16-86 Resolution No. 16-86
RESOLUTION
AUTHORIZING EXECUTION OF A SOFTWARE LICENSE AND
SERVICES AGREEMENT WITH BOCKYN, LLC FOR
RECREATION MANAGEMENT SOFTWARE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that Sean R. Stegall, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby
authorized and directed to execute a Software License and Services Agreement on behalf of the
City of Elgin with Bockyn, LLC for recreation 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 22, 2016
Adopted: June 22, 2016
Omnibus Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement and all attachments hereto (hereinafter referred
to as the "Agreement") is hereby made and entered into this 22nd day of
June , 2016. by and between .Bockyn, LLC, an Illinois limited liability
company, (hereinafter referred to as "Bockyn") with its principal place of business at 102 N
Cross Street, Suite 3, Wheaton. Illinois, 60187, and the City of Elgin, Illinois, a municipal
corporation, with its principal place of business at 150 Dexter Court, Elgin, Illinois, 60120
(hereinafter referred to as the "City").
NOW, TIIEREFORL, 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. CONTROLLING TERMS
The terms of this Agreement shall apply to the Program License and to all services provided by
Bockyn under this Agreement. The terms and conditions set forth in this Agreement and in any
attachments hereto shall control in the event that there are different or additional terms set forth
in any other purchase order submitted by City or acceptance form or invoice issued by Bockyn.
The terms and conditions of any Order Form shall control over any conflicting terms and
conditions contained in this Agreement.
2. DEFINITIONS
2.1 "AFFILIATE" shall mean any entity controlled by, controlling, or under common control
with City. Such entity shall be deemed to be an "Affiliate" only so long as such control exists.
Upon request, City agrees to confirm the Affiliate status of a particular entity.
2.2 "COMMENCEMENT DATE" the Program License shall mean the date on which the
Ordered Program is first delivered to City.
2.3 "EFFECTIVE DATE" shall mean the date of this Agreement as set forth above.
2.4 "DOCUMENTATION" shall mean Bockyn's then current published guides. manuals and on-
line help for the Ordered Programs. As of the date of this Agreement, such guides and manuals
for the Ordered Programs are attached hereto and made a part hereof as Exhibit C.
2.5 "DESIGNATED SYSTEM" shall mean City's computer hardware and operating system
designated on the Order Form.
2.6 "PRE-PRODUCTION PROGRAM" shall mean a software program which is (i) not
generally licensed for commercial use by Bockyn, (ii) not listed as generally available in
Bockyn's marketing literature, or (iii) designated by Bockyn as an "Alpha," "Beta," or "Pre
Production" program or release.
2.7 "MAINTENANCE SERVICES" shall mean the services provided under Bockyn's standard
Maintenance Services policy in effect on the date of this Agreement. A copy of Bockyn's current
Maintenance Services policy is attached hereto and made a part hereof as EXHIBIT B.
2.8 "ORDER FORM" shall mean EXHIBIT A, attached hereto and made a part hereof, which
describes the goods and/or services and terms and provisions to which this Agreement is subject.
2.9 "ORDERED PROGRAMS" shall mean the User Programs and System Programs as
delivered by Bockyn pursuant to this Agreement.
2.10 "PROGRAMS" shall mean (i)the User Programs and System Programs, and (ii) Updates.
2.11 "PROGRAM LICENSE" shall mean each license granted to City for a User to use a
Program.
2.12 "SERVER SYSTEM" shall mean the server hardware and operating system of City
specified on the Order Form.
2.13 "SYSTEM PROGRAMS" shall mean the object code of the software specified as "System
Programs" on an Order Form that resides and operates on Server Systems.
2.14 "SUPPORTED PLATFORM" shall mean the hardware and software platforms (e.g.
database server systems. application server systems, and client systems) that are supported by
Bockyn as expressly set forth in the Documentation. The requirements for the Supported
Platform are subject to change as specified by Bockyn in its discretion with ninety (90) days
prior written notice to City.
2.15 "UPDATE" shall mean a subsequent release of a Program that Bockyn makes available to
City without charging a fee for Programs receiving Maintenance Services. Updates shall include
any release, option, future product, or any upgrade in features, functionality or performance, all
hug fixes, patches, and maintenance releases, new point releases denoted by a change to the right
of the first decimal point (e.g.. v3.0 to 3.1), and new major version releases denoted by a change
to the left of the first decimal point (e.g., v3.0 to 4.0) so long as City is current on maintenance
fee obligations.
