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HomeMy WebLinkAbout21-96 Resolution No. 21-96 RESOLUTION AUTHORIZING EXECUTION OF PURCHASE AGREEMENT WITH EPR SYSTEMS USA, INC. FOR EPR FIREWORKS RECORDS MANAGEMENT SOFTWARE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest 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 Purchase Agreement on behalf of the City of Elgin with EPR Systems USA, Inc, for EPR FireWorks records management software, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: June 23, 2021 Adopted: June 23, 2021 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 23rd day of June 2021, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and EPR Systems USA, Inc., a Florida corporation, (hereinafter referred to as "EPR" or "Vendor"). WHEREAS, EPR is engaged in the business of designing and developing computer software systems and related products and has created and developed a software package called EPR FireWorks that is capable of supplying emergency agencies with an innovative, comprehensive, and integrated records management solution(described in the attached Exhibit "B" the "Software"); and WHEREAS, CITY operates fire stations engaged in providing emergency and rescue services and desires to utilize such Software to support management of its fire station operations; and WHEREAS, EPR and CITY believe it is in their mutual interest and desire to enter into an agreement whereby CITY would use EPR's Software pursuant to the terms and conditions hereinafter provided. The above recitals are hereby incorporated and made a part of this Agreement as if fully recited hereby. 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: Section 1 -Purchase City shall purchase, and EPR shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof. Section 2—Terms This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A and Attachment B, attached hereto and made a part hereof. The total cost to the City for the initial term of this Agreement is $27,150. Section 3—Definitions 3.1 In this Agreement,unless the context otherwise requires: a) "Acceptance" means the acceptance of the Deliverables in accordance with Section entitled Inspection of the Deliverables of this Agreement. b) "Confidential Information" means those confidential, scientific, technical, financial, business and other information, manufacturing, marketing, sales and distribution data, scientific and test data, documents, methods, techniques, formulations, operations, know-how, experience, skills, trade secrets, computer programs and systems, processes, practices, ideas, inventions, designs, samples, plans and drawings recognized as exempt or immune from disclosure pursuant to applicable federal or Illinois law; c) "Contract Price" means the amounts referred to or expressed in this Agreement, and specifically in the payment schedule attached as Attachment "A" to this Agreement, to be payable by CITY to EPR for the Deliverables. d) "EPR FireWorks" means the computer software, converted data, system interfaces, databases and documentation that are to be installed by EPR and implemented by CITY, including the Deliverables to be provided by EPR to CITY all as contemplated hereunder, as the same may be upgraded, enhanced or otherwise modified or adapted from time to time; e) "Deliverables" means the whole of the services including, without limitation, system set-up, data conversion, training, maintenance, and software programs required to be done, furnished or performed by EPR in accordance with the terms of the Agreement. 0 "Improvements" means any improvements, updates, variations, modifications, alterations, additions, error corrections, enhancements, functional changes or other changes to the Licensed Computer Programs and Documentation, including, without limitation: (i) improvements and upgrades to improve software efficiency and maintainability. (ii) improvements and upgrades to improve operational integrity and efficiency. (iii)functional improvements or changes which support legislated, regulatory or other lawful requirements. (iv)changes or modifications to correct errors; and (v) additional licensed computer programs to otherwise update the Licensed Computer Programs. g) "Live Production" means use of EPR FireWorks system in the regular business operation of CITY. h) "Maintenance Access Period", unless otherwise specified in the Agreement, means an uninterrupted time period of hours each day beginning Sunday from 2:00 AM—2 PM, and weekdays Monday to Friday, between 8:00 a.m. and 5:00 p.m. EST, during which EPR shall have personnel available to receive/respond to email and/or telephone support for maintenance services including remote connect in accordance with the Agreement; 2 i) "Response Time" means the period of time beginning with a bona fide attempt to reach EPR by telephone, or other oral means, or email written means has been made by CITY during a Maintenance Access Period, and ending with the response of EPR; j) "Time to Repair" means that portion of the time that EPR FireWorks system cannot be used because of error, defect, deficiency, failure, problem or non-conformance to Functional Specifications, starting from the response of EPR and ending with the turnover of the Deliverables to CITY in proper working order. "Unapproved Modifications" means modifications to the Licensed Computer Programs not approved by EPR but made by CITY or on its behalf by someone other than EPR. Section 4—Representations 4.1 EPR represents and warrants, and it is a condition of this Agreement,that: (a) EPR is a corporation duly organized and existing in