officers, agents and employees from any
and all claims and losses; with the exception of consequential
damages, and except as provided herein, accruing or resulting to
any other person, firm or corporation furnishing or supplying
-8-
• i
work, services, materials or supplies in connection with the
performance of this Agreement, and from any and all claims and
losses accruing or resulting to any person, firm or corporation
which may be injured or damaged by the contractor in the
performance of this Agreement which are attributable to the
negligence or intentionally tortious acts of Deltasystems
provided that the Deltasystems is notified in writing within
thirty (30) days that the City has knowledge of such claims.
Deltasystems shall be liable for damages arising out of
injury to the person and /or damage to the property of the City,
employees of the City, persons designated by the City for
training or any other persons other than agents or employees of
Deltasystems, designated to City for any purpose, prior to,
during, or subsequent to delivery, installation, acceptance, and
use of the equipment either at Deltasystems' site or at the
City's place of business, provided that the injury or damage was
caused by the fault or negligence of Deltasystems.
Deltasystems shall not be liable for damages arising out
of or caused by an alteration or an attachment not made or
installed by Deltasystems, or for damage to alterations or
attachments that may result from the normal operation and
maintenance of Deltasystems' equipment.
13. Probibit ion Against Transfer.
Deltasystems shall not assign, sublease, hypothecate, or
transfer this Agreement or any interest therein directly or
indirectly, by operation of law or otherwise without prior
written consent of City. Any attempt to do so shall be null and
void, and any assignee, sublessee, hypothecate or transferree
shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer.
14. Permits and Licenses
Deltasystems, at its sole expense, shall obtain and
maintain during the term of th is Agreement, all appropriate
permits, licenses and certificates that may be required in
connection with the performance of services hereunder.
15. Notices.
All notices, demands, requests or approvals to be given
under this Agreement shall be given in writing and conclusively
shall be deemed served when delivered personally or on the second
(2nd) business day after the deposit thereof in the United States
-9-
i 0
mail, postage prepaid,
registered or
certified,
addressed as
hereinafter provided.
All notices,
demands,
requests, or
approvals from City to
Deltasystems
shall be
addressed to
Deltasystems at: 2629
Redwing Road,
Suite 330,
Fort Collins,
Colorado 80526.
Al notices, demands, requests, or approvals from
Deltasystems to City shall be addressed to City at: City of
Newport Beach, 3300 Newport Boulevard, Newport Beach,
California 92663.
16. Default.
In the event Deltasystems hereto fails or refuses to
perform any of the provisions hereof at the time and in the
manner required hereunder, Deltasystems shall be deemed in
default in the performance of this Agreement. If such default is
not cured within a.period of forty -five (45) days after receipt
by Deltasystems from City of written notice of default,
specifying the nature of such default and the steps necessary to
cure such default, City may terminate the Agreement forthwith by
giving to Deltasystems written notice thereof.
17. Subcontractor Approval.
Unless prior written consent from City is obtained, only
those people and subcontractors whose names and resumes in this
Agreement and any attachments thereto shall be used in the
performance of this Agreement.
In the event that Deltasystems employs subcontractors
such subcontractors shall be required to furnish proof of
worker's compensation insurance and shall in add it ion be required
to carry general and automobile liability insurance in reasonable
conformity to the insurance carried by Deltasystems.
18. Integrated Agreement.
This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the
parties hereto and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions
hereof. Any modification of this Agreement will be effective
only by written execution signed by both City and Deltasystems.
-10-
In the event that any conflicts or inconsistencies occur
between this performance agreement and the attached Exhibits "A"
through "L," this performance agreement shall override the
exhibits.
19. waiver.
A wa iver by City of any breach of any term, covenant, or
condition contained herein shall not be deemed to be a waiver of
any subsequent breach of the same or any other term, covenant or
condition contained herein whether of the same or a different
character.
APPROVED AND AGREED TO BY:
DELTASYSTEMS OF AUTOMETRIC, INC.
BY:�e
Aut1r9tized Signature
NAME: Clifford W. Greve
TITLE: President
DATE:_ 8 October 1987
C�%G
DATE: ��
APPROVED AS TO FORM:
rl(o� (S (')�
CTTY-ATTORNEY
-11-
HE WLL�TT- PAC�KARD
LEASE WITH OPTION TO PURCHASE EQUIPMENT SCHEDULE & PAYMENT AGREEMENT
LESSOR: HEWLETT-PACKARD COMPANY
Finance and Remarketing Division
972 East Arques, 70FA
Sunnyvale, CA 94085
LESSOR TAX I.D. #: 94- 1081436
Lease Agreement #
Ref: Master Lease Agreement #
LESSEE: City of Newport Beach
(fun legal Nuns of Leaen)
3300 Newport Blvd
Isxeat aaaeat
Neeort Beach Orange GA 92658
[city) (Coomn I91en) (Lot
Ted Kramp
(Contact Name and fncne Numbeo
EQUIPMENT LOCATION, IF OTHER THAN ADDRESS OF LESSEE:
Street
City
County
State Zip
Exhibits:
The following Exhibits checked below are Incorporated herein and by this reference made a pan of this Agreement:
❑ Master Lease Agreement #
Kl Purchase Discount Agreement # 51921
0
• HP Product Warranty, Form If RE F: ,19 2 1 Rev,
• HP Software Terms, Form # REF, 419 Rev.
The following Exhibits checked below are attached hereto and made a part of this Agreement:
R1 Early Buyout Schedule dated 7 -1 -87 ® AddPndum "A"
W HP State and Local Government Rider Form #FR WaQER'Rly._.2 86 iI Additional Tprme
Terms and Conditions:
1. Non -Cancetlable.Agre imenC THIS AGREEMENT CANNOT BE CANCELLED
OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN.
2. Term: The term of this Schedule and Agreement for each item of Equipment
covered hereund shall commence upon the date Lessor executes the same
and shell expire 84 months following the "Rent Commencement Date"
as defined in paragraph 2 of the above- referenced Master Agreement, or on
the expiration of any applicable renewal period. However, if Lessee has
executed this Schedule and Agreement and the Equipment ordered has been
delivered prior to Lessor's execution thereof, the term of this Schedule and
Agreement shall be effective on the date of execution by Lessoe.
3. Rent: As rent for the Equipment leased hereunder throughout the term
her egf,'L,ggvge gg to pay Lessor. Its succassi or assigns the sum of
o (ees
$ y UUDD 11 per month, X*P4i(* of applicable use taxes.
