The URL can be used to link to this page

Home My WebLink AboutReso 1984-11712 RESOLUTION NO. 11712 RESOLUTION OF THE CITY COuNCIL OF THE CITY OF CHULA VISTA WAIVING BID REQuIREMENTS, APPROVING AGREEMENTS WITH BURROUGHS CORPORATION FOR PURCHASE AND LEASE OF DATA PROCESSING EQUIPMENT, AND AuTHORIZING TRANSFER OF FUNDS The City Council of the City of Chula Vista does hereby resolve as follows: WHEREAS, Section 2.56.170 of the Chula Vista Municipal Code authorizes the Purchasing Agent to dispense with the requirements of bidding when the City Council determines that due to special circumstances, it is to the City's best interest to purchase a commodity or enter into a contract without compliance with the bidding procedure, and WHEREAS, support for the waiver of said bidding proce- dures stems from the following: 1. Existing programs are 100% compatible with the proposed B-2925 processor. 2,_ Burroughs will forgive the remaining balance owed for our existing B-2805 processor. 3. Peripheral equipment currently owned and operating is compatible and will be used with proposed equipment. 4. Burroughs is the only manufacturer which offers a processor and software compatible with existing peripheral hardware and application programs. 5. The B-2925 is not available through secondary used market or other sources. WHEREAS, staff has negotiated a contract with Burroughs for the acquisition of the central processor at a purchase price of $152,561.62 including equipment, software and sales tax, and an operating lease for the cardreader and NRZ compatibility equipment, and WHEREAS, it has been determined that by changing internal procedures and by adding an additional $1,900 terminal, the purchase of the $11,500 cardreader can be avoided and it is necessary to transfer funds within the Data Processing budget for said terminal. -1- NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby waive bid requirements and approve the agreements with Burroughs Corporation, for purchase and lease of data processing equipment, a copy of which is attached hereto and incorporated herein by reference as if set forth in full. BE IT FURTHER RESOLVED that the City Council of the City of Chula vista does hereby authorize the transfer of approximately $1,900 from the Data Processing supplies and services budget to the "other equipment" account in Capital Outlay required for the separate purchase of an additional terminal to avoid the need for a card reader. Presented by Approved as to form by ames R. Thomson, Director of Management Services R- 11712 -2- ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF LA VISTA, CALIFORNIA, this 84 ,by the following vote, to-wit: 24th day of July s: Councilmen Moore, McCandliss, Scott, Cox 'ES: Councilmen None iTAIN: CoI.flcilmen None ENT: Councilmen Malcolm Mayor lOST ~/ ??7(~g,Ay Y City Clerk i~ City of Chula Vista TE OF CALIFORNIA ) INTY OF SAN DIEGO ) s s. , OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California, HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 11712 ,and that the same has not been amended or repealed. ED (seal) City Clerk ,660 Burroughs Corporation... m ............ . .. . - - - . - . ..-....,.... BUS~SSMAC~SGROUP AGREEMENT FOR EQUIPMENT LEASE AND MAINTENANCE DATA PROCESSING PRODUCTS USTOMER City of Chu1a Vista (Finn Name) 276 Fourth Avenue (Numbe~ (S1r8et) Chu1a Vista, California 92010 (Stale) (Zip Code) (City) . fRROUGHS CORPORATION, Business Machines Group, Burroughs Place, Detroit, Michigan 48232 ("BURROUGHS"), by its :eplance agrees to furnish and CUSTOMER agrees to accept for lease the equipment set forth in this Agreement. REGULAR TOTAL REGULAR ,M MODEL AND MONTHLY MONTHLY D. DESCRIPTION QUANTITY CHARGE EACH CHARGE B 2909-91 OlP Base 1 $412.00 $412.00 B 9115 300 CPM Card Reader 1 344.00 344.00 B 2395-93 NRZ Mag Tape OlP 1 170.00 170.00 B 211 0-90 Card Reader OlP 1 122.00 122.00 B 9915 51 Column Read Feature 1 26.00 26.00 tal One-Time Field Installation Charge for All Data Sets and Add-on Equipment $ Zero medial Maintenance Service Plan Ih Section 6(c). 59 13 % Reduction to Regular Monthly Rental-All in accordance ITIAL LEASE PERIOD: 12 MONTHS. ,is Agreement (inclnding the agreements incorporated by reference in Section 21 constitutes the entire agreement, under. IIlding and representations express or implied, between the CUSTOMER and BURROUGHS with respect to the equip- mt and supersedes all prior communications including all oral and written proposals. CUSTOMER BY ITS SIGNATURE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO ALL ITS TERMS AND CONDITIONS. ;CEPTED: By & GENERAL MANAGER 3 0 .lilL 198L orized Signature Mayor of t e City of Chu1a Vista Title July 25, 1984 Date Date ;:CTIVE DATE Agreement shall be effective on the date accepted and :uted by an authorized representative of BUR- fGHS, and shall continue in effect until terminated ac- ing to its terms. , OF THE LEASE .al period of the lease of the equipment shall be as ,nh on the face page and shall begin on the date ren- .tart on the last unit of the equipment initially ordered installed and shall end upon completion of the initial , period. The term of the lease shall continue after the 1 lease period until terminated at the end of any calen- nonth by either party giving the other party at least (60) days prior written notice stating the termination [VERY 'ery will be made as soon as reasonably possible by ROUGHS. 'ALLATION 'he initial installation will be performed by B UR- lOUGHS during BURROUGHS normal working hours 1 no additional charge. If installation or removal of the quipment by BURROUGHS.is precluded by loc!'i iW, union agreement or othC1"Wlse, BURROUGHS will upervise the installation or removal and CUSTOMER nn bear any additional costs caused thereby. :USTOMER sball prepare the site to meet BUR- tOUGHS installation specifications which have been ,rovided to CUSTOMER and the site shall be ready to eceive the equipment at the time scheduled for deliv- 'ry. Environmental ~onditions meetin~ the specifica- ions shall be contlnuously mamtamed by CU S- 'OMER. ['!NATION AREA TRANSPORTATION ROUGHS will arrange for transportation and drayage ld from the premises at which the equipment is to be and CUSTOMER shall pay transportation and . charges (Destination Area Transportation Charge) :mug to BURROUGHS published prices in effect at ime. In addition, if delivery to or from the installation within the CUSTOMER'S premises cannot be made equipment normally employed by the equipment car- any costs for special rigging (including the cost of in- Ice) shall be paid by CUSTOMER. RGES AND REMEDIAL MAINTENANCE PLANS 'or equipment and maintenance, CUSTOMER agrees , pay BURROUGHS rental each month in advance, eginning on the day following that on which each omponent of equipment is installed ready for use. ~entals and all other charges shall be paid no later than ,n (10) days after receipt of invoice. CUSTOMER I>all pay a late payment charge computed at the rate of ne and one-half percent (1\2%) per month on the un- aid amounts for each calendar month (or fraction ,ereof) that such payment is in default. he Regular Monthly Charge reflects the charge appli- ible for the initial lease term set forth on the face age and remedial maintenance service on a twenty- JUr (24) hour basis, Monday through Sunday, exclud- Lg BURROUGHS recognized holidays (Plan 724), un- .ss one of the following optional remedial maintenance ,rvice plans is selected. ptional remedial service plans are set forth below: LAN 59: BURROUGHS will provide remedial .aintenance service during any nine (9) consecutive )urs from 7:00 A.M. to 6:00 P.M., Monday through riday agreed to by the parties, excluding BUR- OUGHS recognized holidays. '.N 516: BURROUGHS will provide remedial .Jtenance service during any sixteen (16) consecu- ve hours, Monday through Friday agreed to by the uties, excluding BURROUGHS recognized holidays. LAN 716: BURROUGHS will provide remedial .aintenance service during any sixtcen (16) consecu- ve hours, Monday through Sunday agreed to by the uties, excluding BURROUGHS recognized holidays. (d) The Regular Monthly Charge shall entitle CUSTOMER to unlimited systems use, except for time required by BURROUGHS for preventive or remedial mainte- nance. (e) BURROUGHS may increase or decrease the net monthly charges for the equipment installed under this Agreement (including components, and additional sys- tem(s) added under Section 9) from time to time after the first year of the lease but not more than once dur- ing any lease year. The amount of the changes shall not exceed the difference between the monthly mainte- nance rate in effect on the date the Agreement was ac- cepted for the maintenance service to be provided hereunder and such monthly maintenance rate in effect on the effective date of such change (as established by BURROUGHS price book and its stated policy). Notice of each change will be given to CUSTOMER in writing at least sixty (60) days before the effective date of the change. (I) After the expiration of the initial lease period, BUR- ROUGHS may increase or decrease the net monthly charges for equipment (including components, and additional system(s) added under Section 9) to BUR- ROUGHS regular one year monthly lease rate then in effect by giving CUSTOMER at least sixty (60) days prior written notice of any increase or decrease, unless a new extended term lease agreement is entered into with BURROUGHS. 7. EQUIPMENT MAINTENANCE (a) Preventive Maintenanee and Engineering Changes BURROUGHS shall install mandatory and optional engineering changes and provide preventive mainte- nance and parts to maintain equipment in good operat- ing condition, as determined by BURROUGHS. This service will be provided during such hours between 0700 and 2400, Mondays through Fridays, excluding BURROUGHS recognized holidays, as are within the Remedial Maintenance Plan identified on the face page of this agreement. CUSTOMER will allow BUR- ROUGHS full access to the equipment to provide the necessary maintenance. (b) Remedial Maintenance (I) BURROUGHS will, under the designated plan, provide remedial maintenance for each system. All components located at the same site and intercon- nected by BURROUGHS' signal and power cables, or their equivalent, are required to be subject to the same designated Remedial Maintenance Plan. BURROUGHS shall provide CUSTOMER with remedial maintenance under Plan 59 for all other equipment delivered hereunder which is not so in- terconnected by BURROUGHS' signal and power cables, unless CUSTOMER procures additional coverage at BURROUGHS' applicable charges therefor. (2) If CUSTOMER requests remedial maintenance out- side of the hours specified in the applicable Reme- dial Maintenance Plan BURROUGHS shall provide same, subject to the availability of field engineers, at its hourly rates then in effect. Travel time to and from CUSTOMER's premises will be included in these charges. (e) Attachments CUSTOMER agrees not to employ additional attach- ments, features, or devices to the equipment, make al- terations to the equipment, or permit the maintenance of the equipment by other than BURROUGHS' per- sonnel without the written consent of BURROUGHS. BURROUGHS sbaIl not be liable for loss or damage to CUSTOMER resulting therefrom, and CUSTOMER sball be liable to BURROUGHS for any damage or re- pair costs incurred by BURROUGHS as a consequence thereof. (d) F1e1d Engineering Space CUSTOMER will provide adequate working space within reasonable distance of the equipment for use of BURROUGHS field engineering personnel and facilities for storage and safekeeping of test equipment and spare parts. ,) SnppUes (1) Equipment maintenance charges do not include the furnishing of supplies (such as ribbons, cards, paper tape, paper forms, or magnetic tape.) Only snpplies which meet BURROUGHS specifications shall be used when the performance or maintenance of the equipment may be affected. (2) Ribbons supplied by BURROUGHS at established prices will be installed free of charge when other service work is being rendered. An appropriate charge will be made if a special trip is required. ) Other Services In addition to the maintenance provided herein, BUR- ROUGHS offers other maintenance, under separate agreements at applicable charges. CUSTOMER may contract with BURROUGHS for such additional cover- ages or services, as available, under written m.,. agreements. CUSTOMER and BURROUGHS agree that such additional services. cannot be the subject of, and will not be provided by, an oral agreement. hu__n___ --:-..'