2.16 "USERS" shall mean the unlimited number of individuals using the Programs. Users may
include the employees of City or third parties (for example outside contractors, independent
contractors, or vendors hired or under contract with City); provided that such third party is
limited to use of the Programs (i) only as configured and deployed by City, and (ii) solely in
connection with City's business operations as conducted by or through such third party, including
but not limited to the installation, administration or implementation of the Programs for City.
City agrees that it is responsible for insuring that any third party usage that is not in accord with
the terms and conditions of this Agreement. Notwithstanding the foregoing, in no instance shall
City knowingly allow a third party User to be any individual employed by, or acting on behalf or
under the direction of, a direct competitor of Bockyn.
2
2.17 "USER PROGRAMS" shall mean the object code of delivered software that resides and
operates on User Systems.
2.18 "USER SYSTEM" shall mean the hardware and operating systems operated by Users,
including notebook and portable computers.
3. PROGRAM LICENSE
3.1 LICENSE GRANT. Subject to the terms and conditions of this Agreement, Bockyn grants
City the worldwide. nonexclusive, perpetual rights, solely for its own internal business
operations:
A. TO USE. (i) to use the Programs solely on any system within the City's organization, (ii)
to use the Documentation solely for purposes of supporting City's use of the Programs; (iii) to
use the Training Materials solely for purposes of supporting Users who utilize the application for
City's operations; (iv) to use the Deliverables solely for purposes of installing or operating the
programs. and (v) to have third parties (e.g., system integrators) install, integrate, and implement
the Programs for the City; and
B. TO COPY. (i) to copy the System Programs as reasonably necessary to support the Users;
(ii) to copy the User Programs, so long as such User operates only one copy of the User Program
at any given time, (iii) to make a reasonable number of additional copies of the Programs solely
for archival, emergency back-up, or disaster recovery purposes; and (iv) to copy the on-line help
Documentation as reasonably necessary to support its Users.
3.2 LICENSE RESTRICTIONS. The rights granted in Section 3.1 are subject to the following
restrictions: (i) City may not reverse engineer, disassemble, decompile, or otherwise attempt to
derive the source code of the Programs, provided that. if required under applicable law, upon
City's request, Bockyn shall provide information necessary for City to achieve interoperability
between the Programs and other software for a nominal administrative charge; (ii) City may not
sublicense or use the Programs for commercial time-sharing, rental, or service bureau use, or to
train persons other than Users, unless previously agreed to in writing by Bockyn; (iii)with regard
to any and all copies of the Programs, and Documentation, City shall only make exact copies of
the versions as originally delivered by Bockyn. City shall ensure that each copy contains all
titles, trademarks, and copyright and restricted rights notices as in the original, and all such
copies shall be subject to the terms and conditions of this Agreement.
3.3 RETENTION OF RIGHTS. Bockyn reserves all rights not expressly granted to City in this
Agreement. Without limiting the generality of the foregoing, City acknowledges and agrees that:
(i) except as specifically set forth in this Agreement, Bockyn and its suppliers retain all rights,
title and interest in and to the Programs. Documentation, Deliverables, and Training Materials
and City acknowledges and agrees that it does not acquire any rights, express or implied,
thereon, (ii) any configuration or deployment of the User Programs shall not affect or diminish
Bockyn's rights, title, and interest in and to the Programs and (iii) if City suggests any new
features functionality, or performance for the Programs that Bockyn subsequently incorporates
into the Programs. such new features, functionality, or performance shall be the sole and
3
exclusive property of Bockyn and shall be free from any confidentiality restrictions that might
otherwise be imposed upon Bockyn pursuant to Section 9.1
3.4 ASSIGNMENT. Neither this Agreement nor any rights granted hereunder may be sold,
issued. assigned, or otherwise transferred, in whole or in part, by either party, and any such
attempted assignment shall be void and of no effect without the advance written consent of the
other party. Such consent shall not be unreasonably withheld or delayed; provided, however, that
such consent shall not be required if(i) either party assigns this Agreement to a wholly owned
subsidiary or in connection with a merger, acquisition, or sale of all or substantially all of its
assets. unless the surviving entity is a direct competitor of the other party, or(ii) Bockyn assigns
its right to receive and collect payments hereunder.
