14-49 Resolution No. 14-49
RESOLUTION
AUTHORIZING EXECUTION OF A CODERED SERVICES AGREEMENT WITH
EMERGENCY COMMUNICATIONS NETWORK, LLC
FOR CODERED EMERGENCY NOTIFICATION SYSTEM
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 Sean R. Stegall, City Manager, be and is hereby authorized and directed to
execute a services agreement on behalf of the City of Elgin with Emergency Communications
Network, LLC for the CodeRED Emergency Notification System, a copy of which is attached
hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: April 23, 2014
Adopted: April 23, 2014
Omnibus Vote: Yeas: 8 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
CODERED SERVICES AGREEMENT
This CodeRED® Services Agreement ("Agreement") is made and effective as of March 24. 2013 (the
"Effective Date") by and between Emergency Communications Network, LLC. a Delaware Limited Liability
Company("Licensor")located at 9 Sunshine Boulevard, Ormond Beach, FL 32174 and the City of Elcrin, an
Iffinois municipal corporation("Licensee")located at 150 Dexter Court Elgin,IL 60120.
Licensor is the owner of a service identified as"CodeRED® Emergency Notification System" (the"Service"),
which is designed to allow authorized licensed users to have access 24 hours a day, 7 days a week for the
purpose of generating high-speed notifications to targeted groups via an Internet-hosted software
application. Licensee desires to utilize the Service for the purpose of communicating matters of public
interest and concern.The parties agree as follows:
1. License: Licensor grants Licensee a non-exclusive and non-transferable license (the"License") to use the
Service for Licensee's own purpose, in accordance with the terms of this Agreement. Licensor reserves the
right to either charge additional fees or terminate this Agreement if other parties not contemplated in this
Agreement are granted access to the Service by Licensee. Licensee assumes full and complete
responsibility for the use of the Service by anyone whom Licensee permits to use the Service or who
otherwise uses the Service through Licensee's access codes
Licensee may not assign, license, sublicense, rent, sell or transfer the License, the Service, those codes
used to access the Service, or any rights under this Agreement. To access the Service, Licensor will provide
Licensee with up to five 5 unique user name(s) and password(s). Additional users pass codes may be
obtained at an additional annual fee as outlined in Exhibit A, attached hereto and incorporated herein by
reference.
2. Ownership: Licensee also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble,
decompile or otherwise tamper with the Service or any software provided.The Licensee's License confers no
title or ownership in the Service or its underlying technology
3. Functionality: The Service provides the ability for Licensee to generate high-speed notifications to
geographically selected calling areas and/or listed databases via an Internet-hosted software application.
The Service utilizes an interactive voice response telephone service to record Licensee voice messages and
initiate telephone call-out projects. Licensee's community database(s) shall be limited to containing contact
data located within the geographic boundaries (determined by Lat/Lon coordinates) of the City of Elgin.
Illinois(the "Calling Area'!. Licensee may only place calls via the system to telephone numbers assigned
within the 48 contiguous United States of America. International call rates may be set by separate
agreement.Any additional Service functions will be charged at the rates on Exhibit A.
4. Term: This Agreement, and the License extended herein, will continue for a period of four(4) no (the
"Initial Term")commencing on the Effective Date.This Agreement shall terminate on March 23.2017, unless
otherwise terminated or renewed as set forth herein. Upon termination of this Agreement, whether by
expiration of the Initial Term, any Renewal Term (as hereinafter defined) (the Initial Term and all Renewal
Terms, collectively, the "Term") or as otherwise set forth herein, Licensee's access to the Service will be
terminated and all System Minutes remaining on account shall transfer solely to Licensor
5. Costs for the Service: During the Term of this Agreement, Licensee agrees to pay all costs and fees for
utilizing the Service, as described in Exhibit A, and as set forth in this paragraph. Licensee understands and
agrees that it will purchase prepaid minutes for the Service("System Minutes") Licensee further understands
and agrees that whenever Licensee utilizes the Service, the actual calling minutes used by Licensee while
utilizing the Service will be deducted from the balance of System Minutes remaining in Licensee's System
Minutes account or bank. Licensee is responsible to maintain, at all times, a sufficient balance of System
Minutes on account. Payment for the Service or System Minutes is due and payable upon receipt of invoice
(R01). Finance charges at a rate of .75% per month (9% per annum) will be charged on all balances
outstanding beyond 60 days. All payments due under this Agreement shall be paid to: Emergency
Communications Network, LLC at 9 Sunshine Blvd., Ormond Beach, FL 32174. Notwithstanding the
Effective Date herein Licensee understands and agrees that this Agreement, including but not
limited to the prices set forth on Exhibit A are not final until this Agreement has been fully executed
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and that the offer set forth in this Agreement shall automatically be deemed rescinded in the event
that this Agreement is not fully executed by Licensor and Licensee on or before April 30 2014
6. Free Testing and Training Minute Blocks, Licensee is allotted free time on the system which runs the
Service for the purpose of testing and training. Licensee understands and agrees that the following
conditions must be met in order for Licensee to utilize the free minute bank specified in Exhibit A:
a) Minutes used for testing and training will be deducted from Licensee's minute bank at the time of using
the Service;
b) Licensee must notify Licensor in writing within 60 days from the date the Service was used for testing or
training, specifying qualified project(s) and minutes used, to request that such minutes be designated as free
minutes and restored to the minutes that were deducted from Licensee's System Minute bank. Licensee
understands and agrees that, if Licensee fails to notify Licensor within 60 days of the use of the Service, the
minutes used will not be eligible for restoration as free minutes, and will remain deducted from Licensee's
System Minute bank as described above,
c) Any unused minutes are not transferable,and shall only roll over by written agreement;and
d) Licensor will have the final right to deem all free calling minutes eligible or ineligible for reimbursement
under this paragraph.
