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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ~R~ \ NA L
Date: June IS, 2009
Subject: RESOLUTION OF THE
MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO
AUTHORIZING THE EXTENSION OF
THE MAINTENANCE CONTACT AND
THE AWARD OF AN ANNUAL
PURCHASE ORDER FOR
MAINTENANCE OF THE POLICE
DOCUMENT IMAGING SYSTEM
WORKFLOW SOFTWARE AND
SCANNING STATION
HARDWARE/SOFTWARE TO A VRI0
CORPORATION OF GLENDALE, CA
From: TERI BAKER
ASSISTANT TO CITY
MANAGER
Dept: INFORMATION
TECHNOLOGY DIVISION
MlCC Meeting Date: July 6, 2009
Synopsis of Previous Council Action:
June 16,2008 - Resolution #2008-249 - Approved the renewal of the maintenance contract with
Avrio for maintenance of the Police Document Imaging System Workflow Software and
scanning station hardware/software.
July 2, 2007 - Resolution #2007-216 - Approved the renewal ofthe maintenance contract with
A vrio for maintenance of the Police Document Imaging System Workflow Software and
scanning station hardware/software.
Recommended Motion:
Adopt resolution.
~~
Signature
Contact person:
Ml~p Ifl'kl...y
Phone:
lJlJ._"QJ.7
Supporting data attached: Staff Report
Ward:
All
FUNDING REQUIREMENTS: Amount:
$ 62,152.00
Source: (Acct. No.) 679-251-5172
(ArC't Opl;:C'ripti.m) M~intp.n~n('p r{)ntr~..t.:;:
Council Notes:
;&0
Finance:
2c:Jo9- /~Q
Agenda Item No. ~
7w~wOq
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the
extension of a maintenance contract and the award of an annual purchase order for maintenance
of the Police document imaging system workflow software and scanning station
hardware/software to A vrio Corporation of Glendale, CA.
Background:
The Police Department uses a FileNET document imaging system to manage all of the
enforcement documents created by officers and detectives. The system also manages certain
types of administrative documents. Over I million pages of material are placed into the system
annually. The FileNET system is made up of components manufactured by FileNET (an IBM
company), Kofax, Hewlett-Packard, and Kodak. The FileNET document imaging system was
initially approved through resolution 2002-53.
Scanning station hardware, software, and custom workflow (document routing) software were
purchased and developed for the FileNET system by A vrio Corporation of Glendale, California.
The Police Department has an existing Vendor Service Agreement with this vendor.
This annual maintenance contract provides essential software upgrades, software patches
(repairs), and telephone support services for our department. In addition to software support, this
maintenance contract also provides essential hardware support for the Kodak scanning stations
used in the Police Department Records Bureau. These scanning stations create all of the images
used inside the document imaging system. The workflow software and the scan stations must be
maintained with current software so that critical crime reports, arrest reports and other law
enforcement documents can be available to police personnel around-the-clock.
Financial Impact:
The annual cost for Document Imaging System workflow software and scanning station
maintenance for fiscal year 2009/2010 is $62,152.00 and funds for this service have been
included in the IT 09/10 budget.
Recommendation:
Adopt resolution.
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tory
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXTENSION OF THE MAINTENANCE
CONTRACT AND THE A WARD OF AN ANNUAL PURCHASE ORDER FOR
MAINTENANCE OF THE POLICE DOCUMENT IMAGING SYSTEM WORKFLOW
SOFTWARE AND SCANNING STATION HARDWARE/SOFTWARE TO AVRIO
CORPORATION OF GLENDALE, CA
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. That Avrio Corporation is a selected source provider of maintenance.
services for the Document Imaging System workflow software and scanning station hardware
and software used by the San Bernardino Police Department.
SECTION 2. That the City Manager is authorized and directed to execute a Vendor
Service Agreement in the total amount of $62,152.00, a copy of which is attached hereto as
Exhibit "A".
SECTION 3. That the Mayor and Common Council authorize the Director of Finance
or hislher designee to issue a purchase order for $ 62,152.00 to A vrio Corporation, of Glendale,
California for maintenance services. The Purchase Order shall reference the number of this
resolution and shall incorporate the terms and conditions of the existing maintenance contract
which is on file in the City Clerk's Office. The Purchase Order shall read, "Annual FY
2009/2010 contract PO for annual software and hardware maintenance services. Not to exceed
$62,152.00."
SECTION 4. This purchase is exempt from the formal contract provisions of San
Bernardino Municipal Code4 Section 3.04.010 (B)(3), "Purchases approved by the Mayor and
Common Council."
SECTION 5. The authorization to issue the above-referenced purchase order IS
rescinded ifnot issued within sixty (60) days of the passage of this resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING TIIE EXTENSION OF THE MAINlENANCE
CONTRACT AND THE A WARD OF AN ANNUAL PURCHASE ORDER FOR
MAINTENANCE OF THE POLICE DOCUMENT IMAGING SYSTEM WORKFLOW
SOFTWARE AND SCANNING STATION HARDWARE/SOFTWARE TO AVRIO
CORPORATION OF GLENDALE, CA
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a
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the_day of
, 2009, by the following vote, to wit:
Council Members
Aves
Navs
ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
McCAMMACK
21 The foregoing resolution is hereby approved this
Approved as to form:
Abstain
meeting thereof, held on
Absent
Rachel G. Clark, City Clerk
day of
,2009.