3.5 ACCEPTANCE. City shall have (90) days from the first date of delivery of the Ordered
Program (the "Acceptance Period") to evaluate such Ordered Program. If, during the Acceptance
Period. the Ordered Program fails to conform to the City's satisfaction, then Ordered Program,
the City shall have the right to terminate this Agreement by providing Bockyn with written
notice of such termination during the Acceptance Period and upon return of the applicable Order
Program pursuant to Section 5.5 herein, the City shall receive a full refund of all Program
License fees paid to Bockyn pursuant to this Agreement as of such termination date. The above
provisions shall constitute the City's sole and exclusive remedy with regard to nonconformance
of the Ordered Program to the satisfaction of the City. Failure by City to notify Bockyn in
writing of nonconformance of the Ordered Program within the Acceptance Period shall be
deemed acceptance. Notwithstanding the foregoing, the warranties and remedies set forth in
Sections 6.2 and 6.3 shall have full force and effect both during and after the Acceptance Period.
3.6 CHANGE OR ADDITION OF DESIGNATED SYSTEM. If at any time, City desires to
change the Designated System to another Supported Platform, City may do so at no additional
charge.
3.7 VERIFICATION. At Bockyn's written request, but not more frequently than annually, the
City shall furnish Bockyn with documentation listing the locations of the Designated Systems.
4. SERVICES
4.1 MAINTENANCE SERVICES FOR PROGRAMS. City shall continue to purchase
Maintenance Services during the term of this Agreement. Bockyn reserves the right to alter its
standard Maintenance Services policy from time to time upon the City's written approval.
5. TERM AND TERMINATION
5.1 TERM. This Agreement shall terminate on December 31, 2026, unless otherwise terminated
by either party hereto pursuant to the terms and provisions of this Agreement.
5.2 TERMINATION BY EITHER PARTY FOR MATERIAL BREACH. Either party may
terminate this Agreement or any Program License upon written notice if the other party
materially breaches this Agreement and fails to cure such breach within thirty (30) days
4
following receipt of written notice specifying the breach. In the event of such termination, the
City shall receive a pro-rata refund of any unused prepaid fees.
5.3 EFFECT OF TERMINATION. Subject to the provisions of Section 2.5, termination of this
Agreement or applicable Program License shall not limit either party from pursuing other
remedies available to it, including injunctive relief, nor shall such termination relieve City of its
obligation to pay all fees that have accrued. The parties' rights and obligations under Sections
3.2. 3.3, 3.5, 5. 6.1, 7, 8 and 9 shall survive the termination of this Agreement.
5.4 HANDLING OF PROGRAMS UPON TERMINATION. If the Program License granted
under this Agreement terminates, the City shall (i) cease using the Ordered Program,
Documentation, and related Confidential Information of Bockyn, and (ii) certify to Bockyn
within thirty (30) days after termination that City has destroyed, or has returned to Bockyn, the
Programs. Documentation, related Confidential Information of Bockyn, and all copies thereof,
whether or not modified or merged into other materials.
5.5 NO FAULT TERMINATION. The City may terminate this agreement at any time for
convenience upon 30 days written notice to Bockyn. In the event of such termination for
convenience, the City shall not be subject to any liability or penalty, but shall only be liable to
Bockyn for fees for previously utilized services as provided herein.
6. INDEMNITY, WARRANTIES, REMEDIES
6.1 BOCKYN'S INFRINGEMENT INDEMNITY. Bockyn will defend and indemnify City
against any and all costs, damages and expenses (including reasonable legal fees) finally
awarded against City by a court of competent jurisdiction or agreed to in a written settlement
agreement signed by Bockyn arising out of any claim that the Programs directly infringe any
U.S. patent issued as of the date or any copyright, trade secret or trademark ("IP Claim"),
provided that: (i) City promptly notifies Bockyn in writing no later than sixty (60) days after
City's receipt of notification of a potential claim, (ii) Bockyn may assume sole control of the
defense of such claim and all related settlement negotiations; and (iii) City provides Bockyn, at
Bockyn's request and expenses, with the assistance, information and authority necessary to
perform Bockyn's obligations under this Section. Notwithstanding the foregoing, Bockyn shall
have no liability for any claim of infringement based on (a) the use of a superseded or altered
release of Programs if the infringement would have been avoided by the use of a current
unaltered release of the Programs, which Bockyn provided to City. (b) the modification of a
Program, or(c) the use of the Programs other than in accordance with the Documentation.