Rent shall begin to accrue upon delivery and acceptance of the Equipment
a defin d in toe above referenced Master Lease Agreement.
inclusive
4. Amount Financed: The total amount financed under this Equipment Schedule
is8 PAyrAhlyd ygte- gmbnj, aher deducting all applicable credits and discounts
5. Purchase, Renewal, Return Options: Provided that no event of default has
occurred or is continuing to occur at the and of the Initial noncancellable lease
term, Lessee shall have the option to exercise the following options by pro-
viding Lessor with sixty (60) days prior written notice of its intention to:
(q purchase all or some of the Equipment covered by this Agreement for
(CHECK ONE)
❑ ten percent (10 %) of the:
Net Price of Equipment to be Purchased x Amount reto ;OR
Total Net Prim of Equipment
❑ the then Felt Market Value of each Item of Equipment to be pur-
chased; OR
6(l One Dollar ($1.00) for all Items of Equipment (available only for
State and Local Government Lasses or with special approval);
plus any accrued late charges and taxes applicable to the transfer of
of this Equipment;
(14 renew all or some of the Equipment covered by this Agreement on a
month -to -month basis for the:
Net Price of Equipment to be Renewed! x [Original Monthly
Total Net Price of Equipment Payment
for a six (6) month period after which time title to the Equipment shall pass
to Lessee;
EXHIBIT °Nth
VA
(iii) return In accordance with the above referenkaster Lease Agreement
any Equipment covered by this Schedule and Agreement that Is not pur.
chased or renewed.
If Lessee fails to notify Lessor of its intentions sixty (60) days prior to the expire-
tion of this Agreement and Schedule, it is agreed that Lessee shall renew all of
the Equipment covered hereunder in accordance with option (II) above.
During the renewal period, Lessee may return all or some of the Equipment In
accordance with the above referenced Master Lease Agreement or purchase all
or some of the Equipment covered hereunder for the price computed In actor.
dance with option (i) above or the Fair Market Value, whichever is less, by pro-
viding Lessor with sixty (60) days prior written notice.
IF LESSEE EXERCISES ITS OPTION TO PURCHASE THE EQUIPMENT, IT IS
SOLD IN ITS THEN "AS IS" CONDITION AT ITS LOCATION WHEN THE OPTION
IS EXERCISED.
6. Early Buyout Option: At its option beginning with the thirteenth (13th) month
following the Pont Commencement Date, Lessee may purchase all of the Equip
ment In its then "as Is" condition at its location when the option is exercised.
The purchase price shall be determined from the above- referenced Early Buyout
Schedule.
Equipment Schedule:
Oty. Model Description
SECTION A:
As per items 1 through 44, inclusive with
attached copy of Hewlett- Packard Quotation
consisting of 18 pages, which indicates a
items 1 through 10, inclusive on attached
Number 2403- B3774, dated June 8, 1987, con
net equipment cost of $41,5.0__8.20. This le
support services -
SECTION B:
Deltasystems Software $112,600.00
* Infocomp Software 35,450.00
Skantek Products 16,,,335.00
*Or Building Permit Tracking System
vendor selected by the City.
Initial
Initial
Total Interest Charged: $176,181.62
7. Equipment Upgred.1490n: At Its option but subject to Lessor's prior writ-
ten consent, Lessee may lease additional equipment and/or upgraded equip-
ment for those items covered under this Schedule and Agreement on a. then
currently marketed Lessor upgrade program. Such additional or upgraded
equipment shall be scheduled on a new Equipment Schedule and Payment
Agreement.
B. Upgrade Credit: 11 this Equipment Schedule and Payment Agreement reflects
an upgrade credit far equipment to be returned by Buyer to Seller, Buyer agrees
to return such equipment to Setter within thirty (30) days of delivery and accept-
ance of the new Equipment acquired hereunder.
9. Financing, Statement: LESSEE HEREBY NOMINATES AND APPOINTS
LESSOR AS ITS ATTORNEY4N -FACT FOR THE PURPOSE OF EXECUTING
ON ITS BEHALF FINANCING STATEMENTS (AND ANY APPROPRIATE
AMENDMENTS THERETO) UNDER THE PROVISIONS OF THE UNIFORM
COMMERCIAL CODE, FOR PROTECTIVE PURPOSES. RELATIVE TO THIS
AGREEMENT AND THE EQUIPMENT RENTED HEREUNDER.
Item Hem Extended
List Item Net Net
Price (Discount) Price Price
the exception of items 37 through 40, on
Number 2403- A4135, dated July 29, 1987,
net equipment cost of $197,003.05. And
copy of Hewlett- Packard Quotation
sisting of 9 pages, which indicates a
ase does not include maintenance and /or
NET PRICE — HARDWARE
NET PRICE — SOFTWARE
TOTAL NET PRICE — EQUIPMENT 551,896.95
OTHER COSTS (tax) 114.78
LESS: DOWN PAYMENTICREDITS
AMOUNT TO FINANCE
By execution hereof, the signer hereby certifies that he/she has read this Agreement and the attached Exhibits and that
Agreement on behalf of Lessee.
LESSOR: pewter
BY:
NAMEITITLE: Tim
DATE: Sept/
ATTEST: J
h
HEWLETT
P PACKARD
COMPANY
LESSEE:
BY:
AS
i 1 1 1
is dulv authorized to execute this
u &
Addendum "
- to -
HEWLETT I I STATE /LOCAL GOVERNMENT RIDER
P PACKARD
r
AGREEMENT NUMBER: 4124-
The following additional provisions are hereby incorporated in and made a part
of the above referenced agreement:
1. OWNERSHIP /USE OF EQUIPMENT. Unless otherwise specifically acknowledged
and agreed to by Hewlett- Packard, Customer hereby represents and warrants
that it is and will remain the exclusive owner, user and operator of the
equipment covered under this agreement.
2. FORM 8038 -6 FILING REQUIREMENTS. Customer hereby acknowledges and agrees
that:
(a) Pursuant to the requirements of Section 149 (e) of the "Internal
Revenue Code of 1986 ", Customer is responsible for preparing,
executing and timely filingg an "Information.Return for Tax - Exempt
Governmental Bond Issues" (I.R.S. Form #8038 -G) in connection with
this transaction.
(b) Customer will provide Hewlett - Packard with a copy of the Form .
8038 -G on or before 45 days following the end of the calendar
quarter in which this transaction was funded.