Patrick J. Morris, Mayor
City of San Bernardino
Exhibit "A"
VENDORSER~CEAGREEMENT
This Vendor Service Agreement is entered into this Ist day of July 2009, by and
between Avrio Corporation, of EI Segundo, California ("VENDOR") and the City of San
Bernardino ("CITY" or "San Bernardino").
WITNESSETH:
WHEREAS, the Mayor and Common Council has determined that it is advantageous
and in the best interest of the CITY to contract for annual maintenance of the Police
Department's Document Imaging System as outlined in VENDOR's "Software Service
Agreement" included with this agreement as Exhibit "A".
WHEREAS, renewal of the above referenced Annual PO for maintenance and
support of the Document Imaging System by A vrio Corporation is justified because the
supplies or equipment are not available from any other source. This determination was made
based on internet searches. In addition, A vrio is the only authorized vendor that Kofax
(Scanning Stations/Jukebox equipment vendors) lists for maintenance of our Document
Imaging System from FileNet, in the Southern California region. They are also the
developers of custom workflow and scanning solutions.
NOW, THEREFORE, the parties hereto agree as follows:
1. SCOPE OF SER~CES.
For the remuneration stipulated, San Bernardino hereby engages the servIces of
VENDOR to provide those products and services as set forth on Exhibit "A" and Exhibit
"B", attached hereto and incorporated herein.
2. COMPENSATION AND EXPENSES.
a. For the services delineated above, the CITY, upon presentation of invoices,
shall pay the VENDOR up to the amount of $62,] 52.00 for the services set
forth and quoted in Exhibit "A".
b. No other expenditures made by VENDOR shall be reimbursed by CITY.
CSB-Avrio Corporation VSA - I
3. TERM; TERMINATION.
The term of this Agreement shall be for a period of one year.
This Agreement may be terminated at any time by thirty (30) days' written notice by
either party. The terms of this Agreement shall remain in force unless mutually amended.
The duration ofthis Agreement may be extended with the written consent of both parties.
4. INDEMNITY.
VENDOR agrees to and shall indemnify and hold the CITY, its elected officials,
employees, agents or representatives, free and harmless from all claims, actions, damages and
liabilities of any kind and nature arising from bodily injury, including death, or property
damage, based or asserted upon any actual or alleged act or omission of VENDOR, its
employees, agents, or subcontractors, relating to or in any way connected with the
accomplishment of the work or performance of services under this Agreement, unless the
bodily injury or property damage was actually caused by the sole negligence of the CITY, its
elected officials, employees, agents or representatives. As part of the foregoing indemnity,
VENDOR agrees to protect and defend at its own expense, including attorney's fees, the
CITY, its elected officials, employees, agents or representatives from any and all legal
actions based upon such actual or alleged acts or omissions. VENDOR hereby waives any
and all rights to any types of express or implied indemnity against the CITY, its elected
officials, employees, agents or representatives, with respect to third party claims against the
VENDOR relating to or in any way connected with the accomplishment of the work or
performance of services under this Agreement
5. INSURANCE.
While not restricting or limiting the foregoing, during the term of this Agreement,
VENDOR shall maintain in effect policies of comprehensive public, general and automobile
liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory
worker's compensation coverage, and shall file copies of said policies with the CITY's Risk
CSB-Avrio Corporation VSA - 2
Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an
additional named insured in each policy of insurance provided hereunder. The Certificate of
Insurance furnished to the CITY shall require the insurer to notify CITY of any change or
termination in the policy.
6. NON-DISCRIMINATION
In the performance of this Agreement and in the hiring and recruitment of
employees, VENDOR shall not engage in, nor permit its officers, employees or agents to
engage in, discrimination in employment of persons because of their race, religion, color,
national origin, ancestry, age, mental or physical disability, medical condition, marital status,
sexual gender or sexual orientation, or any other status protected by law, except as permitted
pursuant to Section 12940 of the California Government Code.
7. INDEPENDENT CONTRACTOR.
VENDOR shall perform work tasks provided by this Agreement, but for all intents
and purposes VENDOR shall be an independent contractor and not an agent or employee of
the CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment
of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment
Compensation, and other payroll deductions for VENDOR and its officers, agents, and
employees, and all business license, if any are required, in connection with the services to be
performed hereunder.
8. BUSINESS REGISTRATION CERTIFICATE AND OTHER
REQUIREMENTS.
VENDO R warrants that it possesses or shall obtain, and maintain a business
registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses,
permits, qualifications, insurance and approval of whatever nature that are legally required of
VENDOR to practice its business or profession.
9. NOTICES.
Any notices to be given pursuant to this Agreement shall be deposited with the
CSB-Avrio Corporation VSA - 3
United States Postal Service, postage prepaid and addressed as follows:
TO THE CITY:
Mr. Michael Eckley
City of San Bernardino
300 North D Street
4th Floor - IT Dept.
