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HomeMy WebLinkAbout04-0310 Public Safety Group 04-03(0 SOFTWARE LICENSE AGREEMENT PARTIES. This� • agreement is entered into this lB' day of �1}/) ZLIA. , 2004, by and between Public Safety Group, Inc. (PSG) , a Florida corporation ("Developer") , and the City of Elgin, an Illinois municipal corporation ("City") . STATEMENT OF PURPOSE. This agreement will document the City' s hiring of the Developer as an independent contractor to design and develop certain software as more fully described in the "Statement of Work" attached to this agreement as Exhibit A. It is the intent of the parties that the software described in the Statement of Work (the "Software") will generally allow the City' s code administration department to utilize handheld computers functioning under the Windows CE operating system to wirelessly communicate with the City' s network system server. In addition, the Developer will prepare user documentation and other deliverables (the "Documentation") as specifically provided in the Statement of Work. In consideration of the terms and conditions contained in this agreement, the parties specifically agree as follows: 1 . STATEMENT OF WORK. The Statement of Work attached as Exhibit A has been approved by the City. The Developer will create the Software by adapting existing PSG software in accordance with the Statement of Work and the terms and conditions of this agreement. 2 . PAYMENT TERMS. The City shall pay the Developer twenty-three thousand, eight hundred ten and 00/1000 dollars ($23, 810.00) not more than thirty (30) days following the execution of this agreement. Not more than thirty (30) days following the delivery and implementation of the software, including two days of Software installation and two days of Software training by the Developer, the City shall pay the Developer twenty-one thousand, nine hundred and thirty-two dollars ($21, 932.00) . Not more than thirty days following the City' s final acceptance of the Software, the City shall pay the Developer four thousand, four hundred and eighty-three dollars ($4, 483.00) . The itemized costs for the three payments described in this paragraph are set forth in Exhibit B, attached to and incorporated into this agreement by reference. Upon the City' s final acceptance of the Software and the City' s final payment to the developer in accordance with the terms of this paragraph, the Developer shall provide the City with four (4) PocketBP Handheld Licenses; eleven (11) Pocket CE Handheld Licenses; one (1) PocketBP Server License; one (1) PocketCE Server License, and; one (1) PocketBP Servlet Exec Application License (a third-party software application) for the costs set forth in Exhibit B to this agreement. 3. ACCEPTANCE TESTING OF SOFTWARE. The Developer shall install the Software and deliver to the City all documentation required by the Statement of Work. The Developer and the City will develop a software testing plan jointly within ten business days after delivery and installation to review • the documentation and test the Software to determine whether it complies with the applicable Statement of Work requirements. 4. SOFTWARE DEVELOPMENT CHANGES. Any changes or additions to the scope, design and functionality of the Software as defined by the Statement of Work shall not be effective unless in writing signed by both parties to this agreement. Such writing should expressly state the nature of the changes and/or additions, and their affect on various terms of this agreement including, but not limited to, delivery dates, procedures for approval, warranties, ownership issues and payment terms. The Developer' s monetary compensation for any changes or additions to the scope of the project which reasonably require more time on the part of the Developer shall be negotiated by the Developer and the City before any such changes or additions to the scope, design and functionality of the Software as defined by the Statement of Work are implemented by the Developer. 5. DEVELOPER EXPENSES. The Developer is solely responsible for any out- of-pocket expenses the Developer incurs in the performance of this agreement. 6. TRAINING. Following the delivery and installation of the Software at the City' s place of business, the Developer shall provide two full days of training by a member of its staff to a group of the City' s staff. City shall pay Developer $ 2, 000.00 for two full days of training not later than thirty days following the completion of the two day training session. This training amount has been included as part of the second payment of $21, 932. 00 in paragraph 2 . Additional training, as reasonably requested by City, shall be provided to it at the rate of $180.00 per hour. 7. OWNERSHIP OF SOFTWARE AND DOCUMENTATION. "PocketBP" and "PocketCE" are PSG products owned by PSG. The Developer PSG will adapt these PSG products to meet the City' s specific requirements as identified in Exhibit A. The Developer and/or PSG will retain ownership of the end products and will grant the City a software license to use the products consistent with the terms of this agreement. 