EQUIPMENT, LEASE, SUPPORT AND MAINTENANCE AGREEMENT
THIS EQUIPMENT LEASE, SUPPORT AND MAINTENANCE AGREEMENT ("Agreement") is by
and between the Indiana Bureau of Motor Vehicles Commission, a body corporate
and politic, created by statute under Indiana Code 9-15-1-1 et seq. ("BMVC"),
and Image Technology, Inc., a Nevada corporation, d/b/a in Indiana as Image
Technology of Indiana Corporation, an Indiana corporation ("Lessor").
WHEREAS, BMVC is seeking to procure a Self-Service Vehicle Registration
System ("SSVRS") to process motor vehicle registration transactions as outlined
in that certain Request for Proposals #1 ("RFP") dated April 1, 1996; and
WHEREAS, Lessor provided the only response to the RFP in that certain
response ("RFP Response") dated May 16, 1996, a copy of which is attached as
Exhibit A hereto and made a part hereof, that met the specifications and other
requirements set forth in the RFP; and
WHEREAS, BMVC now desires to lease a SSVRS from Lessor and Lessor desires
to lease, support and maintain a SSVRS on behalf of BMVC;
NOW, THEREFORE, in consideration of the foregoing Recitals and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
AGREEMENTS
1. Equipment To Be Leased/Pricing.
a. BMVC, at its sole option in accordance with the provisions of this
Section I of this Agreement, agrees to lease from Lessor NCR 5665 Self-Service
Terminals (each of which shall hereinafter be singularly referred to as a
"Terminal"), and stand-alone ITI AP2100 Registration Decal Printers/Applicators/
Dispensers (each of which shall hereinafter be singularly referred to as a
"Printer").
b. No later than February 1, 1997, Lessor shall install in the manner
provided in the RFP Response so as to be fully operational, ten (10) Terminals
and one hundred (100) Printers ("Phase I") in locations to be determined in an
implementation plan ("Plan") to be agreed upon by BMVC and Lessor. The Plan will
be designed to utilize the Terminals and Printers to perform an estimated
1,400,000 vehicle registration transactions on an annual basis based on vehicle
registration figures in 1995. BMVC and Lessor agree that these figures are
estimates only and no actual transaction volume can be guaranteed. During Phase
I, BMVC shall pay Lessor $1.22 for each vehicle registration transaction using a
Terminal or a Printer.
c. Thereafter, BMVC, at its option, may lease additional Terminals and
Printers beyond those leased as a part of Phase I. Attached as Exhibit B hereto
and made a part hereof is a matrix of pricing per vehicle registration
transaction based on the number of Terminals and Printers leased and the date
upon which the Terminals and Printers are actually leased. Each numbered "Block"
represents the lease of five (5) additional Terminals and thirty-nine (39)
additional Printers. At such time as a new Block is leased, the cost per
transaction for each vehicle registration processed using a Terminal or a
Printer (including those using a Terminal or Printer installed as a part of
Phase I or an earlier Block) will be adjusted according to the matrix. For
purposes of this Agreement the date upon which a Block is considered leased is
the earlier of either the date upon which the Block is fully installed by Lessor
and an acceptance certification as provided in Section 8 of this Agreement is
delivered by BMVC to Lessor or sixty (60) days after the date of written notice
from BMVC to lessor that it agrees to lease a Block.
d. Notwithstanding anything in this Agreement to the contrary, no
later than Xxxxxxx 00, 0000, XXXX agrees to notify Lessor of its agreement to
lease all five (5) Blocks unless this Agreement is canceled or terminated
pursuant to the terms and provisions of Section 12 or 13 of this Agreement.
