HomeMy WebLinkAboutCOM 1146.000 2004-2006
err or M~
Harry Kim William Takaba
lit
Mayor Direclar
Nancy E. Crawford
i-•;`; e' ` Deputy Director
trri oiM~~~
County of Hawaii
Finance Department
25 Aupuni Street, Room 118 • Hilo, Hawaii 96720
(808) 961-8234 • Fax (809) 961-8248
r
October 17, 2006
i~
Stacy K. Higa, Chairman and
Members of the Hawai'i County Council
Hawai'i County Council
25 Aupuni Street
Hilo, Hawai'i 96720
Re: Resolution for a multi-year agreement
Enclosed is a resolution authorizing the payment of funds for more than one fiscal year
for the multi-year maintenance agreement for the automated booking system at the
various Police Stations throughout the island.
The current maintenance agreement with Sagem Morpho, Inc., expired on June 30, 2006. In
order to expedite this matter, the Hawai'i County Police Department would like to request a
waiver from the Finance Committee and have this resolution heard at the Council meeting
scheduled for October 31, 2006.
If there are any questions, please do not hesitate to call the Hawai'i County Police
Department.
4 William Takaba
birector of Finance
APPROVED:
Harry Kim
Mayor
Enc.
Comm. No.
cc: Police Ref. To:
Hawaii County is an Equal Opportunity Provider and Employer Ref. Date OCT 18 2006
Flo. ~fe•~~
Form B-52
7/18/91
DEPARTMENT OF FINANCE
REQUEST FOR COUNCIL ACTION
DEPARTMENT: Police DATE: 10/10/06
STAFF CONTACT: Kay Nishibayashi/Lt. Randal Ishii PHONE: x2274/x2232
A. REQUEST:
Request a Resolution to approve a four-year contract (7/1/06 to 6/30/10) with Sagem Morpho Inc. for
maintenance of the automated booking systems at the various Police Stations throughout the island.
B. BACKGROUND AND JUSTIFICATION (USE ADDITIONAL SHEETS AS NEEDED):
The Department is requesting that this request be heard at the October 31, 2006 Council meeting and that
the Finance Committee be waived due to the fact that the previous contract (Resolution 243-02) expired on
June 30, 2006. Approval already obtained by the Department from Council member Virginia Isbell, Chair of
the Finance Committee on 10/10/06 by Major Samuel Thomas.
SIGNED: <d~ DATE: OCT 1 1 2006
Department Head
Sagem Morpho ins.
~r,un SAFRAN Group
MAINTENANCE SERVICES AGREEMENT
This Agreement is made and entered into by and between SAGEM MORPHO, Inc., ("MORPHO") and the customer identified below
("Customer"). This Agreement includes, and incorporates by this reference the Basic Terms and Conditions set forth below, a Description of
Supported Equipment and Software, MORPHO's Maintenance Services Agreement Terms and Conditions, and attached pricing
spreadsheet(s), if relevant.
Customer (or a third party) entered into an Agreement for Purchase and Sale of Hardware and License of Software with MORPHO (the
"Base Agreement") dated as of the date set font below, pursuant to which Customer possesses the Equipment and Software (if the Base
Agreement is between MORPHO and a third party, please write the name of such third party here: Nom.
Customer hereby orders, and MORPHO hereby agrees to provide, support services for the Equipment and Software during the Term in
accordance with the terms of this Agreement. It is understood that if Customer submits a purchase order for the support services which are
the subject of this Agreement, such order shall be subject to all terms and conditions of this Agreement with the same force and effect as if
they were included on the Customer's purchase order.
MORPHO may revoke this offer at any time prior to receipt of Customer's signature. Unless otherwise agreed, this offer shall expire if riot
signed and returned to MORPHO by Customer within thirty (30) days after the date of MORPHO's signature.
BASIC TERMS AND CONDITIONS
Support A6rwrent No. Base Agmwerm Bate: July 21, 1998 Effective oats: July 1, 2086
1. Customer's Site(s):
Hawaii County Police Department, 349 Kapiolani Street, Hilo HI 96720-3998
Kona Booking, 74.5221 Queen Kaahmanu Hwy, Kona, HI 96740
Puna Booking, 16-200 Pilomua Street, Ksaau, HI 96749
South Kohala Booking, 67.5185 Kamamula Street, Kamuela, HI 96743
2. Initial Annual Fee:
$50,392.38 (July 1, 2006 - June 30, 2007) Mainenance fee escalates by 5% annually (See Appendix A)
3. Additional Terms:
Terms defined elsewhere in this Agreement will have the same meanings when used herein. Customer acknowledges that it has received,
read, understands and agrees to all provisions contained in this Agreement and attachments hereto.
