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HomeMy WebLinkAboutItem 09 Consideration of Bio-Key International Service Agreement CCe�ee tter of Good Lig �++V AGENDA ITEM COVER SHEET Meeting Date: June 07, 2005 Item # Reviewed By: ' I Contact Name: Steven Goclon Department Director: Contact Number: X3027 City Manager: • , Subject: Bio-Key International Service Agreement Background Summary: The City of Ocoee maintains a service and maintenance agreement with Bio-Key International for support and maintenance service of Patrol Packet Cluster software for State records /NCIC wireless interface with our system of laptop computers. The proposed agreement takes effect for one year upon the date of signing. Issue: Should the Honorable Mayor and Board of City Commissioners authorize the Mayor and City Clerk to execute the Service and Maintenance Agreement between Bio-Key International and the City of Ocoee, Florida in the amount of$15,797.70. Recommendations It is respectfully recommended that the Honorable Mayor and Board of City Commissioners authorize the Mayor and City Clerk to execute the Service and Maintenance Agreement between Bio-Key International and the City of Ocoee, Florida in the amount of$15,797.70. Attachments: Agreement is hyperlinked in the Staff Report Financial Impact: $15,797.70 is budgeted in the FY 2004-2005 Police Department budget (Equipment Maintenance Contracts 001-521-4606). Type of Item: ❑ Public Hearing For Clerk's Dept Use: ❑ Ordinance First Reading / Consent Agenda ❑ Ordinance First Reading 0 Public Hearing ❑ Resolution ❑ Regular Agenda ® Commission Approval ❑ Discussion&Direction El Original Document/Contract Attached for Execution by City Clerk El Original Document/Contract Held by Department for Execution Reviewed by City Attorney ❑ N/A Reviewed by Finance Dept. . �2 y - ❑ N/A Reviewed by ( ) ❑ N/A Mayor ire Center of Good L Commissioners S. Scott Vandergrift 8 Danny Howell, District 1 _d ' d Scott Anderson, District 2 City Manager ' ,JRusty' RJohnson, District 3 � r - y Robert Frank / !'411. - Nancy J. Parker, District 4 STAFF REPORT TO: The Honorable Mayor and City Commissioners FROM: Steven J. Goclon, Chief of Police DATE: May 27, 2005 RE: Bio-Key International Maintenance Agreement ISSUE Should the Honorable Mayor and Board of City Commissioners authorize the Mayor and City Clerk to execute the Service and Maintenance Agreement between Bio-Key International and the City of Ocoee, Florida in the amount of$15,797.70 BACKGROUND/DISCUSSION The City of Ocoee maintains a service and maintenance agreement with Bio-Key International for support and maintenance service of Patrol Packet Cluster software for State records/NCIC wireless interface with our system of laptop computers. The proposed agreement takes effect for one year upon the date of signing. Bio- Key International is formerly known as Cerulean and has provided the police department with this service since the City initially purchased the system and software in 1998. The cost of the service agreement for the next 12 months is $15,797.70. This was budgeted in the FY 2004- 2005 Police Department budget(Equipment Maintenance Contracts 001-521-4606). Foley and Lardner reviewed and approved the proposed agreement. BIO-key INTERNATIONAL BIO-key International,Inc. SUPPORT AND MAINTENANCE AGREEMENT • This agreement ("Agreement") is made by and between BIO-key Customer's Support Contacts designated under Section 2.7.2. BIO- International, Inc.("BIO-key")and the customer identified at the end key technical support representatives will be available by telephone of this Agreement('Customer")and is dated as of the effective date, Monday through Friday from 8:00 a.m.to 6:00 p.m. ET. During off- as defined herein. hours, in connection with High Priority situations as described in Section 2.3 below, a BIO-key technical support representative will Recitals. endeavor to return Customer's call within four(4)hours. A. Customer has licensed and/or purchased the Product(s) (as 2.3 Response Priorities. BIO-key will assign all Customer requests defined below) from BIO-key under separate agreement (the for Error support one of two response priorities that will dictate the "Purchase Agreement") and desires to obtain support and timing of the response as follows: maintenance services for such Products. High Priority. A major feature/function of the Product(s)is not B. 1310-key desires to provide such support and maintenance working or the system integrity is at risk. BIO-key will attempt to services for such Product(s)upon the terms and co ditions set forth provide a Workaround or Patch within three(3)business days of in this agreement. Customer's report of the problem. If the Workaround