Provided BMVC has provided written notice of its agreement to lease all five (5)
Blocks by such date, BMVC shall pay $0.85 ("Plate Year Pricing") for each
vehicle registration transaction performed beginning November 1, 1997, and
ending October 31, 1998. Beginning November, 1, 1998, the Plate Year Pricing
shall no longer apply and BMVC shall thereafter pay the appropriate amount per
vehicle registration transaction as provided for in the matrix attached as
Exhibit B hereto.
e. BMVC, at its option, can, after installation of all Blocks lease
one or more Terminal(s) or Printer(s). The applicable figures on the matrix
represent the additional cost per transaction for the lease of each additional
Terminal or Printer.
x. Xxxxxx shall provide all related software and services as described
in the RFP Response at no additional cost to BMVC. BMVC shall have no obligation
to make any other payments under this Agreement than the cost per vehicle
registration transaction for Phase I provided in subsection b. above or any
other appropriate amount as shown on the matrix in the attached Exhibit B.
2. Payments. All payment obligations are subject to the encumbrance of
monies and shall be made in arrears in accordance with Indiana law and state
fiscal policies and procedures and in this regard the Lessor agrees to execute
such state payment (invoice) forms not inconsistent herewith. BMVC will submit
Lessor's vouchers to the State Auditor's Office promptly so that payment will be
made within thirty (30) days unless due to events beyond the control of BMVC.
3. Term. The term of this Agreement shall be for a period of three (3)
years, effective November 1, 1996, and terminating October 31, 1999, subject to
the option for renewal contained in Section 16 below.
4. Initial Condition of Equipment. Any equipment leased hereunder shall be
new or remanufactured as new and subject to the same warranties as new
equipment.
5. Title. The Terminals and Printers are and shall at all times remain the
sole property of Lessor. BMVC shall have or acquire no rights, title or interest
to any such equipment leased hereunder except as provided in this Agreement.
Lessor shall retain risk of loss for such equipment.
6. Delivery. Shipping and delivery costs shall be paid by Lessor. Delivery
will be made to BMVC according to the Plan and any other subsequent delivery
schedule for an additional Block as agreed upon by Lessor and BMVC.
7. Installation.
a. Lessor shall install the Terminals and Printers ready for use in
accordance with the RFP Response and the Plan.
b. BMVC agrees to have the site prepared in accordance with Lessor's
written minimum site and environmental requirements. Such requirements, if any,
have been provided in writing to BMVC by Lessor prior to the execution of this
Agreement.
c. Installation shall be performed in accordance with the provisions
of the RFP Response in a professional and workmanlike manner and conform with
all recommendations of the manufacturer, and good construction and engineering
practices.
d. During the period of installation, the locations in which the
Terminals and Printers are to be installed will be in use by BMVC. Lessor shall
schedule and coordinate the work wit BMVC to cause the least possible
interference without interruption of BMVC's activities in and around such
locations. It is intended that work be performed during normal working hours of
BMVC, unless BMVC directs other-wise in writing.
8. Acceptance of Equipment. Following the delivery and installation of the
equipment described herein and the Lessor's certification that the equipment has
been successfully installed and is ready for use, BMVC shall inspect the same
and shall provide written acceptance of such equipment within ten (10) business
days following the Lessor's certification of the equipment being ready for use.
The failure of BMVC to issue written acceptance within such ten (10) business
day period shall not constitute acceptance. The Lessor may, upon the failure of
BMVC to issue timely acceptance, demand a written acceptance and BMVC will be
deemed to have accepted the equipment if it has not accepted or rejected the
equipment within ten (10) days receipt of the Lessor's written demand for
acceptance.
If the equipment fails to conform to the requirements of this Agreement,
including, but not limited to, the specification of the RFP and the
representations contained in the RFP Response the equipment may be rejected.
9. Support and Maintenance of Equipment.
a. Lessor shall keep the equipment in good operating condition in
accordance with the requirements contained in the RFP and the representations
made in the RFP Response. For this purpose, Lessor shall have full and free
access to the security policies and procedures of BMVC. Support and maintenance
of equipment shall be provided by Lessor as specified in the RFP Response.