-'--,....,,-~~'-- iUBSTITUTION OF EQUIPMENT lURROUGHS reserves the right to substitute equipment mder this Agreement, provided it is equal to or greater in ,apacity than the equipment specified herein. BUR- tOUGHS may replace equipment when the condition and .ervice requirements of it so indicate, in BURROUGHS ,ole opinion. illDITIONAL EQUIPMENT :a) CUSTOMER may elect to lease system(s) or compo- nent(s) in addition to those listed on the face hereof and, subject to availability, BURROUGHS agrees to deliver such additional system(s) or component(s) under the standard terms of this Agreement. [b) The lease of additional component(s) or system(s) may be effected by the issuance of an order which is subject to acceptance by BURROUGHS. The initial lease period of such component(s) or system(s) shall be as agreed to in the written order accepted by BUR- ROUGHS. All charges for additional component(s) or system(s) shall be those in effect when the written order, as provided in this paragraph 9, is placed. (c) The right of CUSTOMER to add system(s) under the standard terms of this Agreement shall terminate three (3) years after the date of CUSTOMER'S execution of this Agreement. All orders for additional component(s) or system(s) shall refer to and be subject to the standard terms and conditions of this Agreement and all other terms and conditions of the written order shall be void unless agreed to in a separate instrument ac- cepted by an authorized representative of BUR- ROUGHS. TITLE Title to all equipment installed hereunder is and at all times shall remain in BURROUGHS. BURROUGHS may re- move the equipment at any time after the termination of the Agreement. The equipment is leased for operation at the place 9f instal1ation and CUSTOMER shall not remove the equipment to another location without the prior written C9nsent of BURROUGHS. TAXES CUSTOMER shall pay BURROUGHS any tax (except tax based on net income and personal' property tax on leased equipment) on the Agreement, on or measured by the . prices, other charges, the equipment, program products, and services furnished, or their use, however designated, levied or based, whenever BURROUGHS must pay and/or collect the tax from CUSTOMER according to applicable law, as interpreted by the departmental authorities 9f the taxing unit. It shall be CUSTOMER'S sole obligation after payment to BURROUGHS to challenge the applicability of any tax. DAMAGES AND RISK OF WSS .,Except as otherwise stated in this Agreement, CUS- TOMER shall not be responsible to BURROUGHS for any .. -damage or physical loss to the equipment unless the loss or damage is due to nuclear reaction, nuClear radiation or radioactive contamination arisina: out of the use bv CDS- TOMER of radi9active materials or the loss or charge is due to the fault or negligence of CUSTOMER for causes reasonably within CUSTOMER'S control. 13. PATENT INDEMNITY (a) Except as otherwise stated in this Agreement, BUR- ROUGHS shall defend or settle any suit or proceeding bro,:,ght against CUSTOMER based on a claim that any eqwpment made to BURROUGHS design constitutes an ~gement of any existing United States patent, prOVIded BURROUGHS is notified promptly in writing and is given complete authority and information re- quired for the defense, and BURROUGHS shall pay all damages and costs awarded therein against CUS- TOMER, but shall not be responsible for any cost, ex- pense or compromise incurred or made by CUS~ TOMER without BURROUGHS prior written consent. [b) If any equipment is, in BURROUGHS opinion, likely to or does become the subject of a claim for patent in- fringement, BURROUGHS may at its option and ex- pense procure for CUSTOMER the right to continue using the equipment, or modify it to become non. infringing, but if BURROUGHS is not reasonably able to modify or otherwise procure for CUSTOMER the right to continue using it, BURROUGHS will remove the equipment and refund to CUSTOMER the amount paid in excess of a reasonable rental for past use. (c) BURROUGHS shall not be liable for any infringement or claim thereof based upon use of the equipment in combination with other equipment or with software Dot supplied by BURROUGHS or with modifications made by CUSTOMER. (d) The foregoing states the entire liability of BUR- ROUGHS to CUSTOMER arising from patent infringe- ment. 14. WARRANTY (a) No representation or other affirmation offact, including b~~ Dot limited to statements regarding capacity, suita- bility for use, or performance of the equipment shall be or be deemed to be a warranty by BURROUGHS for any purpose, nor give rise to any liability or obligation of BURROUGHS whatsoever. (b) EXCEPT AS SPECIFICALLY PROVIDED IN TInS AGREEMENT, THERE ARE NO OTHER WAR- RANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WAR- RANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. (c) In the event of employment by CUSTOMER of any non-BURROUGHS attachment, feature or device on the equipment, or any part thereof, furnished by BUR- ROUGHS hereunder, which has not been approved in writing by BURROUGHS, BURROUGHS shall not be liable under this Agreement. The approval of the use of any non-BURROUGHS attachment, feature or device shall not be deemed to be a representation, warranty, or understanding by BURROUGHS regarding that non-BURROUGHS equipment including its perform- ance in conjunction with the BURROUGHS equip- ment. 15. LIMITATION OF LIAB1LITY (a) IN NO EVENT SHALL BURROUGHS BE UABLE FOR LOSS OF PROFITS, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARlSING OUT OF ANY BREACH OF THE AGREEMENT OR OBLI- GATIONS UNDER THE AGREEMENT. (b) BURROUGHS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY, INSTALLATION OR FURNISHING OF THE EQUIPMENT OR SERVICES UNDER THE AGREEMENT. (c) CUSTOMER shall assume full responsibility for the overall effectiveness and efficiency of the operating environment in which BURROUGHS equipment and software are to function. (d) No action arising out of any claimed breach of the Agreement or transactions under the Agreement may he hrnnlJ'ht hv pit},.... T'lQrtu .....".... t'hQT'I h..,,, {." u."",..., O:U'L....~ UoI... .......~,.,... w., ......_._... .~.<..., ..............-_.... 'h"._ '~-'J ...........n... ROUGHS liability for loss or damage arising out of any breach of this Agreement shall not exceed a refund of rental theretofore paid under this Agreement. '~'l.fiNATION . addition to the termination rights provided in Section , this Agreement may be terminated by ~ther party at any time upon default by the other party if the default is not corrected within sixty (60) days after receipt of written notice. The written notice must set forth par- ticulars of the alleged default. BURROUGHS may ter- minate this Agreement if.CUSTOMER is in default in payment of any amount due for a period of thirty (30) days. ) If the CUSTOMER shall default in payment of any monies due, or any other default is not corrected within the period set forth above, then BURROUGHS, at its option may enter upon and remove the equipment from CUSTOMER'S prentises. ) Upon request, CUSTOMER shall assemble the equip- ment and make it available to BURROUGHS at. a place which is reasonably convenient to both parties and to permit and assist BURROUGHS in effecting the re- taking and removal of the equipment. ) 10 the event BURROUGHS cancels this Agreement for default by CUSTOMER, BURROUGHS has the right to declare the entire amount to be paid under this Agreement for the initia1lease period to be immediately due and payable less any amount previously paid by CUSTOMER. ) The remedies provided herein shall be cumulative and shall be in addition to llil other remedies provided by law or equity. JRCHASE OPTION IT one and three year leases. CUSTOMER may exercise l"Ulrchase option under the terms of the Purchase Option ,dum, if included under Section 21. ;SIGNMENT JRROUGHS may assign this Agreement and convey its :erest in the equipment, or assign the right to receive yments without the CUSTOMER'S consent, provided .t BURROUGHS obligations to CUSTOMER shall not any way be dintinisbed. CUSTOMER may not assign .s Agreement without BURROUGHS prior written con- nt. 1M NUMBER CHECK CUSTOMERS INITIAL 1906740 191 2763 1906724 1906849 1904372 1906773 1.:1. rAVUAaJ.YJ. rAV.LJ\J'L. J..:lI (a) All program products furnished by BURROUGHS, in- cluding program products jointly developed by BUR- ROUGHS and CUSTOMER, shall be subject to BUR- ROUGHS Program Products License, which is incor- porated herein by reference. CUSTOMER shall be re- sponsible for determining appropriate use and limita- tions of the program products in its operations. (b) In the event tbat customer makes use of any software programming in connection with the equipment supplied hereunder, which is not provided by BUR- ROUGHS, CUSTOMER acknowledges that BUR- ROUGHS has made no representation or warranties with respect to any non-BURROUGHS software, its performance on the BURROUGHS equipment, or the service to be provided with respect to such nOD- BURROUGHS software, and BURROUGHS shall incur no liability to CUSTOMER arising out of the use of such non-BURROUGHS software or the furnishing of such services. CUSTOMER acknowledges that no BURROUGHS software is being furnished to CUS- TOMER by BURROUGHS except pursuant to sepa- rate written license agreements between CUSTOMER and BURROUGHS. 20. GENERAL (a) No modifications or amendment to this Agreement and no waiver of- any provisions shall be valid unless in writing, signed by duly authorized representatives of the parties. Any written order or other instrument is. sued by CUSTOMER before or after the effective date of this Agreement pertaining to the equipment or serv- ices provided under this Agreement shall be void, ex- cept as otherwise provided in this Agreement. (b) In the event of any change to the preprinted Terms and Conditions of this Agreement, the duly authorized representative of BURROUGHS is the Vice President and General Manager of The Region. (c) This Agreement shall be governed by the laws of the state in which the equipment ordered herein is origi. nally instal1ed. 21. OTHER APPliCABLE AGREEMENTS The following BURROUGHS agreements are by this refer- ence incorporated in this Agreement. if so checked and initialed by CUSTOMER. TlTLE OF AGREEMENT AGREEMENT FOR SYSTEMS SERVICES DESCRIPTION OF SYSTEMS SERVICE PROGRAM PRODUCTS LICENSE AND SUPPORT AGREEMENT LIST OF ADDITIONAL EQUIPMENT PURCHASE OPTION ADDENDUM Additional Terms and Conditbns ".'M_ ,n_... _u.' . . "~." Burroughs Corporation m ADDITIONAL TERMS AND CONDITIONS CUSTOMER City of Chula Vista Date BURROUGHS and CUSTOMER hereby amend the Agreement by adding the fol- lowing terms and conditions, consisting of paragraphs 1 through -L, on pages 1 through 1 1. These added terms and conditions shall apply only to the components, equip- ment and system(s) initially ordered under the Agreement and shall not apply to any additional or replacement components, .equipment or system(s) ordered under the Agreement. 2. Ninety days after delivery and with thirty days written notice to Burroughs Corporation, the City of Chula Vista may return any or all of the equipment listed on form 1914207 (Agreement For Equipment Lease and Maintenance.) This term and condition allows the City of Chula Vista to terminate without penalties. NOTE: Draw a line across the last page following the last paragraph of this agree- ment. 1906713 (Rev. 11181) USTOMER Burroughs Corporation ~ AGREEMENT FOR SYSTEMS SERVICES AND SUPPORT (Note: Series RT equipment requires appropriate addendums) City of Chula Vista (Finn Name) n.___...____ -..~-----,_.- .... ......... ............ (Number) 276 Fourth Avenue IS_) Chula Vista. California 92010 (.....) (Zlp) (City) .urroughs Corporation, Burroughs Place, Detroit, Michigan 48232 (BURROUGHS) agrees to furnish, subject to the terms ofthis ;reement and its attachments and subject to the availability of personnel, the services and support detailed in this Agreement and ,leoted by CUSTOMER bereunder: PER MAXI- PERSON MUM ITEM TYPE OF PRODUCT DESCRIPTION HOURLY WORK NO. SERVICE STYLE OF SERVICE DAILY DAYS CHARGE RATE /HOURS (IF APP.) (IF APP.) 1 PSA-l 82900 SSF Per Paragraph $720.00/yeI11 2(aJ SCHEDULE r CHARGEABLE WORK HOURSlDAYS HOURLYIDAILY RATE PER PERSON NET CHARGES $ $ 720.00/year his Agreement (including the agreements incorporated by reference in Section 10) constitutes the entire agreement, nderstanding and representations express or implied, between the CUSTOMER and BURROUGHS with respect to ervices and support and supersedes all prior communications, including all oral and written proposals. 