CUSTOMER: H All COUN, POLICE DEPARTMENT SAGEM MORPHO, Inc.:
By (Signature):
Printed Name: By (Signature):
Title: Printed Name:
Address: Title:
_ Address: 1145 Broadway. Suite 200
Date Signed: Tacoma, WA 98402
Date Signed:
DESCRIPTION OF SUPPORTED EQUIPMENT AND SOFTWARE
The Equipment shall consist of.,
2-ILS2 Livescan System with Upgrade to Appendix F 8 Integrated Mugphoto (Hilo, Kona)
1- Morpho Cardscan (Hilo)
1- IWS Mug Photo Investigative Workstation with Archive Client (Hilo)
2- ILS2 Livescan with Mug Photo Integration (Puna, South Kohala)
2- ILS2 Livescan w/Palm Capture (Kona)
The Software shall consist of:
Windows NT Operating System
Sagem Brand proprietary software: (i) ILS2 Software (ii) MORPHO CardScan Software and (iii) MORPHO Archive Software
IWS MugPhoto Investigative Software
Page 1 of 5
Maintenance Agreement Rev 11/03
SAGEM MORPHO, INC.
MAINTENANCE SERVICES AGREEMENT TERMS AND CONDITIONS
These Maintenance Services Agreement Terms and Conditions provisions for the reimbursement of travel, parts and other
are part of the Maintenance Services Agreement ('Agreement") expenses).
between SAGEM MORPHO, Inc. ("MORPH01 and the customer
identified on the first page of this Agreement ('Customer"). 'Software' means the ocmputer programs and other software
MORPHO and Customer agree as follows: included in the Description of Supported Equipment and
Software on or attached to the first page of this Agreement,
Section 1. Definitions together with any corrections or updates of such computer
programs (other than Enhancements) as may be furnished by
'Annual Fee' means the fee payable annually for the Term of MORPHO during the Term pursuant to this Agreement or any
this Agreement for the Basic Services. The first Annual Fee other agreement between the parties.
payable for the initial Support Year is specified on the first page
of this Agreement. Annual Fees payable for successive Support "Supplemental Services' means any services performed by
Years through the remainder of the Term are specified on a MORPHO under this Agreement other than the Basic Service.
pricing spreadsheet attached to this Agreement (when
applicable). MORPHO may change the Annual Fee specified "Support Year' means any period of one year beginning with
herein when: (1) Customer requests a change to the maintenance the Effective Date or any anniversary of the Effective Date.
services provided hereunder, to (a) incorporate into this "Term" means the term of this Agreement as s
Agreement the maintenance of additional or different Equipment Section 6. specified in
and/or Software, or (b) modify any terms of this Agreement
related to the services specified herein; or (fi) an Enhancement 'User Documsntation' means any user manual, instructions
(defined below) is made at Customer's request, and and other printed documentation furnished by MORPHO for
maintenance services for the Enhancement are desired. Customer's use of the Equipment or Software, as the same may
MORPHO shall provide Customer with thirty (30) days prior be revised, updated or replaced by MORPHO from time to time
written notice of any such change. during the Term.
"Basic Service' means the services described as Basic Service Section 2. Basic Service
in Section 2.
During the Term, MORPHO will make available the following as
'Business Days' means Monday through Friday, exclusive of Basic Service under this Agreement:
Customer's business holidays.
2.1 Service Requests. Upon Customer's request,
'Business Hours" means 8:00 a.m. to 5:00 p.m., Local Time on MORPHO shall advise Customer of the name, telephone number
Business Days. and location of MORPHO personnel authorized to receive Basic
'Effective Date" means the Effective Date specified on the first Service requests from Customer. MORPHO will use
commercially reasonable efforts to ensure that such personnel
page of this Agreement. will be available during Business Hours to provide Basic Service
"Confidential Information' means any trade secret, proprietary to Customer as set forth in this Agreement.
