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96-64 Resolution No. 96-64 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH AMERICAN MANAGEMENT SYSTEMS, INCORPORATED BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard B. Helwig, City Manager, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute an agreement on behalf of the City' of Elgin with American Management Systems, Incorporated for the Mobile Data Crash Reporting Pilot Project, a copy of which is attached hereto and made a part hereof by reference. s/ Kevin Kelly Kevin Kelly, Mayor Presented: March 13, 1996 Adopted: March 13, 1996 Omnibus Vote: Yeas 7 Nays 0 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk Ill� -+ << Agenda Item No. February 22, 1996 TO: Mayor and Members of the City Council FROM: Richard B. Helwig, City Manager SUBJECT: Contract with American Management Systems PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider a contract with American Management Systems to develop a Crash Reporting Software Program for the Illinois Department of / •. Transportation Crash Reporting Project. f BACKGROUND The Illinois Department of Transportation ( IDOT) has approved a $450, 000 grant for the City of Elgin and Sangamon County to test new technologies for the collection of accident data. The project is a joint venture with the City of Elgin, Sangamon County, the Illinois State Police and the Illinois Department of Transportation. To facilitate an orderly payment and reimbursement for project funds, the City of Elgin was named the lead agency. As such, all contracts necessary for the project must be approved and paid by the City of Elgin and reimbursed by IDOT. The City of Elgin enjoys a long standing relationship with the IDOT and has developed an efficient and timely method for processing payments and reimbursements . The Mobile Data Crash Reporting Committee (MDCRC) prepared and distributed a Request for Proposal (RFP) to numerous vendors in November of 1995,for the development of accident management software. The MDCRC established a rating criteria and rated each proposal on numerous criteria. After a careful review by all of the participating agencies, American Management Sys- tems ' proposal was chosen. A fee schedule was negotiated and is reflected in the attached 00P- contract. The proposal was reviewed and approved by the full committee on January 30, 1996, in Springfield, Illinois. Contract Approval from AMS February 22, 1996 Page 2 This contract is for development, training and pilot roll out of the Crash Reporting Software. The City will pay AMS $229,000 in seven steps based upon milestones as outlined in Article II of the contract. These costs will be reimbursed as they are paid at 100% by the grant with the Illinois Depart- ment of Transportation. As lead agency, it is necessary that the City of Elgin enter into this contract and make the required payments to AMS. IDOT will reimburse the City any payments made to AMS within 30 days . COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED The project has involved representatives from the City of Elgin, Sangamon County, the Illinois State Police, the Illi- nois Department of Transportation and the Federal Highway Administration. Numerous meetings have been held and funding approval for this project. FINANCIAL IMPACT This project is funded at 100% by the Illinois Department of Transportation with no local match. The revenue is being shown in account 010-2305-501-2700, where the $60,000 was recorded in 1995 . Work is presently being completed on a budget amend- ment to reflect this grant in the 1996 budget. Project number 232240 has been assigned to track the associated costs . It is anticipated that the City of Elgin will benefit with approxi- mately $140, 000 in computer equipment as the direct result of this project. LEGAL IMPACT None. Irk Contract Approval from AMS February 22, 1996 r- Page 3 RECOMMENDATION It is recommended that the City enter into the attached agree- ment with American Management Systems . Respectfully submitted, 04.04 4 4.4.I Charles A. Gruber Chief of Police Richard B. Helwig City Manager JB/jb AGREEMENT THIS AGREEMENT is made and entered into on this /SAday of APc." , 1996, by and between American Management Systems, Incorporated, a Virginia corporation, (hereinafter referred to as "AMS") and the City of Elgin, Illinois, a municipal corporation, (hereinafter referred to as "Elgin"). WITNESSETH WHEREAS, Elgin desires to obtain the services of a consultant for the Mobile Data Crash Reporting (hereinafter referred to as "MDCR") Pilot Project for the Elgin Police Department, Sangamon County Sheriff's Office, Illinois State Police Districts 2 and 9, and the Illinois Department of Transportation (hereinafter referred to as "Pilot Project Agencies"); and WHEREAS, AMS has offered to provide services for such a project for Elgin; and WHEREAS, AMS represents that it has the experience, qualifications, resources and capabilities to provide these services and conduct tasks as required for this project; and WHEREAS,Elgin has selected AMS to provide a software license, consulting services and other services as more fully described in Attachments 1 through 5 which are attached hereto and made a part hereof as if fully included in the text; NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I SECTION 1.1. COMPLIANCE. AMS and Elgin agree to comply with all agreement provisions attached hereto and made a part hereof. 