or Patch cannot be provided within the three(3)business days, 810-key Therefore,for good and valuable consideration BIO-key and will dedicate resources to the problem resolution and will inform Customer agree as follows: Customer on a periodic basis of the resolution status. Low Priority. The Customer has a problem that is not seriously Section 1. Definitions. impacting the Customer's workflow, i.e., any problem that does 1.1 'Error" means any failure of a Product(s) to conform in any not meet the above standard for "High Priority". BIO-key will material respects to its published and/or provided documentation. assess, in good faith, the timing for the provision of a 1.2 "Product(s)"means the BIO-key Product(s)listed on Exhibit A. Workaround or Patch for such problem, whether in a future The Product(s) includes any and all Enhancement Releases, Maintenance Release,Enhancement Release or earlier. When Maintenance Releases or Patches delivered to Customer under this such determination is made,BIO-key will notify Customer of the Agreement or the Purchase Agreement. Items not supplied by BI0- results of the status evaluation, which could include delaying key do not qualify as Products hereunder. repair of the error until a future planned release. 1.3 'Enhancement Release"means a new release of a Product with 2.4 Subsequent Releasefsl. During the term of this Agreement, new features and/or functionality or improved performance for which BIO-key will send Enhancement Releases and Maintenance a separate new version upgrade fee is not charged. Releases to Customer when made generally commercially available 1.4 "Maintenance Release"means a new release of a Product that by 1310-key to its customers. Each Enhancement Release, incorporates Patches and/or other maintenance changes. Maintenance Release and Patch delivered by BIO-key under this 1.5 "Patch"means an interim piece of code released to supplement Agreement is subject to the provisions of the Purchase Agreement a Product that typically fixes High Priority Errors between and shall be automatically deemed to be covered by all applicable Maintenance Releases. Product license terms. 1.6 "Workaround" typically means a set of procedures that a 2.5 Preventative Maintenance. BIO-key may, at it sole option, Customer follows to circumvent or mitigate the impact of an Error. schedule technical service telephone calls or visits for the purpose of The Error still exists. •A Workaround may be provided at 810-key's Product inspection or preventative maintenance. discretion in lieu of a Patch for a specific Error. 2.6 Customer Notification. BIO-key's obligations to provide the 1.7 Other Defined Terms. Except as expressly defined in this assistance specified in this Section 2 are conditioned on Customer's Agreement, capitalized terms shall have the meaning ascribed to prompt notification to BIO-key of the problem that provides BIO-key them in the Purchase Agreement. with information sufficient to identify the problem. Such information may include, but not be limited to, error diagnostic messages, Section 2. Scope of Support And Maintenance Services. diagnostic memory dumps, operator console logs, data file dumps, 2.1 Services Provided. During the term of this Agreement, for so application program listings, and a written explanation of the problem. long as Customer subscribes to the applicable BIO-key Product r maintenance program and timely pays therefore, and for so long as 2.7 Customer Cooperation and Support Con acts. BIO-key makes support and maintenance services for the Product(s) 2.7.1 Customer Cooperation. Customer acknowledges that generally available to its customers, BIO key shall support the 810-key may not be able to resolve an Error if Customer does not Product(s) by providing the services described in the following cooperate with and assist BIO key in resolving the Error. paragraphs of this Section 2. Support and maintenance services are 2.7.2 Support Contacts. BIO key shall only be required to subject to change at BIO key's option provided that support and receive communication from a Customer designated Support contact Customer will designate three (3) authorized Support Contacts and maintenance terms are so modified for all similarly situated Product maintenance subscribers. 