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12-152 Imaging Service Agreement, BMI Systems ,eg.j Imaging Services Agreement Reproduction of Documents BMI Imaging Systems, Inc., ("BMI") shall perform the :cervices for Customer outlined in the attached Description of Services portion of this Agreement, subject to the following terms and conditions. The books, manuscripts, photographs, newspapers, periodicals, files, disks, tapes or other material provided by Customer shall be referred to as the"Documents." The products of digital or photographic reproduction processes shall be referred to as the "Image Product." BMI does not warrant that all customers Documents will be reproduced to the Image Product or that each reproduced image will be legible. BMI agrees to reprocess any missed or illegible Documents and, when determined by BMi to be technically possible, to insert the corrected or missing images into the Image Product. Customer must identify and return to BMI the appropriate missing or illegible Documents to BMI along with all Image Products within 60 days of the Image Product's availability to Customer. After such 60-days period, Customer agrees to pay for any retakes or corrections by Customer at BMi's then effective rates. Customer acknowledges that in order for BMI to perform services, Customer must make certain personnel or other resources available to BMI in Timely manner. Customer agrees that it will cooperate in providing information or personnel upon BMI's request.and Customer acknowledges that its failure Ito do so may prevent BMI from meeting milestones as may be designated in a Schedule of Work. Transportation Although some transportation of Documents and Image Product may be provided by [3M1 in furnishing services under this agreement, BMi is not and shall not be deemed a contract carrier and the limitations on liability and claims procedures outlined elsewhere in the Agreement shall apply to any such transportation services. In I providing transportation of Documents or Image Product, BM I shall accept no liability for the loss or damage of Documents or Image Product beyond that which is detailed below. Insurance and Liability Customer shall maintain adequate property damage and loss insurance coverage or shall self-insure with respect to all Documents or other materials furnished by Customer to BMI. Customer acknowledges and agrees that it has unique knowledge of the value of the Documents and therefore expressly represents that it is solely responsible for maintaining any insurance, in such amounts as it deems appropriate, covering Documents while Documents are within the care, custody, and control of BMi. Additionally, Customer declares the value of Documents, during any transporting, processing, storing or copying by BMI, is the value of the media itself(paper,disk,film)on which the Documents were originally provided to BMI. in any action to enforce a claim based on the alleged negligence of BMI, burden of proving negligence shall be with the Customer. Customer hereby waives the benefit of am; presumption in law or otherwise that any damage to or loss of the Documents was caused by the negligence of BML BMI shall have no other liability to Customer for any damage or loss sustained by Customer as a result of BM I's obligations under this Agreement, including without limitation, damage or loss sustained by reason of missing. illegible pages or damaged Documents or I Image Products. 1.3M1 does not represent or warrant that its buildings are fireproof or the contents of the buildings I (including the Documents and the Image Products)cannot be destroyed by fire. Any claim for loss must be made by Customer within sixty O0) days of the date that Customer receives Image Product from [3M I. Any action to enforce a claim must be 1-rought within 120 days alter the claim is made to 1 13M1, or else the claim is waived. Any claim arising under this Agreement shall be finally settled by binding Arbitration conducted under the Commercial Arbitration Rules of the American Arbitration Association, as then in effect. Any such Arbitration shall be conducted in Santa Clara County, California before one arbitrator who shall he a lawyer or retired judge with experience in arbitrating commercial disputes. The prevailing party in any such Arbitration shall be awarded reasonable attorneys' tees, expert and non-expert witness costs and expenses, and other costs and expenses incurred in the Arbitration. The award of the arbitrator, which may include equitable relief, shall be final and judgment may he entered upon it in accordance with applicable law in any court having jurisdiction thereof. If any legal action or arbitration or other proceeding is required for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney's fees and other costs incurred in that action or preceding in addition to any otk.cr relief to which it may he entitled. BMI, in the course of performing services for the Customer, may be required to install software to Customer's workstation, server or other connected device. Customer agrees to have performed adequate prior and ongoing backup of all data and programs connected to any networked device onto which BMI will be loading software or data. BMI makes no claim as to the serviceability of the software and Customer accepts refund of the cost of the software license(s) as total compensation from BMI for any damages that might arise out of the use or installation of such software. BMI makes no other warranties express or implied, including without limitation the warranty or merchantability or fitness for a particular purpose. In no event shall BMI be liable for special, punitive, incidental or consequential damages even if it has been advised of the possibility before. { f i ! Charges All charges for services, together with any sales or other applicable tax, are due and payable no later than thirty (3tfl days after receipt of the invoice. Invoices will typicall:i be provided by US Mail monthly for completed work. Unpaid accounts are subject to late payment charges or the lesser of 1-1/2% per month or the maximum rated permitted by law. Solicitation Customer agrees that they will not recruit, solicit, induce or otherwise contract with 13MI personnel, whether employees of BMI or t3M1 contractors, for a period of 12 'ninths following completion of any BMI provided services to client. Title/Court Order Customer represents and warrants that it owns, has acquired, or will acquire, all rights, title, interest, licenses and permissions necessary for BNII, its employees,agents andior contractors to perform services to the Documents under this agreement without violation or infringement of any third party right or agreement. In the event of any such actual or threatened violation or infringement, Customer shall be solely liable for all damages. costs and expenses(including attorneys' fees) arising from of related thereto and Customer agrees to indemnify, defend and hold BNB harmless from and against, any and all actions, claims, liability, damages, costs and expenses(including