7. Annual System Minute Bank Replenishment: Each year, Licensee will have access to 92.000 System
Minutes. The System Minute bank will be refilled every year, to 92.000 System Minutes, upon the
anniversary of the Effective Date,as set forth in this Agreement. System Minutes are not transferable and do
not rollover from year to year, unless otherwise paid for and agreed in writing. If the entire bank of System
Minutes is exhausted during the given year, Licensee will be required to repurchase System Minutes
according to the System Minute bank refill provisions described herein.
8. Discount Contract Extension: At the end of the Initial Term or any Renewal Term (as hereinafter defined),
this Agreement may extend for additional four (4) year periods (each a "Renewal Term"), If activated, this
contract extension provision will continue to extend the Agreement period by four(4) additional years at the
end of the four (4) year Initial Term or each four (4) year Renewal Term. Licensee's extension of the
Agreement for a Renewal Term shall be deemed activated upon Licensor's acceptance of any of the
following prior to the end of the Initial Term or then-current Renewal Term: Licensor accepts a renewal letter,
electronically or hard copy,from Licensee; Licensor accepts a Purchase Order for payment of the Service for
one additional year from Licensee; or Licensor accepts payment from Licensee for one additional year of the
Service. In the event the Agreement is extended:
a) Licensee's System Minute bank will be replenished to the annual 92.000 minute balance;
b) Licensor will update its systems to extend the active software License and associated access codes
for four additional years of use;
c) Licensor will invoice Licensee for additional year(s)of Service at the rate of sixty-five thousand
dollars($65.000)per four-year Renewal Term which may be paid in installments of sixteen thousand
two hundred fifty dollars($16.250)per year, and
d) Licensee agrees to pay the contract extension fee set forth in this paragraph for all years in the Renewal
Term upon receipt of invoice from the Licensor, subject to the terms as set forth in paragraph 5
Licensee understands and agrees that its failure to extend the Agreement pursuant to this section may result
in increased costs for the Service in the event that Licensee requests Licensor to provide any services to
Licensee after the expiration of the Term.
9. Minute Bank Refill Feature: The parties recognize that Licensee may utilize the Service in a manner that
results in Licensee exceeding the amount of prepaid System Minutes in Licensee's System Minute bank. In
the event that using the Service completely exhausts Licensee's remaining prepaid System Minute bank,
Licensor will immediately refill Licensee's System Minute bank with a block of 9,200 System Minutes,and will
invoice Licensee for this block of minutes at the Additional System Minute price as indicated in Exhibit A.
Licensee shall pay Licensor for all Additional System Minute blocks upon receipt of invoice from Licensor,
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subject to the same terms as set forth in paragraph 5 Licensee understands and agrees that it is required to
maintain a System Minutes balance in its System Minutes bank at all times, and agrees to purchase
Additional System Minute blocks as needed in order to maintain a positive System Minute balance. The
purpose of this refill feature is to ensure that calls being placed via the Service are not interrupted as the
result of Licensee's depletion of its System Minutes,
10. Termination: a) Upon termination of this Agreement, Licensee will return all Confidential Information (as
hereinafter defined) and copies to Licensor and Licensee agrees to remove from Licensee's computer(s),
and any computers within Licensee's control, any and all files and documents related to the Service.