good standing under the laws of Florida and registered to carry on business as may be contemplated hereunder. (b) EPR has the ability and authority to enter into this Agreement, and the execution and performance of this Agreement or any part of this Agreement by EPR has been duly authorized by all requisite corporate action. (c) The execution and performance of this Agreement or any part of this Agreement by EPR does not and will not violate any contract or other obligation of EPR, and EPR knows of no circumstances which would prevent EPR's performance of this Agreement or any part thereof. (d) EPR is competent to perform its obligations hereunder, and has sufficient manpower, resources, skills, experience, and all such other materials as may be required to meet its obligations on or before the required date(s). (e) EPR has the necessary qualifications (including knowledge, experience, and skill) to provide the Deliverables, and will provide the Deliverable in a diligent, professional and timely manner; and (f) The representations and warranties made by EPR herein, including the recitals and all schedules hereto (in particular, in EPR's Proposal), are reasonable and correct, and may be relied upon by CITY and shall continue to be reasonable and correct, and may be relied upon by CITY throughout the performance of this Agreement. Section 5—Grant of License 5.1 EPR hereby grants to the CITY, subject to the terms, conditions and limitations hereof, a worldwide, non-exclusive, irrevocable, perpetual right and license, which shall be non-transferable, to use the Licensed Computer Programs and all related documentation provided to the CITY hereunder. 3 Section 6-Term 6.1 This Agreement shall terminate June 1, 2022. This Agreement shall be automatically renewed for one year Extended Terms unless CITY shall provide EPR in writing of its intention not to renew the Agreement, in which event said notice shall be provided on or before May 1 of each contract year. Section 7-Trademarks and Proprietary Notices 7.1 EPR expressly reserves all rights to its own tradenames, logos, trademarks, other identifying symbols and all of its proprietary rights in its product packaging or labeling of any Licensed Computer Programs. The CITY shall not acquire any right, title or interest in or to any such tradename, logo,trade-mark, or other identifying symbols of EPR. 7.2 Notwithstanding anything to the contrary provided for herein, City shall retain exclusive ownership of all City generated and/or supplied data. In no event shall such City related data or information be used by Levrum without the prior written consent of the City. Section 8- Payment 8.1 CITY shall pay EPR in accordance with the Payment Schedule described in Attachment"A" to this Agreement within thirty (30) days of city's receipt of invoice. All fees are inclusive of all freight, shipping and applicable taxes. 8.2 CITY shall notify EPR, within Thirty(30) of receipt of an invoice, of any inadequacy of the invoice or of the supporting documentation, and where any such notice is given within that period, the date for payment of the amount invoiced shall be postponed until EPR remedies the inadequacy to the satisfaction of CITY, at no additional cost to CITY. Payment will be made by CITY within 15 days of receipt of invoice issued by EPR. Section 9-Confidentiality 9.1 EPR shall be bound by an obligation of strict confidence to CITY in respect of any Confidential Information disclosed by or on behalf of CITY to EPR or developed by EPR for CITY. EPR shall not: (a) Disclose, either directly or indirectly, any such Confidential Information, or any part thereof,to any person except as is specifically contemplated in this Agreement; and (b) Use any such Confidential Information, or any part thereof, for any purpose, except as is specifically contemplated within this A m p y gree ent, without the prior written consent of CITY and on terms and conditions satisfactory to CITY in its sole discretion. 4 (c) Notwithstanding anything to the contrary herein, the City's good faith compliance with the provisions of the Illinois Freedom of Information Act (5 ILCS 140/1, et seq.) shall not be construed as, and shall not constitute a breach of this Agreement. Section 10-Law/Venue 10.1 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. EPR 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 EPR agrees that service by first class U.S. mail to EPR Systems USA, Inc., 1016 Lasalle Street, Jacksonville, FL 32207 shall constitute effective service. Both parties hereto waive any rights to a jury. Section 11 —Notice 11.1 Unless otherwise specified herein or otherwise agreed to by the parties in writing, any notice required to be given hereunder must be given in writing and delivered by postage-paid mail, personally, by prepaid courier with a copy delivered by electronic means, addressed to the appropriate party as follows: CUSTOMER address: City of Elgin 150 Dexter Court Elgin, IL 60120 VENDOR address: EPR Systems USA Inc. 1016 Lasalle Street Jacksonville, FL 32207 kathiAeprsys.com info@eprsys.com 11.2 All notices in connection with this Agreement shall be in writing and may be given by certified, registered, or first-class mail or personally delivered at the address set forth above. For purposes of this Agreement, a notice shall be deemed effective upon personal delivery to the party or if by mail with a copy by e-mail, five days after proper deposit in a mailbox. 12. No Modification There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 5 13. Interest. EPR 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 seq.), 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. 