1 • SECTION 1.2. PERFORMANCE PERIOD. Unless sooner terminated as provided herein, the consulting services shall continue in full force and effect from the date of execution through the date of the Final System Acceptance task listed in Attachment 3, Schedule of Deliverables and Milestone Tasks. SECTION 1.3. SCOPE OF SERVICES. It is mutually agreed and understood as follows: (a) Services for the MDCR Pilot Project are to be provided in accordance with Attachment 2, AMS Response to the RFP for Pen-based MDCR Software, and in a manner and work product acceptable to Elgin, based on the specifications of Attachment 1, RFP for Pen-based MDCR Software. The project schedule dates listed in the "Project Work Plan" contained in Section 5 of Attachment 2 are superseded by the business day time frames established in Attachment 3, Schedule of Deliverables and Milestone Tasks. (b) It is the option of Elgin or any of the Pilot Project Agencies to add Statements of Work for additional services to be provided by AMS (e.g., statewide roll-out and implementation, additional integration services, software enhancements for adding additional reporting components, other enhancements, increased levels of support), pursuant to the terms and conditions of this Agreement. Such Statements of Work must be agreed to in writing by the parties thereto and shall include, at a minimum, the additional services requested, a statement of work timetable, and payment schedule. "Elgin" whenever it appears in the provisions of this Agreement shall be deemed to apply to any one of the Pilot Project Agencies with respect to any Statement of Work executed by such Agency and AMS. SECTION 1.4. RELATION OF THE PARTIES. It is mutually agreed and understood as follows: (a) AMS agrees to perform as an independent contractor and not as an agent or employee of Elgin, all of the services set forth in the agreement to the satisfaction of Elgin. (b) The employees or agents of one party shall not be deemed to be employees or agents of the other for any purpose under any federal or state Unemployment Insurance Law, Old Age Benefits Law or Social Security Law, Workers' Compensation Law, or under Internal Revenue or War Tax Legislation, or under any industrial law or otherwise. 2 (c) Neither party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other except to the extent provided herein. SECTION 1.5.ASSIGNMENT. It is understood and agreed that the services to be rendered by AMS are unique and that AMS shall not, without the prior written consent of Elgin which consent shall not be unreasonably withheld or delayed, assign, transfer, subcontract or otherwise dispose of its rights or duties hereunder, in whole or in part, to any other person, firm or corporation, except for an assignment or delegation that may occur or be deemed to occur as a result of a merger, sale of business assets, or other business combination in which the successor assumes AMS' obligations, wherein the prior written consent of Elgin shall not be required. Elgin may assign, sell, transfer or otherwise convey its interest under this Agreement to any one (1) of the Pilot Project Agencies upon written notice to AMS. Any other assignment, sale, transfer or conveyance shall require AMS' prior written consent, which consent shall not be unreasonably withheld or delayed. SECTION 1.6. LICENSE. It is mutually agreed and understood as follows: (a) Upon acceptance of the systems and services listed in Section 1.3 and upon payment of all amounts due hereunder, a perpetual pilot license granted to Elgin pursuant to the License Agreement which is Attachment 4 and is made a part hereof as if fully included in the text, for use of the system by the Pilot Project users without any further license costs shall become effective and in the event of any conflict between the terms of this Agreement and the terms of the License Agreement, the terms of the License Agreement shall prevail insofar as the issue falls within the subject matter of the License Agreement. (b) Upon the initiation of optional services listed in Section 1.3 for statewide roll-out and implementation and upon payment of the statewide license fee as specified in the License Agreement, a perpetual statewide license granted to Elgin pursuant to the License Agreement for use of the system by any additional users or public agency within the State of lllinois and designated by Illinois without any further license