b) Licensor, in its sole discretion, may also terminate this Agreement: i) for any reason by providing no less
than 30 days advance notice, and in such case, Licensor will refund to Licensee an amount equal to the
lesser of the monthly-prorated balance of the annual fee based on the number of days left in the Term of the
Agreement or the value of the balance of System Minutes in Licensee's System Minute bank as calculated
by multiplying the remaining System Minutes by the additional system minute price on Exhibit A; or ii)
immediately,and without further notice,as a result of Licensee's breach of this Agreement, and in such case,
no fees paid hereunder shall be refunded.
c) Licensee, in its sole discretion, may also terminate this Agreement: i)for any reason by providing no less
than 30 days advance notice, and in such case, no fees paid hereunder shall be refunded; or ii)immediately,
and without further notice, as a result of Licensor's breach of this Agreement, and in such case, Licensor will
refund to Licensee an amount equal to the lesser of the monthly-prorated balance of the annual fee based on
the number of days left in the Term of the Agreement or the value of the balance of System Minutes in
Licensee's System Minute bank as calculated by multiplying the remaining System Minutes by the additional
system minute price on Exhibit A. Licensee further understands and agrees that it has been granted
multiyear, discounted pricing by Licensor, and that, in the event this Agreement is terminated in accordance
with paragraph 10.c)i), Licensee agrees to immediately pay, in full, to Licensor at the time of premature
termination, the difference between any multiyear pricing discount provided to Licensee under this
Agreement for any term of this Agreement less than four (4) years. The difference will be calculated as set
forth on Exhibit A.
11. Copyright: Licensee understands and agrees that United States copyright laws and international treaty
provisions protect the Service. Except for the limited License provided for herein, Licensor reserves all rights
in and to the Service and all underlying data, compilations, and information maintained by Licensor relating
to the Service, including but not limited to, the source or object code. Licensee shall not make any
ownership, copyright or other intellectual property claims related to the Service or data processed through
the Service
12. Representations and Warranties: Licensee acknowledges and agrees that: (a) the Service is run by
software that is designed to be active 24 hours per day, 365 days per year; software in general is not error-
free and the existence of any errors in Licensee's software used in conjunction with the Service shall not
constitute a breach of this Agreement; (b) in the event that Licensee discovers a material error which
substantially affects Licensee's use of the Service, and Licensee notifies Licensor of the error, Licensor shall
use reasonable measures to restore access to the Service, provided that such error has not been Mused by
incorrect use, abuse or corruption of the Service or the Service's software or by use of the Service with other
software or on equipment with which it is incompatible by Licensee or a third party accessing the Service
through Licensee's passcodes; (c) Licensee is responsible for maintaining access to the Internet in order to
use the Service; Licensor in no way warrants Licensee's access to the Internet via Licensee's Internet
Service Provider(s); (d) Under certain rare instances not all technologies are compatible without manual
intervention by both parties. Licensee agrees that its staff will cooperate with Licensor's staff to make
necessary modifications to allow the Service to perform; and (e) the individual signing on behalf of Licensee
is an authorized officer, employee, member, director or agent for Licensee and has full authority to cause
Licensee to enter into and be bound by the terms of this Agreement and this Agreement fully complies with
all laws,ordinances, rules, regulations, and governing documents by which Licensee may be bound.
13. Security: Licensor will use commercially reasonable practices and standards to secure and encrypt data
transmissions. Licensee understands and acknowledges that Licensor is providing the Service on the World
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Wide Web through an "upstream" third party Internet Service Provider, utilizing public utility services which
may not be secure. Licensee agrees that Licensor shall not be liable to Licensee in the event of any
interruption of service or lack of presence on the Internet as a result of any disruption by the third parry
Internet Service Provider or public utility. Licensee agrees that Licensor cannot guarantee the integrity of any
Licensee supplied or user supplied data.Any errors,duplications, or inaccuracies related to Licensee or user
supplied data will be the responsibility of the Licensee.
14. Disclaimer: In no event(even should circumstances cause any or all of the exclusive remedies to fail their
essential purpose, and even if Licensor has been advised of the possibility of such damages) shall Licensor,
its officers, directors, managers, members employees or agents, be liable for any indirect, punitive, special,
incidental or consequential damages of any nature(regardless of whether such damages are alleged to arise
in contract,tort or otherwise), including, but not limited to, loss of anticipated profits or other economic loss in
connection with or ensuing from the existence, furnishing,function, or Licensee's use of any item or products
or services provided for in this Agreement. Licensee understands that the cumulative liability of Licensor for
any and all claims relating to the Service provided by Licensor shall not exceed that total amount paid by
Licensee for the most recent payment made by Licensee to Licensor. The Service is provided as-is, and
Licensor disclaims all warranties, express or implied and does not warrant for merchantability or
fitness of"articular particular purpose. Licensee recognizes that once email and text messages have been
released from Licensor's equipment, the ultimate delivery of the messages depends on the message
recipient's local network.As a result Licensor cannot guarantee the delivery of email and text messages to a
recipient.