(c) Should Customer fail to properly and timely file a Form 8038 -G
and to provide Hewlett - Packard with a copy of the same as
provided for above, Customer's monthly payment shall be increased
from $ 9,061.81 per month to $ 9,787.22 per month, retroactive
to the original Rent Commencement Date under the above agreement.
(d) Hewlett- Packard will, on a best efforts basis, assist Customer
in the preparation and filing of any form 8038 -G required hereunder
3. If the agreement referenced above is an Installment Sale Agreement then, as
used herein, the term "Hewlett- Packard" shall mean and include the term
"Seller" and.the term "Customer" shall mean and include the term "Buyer ".
If the agreement referenced above is a Lease Agreement, then the term
"Hewlett- Packard" shall mean and include the term "Lessor ", and the term
"Customer" shall mean and include.the term "Lessee ".
HEWLETT - PACKARD iPANY CUST R.
B BY:
NAME /TITLE: JomAkagmic
R8yckuxx5zI %xRicaxx8Nxsx.. .
Timothy J. Gore AAAW, Area Business Mana DATE: Sentember 4. 1987
ATTEST
City
John C. Cox, Jr/ /Mayor
FORM
HEW LPAC+&KARD
LEASE WITH OPTION TO PURCHASE EQUIPMENT SCHEDULE & PAYMENT AGREEMENT
LESSOR: HEWLETT- PACKARD COMPANY
Finance and Remarketing Division
972 East Arques, 70FA
Sunnyvale, CA 94086
LESSOR TAX I.D. #: 941081436
Lease Agreement #
Ref: Master Lease Agreement #
LESSEE: City of Newport Beach
(FWI Lean Name a Lessee)
3300 Newport Blvd
(Street Mbraes)
_ eew o tBeach Orange CA 92658
(can Ic") (grate) alp)
Ted Kramp
(come. Name ene Phone Nvmben
EOUIPMENT LOCATION, IF OTHER THAN ADDRESS OF LESSEE:
Street
City
County
scale
Exhibits:
The following Exhibits checked below are incorporated herein and by this reference made a part of this Agreement:
❑ Master Lease Agreement #
(]� Purchase Discount Agreement # G1921
❑ HP Product Warranty, Form # REF- 61921 , Rev.
❑ HP Software Terms, Form # REE • (;1991 , Rev.
0
The following Exhibits checked below are attached hereto and made a part of this Agreement:
[N Early Buyout Schedule dated 7-1 -87 de Addendum "A"
IR HP State and Local Government Rider Form tFRDJRIBER— &ay.12/86 cX Add i ti onal Terms
Terms and Conditions:
1. NonFCance9abre Agreement: THIS AGREEMENT CANNOT BE CANCELLED
OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN.
2. Term: The term of this Schedule and Agreement for each item of Equipment
covered hereunder shall Commence upon the date Lessor executes the same
and shell expire 84 months following the "Pont Commencement Date"
as defined In paragraph 2 of the aboveaeferenced Master Agreement, or on
the expiration of any applicable renewal parlod. However, if. Lessee has
execuled this Schedule and Agreement and the Equipment ordered has been
delivered prior to Lessor's execution thereof, the term of this Schedule and
Agreement shall be effective on the date of execution by Lessee.
3. Rent: As rent for the Equipment leased hereunder throughout the term
hereof, Lessee agrees to pay Lessor, its sumessofp or assigns the sum of
$ 1,316-24 per morrth.)aX0 xiKof applicable use taxes.
Rent shall begin to accrue upon delivery and acceptance of the Equipment
r defined In the above referenced Master Lease Agreement, -
inclusive
4. Amount Financed: The total amount financed under this Equipment Schedule
and Payment reement, after deducting all applicable credits and discounts
is $ �cyr 6 92
5. Purchase, Renewal, Return Options: Provided that no event of default has
occurred or is continuing to occur at the and of the initial non - cancellable lease
term, Lessee shall have the option to exercise the Wowing options by pro-
viding Lessor with sixty (60) days prior written notice of its intention to:
(f) purchase an a some of the Equipment Covered by this Agreement for:
(CHECK ONE)
❑ ten percent (10%) of the:
C7 Price Of, chased
x
mount t
Amount m�
OR
N Price of Equipment
[.'Original ®onthly
❑ the then Fair Market Value of each Item of Equipment to be pur-
chased; OR
IX One Dollar ($1.00) for all Items of Equipment (available only for
State and Local Government Leases or with special approval);
pfus any accrued fate charges and lazes applicable to the transfer of
of this Equipment
(1t) renew all or some of the Equipment covered by this Agreement on a
month-to-month basis for the:
Not Price Of Equipment to The Roomed]
x
I
Total et Price of Equip
I
[.'Original ®onthly
fora six (6) month period alter which time 099 to the Equipment shall pass
to Leases;
(At) return in a=rdanm with the above relerAter Lease Agreement
any Equipment covered by this Schedule and Agreement that is not pur-
chased or renewed.
If Lessee fails to notity, Lessor of its Intentions sixty (60) days prior to the expira-
lion of this Agreement and Schedule, it is agreed that Lessee shall renew all of
the Equipment covered hereunder In accordance with option (ii) above.
During the renewal period, Lessee may return all or some of the Equipment In
accordance with the above referenced Master Lease Agreement or purchase all
or some of the Equipment covered hereunder for the price computed in accor-
dance with option (1) above or the Fair Market Value, whichever Is less, by pro-
viding Lessor with sixty (60) days prior written notice.
IF LESSEE EXERCISES ITS OPTION TO PURCHASE THE EQUIPMENT, IT IS
SOLD IN ITS THEN "AS IS" CONDITION ATfTS LOCATION WHEN THE OPTION
IS EXERCISED.
6. Early Buyout Option: At its option beginning with the thirteenth (13th) month
following the Rent Commencement Date, Lessee may purchase all of the Equip-
ment in Its then "as is" condition at its location when the option is exercised.
The purchase price shall be determined from the above-refsrsnced Early Buyout
Schedule.
Equipment Schedule:
Qty. Model Description
SECTION B:
Holguin Software $81,382.00
Total Interest Charged: $25,979.24
7. Equipment Upgrade/41n: At Its option but subject to Lessor's prior wrlt-
ten consent, Lessee may lease additional equipment and/or upgraded equip-
ment for those items covered under this Schedule and Agreement on a then
currently marketed Lessor upgrade program. Such additional or upgraded
equipment shall be scheduled on a new Equipment Schedule and Payment
Agreement.