'CCEPTED: CUSTOMER BY ITS SIGNATURE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDER- STANDS IT AND AGREES TO ALL OF THE TERMS AND CONDITIONS, INCLUDING THE LIMITATION OF LIA- BILITY. y By ~1'" . oriDd SlgnalU~ Mayor of the City of Chula Vista urroughs Corporation 11'0 Tleo 30 JUL 1984 Oelo July 25, 1984 Dote tOGRAM PRODUCTS SUPPORT e services identified on the face page hereof will be per~ med by BURROUGHS for all Program Products cur- Ltly designated as Warranty Class I, whieb are iden- . on a properly executed Program Products License ,n BURROUGHS and the CUSTOMER and for lcn the CUSTOMER has paid all currently due license s. Documentation Service: A Customer Technical Publi- cation Catalog and Price List will be published periodi- cally and direct mailed to subscription customers. Pub- lication Change Notices to Technical Publications will be made available, at no additional ebarge, to custom- ers who have subscribed to this service. Customers not subscribing to this service may order publications, the Customer Technical Publication Catalog and Price Lists, and Publication Change Notices from the BUR- ROUGHS representative at BURROUGHS then cur- rent charges therefor. Maintenance Service: CUSTOMER will be given in- structions in the usage ofproper forms and procedures to document and report errors or malfunctions in the Program Products. .OGRAM PRODUCT SERVICE AGREEMENTS iA) , following Program Products Service Agreements A's) are offered to customers obtaining licenses from RROUGHS to use BURROUGHS Program Products ,ently in Warranty Class 1. Customers declining to d PSA's at the time of entering into a Program Prod- , License, may, subject to availability, subsequently " services for Program Products at BURROUGHS .lITent rates, terms and conditions. Except as other- = expressly provided in PSA-3, sueb services shall be >'ided for all licensed Program Products then in War- ty Class 1, (but only for so long as they remain classified Varranty Class I), provided sueb Program Products are ""ed to CUSTOMER as Warranty Class I, are iden- ld on a properly executed Program Products License 1 the CUSTOMER, and are Program Products for which CUSTOMER has paid all currently due license and rice fees. PSA-1 - BURROUGHS shall be responsible for the performance of the following: I. Provide access to a support center via a telephone network for assistance related to: - Operational questions involving BUR- ROUGHS equipment when using suell Program Products. - Operational questions involving such Program Products. - Product information relating to BURROUGHS equipment, system software or application software. - Assistance in identifying and verifYing errors or malfunctions in such Program Products. - Advice on known problem detours in such Pr0- gram Products. - Authorization for the s]lbmission of fault re- ports on previously unreported errors or malfunc- tions in sueb Program Products. - Status of previously submitted fault reports. - On-site service order receipt and dispatch of service personnel. II. Provide services to: - Analyze fault reports. - Attempt to correct errors and malfunctions in sueb Program Products. - Respond to the CUSTOMER regarding fault reports. - Develop and distribute maintenance releases and documentation for sueb Program Products. CUSTOMER shall be responsible for: - Error and malfunction detection and isolation. - Fault report preparation and authorized sub- mission. - Installation of solutions, detours, and maintea nance releases for such Program Products. (b) PSA-2 - BURROUGHS shsll be responsible for the performance of the services set forth in paragraphs 2.(a)1, 2. (a)II and 2.(b)I of this Agreement. I. Provide services as required: - Error and malfunction isolation. - Fault report preparation and authorized sub- mission. - Installation of solutions, detours, and update releases for such Program Products. CUSTOMER shall be responsible for: - Notifying support center of the occurrence of an error or malfunction in such Program Products. (c) PSA-3 - BURROUGHS shall be responsible for the performance of the services set forth in paragraphs 2.(a)I and 2.(c)1 of this Agreement for all licensed Pro- gram Products then in Warranty Claas 2, provided such Program Products are licensed to CUSTOMER by BURROUGHS, are identified on a properly executed Program Product License with the CUSTOMER, and are Program Products for whieb the CUSTOMER has paid all currently due license and service fees. L Provide assistance at support centers for: - Fault report analysis and possible resolution, if thsn available, and submitting responses to CUS- TOMER CUSTOMER is responsible for: - Error and malfunction detection and isolation. - Fault report preparation and authorized sub- mission. - Installation of solutions, detours, and correc- tions for such Program Products. 3. TECHNICAL SERVICES The services selected shall be provided to CUSTOMER; provided, however, each such service selected must be de- scribed in detail on the attached Description of Systems Services and Support. (a) System Implementation Service: BURROUGHS shall implement that protion of the Burroughs Program Products set forth in the attaebed Description of Sys- tems Services and Support; provided, however, there are no warranties, express or implied, other than these expressly set forth in Paragraph 11 of the Program Products License with CUSTOMER - ~ (b) Conversion Service: BURROUGHS shall convert or have converted that portion of the CUSTOMER's ap- plication programs identified in the attached Descrip- tion of Systems Services and Support to operate on a designated BURROUGHS computer system. CUS- TOMER warrants that it has the legal right to disclose such CUSTOMER's application program to BUR- ROUGHS and to have BURROUGHS or others convert the CUSTOMER's application programs. CUSTOMER agrees that it assumes the sole responsibility for the output and throughput of the converted CUSTOMER's application programs and for any errors, malfunctions or defects contained in or resulting from the use of such converted CUSTOMER's application programs. There are no warranties, express or implied, made by BUR- ROUGHS with respect thereto. (c) Consulting Service: BURROUGHS shan analyze CUSTOMER's data processing needs and reco=end possible solutions for consideration and selection by CUSTOMER. (d) System Performance Service: BURROUGHS shall measure the performance of the CUSTOMER's data processing system, present the documented results of the measurement and recommend possible solutions for consideration and selection by CUSTOMER. (e) Technical Seminar Service: BURROUGHS shall con- duct technical seminar(s) as set forth in detail in the attached Description of Systems Services and Support. (f) File Conversion Service: BURROUGHS shall convert that protion of the CUSTOMER's data files as set forth in the attached Description of Systems Services and Support to be compatible with the me formats of the designated BURROUGHS computer system. CUS- TOMER agrees that it assumes sole responsibility for the accuracy and the content of such converted data files and that there are no warranties, express or im- plied, made by BURROUGHS with respect thereto. (g) Programming Service: BURROUGHS shall develop the custom application program(s) as set forth in detail in the attached Description of Systems Services and Support and such development shall include system analysis, systems design, programming and operating documentation. The custom application program(sl shall, upon acceptance by CUSTOMER and payment to BURROUGHS therefor, be licensed to CUSTOMER, as a Warranty Class 2 Program Product, pursuant to the terms and conditions of the Program Products License. Acceptance by CUSTOMER shall be deemed to occur upon receipt by BURROUGHS of written ac- ceptance from CUSTOMER or ninety (90) days after delivery of said custom application program(s) to CUSTOMER, whichever occurs earlier. BUR- ROUGHS shall deliver to the CUSTOMER, as part of . the custom application program(s), the source code therefor. CUSTOMER acknowledges and agrees that the custodial and maintenance responsibilities for the custom application program(s) and related material rests solely with the CUSTOMER. There are no war. ranties, express or implied, made by BURROUGHS with respect thereto. (h) Modification Service: BURROUGHS agrees to provide the CUSTOMER with programming services to alter the source code of any BURROUGHS application Pr0- gram Product licensed to the CUSTOMER by BUR- ROUGHS to provide the capability as set forth in the Description of Systems Services and Support. These alterations will be made to a specified release level of the application Program Product. Any request to in- corporate such alterations into subsequent release levels of the application Program Product must be covered by a separate Agreement for Systems Services and Support. BURROUGHS, for a period of ninety (90) days after delivery of the alterations to CUSTOMER, agrees to provide programming services to attempt to correct any error or malfunction in the alterations identified by the CUSTOMER to BURROUGHS dur- ing said ninety (90) day period. BURROUGHS shall deliver to the CUSTOMER, as part of the modification services, the source code for the alterations to the ap- plication Program Products. CUSTOMER acknowl. edges and agrees that the custodial and maintenance responsibilities for such modified Program Product rest solely with the CUSTOMER. There are no war- ranties, express or implied, made by BURROUGHS with respect thereto. (i) Workshop Service: BURROUGHS shall assist the CUSTOMER in expanding its understanding and abil. ity to use the BURROUGHS Program Product licensed to CUSTOMER and set forth in the attached Descrip- tion of Systems Services and Support by providing a supervised operation, on BURROUGHS equipment at a BURROUGHS facility, of such Program Products. 4. CHARGES (a) CUSTOMER agrees to pay BURROUGHS the amounts set forth herein for the services and support detailed in this Agreement, provided these servkp.!: and support are rendered during a period of one year from the date of this Agreement. Ifno rate or charge for such services or support is specified, BURROUGHS published rates and charges in effect as of the date the services or support are provided will apply. Thereafter services and support will be provided at the then cur- rent BURROUGHS published rates. (b) Except as otherwise provided in any addendum to this Agreement, invoices shOll be rendered at the end of each month during which services or support have been furnished. CUSTOMER agrees to make payment within ten (10) days of receipt of such invoices. CUS- TOMER further agrees to pay a late payment charge computed at the rate of one and one-half percent (11)%) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amounts for each calendar month (or fraction thereof) that such payment is in default. (c) In addition, CUSTOMER agrees to pay BURROUGHS any tax (except personal property or tax based on net income) on this Agreement, on or measured by the prices, other charges, Program Products, or services furnished, or their use, however designated, levied.or based whenever BURROUGHS. must collect and/or pay such taxes from or on be!-.aJf of the CUSTOMER according to the applicable statutes and ordinances, as interpreted by the Departmental authorities of the taxing unit. 5. PERFORMANCE OF SERVICES BURROUGHS reserves the right to assign personnel or to subcontract to third parties who are, in BURROUGHS judgement, qualified to render the services requested. Any time schedules or delivery dates for the performance of the serviceR, delivery of Program Products or other items hereunder andlor the availability of personnel which is prepared, submitted, or agreed upon shall be considered only as estimates. BURROUGHS does not in any way war- t or represent: the service results or the performance of nces hereunder, the availability of BURROUGHS per- nel, the timely performance of services or delivery of gram Products or other items set forth herein, that all .- 'Uld malfunctions will be corrected or that the objec- the Program Products and serivces set forth in this '~_.nent will be obtained. CUSTOMER warrents and resents that it has the right to have BURROUGHS and subcontractors perform the services requested under , Agreement and any additions or amendments thereto. 