costs shall become effective and in the event of any conflict between the terms of this Agreement and the terms of the License Agreement, the 3 • terms of the License Agreement shall prevail insofar as the issue falls within the subject matter of the License Agreement. ARTICLE II SECTION 2.1.TERMS OF PAYMENT. In full and complete consideration of AMS performance hereunder, Elgin agrees to pay AMS the sum of$229,000, which includes $150,000 for the Pilot software license, $45,000 for one year of maintenance for the Pilot Project users, and $34,000 for training for the Pilot Project users. Elgin agrees to pay AMS this sum of$229,000 in accordance with the following schedule: Payment will be made within 30 days of approval of an invoice by Elgin and no later than 45 days after Elgin receives an invoice acceptable to Elgin. All amounts will be paid within three months of completion of the project period established in Section 2.1, or within 30 days of final Elgin audit, whichever is earlier. The payment of the Pilot Project license, maintenance and training will be made according to the deliverables listed in Attachment 3 and described below: Acceptance Test Plan - $25,000 upon completion by AMS of the MDCR Acceptance Test Plan. Proposed delivery within 10 business days from the effective date of this agreement. Prototype Version 0.1 - $50,000 upon completion by AMS of the Officer Information Manager (OIM) MDCR Prototype software Version 0.1. Proposed delivery within 25 business days from the effective date of this agreement. Prototype Version 0.2 - $55,000 upon completion by AMS of the OIM MDCR Prototype software Version 0.2. Proposed delivery within 45 business days from the effective date of this agreement. Final MDCR Design Document - $28,000 upon completion by AMS of the MDCR Design Document. Proposed delivery within 60 business days from the effective date of this agreement. Pilot Software Version 1.0 - $35,000 upon completion by AMS of the OIM MDCR Pilot software Version 1.0. Proposed delivery within 80 business days from the effective date of this agreement. 4 Statewide Implementation Plan - $28,000 upon completion by AMS of the Statewide Implementation Plan for MDCR. Proposed delivery within 110 business days from the effective date of this agreement. Final System Acceptance - $8,000 upon completion of the User Acceptance Period and Final System Acceptance by Elgin. Proposed delivery within 130 business from the effective date of this agreement. For the purposes of this section, the business days shall be computed from the effective date of this agreement. SECTION 2.2. PAYMENT AT TERMINATION. In the event of termination for the convenience of Elgin for reasons other than a breach of this agreement by AMS, AMS shall receive final payment based on actual time spent at the AMS Schedule of Rates (Attachment 4) plus extraordinary costs incurred since the last scheduled (phase)payment, but not to exceed the remaining balance on the task in process at termination. SECTION 2.3. RECORDS AVAILABILITY. AMS shall allow inspection of all records or other documents in its possession related to the performance of this agreement upon reasonable notice by Elgin. ARTICLE III SECTION 3.1. TERMINATION. It is understood and agreed that Elgin may terminate this agreement upon fifteen (15) days written notice by certified mail addressed to AMS at the address indicated herein, or such other address as AMS may designate in writing, subject to AMS' right to cure during the fifteen (15) day period, whenever Elgin determines, in its sole discretion, that the performance terms of the agreement are not being met by AMS. It is further agreed that termination shall take place: (a) Upon mutual agreement of the parties; or (b) upon completion of the period of performance as provided in Section 1.2. ARTICLE IV SECTION 4.1. FORCE MAJEURE. Neither party shall be liable to the other for any loss, claim or damage as a result of any delay or failure in the performance of any obligation hereunder, directly or indirectly caused by or resulting from: acts of the other party; acts of the government; acts of God; acts of third persons; strikes, 5 embargoes, delays in the mail, transportation and delivery; power failures and shortages; fires; floods; epidemics and unusually severe weather conditions; or other causes beyond the control of such party. SECTION 4.2. COMPLIANCE. Each party shall comply with all applicable federal, state or local laws, regulations or ordinances in effect or hereafter adopted. SECTION 4.3. LAWS GOVERNING. This agreement shall be construed in accordance with and is subject to the laws of the State of Illinois, exclusive of its choice of law rules. SECTION 4.4. ENTIRE AGREEMENT. The agreement shall become effective upon final execution and shall be binding upon the parties hereto and their respective assigns. This agreement represents the entire agreement and no other understandings which modify