S. Upgrade Credit: If this Equipment Schedule and Paymant Agreement reflects
an upgrade credit for equipment to be returned by Buyer to Seller, Buyer agrees
to return such equipment to Seller within thirty (30) days of delivery and accept-
ance of the new Equipment acquired hereunder.
9. Financing Statement: LESSEE HEREBY NOMINATES AND APPOINTS
LESSOR AS ITS ATTORNEY -IN -FACT FOR THE PURPOSE OF EXECUTING
ON ITS BEHALF FINANCING STATEMENTS (AND ANY APPROPRIATE
AMENDMENTS THERETO) UNDER THE PROVISIONS OF THE UNIFORM
COMMERCIAL CODE, FOR PROTECTIVE PURPOSES, RELATIVE TO THIS
AGREEMENT AND THE EQUIPMENT RENTED HEREUNDER.
Rem Item E xtended
List Item Net Net
Pries (Discount) Price Price
NET PRICE — HARDWARE
NET PRICE — SOFTWARE 91-382-1710
TOTAL NET PRICE — EQUIPMENT g1.gs2 -nn
OTHERCOSTS (taX) d:82 -92
LESS: DOWN PAYMENT /CREDITS —0—
AMOUNT TO FINANCE 96,264 92
By execution hereof, the signer hereby terrifies that helshe has read this Agreement and the attached Exhibits and that he/she is duly out razed to execute this
Agreement on behalf of Lessee. A w
LESSOR: newuer r- rgt;rcngo cUmrnnr - LESSEE
BY: BY: IF Unro4liq !6E 41
PNlwrix 919nelur, �. y,;+ Iw,luE BlgneMe
NAMEITITLE: Timothy J. Gore Area Busin ME/TITLE: J,O�Tl} O T�: r1�'ia i
DATE:
September 4, 1987
r (i/ , /:. 9g7
ATTEST: OVE AS 0 Ogg
Ch='HEWLETT City Clerk
PACKARD n i FRD /LWOP 12 -86
Addendum "A
- to -
HEWLETT STATE /LOCAL GOVERNMENT RIDER
CPS PACKARD
AGREEMENT NUMBER: 4124-
The following additional provisions are hereby incorporated in and made a part
of the above referenced agreement:
1. OWNERSHIP /USE OF EQUIPMENT. Unless otherwise specifically acknowledged
and agreed to by Hewlett - Packard, Customer hereby represents and warrants
that it is and will remain the exclusive owner, user and operator of the
equipment covered under this agreement.
FORM 8038 -G FILING REQUIREMENTS. Customer hereby acknowledges and agrees
that:
(a) Pursuant to the requirements of Section 149 (e) of the "Internal
Revenue Code of 1986 ", Customer is responsible for preparing,
executing and timely filing an "Information Return for Tax - Exempt
Governmental Bond Issues" (I.R.S. Form #8038 -G) in connection with
this transaction.
(b) Customer will provide Hewlett- Packard with a'copy of the Form
8038 -G on or before 45 days following the end of the calendar
quarter in which this transaction was funded:
(c) Should Customer fail to properly and timely file a Form 8038 -G
and to provide Hewlett- Packard with a copy of the same as
provided for above, Customer's monthly payment shall be increased
from $ 1,336.24 per month to $ 1,443.21 per month, retroactive
to the original Rent Commencement Date under the above agreement.
(d) Hewlett - Packard will, on a best efforts basis, assist Customer
in the preparation and filing of any form 8038 -G required hereunder.
3. If the agreement referenced above is an Installment Sale Agreement then, as
used herein, the term "Hewlett- Packard" shall mean and include the term
"Seller" and the term "Customer" shall mean and include the term "Buyer ".
If the agreement referenced above is a Lease Agreement, then the term
"Hewlett- Packard" shall mean and include the term "Lessor ", and the term
"Customer" shall mean and include.the term "Lessee ".
HEWLETT- PACKARD C 9PANY CUSTOME .
B BY:
NAME /TITLE: ft=x0jBgwW NAME /TI E: John C. Cox, Jr. yor
iixgpi:amc �ieoa:eroc �f'wbrKx:6paeox.
Timothy J. Gore
Area Business Mana �F,WPp�r
DATE: September 1987
ATTEPT: „ A VED A(5 TO (FORM
ty
HEWLI!TT-PACOKARD
LEASE AGREEMENT
Master Lease Agreement
Lessor hereby agrees to lease to Lessee and Lessee hereby agrees to lease from Lessor, subject to the fallowing terms of this Master Agreement (Ihe "Agreement "),
the personal property together with all ahachmerds, replacements, pans, substitutlons, additions, repairs, right to use schware licenses, and accessories Incorporated
therein andlor affixed thereto {the "Equipment ") described in any Equipment Schedules executed by the parties hereto pursuant to this Agreement.
1. Non- Canceflable
THE TERM OF ANY EQUIPMENT SCHEDULE ENTERED INTO PURSUANT
TO THIS AGREEMENT CANNOT BE CANCELLED OR TERMINATED
EXCEPT AS EXPRESSLY PROVIDED HEREIN OR ON THE EQUIPMENT
SCHEDULE.
Rent
Lessee shall pay to Lessor as Rem for the use of the Equipment during the
initial and any renewal terms of any Equipment Schedule entered into
hereunder, the Rental or renewal Rental payment amount specified on the
applicable Equipment Schedule, Rent shall begin to accrue upon delivery and
acceptance of the Equipment C'Renl Commencement Date "). To the extent
permitted by applicable law, any Rental or other payment which remains over-
due for more than ten (10) days shall be subject to a late charge equal to
one and one -half percent (1 Va%a) per month of the amount past due. All rents
shall be paid to Lessor at Its address set forth on the applicable Equipment
Schedule or as otherwise directed by Lessor In writing. Rem shall accrue
whether or not Lessee has received any notice that such payment is du&
3. Term
The term of each Equipment Schedule entered into hereunder shall be effec-
tive on the day of execution by Lessor and shall expire as set forth In said
Equipment Schedule; provided, however, if Lessee has executed an Equip-
ment Schedule and the Equipment ordered has been delivered prior to
Lessor's execution thereof, the term of that Equipment Schedule shall be
effective on the date of execution by Lessee.
The term of this Agreement shall be effective as of the date of execution by
both Parties and shall remain in effect so Jong as any Equipment Schedule
referencing the terms of this Agreement shall be In effect.