Lessor specifically acknowledges and agrees that its response to specification
3.5.S.15.b regarding SSVRS 98% availability refers to database file availability
and not license branch hours of operation.
b. Preventive maintenance shall be performed as specified in the RFP
Response.
c. All remedial maintenance shall be performed as specified in the RFP
Response. Lessor shall meet the response times provided in the RFP Response.
d. There will be no charge for travel expenses associated with any
maintenance service under this agreement.
e. BMVC agrees to pay, at Lessor's applicable time and material rate
then in effect, all charges for parts and maintenance and other service
activities caused by: (1) misuse by BMVC employees, or (2) unauthorized
alterations and attachments.
f. There will be no extra charge for any replacement parts, except as
provided in paragraph e. above.
10. Taxes. BMVC is exempt from state, federal and local taxes. BMVC will
not be responsible for any taxes levied on Lessor as a result of this Agreement.
11. Patents. Lessor agrees to defend at its own expense, the State of
Indiana and BMVC and to hold them harmless, with respect to any claims that the
equipment furnished by the Lessor under this Agreement infringes or allegedly
infringes any patents issued by the United States and with respect to any and
all suits, controversies, demands and liabilities arising out of such claim.
12. Default.
a. If BMVC, after sixty (60) days written notice, fails to correct or
cure any breach of this Agreement, then Lessor may cancel and terminate this
Agreement.
b. If Lessor, after sixty (60) days written notice, fails to correct
or cure any breach of this Agreement, BMVC may cancel and terminate this
Agreement and thereafter owe no further monies for equipment usage beyond the
termination date.
13. Multi-Term Funding Cancellation Clause. When the Director of the State
Budget Agency makes a written determination that funds are not appropriated or
otherwise available to support continuation of performance of this Agreement,
this Agreement shall be canceled. A determination by the Budget Director that
funds are not appropriated or otherwise available to support continuation of
performance shall be final and conclusive.
14. [INTENTIONALLY DELETED].
15. Assignment. Lessor may, with prior approval of BMVC, which approval
shall not unreasonably be withheld, assign its rights to receive payments
hereunder, provided, that such assignments shall not relieve Lessor of its
responsibility to perform any duty imposed upon it herein. No waiver of any
rights held by BMVC or the State, including rights of set-off or counterclaim
will be granted to any assignee.
16. Renewal. This Agreement may be renewed upon the same terms and
conditions contained herein for a period of one (1) year by written notice from
BMVC to Lessor. The total term of this Agreement, including all renewals, shall
not exceed four (4) years.
17. Nondiscrimination. Pursuant to I.C. 22-9-1-10, Lessor and any
subcontractor thereof, if any, shall not discriminate against any employee or
applicant for employment, to be employed in the performance of this Agreement,
with respect to his hire, tenure, terms, conditions or privileges of employment
or any matter directly or indirectly related to employment, because of his race,
color, religion, sex, handicap, national origin or ancestry. Breach of this
covenant may be regarded as a material breach of this Agreement.
18. [INTENTIONALLY DELETED].
19. Alterations and Attachments. An alteration or attachment to equipment
may be made only upon approval by Lessor, which approval shall not be
unreasonably withheld. BMVC agrees to remove any alteration or attachment and to
restore equipment to its normal, unaltered condition, ordinary wear and tear
excepted, prior to its return to Lessor, or upon notice from Lessor that the
alteration or attachment creates a safety hazard or renders maintenance of the
equipment impractical.
20. Authority to Bind Lessor. The signature of the representative of Lessor
to this Agreement represents that he or she has been authorized to execute
contracts on behalf of Lessor designated above, and has filed proof of such
authority with BMVC.
21. Independent Contractor. Both parties hereto, in the performance of this
Agreement, will be acting in an individual capacity and not as agents,
employees, partners, joint ventures or associates of one another. The employees
or agents of one party shall not be deemed or construed to be the employees or
agents of the other party for any purposes whatsoever. Neither party will assume
any liability for any injury (including death) to any persons, or any damage to
any property arising out of the acts or omissions of the agents, employees or
subcontractors of the other party.
