Resolution No. 8268s
1 RESOLUTION NO. 8268
2
3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
4 SOFTWARE SERVICE AGREEMENT RENEWAL BY AND BETWEEN
5 THE CITY OF VERNON AND VISIONAIR INC.
6 WHEREAS, on March 30, 1999, the City Council of the City of
7 Vernon approved Resolution No. 7301 approving a Software License
8 Agreement with Vision Software, Inc. for a Computer Aided Dispatch
9 System ("CAD"), Mobile Computer Terminal ("MCT") and Vision Records
10 Management System ("RMS") for the City of Vernon Police Department; and
11 WHEREAS, VisionAir Inc, formerly VisionAir and Vision
12 Software, Inc., ("VisionAir") has submitted a Software Service
13 Agreement and renewal quotation for the period August 25, 2003 through
14 August 24, 2004 for the sum of Forty -Two Thousand Two Hundred Forty-
15 Seven Dollars and Eighteen Cents ($42,247.18), including tax, for the
16 CAD, MCT and RMS; and
17 WHEREAS, Visionllx_ \is the only supplier who can
18 provide the annual software support services necessary to maintain the
19 CAD, MCT and RMS; and
20 WHEREAS, on August 12, 2003, the Finance Committee
21 considered the recommendation of Bruce V. Malkenhorst, Director of
22 Finance, dated August 7, 2003, that the Software Service Agreement
23 with VisionAir be renewed for the period August 25, 2003 through
24 August 24, 2004; and
25 WHEREAS, the City Council of the City of Vernon has
26 determined that, pursuant to the provisions of subsection (a) of
27 Section 2.27 of the Vernon City Code, it is in the public interest and
28 necessity to proceed with the renewal of software support services for
1 the CAD, MCT and RMS with VisionAir to enhance services provided to
2 the Vernon community.
3 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
4 CITY OF VERNON AS FOLLOWS:
5 SECTION 1: The City Council of the City of Vernon hereby
6 finds and determines that the recitals contained hereinabove are true
7 and correct.
8 SECTION 2: The City Council of the City of Vernon hereby
9 approves the Software Service Agreement with VisionAir, a copy of
10 which is attached hereto as Exhibit "A" and made a part hereof.
11 SECTION 3: The City Council of the City of Vernon hereby
12 authorizes the Mayor and the City Clerk to execute said Agreement for,
13 and on behalf of, the City of Vernon.
14 SECTION 4: The City Council of the City of Vernon hereby
15 directs the City Clerk, or his designee, to send one fully executed
16 Agreement to:
17 VisionAir Inc.
Attn. Mike Lyons, Chief Operating Officer
18 P.O. Box 9000
19 Castle Hayne, North Carolina 98429-9000
20 SECTION 5: The City Clerk of the City of Vernon shall
21 certify to the passage of this resolution, and thereupon and
22 thereafter the same shall be in full force and effect.
23 APPROVED AND ADOPTED this 27th day of August, 2003.
24
25
26 LEONIS C. MALB RG, May r
ATTEST:
27
28 BRUCE V. MALKENHORST, City Clerk
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STATE OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
8268, was duly adopted by the City Council of the City of Vernon at an
adjourned regular meeting of the City Council duly held on Wednesday,
August 27, 2003, and thereafter was duly signed by the Mayor of the
City of Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
- 3 -
EXHIBIT
VIL
SOFTWARE SERVICE AGREEMENT
City of Vernon
4305 Santa Fe Avenue
Vernon, CA. 90058
Effective Date: Beginning the day on which CLIENT first uses each major module of the
Licensed Software operationally ("Goes Live").
This SOFTWARE SERVICE AGREEMENT (hereinafter "Agreement") is entered into by and between City
of Vernon, a municipal=eorporafign (hereinafter "CLIENT") and VISIONAIR INC., a North Carolina based
company with offices located at 5601 Barbados Blvd., Post Office Box 9000, Castle Hayne, North Carolina
28429-9000 (hereinafter "VISIONAIR').