'LE AND LICENSE CUSTOMER agrees that the furnishinga of services by BURROUGHS and/or its subcontractors under this Agreement conveys to CUSTOMER only a personal, nOli-exclusive and nontransferable right and license, without tha right to grant sublicenses, to use the in- formation conveyed to CUSTOMER, and any pro- grams furnished to CUSTOMER hereunder shall be furnished as Warranty Class 2 and subject to the terms and conditions of BURROUGHS then current Program Products License. BURROUGHS retains the entire right, title and interest in and to all proprietary rights related to the services, information, programs and other items furnished under this Agreement, even if they have been jointly developed by BURROUGHS and CUSTOMER. CUSTOMER agrees not to disclose or disseminate to others any material or information furnished to CUSTOMER under this Agreement, without the prior written permission of BUR- ROUGHS. CUSTOMER understands and acknowledges that the furnishings of services, information, programs or other items under this Agreement does not convey to CUS- ~:MER a license or other right to use any software or gram material of BURROUGHS which is licensed separately by BURROUGHS or its related companies under a Program Products License or similar agree- ment, and CUSTOMER understands that a separate Program Products License must be executed and appli- cable license fees, if any, paid prior to any use of such software or program material. fiTATION OF LIABILITY IN NO EVENT SHALL BURROUGHS BE LIABLE TO CUSTOMER OR OTHERS FOR LOSS OF PRO- FIT,INDIRECT, INCIDENTAL, SPECIAL OR CON- SEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THIS AGREEMENT OR ANY OBLI- GATION UNDER THIS AGREEMENT OR ANY RIGHTS AND LICENSES GRANTED BY BUR- ROUGHS HEREUNDER OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PARTY, EVEN IF BURROUGHS HAS BEEN AD- VISED OF THE POSSIBILITY OF SUCH CLAIM, INCLUDING, BUT NOT LIMITED TO ANY CLAIM RELATED TO PATENT OR COPYRIGHT IN- FRINGEMENT OR MISUSE OR MISAPPROPRIA- TION OF OTHER PROPRIETARY RIGHTS. BURROUGHS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY, FURNISHING OF PROGRAM PRODUCTS OR SERVICES UNDER THIS AGREEMENT OR PER- ""RMING ANY OBLIGATIONS UNDER THIS REEMENT. IN NO EVENT SHALL BURROUGHS LIABILITY, IF ANY, FOR LOSS OR DAMAGE RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT OR ANY OBLI- GATION UNDER THIS AGREEMENT EXCEED THE CHARGES THEREFOR PAID BY CUSTOMER TO BURROUGHS UNDER THIS AGREEMENT. 8. TERMINATION/CANCELLATION This Agreement may be terminated by either party at any time. upon default by the other party of any covenent of this Agreement if such default is not corrected within sixty (60) days after receipt of written notice. The written notice must set forth particulars of the alleged default. BURROUGHS may cancel this Agreement if CUSTOMER is in default in payment of any amount due BURROUGHS under this Agreement for a period of thirty (30) days. CUSTOMER's obligation to pay charges which have accrued and any damages arising from its breach of this Agreement shall survive termination or cancellation. The remedies pro- vided herein shall not be deemed exclusive but shall be cumulative and shall be in addition to all other remedies provided by law and equity. No delay or omission in the exercise of any remedy herein provided or otherwise avail~ able to BURROUGHS shall impair or affect BURROUGHS right to exercise the same. Any extension or indulgence (which must be in writing) shall not otherwiae alter or affect BURROUGHS rights or obligations or be deemed waiver thereof. 9. GENERAL (a) No modifications or amendment to this Agreement and no waiver of any provisions shall be valid unless made in writing and signed by duly authorimd representa- tives of the parties. Any written order or other instru- ment issued by CUSTOMER before or after the effec- tive date of this Agreement pertaining to the equip- ment or services provided under this Agreement shall be void, except as otherwise expressly provided in this Agreement. (b) The laws of the State in which these services are per- formed shall govern as to the interpretation, validity and effect of this Agreexp.ent. (c) The term. t1defect" or ltmalfunction" as used herein shall mean, for Program Products, only significant de- viations from the design specifications for the current release of such Program Products, and, for all other items delivered hereunder, only significant deviations from the design specifications, if any, for such other items, provided such design specifications have been agreed upon in writing by BURROUGHS and CUS- TOMER. 10. OTHER APPUCABLE AGREEMENTS The following BURROUGHS agreements are incorporated by reference in this Agreement: FORM NUMBER CUSTOMER INITIALS TITLE OF AGREEMENT ._ .___n. ."..........~...""."M E R Burroughs Corporation m PROGRAM PRODUCTS LICENSE AND SUPPORT AGREEMENT City of Chula Vista 276 Fourth Avenue (Firm Name) (Number) Chula Vista, California 92010 (State) IStreet) (City) (Zip Code) Jhs Corporation ("BURROUGHS"I by its acceptance agrees to and does hereby grant and Customer ("CUSTOMER") accepts, on the 19.terms and conditions, a personal, nontransferable and nonexclusive right and license to use the Licensed Program, Related Materials .. .-- .... '.'signated Systems Software indentified hereunder in the following schedule (and those ordered from time to time by CUSTOMER to written acceptance by BURROUGHS), collectively referred to as Program Products: ter System Designation B 2925-1SY SCHEDULE Support Cateyory Designated Computer System Serial No. litiWi~lli) Initial Recurring ~~tt~ Charge* Initial License Annual Cj?,de $1 ,S1'sr:oO Char~ Code" $3~~:~ Program Product! B T2~Ol)'g~~tntification Estimated Delivery 7 _~,t':84 MER BY ITS SIGNATURE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND THAT IT nUTES THE ENTIRE AGREEMENT, UNDERSTANDING AND REPRESENTATIONS, EXPRESS OR IMPLIED, BETWEEN THE MER AND BURROUGHS WITH RESPECT TO THE PROGRAM PRODUCTS AND SUPPORT TO BE FURNISHED HEREUNDER HAT THIS AGREEMENT SUPERSEDES ALL PRIOR COMMUNICATIONS BETWEEN THE PARTIES INCLUDING ALL ORAL OR EN PROPOSALS. THIS AGREEMENT MAY BE MODIFIED OR AMENDED ONLY BY A WRITTEN INSTRUMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF CUSTOMERS AND BURROUGHS. ,RMSAND CONDITIONS, INCLUDING THE WARRANTY AND LIMITATION OF LIABILITY, ON THE REVERSE SIDE ARE PART S AGREEMENT. TED: Burroughs Corporation City of Chu1a Vista Dr"le eURROUGHS By: Date Au rized Signature Mayor of the City of Chula Vista Title July 25, 1984 Date :CEP'TED * Charge Code Description: A - Initial Charge 8 - Initial Charge In Installments C - Monthly License Fee D - Annual License Fee E - Other Charges G - Training Charge H - Media/Processing Charge ITI ONS am Products shall collectively mean the licensed Pro- ;ystem Software, and Related Materials which Program are identified in the schedule on the face hereof and , from time to time by CUSTOMER subject to writ. '" by BURROUGHS. 1sed Program shall mean the program material in eadable or interpreted form, and may include, where te, listings of either machine code or source code. m Software shall mean the current BURROUGHS re. rograms and routines which enable CUSTOMER to opo ased or purchased hardware system including, for ex- control program or operating system, and if provided, te utility routines, conversion programs, and language j including compilers, assemblers and translators for the d Computer System. ed Materials shall mean all material other than the Program or System Software furnished by BUR. in conjunction with such Licensed Program and System and including, for example, operating instructions, in- 1ation or format specifications, instructional and other ation including all guides and manuals, and further shall permitted copies of Program Product material made by oR. lated Computer System shall mean the system configura- ,ding a processing unit designated by type and serial nd those associated units which have the capacity to into use the Licensed Program whether or not pro- ~ place on the designated processing unit. ~ shall include BU R ROUGHS current published train. ~s for hardware, software, programming languages, and magement at the then current rates. SE laUGHS grants to CUSTOMER and CUSTOMER here. s, subject to the limitations in Paragraphs g and 10 of se, a personal, nonexclusive, nontransferable right and use the Program Product{s) on the Designated Com- tem and to use the Related Materials in conjunction arate license is required for each Designated Computer to which the Licensed Program or any portion thereof machine-readable form for operation on such System; :0, HOWEVER, this License may be temporarily trans. , back.up system if the Designated Computer System is e because of conditions beyond CUSTOMER's control. ERY OF PROGRAMS 3HS shall furnish CUSTOMER on or about the delivery date specified on the face hereof the then rsion of the Program Product(sl in a medium su itable '.'1e Designated Computer System. icense shall commence upon receipt by CUSTOMER of 1m Product material and shall remain in effect for each Program Product as follows: 4.2 If a monthly/annual license fee is applicable, until terminated by CUSTOMER upon one month's prior written notice or cancelled by BURROUGHS as provided in Paragraphs 12 or 16 hereinafter. 4.3 If no monthly/annual license fee is applicable, until CUS- TOMER ceases using the Program Product on the Designated Computer System including redesignation as provided in Para- graph 8. 5. CHARGES AND TAXES 5.1 CUSTOMER agrees to pay BURROUGHS within ten (10) days of receipt of an invoice for the Program Product(s), Training, and for all other charges listed on the face thereof in accordance with the charge code in the Schedule. CUSTOMER agrees to pay a late payment charge at the rate of one and one-half (1-%%) percent per month, or at the maximum late payment charge permitted by ap. pficable law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof) that such payment is in de- fault. 5.2 CUSTOMER agrees to pay a non.refundable initial charge upon delivery for all Program Products having an initial charge specified in the Schedule. An initial charge, when applicable, shall be due for each license of the same Program Product. 5.3 BURROUGHS may by ninety (gO) days prior written notice to CUSTOMER increase or decrease the monthly/annual license fees, and BURROUGHS shall designate in such notice the date on which the new license fees shall become effective. If the monthly/annual fee is increased, CUSTOMER may terminate this License upon thirty (30) days prior notice to BURROUGHS. All additional licenses and services shall be invoiced at the charges in effect at the time of acceptance of an order therefor. 5.4 In addition. CUSTOMER agrees to pay BURROUGHS any tax (except personal property or tax based on net income) on the License, on or measured by the prices, other charges, Program Products, or services furnished, or their use however designated, levied or based whenever BURROUGHS must collect and/or pay such taxes from or on behalf of the CUSTOMER according to the applicable statutes and ordinances, as interpreted by the Depart. mental authorities of the taxing unit. 5.5 CUSTOMER agrees to pay BURROUGHS a media and/or processing charge for preparing such media with the code requested by the customer, and if such media are shipped, to pay destination area shipping charges for such shipment. If CUS- TOMER furnishes the media upon order for its preparation, only processing and shipping Charges will be invoiced. 6. CLASSIFICATION OF PROGRAMMING SERVICES 6.1 Each Program Product and each release of a Licensed Program will be classified by BURROUGHS in Category "A", "B" or "C". as defined below. BURROUGHS reserves the right to alter, mod. ify or change the design specifications and category of each re- lease of a Licensed Program or Program Product upon the notice as set forth in Paragraph 7.2. 