610-key has no obligation to correct or agrees that each Support Contact will be knowledgeable in all support Errors arising from Customer's misuse, improper use, aspects of the Customer's operating environment in which the alteration(other than by a BIO-key representative),or damage to the Products) are being used. Customer will provide all requested Product(s)including,without limitation,by electrical power failures or information about each of its Support Contacts by completing an Authorized Support Contacts form, but may change designation of surges,or Customer's combining or merging the Product(s)with any hardware or software not identified as compatible by 810-key,or any the contacts in writing. other Errors not resulting from normal wear and tear. • 2.2 Technical Support. BIO-key will provide telephone technical support regarding use of the Product(s) and response to Errors to BIO-key International,Inc. Page 1 of 4 Proprietary and Confidential Version 2.0(2005-01-24) Bio k INTER` NAl- reasonable conditions, before re-offering this Agreement. The term Section 3. Support And Maintenance Fees. of this Agreement shall be one year. No Agreement will become 3.1 Required Coverage. All Product(s) to be covered by this effective until countersigned by BIO-key. . Agreement on the effective date of this Agreement must be the then 5.2 Renewal. This Agreement shall automatically renew for current Product(s)furnished by BIO-key. Thereafter,Customer must successive one-year terms commencing on the anniversary date of remain within at least one new Release of the Product the effective date, unless either party provides the other with thirty 3.2 Annual Support and Maintenance Fee. Customer shall pay an (30) days prior written notice of its decision to not renew this annual support and maintenance Fee at BIO-key's rate in effect at Agreement. All annual support and maintenance fees are subject to the beginning of this Agreement The annual support and change at BIO-key's option. maintenance Fee in effect as of the effective date of this Agreement 5.3 Termination. This Agreement will terminate: 1) upon the- . is set forth in Exhibit A hereto. Payment shall be due within thirty expiration of the then current term of this Agreement and timely (30)days of receipt of invoice by Customer. If Customer fails to pay receipt by one party of the other's decision to not renew this such invoice within thirty(30)days,or the support and maintenance Agreement;2)at BIO-key's election,upon failure of Customer to pay agreement lapses for any other reason,a reinstatement fee may be support and maintenance fees when due;or 3)upon thirty(30)days charged in addition to the annual support and maintenance fee. If prior written notice if either party has materially breached the this Agreement terminates or Customer discontinues maintenance provisions of this Agreement and has not cured such breach within for any reason, and then subsequently desires (with BIO-key's such notice period. Termination of this Agreement for any reason permission)to purchase or reactivate maintenance in the future,such shall not reiieve Customer from any remaining obligations under this repurchase or reactivation will be at the prevailing charges at the Agreement,including but not limited to,the payment of any amounts time of repurchase or reactivation. However, in the event that the due nor shall it affect any additional remedies that 810-key may have Product has been updated or replaced by BIO-key in the interim at law or in equity. Upon termination of this Agreement, BIO-key period,BIO-key will have to install the new/updated Product for which may, at its option, declare the entire amount of the unpaid balance the Customer could incur an installation charge and a license charge. due under this Agreement to be immediately due and payable. 3.3 Additional Support and Maintenance Fees. If after the effective date of this Agreement, Customer either purchases additional Section 6. Miscellaneous. Products or Product licenses from BIO-key, Customer shall pay the 6.1 Miscellaneous Provisions. Dispute resolution and other applicable additional support and maintenance fee,pro-rated in order provisions are contained in Schedule 1 to this Agreement. to reflect how much is then remaining in the current one year term. 6.2 Schedules And Exhibits.Each of the exhibits and schedules listed below shall be incorporated into and shall for all purposes be Section 4. Disclaimer Of Warranties. THIS IS A SERVICES deemed a part of this Agreement: AGREEMENT. THERE ARE NO WARRANTIES, EXPRESS OR Exhibit A -Support and Maintenance Fee Schedule IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED Schedule 1 -Dispute Resolution and Other Provisions WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTY ARISING OUT Section 7. Entire Agreement; Amendments. This Agreement, OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR along with its Exhibits and Schedules,constitutes and embodies the USAGE OF TRADE. entire Agreement and understanding between the parties with Section 5. Term and Termination. respect to the subject matter hereof and supersedes all prior