VISIONAIR shall perform maintenance services on the Licensed Software and CLIENT shall accept and pay
for such services, pursuant to the terms and conditions herein provided. Licensed Software shall mean the
VISIONAIR software as described in the Quotation (Attachment B to the Software License Agreement), as
such may hereafter be supplemented and as such Licensed Software may hereafter be updated with
improvements, enhancements and modifications furnished to CLIENT by VISIONAIR.
1. Term. This agreement shall become effective on the date shown above (hereinafter "Effective Date"),
and, unless sooner terminated as hereinafter provided, shall remain in full force and effect for an initial
term of (1) one year from such date (hereinafter "Initial Term").
2. Automatic Renewal. Upon expiration of the Initial Term, this Agreement shall be automatically extended
on a year-to-year basis (herein after "Renewal term") unless sixty (60) days prior to the expiration date of
the Initial Term, or any Renewal term, a party hereto gives written notice to the other party of its
termination of the Agreement as of such expiration date.
3. Maintenance Service. Upon payment of the fees listed in the Quotation incorporated in to the Software
License Agreement as Attachment B (hereinafter "Quotation"), VISIONAIR shall utilize Virtual Private
Network and/or dedicated telephone dialup to provide Maintenance Service for the term of this
Agreement. VISIONAIR will only support the use of Microsoft and Cisco Virtual Private Network protocols
and NetOp remote Control software for dedicated phone dialup. The term"Maintenance Service" as used
herein means Covered Maintenance and Billable Call Maintenance as hereinafter defined.
4. Covered Maintenance. The term "Covered Maintenance" as used herein means the periodic and on -call
remedial maintenance VISIONAIR deems reasonably appropriate and necessary to keep the application
software functioning properly.
Covered Maintenance shall include:
(a) Unlimited Telephone Support for the Licensed Software, utilizing an 800 line provided by VISIONAIR.
During the Initial Term, this telephone support will be available during the hours specified in the Quote.
(b) Initial fact-finding (Tier 1) support for 3`d party software embedded or used in conjunction with the
application software.
(c) Correction of documented malfunctions ("bugs") in the application software.
(d) Assistance in installing updates and new releases of the Licensed Software on the CLIENT's servers.
(e) Processing CLIENT's request for changes to the Software. A VISIONAIR Product Manager will define
the CLIENT's request and submit it for consideration in future releases of the Software.
(f) Support to Client while Client is backing up its data'.
Client Service personnel are available to answer questions related to the Software and to provide solution
or workaround for issues within the Software. If an issue is defined as a defect, Client Service will escalate
the issue for resolution and provide the correction when available. A "defect" is defined as an error in the
code of the Licensed Software which prevents a Module from operating in accordance with the
Documentation in any material respect.
May 8, 2003 Page 1 of 3
will escalate the issue for resolution and provide the correction when available. A "defect" is defined as
an error in the code of the Licensed Software which prevents a Module from operating in accordance
with the Documentation in any material respect.
5. Billable Call Maintenance. The term "Billable Call Maintenance" as used herein means services
provided by VISIONAIR that are not covered under Covered Maintenance.The rate for this service shall
be $150.00 per hour #"lPie,If from 8:00 am to 5:00 pm PST. The rate for service after 5:00
pm and before 8:00 am PST is $250.00 per hour. All billable service calls will have a minimum charge of
two hours. Billable service will be provided upon receipt of a Purchase Order, letter of authorization or
credit card information.
6. Exclusions from Covered Maintenance. Covered Maintenance does not include:
(a) Repair of damage not caused by VISIONAIR, including without limitation, damage resulting from
accident, transportation, neglect or misuse, lightning, failure or fluctuation of electrical_ power, air
conditioning or humidity control, telephone equipment or communication lines failure, failure of foreign
interconnect equipment, or causes other than normal operation procedures. CLIENT is responsible to
maintain a proper set of data backups in the event that it becomes necessary to recover from a disaster.