8 . WARRANTIES WARRANTY AGAINST MATERIAL DEFECTS. For the period and under the conditions below stated, the Developer warrants that the Software will be free from material programming errors and defects and will materially conform to the Statement of Work set forth in Exhibit A to this agreement. The Developer additionally warrants that the Software will be compatible with the City' s existing hardware and software. If, during the term of this warranty, the City reasonably determines that the Software fails to perform as warranted, the Developer shall promptly repair any defects at no additional cost to City. The above warranty will last for a period of ninety days following the final implementation and acceptance of the Software by the City. The warranty contained in this agreement will be null and void if the City fails to substantially maintain and operate the Software according to the Developer' s 2 • instructions as contained in the Statement of Work or if the City is otherwise in default of this agreement. These warranties do not apply to defects or errors caused by modification to, or misuse of, the Software by anyone other than the Developer or parties controlled by it. WARRANTY. The Developer represents that it will not knowingly infringe upon proprietary rights of any third party in the performance of its obligations under this agreement including the delivery of the Software and documentation required under this agreement. The Developer further warrants that the Software and documentation will not infringe on the copyright, trade secret or trademark rights of any third party. WARRANTY DISCLAIMER. Except as expressly set forth in this agreement, the Developer MAKES NO OTHER WARRANTY WITH RESPECT TO THIS AGREEMENT OR IN ANY PERFORMANCE HEREUNDER, EXPRESS OR IMPLIED. 9. SOFTWARE MAINTENANCE. The Developer will provide unlimited annual support services not otherwise covered by the above warranty provisions as is reasonably required by the City. City shall pay Developer an annual fee of $5584 . 50 for annual maintenance and support services. City' s first annual payment for such services shall occur after the initial ninety-day warranty period and on such date annually thereafter unless the City provides Developer with thirty days' written notice of its intent to cancel the Developer' s annual maintenance and support services. Such maintenance and support services shall include, but not be limited to, consultation concerning the operation and utilization of the Software, software error correction, and designing, coding, and implementing program changes and modifications. 10. INDEMNIFICATION AGAINST INFRINGEMENT CLAIMS. Developer agrees to indemnify, defend, and hold City harmless against any claims, damages, or liabilities, including reasonable attorney fees, which may arise out of any action brought against City which alleges that the Software or Documentation infringes any third party' s proprietary contractual rights or rights in its copyright, trade secret, or trademark rights valid under state or federal law or any third party rights in its patents existing on the date the Software or Documentation was accepted by the City. This indemnification will be effective so long as City promptly notifies Developer of any such claim, allows Developer to defend against such claims with counsel of its own choice and provides assistance and information to Developer that it reasonably requests to help defend against such claims. This indemnification will not cover any claims resulting from City's modification of the Software or combination of the Software with hardware or other software provided by City or third party other than as anticipated by the Statement of Work or any claims which otherwise result from use of the Software other than as specified in the Statement of Work or the Documentation provided by the Developer. The Developer' s monetary obligation to indemnify City is limited to the total amount received by it from the City under the terms of this agreement. In the event a third party infringement claim successfully prevents City' s 3 • use of the Software, the Developer shall elect to either: 1) procure from the third party the City' s right to use the Software; 2) re-design the Software so that it no longer infringes on said third party' s rights (provided this can be done without unreasonable delay and provided the Software continues to perform as intended under the terms of this agreement; or 3) return all funds paid to it by City after allowing for a reasonable amount of depreciation based upon a seven year useful life. The Developer' s obligations hereunder will survive any expiration or termination of this agreement. 11 . INSURANCE. Prior to beginning work under this agreement, Developer will obtain, at its own expense, a general commercial liability insurance policy effective during the term of this agreement. Said policy will have limits of no less than $1 million combined single limit. The developer will provide copy of existing insurance policy to the City. 12 . CONFIDENTIALITY. The Developer and the City agree to hold in confidence and treat as confidential information all information that either party may reasonably designate from time to time as confidential information. Said parties shall use all reasonable methods to keep such information confidential and shall not disclose such information except as is necessary either to reasonably carry out the terms of this agreement, is required by law or is otherwise authorized by this agreement. Information which was known by the Developer without an obligation to keep it confidential or which was developed by or for it is not considered confidential information under this agreement. If required by City in writing, the Developer agrees to cause any person who is actively involved in Developer' s business to enter into a separate confidentiality agreement incorporating the above terms. The Developer shall use its best efforts to prevent anyone from violating this confidentiality agreement and shall cooperate with the City in its enforcement. 