the terms hereof will be binding unless made in writing executed by the parties hereto. SECTION 4.5. SECTION HEADINGS. Section headings are for reference only and in no way define, limit or describe the scope or intent thereof or in any way affect this agreement. SECTION 4.6. WRITTEN NOTICE. All communications regarding this agreement are to be sent to AMS at 4000 Legato Road, Fairfax, VA 22033, Attention: Dean C. Merrill, Vice-President, unless notified to the contrary. All communications regarding Elgin are to be addressed to the Deputy Chief for Administration, Elgin Police Department, 150 Dexter Court, Elgin, IL 60120-5555. Any written notice hereunder shall become effective as of the date of mailing by certified mail and shall be deemed sufficiently given if sent to the address stated in this agreement or such address as may hereinafter be specified by notice in writing. SECTION 4.7. WAIVER, ALTERATION OR MODIFICATION. No waiver, alteration or modification of any of the provisions of this agreement shall be binding unless in writing and signed by duly authorized representatives of both parties. SECTION 4.8. NONDISCLOSURE (a) We each agree to protect all Confidential Information provided by one of us to the other, and not to publish or disclose such information to any third party without the other's written permission by using those 6 methods and procedures normally used to protect our own Confidential Information. By Confidential Information: a) AMS means materials, documents, data and other information which we have designated in writing as proprietary and confidential and b) Client means all information with respect to its customers which AMS acquires as a result of its contact with and efforts on behalf of Client and any other information designated in writing as confidential by Client. (b) Neither of us will be required to protect Confidential Information which (i) is or becomes publicly available, (ii) is independently developed by either of us outside the scope of this Agreement, (iii) is rightfully obtained from third parties or (iv) constitutes software development and data processing concepts, techniques and know-how which are retained as mental impressions by employees of the receiving party, where for the purposes of this Agreement, "software development and data processing concepts, techniques and know- how" shall mean generic concepts and shall not include specific applications of such concepts tailored to the business of the disclosing party or identifiable to disclosing party. (c) You understand and acknowledge that (i) we are performing services under this Agreement in conjunction with the licensing from us of certain software products under a Proprietary Software License and Maintenance Agreement, and (ii) this provision does not modify or limit any of your obligations under that agreement. SECTION 4.9. AMS WARRANTIES AND DISCLAIMERS (a) We warrant that we will perform the services required under this Agreement in a manner consistent with industry standards reasonably applicable to the performance of such work and services. (b) We warrant that neither the products, processes, computer software, software modules, media, documentation and other materials provided to you under this Agreement, nor their use by you, will infringe or constitute an infringement of any United States copyright, patent, trademark or other proprietary right. Should any such items become the subject of an infringement claim or suit, we may obtain for you the right to continue using such items or may replace or modify them to make them noninfringing. If we do not find either of these alternatives available to us on commercially reasonable terms, we may require you to stop using such items, in which case you will receive a refund of the fees previously paid by you for the software or other materials you no longer may use. 7 (c) As to our infringement warranty provided in Section 4.9, paragraph (b), AMS will not be required to indemnify you if the claim of infringement is caused by (1) your misuse or modification of the software or other materials; (2) your failure to use corrections or enhancements made available by AMS; (3) your use of the software or other materials in combination with any product or information not owned or approved by AMS in writing; or (4) information or materials provided by you or any third party. (d) THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, PERFORMANCE AND USAGE OF THE TRADE. SECTION 4.10. LIMITATION OF REMEDIES (a) We each agree as follows: 1. Except as provided in paragraphs (b) and (c) hereinbelow, our entire liability and your exclusive remedy for damages to you from our work under or breach of this Agreement, for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, shall be limited to money damages in an amount equal, in the aggregate, to the lesser of(a) actual damages or (b) the total cash amount paid by you to AMS under the particular Scope of Work Attachment giving rise to such liability. 