4. Acceptance of Equipment
Acceptance shall be accomplished by using applicable test procedures or pro-
grams established by Lessor. If installation by Lessor is not included in the
Rent, acceptance shall be at the time of completion of final tests at Lessor's
plant. If installation by Lessor is included in the purchase price, acceptance
shall occur at the Installation site when Lessor demonstrates that the appliwMe
diagnostic or verification programs work properly. It installation Is scheduled
or delayed oy Lessee more than thirty (30) days after delivery, Lessee shall
be deemed to have accepted the Equipment on the thirty-first (31 at) day from
the date of shipment.
Return of Equipment to Lessor
Upon expiration of the term of any Equipment Schedule referencing this Agree-
ment (Or any renewal thereof), Lessee, at its own risk and expense, shag have
the Equipment packed for shipment in accordance with manufacturer's
specifications and shall immediately return the Equipment to Lessor In the
same condition as when delivered, ordinary wear and tear excepted, freight
prepaid to Lessor's nearest equipment remarketing facility within the comi-
nantal United States.
S. End of Term Options
Provided that no event of default is occuring upon expiration of the term of
any Equipment Schedule hereunder, Lessee shall have the right to exercise
one of the options to purchase or renew set forth in sald Equipment Schedule.
It Lessee notifies Lessor of its intention to return the Equipment upon expire.
tion of the initial or any renewal term of any Equipment Schedule, Lessee
shall remain responsible to pay Rent, and Rent shall continue to accrue, until
the Equipment being returned is received at Lessor's facility as described in
paragraph 5 above.
7. Warranty
Lessee shall have the benefit of applicable manufacturer's warranties cover-
ing the Equipment which are normally furnished to purchasers of identical
equipment manufactured by Lessor. THE WARRANTY REFERRED TO
ABOVE IS EXCLUSIVE AND NO OTHER WARRANTY WHETHER WRITTEN
OR ORAL IS EXPRESSED OR IMPLIED. LESSOR SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
S. Dieelabri of Damages
THE REMEDIES PROVIDED HEREIN ARE LESSEE'S SOLE AND
EXCLUSIVE REMEDIES. IN NO EVENT SHALL LESSOR BE LIABLE FOR
DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED ON CON-
TRACT, TORT OR ANY OTHER LEGAL THEORY.
The foregang limllagon of liabililyshall not applyin the event that any Lessor
product rented or sold hereunder is determined by a court of competent
jurisdiction to be defective and to have directly caused bodily injury, death
or property damage; Provided, that In no event shall Lessor's liability for pro-
party damage exceed the greater of 950,000 or the purchase price of the
specific product that caused such damage.
9. Copyrighted Material
Unless Otherwise stated in writing by Lessor, Lessor copyrighted material (soft-
were and printed documentation) may not be copied except for archival pur.
poses, to replace a defective copy or for program anon verification. If Lessor's
software is provided with Equipment, men Lessor's standard software terms
shall apply and said terms shall be incorporated herein by reference.
10. Identification; Paysonal Property
Provided Lasses compiles with and fulfills ail of the terms and conditions of
this Agreement and the applicable Equipment Schedule, Lessee shall have
the right to maintain possession of and use the Equipment for the full term
of the applicable Equipment Schedule. No other Fight, title Or Interest shall
pass to Lessee. Lessor (at its own expense) may require plates Or markings
to be affixed to or placed on the Equipment indicating that Lessor Is the owner.
Lessor and Lessee hereby confirm their Intent that the Equipment shall always
remain and be deemed personal property even though said Equipment may
hereafter become attached or affixed to real property.
11. Compliance With Laws; Texas
Lessee agrees to comply with all laws, regulations, and orders, relating to
this Agreement and any Equipment Schedule entered into hereunder. Lessee
also agrees to pay to Lessor when due, all license fees, assessments and
swiss, use, excise and other taxes, except for taxes based on lessor's income,
now or hereafter Imposed by any governmemai body or agency upon the
Equipment, or the possession, operation or use thereof.
12. Indemnity -
Lessee shall assume the risk of liability arising from or pertaining to the posses-
sion, operation, or use of the Equipment except to the extent such injuries -
am attributable to Lessor's negligence, and Lessee does hereby agree to
Indemnity, hold Lessor sate and harmless from and against, and convenams
to defend Lessor against anyand aft claims, costs, expenses, damages, and
Ifabiihiss arising therefrom. The Indemnities contained in this paragraph shall
survive the termination of this Agreement and any Equipment Schedule
executed hereunder.
13. Repairs
Lessee, at its own coat and expense, shall keep the Equipment in good repair,
condition and working Order and shall fumish all required parts, mechanisms,
devices and servicing- Such parts, mechanisms and devices shall immediately
become the property of Lessor and part of the Equipment for all purposes
hereunder.
14. Site Preparation and Installation
Lessee, at its expense, shall make all necessary site preparations for the In-
stallation of the Equipment, as provided In any applicable site preparation
manual for the Equipment, including, by way of illustration and not by limits -
tlon,,provisions for power supply and suitable protection from the elements.
Standard Installation fees, U any, fur the original installation of the Equipment
are included In the Rent. Any and all coals associated with removing Or
relocating the Equipment shall be bome by Lessee.
15. Use; Removal; Assignment By Lessee •
Lessee will cause the Equipment to be operated in accordance with any
applicable manufacturer's manuals or instructions, by competent and duly
qualified personnel only, in accordance with applicable Governmental regula.
tions, if any, and for business, medical, scientific, or educational purposes
only. Lessee agrees not to sell, assign, sublet, pledge, hypothecate or other-
wise encumber or suffer a lien upon or against any Interest In this Agreement,
any applicable Equipment Schedule, or the Equipment, or to alter or remove
the Equipment from its place of installation without Lessor's prior written con.
sent, which consent shall not be unreasonably withheld.
16. Assignment By Lessor
Lessee acknowledges that Lessor may sell and/or assign its Interest in the
Equipment, this Agreement or any applicable Equipment Schedule hereunder
to Lessor's wholly owned subsidiary, Hewlett- Packard Finance Company.
17. Loss or Damage
Lessee shall bear the entire risk of loss and damage to the Equipment from
any cause whatsoever from the date the Equipment is delivered to Lessee
until it is returned to Lessor's location as provided for in paragraph 5 above.
Lessee shall promptly notify Lessor of any lose or damage and no loss or
damage shall relieve Lessee of the obligation to pay Rent or any other obliga.
tion under this Agreement or any applicable Equipment Schedule hereunder.
In the event of loss or damage Lessee, at Lessor's option, shall either place
the Equipment in good condition and repair or pay Lessor the buyout option
price provided for in the applicable Equipment Schedule.