If: due to an IP Claim, (i) the Programs are held by a court of competent jurisdiction or are
believed by Bockyn to infringe, or(ii)City receives a valid court order enjoining City from using
the Programs, Bockyn shall in its reasonable judgment. and at its expense, (a) replace or modify
the Programs to be non-infringing; (b) obtain for City a license to continue using the Programs;
or (c) if Bockyn cannot reasonably obtain the remedies in (a) or (b), terminate the Program
License for the infringing Programs and refund the license fees paid for those Programs upon
return by City. This Section 7.1 states Bockyn's entire liability and City's exclusive remedy for
any claim of infringement.
5
6.2 LIMITED WARRANTIES AND DISCLAIMERS
A. LIMITED PROGRAM WARRANTY. Bockyn warrants for one (1) year from the date of
this Agreement that the Ordered Program will perform in all material respects the functions
described in the Documentation when operated on a Supported Platform.
B. LIMITED MEDIA WARRANTY. Bockyn warrants for ninety (90) days from the date of
this Agreement that the tapes, diskettes or other media upon which Bockyn delivers Programs to
City will be free of defects in materials and workmanship under normal use.
C. LIMITED SERVICES WARRANTY. Bockyn warrants for ninety (90) days from the date
of this Agreement that the performance of any services by Bockyn pursuant to this Agreement,
including Maintenance Services, shall be performed in a manner consistent with generally
accepted industry standards.
D. ANTI-VIRUS WARRANTY. Boekyn warrants that to the best of its knowledge after
employing reasonable technical means to detect computer viruses, the Ordered Programs do not
contain any virus or computer software code, routine or device (other than as set forth in the
Documentation) designed to disable, damage, impair, or erase the Programs or other software or
data. In the event any such viruses, software codes, routines or devices are discovered to exist,
Bockyn shall, at Bockyn's sole expense, immediately replace all copies of the affected Programs
in the possession of City. The above shall constitute the City's sole and exclusive remedy upon
the discovery of such viruses, software codes, routines or devices.
E. DISCLAIMERS. Bockyn does not warrant that the Programs will meet City's
requirements, the Programs will operate in combinations with other hardware, software, systems
or data not provided by Bockyn (except as expressly specified in writing by Bockyn in the
Documentation) which City may select for use; the operation of the Programs will be
uninterrupted or error free; or all Program errors will be corrected. Notwithstanding any
provision to the contrary, Pre-Production Programs, Deliverables, and Training Materials shall
only be subject to such warranties as are specifically provided for herein, and a warranty of
merchantability. The City acknowledges that Pre-Production Programs are not suitable for
general use. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WI'11-IOt;T LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE.
6.3 EXCLUSIVE REMEDIES. City must report in vriling any breach of the warranties
contained in Sections 6 2A, 6 2B and 6 2C to Bockyn during the relevant warranty period, and
City's exclusive remedy and Bockyn's entire liability for such breach shall be:
A. FOR PROGRAMS. To use its commercially reasonable efforts to correct or provide a
workaround for reproducible Program errors that cause a breach of this warranty or if Bockyn is
unable to make the Program operate as warranted within a reasonable time considering the
6
severity of the error and its impact on the City. City shall be entitled to return the Program to
Bockyn and recover the fees paid to Bockyn for the Program License;
B. FOR MEDIA. The replacement of the defective media; and
C. FOR SERVICES. The reperformance of the services, or if Bockyn is unable to perform the
services as warranted, City shall be entitled to recover the fees paid to Bockyn for the
nonconforming services.
6.4 GENERAL INDEMNITY. Each party (an "Indemnitor") shall defend and indemnify the
other party and its employees, officers, directors and agents (the "Indemnitee") against all
damages for bodily injury, death, or damage to real or tangible personal property proximately
and negligently caused by the Indemnitor in the course of performing this Agreement; provided
that (i)the Indemnitor receives prompt written notice of the claim from the Indemnitee under this
Section, (ii) the Indemnitor has the right to control the defense of such claim and any related
settlement negotiations, and (iii) the Indemnitee provides to the Indemnitor, at the Indemnitor's
request and expense, with the assistance, information and authority necessary to perform the
Indemnitor's obligations under this Section.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF PROFITS, DATA OR USE INCURRED BY EITHER PARTY
OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR 'FORT, EVEN
IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. Except for Bockyn's liability for infringement claims under Section 5.1, Bockyn's
aggregate and cumulative liability for damages hereunder shall in no event exceed the amount of
fees paid by City under this Agreement, and if such damages result from City's use of the
Program or services, such liability shall be limited to fees paid for the relevant Program or
services giving rise to the liability. Except for any breach of its obligations under Sections 2.1.