15. Appropriate Use of The Service: To access the Service, Licensor will provide Licensee with unique user
name(s) and password(s). Licensee agrees to maintain such user name(s) and password(s) as private and
confidential information. Licensee agrees to use the Service in a way that conforms with all applicable laws
and regulations. Licensee agrees not to initiate a call, such that the same call is to be delivered to two (2)or
more lines of a business. Licensee specifically agrees not to make any attempt to gain unauthorized access
to any of Licensor's systems or networks. Licensee agrees that Licensor shall not be responsible or liable for
the content of the message(s) created by Licensee, or by those who access the Service using Licensee's
codes, or otherwise delivered by the Service on behalf of Licensee. Licensee agrees to defend, indemnify
and hold harmless Licensor and its affiliates, employees, officers, directors, managers, members and agents
from any and all liabilities, costs, and expenses, including reasonable attorneys' fees, whether brought by a
third party, arising from any violation of this Agreement by Licensee; from the content, placement, or
transmission of any messages or materials sent or maintained through Licensee's accounts, or use of the
Service through Licensee's account. Licensee shall be responsible for compliance with all applicable laws
regarding outbound telemarketing, which may include, but are not limited to the Federal Telephone
Consumer Protection Act of 1991, The Telemarketing and Consumer Fraud and Abuse Prevention Act of
1999 and the rules and regulations promulgated thereunder, as well as State and Local telemarketing laws
and requirements. Licensee will be solely responsible and liable for any such violations and shall defend,
indemnify and hold Licensor harmless from all lawsuits, demands, liabilities, damages, claims, losses, costs
or expenses, including attorneys' fees (whether by salary, retainer or otherwise), arising out of or resulting
from, in whole or in part,a violation of such laws.
16. Confidentiality: Licensor acknowledges the confidential nature of Licensee and user supplied data and files
that it is to prepare, process or maintain under this Agreement, and agrees to perform its duties in such a
manner as to prevent the disclosure to the public or to any persons not employed by Licensor, any
confidential data and files. Data collected by Licensor will remain secured on Licensor's equipment and will
only be released upon mutual agreement by both parties or a court order of sufficient jurisdiction. Licensee
understands and agrees that private citizens and other persons in the Calling Area may voluntarily contribute
their contact information to be used in the Service, and that Licensor shall develop and maintain a database
of such information, along with other information privately developed by Licensor (the "Data"). Licensee
acknowledges and agrees that Licensor desires to maintain the privacy of the Data, and that Licensee shall
take no steps to compromise the privacy of the Data. Licensee further acknowledges that Licensor shall
disclose to Licensee certain confidential, proprietary trade secret information of Licensor (along with the
Data, "Confidential Information"). Confidential Information may include, but is not limited to, the Service,
computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design
documents, marketing information, user data, Calling Area data, financial information or business plans.
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Licensee agrees that, at all times during and after the termination of this Agreement, Licensee will not,
without the express prior written consent of Licensor, disclose any Confidential Information or any part
thereof to any third party. Nothing in this Agreement will be deemed to require Licensor to disclose any
Confidential Information to Licensee or to prohibit the disclosure of any information in response to a
subpoena or other similar order by a court or agency, or as may otherwise be required by law. The Licensee
will promptly notify the Licensor of the receipt of any subpoena or other similar order and of any request
under the Public Information Act or any other similar law,and will assist Licensor in preventing the disclosure
of the Confidential Information pursuant to same to the extent required by Licensor.
17. Entire Agreement: This Agreement supersedes all prior understandings or agreements, whether oral or
written, on the subject matter hereof between the parties. Only a further writing that is duly executed by both
parties may modify this Agreement. The terms and conditions of this Agreement will govern and supersede
any additional terms provided by Licensee, including but not limited to additional terms contained in standard
purchase order documents and third party application terms, unless mutually agreed to, via written signature,
by Licensor. The terms of this Agreement shall not be waived except by a further writing executed by both
parties hereto The failure by one party to require performance of any provision shall not affect that party's
right to require performance at any time thereafter, nor shall any waiver under this Agreement constitute a
waiver of any subsequent action.