or confidential information of MORPHO disclosed to Customer 2,2 Preventive Maintenance. On a schedule mutually
that, upon or promptly after disclosure by MORPHO, is marked agreed upon by the parties, MORPHO will provide preventive
or otherwise identified as proprietary or confidential, Or which maintenance services for the Equipment in accordance with
Customer otherwise knows or has reason to know is proprietary MORenanc maintenance manual Efor quipment
the Equipment.
or confidential. Without limiting the generality of the foregoing,
the parties hereby specifically agree that the following items 2.3 Repair, Replacement and Correction. Upon
constitute Confidential Information: (i) the Software and any Customer's request, MORPHO will endeavor to promptly repair,
Enhancements or updates thereto; (ii) the CAM, FCP, FIP and replace or otherwise correct any Equipment or Software that
MORPHO processor boards and image compression boards does not operate substantially in accordance with its
(collectively, the 'Boards') along with any Enhancements to the specifications as set forth in the applicable User Documentation.
same; and (ii) any technical information, data or documents If on-site inspection or work is required to correct any Equipment
related to the Equipment, Software or any Enhancements or Software: (i) for requests received between 8:00 a.m. and
provided by MORPHO to Customer. 3:00 p.m. Local Time on any Business Day, MORPHO will use
'Customer's Site' means Customer's place of business that is commercially reasonable efforts to have an authorized
representative of MORPHO at Customer's Site within four (4)
specified as Customer's She on the first page of this Agreement hours after receipt of Customer's request; and (ii) for requests
or such other location as may be agreed upon in writing by the received at any other time. MORPHO will use commercially
parties. reasonable efforts to have an authorized representative of
'Enhancements" means any alterations, additions, MORPHO at Customer's She by 8:00 a.m. Local Time on the
improvements or modifications of the Equipment or Software, next Business Day. The obligations set forth in this paragraph
maintenance of which would increase the cost to MORPHO of 2.3 do not apply to any exclusion under paragraph 2.6 or to
providing the Basic Service by more than 5% of the then-current expendable items such as lamps.
Annual Fee. 2.4 Documentation Updates. During the Term, Within
"Equipment' means the equipment included in the Description sixty (60) days after receipt of Customer's written request,
of Supported Equipment and Software on or attached to the first MORPHO will make available to Customer any updates to the
page of this Agreement, together with any repairs, replacements User Documentation made generally available by MORPHO to
or corrections furnished by MORPHO (other than its customers (e.g., excluding any version customized for a
Enhancements) during the Term pursuant to this Agreement or particular customer).
any other agreement between the parties. 2.5 Supplemental Services. Upon Customer's request,
'Local Time' means local time at Customer's Site. in addition to the Basic Service, MORPHO will make available to
Customer such additional consultation, technical assistance,
"MORPHO's Standard Charges" means MORPHO's then training and other services as the parties may agree upon in
current standard rates and charges (including, without limitation, writing from time to time during the Term.
Page 2 of 5
Maintenance Agreement Rev 11/03
2.6 Exclusions. Basic Service does not include any for any reason (including, without limitation, due to environmental
repair, replacement, correction or other support required: (a) with conditions, inaccessibility, legal issues, or any other reason).
respect to any Enhancements; (b) with respect to any obsolete
Equipment or Software that Customer fails to upgrade following 4.3 ModlBcatlortc. Customer will not make or permit any
reasonable notice by MORPHO that continued serviceability of alterations, additions, improvements or modifications to the
Customer's system requires suitable replacement of such Equipment or Software without the prior written consent of
discontinued item(s); or (c) as a result of any: (i) breach of or MORPHO. In the event MORPHO becomes aware of any such
default under this Agreement by Customer; (ii) neglect, misuse unauthorized alterations, additions, improvements or
or abuse of the Equipment or Software; (iii) operation of the modifications to the Equipment or Software, MORPHO may, at
Equipment or Software in any unsuitable environment or for any its sole discretion, terminate this Agreement.
unintended purpose, as determined by MORPHO at its sole 4.4 Risk of Loss. Customer will protect the Equipment,
discretion; (m) loss, casualty, damage or injury; (v) alteration, Software and any Enhancements from loss, casualty, damage
addition, improvement, modification to or relocation or and injury. Customer assumes all risk of loss, casualty, damage
maintenance of the Equipment or Software not performed or or injury relating to the Equipment. Software or any
authorized by MORPHO; (vi) use or combination of the Enhancements.