(b) Service which is impractical for VISIONAIR to render because of: alterations in the Licensed Software
made by persons other than VISIONAIR without receiving VISIONAIR's prior written approval; the
connection of equipment and/or Software by mechanical or electrical means to another machine or
device; or the physical inaccessibility of the equipment or Software;
(c) Any repair of any damage to the Licensed Software caused by software or firmware programming that
is not provided or supported by VISIONAIR under section 5.
7. Enhancements & Upgrade Support.Covered Maintenance shall include standard upgrades and
enhancements that are made to the Licensed Software. VISIONAIR issues corrections, upgrades and
enhancements to the software on an ongoing basis. VISIONAIR shall utilize Virtual Private Network
and/or telephone dialup to update the Licensed Software as necessary to stay compliant with State and
Federal requirements for crime reporting and information access. All modifications to the Licensed
Software and related Documentation will be made available to the CLIENT on standard electronic media
(CD-ROM), remote access through Virtual Private Network, dedicated telephone dialup or Website
download.
8. Charges to CLIENTs:
(a) Charges for Covered Maintenance: The applicable rates for Covered Maintenance are set forth in the
Quotation (Attachment B to the Software License Agreement).
(b) Charges for Billable Call Maintenance: The hourly rate is as provided in Section 5.
(c) Charges for Travel: Upon prior written authorization, CLIENT shall pay for travel time and travel
expense in connection with Billable Call Maintenance. Travel time will be charged to the CLIENT at the
Billable Call Rate. Travel expense will be charged as incurred and includes tolls, parking and other out-
of-pocket costs plus mileage at the then current rates. There will be no additional charge to the CLIENT
for travel expense incurred in connection with Covered Maintenance.
(d) Charge for Software License Changes: All Covered Maintenance fees hereunder are subject to
increase or decrease upon any change in number of concurrent user licenses or software modules
licensed.
9. Changes in Charges. At least 120 days prior to the expiration of the Initial Term or any Renewal term,
VISIONAIR may make changes to the Covered Maintenance fees and the Billable Call Rate, such
changes to be effective at the commencement of the immediately subsequent Renewal term, if any.
CLIENT may terminate this Agreement within sixty (60) days after receipt of the first invoice with
changed charges by giving VISIONAIR sixty (60) days written notice of its intention to terminate, and this
agreement will terminate as of the date for termination set forth in the CLIENT's notice to VISIONAIR or
at the end of such sixty (60) day period, whichever last occurs.
10. Payment. VISIONAIR will invoice the CLIENT in advance for each term, Initial or Renewal, for
Covered Maintenance. Such invoices will include pro rata charges or credits for any Covered
Maintenance of Licensed Software installed or removed during the previous term or prior to the Effective
Date. VISIONAIR will invoice CLIENT for Billable Call Maintenance as incurred and CLIENT shall pay
May 8, 2003 Page 2 of 3
11. Disclaimer of Warranty. VISIONAIR makes no warranty of any kind, express or implied, including
without limitation, any warranty of merchantability or fitness for a particular purpose with respect to the
subject matter hereof, maintenance to be performed by VISIONAIR pursuant to the terms hereof, or parts
to be supplied hereunder.
12. Limitation of Liability. VISIONAIR SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED,
UNLESS SUCH DAMAGES ARE CAUSED BY THE NEGLIGENT OR INTENTIONALLY TORTIOUS ACT
OR OMISSION OF VISIONAIR, ITS EMPLOYEES OR REPRESENTATIVES. IN NO CASE, HOWEVER,
SHALL VISIONAIR BE HELD LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES.
