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HomeMy WebLinkAbout20-13 • Resolution No. 20-13 RESOLUTION AUTHORIZING EXECUTION OF A LICENSE AGREEMENT WITH DACRA TECH, LLC FOR THE PURCHASE OF AN E-CITATION ADJUDICATION MANAGEMENT SYSTEM BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that pursuant to Elgin Municipal Code Section 5.02.020B9 the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interests of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a License Agreement on behalf of the City of Elgin with DACRA Tech, LLC, for the purchase of an e-citation adjudication management system, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 12, 2020 Adopted: February 12, 2020 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk LICENSE AGREEMENT THIS LICENSE AGREEMENT (the "License Agreement" or "Agreement")is hereby made and entered into this 12th day of February , 2020, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and DACRA TECH, LLC, a Delaware limited liability company, (hereinafter referred to as "DACRA" or "Seller"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby mutually acknowledged,the parties hereto hereby agree as follows: 1. LICENSE. City shall License,and DACRA shall provide the license and provide the services described herein. 2. SOFTWARE LICENSE TERMS AND CONDITIONS. Initial Implementation and Training Set-Up Fees: Fees for software set-up, initial training, and support services necessary to prepare the Dacra system for use are waived. Initial set-up fee does not include customization. Monthly Subscription Fee: In exchange for the fully licensed use of Dacra software, as defined in this agreement, City will be billed the Monthly Usage Fee, subject to a monthly minimum of$1,500.00. The Monthly Usage Fee is tiered, based on annual citation volume and is calculated by totaling the following: 2019 Elgin Pricing Model Per Citation Fee Tier 1 Volume= First 10K Adjudication Citations $3.00 Tier 2 Volume= Second 10K Adjudication Citations $2.50 Tier 3 Volume=Above 30K Adjudication Citations $2.00 All State Tickets/Warning Citations/Tow Receipts $0.50 Loyalty Discount: The above pricing is secured for the duration of this contract. In addition, a $75,000 discount will be applied as noted below throughout the agreement term. The Monthly Usage Fee will be reduced by 1/12t of the annual discount, subject to the monthly minimum fee of$1,500.00: Year 1 - $25.000 Annual Discount Year 2 - $20,000 Annual Discount Year 3 - $15,000 Annual Discount Year 4 - $10,000 Annual Discount Year 5 - $5,000 Annual Discount $75,000 Total Discount License Agreement- City of Elgin & DACRA Tech LLC Page 1 of 6 Monthly Subscription Fee Billing: The monthly subscription fee billing shall begin upon the earlier of the go-live date or January 1 2020 (the"Start Date"). Payments are due within 30 days after the invoice date. Term: The term of this Agreement shall commence on January 1, 2020 and shall terminate December 31, 2025 Notwithstanding the foregoing, City may terminate this Agreement, upon 90-days written notice, at any time for convenience without any penalty. The Initial Term and any extensions and/or renewals are hereinafter referred to as the Term. Agreement Definitions Software as a service consists of system administration, system management, and system monitoring activities that DACRA performs for its Adjudication System(collectively,the"Services"). The term"Program Documentation"refers to materials provided by DACRA as part of the Services. The term "Adjudication System" refers to the software products owned or distributed by DACRA to which DACRA grants City access as part of the Services. The term "Users" shall mean those individuals authorized by City or on City's behalf to use the Services. Rights Granted The City shall have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for City's ordinance and code compliance purposes and subject to the terms of this Agreement. The City may allow Users to use the Services for this purpose and City shall be responsible for City's Users' compliance with the Agreement. City acknowledges that DACRA has no delivery obligation and will not ship copies of the software that runs DACRA's Adjudication System to City as part of the Services. City shall not acquire any right to use the Adjudication System beyond the scope or the duration of the term of this Agreement. Upon the end of the term of this Agreement, City's right to access or use the Services shall terminate. Third-Party Agreements It may be necessary for City to enter into additional contracts with third-party vendors in order to use some of DACRA's features. DACRA has no control and is not liable with respect to the services provided to City by third-party vendors and any price increases from such third-party vendors shall be City's responsibility. City Data City retains all ownership in and to City Data. The term "City Data" refers to the all citation and hearing data collected on behalf of City with respect to the Services. As part of DACRA's Services, reciprocal access to City Data is provided to authorized DACRA users in other municipalities,in return for allowing City authorized Users to access similar data in such participating municipalities. City may opt out of this reciprocal data sharing arrangement by providing written notice to DACRA. DACRA will undertake all reasonable measures to protect City Data from unauthorized access and will comply with the DACRA Services Privacy Policy, which can be found on DACRA's website. Upon termination of the Agreement, DACRA will provide City an electronic copy of City Data within sixty days after the effective date of termination. DACRA's Intellectual Property License Agreement- City of Elgin&DACRA Tech LLC Page 2 of 6 DACRA or its licensors retain all ownership and intellectual property rights to the Services and to its Adjudication System. DACRA retains all ownership and intellectual property rights to anything delivered under the Agreement, including any future developments, regardless of whether City, or any of City's employees or agents, had any input or in any way assisted in any such new development. City shall not: • Allow access to the Services available in any manner to any third-party or for any purpose not authorized by this Agreement unless such access is expressly permitted by DACRA; • Copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, any