2.2, and 7, City's aggregate and cumulative liability for damages hereunder shall in no event
exceed the amount of fees paid by City under this Agreement.
8. PAYMENT PROVISIONS
8.1 OTHER FEES. All other applicable fees, if any, shall be payable thirty (30) days from the
receipt of Bockyn's invoice.
8.2 TAXES. The fees listed in this Agreement do not include taxes, duties or fees; if Bockyn is
required to pay (i) sales, use, property, value-added, withholding or other taxes, (ii) any customs
or other duties or (iii) any import, warehouse or other fees, associated with the importation or
delivery based on the Program Licenses granted or services provided in this Agreement or on
City's use of Programs or services, then such taxes, duties or fees shall be billed to and paid by
City. If City is permitted to declare any such taxes, City shall declare and pay such taxes and
7
Bockyn shall not be required to invoice City. This Section shall not apply to taxes based on
Bockyn's income or payroll taxes.
9. GENERAL TERMS
9.1 NONDISCLOSURE. Each party may have access to information that is confidential to the
other party ("Confidential Information"). Bockyn's Confidential Information shall include, but
not be limited to, the Programs, Documentation, formulas, methods, know how, processes,
designs. new products, developmental work, marketing requirements, marketing plans, City
names, prospective City names, the terms and pricing under this Agreement. and all information
clearly identified in writing at the time of disclosure as confidential. City's Confidential
Information shall include but not be limited to, its software programs, formulas, methods, know-
how. processes, designs, new products. developmental work, marketing requirements, marketing
plans. City names, prospective City names, and all information clearly identified in writing at the
time of disclosure as confidential. Confidential Information includes all information received
from third parties that either party is obligated to treat as confidential and oral information that is
identified by either party as confidential.
A party's Confidential Information shall not include information that (i) is or becomes a part of
the public domain through no act or omission of the other party; (ii) was in the other party's
lawful possession prior to the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a
third party without restriction on disclosure; (iv) is independently developed by the other party
without use of or reference to the other party's Confidential Information, or (v) is required to be
disclosed by law or valid order of a court or other governmental authority.
The parties agree, unless required by law, not to make each other's Confidential Information
available in any form to any third party (except third parties who are Users as defined hereunder)
or to use each other's Confidential Information for any purpose other than in the performance of
this Agreement. Each party shall use its best efforts to ensure that Confidential Information is not
disclosed or distributed by its employees or agents in breach of this Agreement. The parties agree
to hold each other's Confidential Information in confidence during the term of this Agreement
and for a period of three (3) years thereafter, except as may be provided by law. Each party
acknowledges and agrees that, due to the unique nature of Confidential Information, there can be
no adequate remedy at law for breach of this Section 9.1 and that such breach would cause
irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled
to seek immediate injunctive relief, in addition to whatever remedies it might have at law or
under this Agreement.
This Section 9.1 constitutes the entire understanding of the parties and supersedes all prior or
contemporaneous agreements. representations or negotiations, whether oral or written, with
respect to confidential information.
9.2 GOVERNING LAW. This Agreement shall be subject to and governed by the laws of the
State of Illinois. Venue for the resolution of any disputes or the enforce of any rights arising out
of or in connection with this Agreement shall be in the Circuit Court of Kane County, Illinois.
8
9.3 NOTICES. All notices required to be sent hereunder shall be in writing and shall be deemed
to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered
by courier. or (iii) if by certified mail return receipt requested, on the date received, to the
addresses set forth above and to the attention of the signatory of this Agreement or to such other
address or individual as the parties may specify from time to time by written notice to the other
party.
9.4 SEVERABILITY. In the event any provision of this Agreement is held to be invalid or
unenforceable. the remaining provisions of this Agreement will remain in full force.