San Bernardino, CA. 92418
Telephone: (909) 384-5947
TO THE VENDOR:
Mr. Gregory Kaut
A vrio Corporation
222 North Sepulveda Blvd Ste. 2000
El Segundo, CA. 90245
Telephone: (310) 651-6679
10. ATTORNEY'S FEES
In the event that litigation is brought by any party in connection with this Agreement,
the prevailing party shall be entitled to recover from the opposing party all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing party in the
exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
conditions or provisions hereof. The costs, salary and expenses of the City Attorney and
members of his office in enforcing this Agreement on behalf of the CITY shall be considered
as "attorneys' fees" for the purposes of this paragraph.
11. ASSIGNMENT.
VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or
encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior
written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void
CSB-Avrio Corporation VSA - 4
and shall constitute a breach of this Agreement and cause for the termination of this
Agreement. Regardless of CITY's consent, no subletting or assignment shall release
VENDOR of VENDOR's obligation to perform all other obligations to be performed by
VENDOR hereunder for the term of this Agreement.
12. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of
California, Riverside Division. The aforementioned choice of venue is intended by the
parties to be mandatory and not permissive in nature.
13. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of California.
14. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
15. HEADINGS.
The subject headings of the sections of this Agreement are included for the purposes
of convenience only and shall not affect the construction or the interpretation of any of its
provisions.
16. SEVERABILITY.
If any provision of this Agreement is determined by a court of competent jurisdiction
to be invalid or unenforceable for any reason, such determination shall not affect the validity
or enforceability of the remaining terms and provisions hereof or of the offending provision
in any other circumstance, and the remaining provisions of this Agreement shall remain in
full force and effect.
17. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the
CSB-Avrio Corporation VSA - 5
parties, and supersedes any prior agreements and understandings relating to the subject
manner of this Agreement. This Agreement may be modified or amended only by a written
instrument executed by all parties to this Agreement.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
and date set forth below.
VENDOR:
Dated:
,2009
By:
Its:
CITY OF SAN BERNARDINO:
Dated: , 2009
By:
(Mr. Charles E. McNeely, City Manager)
Dated:
,2009
Approved as to Form:
James F. Penman, City Attorney
By:
III
III
III
CSB-Avrio Corporation VSA - 6
1 VENDOR SERVICE AGREEMENT
2 This Vendor Service Agreement is entered into this 1st day of July 2009, by and
3 between Avrio Corporation, of El Segundo, California ("VENDOR") and the City of San
4 Bernardino ("CITY" or "San Bernardino").
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b.
For the services delineated above, the CITY, upon presentation of invoices,
shall pay the VENDOR up to the amount of $62,152.00 for the services set
forth and quoted in Exhibit "A".
No other expenditures made by VENDOR shall be reimbursed by CITY.
CSB-Avrio Corporation VSA - 1
a.
1 3. TERM; TERMINATION.
2 The term of this Agreement shall be for a period of one year.
3 This Agreement may be terminated at any time by thirty (30) days' written notice by
4 either party. The terms of this Agreement shall remain in force unless mutually amended.
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The duration of this Agreement may be extended with the written consent of both parties.
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4.
INDEMNITY.
VENDOR agrees to and shall indemnity and hold the CITY, its elected officials,
employees, agents or representatives, free and harmless from all claims, actions, damages and
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10 liabilities of any kind and nature arising from bodily injury, including death, or property
11 damage, based or asserted upon any actual or alleged act or omission of VENDOR, its
12 employees, agents, or subcontractors, relating to or in any way connected with the
13 accomplishment of the work or performance of services under this Agreement, unless the
14 bodily injury or property damage was actually caused by the sole negligence of the CITY, its
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elected officials, employees, agents or representatives. As part of the foregoing indemnity,
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VENDOR agrees to protect and defend at its own expense, including attorney's fees, the
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CITY, its elected officials, employees, agents or representatives from any and all legal
actions based upon such actual or alleged acts or omissions. VENDOR hereby waives any
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20 and all rights to any types of express or implied indemnity against the CITY, its elected
21 officials, employees, agents or representatives, with respect to third party claims against the
22 VENDOR relating to or in any way connected with the accomplishment of the work Qr
23 performance of services under this Agreement
24 5.
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INSURANCE.
While not restricting or limiting the foregoing, during the term of this Agreement,
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VENDOR shall maintain in effect policies of comprehensive public, general and automobile
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liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory
worker's compensation coverage, and shall file copies of said policies with the CITY's Risk
CSB-Avrio Corporation VSA - 2
Manager prior to undertaking any work under this Agreement. CITY shall be set fortb as an
1 additional named insured in each policy of insurance provided hereunder. The Certificate of
2 Insurance furnished to the CITY shall require the insurer to notify CITY of any change or
3 termination in the policy.
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6.