22. Penalties/Interest/Attornev's Fees. BMVC will in good faith perform its
required obligations hereunder but does not agree to pay any penalties,
interest, liquidated damages, or attorney's fees, whether as a result of
termination of this Agreement or for any other reason.
23. Compliance with Laws. Lessor agrees to comply with all applicable
federal state and local laws, rules, regulations, or ordinances, and all
provisions required thereby to be included herein, and hereby incorporated by
reference. The enactment of any state or federal statute or the promulgation of
regulations thereunder after execution of this Agreement shall be reviewed by
the Attorney General and Lessor to determine whether the provisions of the
contract require formal amendment.
24. Hold Harmless Indemnification. Lessor agrees to indemnify, defend and
hold harmless the State of Indiana, BMVC, and their agents, officers, and
employees from all claims and suits including court costs, attorney's fees, and
other expenses, caused by any act or omission of Lessor and/or sub-contractors.
25. Possession and Quiet Enjoyment. Lessor hereby covenants to provide BMVC
during the term of this Agreement the quiet use and enjoyment of the Terminals
and Printers, and BMVC shall during the term of the Agreement peaceably and
quietly have and hold and enjoy such equipment, without suit, trouble or
hindrance, except as expressly set forth in this Agreement.
26. Maintaining a Drug-Free Workplace.
a. Lessor hereby covenants and agrees to make a good faith effort to
provide and maintain during the term of this Agreement a drug-free workplace,
and that it will give written notice to the contracting state agency and the
Indiana Department of Administration within ten (10) days after receiving actual
notice that an employee of Lessor has been convicted of a criminal drug
violation occurring in Lessor's Workplace.
b. In addition to the provisions of subparagraph (a) above, if the
total contract amount set forth in this Agreement is in excess of $25,000.00,
Lessor hereby further agrees that this Agreement is expressly subject to the
terms, conditions and representations contained in the Drug-Free Workplace
certification executed by Lessor in conjunction with this Agreement and which is
appended as an Attachment hereto.
c. It is further expressly agreed that the failure of Lessor to in
good faith comply with the terms of subparagraph (a) above, or falsifying or
otherwise violating the terms of the certification referenced in sub-paragraph
(b) above shall constitute a material breach of this Agreement, and shall
entitle the State to impose sanctions against the Lessor including, but not
limited to, suspension of contract payments, termination of this Agreement
and/or debarment of Lessor from doing further business with the State for up to
three (3) years.
27. Notices. All notices to be made under the terms and provisions of this
Agreement shall be in writing and sent by certified or registered mail,
addressed to Lessor at:
Image Technology, Inc.
Xxxxxx Rousseff, Chairman of the Board
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
and addressed to BMVC at:
Xxxxxxx X. Xxxxxx, Chairman
Bureau of Motor Vehicles Commission
Indiana Government Center North
000 Xxxxx Xxxxxx Xxxxxx, Xxxx X000
Xxxxxxxxxxxx, Xxxxxxx 00000
28. General.
a. This Agreement embodies the entire agreement between the parties.
It may not be modified or terminated except as provided herein or by written
agreement signed by all authorized and required parties.
b. To the extent that the terms and provisions of this Agreement and
the RFP Response are not consistent, the terms and provisions of this Agreement
shall govern and supersede the RFP Response. Specifically, the terms and
provisions of this Agreement regarding pricing and any payments to be made by
BMVC shall govern and supersede all related terms and provisions of the RFP
Response.
c. This Agreement shall be construed in accordance with and governed
by the laws of the State of Indiana and suit, if any, must be brought in the
State of Indiana.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
and agreed to the terms and provisions thereof, effective November 1, 1996.
LESSOR: BMVC:
Image Technology, Inc., a Indiana Bureau of Motor Vehicles
Nevada corporation, doing Commission, a body corporate and
business in Indiana as Image politic, created by statute under
Technology of Indiana Indiana Code 9-15-1-1 et seq.