9.5 WAIVER. The waiver by either party of any default or breach of this Agreement shall not
constitute a waiver of any other or subsequent default or breach. Except for actions for
nonpayment or breach of Bockyn's proprietary rights in the Programs or Documentation, no
action, regardless of form, arising out of this Agreement may be brought by either party more
than one year after the cause of action has accrued.
9.6 DELIVERY. All materials provided by Bockyn hereunder shall he delivered to City.
9.7 RELATIONSHIP BETWEEN THE PARTIES. Bockyn is an independent contractor,
nothing in this Agreement shall be construed to create a partnership, joint venture or agency
relationship between the parties.
9.8 ENTIRE AGREEMENT. This Agreement, together with the attached exhibits which are
incorporated by reference, constitutes the complete agreement between the parties and
supersedes all prior or contemporaneous agreements or representations, written or oral.
concerning the subject matter of this Agreement and such exhibits. This Agreement may not be
modified or amended except in writing signed by a duly authorized representative of each party.
No other act, document, usage or custom shall be deemed to amend or modify this Agreement.
9.9 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 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 he 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.
9.10 COMPLIANCE WITH LAWS. Notwithstanding any other provision of this Agreement, it
is expressly agreed and understood that in connection with the performance of this Agreement,
Bockyn 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
9
wage, workplace safety and legal status of employees. Without limiting the foregoing, Bockyn
hereby certifies, represents and warrants to the City that all of Bockyn'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. Bockyn 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
Bockyn to determine Bockyn's compliance with the provisions of this section. In the event the
City proceeds with such an audit, Bockyn shall make available to the City Bockyn's relevant
records at no cost to the City. Bockyn shall pay any and all costs associated with any such audit.
9.11 INTEREST. Bockyn hereby waives any and all claims to interest on money claimed to be
due pursuant to this Agreement, and 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, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as
amended(815 ILCS 205/1,et seq.).
EXECUTED BY:BOCKYN.
Signature:
Name: ' (-*/. 30ct�t
Title:
Date: '5 �% 14
EXECUTED BY:CI Y OF ELGIN
Signature: . A est:
Name: Sean R. Stegall
✓i �_ ..[/
Title: City Manager — y er
Date: _. June 22, 2016
I Legal Dept,Agreementt[.icctue Agr-Bockyn Softuare•MR6-5-17.16.dncx
10
EXHIBIT A
ORDER FORM
CITY NAME: City of Elgin
Date of Software License and Services Agreement
Number of Server Systems: Hosted
Maximum Number of Named Users: Unlimited
Designated System: Hosted Linux Server Farm
ORDERED PROGRAMS: Bockyn Recreation Management Software
NUMBER OF USERS OR SERVERS: Unlimited
Bockyn Online Management System
Unlimited
Bockyn Web Site
Unlimited
Implementation Process Addendum as attached hereto as Exhibit C
Bockyn Software Training
40 Hours of onsite training Included in Implementation (These hours are transferable from
month to month) Additional Training will be available by phone only with the maintenance
plan, if additional onsite training is required it will be billed at a rate of $80/hour + traveling
expenses.
TOTAL PROGRAM LICENSE FEES FOR THE PROGRAMS LICENSED HEREUNDER
Licensing Fees: $44.700.00
ONGOING MAINTENANCE FEES: $16,800.00 per year through December 31, 2019; and
thereafter as may be provided by written agreement of the parties hereto. If no such written
agreement has been executed prior to January 1, 2020, this Agreement shall terminate
immediately.
11
EXHIBIT B
BOCKYN MAINTENANCE OBLIGATIONS
1. DEFINITIONS.
A. "MAINTENANCE" shall mean Bockyn's obligations set forth in this
Agreement.
B. "MAINTENANCE AND SUPPORT PERIOD" shall mean the period of application use.
C. "MAINTENANCE AND SUPPORT" shall mean the maintenance and support services
set forth in this Agreement. If Bockyn increases its standard maintenance and support services
generally available to its Citys or distributors, Bockyn shall make such increased maintenance
and support services available to City of Elgin at the rate set forth herein.
D. "MAINTENANCE AND SUPPORT FEES" shall mean fees payable in accordance with
Section 2 of this Agreement.