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NON-DISCRIMINATION
In the performance of this Agreement and in the hiring and recruitment of
employees, VENDOR shall not engage in, nor permit its officers, employees or agents to
engage in, discrimination in employment of persons because of their race, religion, color,
9 national origin, ancestry, age, mental or physical disability, medical condition, marital status,
10 sexual gender or sexual orientation, or any other status protected by law, except as permitted
11 pursuant to Section 12940 of the California Government Code.
12 7.
INDEPENDENT CONTRACTOR.
of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment
19 employees, and all business license, if any are required, in connection with the services to be
20 performed hereunder.
21 8.
22 REQUIREMENTS.
BUSINESS REGISTRATION CERTIFICATE AND OTHER
23 VENDOR warrants that it possesses or shall obtain, and maintain a business
24 registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses,
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permits, qualifications, insurance and approval of whatever nature that are legally required of
VENDOR to practice its business or profession.
9. NOTICES.
Any notices to be given pursuant to this Agreement shall be deposited with the
CSB-Avrio Corporation VSA - 3
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10.
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United States Postal Service, postage prepaid and addressed as follows:
TO THE CITY:
Mr. Michael Eckley
City of San Bernardino
300 North D Street
4th Floor - IT Dept
San Bernardino, CA. 92418
Telephone: (909) 384-5947
TO THE VENDOR:
Mr. Gregory Kaut
A vrio Corporation
222 North Sepulveda Blvd Ste. 2000
EI Segundo, CA. 90245
Telephone: (310) 651-6679
ATTORNEY'S FEES
In the event that litigation is brought by any party in connection with this Agreement,
19 the prevailing party shall be entitled to recover from the opposing party all costs' and
20 expenses, including reasonable attorneys' fees, incurred by the prevailing party in the
21 exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
22 conditions or provisions hereof. The costs, salary and expenses of the City Attorney and
23 members of his office in enforcing this Agreement on behalf of the CITY shall be considered
24 as "attorneys' fees" for the purposes of this paragraph.
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11.
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ASSIGNMENT.
VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or
encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior
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written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void
CSB-Avrio Corporation VSA - 4
and shall constitute a breach of this Agreement and cause for the termination of this
1 Agreement. Regardless of CITY's consent, no subletting or assignment shall release
2 VENDOR of VENDOR's obligation to perform all other obligations to be performed by
3 VENDOR hereunder for the term of this Agreement.
4
12.
VENUE.
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The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of
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California, Riverside Division. The aforementioned choice of venue is intended by the
10 parties to be mandatory and not permissive in nature.
11 13.
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13 14.
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GOVERNING LAW.
This Agreement shall be governed by the laws of the State of California.
SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the parties to this
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Agreement and their respective heirs, representatives, successors, and assigns.
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15.
HEADINGS.
The subject headings of the sections of this Agreement are included for the purposes
19 of convenience only and shall not affect the construction or the interpretation of any of its
20 provisions.
21 16.
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SEVERABILITY.
If any provision of this Agreement is determined by a court of competent jurisdiction
23 to be invalid or unenforceable for any reason, such determination shall not affect the validity
24 or enforceability of the remaining terms and provisions hereof or of the offending provision
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in any other circumstance, and the remaining provisions of this Agreement shall remain in
full force and effect.
17.
ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the
CSB-Avrio Corporation VSA - 5
parties, and supersedes any prior agreements and understandings relating to the subject
1 manner of this Agreement. This Agreement may be modified or amended only by a written
2 instrument executed by all parties to this Agreement.
3 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
4 and date set forth below.
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VENDOR:
Dated:
,2009
Its:
CITY OF SAN BERNARDINO:
Dated:
,2009
By:
(Mr. Charles E. McNeely, City Manager)
Dated:
,2009
Approved as to Form:
James F. Penman, City Attorney
By:
?
. ~'"""'-
III
CSB-Avrio Corporation VSA - 6
Exhibit "A"
.
222 N. Sepulveda Blvd. #2140
EI Segundo, CA 90245
Phone. 310-651-6679 Fax 310-651-6675
avno
corporation
Software Service Agreement
This Software Service Agreement (hereinafter 'Agreement') is made and entered into by Avrio Corporation (hereinafter 'Avrio') and The City of
San Bemardino Police Department (hereinafter 'Custome~) located at: 710 North D Street, Ca, 92401.
This Agreement inciudes the General Terms and Conditions of which are attached hereto.
This Agreement constitutes the entire agreement between the parties on the subject matter hereof and supersedes all prior or contemporaneous
agreements, negotiations, representations, and proposals, written or oral between A VRIO or its affiiiates and Customer. This Agreement is not an
acceptance of any conflicting or additional terms and conditions and will prevail over any conflicting or additional provisions of any Customer
purchase order or other instrument The parties agree that any Customer purchase order is for customer's convenience only. Only a written
instrument executed by both parties referenced as an amendment to this Agreement may modify or supplement this Agreement.
BY EXECUTING THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT iT HAS REVIEWED THE ATTACHED TERMS AND CONDITiONS
AND AGREES TO BE LEGALLY BOUND BY THEM.