Corporation, an Indiana
Corporation
By:___________________________ By:________________________________
Xxxxxx M. Rousseff Xxxxxxx X. Xxxxxx, Chairman
Chairman of the Board
NON-COLLUSION AFFIDAVIT
STATE OF INDIANA )
) SS:
COUNTY OF XXXXXX )
The undersigned, being duly sworn to oath says, that he is the contracting
party, or that he is the representative, agent, member, or officer of the
contracting party, that he has not, or has any other member, representative,
agency or officer of the firm, company, corporation or partnership represented
by him, directly or indirectly, entered into or offered to enter into any
combination, collusion or agreement to receive or pay, and that he has not
received or paid, any sum of money or other consideration for the execution of
the annexed contract other than that which appears upon the face of the
contract.
/s/Xxxxxx M. Rousseff
Before me, a Notary Public, personally appeared before me and acknowledged
the truth of the statement in this Non-Collusion Affidavit, this 8th day of
August, 1996.
/s/Xxxxxxxx X. Xxxxxxxx
Signature of Notary Public
Xxxxxxxx X. Xxxxxxxx
Printed Name
My Commission Expires: My County of Residence is:
October 0000 Xxxxxx
XXXXX XX XXXXXXX
DRUG-FREE WORKPLACE CERTIFICATION
Pursuant to Executive Order No. 90-5, April 12, 1990, issued by Governor
Xxxx Xxxx, the Indiana Department of Administration requires the inclusion of
this certification in all contracts with and grants from the State of Indiana in
excess of $25,000. No award of a contract or grant shall be made, and no
contract, purchase order or agreement, the total amount of which exceeds
$25,000.00 shall be valid unless and until this certification has been fully
executed by the Contractor or Grantee and attached to the contract or agreement
as part of the contract documents. False certification or violation of the
certification may result in sanctions, including, but not limited to, suspension
of contract payments, termination of the contract or agreement and/or debarment
of contracting opportunities with the State for up to three (3) years.
The Contractor/Grantee certifies and agrees that it will provide a
drug-free workplace by:
(a) Publishing and providing to all of its employees a statement notifying
employees that the unlawful manufacture, distribution, dispensing,
possession or use of a controlled substance is prohibited in the
Contractor's workplace and specifying the actions that will be taken
against employees for violations of such prohibition; and
(b) Establishing a drug-free awareness program to inform employees about
(1) the dangers of drug abuse in the workplace; (2) the Contractor's
policy of maintaining a drug-free workplace; (3) any available drug
counseling, rehabilitation and employee assistance programs; and (4)
the penalties that may be imposed upon an employee for drug abuse
violations occurring in the workplace;
(c) Notifying all employees in the statement required by subparagraph (a)
above that as a condition of continued employment the employee will
(1) abide by the terms of the statement; and (2) notify the employer
of any criminal drug statute conviction for a violation in the
workplace no later than five (5) days after such conviction;
(d) Notifying in writing the contracting State Agency and the Indiana
Department of Administration within ten (10) days after receiving
notice from an employee under subdivision (c)(2) above, or otherwise
receiving actual notice of such conviction;
(e) Within thirty (30) days after receiving notice under subdivision
(c)(2) above of a conviction, imposing the following sanctions or
remedial measures on any employee who is convicted of drug abuse
violations occurring in the workplace: (1) take appropriate personnel
action against the employee, up to and including termination; or (2)
require such employee to satisfactorily participate in a drug abuse
assistance or rehabilitation program approved for such purposes by a
federal, state or local health, law enforcement, or other appropriate
agency; and
(f) Making a good faith effort to maintain a drug-free workplace through
the implementation of subparagraphs (a) through (e) above.
THE UNDERSIGNED AFFIRMS, UNDER PENALTIES OF PERJURY, THAT HE OR SHE IS
AUTHORIZED TO EXECUTE THIS CERTIFICATION ON BEHALF OF THE DESIGNATED
ORGANIZATION.