6.1.1 CateQory.6. (System Software and Supported License Pro. gram). BURROUGHS will maintain and support the current ver- sion of System Software and all Category A Programs for the Designated BURROUGHS Equipment and wiil make available to CUSTOMER all revisions thereof released by BURROUGHS duro -" 1e term of this License as long as such Licensed Program 'ns classified by BURROUGHS in Category "A". BUR- 3HS will maintain all Category A Program Product(s) to be :::::::::::::::;:::::::atible with the then current unaltered released System Soft. used on Designated BURROUGHS Equipment. Upon reo , BURROUGHS wil! provide programming services to make mpt and reasonoble attempt to provide CUSTOMER with a _. .pm patch to correct or program around any error or mction. BURROUGHS may make available to CUSTOMER sed program to correct such error or malfunction. Category ll.. ILimited Support Licensed Program). BUR- GHS will maintain all Category B Program Productls) to be latible with the then current unaltered released System Soft. used on Oesignated BURROUGHS Equipment. Upon reo , BURROUGHS will provide programming services to make . .........mpt and reasonable attempt to provide CUSTOMER with a am patch to correct or program around any error or Inction. BUR ROUGHS may make available to CUSTOMER sed program to correct such error or malfunction. CateQory f.... (Nonsupported Licensed Program). BUR- GHS delivers Category "c" programs on an "as is" basis and fore does not provide programming services for Category programs other than for programs originally issued in Jories "A" or "B" a!1d where a notice of error or malfunc. has been given by CUSTOMER to BURROUGHS prior to ffective date of reclassification to Category "C". Any programming service or assistance requested by CUS- ER not set forth in Paragraphs 6.1.1 through 6.1.3 will be ded, if available, at BU RROUGHS standard rates then in t. :USTOMER agrees to advise BUR ROUGHS in writing of the se nature of any suspected error or malfunction and provide ROUGHS with all relevant information upon request in or- :0 assist BURROUGHS in rendering the services set forth n. BURROUGHS does not represent or warrant the service ts or that all errors or malfunctions will be corrected. :USTOMER will provide BURROUGHS with reasonable )uter time and, at BURROUGHS request, run a tracer or tor for the purpose of determining and correcting any error lalfunction, or making other changes requested by CUS- ER and agreed to by BURROUGHS. , addition, CUSTOMER will provide BURROUGHS with the nary dump" and such additional data as BURROUGHS reo :s in machine~readable or interpreted form deemed necessary .~sirable by BURROUGHS in order to reproduce the environ- which such Licensed Program operated. If BURROUGHS mines there was na error or malfunction in the Licensed 'am, CUSTOMER agrees to pay for all time and material by BURROUGHS in attempting to determine and correct rOM ER 's problems. f BURROUGHS, in its.sole discretion, releases a revision of a Ised Program, BURRO'UGHS will render services hereunder respect to the Licensed Program which has been revised for a d of ninety (90l days commencing on the date the revised lsed Program is first released by BUR ROUGHS. Thereaher the "Licensed Program" as used herein shall mean the Licensed - 'am as most currently revised. 3URROUGHS has no obligation to maintain, support, or de programming services for any Licensed Program beyond pecification of the then current version of the Program Pro- IANGE IN CATEGORY U R ROUG HS may at its sole discretion change the category y Program Product{s) and/or release of a Licensed Program fter without liability to CUSTOMER. The services to be _~""",",,".ded after such change shall be as set forth in the newly .. .1ated category. 7.2 Any change in-category from either Category "An or "8" to Category "C" shail be made only upon at least ninety 1901 days prior notice to the then licensed users of such Program Pro. duct(s). In the event of such change to Category "C", CUS- TOMER shall have the right to terminate the license without further payment obligation hereunder upon one (1) month's prior written notice. 7.3 In the event the Category of a Program Product is changed with ninety 190) days prior notice, the Monthly/Annual License Fee thereafter for such Program Product shall be the then current standard price for such Program Product. 8. LICENSE REDESIGNATION B.l CUSTOMER by written notice to BURROUGHS may redesig- nate the Designated Computer System an which the Program Products are licensed for use hereunder. The redesignation will be effective in accordance with an Addendum to this License to be furnished to CUSTOMER by BURROUGHS subject to the terms, conditions and charges then in effect. 8.2 The right of CUSTOMER to redesignate such Designated Computer System does not apply to System Software, 9. PERMISSION TO COPY, MODIFY AND USE 9.1 Any Program Product furnished by BURROUGHS in machine-readable form may be copied in whole or in part by CUSTOMER for use with the Designated Computer System, PROVIDED, HOWEVER, that only the number of copies ",. quired to serve CUSTOMER's actual need for the Designated Computer System shall be made. CUSTOMER agrees that the original copy of all Program Products furnished by BURROUGHS and all copies thereof made by CUSTOMER are and shall remain the sole property of BURROUGHS. 9.2 An original or a copy of the Program Praductls) may be kept in storage at a location separate from that of the Designated Computer System. CUSTOMER agrees to notify BURROUGHS immediately in' writing of the location of such backup and safe. keeping originals or copy upon request by BURROUGHS. 9.3 CUSTOMER shail have the right to modify any Appiication Program Products supplied by BURROUGHS for CUSTOMER's use under this License, and may combine such with other pro- grams or material to form an updated work, PROVIDED, HOW- EVER, upon discontinuance or termination of rights granted un- der this License, the Licensed Program supplied by BUR. ROUGHS shall be completely removed from the updated work and all of such Licensed Programs, copies thereof (in whole or in part) and Related Materials shall be returned to BURROUGHS or disposed of in accordance with written instructions from BUR. ROUGHS. 9.4 CUSTOMER expressly agrees to include BURROUGHS copy. right notice and proprietary notice on all copies, in whole or in part, in any form including machine language made by CUS- TOMER in accordance with this License. 10. PROTECTION AND SECURITY CUSTOMER agrees not to disclose, publish,' release, transfer or otherwise make available any Program Product(sl, in any form, to any person other than CUSTOMER's or BURROUGHS employ- ees without prior written consent from BURROUGHS except during the period any such person is on CUSTOMER's premises for purposes specifically related to CUSTOMER's use of th~Pro- gram Product!s}. CUSTOMER also agrees that the Program Pro- ductls} are the property of and proprietary to BURROUGHS and further agrees to protect the Program Productls} or any part thereof from unauthorized disclosure by its agents, employees or customers. 11. WARRANTY 11.1 Each licensed Program Product classified in Category "AU or . is warranted to conform to the design specification for that se as designated in the Program Product specification or sim- . lpplicable release issued by BURROUGHS. EACH RELEASE c',c:x.".'.'.t~ PROGRAM PRODUCT CLASSIFIED IN CATEGORY "C" . ICENSED ON AN "AS IS" BASIS WITHOUT ANY WAR. ITY. , This warranty is applicable to each unaltered release of the -.-:.:": 1sed Program commencing on the date of its delivery to the TOMER and terminating one year from the date of such ery, or thereafter ninety (90) days after the date on which ROUGHS releases a revision thereof or upon termination of icense, whichever is earlier. CUSTOM E R agrees that its sole and exclusive remedy and ROUGHS sole obligation, if a Licensed Program warranted jnder fails to conform to the applicable design specifications CUSTOMER advised BURROUGHS of such failure in writing 19 the term of the warranty, is for BUR ROUGHS to provide ramming services to attempt to correct any defect. For pur- S of'this Agreement, non-conformance to design specification the term "defect" shall mean only significant deviations from :lesign specifications for such current release of the Licensed ram. I EXCEPT AS SPECIFICALLY PROVIDED HEREIN, RE ARE NO OTHER WARRANTIES, EXPRESS OR 1M. oD, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED lRANTIES OF MERCHANTABILITY OR FITNESS FOR A TICULAR PURPOSE. PATENT AND COPYRIGHT INDEMNITY BURROUGHS shall defend or settle any suit or proceeding 19ht against CUSTOMER to the extent that such proceeding ased on a claim that Program Product(sl made to BUR- JGHS specifications and used within the scope of the License under constitutes an infringement of a copyright in the Unit- jtates or an existing United States patent, PROVIDED BUR- JGHS is notified promptly in writing and is given complete lority and information required for the defense of same, and lROUGHS shall pay all damages and costs awarded therein 1St CUSTOMER, but BURROUGHS shall not be responsible any cost, expense or compromise incurred or made by CUS- IIER without BURROUGHS prior written consent. ~ In the event any Program Product(s) furnished hereunder is ,URROUGHS opinion likely to or does become the subject of Jim of infringement of a copyright or patent, BURROUGHS at its option and expense procure for CUSTOMER the right ontinue using such Program Product(s), modify them to make n non-infringing or substitute other materials of similar capa- y. If in BURROUGHS opinion, none of the foregoing altern. "is reasonably available to BURROUGHS, then BURROUGHS terminate the license of such Program Product(s} upon thirty days written notice to CUSTOMER. If, however, the Program juct is not the subject of a claim for copyright infringement, iTOMER may notify BURROUGHS in writing during the ty (30) days after BURROUGHS notice of termination that ;TOMER elects to continue using the same until there has 1 an injunction or the claim has been withdrawn, and CUS- ~ER agrees to undertake at CUSTOMER's sole expense the nse of any action involving such claim and to idemnify BUR- JGHS with respect to all costs, damages and attorneys fees . butable to 'such continued use by CUSTOMER after such ce is given to BURROUGHS; it being understood that BUR. JGHS may participate at its expense in the defense of any I action if such claim is against BURROUGHS. I BURROUGHS shall have no liability for any claim of copy. t or patent infringement based upon the use of other than a ent unaltered release of the Program Product{sl available n BURROUGHS if such infringement would have been avoid- .IY the use of a current unaltered rerease of the Program Pro- ."o".".."'tls) available from BURROUGHS, or upon use of combina. tion of the Program,Productls) with non-BURROUGHS programs not made to BUR ROUGHS specifications or data if such infringe- ment would have been avoided by the use or combination of the unaltered Program Product(s} with any other programs or data. 12.4 The foregoing states the entire liability of BURROUGHS with respect to infringement of any copyrights or patents by the Program Productls) or any parts thereof. 13. RESPONSI BllITY OF THE PARTI ES CUSTOMER shall be exclusively responsible for the supervision, management and control of its use of the Licensed Programs, including but not limited to: (1) assuring proper machine configuration, program installation, audit controls and operating methods, (2) establishing adequate backup plans, including, for example, alternate procedures and access to qualified technical personnel to aid in diagnosis and to assist in repair of Licensed Program defects in the event of error, defect or malfunction and, (3) implementing sufficient procedures to satisfy its requirements for security and accuracy of input and output as well as restart and recovery in the event of a malfunction. 14. RISK OF LOSS BURROUGHS agrees to replace, without additional charge to CUSTOMER, any Licensed Program or Related Material lost or damaged in shipment to CUSTOMER. If CUSTOMER loses or damages any Licensed Program or Related Material, BUR- ROUGHS will replace them, if available, at an additional charge. 15. CPU SERIAL NUMBER In the event the serial number of the CPU is not known at the time this License is executed, the serial number will be inserted by BURROUGHS on its copy of this License and such serial number shall be the CPU serial number of the Designated Com- puter System. If no serial number is designated in this License at the time of execution, or as otherwise provided herein, then the serial number of the CPU on. which the Program Product is first used shall be deemed to be the CPU serial number of the Desig- nated Computer System. 16. CANCELLATION ON DEFAULT Each license granted hereunder may be cancelled by BUR. ROUGHS, if CUSTOMER is in default in payment of any amount due under this Agreement for a period of one (1) month or may be cancelled at any time upon default by the other party of any other covenant of this License if such default is not corrected within two (2) months after receipt of written notice thereof. Said written notice must set forth particulars of the alleged fault. CUSTOMER's obligation to pay charges which have accrued and any damages arising from its breach of this License shall survive cancellation. The remedies provided herein shall not be deemed exc[usive but shall be cumulative and shall be in addition to all other remedies provided by law and equity. No delay or omission in the exercise of any remedy herein provided or otherwise avail- able to BURROUGHS shall impair or affect BURROUGHS right to exercise the same. Any extensron or indulgence (which must be in writing) shall not otherwise alter or affect BURROUGHS rights or obligations or be deemed a waiver thereof. 