CUSTOMER, BY ITS SIGNATURE, ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS CERTAIN LIMITATIONS OF LIABILITY AND
CERTAIN WARRANTY DISCLAIMERS.
A VRIO Corporation. Inc
Customer
By
Typed or Printed Name
By
Typed or Printed Name
Signature
Signature
Title
Title
Date
Date
Approved as to form:
James F. ~City Attom;,>'
By -;>./~
(/
Avrio Corporation
Support Ag...mentdoc
General Terms and Conditions
Following are the tenns and conditions under which AVRIO
provides Service (the 'Service') for the Suppert Program indicated
in the Suppert Subscription Order Fonn covering the Software listed
in the Software Product Infonnation Fonn:
1. Maintenance
A. Hours of Service Availability. Payment of the standard
Service Charges (as defined in Section 5) entitles
Customer to Service during the Principal Period of
Maintenance ('PPM'). The PPM is a ten hour
contiguous daily time period between the hours of 7:00
AM and 5:00 PM, Pacific Time Zone, Monday though
Friday, excluding AVRIO's pUl:llished holidays or such
holidays as ol:lserved locally by A VRiO. All Service
sul:lsequently added shall have the same PPM.
B. Scope of Service. Software Service includes the
response to and resolution of customer-encountered
problems with the Software as reported to A VRIO by the
Customer. The resolution of such encountered problems
shall, at AVRIO's option, consist of: (1) maintenance
provided through telephone or eiectronic suppert; (2)
correction of any defect in the Software program that
materially and adversely affects the use of the Software
as described in AVRIO's specifications, (3) delivery of
bug fixes or workarounds limited to the current or
immediate Drior Software reiease. A VRIO will suppert
Software licensed to the customers development and
production systems. A VRiO will use commercially
reasonable efforts to res pend to Customer calls
according to the priority level of the call. A VRIO will
ensure the customer's call is resolved within a
commercially reasonable period.
C. Service Limitations. Software Service is contingent
upon the use of unmodified Software (except as
authorized by A VRIO) operated in accordance with
AVRIO's specifications. Software Service specifically
excludes the following: (1) Service to a version of
Software other than the current or immediate oricr
release: (2) efforts to restore a release of the Software
beyond the current or immediate prior release; (3) efforts
to restore Customer data beyond the most recent back-
up.
A VRIO periodically announces the End of Service Ufe
(EOSL) for Software. A VRiO will notify the Customer
signatory or designee in writing or by electronic mail,
such announcements will provided at a minimum one
hundred and Eighty (180) days notice to the customer
prior to the Service discontinuance. A VRiO will provide
Service on this Software after the EOSL on a best efforts
basis at ITS prevailing time and material rates.
Avrio Corporation
Initals:
2. Customer Responsibilities
Customer is responsible for maintenance and installation of
any common carrier equipment or communication service
related to the operation of the Software and not fumished by
A VRIO. Customer is also respensible for charges incurred for
communication facilities at customers facilities, whether
incurred by Customer or by AVRIO Service representatives
while perlonning Service on the Software. Customer is
responsible for perlonning Software back-ups in accordance
with published documentation. Customer shall notify AVRIO
of any Software failure and shall allow A VRIO reasonable
access to the Software for perlorming Service. Customer
must provide A VRIO with modem access to the Software
located on customers deveiopment and production systems in
order to perlonn remote support. The Customer must
maintain a First Level response capability that is A VRIO-
certified, per published A VRIO education standards, to answer
the Customer questions regarding the operating system,
database (including back-up and restore) and AVRIO toois
and applications purchased by the Customer. The Customer
may only escalate the call to AVRIO through its AVRIO-
Contacts.
3. Software Modification
A VRIO will not be respensible to Customer for loss of use of
the Software or for any other liabilities arising from alterations,
additions, adjustments, or repairs made to the Software by
other than authorized representatives of A VRIO or at the
direction or with the authorization of A VRIO. A VRIO reserves
the right to tenninate this Agreement upen written notice to
Customer if any such alteration, addition, adjustment or repair
adversely affects AVRIO's ability to render maintenance
Service to the Software.
4. Term and Renewal This Agreement may be tenninated at any
time by thirty (30) days' written notice by either party. The
terms of this Agreement shall remain in force unless mutually
amended. The duration of this Agreement may be extended
with the written consent of both parties
5. Service Charges
A. Definition. 'Service Charges' are the totai annual
charges for the support program selected on the Partner
Suppert Subscription Order Fonn. After the initial tenn
and upon thirty (30) days written notice, A VRIO may
change its sfandard Service charges then in effect. If the
Service Charges are increased, Customer may tenninate
Service as of the effective date of such increase, upen
fifteen (15) days written notice to AVRIO. If Customer
does not tenninate Service as stipulated, the new
Supoort Agreement.doc
2
Service Charge shall become effective on the date
specmed in the notice.