13. Hardware and Network Upgrades. CLIENT acknowledges that due to the dynamic nature of the
information technology industry and frequent product replacements and/or upgrades developed
independently by third party hardware and software vendors, VISIONAIR has no control over the turnover
of product or obsolescence of technology of third party products. CLIENT also acknowledges that
VISIONAIR develops its Network Hardware Specification Document based upon all of the third party
product information available at the time of publication. Therefore, with respect to third party hardware
and software, CLIENT shall retain the responsibility for the costs of purchase and installation of hardware
and software upgrades necessary to maintain the functionality of the Licensed Software. VISIONAIR
develops the Network Hardware Specification document considering that no other software application will
be installed. Additional hardware specifications should be considered if the CLIENT intends to run other
applications. Additionally, the accumulation of data in CLIENT's database over a period of time may
require expanding the capacity of hard drives and memory of the system servers and workstations in order
to maintain performance at response times acceptable to the CLIENT. Subject to all of the affirmative
duties and obligations of VISIONAIR under this Software Maintenance Agreement, it is the CLIENT's sole
responsibility to maintain the system to ensure adequate response times.
14. Force Majeure. Neither party shall be liable or deemed in default for any failure in performance
hereunder resulting from any cause beyond its reasonable control.
15. Termination for Non-payment. If CLIENT is in default due to non-payment, and after VISIONAIR has
given CLIENT written notice and such default is not cured after 15 days then VISIONAIR may terminate
this agreement at any time upon written notice to CLIENT.
16. Notices. Any Notice, request, instruction or other document pertaining to this Agreement shall be sent
to the appropriate party's address as set forth above, and shall be deemed to have been duly given or
served if delivered in person or deposited in the United States mail, certified mail, return receipt requested.
17. General. This Agreement shall be governed by the laws of the State of California. This Agreement
constitutes the entire agreement between the parties hereto with respect to maintenance of the Licensed
Software and shall supersede all previous or contemporaneous negotiations, commitments and writings
with respect to matters set forth herein. It may be only modified by writing signed by authorized
representatives of both parties. The terms and provisions of this Agreement shall prevail over any
conflicting, additional or other terms appearing on any purchase order submitted by the CLIENT at any
time.
VISIONAIR C.
Signature:
Name: /-1 A �)ryw t J. 1' t>!`/'CJ
Title: Y T (-- )t::—(7
Date:
CLIENT NAME
Signature:
LEONIS C. MALBURG, Mayor
Date:
NERMXXXXXXXXXXXXXXXXXXXXXXXXXXX
ATTEST:
Ift
9RUCE V. NH RST, City Clerk
XXXXXXXXXXXXXXXXXXXXXXXXX
APPROVED AS TO FORM:
EDUARDO OLIVO, City Attorney
May 8, 2003 Page 3 of 3
SUPPORTING
DOCUMENTS
CIT) COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
Finance Committee
City of Vernon
Honorable Members:
' Aw,EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
KENNETH J. DeDARIO
Director of Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
CITY HALL BRUCE W. OLSON
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Police Chief
TELEPHONE (323) 583-8811 FAX: (323) 826-1481
August 7, 2003ze
The Police Department is requesting to renew their annual
Service Agreement provided by VisionAir for their Records
System (RMS), Mobile Computer Terminals (MCT), and their
Aided Dispatch System (CAD). The service requested will
from August 25, 2003 through August 24, 2004.
Software
Management
Computer
be provided
Funds have been budgeted for this expenditure. This has been reviewed
by the Information Technology Division and it is hereby recommended
that the renewal for their annual Software Service be approved at an
approximate cost of $42,247.18 excluding a credit of $620.64 for
unused training.
�....�
Very truly yours,
Bruce V. Malkenhorst
Director of Finance
BVM/mt
IL,T�
To: Bruce V. Malkenhorst, City Administrator
From: Dolores Fonseca, Purchasing Assistant
Date: 8/6/2003
Re: REQUISITION RC#1068
Attached for your approval is requisition RC#1068. The Police Department is requesting
renewal of software maintenance provided by VisionAir for the Records Management
System (RMS), the Mobile Computer Terminals (MCT), and the Computer Aided Dispatch
System (CAD). The period is for August 25, 2003 through August 24, 2004.
The annual fee is $42,247.18 (sales tax included). Last year's fee was $42,409.18. The
department has appropriated sufficient funds for this annual expenditure.