________________________________
NAME OF ORGANIZATION
________________________________
SIGNATURE OF AUTHORIZED
REPRESENTATIVE
________________________________ _____________________________
PRINTED NAME AND TITLE DATE
INDIANA SSVRR
THREE-YEAR PROGRAM WITH ONE OPTION YEAR 8/8/96
CONTRACT YEAR 1
11/1-2/1 2/1-5/1 5/1-8/1 8/1-11/1
PHASE ONE $1.22 $1.22 $1.22 $1.22
BLOCK 1 $1.08 $1.10 $1.12 $1.14
BLOCK 2 $0.98 $0.992 $1.007 $1.022
BLOCK 3 $0.916 $0.934 $0.953 $0.972
BLOCK 4 $0.877 $0.895 $0.913 $0.931
BLOCK 5 $0.851 $0.868 $0.885 $0.903
ADD'L 5665 $0.006 $0.006 $0.006 $0.006
ADD'L AP2100 $0.001 $0.001 $0.001 $0.001
INDIANA SSVRR
CONTRACT YEAR 2
11/1-2/1 2/1-5/1 5/1-8/1 8/1-11/1
PHASE ONE N/A N/A N/A N/A
BLOCK 1 N/A N/A N/A N/A
BLOCK 2 N/A N/A N/A N/A
BLOCK 3 N/A N/A X/X X/X
XXXXX 0 X/X X/X X/X X/X
BLOCK 5 $0.986 N/A N/A N/A
ADD'L 5665 $0.007 $0.007 $0.008 $0.008
ADD'L AP2100 $0.002 $0.002 $0.002 $0.002
INDIANA SSVRR
CONTRACT YEAR 3
11/1-2/1 2/1-5/1 5/1-8/1 8/1-11/1
PHASE ONE N/A N/A N/A N/A
BLOCK 1 N/A N/A N/A N/A
BLOCK 2 N/A N/A N/A N/A
BLOCK 3 N/A N/A N/A N/A
BLOCK 4 N/A N/A X/X X/X
XXXXX 0 X/X X/X X/X X/X
ADD'L 5665 $0.01 $0.012 $0.015 $0.018
ADD'L AP2100 $0.003 $0.003 $0.003 $0.003
INDIANA SSVRR
CONTRACT YEAR 4
11/1-2/1 2/1-5/1 5/1-8/1 8/1-11/1
PHASE ONE N/A N/A N/A N/A
BLOCK 1 N/A N/A N/A N/A
BLOCK 2 N/A N/A N/A N/A
BLOCK 3 N/A N/A N/A N/A
BLOCK 4 N/A N/A X/X X/X
XXXXX 0 X/X X/X X/X X/X
ADD'L 5665 $0.02 $0.045 $0.07 N/A
ADD'L AP2100 $0.004 $0.006 $0.008 N/A
THE FOLLOWING ARE THE DEFINITIONS ASSOCIATED WITH THE PHASE ONE, BLOCKS, ADD'L
5665, AND ADD-L AP2100 ITEMS.
PHASE ONE INCLUDES TEN SELF-SERVICE TERMINALS, 100 MAILROOM AND BRANCH AP2100s,
ALL REQUIRED SOFTWARE AND NETWORK SUPPORT, AND INSTALLATION AND MAINTENANCE
SERVICE.
EACH BLOCK CONSISTS OF AN OPTION TO PROCURE 39 AP2100s AND FIVE SELF-SERVICE
TERMINALS WITH ALL ASSOCIATED SOFTWARE AND SERVICES AS DEFINED IN BMVC RFP #1
PROPOSAL SUBMITTED ON MAY 17,1996.
AN ADDITIONAL 5665 INCLUDES THE WHOLE SYSTEM UNIT (i.e., 5665 TERMINAL, AP2100,
ENCLOSURE, ALL SOFTWARE AND SERVICES).
AN ADDITIONAL AP2100 REFERS TO A STAND ALONE PRINTER/DISPENSER ATTACHED TO A LAN
WHILE INTERFACING WITH THE BOSS SERVER AND INCLUDES ALL NECESSARY SOFTWARE,
INTERFACE UNIT, AND SERVICES.