B. Invoices. Service Charges will begin on the first day of
the month ninety (90) days after the Shipment Date of
Software in order to aliow the Customer sufficient time
for deployment to its sites. Service charges for Software
add-<Jns will begin on the first day of the month after the
Shipment Date of the add-on and will be cotenninous
with the tenn of Service applicable to the Software
initially covered. Customer shall pay all invoices in full
within thirty (30) days of receipt of the invoice regardiess
of whether or not Customer utilizes Service every month
during the tenn. All amounts payable under this
Software Service Agreement shall be paid in the
currency stated on the invoice,
C. DelauK. Customer will be in default if all undisputed
amounts due within thirty (30) days after receipt of
invoice have not been paid. If Customer defaults in any
payment due hereunder to A VRIO, the defaulted sum
shali bear interest from the date of default at an annual
rate equal to one and one-half percent (1.5%) per monfh,
or the maximum interest rate pennitted by law,
whichever is lower. Customer's failure 10 pay any
charges when due shall also constitute sufficient cause
for AVRIO to suspend or tenninate Service under this
Software Service Agreement.
6. Supplemental Maintenance Service
A. Movement 01 Products. Software moved to a location
outside of the original delivery country shall continue to
be Serviced at the option of A VRIO subject to the
prevailing tenns, conditions and prices of the country to
which it is moved. Furthermore, AVRIO shall have the
nght to alter the type of Service provided to the reiocated
Software. Customer shall give A VRIO at least thirty (30)
days written notice specifying the new location prior to
any movement. The Service Charges specified in this
Agreement shall be suspended on the day the
deinstaliation of the Software commences and shall be
reinstated on the day following the installation of the
Software at the new location. Reinstallation must occur
within thirty (30) days of deinstallation or a pre-a>ntract
inspection may be required and billed at the current time
and material rales.
B. Other Service. AVRIO's rendering of maintenance
service that is not included in the selected customer
Support Subscription Order, including extended
coverage, upgrade of Software releases and consulting,
if requested by customer, wili be pertormed at AVRIO's
discretion upon receipt of purchase order or appropriate
payment, and, if pertonned, will be charged to Customer
at current prices and tenns then in effect.
Initais:
Avrio Corporation
7. L1MrrED WARRANTY
THE SERVICE OBLIGATIONS SET FORTH IN THIS
AGREEMENT ARE IN LIEU OF ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. SERVICE PROViDED
UNDER THIS SERVICE AGREEMENT DOES NOT ASSURE
THE UNINTERRUPTED OPERATION OF THE SOFTWARE.
8. Proprietary Rights
Certain inlonnation and materials supplied by A VRIO with the
Service such as, but not limited to, logic diagrams and
manuals, schematics and drawings, are AVRIO confidential or
proprietary trade secrets and A VRIO fumishes them solely to
assist Customer in the installation, operation and use of the
Software. AVRIO marks all such confidential and proprietary
infonnation and Customer must abide by fhe tenns 01 those
markings, and not reproduce, copy or disdose such
information, except as is reasonable and necessary to use the
Software property.
9. Limitation 01 Liability
Unless expresSly provided otherwise in this Agreement,
A VRIO and its Licensors will not be liable for any loss or
damage claimed to have resulted from the Service or the use,
operation or pertonnance of the Software or related in any way
to their acquisition, regardless of the fonn of action. In no
event will A VRIO be liable to Customer for la) any special,
indirect, incidental or consequential dameges, even ff A VRIO
has been advised of the possibility thereof, (b) any damages
resulting from latent defects, loss of data or profits, (c) any
claim whether in contract or tort, that arose more than four
years prior to institution 01 suit thereon. AVRIO shall be liable
for actual damages resulling from a material breach of this
Agreement and for personal injury or property damages
directly resulting from gross negligence or intentional
misconduct on the part of A VRIO up to, but not exceeding, the
annual Service Charge paid hereunder.
10. Export
Customer agrees that the Software provided hereunder will
not be exported directly or indirectly, separately or as part of
any system, without first obtaining a license from the U.S.
Department of Commerce or any other appropriate agency of
the U.S. Govemment, as required.
11. Assignment
Neither party may assign, voluntarily or by operation of law,
any of its rights or obligations in this Agreement except with
prior written consent of the other party. This Agreement will
Support Agreementdoc
3
be binding on and inure to the benefit of the parties hereto and
their respective successors and pennitted assigns,
12. Waiver
The parties' rights and remedies are separate and cumulative.
Neither party's waiver or failure to exercise in any respect any
right or remedy provided in this Agreement is a waiver of any
future right or remedy hereunder.
13. Force Majeure
If any cause beyond AVRIO's reasonable control prevents
A VRIO from pertonming under this Agreement by a given date
or time. A VRIO's pertonmance will be automatically postponed.
Initials:
Avrio Corporation
14. Choice of Law
The laws of the State of Califomia will govem the construction
and operation of this Agreement without regam to the conflicts
of laws provisions thereof.
15. Severability
The invaiidity of any provision of this Agreement will not aflect
the validity and binding effect of any other provision.