Equipment or Software with any other products, goods, services
or other items furnished by anyone other than MORPHO; or (vii) 4.5 Customer Contact. Throughout the Tenn, Customer
failure by Customer to use the latest versions of the Equipment will provide at least one (1) contact in Customer's organization
and Software provided to it by MORPHO. Further, Basic Service with whom MORPHO may discuss issues related to the
does not include any service which is provided, upon Customer's maintenance and support of the Equipment and Software and
request, either: (a) on any day other than a Business Day, (b) at the rights and obligations at the parties hereunder, and who will
MORPHO's facility after Business Hours, or (c) at Customer's be authorized to make decisions relating to the same on behalf
Site between 5:00 p.m. and 8:00 a.m. Local Time; provided, that of Customer.
Basic Service shall include services provided between 5:00 p.m.
and 7:00 p.m. Local Time 9 Customer has placed a service order 4.8 Diagnostic Software. Upon MORPHO's request,
between 1:00 p.m. and 3:00 p.m. Local Time pursuant to Section Customer will allow MORPHO to install on Customer's system
2.3 above, and Customer makes its equipment and personnel such diagnostic software as MORPHO reasonably deems
available to MORPHO's authorized representative during such necessary to perform its obligations hereunder.
hours. 4.7 Log Entries. Customer shall promptly notify
2.7 Enhancements. Any maintenance services required MORPHO of any failures, malfunctions, problems or defects in
with respect to any Enhancements shall be the subject of a the Equipment or Software. Customer shall maintain detailed
separate written agreement between the parties logs of all Equipment and Software failures, malfunctions,
problems, and defects. Upon request, Customer will make such
Section 3. Performance of Services logs available to MORPHO for use in connection with
3.1 Maintenance Parts. MORPHO shall provide all performance of its obligations hereunder.
Equipment maintenance parts required in connection with the 4.8 Facilities. Customer will provide safe and sufficient
Basic Service at no cost to Customer. Parts removed from the access to the Equipment and Software and Customer's Site as
Equipment in the performance of the Basic Service shall become reasonably required for MORPHO to perform its obligations and
the property of MORPHO. Parts installed in the Equipment shall exercise its rights under this Agreement. Further, Customer
become the property of Customer. shall, at no charge to MORPHO: (i) provide access to such
machines, communications facilities and other equipment as are
3.2 Replacement or Repair. In performing the Basic reasonably necessary to provide maintenance and support
Service, MORPHO shall determine, at its reasonable discretion, services, provided that MORPHO shall be responsible for any toll
whether to repair or replace any defective Equipment parts. calls made by MORPHO or its representatives from Customer's
3.3 Inventory. In order to facilitate the performance of She; and (ii) make available to MORPHO a storage space
the Basic Services, MORPHO shall use commercially within reasonable proximity of Customer's Site which MORPHO
reasonable efforts to maintain a reasonable inventory of may use for spare parts and other hems required by MORPHO in
Equipment spare parts at a location designated by MORPHO at performance of maintenance and support services. Such
its sole discretion. storage space shall include adequate heat, light, ventilation,
electrical supply and telephone access. Customer shall exercise
Section 4. Customer Responsibilities reasonable care to ensure the physical security of all MORPHO
property stored at such storage space, and shall provide
4.1 Use and Operation. Customer will use the adequate fireproof storage for all MORPHO documentation.
Equipment and Software (as well as any Enhancements) only for
the purposes specified in the User Documentation. Customer Section S. Compensation
will not use or permit the use of the Equipment or Software or
any Enhancements for any other purpose. Customer will 5.1 Annual Fee. For each month during the Term,
operate the Equipment, Software and any Enhancements in Customer will pay MORPHO one-twelfth (1/12) of the applicable
strict accordance with the User Documentation. Throughout the Annual Fee (prorated for any partial months). MORPHO will
Term, Customer will provide suitable space, air conditioning issue its invoice for the Annual Fee installment for each month
(e.g., heating, cooling, circulation and filtering), utilities (e.g., on or about the first day of such month. In accordance with the
electric power) and other requirements for installation and Base Agreement, Customer may make an annual prepayment of
operation of the Equipment, Software and any Enhancements at the Annual Fee at the beginning of any Support Year.