Last year's service was approved by City Council Resolution #8056.
0 Page 1
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
FAX (323) 826-1438
EDUARDO OLIVO
City Attorney
FAX: (562) 869-1883
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
September 11, 2003
VisionAir
P.O. Box 9000
Castle Hayne, North Carolina 98429-9000
Attn: Mike Lyons, Chief Operating Officer
Re: Software Service Agreement
Dear Mr. Lyons: -
KENNETH J. DeDARIO
Director of Utilities
FAX: (323) 826-1425
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
BRUCE W. OLSON
Police Chief
FAX: (323) 826-1481
Transmitted herewith is an original of the above referenced agreement
approved by the Vernon City Council on August 27, 2003.
If you have any questions regarding this matter, please call Ms.
Dolores Fonseca at (323) 583-8811 ext. 234.
Very truly yours,
Glor.' J. Or
Chief Deputy /ityClerk
GJO/gm
CC: Police Department
Dolores Fonseca
kil-dit0ft, No. �8268
Agreement No. 03-075
4305 Santa Fe Avenue
Vernon, CA. 90059
Effective Date: Beginning the day on which CLIENT first uses each major module of the
Licensed Software operationally ("Goes Live").
This SOFTWARE SERVICE AGREEMENT (hereinafter "Agreement") is entered into by and between Oity
of.r%ernQn, a, municipal corpQr�ti,� (hereinafter "CLIENT") and VISIONAIR INC., a North Carolina based
company with offices located at 5601 Barbados Blvd., Post Office Box 9000, Castle Hayne, North Carolina
28429-9000 (hereinafter WISIONAIR").
VISIONAIR shall perform maintenance services on the Licensed Software and CLIENT shall accept and pay
for such services, pursuant to the terms and conditions herein provided. Licensed Software shall mean the
VISIONAIR software as described in the Quotation (Attachment B to the Software License Agreement), as
such may hereafter be supplemented and as such Licensed Software may hereafter be updated with
improvements, enhancements and modifications furnished to CLIENT by VISIONAIR.
1. Term. This agreement shall become effective on the date shown above (hereinafter "Effective Date"),
and, unless sooner terminated as hereinafter provided, shall remain in full force and effect for an initial
term of (1) one year from such date (hereinafter "Initial Term").
2. Automatic Renewal. Upon expiration of the Initial Term, this Agreement shall be automatically extended
on a year-to-year basis (herein after "Renewal term") unless sixty (60) days prior to the expiration date of
the Initial Term, or any Renewal term, a party hereto gives written notice to the other party of its
termination of the Agreement as of such expiration date.
3. Maintenance Service. Upon payment of the fees listed in the Quotation incorporated in to the Software
License Agreement as Attachment B (hereinafter "Quotation"), VISIONAIR shall utilize Virtual Private
Network and/or dedicated telephone dialup to provide Maintenance Service for the term of this
Agreement. VISIONAIR will only support the use of Microsoft and Cisco Virtual Private Network, protocols
and NetOp remote Control software for dedicated phone dialup. The term "Maintenance Service" as used
herein means Covered Maintenance and Billable Call Maintenance as hereinafter defined.
4. Covered Maintenance. The term "Covered Maintenance" as used herein means the periodic and on -call
remedial maintenance VISIONAIR deems reasonably appropriate and necessary to keep the application
software functioning properly.
Covered Maintenance shall include:
(a) Unlimited Telephone Support for the Licensed Software, utilizing an 800 line provided by VISIONAIR.
During the Initial Term, this telephone support will be available during the hours specified in the Quote.
(b) Initial fact-finding (Tier 1) support for 3rd party software embedded or used in conjunction with the
application software.
(c) Correction of documented malfunctions ("bugs") in the application software.
(d) Assistance in installing updates and new releases of the Licensed Software on the CLIENT's servers.