2. No proceeding, regardless of form, arising out of this Agreement may be brought by either of us more than two years after the party injured first knew, or should reasonably have had knowledge of, the facts giving rise to the cause of action; except that proceedings related to violation of any duty to protect Confidential Information may be brought at any time. (b) We will reimburse you for any costs (including reasonable legal fees), which you may incur as a result of any claim or suit based on a violation of the warranty in Section 4.9, paragraph (b), but only if you notify us promptly of any such suit or claim and cooperate with us in defending or settling the claim or suit. We will control the defense of any such claim or suit including the selection of attorneys. 8 (c) If as a result of AMS' negligence you or your employees suffer personal injury or property damage, we will reimburse you to the extent of our liability for any claims you actually pay. (d) WE WILL NOT BE HELD TO HAVE FAILED TO MEET OUR OBLIGATIONS UNDER THIS AGREEMENT, IF WE EITHER DELAY PERFORMANCE OR FAIL TO PERFORM AS THE RESULT OF ANY CAUSE BEYOND OUR REASONABLE CONTROL. IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES CAUSED BY YOUR FAILURE TO PERFORM YOUR RESPONSIBILITIES, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, SUCH AS LOST PROFITS, LOST OPPORTUNITIES, LOST SAVINGS, LOSS OF BUSINESS AND THE LIKE, OR PUNITIVE DAMAGES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SECTION 4.11. OWNERSHIP. AMS will own all computer programs, documentation and data produced under this Agreement. AMS will deposit source code for the pen-based MDCR software in an escrow account for the benefit of Elgin pursuant to the terms and conditions of an escrow agreement to be executed by the parties hereto. IN WITNESS WHEREOF, the parties hereto have made this agreement effective the date of final execution of both parties, as set forth hereunder. CITY OF ELGIN By: �� 1 / • City Manager Attes City Clerk DATED: 3/7.C1?b AMERICAN MANAGEMENT SYSTEMS, INCORPORATED By: Dean C. Merrill, Vice President DATED: 3/fr/9 9 • ATTACHMENTS: 1. Elgin Police Department Request for Proposal for Pen-based Mobile Data Crash Reporting Software, dated October 30, 1995 2. Response to Request for Proposal for Pen-based Mobile Data Crash Reporting Software, Submitted by AMS dated November 30, 1995 3. Schedule of Deliverables and Milestones, Revised 2/5/96 4. Proprietary Software License and Maintenance Agreement 5. AMS Schedule of Rates 10 ATTACHMENT 3 Schedule of Deliverables & Milestone Tasks (revised 2/5/96) Deliverabie/Task Date Project Kick-off Meeting 2/20/96 *Deliver Acceptance Test Plan f 3/04/96 Sign-off on Acceptance Test Plan 3/25/96 *Deliver/Install Release 0.1 Prototype 3/25/96 Deliver Draft Design Document 4/0896 `Deliver/Install Release 0.2 Prototype 4/22/96 *Deliver Final Design Document 5/13/96 Deliver Training Materials and System Documentation 6/07/96 *Deliver/Install Release 1.0 6/10/96 User Training 6/10/96 User Acceptance Testing Period Begins 6/17/96 *Deliver Statewide Implementation Plan 7/22/96 *Final System Acceptance 8/19/96 Sign off on Statewide Implementation Plan 8/19/96 *Denotes a deliverable that requires payment as specified in the Agreement 3-1 • ATTACHMENT 4 AMERICAN MANAGEMENT SYSTEMS,INCORPORATED AND THE CITY OF ELGIN, SANGAMON COUNTY AND THE STATE OF ILLINOIS PROPRIETARY SOFTWARE LICENSE AND MAINTENANCE AGREEMENT This document (the "License Agreement"),by which we, American Management Systems, Incorporated ("AMS", "we", or any similar pronoun), a Delaware corporation having our principal office at 4050 Legato Road, Fairfax, VA 22033 agree to license certain of our proprietary software to you, the City of Elgin, Illinois ("Elgin", "Licensee", "you", or any similar pronoun), having your principal office at 150 Dexter Court,Elgin, Illinois 60120-5555. "Elgin", "Licensee", and "you", whenever it appears in the provisions of this License Agreement shall be deemed to apply to the Elgin Police Department, the Sangamon County Sheriffs Office, the Illinois State Police, and the Illinois Department of Transportation. 1. LICENSE A. We are providing you with a nonexclusive and nontransferable license (the "License") except as provided in paragraph 9.A., to use the computer software components (the "Software") and related materials listed in Exhibit A for a perpetual term subject to the terms and conditions of this License Agreement. B. You may use the Software and related materials as specified in Exhibit A and only to process your own work and that of any public agency within the State of Illinois designated by you. You may not use the Software and related materials as part of a commercial time-sharing or service bureau operation, or in any other resale capacity. 