Customer's Site in accordance with the User Documentation. 5.2 Supplemental Services. Unless otherwise agreed
4.2 Location. MORPHO may immediately terminate this by the parties, Customer will pay MORPHO for any
Agreement if Customer at any time during the Term does not Supplemental Services in accordance with MORPHO's Standard
keep the Equipment and Software in its sole possession and Charges. Unless otherwise agreed by the parties or provided for
control at Customers Site. Customer shall provide MORPHO in MORPHO's Standard Charges, MORPHO will issue its
with not less than ninety (90) days prior written notice of any invoices for any Supplemental Services on a periodic basis as
relocation of the Software or Equipment to any location other such Supplemental Services are provided.
than the one in which it is installed by MORPHO. MORPHO may 5.3 Payment. Customer will pay each of MORPHO's
immediately terminate this Agreement if the new location is invoices within thirty (30) days after receipt. Any amount not
determined by MORPHO, at its sole discretion, to be unsuitable paid when due will be subject to a finance charge equal to one
Page 3 of 5
Maintenance Agreement Rev 11/03
and one-half percent (1.5%) per month or the highest rate debtor relief law, a trustee or receiver is appointed to take
allowable by applicable law, whichever is less, determined and possession of all or substantially all of MORPHO's assets under
compounded daily from the date due until the date paid. any debtor relief law, all or substantially all of MORPHO's assets
Payment of such finance charges will not excuse or cure are attached or seized, or MORPHO dissolves, liquidates or
Customer's breach or default for late payment. Further, adopts any plan for dissolution or liquidation.
Customer will reimburse any costs or expenses (including, but
not limited to, reasonable attorneys' tees) incurred by MORPHO 6.5 Effect of Termination. MORPHO will not be
to collect any amount which is not paid when due. MORPHO obligated to provide any service, repair, correction, updates or
may accept any check or payment in any amount without other support under this Agreement after the Term. If Customer
prejudice to MORPHO's right to recover the balance of the terminates the Term pursuant to paragraph 6.4, MORPHO will
amount due or to pursue any other right or remedy. No refund to Customer that portion of the support tees paid by
endorsement or statement on any check or payment or in any Customer for the balance of the month of termination (or, if
letter accompanying a check or payment or elsewhere will be Customer has prepaid the tees for the then-current Support
construed as an accord or satisfaction. Unless otherwise clearly Year, for the balance of such Support Year), prorated on a daily
specified or implied, all amounts payable under this Agreement basis. Customer will not be entitled to any refund in the event of
are denominated in United States dollars, and Customer will pay a termination pursuant to paragraph 6.2 or 6.3. Sections 5, 7
all such amounts in lawful money of the United States. and 8, together with all other provisions of this Agreement which
may reasonably be interpreted or construed as surviving
5.4 Taxes. MORPHO shall bear the cost of all duties and termination of the Term, will survive any termination of the Term.
similar tees payable on any replacement parts provided under
this Agreement. Unless otherwise clearly specified, the fees and Section 7. Confidential Information
other amounts specified in this Agreement do not include any 7,1 Confidential Information. Except as otherwise
sales, use, or similar taxes. Customer will pay or reimburse authorized b MORPHO in writing, Customer will:
MORPHO for all such taxes or will provide MORPHO with an by (i) use the
exemption certificate satisfactory to MORPHO. Confidential Information solely for the purposes for which it is
disclosed by MORP MORPHO; (ii) not make any copies of any
Section 6. Term Confidential Information without MORPHO's prior written
approval; (iii) take all necessary steps to protect Confidential
6.1 General. The Term will commence upon the Information from any unauthorized use or disclosure (including,
Effective Date and will continue until the fourth anniversary of the without limitation, any steps reasonably requested by MORPHO
Effective Date unless earlier terminated in accordance with to protect any Confidential Information); and (v) not disclose or
paragraph 6.2, 6.3 or 6.4. furnish any Confidential Information to any third parry other than
employees of Customer who have a need to know the
6.2 Anniversary Date. Either party may terminate the information and a written obligation to maintain the confidentiality
Term effective as of the end of any Support Year by giving the of the information.