(e) Processing CLIENT's request for changes to the Software. A VISIONAIR Product Manager will define
the CLIENT's request and submit it for consideration in future releases of the Software.
(f) . Support to C[ientFwhife,,Gllcnt Isbacng up its data;
Client Service personnel are available to answer questions related to the Software and to provide solution
or workaround for issues within the Software. If an issue is defined as a defect, Client Service will escalate
the issue for resolution and provide the correction when available. A "defect" is defined as an error in the
code of the Licensed Software which prevents a Module from operating in accordance with the
Documentation in any material respect.
May 8, 2003 Page 1 of 3
5. Billable Call Maintenance. The term "Billable Call Maintenance" as used herein means services
provided by VISIONAIR that are not covered under Covered Maintenance. The rate for this service shall
be $150.00 per hour ("BiIII,�J ,Rate") from 8:00 am to 5:00 pm PST. The rate for service after 5:00
pm and before 8:00 am PST is $250.00 per hour. All billable service calls will have a minimum charge of
two hours. Billable service will be provided upon receipt of a Purchase Order, letter of authorization or
credit card information.
6. Exclusions from Covered Maintenance. Covered Maintenance does not include:
(a) Repair of damage not caused by VISIONAIR, including without limitation, damage resulting from
accident, transportation, neglect or misuse, lightning, failure or fluctuation of electrical power, air
conditioning or humidity control, telephone equipment or communication lines failure, failure of foreign
interconnect equipment, or causes other than normal operation procedures. CLIENT is responsible to
maintain a proper set of data backups in the event that it becomes necessary to recover from a disaster.
(b) Service which is impractical for VISIONAIR to render because of: alterations in the Licensed Software
made by persons other than VISIONAIR without receiving VISIONAIR's prior written approval; the
connection of equipment and/or Software by mechanical or electrical means to another machine or
device; or the physical inaccessibility of the equipment or Software;
(c)Any repair of any damage to the Licensed Software caused by software or firmware programming that
is not provided or supported by VISIONAIR under section 5.
7. Enhancements & Upgrade Support. Covered Maintenance shall include standard upgrades and
enhancements that are made to the Licensed Software. VISIONAIR issues corrections, upgrades and
enhancements to the software on an ongoing basis. VISIONAIR shall utilize Virtual Private Network
and/or telephone dialup to update the Licensed Software as necessary to stay compliant with State and
Federal requirements for crime reporting and information access. All modifications to the Licensed
Software and related Documentation will be made available to the CLIENT on standard electronic media
(CD-ROM), remote access through Virtual Private Network, dedicated telephone dialup or Website
download.
8. Charges to CLIENT&
(a) Charges for Covered Maintenance: The applicable rates for Covered Maintenance are set forth in the
Quotation (Attachment B to the Software License Agreement).
(b) Charges for Billable Call Maintenance: The hourly rate is as provided in Section 5.
(c) Charges for Travel: Upon prior written authorization, CLIENT shall pay for travel time and travel
expense in connection with Billable Call Maintenance. Travel time will be charged to the CLIENT at the
Billable Call Rate. Travel expense will be charged as incurred and includes tolls, parking and other out-of-
pocket costs plus mileage at the then current rates. There will be no additional charge to the CLIENT for
travel expense incurred in connection with Covered Maintenance.
(d) Charge for Software License Changes: All Covered Maintenance fees hereunder are subject to
increase or decrease upon any change in number of concurrent user licenses or software modules
licensed.
9. Changes in Charges. At least 120 days prior to the expiration of the Initial Term or any Renewal term,
VISIONAIR may make changes to the Covered Maintenance fees and the Billable Call Rate, such
changes to be effective at the commencement of the immediately subsequent Renewal term, if any.
CLIENT may terminate this Agreement within sixty (60) days after receipt of the first invoice with changed
charges by giving VISIONAIR sixty (60) days written notice of its intention to terminate, and this
agreement will terminate as of the date for termination set forth in the CLIENT's notice to VISIONAIR or at
the end of such sixty (60) day period, whichever last occurs.