14. 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. 15. 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, EPR 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, EPR hereby certifies, represents and warrants to the City that all of EPR'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. EPR 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 EPR to determine EPR's compliance with the provisions of this section. In the event the City proceeds with such an audit, EPR shall make available to the City EPR's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 16. 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 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. 17. Conflict. In the event of any conflict between the terms and provisions of this purchase agreement and Attachments A and B hereto, the terms and provisions of this purchase agreement shall supersede and control. 18. Limitation of Damages. In no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 19. Transfer of Title/Risk. Transfer of title, and risk of loss shall pass to the City upon 6 delivery of the goods. All transportation and delivery shall be at EPR's sole expense. 20. Indemnification. To the fullest extent permitted by law, EPR agrees to and shall indemnify, defend and hold harmless the City, its officers, employees, boards and commissions from and against any and all claims, suits,judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of EPR or EPR's officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. 21. Relationship Between the Parties. This Agreement shall not be construed so as to create a joint venture,partnership, employment or other agency relationship between the parties hereto. 22. Waiver. Neither party hereto shall be responsible for any consequential, indirect, punitive or incidental damages for any reason whatsoever. Any delay or failure to enforce any rights by either party arising out of or pursuant to this Agreement shall not constitute, and shall not be construed as, a waiver of any such rights. 23. Limitation of actions. EPR shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions of any nature whatsoever and in whatsoever forum after two(2)years from the date of this Agreement. 24. No Other Agreements. This Agreement is the only agreement between the parties hereto regarding the subject matter hereof. There are no other agreements, either oral, written or implied, between the parties hereto regarding the subject matter hereof. This Agreement may only be altered or modified by written instrument signed by both parties. 25. Appropriation of Funds. The fiscal year of the City is the 12 month period ending December 31. The obligations of the City under any contract for any fiscal year are subject to and contingent upon the appropriation of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the contract. If, for any fiscal year the term of the Contract, sufficient funds for the discharge of the City's obligations under the contract are not appropriated and authorized, then the Contract shall terminate as of the last day of the preceding fiscal year, or when such appropriated and authorized funds are exhausted,whichever is later,without liability to the City for damages,penalties or other charges on account of such termination. The person signing this Agreement certifies that s/he has been authorized by the Seller to commit the Seller contractually and has been authorized to execute this Agreement on its behalf. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. 7 The person signing this Agreement on behalf of EPR certifies that s/he has been authorized by EPR to commit the Seller contractually and has been authorized to execute this Agreement on its behalf. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. COMPANY NAME CIT GIN EPR Systems USA, Inc. Print Name Richard G. ozal,City Manager Att t: Signature Director, N. American Operations C1 y Clerk Title F:\Legal Dept\Agmement\EPR Systems-Software&Support Agr-Clean-4-22-21.docx 8 EPR systems Software Services Agreement FIREWORKS wedotlbetter ATTACHMENT A" PAYMENT SCHEDULE 1. USER SUBSCRIPTION FEES — Invoiced and payable annually in advance as follows: Year 1 $7,400 onetime data conversion and training fee Year 1 $19,750 Annual subscription fee Year 2 $20,310 Annual subscription fee Year 3 $20,920 Annual subscription fee Year 4 $21,550 Annual subscription fee Year 5 $22,200 Annual subscription fee EPI? systems Software Services Agreement FIREWORKS w doITbettor Attachment B Software: EPR Systems USA Inc. 6.1 FIREWORKS We do IT ell w MT beer DATE: 2122/2021 1016 LaSalle Street quotation 8:02221-01 Jacksonville.FL 3220T Customer ID: Phone.941-209.435T Bill To:City of Elgin,IL Quotation valid unt8: 312012021 Name_Dan Rink Prepared by:B.T or Comments or special Instructions: FlreWorks Modules Description triad idtce NFIRS 5.0 Incident Reporting S 9,300 Inspection&False Alarm Billing l*1 $ 800 Inspections&Property Management S 1,600 Analytics MI]Reporting Tool Et]I] 3,900 Telestaff Interface n S 800 CAD interface , $ 1,200 Cloud Licensing S 1,950 Annual Cost $ 19,750, One time-implementation Cost r Data Conversion&Cloud System Configuration $ 5,000 Training -Every Day ora_site. $ 1,800, Training -Every Day on-fine S 800 $ 7,400 Interfaces depend on getting data and cooperation from the 3rd party.EPR FireWorks is not liable or responsible for 3rd party side of Data conversion includes 3 years of data conversion from 1 vendor Payable via credit card,with a 3%price increase Accepted by: City of Elgin,IL