13. TERM OF AGREEMENT AND TERMINATION. This agreement commences on the date first above written and shall continue until fully performed by both parties unless earlier terminated as herein provided. In the event one party materially breaches the terms of this agreement, the other party may terminate this agreement after giving a written notice to the breaching party informing them of the breach and a thirty-day opportunity to cure the breach. A party may terminate this agreement if the other party becomes insolvent, files a bankruptcy petition or otherwise is unable to conduct, or ceases to conduct, its business. In the event the City terminates this agreement under the provisions of this paragraph or as otherwise provided in this agreement, it will have the option to return any Software and documentation to the Developer in exchange for the Developer's obligation to return all payments made to it by the City, less the reasonable value of any services which the City utilized and was benefited thereby. The City agrees not to use any part of the licensed products should it terminate this agreement. 4 • In the event the Developer terminates this agreement under the provisions of this paragraph because the City becomes insolvent, files a bankruptcy petition or otherwise is unable to conduct, or ceases to conduct, its business, the City shall immediately return the Software and Documentation provided to it by the Developer and all rights of the City therein shall cease. The rights and obligations under paragraph 13 of this agreement shall survive any termination and continue to bind the parties to the agreements contained therein. 14 . INDEPENDENT CONTRACTOR STATUS. The Developer will at all times operate as an independent contractor and not as an employee of the City. Neither party shall make any representation or warranty on behalf of the other party or incur any liability whatsoever in the name of, or for the account of, the other party. 15. RELATIONSHIP OF PARTIES. Nothing contained herein shall be deemed or construed by the City or the Developer, or by any other parties, as creating the relationship of employer and employee, principal and agent, partners, joint ventures, or any other similar such relationship, between the parties hereto. 16. NOTICES. Notices required herein shall only be deemed given if sent by registered or certified mail deposited in the United States mail, postage prepaid. Any such notice so mailed shall be presumed to have been received by the addressee seventy-two (72) hours after deposit of the same in the U.S. mail. Developer and the City shall have the right, by giving written notice to the other, to change the address at which its notices are to be received. Notices to the City shall be addressed as follows: Director of Code Administration and Development Services City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Notices to Developer shall be addressed as follows: Public Safety Group, Inc. 2336 Winter Woods Boulevard—Suite 2008 Winter Park, FL 32792 If any notice is given in any other manner or at any other place, it shall also be given at the place and in the manner specified above. Any Notice given by facsimile received after 3: 00 p.m. local time shall be deemed to have been received at 8 :00 a.m. local time, of the recipient, the next business day. 5 17. NONWAIVER OF RIGHTS: No waiver of breach by the City or Developer of any of the terms, covenants, and conditions hereof to be performed, kept, and observed by the other party shall be construed as, or shall operate as, a waiver of any subsequent breach of any of the terms, covenants, or conditions herein contained, to be performed, kept, and observed by the other parties. 18 . CAPTIONS. The headings of the several articles and paragraphs of this agreement are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope or intent of any provisions of this agreement and shall not be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 19. SEVERABILITY. In the event any covenant, condition or provision herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of any such covenant, condition or provision herein contained shall not affect the validity of the remaining covenants, conditions or provisions of this agreement. 20. WAIVER OF CLAIMS. The Developer hereby waives any claim against the City and its directors, officers, agents, or employees for loss of anticipated profits caused by any suit or proceedings directly or indirectly attacking the validity of this agreement or any part thereof, or by any judgment or award in any suit or proceeding declaring this agreement null, void or avoidable, or delaying the same or any part thereof from being carried out. 21 . INCORPORATION OF EXHIBITS. All exhibits, documents and instruments referred to in this agreement are intended to be and hereby are specifically made a part of this agreement. It is specifically agreed that any or all Exhibits may be modified and substituted in accordance with the provisions of this agreement without formal amendment hereto. 22. INCORPORATION OF REQUIRED PROVISIONS. The parties incorporate herein by this reference all provisions lawfully required to be contained herein by any governmental body or agency. 23. NON-LIABILITY OF AGENTS OR EMPLOYEES. No director, officer, agent, or employee of the City or the Developer shall be charged personally or held contractually liable by or to the other party under the provisions of this agreement or because of any breach thereof or because of its or their execution or attempted execution. 24 . SUCCESSORS AND ASSIGNS BOUND. This agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, where permitted by this agreement. 25. TIME OF ESSENCE. Time is expressed to be of the essence in this agreement. 6 26. GENDER. Words of any gender used in this agreement shall be held and construed to include any other gender and words in the singular number shall be held to include the plural, unless the context otherwise requires. 