of the Program Materials, except for the use of City authorized Users; and, • Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs). Pricing and Billing The Monthly Usage Fee pricing set forth herein shall remain fixed during the Initial Term. After the expiration of the Initial Term, DACRA reserves the right to modify the Monthly Usage Fee pricing by providing City a minimum of 90 days advanced written notice before such price change goes into effect. City shall remit full payment of DACRA's invoices within thirty (30) days of receipt. City shall pay any sales, value-added or other similar taxes imposed by applicable law that DACRA must pay based on the Services, except for taxes based on DACRA's income. For any partial month during the Term, the Monthly Usage Fee (including the minimum fee) shall be prorated based on the number of days that the Services were provided for such month. DACRA may audit City's use of the Services. City agrees to cooperate with DACRA's audit and provide reasonable assistance and access to information. Termination DACRA may immediately suspend City's password, account, and access to or use of the Services (i) if City fails to pay any sums due DACRA under the Agreement within ten days after written notice from DACRA of the payment default, or (ii) if City violates any other provision of this Agreement and City does not cure said default within thirty days after written notice from DACRA. Regardless of the reason for the termination of this Agreement, City agrees to pay all fees due DACRA which accrue or are incurred prior to the termination of the Agreement. Limitation of Liability DACRA DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR- FREE OR UNINTERRUPTED, OR THAT DACRA WILL CORRECT ALL SERVICE ERRORS. CITY ACKNOWLEDGES THAT DACRA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. DACRA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN THE EVENT THERE IS A SERVICE INTERRUPTION WHICH LASTS MORE THAN 24 HOURS DUE TO THE FAULT OF DACRA, DACRA WILL REMIT A SERVICES FEE CREDIT TO CITY CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY USAGE FEE FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY License Agreement - City of Elgin& DACRA Tech LLC Page 3 of 6 OUTSTANDING BALANCE FOR SERVICES OWED TO DACRA, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT CITY'S EXCLUSIVE REMEDY,AND DACRA'S SOLE LIABILITY, FOR ANY BREACHES OF THIS AGREEMENT. TO THE EXTENT NOT PROHIBITED BY LAW, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS. DACRA'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT, WHETHER IN 'CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO DACRA FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST DACRA SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY CITY UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY. Other I. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other. 2. DACRA may assign this Agreement by providing written notice of the assignee who will assume DACRA's obligations under this Agreement. City may not assign this Agreement without DACRA's prior written consent. 3. City shall obtain at its sole expense any rights and consents from third-parties necessary for DACRA and its subcontractors to perform the Services under the Agreement. 4. Except for actions for nonpayment or breach of DACRA's proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued. 5. Neither party hereto shall be liable for failure or delay of performance if caused by: an act • of war,hostility,or sabotage;act of God; electrical, internet,or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. Both parties hereto shall use reasonable efforts to mitigate the effect of any force majeure event. If such event continues for more than 30 days, either party hereto may cancel unperformed Services upon written notice. This section shall not be construed so as to excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or City's obligation to pay for the Services actually provided. 6. You agree that DACRA may identify City as a recipient of Services in sales presentations and marketing materials. License Agreement - City of Elgin & DACRA Tech LLC Page 4 of 6 3. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois. DACRA hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and DACRA agrees that service by certified first class U.S. mail to: Robert Schur, CEO, DACRA Tech LLC, 1845 Grandstand Place, Suite 201, Elgin, IL 60123, or such other address as shall be communicated from time-to-time , shall constitute effective service. Both parties hereto waive any rights to a jury. 4. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 5. MERGER. This agreement embodies the whole agreement of the parties. There are no promises,terms, conditions or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 6. INTEREST. DACRA hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et seg.), as amended, or the Illinois Interest Act (815 ILCS 205/1,et seq.),as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 7. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 8. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, DACRA shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to,any applicable requirements regarding prevailing wages,minimum wage,workplace safety and legal status of employees. Without limiting the foregoing, DACRA hereby certifies, represents and warrants to the City that all of DACRA's employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. DACRA shall also, at its expense, secure all permits and licenses,pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of DACRA to determine DACRA's compliance with the provisions of this section. In the event the City proceeds with such an audit, DACRA shall make available to the City DACRA's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 9. EXECUTION. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing License Agreement - City of Elgin& DACRA Tech LLC Page 5 of 6 this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e- mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e- mail as a defense to this agreement and shall forever waive such defense. DAC t ECH, LLC CI i "' LLGINN -C_ /Zf/ R•bert L Schur Richard K zal, ity Manager (6"—° Attest. , �L��`%;(,�/� Chief Executive Officer City �?erk • License Agreement- City of Elgin&DACRA Tech LLC Page 6 of 6