18. Insurance
Lessee Shall obtain and maintain liability insurance and Insurance against
loss or damage to the Equipment including, without fimitation, loss by fire
(including "Extended Coverage "), Melt and such other risks of loss as are
customarily Insured against on the type of Equipment, in such amounts, In
such form and with Such Insurers as may by reasonable. Upon request, Lessee
shall furnish to Lessor a Certificate of Insurance or other evidence to Lessor
that such insurance coverage is in affect. Lessor's statement or self- insurance
will satisfy the requirements of this paragraph.
19. Event$ of Default; Remedies
In the event Lessee fails to make payment of any Rental or other charges
due hereunder for a period of ten (10) days from the date due, or in the event
of any other breach of the terms and condlllons of this Agreement, any Equip-
ment Schedule entered into hereunder, or any other Agreement between the
parties hereto, or if any credit or other information submitted by Lessee to
Lessor is false or misleading in any material respect or in the event of an act
of Insolvency or bankruptcy by or against Lessee, Lessor may, at Its option,
do any one or more of the following: 0) declare all sums due and to become
due under this Agreement and the applicable Equipment Schedule
Immediately due and payable; (11) enter upon the premises where the Equip-
ment is located and take immediate possession of end remove the same; (iii)
sell any or all of the Equipment at public or private sale or otherwise dispose
of, hold, use or loose to others said Equipment or; (iv) exercise any other right
or remedy which may be available to Lasso under applicable law, Including
the right to recover demages for the breach hereof. No remedy referred to
herein is Intended to be exclusive but each should be cumulative and in addi-
tion to any of the remedies referred to above or otherwise available to Lessor
at law or in equity. No express or Implied waiver by Lasso of any default should
constitute a waiver of any other default by Lessee or a waiver of any of lessor's
rights. If any action is brought by either parry to enforce this Agreement or
any Equipment Schedule entered Into hereunder or to protect Its Interest in
the Equipment, the losing party agrees to pay the coats thereof including
reasonable attorney's fees and other costs of collection.
20. Valenta
Lessor shall, except as otherwise provided balm, defend or settle any claim
made or any suit or proceeding brought against Lessee 6o far as it is based
on an allegation that any Equipment furnished under this Agreement, or any
Equipment Schedule entered into hereunder, Infringes a patent of the United
States if notified promptly in writing and given Information, assistance and
the sale authority to defend or settle same (at Lessors expense) and Lessor
shall pay all damages and coats finally awarded therein against Lessee. In
case said Equipment is In such suit hold to Infringe and the use of said Equip-
ment is enjoined or, in the case of a settlement as referred to above, Lessor
- shall have the option, as Its own expense, to procure for the Lessee the right
to continue using said Equipment; or replace same with non - infringing Equip.
ment; or modify same so it becomes nonanfrloging; or terminate the applicable
Equipment Schedule and require the return of said Equipment, all without
Itartaty of lessee and Lessor to one another, o if a purchase Option has been
exercised, grant Lessee a credit for any monies paid, less a reasonable
amount for use of the Equipment, and accept return of the same. Lessor shall
have no liability for any Infringement of patents or trademarks resulting from
compliance with Lessee's designs, specifications or Instructions, modifica-
tions of said Equipment, use of said Equipment other than as specified In rele-
vant Lessor publications, Or use of said Equipment with equipment not sup-
plied by Lessor. The foregoing states the entire liability of Lessor for patent
Infringement by said Equipment.
21. Governing Law
This Agreement and any Equipment Schedule entered into hereunder shall
be governed by and construed in accordance with the laws of the state of
Calgomia. Nothing herein shall be deemed to preclude or prevent Lessor from
bringing any action or claim to enforce the provisions of this Agreement or
any Equipment Schedule entered into hereunder in any appropriate state or
forum.
22. Financing Statements -
LESSEE HEREBY NOMINATES AND APPOINTS LESSOR AS ITS
ATTORNEY -IN -FACT FOR THE SOLE PURPOSE OF EXECUTING ON
LESSEE'S BEHALF FINANCING STATEMENTS (AND ANY APPROPRIATE
AMENDMENTS THERETO) UNDER THE PROVISIONS OF THE UNIFORM
COMMERCIAL CODE, FOR PROTECTIVE PURPOSES, RELATIVE TO THIS
AGREEMENT AND ANY EQUIPMENT SCHEDULES ENTERED INTO
HEREUNDER.
23. Miscellaneous
This Agreement, together with the above referenced Corporate Purchase
Agreement, any Equipment Schedules executed hereunder, any referenced
attachments shall constitute the entire underetanding between the parties and
supersedes any previous communications, represerdatlons, or agreements
whether verbal or written. No change or modifications of any of the terms or
conditions herein shall be valid or binding on etther.party unless made in
writing and signed by an authorized representative of each parry. Any provl-
slon of this Agreement or any Equipment Schedule hereunder which is
unenforceable in any jurisdiction shall, as to such jurisdiction, be Ineffective
to the extent of such prohibition or unenforceability without Invalidating the
remaining provisions hereof and any such prohibition or urrenforoeability in
any jurisdiction shag not invalidate or render unenforceable such provision
In any other jurisdiction. The captions set forth herein are for convenience
only and shall not define or limit any of the terms hereof. Any notices or
demands required to be given hereunder shall be given in writing and by
regular mail, except for notices of default which shag be sent by certified mail.
By execution hereof, the signer hereby cerlifies that helshe has read this Agreement and the attached
ment on behalf of Lessee.
LESSOR: HE TT -PA COMPAN
BY:
anarvzeo 99 ^arvre
NAME/TITI.E: Timothy J. Gore Area Bust/
LESSEE:
BY:
and that he /sire is duly authorized to execute this Agree,
C. Cox. Jr
j[�HEWLETT - "A[ - �_ - -�- UV
P/ PACKARO C ..T - FRDlLA -1 12.86
.......... .
H EWLETT- PACO KARD
STATE /LOCAL GOVERNMENT RIDER
Equipment Schedule and Payment Agreement #
Master Agreement #
The provisions of the aforementioned Agreement notwithstanding, Hewlett- Packard ( "HP ") and Customer mutually agree that:'
1. AVAILABILITY OF FUNDS, NONAPPROPRIATION OF FUNDS
Customer reasonably believes that funds can be obtained sufficient
to pay sit monies due during the Agreement Term and hereby
covenants that it will do all things lawfully within its power to obtain,
maintain and properly request and pursue funds from which the
Agreement Payments may be made, including making provisions for
such payments to the extent necessary in each budget submitted
for the purpose of obtaining funding, using its bona fide best efforts
to have such portion of the budget approved and exhausting all
available administrative reviews and appeals in the event such por-
tion of the budget is not approved. It is Customer's intent to make
Agreement Payments for the full Agreement Term if funds are legally
available therefor and in that regard Customer represents that the
use of the Equipment is essential to its proper, efficient and economic
operation.