10. Payment. VISIONAIR will invoice the CLIENT in advance for each term, Initial or Renewal, for
Covered Maintenance. Such invoices will include pro rata charges or credits for any Covered Maintenance
of Licensed Software installed or removed during the previous term or prior to the Effective Date.
VISIONAIR will invoice CLIENT for Billable Call Maintenance as incurred and CLIENT shall pay invoices
for Covered Maintenance, including any invoices outstanding on the Effective Date of this Agreement, on
or prior to the commencement of each term.
May 8, 2003 Page 2 of 3
11. Disclaimer of Warranty. VISIONAIR makes no warranty of any kind, express or implied, including
without limitation, any warranty of merchantability or fitness for a particular purpose with respect to the
subject matter hereof, maintenance to be performed by VISIONAIR pursuant to the terms hereof, or parts
to be supplied hereunder.
12. Limitation of Liability. VISIONAIR SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED,
UNLESS SUCH DAMAGES ARE CAUSED BY THE NEGLIGENT OR INTENTIONALLY TORTIOUS ACT
OR OMISSION OF VISIONAIR, ITS EMPLOYEES OR REPRESENTATIVES. IN NO CASE, HOWEVER,
SHALL VISIONAIR BE HELD LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES.
13. Hardware and Network Upgrades. CLIENT acknowledges that due to the dynamic nature of the
information technology industry and frequent product replacements and/or upgrades developed
independently by third party hardware and software vendors, VISIONAIR has no control over the turnover
of product or obsolescence of technology of third party products. CLIENT also acknowledges that
VISIONAIR develops its Network Hardware Specification Document based upon all of the third party
product information available at the time of publication. Therefore, with respect to third party hardware
and software, CLIENT shall retain the responsibility for the costs of purchase and installation of hardware
and software upgrades necessary to maintain the functionality of the Licensed Software. VISIONAIR
develops the Network Hardware Specification document considering that no other software application will
be installed, Additional hardware specifications should be considered if the CLIENT intends to run other
applications. Additionally, the accumulation of data in CLIENT's database over a period of time may
require expanding the capacity of hard drives and memory of the system servers and workstations in order
to maintain performance at response times acceptable to the CLIENT. Subject to all of the affirmative
duties and obligations of VISIONAIR under this Software Maintenance Agreement, it is the CLIENT's sole
responsibility to maintain the system to ensure adequate response times.
14. Force Majeure. Neither party shall be liable or deemed in default for any failure in performance
hereunder resulting from any cause beyond its reasonable control.
15. Termination for Non-payment. If CLIENT is in default due to non-payment, and after VISIONAIR has
given CLIENT written notice and such default is not cured after 15 days then VISIONAIR may terminate
this agreement at any time upon written notice to CLIENT.
16. Notices. Any Notice, request, instruction or other document pertaining to this Agreement shall be sent
to the appropriate party's address as set forth above, and shall be deemed to have been duly given or
served if delivered in person or deposited in the United States mail, certified mail, return receipt requested.
17. General. This Agreement shall be governed by the laws of the State 'of.- California. This Agreement
constitutes the entire agreement between the parties hereto with respect to maintenance of the Licensed
Software and shall supersede all previous or contemporaneous negotiations, commitments and writings
with respect to matters set forth herein. It may be only modified by writing signed by authorized
representatives of both parties. The terms and provisions of this Agreement shall prevail over any
conflicting, additional or other terms appearing on any purchase order submitted by the CLIENT at any
time.
VISIONAIR, NC
Signature -
Name: All 4(�Z
Title: //Jp , !�L F 0
z
Date:
CLIENT NAME
Signature-
L ONIS C. MALBURt ayo
BRUCE V. MALKENHORST, City Clerk
gT�t�iXXxuxxXXXxxxXXuuuuuuXuuuuuu
AP VED AS TO FO
E 0 OLIVO, City Attorney
Date: C%/1��0 a
May 8, 2003 Page 3 of 3