17. RETURN ON TERMINATION Within one hundred twenty ('20) days after the revision of a Licensed Program terminated by CUSTOMER under Paragraph 7.2 hereof or thirty (30) days after the termination or cancella- tion for any other reason, of a license granted hereunder, CUSTO- MER shall deliver to BURROUGHS the Licensed Program and Related Materials related to such Licensed Program and all copies thereof in whichever form, including partial copies which may n modified by CUSTOMER or BUR ROUGHS, or an BURROUGHS Program Products License Certificate ltinuance so certifying. Upon prior written authoriza- I BURROUGHS, CUSTOMER may be permitted for a oj thereafter to retain one copy of certain Materials poses. rATION OF LIABILITY NO EVENT SHALL BURROUGHS BE LIABLE TO ER FOR LOSS OF PROFIT, INDIRECT, SPECIAL OR lUENTIAL DAMAGES, ARISING OUT OF ANY OF THIS AGREEMENT OR OF OBLIGATIONS UN. IS AGREEMENT OR THE LICENSE GRANTED OR Y CLAIM MADE AGAINST CUSTOMER BY ANY PARTY, EVEN IF BURROUGHS HAS BEEN AD- F THE POSSIBILITY OF SUCH CLAIM EXCEPT AS ISE PROVIDED IN PARAGRAPH 12 IPATENT AND ;HT INDEMNITY). ROUGHS SHALL NOT BE LIABLE FOR ANY DAM- ,USED BY DELAY IN DELIVERY, INSTALLATION ~ISHING OF THE PROGRAM PRODUCTS OR SER- ;DER THIS AGREEMENT. ~-\\'1\'.)... 18.3 IF A CHARGE IS PAYABLE WITH RESPECT TO ANY PROGRAM PRODUCTS OR RELATED MATERIALS LI- CENSED HEREUNDER, OR IF A CHARGE HAS BEEN ESTABLISHED IN THE REGULAR COURSE OF BUSINESS BY BURROUGHS FOR LICENSING THE SAME OR SIMILAR PROGRAM PRODUCTS, THEN BURROUGHS LIABILITY, IF ANY FOR lOSS OR DAMAGES RELATING TO OR ARISING OUT' OF THE LICENSE THEREFOR SHALL NOT EXCEED THE CHARGES ATTRIBUTABLE TO SUCH PROGRAM PRO- DUCTS. 19, GENERAL 19.1 The Licensels) granted hereunder shall not be deemed to include or extend to any other software or"other licensed pro. grams of BURROUGHS or any part thereof, heretofore, or here. after released by BURROUGHS. 19.2 NO ACTION ARISING OUT OF ANY CLAIMED BREACH OF THIS AGREEMENT OR TRANSACTIONS UNDER THE AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED. 19.3 The laws of the State of Michigan shall govern as to the interpretation, validity and effect of this Agreement. -'_...-.-~ ~~" ...:.......,.'----.. - ______1 ....;._.;.:.... ........ ...3TOMER Burroughs Corporation'. m BUSINESS MACHINES GROUP AGREEMENT FOREQUWMENT SALE [] NET CASH SALE o INSTALLMENT SALE City of Chula Vista (Firm Name) (Number) 276 Fourth Avenue (5_.) Chula Vista, California 92010 (State) (Zip Code) (City) RROUGHS CORPORATION, Business Machines Group, Burroughs Place, Detroit, Michigan 48232 ("BURROUGHS"), by its :ptance agrees to sell and CUSTOMER agrees to buy the equipment listed below. M MODEL AND UNIT LIST TOTAL LIST to.. DESCRIPTION QUANTITY PRICE PRICE B 2925-1SY System Includes: 1 $125,000.00 $125,000.00 B 2925-CP Processor 1 B 2009-1MB 1MB Memory 1 B 2909-91 DLP Base 1 B 94B9-5 WID 2 B 9361-21 Op Display 1 Dunt $ 136.972.00 $ $ (a) Grand Total List Price .................................................... (b) Total One-Time Field Installation Charge ................................... Subtotal of items a and b ...... ...................................... (c) ~1~.S~~.W~~~. ~~a;1~~ .T~.~r.d.~~~ ~~.~~~~i~~.~... ~ 7.026.66 ................................................. $ (d) Less Credits: Cash ulon execution (Down-Payment) ........ $11 ,711 11 Other . 0.% .l~qy.':l;, D.i $~.Q'.mt.. .. ......... $13, 6Q7 ;>0 Other . ~.%. ~Q(l~.r:9.~.tUjl, 1. Oi scount... .. $ 6.16, 74 Other ..................................... $ (e) Balance of List Price. ... .. .. .. . .. . . . . .. ...... . .. . .. .. . . .. .... .... .. .. ... .. (f) Plus Finance Charge .............................. $ (g) Total Deferred Balance ............... . .. . . .. . .. . . . . . . . . .. .. . .. .. . .. .. .. . . $ (h) Deferred Balance to be paid in Consecutive Monthly Installments of $ and a Final Monthly Installment of $ , payabl~ in accordance with Section 5. (i) Plus Contract Processing Charge ........................................... $ 136,Qn nn $ 11:',4:'6 61 s Agreement (including the agreements incorporated by reference in Section 17) constitutes the entire agreement, under. lding and represen\lltions, express or implied, between the CUSTOMER and BURROUGHS with respect to the equipment J services, and supersedes all prior communications including all oral and written proposals. :EPTED: CUSTOMER BY ITS SIGNATURE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO ALL ITS TERMS AND CONDITIONS. ~ Mavor of the City of Chu1a Vista Tme Julv:''i lQA4 By greement shall be effective on the date accepted and ed by an authorized representative of BURROUGHS, all continue in effect until terminated according to its , the equipment shall vest in CUSTOMER upon ship- fthe equipment to CUSTOMER. BURROUGHS shall a security interest in the equipment until the entire e of the List Price and all other monies payable hereun- e paid in full. CUSTOMER guarantees to BUR- ,HS that all equipment being Traded-In is free and clear liens or encumbrances. CUSTOMER will execute, equest, financing statements deemed necessary or de-- by BURROUGHS to perfect its security interest in the ,ent. CUSTOMER authorizes BURROUGHS to liIe a f this security agreement or a financing statement as a ng statement. A financing statement may be filed with- JSTOMER'S signarure on the basis of this security lent where allowed by law. LLATION tallation, ifperformed by BURROUGHS, will be per- med during BURROUGHS normal working hours at no !itional charge. If installation or removal of the equip- nt by BURROUGHS is precluded by local law, union cement or otherwise, BURROUGHS will supervise installation or removal and CUSTOMER will bear any Litiana! costs caused thereby. JSTOMER shall prepare the site to meet BUR- IUGHS installation specifications which have been ,vided to CUSTOMER and the site shall be ready to eive the equipment at the time scheduled for delivery. shall he CUSTOMER'S responsibility to maintain lironmental conditions meeting BURROUGHS spec- ,ations. . CUSTOMER shall provide adequate working space l reasonable "distance of the equipment for use of _ROUGHS personnel. -RROUGHS shall deliver and install the equipment as In as reasonably possible. ~ATION AREA TRANSPORTATION :lUGHS will arrange for transportation and drayage to mises at which the equipment is to be located, and )MER shall pay transportation and drayage charges lation Area Transportation Charge) according to :lUGHS published prices in effect at time of delivery. ortation charges for equipment being traded-in shall be oy the CUSTOMER and billed in accordance with shed Destination Area Transportation Charges ). If delivery to the installation site within the CUS- R'S premises cannot be made with equipment normally ed by the equipment carrier, any costs for special (including the cost of insurance) shall be paid by CUS- R. - ~ TERMS :eipt or deposit of any monies received by BUR- fiS as a down-payment shall not be construed as ac- :e of this Agreement. Down payment, ifrequired, shall 'pon execution by CUSTOMER of this order and shall ned to CUSTOMER if this order is not accepted. The and charge(s) stated herein are subject to change notice, but shall remain firm through the date of , providing Burroughs Scheduled Delivery Date is not led by CUSTOMER. If an Installment Sale, the first i balance payment and Other Charges shall be due on "'iy of the month after shipment of the equipment to .ER. The additional deferred balance payments shall on the first day of each month thereafter and shall e until paid in full. Payment shall be made by CUS- ~ no later than ten (10) days after receipt of invoice. 'MER shall pay a late payment charge computed at the one and one-half (lY.z%) percent per month on the amount for each calendar month (or fraction thereof) :h payment is in default. ....&.r&.r.........""l'''''' CUSTOMER may order additional componentCs) for its sys- tem(s) as initially listed on the face page or order additional system(s). These additions may- be effected by the issuance of a written order by CUSTOMER, subject to acceptance by BURROUGHS. Prices shall be those in effect when the order is placed, and the order shall refer to and be subject to the terms and conditions of this Agreement, and all terms and conditions of the written order shall be void unless agreed to in a separate writing by BURROUGHS. 7. TAXES CUSTOMER shall pay BURROUGHS any tax (except tax based on net income) on the Agreement, on or measured by the prices, other charges, the equipment, program products, or services furnished, or their use, however designated,levied or based whenever BURROUGHS must pay and/or collect the tax from CUSTOMER according to applicable law, as interpreted by the departmental authorities ofthe taxing unit. It shall be CUSTOMER'S sole obligation after payment to BURROUGHS to Challenge the applicability of any tax. Any personal property taxes assessable on the equipment after shipment shall be borne by CUSTOMER. 8. RISK OF LOSS OR DAMAGE (a) CUSTOMER shall assume fuJJ risk of loss or damage to the equipment immediately upon its delivery to CUS- TOMER"S location. (b) As long as BURROUGHS holds a security interest in the equipment, CUSTOMER shall: (i) Maintain the equipment in good operating condition; keep the equipment free from liens and encumbrances; not use or permit use of the equipment in any manner likely to be injurious to it; nor remove or permit removal from original location; not make or permit any alteration without the prior written consent of BURROUGHS; permit inspection by BUR- ROUGHS at reasonable times; and (ii) procure and maintain fire, extended coverage, van- dalism and maIicioUJ mischief insurance to the full insurance value of the equipment, with loss payable to BURROUGHS and CUSTOMER as their interests shall appear. 9. PATENT INDEMNITY (al BURROUGHS shall defend or settle any suit or proceed- ing brought against CUSTOMER based on a claim that any equipment made to BURROUGHS design constitutes an infringement of any existing United States patent, pro- vided BURROUGHS is notified promptly in writing and is given complete authority and information required for the defense, and BURROUGHS shall pay all damages and costs awarded therein against CUSTOMER, but shall not be responsible for any cost. expense or compromise incur- red or made by CUSTOMER without BURROUGHS prior written consent. (b) If any equipment is, in BURROUGHS opinion, likely to or does become the subject of a claim for patent infringe- ment. BURROUGHS may at its option and expense pro- cure for CUSTOMER the right to continue using the equipment, or modify it to become non-infringing, but if BURROUGHS is not reasonably able to modify or other- wise procure for CUSTOMER the right to continue using it, BURROUGHS will remove the equipment and refund to CUSTOMER the amount paid in excess of a reasonable rental for past llse. (c) BURROUGHS shall not be liable for any infringement or claim thereof based upon use of the equipment in combi- nation with other equipment or with software not supplied by BURROUGHS, or with modification made by CUS- TOMER. (d) The foregoing states the entire liability of BURROUGHS to CUSTOMER arising from patent infringement. __.._-.J LIMITED WARRANTY :a) BURROUGHS WARRANTS THAT: (i) NO APPLI- CABLE STATUTE, REGULATION OR ORDINANCE OF THE UNITED STATES OR OF ANY STATE HAS .'.'.'.""".":": BEEN VIOLATED IN THE MANUFACTURE AND SALE OF THE EQUIPMENT; (ii) BURROUGHS HAS TITLE TO THE EQUIPMENT AND THE RIGHT TO SELL IT; (tii) EQUIPMENT PURCHASED UNDER THIS AGREEMENT MAY BE EITHER NEWLY MANUFACTURED, OR ASSEMBLED BY BUR- ROUGHS FROM NEW AND/OR SERVICEABLE USED PARTS (EQUIVALENT TO NEW IN PER- FORMANCE) OR EQUIPMENT WHICH HAS BEEN PREVIOUSLY INSTALLED; AND (iv) THE EQUIP- MENT DELIVERED UNDER THIS AGREEMENT SHALL BE FREE OF DEFECTS IN MATERIAL AND .. WORKMANSHIP UNDER NORMAL USE AND SERVICE MAINTENANCE FOR A PERIOD OF NINETY (90) DAYS FROM DATE OF INVOICE ON B20 AND SRIOO PRODUCTS; AND ONE (I) YEAR FROM DATE OF INVOICE ON ALL OTHER PROD- UCTS, PROVIDED THE EQUIPMENT HAS RE- CEIVED THE NORMAL REQUIRED MAINTE- NANCE SERVICE. NO FREE MAINTENANCE IS INCLUDED IN THIS WARRANTY, UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT. b) WRITTEN NOTICE AND AN EXPLANATION OF . CIRCUMSTANCES CONCERNING ANY CLAIM THAT THE EQUIPMENT HAS PROVED DEFEC- TIVE IN MATERIAL OR WORKMANSHIP SHALL BE GIVEN PROMPTLY BY CUSTOMER TO BUR- ROUGHS. CUSTOMER'S SOLE AND EXCLUSNE REMEDY IN THE EVENT OF DEFECT IS EX- PRESSLY LIMITED TO THE CORRECTION OF THE DEFECT BY ADJUSTMENT, REPAIR OR RE- PLACEMENT, AT BURROUGHS ELECTION AND SOLEEXPENSE,EXCEPTTHATTHERESHALLBE NO OBLIGATION TO REPLACE OR REPAIR ITEMS WHICH BY THEIR NATURE ARE EXPENDABLE. c) NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTP REGARDING CAPACITY, SUITA- BILITY FOR USE, OR PERFORMANCE OF THE EQUIPMENT SHALL BE OR BE DEEMED TO BE A WARRANTY BY BURROUGHS FOR ANY PURPOSE, NOR GIVE RISE TO ANY LIABILITY OR OBLIGA- TION OF BURROUGHS WHATSOEVER. ;d) EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, THERE ARE NO OTHER W ARRAN- TIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PAR- TICULAR PURPOSE. e) IN THE EVENT OF EMPLOYMENT BY CUSTOMER OF ANY NON-BURROUGHS ATTACHMENT, FEA- TURE, OR DEVICE ON THE EQUIPMENT, OR ANY PART THEREOF, FURNISHED BY BURROUGHS HEREUNDER, WHICH HAS NOT BEEN APPROVED IN WRITING BY BURROUGHS, BURROUGHS SHALL NOT BE LIABLE UNDER THIS WAR- RANTY. THE APPROVAL OF THE USE OF ANY NON-BURROUGHSATTACHMENT,FEATURE,OR DEVICE SHALL NOT BE DEEMED TO BE A RE- PRESENTATION, WARRANTY OR UNDERSTAND- ING BY BURROUGHS REGARDING THAT NON- BURROUGHS EQUIPMENT INCLUDING ITS PER- FORMANCE IN CONJUNCTION WITH THE BUR- .,........ ROUGHS EQUIPMENT. 11. LIMITATION OF.LIABILITY (a) IN NO EVENT SHALL BURROUGHS BE LIABLE FOR LOSS OF PROFITS, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THE AGREEMENT OR OBLIGA- TIONS UNDER THE AGREEMENT. (b) BURROUGHS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY, IN- STALLATION OR FURNISHING OF THE EQUIP- MENT OR SERVICES UNDER THE AGREEMENT. (c) CUSTOMER shall assume full responsibility for the over- all effectiveness and efficiency of the operating environ- ment in which BURROUGHS equipment and software are to function. (d) No action arising out of any claimed breach of the Agree- ment or transactions under the Agreement may be brought by either party more than two (2) years after the cause of action has accrued. 12: TERMINATION (a) If CUSTOMER fails to make any payment within ten (10) days of its due date, or fails to perform any other obliga- tions hereunder upon thirty (30) days written notice, or should CUSTOMER be or become insolvent or a party to any bankruptcy or receivership proceeding or any similar action affecting the affairs or property of CUSTOMER prior to payment in full ufthe baJance of the List Price and all other amounts payable hereunder, BURROUGHS may: (i) with or without demand or notice to CUSTOMER (if given, notice by mail to CUSTOMER'S address, shown in the Agreement being sufficient) declare the entire amount unpaid immediately due and payable; lii) ~nter the premises where the equipment is located and remove (CUSTOMER shall assemble the equip- ment and make it available to BURROUGHS at a place which is reasonably convenient to both parties and permit and assist BURROUGHS in effecting the retaking and removal of the equipment); and (iii) sell any or all the equipment as permitted under appli- cable law. BURROUGHS shall apply the proceeds of sale of the equipment to the payment of the expenses of retaking, storing, repairing and selling the equip- ment, reasonable attorney fees and to the satisfaction of aU indebtedness secured under this Agreement. Any surplus shaIl be paid to CUSTOMER and any deficiency sball be paid to BURROUGHS by CUS- TOMER. (iv) suspend service under any BURROUGHS Mainte- nance Agreement covering saideqllipment. (b) The remedies provided herein shall be cumulative and shall be in addition to all other remedies provided by law or equity. 13. ASSIGNMENT BURROUGHS may assign this Agreement and convey its interest in the equipment, or assign the right to receive pay- ments without the CUSTOMER'S consent. provided that BURROUGHS obligations to CUSTOMER shall not in any way be diminished. CUSTOMER may not assign this Agree- ment without BURROUGHS prior written consent. TWARE 'JJ programs including system software furnished by lURROUGHS, and program products jointly developed ,y BURROUGHS and CUSTOMER, shall be sUbject to HTRROUGHS' Program Products License which is in- orated herein by reference. CUSTOMER shall be ""nsible for determining appropriate use and limita- ions of the program products in its operations. n the event that customer makes use of any software Jrogramming in connection with the equipment supplied .ereunder, which is not provided by BURROUGHS, :ustomer acknowledges that BURROUGHS has made no epresentation or warranties with respect to any nOD- lURROUGHS software, its performance on the BUR- tOUGHS equipment, or the service to be provided with espect to such non-BURROUGHS software, and BUR- lOUGHS shall incur no liability to customer arising out of he use of such non-BURROUGHS software or the fur- lisbing of such services. Customer acknowledges that no IURROUGHS software is being furnished to. customer 'y BURROUGHS except pursuant to separate written ieeuse agreements between customer and BUR. tOUGHS. 15. MODIfiCATIONS (a) No modification or amendment to thi!!l Agreement and no waiver of any provision shall be valid unless in writing, signed by duly authorized representatives of the parties. Any written order or other instrument issued by CUS- TOMER before or after the effective date of this Agree- ment pertaining to the equipment or services provided under this Agreement shall be void, except as otherwise provided in this Agreement. (b) In the event of any changes to the preprinted Tenns and Conditions of this Agreement, the duly authorized repre- sentative of BURROUGHS is the Regional Vice President. 16. APPLICABLE LAW This Agreement shall be governed by the laws of the state in which the equipment ordered herein is originally installed. 17. OTHER APPLICABLE AGREEMENTS The following BURROUGHS Agreements are by this refer- coce incorporated in this Agreement, if so checked and ini- tialed by CUSTOMER. NUMBER CHECK CUSTOMERS INmAL TITLE OF AGREEMENT 06740 Agreement For Systems Services 12763 ~I.c Description of Systems Service '24 X Program Products License and Support Agreement J0297 Equipment Maintenance Agreement J6849 X ~C List of Additional Equipment 114413 X .4lc Proaram Products License 4tc 11 4306 X Agreement For Systems Services and Support ______~. u . __u. _~__ _.~___..J Burroughs Corporation ~ BUSINESS MACHINES GROUP LIST OF ADDITIONAL EQUIPMENT IMER City of Chula Vista Date uipment listed on pages 1 through-Lhereof are added to the equipment listed on the face page of the Agree. I identified below: Agreement For Equipment Sale Form No. 1914116 (Identify Agreement) EM UNIT LIST TOTAL LIST O. MODEL AND DESCRIPTION QUANTITY PRICE PRICE System Includes (continued) B 2304-90 DIP DLP 1 B 2341-92 Console DLP 1 B 2247-92 Printer DLP 1 B 2395-91 Mag Tape DLP 1 2 B 2304-90 DIP DLP $4,620.00 $4,620.00. 3 B 2351-90 Unil ine DLP 1 3,676.00 3,676.00 ~ B 2351-91 Unil ine DLP 1 3,676.00 3,676.00 NOTE: Draw a line across the last page following the last item on this addend=. Burroughs Corporatiori m PROGRAM PRODUCTS LICENSE - JSTOMER City of Chula Vista 276 Fourth Avenue (Firm Name) (Number) Chula Vista, California 92010 (Street) (City) (State) (Zip Code) -.--.-1IToughs Corporation, Burroughs Place, Detroit, Michigan 48232 ("BURROUGHS") by its acceptance agrees to and does hereby graot ld Customer ("CUSTOMER") accepts. on the following tenns and conditions, a personal, nontransferable and nonexclusive right and 'ense to use the Licensed Program, Related Materials and Designated Systems Software indentified hereunder in the following schedule ad those ordered from time to time by CUSTOMER subject to written acceptance by BURROUGHS), collectively referred to as Program 'oduets: SCHEDULE . . B 2925-1SY )mputer System Designation Designated Computer System Serial No. (if available) Qty. 1 Program ProductJ Identification Warranty Class Initial Charge- Code Initial Charge Recurring Ucense Charge Code' Monthly Charge Estimated Delivery Date B 2900 SSF 1 A $25,000.00 7-31-84 JSTOMER BY ITS SIGNATURE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND '!AT IT CONSTITUTES THE ENTIRE AGREEMENT, UNDERSTANDING AND REPRESENTATIONS, EXPRESS OR 1M- _lED, BETWEEN THE CUSTOMER AND BURROUGHS WITH RESPECT TO THE PROGRAM PRODUCTS AND SUPPORT TO E FURNISHED HEREUNDER AND TRA T THIS AGREEMENT SUPERSEDES ALL PRIOR COMMUNlCA TIONS BETWEEN -IE PARTIES INCLUDING ALL ORAL OR WRITTEN PROPOSALS. THIS AGREEMENT MAY BE MODIFIED OR AMENDED ~LY BY A WRITTEN INSTRUMENT SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF CUSTOMERS AND URROUGHS. -IE TERMS AND CONDmONS, INCLUDING THE WARRANTY AND LIMITATION OF LIABILITY, ON THE REVERSE ,DE ARE PART OF THIS AGREEMENT. ::CEPTED: Burroughs Corporation y: ROUGHS BUR 30 JUL 1984 By: thorized SignaQlre he City of Chu1a Vista Title July 25, 1984 Date 'T""~ e'l 'CEP t..- Title ... Date .. harge Code Description: A - Initial Chal-ge B - Initial Charge In Installments C - Monthly License Fee fINITIONS oKram Products shall collectively mean the Licensed Pro- .), System Software, and Related Materials which Program :t5 are identified in the schedule on the face hereof and those <rom time to time by CUSTOMER subject to written e by BURROUGHS. (,(!Il.\'C'cI Proxram shall mean the program material in Ie-readable or interpreted form, and may include, where 'nate, listings of either machine code or SOllrce code. \'lel1l SofTware shall mean the current BURROUGHS Te- )f programs and routines which enable CUSTOMER to ;: a leased or purchased hardware system including, for Ie, a control program or operating system, and if provided, ,nate utility routines, conversion programs, and language sors including compilers, assemblers and translators for the ated Computer System. lUll'" Materials shall mean all material other than the ed Program or System Software furnished by BUR- RS in conjunction with such Licensed Program and System re and including, for example, operating instructions, input ation or format specifications, instructional and other entation including all guides and manuals, and further shall , all permitted copies of Program Product material made by )MER. siRfwte" Computer System shall mean the system config- including a processing unit designated by type and serial r and those associated units which have the capacity to Jr call into use the Licensed Program whether or not proc- takes place on the designated processing unit. _..SE JRROUGHS grants to CUSTOMER and CUSTOMER accepts., subject to the limitations in Paragraphs 9 and 10 of :ense, a personal, nonexclusive, nontransferable right and to use the Program Product(s) on the Designated Computer and to use the Related Materials in conjunction therewith, ,eparate license is required for each Designated Computer into which the Licensed Program or any portion thereof is machine-readable form for operation on such System; .DED, HOWEVER, this License may be temporarily -red to a back-up system if the Designated Computer Sys- noperative because of conditions beyond CUSTOMER's IVERY OF PROGRAMS )UGHS shall furnish CUSTOMER on or about the esti- lelivery date specified on the face thereof the then current of the Program Product(s) in a medium suitable for use on <ignated Computer System. M :h license shall commence upon receipt by CUSTOMER of Igram Product material and shall remain in effect for each ive Program Product as fonows: , monthly license fee is applicable, until terminated by ~R upon one month's prior written notice or cancelled _,uUGHS as provided in Paragraphs 12 or 16 hereinafter. 10 monthly license fee is applicable, until CUSTOMER Llsing the Program Product on the Designated Computer including redesignation as provided in Paragr~ph 8. 5. CHARGES AND TAXES .5.1 CUSTOMER agrees to pay BURROUGHS within ten (10) days of receipt of an invoice for the Program Product(s), and for all other charges listed on the face thereof in accordance with the charge code in the Schedule. CUSTOMER agrees to pay a late payment charge at the rate of one and one-half(l-Y..%) percent per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof) that such payment is in dea fault. 5.2 CUSTOMER agrees to pay a non-refundable initial charge upon delivery for all Program Products having an initial charge specified in the Schedule. An initial charge, when applicable, shall be due for each license of the same Program Product. 5.3 BURROUGHS may by ninety (90) days prior written notice to . CUSTOMER increase or decrease the monthly license fees, and BURROUGHS shall designate in such notice the date on which the new license fees shall become effective, If the monthly fee is increased, CUSTOMER may terminate this License upon thirty (30) days prior notice to BURROUGHS. All additional licenses and services shall be invoiced at the.charges in effect at the time of acceptance of an order therefor, 5.4 In addition, CUSTOMER agrees to pay BURROUGHS any tax (except personal property or tax based on net income) on the License, on or measured by the prices, other charges, Program Products, or services furnished, or their use however designated, levied or based whenever BURROUGHS must collect andlor pay such taxes from or on behalf of the CUSTOMER according to the applicable statutes and ordinances, as interpreted by the De~ partmental authorities of the taxing unit. 5.5 CUSTOMER agrees to pay BURROUGHS a media andlor processing charge for preparing such media with the code re- quested by the customer, and if such media are shipped, to pay destination area shipping charges for such shipment. If CUS- TOMER furnishes the media upon order for its preparation, only processing and shipping charges will be invoiced. 