27. FORCE MAJEURE. Except for the payment of any fee or charge required by this agreement, neither the City nor the Developer shall be liable to the other for any failure, delay or interruption in the performance of any of the terms, covenants or conditions of this agreement due to causes beyond the control of that party or persons or entities for whose acts or omissions that party is responsible under this agreement or applicable law, including, without limitation, strikes, boycotts, labor disputes, embargoes, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, sabotage or any other circumstance for which such party is not responsible or which is not in its own power to control, provided that, should said cause (s) continue for a period beyond six (6) months, such shall be a grounds for termination by either party. 28 . REPRESENTATIVE OF THE CITY. The City of Elgin city manager, or the city manager' s designee, shall be designated as the official representative of the City in all matters pertaining to this agreement. To the extent expressly authorized by City Council, the Elgin City Manager, or designee, shall have the right and authority to act on behalf of the City with respect to all action required of the City in this agreement. 29. GOVERNING LAW AND VENUE. The laws of the State of Illinois shall govern this agreement. Any disputes relating to this agreement or the interpretation thereof must be resolved in accordance with the laws of Illinois. The Developer and The City agree that any legal or equitable action for claims, debts, or obligations arising out of or to enforce the terms of this agreement shall be brought by Developer or the City in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois and that such court shall have personal jurisdiction over the parties and venue of the action shall be appropriate in each such court. 30. WRITING REQUIRED. This agreement may not be amended or otherwise modified in any way whatsoever, except in writing approved by City Council and signed by the parties authorized agents. 31 . RIGHTS CUMULATIVE. Each right of the parties hereto is cumulative and in addition to each of the other legal rights that a party may have in law or equity. 32 . SUB-AGREEMENTS. The Developer hereby assures that it shall include all of the terms, conditions, covenants and obligations contained herein in any and all agreements and contracts or sub-agreements and subcontracts entered into by it under which the Developer grants a right or privilege to any person, firm or corporation to render accommodations and/or services within or for the Assigned Premises. Developer shall require that any document so entered into is subordinate in all terms to this agreement. Developer hereby also assures that it shall similarly cause the same to be included in any further subcontracts or sub-agreements. The voluntary or other surrender of 7 this agreement by Developer or a mutual termination hereof, or a termination by City, or an automatic termination, or termination by a court of competent jurisdiction, or any other termination hereof shall not work a merger, and shall, at the option of City, terminate any or all existing sub-agreements or subcontracts or may, at the option of City, operate as an assignment to City of any or all such sub-agreement or subcontract. 33. PRECEDENCE OF DOCUMENT. In the event of any conflict between this agreement and any exhibit or attachment hereto, the terms and conditions of the agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties provided for within the agreement shall be null and void. 34. ENTIRE AGREEMENT. The parties hereto understand and agree that this document contains the entire agreement between the parties. The parties further understand and agree that neither party nor its agents have made representations or promises with respect to this agreement except as expressly set forth herein; and that no claim or liability shall arise for any representations or promises not expressly stated in this agreement, any other writing or oral agreement with the other party being expressly waived. IN WITNESS WHEREOF, the parties hereto have executed these presents through their respective officers duly authorized so to do this /tr,L day of L/ IGLU 2 iv , 2004 . CITY OF ELGIN PUBLIC SAFETY GROUP, C. By: ;241.4,i) By: City Ma ger Ramzan Janmo amed Vice President Attest: Attest: BY: ,Og7;911 1Q.L111 tiUiyyLJ By: City Clerk Secretary t its, 8 • EXHIBIT A Statement of Work for Handheld Code Enforcement Application PocketCE This document describes the detail functionality and work to be performed by Public Safety Group, Inc. (PSG) for the City of Elgin. A handheld application (PocketCE) will be developed for the City of Elgin, which will allow access from a wireless handheld device into the city' s existing back-end code enforcement application residing on the city' s AS/400 system. The following functions will be provided as part of the software: ❑ Provide access via specific inquiry and update components into the code enforcement application databases from wireless handheld devices. ❑ Provide access to all individual case files (active or closed) by address, or case number. ❑ Provide ability to generate and start new case files, by entering information using a case processing addition screen. ❑ Provide ability to input data directly into new and existing case files including: o Case action steps o Case violation codes o Case narratives o Case data codes ❑ Provide inquiry capability to view data from existing case files. Any additional functional items which are not described above, such as printing notices from a portable printer, or sending notices to a designated office printer are not included as part of this statement of work and will be quoted and provided separately as additional cost items .