18. Notices: All notices or requests, demands and other communications hereunder shall be in writing, and
shall be deemed delivered to the appropriate party upon: (a) personal delivery, if delivered by hand during
ordinary business hours; (b)the day of delivery if sent by U S Mail, postage pre-paid; (c) the day of signed
receipt if sent by certified mail, postage pre-paid, or other nationally recognized carrier, return receipt or
signature provided and in each case addressed to the parties as follows:
As to Licensor: Emergency Communications Network, LLC, 9 Sunshine Blvd. Ormond Beach, FL 32174
As to Licensee: City of Elgin Attn•Sean Stegai!/City Manager, 950 Dexter Court Elgin IL 60920
Either party may change the address provided herein by providing notice as set forth in this paragraph.
19. General: Each party to this Agreement agrees that any dispute arising under this Agreement shall be
submitted to binding arbitration according to the rules and regulations of,and administered by, the American
Arbitration Association, and that any award granted pursuant to such arbitration may be rendered to final
judgment. If any dispute arises hereunder, the prevailing party shall be entitled to all costs and attorney's
fees from the losing party for enforcement of any right included in this Agreement, whether in Arbitration, a
Court of first jurisdiction and all Courts of Appeal.
20. Interpretation and Severability: The terms of this Agreement shall be severable. In the event any of the
terms or provision of this Agreement are deemed to be void or otherwise unenforceable for any reason by an
arbitrator or court of competent jurisdiction, the remainder of this Agreement shall remain in full force and
effect.
21. Counterparts and Construction: 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. The headings contained in this Agreement shall not affect the interpretation of
this Agreement and are for convenience only. Licensee agrees that this Agreement shall not be construed
against the Licensor as the drafter, and that Licensee has read and understands this Agreement, and had
the opportunity to review this Agreement with legal counsel.
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22. Survival: Certain obligations set forth herein represent independent covenants by which either party hereto
may be bound and shall remain bound regardless of any breach of this Agreement and shall survive
termination of this Agreement.
IN WITNESS WHEREOF, the parties execute this Agreement on the date(s)indicated below.
Licensee: Licensor:
City of EI in BM W& /f Emergency Communications Network, LLC
Signature: !mil• Signature:
Printed Name: Sean R. Stega 1 Printed Name: Vid Di( Ito
Title: _ City Manager Title.
SI >
Date: Anril 23. 2014 Date-
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Exhibit A — Service Charges
Four(4)year CodeRED Service Agreement $85,500.00
Multi-Year Discount ($20,500.00)
Credit for amounts paid from 3/24/13—3/23/15: ($20,000.00)
Total: $45,000.00
Payments in four(4)annual installments as follows:
$ 6,250.00 due upon signing
$ 6,250.00 due on or before March 24, 2014
$ 16,250.00 due on or before March 24, 2015
$16,250.00 due on or before March 24,2016
Up to 92,000 Annual CodeRED System Minutes $Included(see section 7)
Additional System Minutes $0.25 per minute
500 minutes for testing and training $No Charge(see section 6)
Email and Text Messaging $No Charge
Up to 5 CodeRED user pass codes $Included
Additional pass codes may be purchased for an annual fee of$150.00 per pass code.
Initial Residential Database Upload $Waived
One(1)CodeRED distance training session $ Included
Additional distance training sessions may be purchased for$150.00 per hour(one hour minimum).
System usage will be charged against Prepaid System Minutes at actual minutes of time
connected while delivering prerecorded System calls.All calls will be billed in 6-second
increments. Only connected calls(live connections,answering machine connections and fax tone
connections)will result in connection charges being incurred.
Database Accuracy Updates
Licensor Supplied Database:"Database Accuracy Updates"ensure that the data population maintained by
Licensor under this Agreement undergoes periodic accuracy checks using the Licensor's most current in-
house compiled database including, but not limited to,household addresses and telephone numbers. It will
be the sole responsibility of the Licensee to maintain database accuracy and request updates from the
Licensor
One annual"Database Accuracy Update"will be performed by the Licensor upon request by the Licensee at
no charge.Additional updates requested by Licensee will incur charges at the rate listed below after the
update service is completed by Licensor
3¢ per record in final updated database population.
Licensee Supplied Database:A service labor fee of One Hundred Dollars($100.00)per hour will be billed
to Licensee for any data importing, manipulating, and loading any database supplied by Licensee or on
Licensee's behalf to Licensor
$100 per hour for database maintenance
Annual System Maintenance, including all Software Upgrades $No Charge
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