16. Notice
Notices hereunder must be sent to the addresses on the face
of this Agreement, or to such other addresses as spectfied by
a notice complying with this provision. Notice is effective on
the earlier of actual receipt or five days after deposit in the
U.S. Mail. Notices to A VRIO must be sent to the atlention of
'Contracts Administration,"
Support Agreement.doc
4
tI)~~
222 N. Sepulveda Blvd #2140
EI Segundo, CA 90245
Phone. 310-651-6679- Fax 310-651-6675
CustomerSupport Subscription Order Form
Customer. Date:
ContractfF inancial Contact: Phone: Fax:
Address:
Citv. State or Province
Zip Code or Postal Code: Countrv: United States
Model Descriotion Rate Amount
Standard Snpport
UAPlus Upgrade Assurance - Standard Support (Please ]8% $
comv/ete the Software Product Information form
which fol/ows)
Customer Signature
Title
Customer agrees to the terms and conditions set forth in the Software Service Schedule.
Avrio Corporation
Support Agreementdoc
5
Software Product Information Form
CustomerName:_ City of San Bernardino Police Department
The following information is required in order to process your enrollment. Please provide a list of your installed
Software including serial numbers, quantities and descriptions. IF YOU DID NOT PURCHASE YOUR
SOFTWARE DIRECTLY FROM A VRIO. PLEASE ALSO INCLUDE A COPY OF THE P.O. OR INVOICE
AS PROOF OF PURCHASE.
MODEL NUMBER DESCRIPTION Qly
E0502LL FNCSAUTHUSER ANNUAL S&S 23.26 8,141.00 350
RNWL
E053CLL EFDESCLlDV ANNUAL S&S RNWL 1
E050LLL FNEFFP8AUSR ANNUAL S&S RNWL 29
E053NLL EPROCSVCSAU ANNUAL S&S RNWL 162
E053TLL EPRCSERVTKCDVANNUAL S&S RNWL I
.
Avrio Corporation
Support Agreement.doc
6
~~2
Exhibit "e"
Master Agreement Terms and Conditions
This Master Agreement (herein "Agreement") is made and entered into by and between Avrio Corporation, a
California Corporation having its prindpal place of business at 222 N Sepulveda Blvd #2140, E1 Segundo
California 90245 (" Avrio") and ("Customer") having its prindple place of
business at: address City State Zip.
This Agreement indudes the following General Terms and Conditions, as well as those Schedules listed
below which are initialed by Customer, all Exhibits referendng the above stated Agreement, and all Mure
Schedules referendng this Agreement which Avrio and Customer may execute from time to time for the
purchase, license, support and service of Avrio software and hardware (herein collectively "Products").
Software Ucense
Hardware Purchase
Software Support
Professional Services
Addendum
This Agreement constitutes the entire agreement between the parties on the subject matter hereof and
supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written
or oral between Avrio and Customer. This Agreement is not an acceptance of any conflicting terms and
conditions and will prevail over any conflicting provision of any Customer purchase order or other
instrument The parties agree that any Customer purchase order is for Customer's convenience only. Only a
writing executed by authorized representatives of the parties and referenced as an amendment to this
Agreement may modify, supplement, or change this Agreement.
BY EXECUTING THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT IT HAS REVIEWED THE TERMS AND
CONDmONS AND AGREES TO BE LEGALLY BOUND BY THEM.
CUSTOMER, BY ITS SIGNATURE, ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS CERTAIN
UMITATIONS OF UABIUTY AND CERTAIN WARRANTY DISClAIMERS.
Avrio Corporation
By
Customer:
By
(Type or print name)
(Type or print name)
Title
Title
(Signature)
(Signature)
Date
Date
Avrio Corporation
Master Agreement 12107
General Terms and ConcItions
1. Payment T.... Avriowill invoice Customer for a/IlJcense Fees, H.-aware Fees, Support Charges end Service Fees (herein "Fees"). Customer must pII)'
each invoice wiltin ttirty (30) days from invoice date, U"IIeas otherwise spedfiecI in the applicable Schedule. K Customer autt10rizes deliveries in instlIIIments,
Customer must pay each irwoicII!I for a deliY8l'y within thirty (30) a.ys from invoice date wiltlout ~ to ottw sd1eduIed shipments. Invoices not paia..nen m..
willh8vee1,O percent per month intenat d'l-ve or the highest lawful rate, whic:heverisless, BSHSHd egainstthe~b8ianc:effomthedlltedinYoiolllltil
the date of P8}'lTNJl'll All payment! made U"Ider this Agreement shall be paid in the c::urrency stated on \he invoice.
1. o.tivwy. All Products are considered delivered to Customer, F.Q.B. origin, upon transfer to 8ithllf a oommon C81Tieror Customer lit anAvrio designated
location. Avrio will ship all Products prepaid end willlhen invoice Customer sep81'8le1y for related lransportation costs. In tt1e absence of pOor shipping instructions,
Avrio will select the c:anier on beI1alf of Custaner, but assumes no ~ability for shipment
3. Proprtet8ry fUghc.. Certain information and malerials supplied by Avrio will1lhe Products such as, but not hmited 10, manuals, 0agrM\s, and draings, are Avrio
confidential or proprielay IT1Ide Il8Cf8t$ and Avrio furnishes them solely 10 assist Customer in the installation, operetion and use of the Products. Avrio marks all
such confidential and proprietary informalion and Customer must abiae by the terms of those mal1lings, and not reproducIIl copy or disdose such information
except 8S is rea&OI'lllbIe and necessa-y to property use the Products.