or 5.1 Term. The effective date of this Agreement shall be the date it contemporaneous written,electronic or oral communications,agree- is executed by Customer which must occur no later than the date of ments or understandings between the parties with respect thereto. expiration of the applicable warranty period,if any,for the Product(s). This Agreement may not be modified or amended except by a written If Customer does not execute the Agreement before such date,BIO- instrument executed by the parties. key shall have the right to inspect the Product(s) at Customer's expense to insure it is in good operating order, or impose other IN WITNESS WHEREOF,the parties hereto each acting with proper authority have executed this Agreement as indicated below. BIO-KEY INTERNATIONAL,INC. CUSTOMER: Ocoee,FL Police Department �'/ C Name:(Print)Frank Cusick Name:(Print) Title:Chief Financial Officer Title: Date: Date: 03/18/2005 BIO-key International,Inc. Page 2 of 4 Proprietary and Confidential Version 2.0(2005-01-24) BIO-key IN7EN`AA NAL SUPPORT AND MAINTENANCE AGREEMENT EXHIBIT A SUPPORT AND MAINTENANCE FEE SCHEDULE Coverage Period: UNIT LIST PRICE AT MAINTENANCE MAINTENANCE PRODUCT QUANTITY TIME OF PRODUCT UNIT PRICE EXTENDED PRICE PURCHASE PacketCluster Mobile SW 57 143.10 8156.70 PacketCluster Patrol Off[1] 2 108.00 216.00 PacketCluster eXt Server[201 1 432.00 432.00 State/NCIC upgrade[11-30] 5 19.80 99.00 State/NCIC Interface[20) 1 1674.00 1674.00 PC Server Upgrade[11-50] 5 180.00 900.00 PacketCluster Server[20) 1 1 4320.00 4320.00 TOTAL 515,797.70 Customer shall pay the Support and Maintenance Fees to BIO-key within thirty(30)days of execution of this Agreement. Support and Maintenance Fees are subject to change annually. The above fees do not include any applicable taxes levied or imposed now or hereafter by any governmental authority on the services to be provided hereunder or any component thereof(such as the Releases),which taxes shall be paid by Customer. This Exhibit is hereby approved and accepted: BID-KEY INTERNATIONAL,INC. CUSTOMER: Ocoee,FL Police Department 300 Nickerson Road Marlboroot gb,MA 01752 By: rIG..1/11 ; By: Name:(Print)Frank Cusick Name:(Print) Title:Chief Financial Officer Title: Date: Date: BIO-key International,Inc. Page 3 of 4 Proprietary and Confidential Version 2.0(2005-01-24) BIO- ey INTENN=TIk SUPPORT AND MAINTENANCE AGREEMENT • SCHEDULE DISPUTE RESOLUTION AND OTHER PROVISIONS 1. Dispute Resolution. PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT 1.1 Governing Law. This Agreement shall be governed by and OR THE USE, INABILITY TO USE OR RESULTS OF USE OF THE interpreted in accordance with the laws of Massachusetts, without PRODUCTS,,.EVEN IF 13I0-KEY HAS BEEN ADVISED OF THE regard to conflicts of laws principles. POSSIBILITY OF SUCH DAMAGES. , 1.2 Mediation. In the event of any controversy or claim arising out 4. Limitation of Liability. 810-keys liability (whether in tort or of or relating to this Agreement or the breach or interpretation thereof, contract, under statute or otherwise)with regard to this Agreement or the parties shall, upon five days notice from either one to the other, any Product(s) or other items furnished in connection with this submit themselves and the subject-matter of the dispute to mediation Agreement shall in no event exceed the Support And Maintenance Fees before an independent mediator to be appointed by the American paid by Customer to BIO-key under this Agreement. Arbitration Association. Costs of mediation shall be borne equally 5. Equitable Relief. Each of Customer and BIO-key between the parties. acknowledges that damages will be an inadequate remedy if the other 1.3 Arbitration. in the event that the parties remain in dispute violates the terms of this Agreement, or otherwise fails to perform its following the mediation,the controversy or claim shall be determined by obligations hereunder. Accordingly, subject to Section 1 of this arbitration in accordance with the Commercial Arbitration Rules of the Schedule, each of them shall have the right, in addition to any other American Arbitration Association by a single, disinterested arbitrator rights each of them may have, to obtain in any court of competent appointed in accordance with such Rules. The determination of the jurisdiction, temporary, preliminary and permanent injunctive relief to arbitrator shall be final, conclusive and binding. Judgment upon the restrain any breach, threatened breach, or otherwise to specifically award rendered may be entered in any court of any state or country enforce any of the obligations in this Agreement. having jurisdiction. 