attorneys' fees)arising from or related to any such actual or threatened violation or infringement. Customer acknowledges and agrees that 13M1 may in its sole discretion suspend, refuse to perform or terminate services, in whole or in part, after the receipt of (i) a third party allegation or complaint of a violation or infringement of any right or (ii) the receipt u: an order of a court or other legal authority of competent jurisdiction to cease the performance of services re atcd to the Documents. i ' } BNB may refuse access to the Documents or the Image Product to the Customer if a Court of legal jurisdiction should so order. Customer hereby waives all claims for damages against E3M1 and agrees to indemnify and hold BMI harmless against any claims by any third party including without limitation attorneys, fees incurred in connection with this Agreement. While any claim or charge o_'BMI remains unpaid for 30 days or more, BMI's liability for any loss of or damage to Customer's records incurred during such period shall be that of a gratuitous bailee only and BMI shall have the right to destroy Customer's records without additional authorization from or notice to Cheat and to charge Client for the destruction. BMI shall have no liability to any shareholder, partner, director, officer or employee of Customer or any successor in interest to Customer if 13M1 applies any of the remedies permitted to BMI under this Agreement Confidential Documents BMI agrees that, without the prior consent of Customer, it :.hall not disclose the contents of any agreement, instrument, or other document Customer provides to BMI fir its services to any person, except when such disclosure would be required by any law,court or regulation. Entire Agreement/Modification/Waiver This Agreement supersedes any prior agreements and understandings between the parties relating to the subject matter of this Agreement. No supplement,amendment or modification of this Agreement shall be binding unless executed in writing by all of the parties. No waiver of any of:he provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver of this Agreement shall be binding unless executed by the party making the waiver. Assignment This agreement shall be binding on and inure to the benefit c f the parties to it and their respective heirs, legal representatives, successors and assigns. Recovery of Litigation/Arbitration Costs If any legal action or Arbitration or other proceeding is required for the enforcement of this Agreement, or because of an alleged dispute, breach, default or tnisrepresentLt ion connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or preceding in addition to any other relief to which it may be entitled. Notices Any notice required or permitted to he given under this Agreement shall be in writing and shall be deemed to have been green upon receipt by the party to whom notice is}Icing given. Governing Law • This N,recment shall be governed by and constructed in accordance with the laws of the State of California applicable to contracts made and to be performed in C'alifornu:, expect that this Agreement shall be construed in accordance with the intention of the parties and without regard to California Civil Code Section 1654. • .4 for Customer(Company Name) For Customer(Print Name) ( t �f� tire_ I Signature of Customer • For ysterns, Inc Description of Services 11 4 cdt City of Cupertino Community Development Department Fee Schedule and Scope of Work for 16mm &35mm Microfilming With Conversion to Jacketed Microfiche December 2012 The fee schedule for microfilming services is based upon the following key assumptions. Scope of Work • Documents will be produced by the Building Department and Planning Department. • An estimate of 5,000 to 20,000 pages will be produced per job occurrence. • The documents consist of pages that are 81/2 "x11"/8'A"x14"single and double sided sheets with plans and drawings on sheets up to 30"x42" (E-size). • Cupertino will prepare the documents for transport. • BMI will provide pickup and delivery of the documents using BMI's drivers and trucks. • The documents are transported to the BMI facility located at 1115 E.Arques Avenue, Sunnyvale, CA. • When the documents arrive at the BMI facility,the boxes are logged into the BMI production tracking system. Each job is assigned a job control number and each box is labeled with a bar coded label designating the job and box number. Document Preparation/ Back Preparation • Cupertino prepares each set of documents with a cover sheet that provides the information for microfiche labeling. • BMI will be responsible for document preparation that includes the removal of all impediments: staples and clips, rubber-bands, unfolding/unrolling of pages and repair of torn pages with clear tape. • Small documents are taped to a "carrier sheet"that will feed through the camera. • Folded plans require additional preparation by ironing the folded creases to minimize shadows on the microfilmed image. • After microfilming the documents will be returned to the original boxes for return to Cupertino. Oversized sheets will be re-folded but not re-stapled.Smaller size documents will be secured with rubber bands and clips, but staples will not be replaced. 16mm/35mm Microfilming • Pages 81/2" x 11" up to 11"x17"and smaller will be microfilmed onto 16mm roll microfilm. • Oversized plans and drawings are microfilmed onto 35mm roll microfilm. • The microfilm is processed in BMI's Kodak certified microfilm lab.The film is processed and inspected to make sure that the film and images conform to ANSI/AIIM standards for microfilm production. • Any film/images that do not meet specifications are re-filmed at no additional costs. City of Cupertino Microfiche Conversion Page 2 Jacketed Microfiche • After microfilm processing and inspection,the microfilm is converted into jacketed microfiche. • 16mm microfilm is loaded to 16mm jackets, 35mm microfilm is loaded to 35mm jackets.Sets of documents that require both 16mm and 35mm microfilm will be loaded to combination 16mm/35mm jackets. • Each document set, defined by the cover sheet, is converted to a separate set of microfiche. The microfiche is labeled according to the data that is provided on the cover sheet. Microfiche Duplication • One diazo duplicate of each original microfiche jacket will be produced. • Each set of fiche will be provided in a white envelope. Additional Services • Per our discussion, BMI has the ability to create 16mm microfilm from scanned digital images. The process uses Kodak Archive Writer technology. • BMI also provides conversion of microfilm and microfiche images to digital formats. Pricing Item Unit Cost 16mm Microfilming, Processing& Inspection $ .095/ Frame 35mm Microfilming, Processing & Inspection $ .95 / Frame Microfiche Jacket Loading and Titling $ 3.00/Jacket Microfiche Diazo Duplication (One per Master) $ .55/ Duplicate Document Preparation / Back Prep. $25.00/ Hour Pick-up and Delivery $70.00/ Round-trip Minimum Job Submission: $300 excluding transportation. Sales tax is additional.