In the event no funds or insufficient funds are appropriated and
budgeted or are otherwise legally available by any means whatsoever
in any fiscal period for Agreement Payments due under this Agree-
ment, then the Customer will immediately notify HP or its assigns
of such occurrence and this Agreement shall terminate on the last
day of the fiscal period for which appropriations were received without
penalty or expense to Customer of any kind whatsoever, except as
to the portions of Agreement Payments herein agreed upon for which
funds shall have been appropriated and budgeted or otherwise
available. In the event of such termination, Customer agrees to
peaceably surrender possession of the Equipment to HP or its assigns
on the date of such termination, packed for shipment In accordance
with manufacturer specifications and freight prepaid and insured to
any location in the continental United States designated by HP. HP
will have all legal and equitable rights and remedies to take posses-
sion of the Equipment.
Notwithstanding the foregoing, Customer agrees (1) that it will not
cancel this Agreement under the provisions of this paragraph if any
funds are appropriated to it, or by it, for the acquisition, retention or
operation of the Equipment or other Equipment performing functions
similar to the Equipment for the fiscal period in which such termina-
tion occurs or the next succeeding fiscal period thereafter and (it)
that it will not during the Agreement Term give priority in the applica-
tion of funds to any other functionally similar Equipment. This
paragraph will not be construed so as to permit Customer to terminate
this Agreement in order to acquire any other Equipment or to allocate
funds directly or indirectly to perform essentially the same applica-
tion for which the Equipment is intended.
2. INCOME TAX INDEMNITY
This Agreement has been entered into on the basis that HP or any
Assignee of HP shall claim that the Interest paid hereunder is ex-
empt from Federal income tax under Section 103(a)(t) of the Internal
Revenue Code of 1954 as amended. Should the United States
Government disallow, eliminate, reduce, recapture, or disqualify, In
whole or in part, any benefits of such exemption as a result of any
acts or omissions by Customer or as a result of the inapplicability,
of such section at the time this Agreement is entered Into because
of the status of Customer, Customer shall then indemnity HP by.pay-
ment, at HP's election, of either:
(a) Supplemental Payment to HP during the remaining period
of the Agreement Term in an amount necessary to permit HP to
receive (on an after tax basis over the full term of the Agreement)
the same rate of return that HP would have realized had there
not been a loss or disallowance of such benefits, together with
the amount of any interest or penalty which may be assessed
by the governmental authority with respect to such loss or
disallowance; or
(b) A lump sum payable upon demand to HP which shall be equal
to the amount necessary to permit HP to receive (on an after tax
basis over the full term of the Agreement) the same rate of return
that HP would have realized had there not been a loss or
disallowance of such benefits together with the amount of any
interest or penalty which may be assessed by the governmental
authority with respect to such loss or disallowance.
3. AUTHORITY AND AUTHORIZATION
Customer represents and warrants that: (1) Customer is a fully con-
stituted political subdivision or agency of the state or local govern-
mental unit where the Equipment is located; (ii) the execution, delivery
and performance by the Customer of this Agreement have been duly
authorized by all necessary action on the part of Customer; and (iii)
this Agreement constitutes a legal, valid and binding obligation of
the Customer enforceable in accordance with its terms. Customer
agrees that (i) it will do or cause to be done all things necessary to
preserve and keep the Agreement in full force and effect, (it) it has
complied with all bidding requirements where necessary and by due
notification presented this Agreement for approval and adoption as
a valid obligation on its part, and ()ii) it has sufficient appropriations
or other funds available to pay all amounts due hereunder for the
current fiscal period.
4. NON - ASSIGNABILITY BY HP
HP agrees that it shall not and will not sell, discount, factor,
hypothecate or otherwise dispose of its Interest in the Equipment
and/or the above- referenced Equipment Schedule and Payment
Agreement.
5. INTEREST RECOGNITION
Customer and HP recognize and agree that a portion of the rent here-
under is interest based on the total equipment cost as shown on the
equipment schedule and calculated at the rate of seven and
percent( LB0y %)perannum.eight hundred seven
thousandths
If this Rider is used in connection with an Installment Sale Agreement, the term, "HP" shall mean and include the term "Seller' and the term "Customer' shall man
and include the term "Buyer If this Rider is used in connection with a Lease Agreement, the term "HP" shall mean and include the term "Lessor', and the term
"Customer" shall mean and include the temi "Lessee ".