6. Waiver. No waiver of or with respect to any provision of this 1.4 Conduct. Each party shall ensure that any mediation and Agreement,nor consent by a party to the breach of or departure from arbitration are conducted as speedily as is reasonably possible,and that any provision of this Agreement, shall in any event be binding on or all and any information disclosed during or in connection with the effective against such party unless it be in writing and signed by such arbitration is treated by each party with the strictest confidence. party, and then such waiver shall be effective only in the specific 1.5 Interim and Permanent Relief. Upon the application of either instance and for the purpose for which given. party to this Agreement,and whether or not an arbitration or mediation 7. Captions and Headings. The captions and headings are provision has yet been initiated,all courts having jurisdiction over one or inserted in this Agreement for convenience only, and shall not be more of the parties are authorized to:(i)issue and enforce in any lawful deemed to limit or describe the scope or intent of any provision of this manner such temporary restraining orders, preliminary injunctions and Agreement. other interim measures of relief as may be necessary to prevent harm to 8. Severability; Invalidity. If any provision of this Agreement is a party's interests or as otherwise may be appropriate pending the held to be invalid, such invalidity shall not render invalid the remainder conclusion of arbitration proceedings pursuant to this Agreement; and of this Agreement or the remainder of which such invalid provision is a (N) enter and enforce in any lawful manner such judgments for part. If any provision of this Agreement is so broad as to be held permanent equitable relief as may be necessary to prevent harm to a unenforceable,such provision shall be interpreted to be only so broad party's interests or as otherwise may be appropriate following the as is enforceable. issuance of arbitral awards pursuant to this Agreement. 9. Assignment Customer shall not assign any of its rights under 1.6 Venue. Any mediation or arbitration conducted under or in this Agreement without the prior written consent of BIO-key. This connection with this Agreement shall take place in Boston, Agreement shall be binding upon, inure to the benefit of and be Massachusetts at a time and location to be determined by the mediator enforceable by the parties and their respective successors and assigns. or arbitrator,as the case may be. 10. Notices. Any notice or other communication under this 1.7 Legal Expenses. If any proceeding is brought by either party Agreement given by either party to the other party shall be deemed to to enforce or interpret any term or provision of this Agreement, the be properly given if given in writing and delivered (i) by facsimile substantially prevailing party in such proceeding shall be entitled to transmission(receipt confirmed)or(ii)mailed(return receipt requested), recover,in addition to all other relief arising out of this Agreement,such properly addressed and stamped with the required postage,or(iii)sent party's reasonable attorneys' and other experts' (including without by an overnight express courier,to the recipient at the address identified limitation accountants)fees and expenses. in its signature block to this Agreement or, if no such address is 2. Excused Performance;Force Maieure. If the performance of provided,as specified in writing by one party to the other. Either party this Agreement is adversely restricted by reason of any circumstances may from time to time change its address by giving the other party beyond the reasonable control and without the fault or negligence of the notice of the change in accordance with this Section. party affected,then the party affected,upon giving prompt written notice to the other party,shall be excused from such performance on a day-to- day basis to the extent of such restriction; provided, however,that the party so affected shall use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties shall proceed whenever such causes are removed or cease. 3. Exclusion of Certain Claims. IN NO EVENT SHALL BIO-KEY BE LIABLE(WHETHER IN TORT OR CONTRACT,UNDER STATUTE OR OTHERWISE)FOR ANY INDIRECT,SPECIAL,CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE, ARISING OUT OF ITS BIO-key International.Inc. Page 4 of 4 Proprietary and Confidential Version 2.0(2005-01-24) CITY OF OCOEE SIGNATURE BLOCK WITHOUT WITNESSES AND WITHOUT NOTARY CITY: CITY OF OCOEE, FLORIDA . By: S. Scott Vandergrift, Mayor ATTEST: Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING APPROVED AS TO FORM AND HELD ON , 20_ LEGALITY this day of UNDER AGENDA ITEM NO. , 20 FOLEY & LARDNER LLP By: City Attorney 006.237063.1