2. MAINTENANCE SERVICES AND TRAINING A. We will provide the base maintenance services described in paragraph 2.C. at no additional cost to you for 12 months beginning on the date of delivery of the Software (the "initial maintenance period") for the Pilot 4-1 Project users only, which include those designated by you to be users for the Pilot Project within the Elgin Police Department, the Illinois Department of Transportation, the Illinois State Police Districts 2 and 9, and the Sangamon County Sheriffs Office. Designation of the Pilot Project users should be agreed upon in writing prior to delivery by AMS of Software Version 1.0. B. At the expiration of the 12-month initial maintenance period, you may purchase base maintenance services for the Software for subsequent 12-month periods. While we are offering base maintenance services for the Software, you may obtain such services as long as (i) you have paid the maintenance fee for any and all maintenance periods after the initial maintenance period; and (ii) you incorporate into the Software within 180 days of the issue date all releases relating to the Software which we have made available to you. The initial maintenance period and subsequent maintenance periods are referred to collectively as the "maintenance period." The initial maintenance period services cost of$45,000 is included in the fees set forth in Article II of the Agreement. The base maintenance fee for each year of the first subsequent five-year period thereafter may be increased at AMS's sole discretion by an amount up to, but not exceeding, the Consumer Price Index (CPI) for the previous year. The base maintenance fee will provide the services described in paragraph 2.C. The scope of the base maintenance and level of service provided by AMS may be reviewed each year and maintenance fees may be adjusted accordingly upon agreement by both parties. At the end of this five year period, a new maintenance fee schedule will be negotiated. C. The base maintenance services referred to in paragraph 2.A. and B. are the following: (i) We will consult with you by telephone for a reasonable period of time during our normal business hours to respond to your inquiries regarding the Software which are directly related to problems with the Software. In addition, you may contact us through our 24-hour hotline support number; (ii) We will provide an automated problem tracking and resolution database for the Software to which you may be provided electronic access; (iii) We will supply computer program code, on diskette (or subsequent technology mutually agreeable to both parties) to correct any errors in the Software which cause it to deviate 4-2 materially from the Specifications for the Software which are contained in the manuals listed in Exhibit A; and (iv) We will provide you with all enhancements to the Software which we develop and generally make available at no charge to other licensees of the Software ("Enhancements"). (v) AMS agrees to provide a reasonable amount of time toward determining if errors are the result of the Software or of Third Party Software, and to the extent feasible or available, AMS will "pass through" fixes or other error correction services AMS is able to obtain from the Third Party Software vendor(s). D. We will investigate and correct suspected errors at our offices. If travel to Illinois is requested by you during the initial or a subsequent maintenance period, without affording us the opportunity to correct errors at our office within a reasonable time or unless a suspected error is attributable to a cause other than an error in the Software, then you will pay for our work on a time and materials basis, including travel expenses, at our then prevailing rates. 3. LICENSE FEES As compensation for the License granted under this Agreement, you will pay us a one-time Pilot license fee of$150,000 which is included in fees set forth in Article II of the Agreement. Upon initiation of the option described in Article I, Section 1.3 paragraph (b) of the Agreement to expand the use of the Software beyond the Pilot Project users, you will pay us a one-time statewide license fee of$140,000. Designation of the Pilot Project users should be made prior to delivery by AMS of Software Version 1.0. This statewide license fee is guaranteed if the option is invoked prior to December 31, 1996, after which this license fee is subject to change. 4. NONDISCLOSURE You agree to protect the confidentiality of all Confidential Information and not to publish or disclose such information to any third party without our written permission. By Confidential Information we mean the Software and related materials, including Enhancements, which we hereby designate as proprietary and confidential trade secrets of AMS. You will not remove any copyright, trademark and other proprietary rights notice from the Software or related materials. 