4. Infringement Indemnffication.
A- AYl'io will defend any action, SUI. or proceeding brought against Customer if based on a claim that the Products delivered hereunder infringes any United States
palent, copynght. trade seaet. or other intelledu8l property right of any third party ("Intellectual Property") provided that Customer promptly notifl&S Avrio ofttle
action and gives Avrio fuU authority, infoml8tim and assistance for the action's defense. Avno will pay all ct.nages and costs awarded lI1er8in against Customer,
but shall not be responsible for any compromise made without its consent Avrio may, at any lime it is conoemed over !he possibility of suctI an infringement. at its
option and expense, replace or modify the Products so thai infringement will not exist, or remove the Products involved and refi.n:I to Customer the price as
depreciated by an equal annual amount over the lifetime Avrio establishes for lhe Products
B. Avrio shall have no liability to Customer if any Intellectual Property infringement Of claim thefeof is based ~ the use of the PnxIucts in connection or in
combination with equipment, devices, or software nOl supplied by Avrio or used in a manner not expressly autl10lized by this Agreement or in a manner for which
the Products were not designed, or if the claim of infringement would have been avoided but for Custome(s use of software otner ttI8n the latest, UlffiOdified
release of Software made available 10 Customer by Avrio
C.Customer shall indemnify and hold Avrio lwmtess from any loss, cost or expense suffered 01'" ina.mK:I in connection with any daim, suitor proceeding brought
against Avrio 80 far as it is based on a daim Ihal the use, sale, or licensing of any Products delivered hereunder and modified or altered or combined with any
products, device, or software not supplied by Avrio hereunder conslituIes an infringement because of such modification, alterabon or combination
5. Umttatiorl of Uabllity. Unless expressly provided ottlefWise in Itlia Ageement, Avrio and its Ucensors will not be liable for any loss or damage claimed to have
resulted from the use, operation or performance of the Products 01'" related in B1)' way to their ~sition, regEI'dIHs of the form of action. In no event will Avrio be
liable 10 Customer for (al any special, indirect, lncioental orconsequentia\ damages, even if Avrio has been advised of !he possibility lI'tereaf, (b) any damages
re5lAting from latent defects, loss of data or profits,{e) any claim whether in contract or Iort, lhat arose more than one year prior to instituIion of suit thereon. Avrio
shall be liable for actual demages resulting from a material breactt of this Agreement and for personal inJLUY or property damages directly resulting from gross
negligence or intentional misc:onOud on the part of Avrio up 10, but no! exceeding, the License Fees or Hardware Fees paid hefeunder
6. Tues.
A Customer shall pay all taxes. levies, and similar governmental cI1arges. however designated, and allliabililies with respect thereto whid'l may be imposed by
any jurisdiction. inc:Iuding, wilhoullimitation, customs, privilege, exCise, sales, use, vaiue-adcted and properly taxes levied or based on lJ'OSS revenue or operation
of this Agreement, heept those taxes based upon Avrio's net income.
7. Export.. Customef agrees It1al: lhe Products purdlased h8l'"8lJ1derwill not be exported directly or indirectly, sepa'8tely or as part of any system, withaJt firat
obtaining a license from ttle U.S. Department of Commerce or any other appropriate agency of the U.S. GoverTvnent, as required.
&. AulgnmenL Customer may not assign, votUl'ltarily or by operation of law, any of its rights or obligaliOns in this Agreement except with Avrio's pliOI'" wrrtIen
consent. This Agreement wiH be binding on and in.Jre 10 !he benefit of the parties hereto and their respective successors and permitted assigns.
9. Waivwr. The parties' rights and remedies are separate and CLmulative. Neither parties waiver or failure to 8X8l'Cise in any respect a"I)' light or remedy provided
in this Agreement is 8 diver of a"Iy MISe light or remedy hereunder
10. Force Majeure. If any cause beyond Avrio's ttlasoneble control prevents AVfio from pertCJm1ing unDer this Agreement by 8 given date or time, Avrio's
performance will be automatically postponed.
11. Choice of Law. The laws oflt1e Slate 01 Califarnia will govern Ihe a:rnstruction and operation of ItlisAgreement without regard to the conflict of laws provisions
-
12. Seve~bUhy, The invalidity of any provision of this Agreement WiIII'lOt affed. the validity and binding effect of any other provision.
13. Notice. Noticesherel..nOer rTUSt be sent 10 the admtsses on the face of this Agreement. orte su01 other ac:knsses as specified by a notice comptying with
Itlis provision_ Notice is effective on the earlie!' of actual receipt or five days after deposit in the mail. Notices in the form of a fax or smail a-e ecceptable if followed
up by a mailed confirmation. Notices toAvrio must be sent to the attention of "Contracts AdministratiO(l"
Initials:
Avrio Corporation
Master Agreement 12107