b HEWLETT
P PACKARD FROMIDER- 112 -86
• 0
EARLY BUYOUT / UPGRADE SCHEDULE
CUSTOMER : CITY OF NEWPORT BEACH
LEASE '4 4124 -
TYPE OF LEASE STATE /LOC GOVT ( 84 MONTHS)
LEASE RATE . 1.549 MONTHLY
EFFECTIVE DATE OF RATES USED 7 -1 -87
PROPERTY TAX NOT INCLUDED IN RATE
* BUYOUT IS
BUYOUT IS 88.35% AFTER PAYMENT 13 * BUYOUT IS
BUYOUT IS 86.39% AFTER PAYMENT 1S * BUYOUT IS
BUYOUT IS 84.40% AFTER PAYMENT 17 * BUYOUT IS
BUYOUT IS 82.39% AFTER PAYMENT 19 * BUYOUT IS
BUYOUT IS 80.35% AFTER PAYMENT 2t * BUYOUT IS
BUYOUT IS 78.29,". AFTER PAYMENT 23 * BUYOUT IS
BUYOUT IS 76.19% AFTER PAYMENT 25 * BUYOUT IS
BUYOUT IS 74.07% AFTER PAYMENT 27 * BUYOUT IS
BUYOUT IS 71.93% AFTER, PAYMENT 29 * BUYOUT IS
BUYOUT IS 69.75% AFTER PAYMENT 31 * BUYOUT IS
BUYOUT IS 67.55%. AFTER PAYMENT 33 * BUYOUT IS
BUYOUT IS 65.31% AFTER PAYMENT 35 * BUYOUT IS
BUYOUT IS 63.05% AFTER PAYMENT 37 * BUYOUT IS
BUYOUT IS 60.76% AFTER PAYMENT 39 * BUYOUT IS
BUYOUT IS 58.44% AFTER PAYMENT 41 * BUYOUT IS
BUYOUT IS 56.09% AFTER, PAYMENT 43 * BUYOUT IS
BUYOUT IS 53.70% AFTER PAYMENT 45 * BUYOUT IS
BUYOUT IS 51,29% AFTER PAYMENT 47 * BUYOUT IS
BUYOUT IS 48,84% AFTER PAYMENT 49 * BUYOUT IS
BUYOUT IS 46.37% AFTER PAYMENT St * BUYOUT IS
BUYOUT IS 43.86% AFTER PAYMENT 53 * BUYOUT IS
BUYOUT IS 41.32% AFTER PAYMENT 55 * BUYOUT IS
BUYOUT IS 38.74% AFTER PAYMENT 57 * BUYOUT IS
BUYOUT IS 36.13% AFTER PAYMENT 59 * BUYOUT IS
BUYOUT IS 33.49% AFTER PAYMENT 61 * BUYOUT IS
BUYOUT IS 30.81% AFTER PAYMENT 63 * BUYOUT IS
BUYOUT IS 28.10% AFTER PAYMENT SS * BUYOUT IS
BUYOUT IS 25.35% AFTER PAYMENT 67 * BUYOUT IS
BUYOUT IS 22.57% AFTER PAYMENT 69 * BUYOUT IS
BUYOUT IS 19.75% AFTER PAYMENT 71 * BUYOUT IS
BUYOUT I5 16.89% AFTER PAYMENT 73 * BUYOUT IS
BUYOUT IS 14.00% AFTER PAYMENT 7S * BUYOUT IS
BUYOUT IS 11.06% AFTER PAYMENT 77 * BUYOUT IS
BUYOUT IS 8.09% AFTER PAYMENT 79 * BUYOUT IS
BUYOUT IS S.08% AFTER PAYMENT 81 * BUYOUT IS
BUYOUT IS 2.04% AFTER PAYMENT 83 * BUYOUT IS
89.32% AFTER PAYMENT 12
87.38% AFTER PAYMENT 14
85.40% AFTER PAYMENT 16
83.40% AFTER.PAYMENT 18
81.37% AFTER PAYMENT 20
79.32% AFTER PAYMENT 22
77.24% AFTER PAYMENT 24
75.14% AFTER PAYMENT 26
73.00% AFTER PAYMENT 28
70.84% AFTER PAYMENT 30
68.65% AFTER PAYMENT 32
66.43% AFTER PAYMENT 34
64.19% AFTER PAYMENT 36
61.91% AFTER PAYMENT 38
59.60% AFTER PAYMENT 40
57.27% AFTER PAYMENT 42
54.90% AFTER PAYMENT 44
52.SO% AFTER PAYMENT 46
50.07% AFTER PAYMENT 48
47.61% AFTER PAYMENT 50
45.12% AFTER PAYMENT 52
42.59% AFTER PAYMENT 54
40.03% AFTER PAYMENT 56
37.44% AFTER. PAYMENT 58
34.81% AFTER PAYMENT 60
32.15% AFTER PAYMENT 62
29.46% AFTER PAYMENT 64
26.73% AFTER PAYMENT 66
23.96% AFTER PAYMENT 68
21.16% AFTER PAYMENT 70
18.32% AFTER PAYMENT 72
15.45% AFTER PAYMENT 74
12.53% AFTER PAYMENT 76
9.58% AFTER PAYMENT 78
6.59% AFTER PAYMENT'80
3.57% AFTER PAYMENT 82
1..00 AFTER PAYMENT 84
THE ABOVE BUYOUT PERCENTAGES ARE PREDICATED UPON THE
FOLLOWING ASSUMPTIONS :
*THAT NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING
AT THE TIME THE BUYOUT IS QUOTED
*THAT ALL RENTS DUE ARE CURRENT
*THE ABOVE PERCENTS APPLY TO THE AMOUNT FINANCED ONLY AND
00 NOT INCLUDE APPLICABLE TAXES IF ANY
I PORT PURCHASE ORDER
e Ay OF NEWPORT BACH
I U S 3300 NEWPORT BOULEVARD
+w NEWPORT BEACH, CALIFORNIA 92663
oq<�FORN�r PHONE: (714) 644 -3118
fTR SERVICES REOUIRED"d �'�� r €.� r.�s '` UNI7 PRICE v �` TOTAL
xa
0.
No. 30140
INVOICE IN DUPLICATE
THIS ORDER NUMBER MUST APPEAR
ON ALL INVOICES. SHIPPING NOTICES,
BILLS OF LADING, EXPRESS RECEIPTS
AND PACKAGES.
DELIVERY TICKETS SHALL INCLUDE
UNIT PRICE. -
— DATE August 1 4, 1987
VENDOR ,;, , .. DEPT FSTIarlca /Data ProcessLnq
SHIP TO
C Deltasystems.
2629 Redwing Road, Suite 330
.Fort Co TnG., Colorado 80�2n
AttaBtion: Davd'Sonnen
ae .il v i m f yr. H � 9 _. ( f `A.3- � a'4"�a.�'s wNa P ° ? ? ``}''" .� i cF `f3 � wk � - s a .. ♦ � F s.
CpIPT #ON OF A iC e�
II O�IJRVIIn II Vii IOA.
Exhibit M
OFFICE COPY
No. 30146
.a
Provide consulting services for the development of a
system amplanentation together with a working design
doctrtent of the City's new Geo -Based ranagarYnt System.
,..
NOT 2b .
15;1000.00
As per your proposal dated JUly.27, 1937.
NME: Attached "Addendum .to Purrhase order".
FOR CITY
USE ONLY
IMPORTANT
The Articles covered by this Purchase Order or Contract must con-
CITY OF NEWPORT BEACH
CODE
AMOUNT
?0393425
15,0 0 U. UO
orm to applicable Cal =OSHA Standards. and /or other appropriate
laws egulations, rules, and codes of the Federal Government and
late of California.
Show as a separate item any retail sales tax, use tax or Federal tax
2
applicable to this purchase.
FRANK H. CLARKE III .
This order subject to California sales tax.
All purchases and transportation charges are exempjj[p Federal
PURCHASING AGENT
excise tax. Y � !Sl�
,E, ����`
NOTE All alto I I us a Prepaid and
shown as a separate item on the invoice. Do not include Federal
II O�IJRVIIn II Vii IOA.
Exhibit M
OFFICE COPY
No. 30146