other party written notice of such termination at least ninety (90)
days prior to the end of such Support Year. 7.2 Access Limitation. Customer shall not reverse
engineer, modify, disassemble or decompile all or any part of the
6.3 Termination by MORPHO. MORPHO may terminate Software or the Boards or otherwise attempt to discover any
the Term by giving Customer written notice of such termination if: source code or trade secrets related to the Software, the Boards,
(i) Customer fails to make any payment when due, MORPHO or any other Confidential Information. If MORPHO terminates
gives Customer written notice of such failure and such failure is this Agreement but the Base Agreement continues in force,
not cured within ten (10) days (or such longer period as may be Customer shall be entitled to engage a third party to maintain the
permitted by MORPHO) after Customer's receipt of MORPHO's Software and Equipment. Provided that such third Pa
rte: s is
police of the failure; (ii) Customer makes or permits any not a competitor of MORPHO; and (i) enters into a confidentiality
unauthorized use or disclosure of any Confidential Information; agreement satisfactory to MORPHO, as determined at
(iii) Customer commits a material non-monetary breach of or MORPHO's sole discretion, MORPHO shall provide such third
default under this Agreement, MORPHO gives Customer written party with such information with respect to the Software and
notice of such breach or default, and the breach or default is not Boards as is necessary to maintain and support the Software
cured within thirty (30) days (or such longer period as may be and Equipment.
permitted by MORPHO) after Customer's receipt of MORPHO's
notice of the breach or default; or (iv) Customer files or has filed 7.3 Equitable Relief. Customer acknowledges that
against it a petition to have Customer adjudged bankrupt or for unauthorized disclosure or use of the Confidential Information
reorganization or arrangement of Customer under any could cause irreparable harm to MORPHO for which monetary
bankruptcy, moratorium, insolvency, reorganization, liquidation, damages may be difficult to ascertain. Accordingly, Customer
conservatorship or other debtor relief law, Customer makes any agrees that MORPHO shall have the right, in addition to any
general assignment for the benefit of its creditors under any other rights or remedies available to MORPHO. to seek and
debtor relief law, a trustee or receiver is appointed to take obtain injunctive and other equitable relief to prevent or stop any
possession of all or substantially all of Customer's assets under unauthorized disclosure or use of any Confidential Information.
any debtor relief law, all or substantially all of Customer's assets
are attached or seized, or Customer dissolves, liquidates or 7.4 Ownership. MORPHO retains all right, title and
adopts any plan for dissolution or liquidation. interest in and to all Confidential Information, along with any and
all patent, copyright, trade secret, trademark and other
6.4 Termination by Customer. Customer may terminate proprietary rights associated with any Confidential Information,
the Term by giving MORPHO written notice of such termination and no ownership of or title to any Confidential Information or
if: (a) MORPHO commits a material breach of or default under any associated proprietary rights is transferred to Customer
this Agreement, Customer gives MORPHO written notice of the hereby.
breach or default, and the breach or default is not cured within
thirty (30) days (or such longer period as may be permitted by 7.5 Exceptions. The confidentiality obligations of
Customer) after MORPHO's receipt of Customer's notice of the Customer under this Section 7 shall not apply to any Confidential
breach or default; or (b) MORPHO files or has filed against it a Information that Customer can conclusively prove: (i) was in or
petition to have MORPHO adjudged bankrupt or for entered the public domain through no fault of Customer; (ii) was
reorganization or arrangement of MORPHO under any known to Customer before the disclosure by MORPHO; (iii) was
bankruptcy, moratorium, insolvency, reorganization, liquidation, received by Customer from a third party legally entitled to make
conservatorship or other debtor relief law, MORPHO makes any an unrestricted disclosure; or (iv) is required to be disclosed by
general assignment for the benefit of its creditors under any any applicable law, regulation or order of a governmental
authority having jurisdiction; provided, that in the event of any
Page 4 of 5
Maintenance Agreement Rev 11/03
disclosure under this subparagraph (iv), Customer shall 847 Entire Agreement This Agreement constitutes the
provide MORPHO with reasonable notice prior to disclosure entire agreement and supersedes any and all prim agreements
and provide such assistance as MORPHO may reasonably between MORPHO and Customer with regard to MORPHO
request to challenge or narrow the scope of such disclosure. providing maintenance services fa the Equipment and Software.
No amendment, modification, or waiver of this Agreement will be
Section IL Miscellaneous valid unless set forth in a written instrument signed by the party
&I Disclaimer. THIS IS A SERVICES AGREEMENT. to be bound.
MORPHO DOES NOT MAKE, AND HEREBY DISCLAIMS,
ANY AND ALL WAR-RANTIES, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
REPAIR, REPLACEMENT, CORRECTION, UPDATE,
UPGRADE, SERVICE OR OTHER ITEM FURNISHED BY OR
ON BEHALF OF MORPHO UNDER THIS AGREEMENT
(INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE.)