4-3 • 5. PERMISSION TO COPY OR MODIFY THE SOFTWARE A. You may copy the Software and manuals listed in Exhibit A, but only to use them in accordance with this License Agreement. The original, and any copies which you make of the software and other materials, in whole or in part, are our property. B. You agree to reproduce and include our copyright, trademark and other proprietary rights notices on any copies of the Software and other materials provided under this License Agreement. 6. WARRANTY A. We warrant that during the maintenance period, performance of the Software will not deviate materially from the Specifications contained in the documents referred to in Exhibit A. B. The Software and any other materials delivered to you under this License Agreement will not infringe on the United States copyright, patent or any other proprietary right of any third party. Should the Software or any materials become the subject of any infringement claim or suit, we may obtain for you the right to continue using the Software or other materials or may replace or modify them to resolve such claim or suit. If we do not find either of these alternatives reasonably available to us, we may require you to stop using the Software or other materials, in which case you will receive a prorated refund based on a five-year depreciation for the Software of the license fee previously paid by you for the Software or other materials you no longer may use and agreed upon associated professional services fees paid to AMS under the Agreement. C. AMS shall not be liable or responsible for a material deviation of Software from its Specifications as provided in section 6.A., if such material deviation was caused by your misuse or modification of the Software or by your failure to use corrections and/or enhancements made available by us as part of the maintenance services provided pursuant to Section 2 of this License Agreement, or by the malfunctioning of any Third Party Software, or by the written information, direction or instructions furnished by you or any third party. D. As to our infringement warranty provided in paragraph 6.B., AMS will not be required to indemnity you if the claim of infringement is caused by (1) your misuse or modification of the Software; (2) your failure to use corrections or enhancements made available by AMS; (3) your use of the Software in combination with any 4-4 product or information not owned or approved by AMS in writing, or(4) information or materials provided by you or any third party. E. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 7. LIMITATION OF REMEDIES A. Except as provided in Paragraphs 7.B. and 7.C., our entire liability and your exclusive remedy for damages to you from any work under or breach of this License Agreement or the Agreement, for any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, shall be as follows: 1. If the Software does not perform as warranted, our obligation will be to modify the Software to make it perform as warranted; or, if after repeated efforts, we are unable to make the Software operate as warranted, you will be entitled to recover your actual money damages to the limits set forth in this section. 2. Damages shall not exceed the lesser of (i) $100,000 or (ii) the total license fees paid to AMS pursuant to this License Agreement. 3. No proceeding, regardless of form, arising out of this License Agreement may be brought by either of us more than two years after the party injured first knew, or should reasonably have had knowledge of, the facts giving rise to the cause of action, except that proceedings related to violation of any duty to protect Confidential Information may be brought at any time. B. We will reimburse you for any costs (including reasonable legal fees), which you may incur as a result of any claim or suit based on a violation of the warranty in paragraph 6.B., but only if you notify us promptly of any such suit or claim and cooperate with us in defending or settling the claim or suit. We will control the defense of any such claim or suit including the selection of attorneys. C. If as a result of AMS' negligence you or your employees suffer personal injury or property damage, we will reimburse you to the extent of our liability for any claims you actually pay. 4-5 D. IN NO EVENT WIT L WE BE LIABLE FOR: (i) ANY DAMAGES CAUSED BY YOUR FAILURE TO PERFORM YOUR RESPONSIBILITIES, OR (ii) ANY PUNITIVE DAMAGES, OR (iii) INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, SUCH AS LOST PROFITS, LOST OPPORTUNITIES, LOST SAVINGS AND THE LIKE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. TERMINATION A. We may terminate this License Agreement if after 30 days' written notice you have not cured a material failure to comply with any of the terms and conditions of this License Agreement; except that if you make any use of the Software or related materials not permitted by this License Agreement and we reasonably determine that such use was intended to result in substantial harm to AMS proprietary rights, we shall have the right, without affecting