6. CLASSIFICATION OF WARRANTY Each Program Product and each release of a Licensed Program will be classified by BURROUGHS in Class" I" or' '2" warranty as defined below. BURROUGHS reserves the right to alter, mod- ify or change the design specifications and class of warranty of each release of a Licensed Program or Program Product. 7. CHANGE IN WARRANTY CLASS BURROUGHS may at its sole discretion change the Warranty Class of any Program Product(s) andlor release of a Licensed Program hereafter without liability to CUSTOMER. The warranty services to be provided after such change shall be as set forth in the newly designated category. 8. LICENSE REDESIGNA TION 8.1 CUSTOMER by written notice to BURROUGHS may re- designate the Designated Computer System on which the Program Products are licensed for use hereunder. The redesignation will be effective in accordance with an Addendum to this License to be furnished to CUSTOMER by BURROUGHS subject to the terms, conditions and charges then in effect. ..+.~-,:-,-:~..;... 8.2 The right of CUSTOMER to redesignate such Designated Computer System does not apply to System Software. _____---..I PERMISSION TO COPY, MODIFY AND USE 1 Any Licensed Program furnished by BURROUGHS in _'.'._._," ichine-readable form may be copied in whole or in part by ~.--'-:JSTOMER for use with the Designated Computer System, tOVIDED, HOWEVER, that only the number of copies rc- .ired to serve CUSTOMER's actual need for the Designated ..... ..___)mputer System shall be made. CUSTOMER agrees that the 'iginal copy of all Program Products furnished by BURROUGHS d all copies thereof made by CUSTOMER are and shall remain e sole property of BURROUGHS. 2 An original or a copy of the Program Product(s) may be kept in )rage at a location separate from that of the Designated Com- Iter System. CUSTOMER agrees to notify BURROUGHS im- . .diately in writing of the location of such backup and safe keep- ~ originals or copy upon request by BURROUGHS. 1 CUSTOMER shall have the right to modify any application 'censed Program supplied by BURROUGHS for CUSTOMER's e under this License, and may combine such with other pro- ams or material to form an updated work, PROVIDED, HOW- VER, upon discontinuance or termination of rights granted ider this License, the Licensed Program supplied by BUR- )UGHS shall be completely removed from the updated work ld aU of such Licensed Programs, copies thereof(in whole or in .rt) and Related Materials shall be returned to BURROUGHS or sposed of in accordance with written instructions from BUR- )UGHS. 4 CUSTOMER expressly agrees to include BURROUGHS IPyright notice and proprietary notice on all copies, in whole or in L11, in any form, including machine language, made by CUS- )MER in accordance with this License. . PROTECTION AND SECURITY USTOMER agrees not to disclose, publish, release, transfer or herwise make available any Program Product(s), in any form, to IY person other than CUSTOMER's or BURROUGHS em- oyees without prior written consent from BURROUGHS except 'tring the period any such person is on CUSTOMER's premises r purposes specifically related to CUSTOMER's use of the 'ogram Product(sl. CUSTOMER also agrees that the Program 'oduct(s) are the property of and proprietary to BURROUGHS Id further agrees to protect the Program Product(s) or any part ereof from unauthorized disclosure by its agents, employees or lstomers, . WARRANTY .1 Each licensed Program Product classified as Warranty Class I" is warranted to conform to the design specification for that lease as designated in the Program Product specification or milar applicable release issued by BURROUGHS. EACH RE- EASE OF A PROGRAM PRODUCT CLASSIFIED IN War- 'nty Class "2" IS LICENSED ON AN "AS IS" BASIS WITH- UT ANY WARRANTY. !.2 The warranty for Warranty Class" I" is applicable to each laltered release of the Licensed Program commencing on the ,te of its delivery to the CUSTOMER and terminating ninety (90) lYS thereafter or upon termination of the license, whichever is ll"lier. .....3 CUSTOMER agrees that its sole and exclusive remedy and . ,- :_::URROUGHS sole obligation, if a Licensed Program warranted ~reunder fails to conform to the applicable design specifications and CUSTOMER advised BURROUGHS of such failure in writ- ing during the term of the warranty, is for BURROUGHS to provide programming services to attempt to correct any defect. For purposes of this Agreement, non-conformance to design specification and the term "defect" shall mean only significant deviations from the design specifications for sucb current release of the Licensed !'iogram. 11.4 EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IM- PLIED, INCLUDING, BUT NOT LIMITED TO, ANY IM- PLIED WARRANTIES OF MERCHANTABILITY OR FIT- NESS FOR A PARTICULAR PURPOSE. 12. PATENT AND COPYRIGHT INDEMNITY 12.1 BURROUGHS shall defend or settle any suit or proceeding brought against CUSTOMER to the extent that such proceeding is based on a claim that Program Product(s) made to BURROUGHS specifications and used within the scope oftbe License hereunder constitutes an infringement of a copyright in the United States or an existing United States patent, PROVIDED BURROUGHS is notified promptly in writing and is given complete authority and information required for the defense of same, and BURROUGHS shall pay all damages and costs awarded therein against CUS- TOMER, but BURROUGHS shaH not be responsible for any cost, expense or compromise incurred or made by CUSTOMER with- out BURROUGHS prior written consent. 12.2 In the event any such Program Product(s) furnished hereun- der is in BURROUGHS opinion likely to or does become the subject of a claim of infringement of a copyright or existing patent in the United States, BURROUGHS may at its option and expense procure for CUSTOMER the rigbt to continue using such Program Product(s), modify them to make them non-infringing or substitute other materials of similar capability. Ifin BURROUGHS opinion, none of the foregoing alternatives is reasonably available to BUR- ROUGHS, then BURROUGHS may terminate the license of such Program Product(s) upon thirty (30) days written notice to CUS- TOMER. If, however, the Program Product is not the subject ofa claim for copyright infringement, CUSTOMER may notify BUR- ROUGHS in writing during the thirty (30) days after BUR- ROUGHS notice of termination that CUSTOMER elects to con- tinue using the same until there has been an injunction or the claim has been withdrawn, and CUSTOMER agrees to undertake at CUSTOMER's sole expense the defense.of any a.ction involving such claim and to idemnify BURROUGHS with respect to all costs, damages and attorneys fees attributable to such continued use by CUSTOMER after such notice is given to BURROUGHS; it being understood that BURROUGHS may participate at its expense in the defense of any such action if such claim is against BURROUGHS. 12.3 BURROUGHS shall have no liability for any claim of copyright or patent infringement based upon the use of other than a current unaltered release ofthe Program Product(s) available from BURROUGHS if such infringement would have been avoided by the use of a current unaltered release of the Program Product(s) available from BURROUGHS, or upon use of combination of the Program Product(s) with non-BURROUGHS programs or data if sllch infringement would have been avoided by the use or combi- nation of the unaltered Program Product(s) with any other pro- grams or data. 12.4 The foregoing states the entire liability of BURROUGHS with -respect to infringement of any copyrights, patents or other proprietary rights by the Program Product(s) or any parts thereof. PONsmILITY OF THE CUSTOMER MER shall be exclusively responsible for the supervision, nent and control of its use of the Licensed Programs, , but not limited to: (I) assuring proper machine config- ogram installation, audit controls and operating , ,1) establishing adequate backup plans, including, for , alternate procedures and access to qualified technical ~l to aid in diagnosis and to assist in repair of Licensed defects in the event of error, defect or malfunction and, :menting sufficient procedures to satisfy its requirements ity and accuracy of input and output as well as restart and , in the event of a malfunction. K OF LOSS IUGHS agrees to replace, without additional charge to MER, any Licensed Program or Related Material lost or I in shipmenttn CUSTOMER. If CUSTOMER loses or . any Licensed Program or Related Material, BUR- lS will replace tbem, if available, at an additional charge. J SERIAL NUMBER 'cnt the serial number of the CPU is not known at the time eDse is executed, the serial number will be inserted by IUGHS on its copy of this License and such serial number the CPU serial number of the Designated Computer Sys- to serial number is designated in this License at the time of In, or as otherwise provided herein, then the serial number :PU on which the Program Product is first used shall be 'tt"l be the CPU serial number ofthe Designated Computer ,CELLATION ON DEFAULT :ense granted hereunder may be cancelled by BUR- IS, if CUSTO MER is in default in payment of any amount erthis Agreement for a period of one (I) month or may be d at any time upon default by the other party of any other Lt of this License if such default is not corrected within two ths after receipt of written notice thereof. Said written nust set forth particulars of the alleged fault. CUS- t's obligation to pay charges which have accrued and any ; arising from its breach of this Lieense shall survive :tion. The remedies provided herein shall not be deemed e but shall be cumulative and shall be in addition to all medies provided by law and equity. No delay or omission :ercise of any remedy herein provided or otherwise avail. IURROUGHS shall impair or affect BURROUGHS right ise the same. Any extension or indulgence (which must be g) shall not otherwise alter or affect BURROUGHS rights :lliaDS or be deemed a waiver thereof. 17. RETURN ON TERMINATION Within thirty (30) days after the termination or cancellation for any reason, ofa license granted hereunder, CUSTOMER shall deliver to BURROUGHS the Licensed Program and Related Materials related to such Licensed Program and all copies thereof in whichever fonn, including partial copies which may have been modified by CUSTOMER or BURROUGHS, or an executed BURROUGHS Program Products License Certificate of Discon- tinuance so certifying. Upon prior written authorization from BURROUGHS, CUSTOMER may be permitted for a specific period thereafter to retain one copy of certain Materials for record purposes. 18. LIMITATION OF LiABILITY 18.1 IN NO EVENT SHALL BURROUGHS BE LIABLE TO CUSTOMER FOR LOSS OF PROFIT, INDIREcr, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF ANY BREACH OF THIS AGREEMENT OR OF OBLIGATIONS UNDER THIS AGREEMENT OR TIlE LICENSE GRANTED OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PARTY, EVEN IF BURROUGHS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 12 (PATENT AND COPYRIGHT INDEMNITY). 18.2 BURROUGHS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY, INSTAL- LATION OR FURNISHING OF THE PROGRAM PRODUCTS OR SERVICES UNDER THIS AGREEMENT. 18.3 IF A CHARGE IS PAY ABLE WITH RESPECT TO ANY PROGRAM PRODUCTS OR RELATED MATERIALS LICENSED HEREUNDER, OR IF A CHARGE HAS BEEN ESTABLISHED IN THE REGULAR COURSE OF BUSINESS BY BURROUGHS FOR LICENSING THE SAME OR SIMI- LAR PROGRAM PRODUCTS, TIlEN BURROUGHS LIABIL- ITY, IF ANY, FOR LOSS OR DAMAGES RELATING TO OR ARISING OUT OF THE LICENSE TIlEREFOR SHALL NOT EXCEED THE CHARGES ATIRIBUTABLE TO SUCH PRO- GRAM PRODUcrS. 19. GENERAL 19.1 The License(s) granted hereunder shall not be deemed to include or extend to any other software or other licensed programs of BURROUGHS or any part thereof, heretofore, or hereafter released by BURROUGHS. 19.2 NO ACTION ARISING OUT OF ANY CLAIMED BREACH OF THIS AGREEMENT OR TRANSACTIONS UNDER THE AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED. 19.3 The laws of the State of Michigan shall govern as to the interpretation, validity and effect of this Agreement. -'