8.2 Excused Performance. MORPHO will not be
responsible for or be considered to be in breach of a default
under this Agreement on account of any cause beyond
MORPHO's reasonable control or not occasioned by MORPHO's
fault or negligence (including, but not limited to, MORPHO's
inability, after due and timety diligence, to procure materials,
parts, equipment, or services).
8.3 LIMITATIONS OF LIABILITY. MORPHO'S
LIABILITY (WHETHER IN CONTRACT, TORT, OR
OTHERWISE, AND NOTWITHSTANDING ANY FAULT,
NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY
OF MORPHO) WITH REGARD TO ANY REPAIR,
REPLACEMENT, CORRECTION, UPDATE, UPGRADE,
SERVICE OR OTHER ITEM FURNISHED OR TO BE
FURNISHED UNDER THIS AGREEMENT WILL NOT EXCEED
THE AMOUNT PAID BY CUSTOMER TO MORPHO FOR
SUCH ITEM. FURTHER, MORPHO WILL NOT IN ANY EVENT
BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR INDIRECT DAMAGES, OR FOR LOSS
OF REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL
LOSS, ARISING OUT OF OR IN CONNECTION WITH ANY
REPAIR, REPLACEMENT, CORRECTION, UPDATE,
UPGRADE, SERVICE OR OTHER ITEM FURNISHED OR TO
BE FURNISHED UNDER THIS AGREEMENT.
8.4 Nonwalver. Any failure by MORPHO to insist upon
or enforce performance by Customer of any of the provisions of
this Agreement or to exercise any right or remedy under this
Agreement or applicable law will not be construed as a waiver or
relinquishment to any extent of MORPHO's right to assert or rely
upon any such provision, right or remedy in that or any other
instance; rather the same will be and remain in full force and
effect.
8.5 Assignment. Customer will not assign this
Agreement or any of its rights hereunder, by operation of law or
otherwise, without the prior written consent of MORPHO. No
assignment by Customer, with or without MORPHO's consent,
will relieve Customer from any of its obligations under this
Agreement. Subject to the foregoing, this Agreement will inure
to the benefit of and be binding upon the parties and their
respective successors, assigns and legal representatives.
8.6 Applicable Law and Venue. This Agreement will be
interpreted, construed, and enforced in all respects in
accordance with the laws of the State of Washington, without
reference to its choice of law principles. Customer will not
commence or prosecute any action, suit, proceeding or claim
arising under or by reason of this Agreement other than in the
state or federal couns located in King County, Washington.
Customer irrevocably consents to the jurisdiction of the courts
identified in the preceding sentence in connection with any
action, suit, proceeding or claim arising under or by reason of
this Agreement.
Page 5 of 5
Maintenance Agreement Rev 11/03
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STACY K. HICA Vol, JAMES Y. ARAKAKI
PETE HOFFMANN
Chair & Presiding Officer
FRED HOLSCHUH, DR.
VIRGINIA ISBELL " DONALD IKEDA
Vice Chair BOB JACOBSON
W. ANGEL K. PILAGO
•••T~ •ir
GARY SAFARIK
HAWAI `I COUNTY COUNCIL
County of Hawai 'i
Hawaii County Building
25 Aupuni Street
Hilo, Hawai `i 96720
October 18, 2006
Stacy K. Higa, Chair
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
RE: Resolution No. 496-06 Resolution authorizing the payment of funds of a later
fiscal year and of more than one fiscal year for a multi-year maintenance agreement for
the automated booking system at the various Police Stations throughout the sland.
Pursuant to Section 2(g) of Rule 4 of the Rules of Procedure of the Council of the County of
Hawaii, this written request is submitted with my approval that the above-referenced matter be
waived from the Committee on Finance to the full Council for immediate action. In reviewing
this matter, timely approval is crucial. It is therefore advantageous that approval is granted and
the matter placed onto the next Council agenda for review. However, in the event this request is
denied, for whatever reason, I understand the matter shall be referred to the Committee on
Finance for placement on its future agenda.
Sinq~rely,
VirginiIsbell, Chair
Committee on Finance
Approved ate/Waive to Council: Disapproved/Date/Refer to FC:
Stacy K. Higa, C air Stacy K. Higa, Chair
Hawaii County Council Hawaii County Council
VI/smc
Hawaii County Is An Equal Opportunity Provider And Employer