any other rights and remedies we may have, to terminate this License Agreement immediately upon written notice to you. B. When this License Agreement terminates, within thirty days thereafter you will destroy, and certify to us in writing as to the destruction of, the original and all copies of the Software and related materials, including Enhancements and Software in any derivative works. C. Termination of this License Agreement does not free either of us from our respective obligations to comply with all the terms of this License Agreement which call for performance prior or subsequent to the termination date, including your obligation to protect Confidential Information and to destroy the Software and other materials as provided in this License Agreement. D. This License Agreement may be terminated by written mutual consent of both parties and the provisions of paragraphs 8.B. and C. shall apply to such termination. 9. GENERAL PROVISIONS A. You may not assign or otherwise transfer this License Agreement and the License it provides without our prior written consent, which consent shall not be unreasonably withheld. This License Agreement shall be binding upon our respective successors and assigns. 4-6 B. If either of us waives or modifies any term or condition of this License Agreement, this will not void, waive or change any other term or condition. If either of us waives a default by the other, this does not mean that either of us will waive future or other defaults. C. Notices regarding this License Agreement are to be in writing and delivered, or mailed by certified mail, by one party to the other at our address given above, marked for the attention of our AMS Project Manager, and your Elgin MDCR Project Manager. Each party shall provide written notice of address changes to the other in a timely manner. Notices which are mailed shall be deemed to have been given as of the second business day following the date of mailing. D. If any part of this License Agreement, for any reason, is declared to be invalid, it shall be deemed restated to reflect as nearly as possible in accordance with applicable law the original intentions of the parties, and the remaining provisions shall remain in full force and effect. E. This License Agreement will be governed by the laws of Illinois. F. This License Agreement sets forth the full understanding between us and may only by changed in writing. G. The parties are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this License Agreement to create an agency, partnership, or joint venture between the parties. H. Exhibit A to this License Agreement is made a part of it as if fully included in the text. 4-7 This License Agreement is effective the date of final execution of both parties, as set forth hereunder. AMERICAN MANAGEMENT ("Licensee") SYSTEMS,INCORPORATED ("AMS") BY: x - b1,.QH BY: (Signature) Si nature . et-•�.�..>>� a>FA c. m cR2,c.c (Print Name) (Print Name) Li, Pee.itiotA (Title) (Title) "1 4/94 3)P/44 (Date) (Date) 4-8 ATTACHMENT 4 EXHIBIT A TO AMERICAN MANAGEMENT SYSTEMS, INCORPORATED AND THE CITY OF ELGIN,ILLINOIS Proprietary Software License And Maintenance Agreement 1. We are licensing to you the following computer software components: Officer Information Manager(OIM), Mobile Data Crash Reporting (MDCR) software as specified in the following manuals (the "Specifications"): MDCR Final Design Document, MDCR User's Manual, and MDCR Training Materials and as modified by Enhancements. 2. You will provide us in writing a composite list of designated users at the end of each calendar quarter. 3. Additional provisions: You acknowledge and agree that changes in the Software's technical architecture, which AMS may make from time to time as part of the maintenance services provided in Section 2 of the License Agreement, may result in attendant changes in any required Third Party Software. The parties also agree and acknowledge that AMS shall have no warranty or maintenance services obligations for any Third Party Software or for any hardware. 4-9 Agreed to and signed for identification by: AMERICAN MANAGEMENT ("Licensee") SYSTEMS,INCORPORATED ("AMS") BY: tS . BY: Lam.--- ,tY (Signature) (Signature) g ) % %met-A t C . `c t.•-§-t C ri► ✓L2�(•L (Print Name) (Print Name) 3/PA et fad 44.1 (Title) (Title) bs % 3)'f6 (Date) (Date) 4-10 ams Government and Education Management Systems (GEMS) Standard Rates for Services DETAILED PRICE SCHEDULE HOURLY RATE Vice President $260.00 Project Director $225.00 Implementation Manager $200.00 Senior Government Consultant $200.00 Government Systems Consultant $150.00 Senior Technical Specialist $190.00 Technical Specialist $150.00 Consultant $125.00 Training Specialist $125.00 Analyst $110.00 Development Manager $135.00 Senior Programmer/Analyst $105.00 Programmer/Analyst $95.00 Programmer $75.00 Administrative Staff $35.00 EFFECTIVE JULY 1,1995 PRICES SUBJECT TO CHANGE WITHOUT NOTICE ams ADVANTAGE zoo •