E. "SUPPORT" shall mean the services set forth in Section 2 of this Agreement.
F. "SUPPORTED PROGRAMS" shall mean the Licensed Products.
2. MAINTENANCE. In consideration of the Maintenance Fees paid in accordance with this
Agreement, Bockyn shall provide City with any and all Updates to the Supported Programs,
promptly as such Updates become available. Bockyn shall provide all phone support to City's
end users as required. As soon as reasonably possible, Bockyn will provide City with a notice of
upgrades and updates with documentation of changes/fixes in advance of release.
3. SUPPORT.
A. STANDARD SUPPORT. Bockyn shall provide to City the Standard Support services set
forth below ("Standard Support") at a rate of$1,400/month. Standard Support shall consist of
support services consistent with the following support obligations:
Bockyn shall establish and maintain the organization and processes to provide Support for City.
Support shall include but not be limited to (i) a diagnosis of problems or performance
deficiencies of the delivered products and (ii) a resolution of problems or performance
deficiencies of the Supported Licensed Products. Bockyn shall provide Support on a prompt and
timely basis via both (1) phone support, and (2) Bockyn agrees to inform City in writing at least
quarterly of all known anomalies, including known bugs, that then exist in the Licensed Products
City of Elgin may, in its discretion, notify Bockyn of anomalies and bugs that it discovers or of
which it becomes aware. Bockyn will use its best efforts to cure, as described below, reported
and reproducible errors in the Licensed Products so that the Licensed Products operate as
specified in the Agreement. City recognizes tbur error levels.
12
SEVERITY I - Critical Business Impact. The production use of the Licensed Products are
stopped or so severely impacted that the City cannot reasonably continue work. Bockyn
will begin work on the error within one hour of notification and will engage development
staff until an acceptable work around is achieved.
SEVERITY 2 - Significant Business Impact. Important features of the Licensed Products
are unavailable with no acceptable workaround. The implementation of production use of
the Licensed Products is continuing but not stopped. However, there is a serious impact on
the City's productivity and/or service levels. Bockyn will begin work on the error within
two hours of notification and will engage development staff until an acceptable work
around is achieved.
SEVERITY 3 - Some Business Impact. Important features of the Licensed Products
unavailable but a workaround is available, or less significant features of the Licensed
Products are unavailable with no reasonable workaround. City's work, regardless of the
environment or product usage, has minor loss of operational functionality or
implementation resources. Bockyn will begin work on the error within a day of notification
and will engage development staff.
SEVERITY 4 - Minimum Business Impact. City of Elgin requests information, an
enhancement, or documentation clarification regarding the Licensed Products but there is
no impact on the operation of the Licensed Products. The implementation or production use
of the Licensed Products is continuing and there is no work being impeded at the time.
Bockyn will provide an initial response regarding the requested information or
documentation clarification within one week and will consider enhancements for inclusion
in a subsequent Update.
4. MAINTENANCE AND SUPPORT CONTINUITY. Maintenance and Support shall continue
as renewed by City at City's option. If City fails to pay any amount due pursuant to the terms set
forth above, and fails to cure such failure within (45) business days from receiving a notice of
such failure from Bockyn, Bockyn shall have the right to terminate Maintenance and Support to
City without any liability to Bockyn.
13
EXHIBIT C
Bockyn, LLC Implementation Schedule
Preparation Phase(Business Discovery)
I.Project Review (starts 5 business days after award) (June/July 2016)
i. Complete initial client interview and complete feature checklist for extended
features that are in Bockyn, LLC that are not defined in the RFP (2 days)
ii. Create a summary document to update the project requirements with the results
of our initial Project Review (3 days)
iii. Review summary with City and Sign-Off on final project definitions (2 days)
iv. Create a Finalized Work Plan(3 days)
II. Bockyn, LLC Software Modifications and Configuration (11 business days into
project)
i. Identify through a detailed Gap Analysis and review all updates to Bockyn,
LLC that may be required. (5 days)
ii. Complete each identified modification and configuration (estimated at 5 days
according to current RFP. may be revised)
iii. Test each updated configuration setting (estimated 5 days)
Implementation Phase (26 business days into project) (August/September 2016)
III. Account Setup and Configuration
i. Configuration of web files (2 days)
ii. Configuration of permission feature (2 days)
1V. Server Side Bockyn, LLC Software Installation
i. Installation of the Bockyn. LLC software (1 day)
ii. Database Integration with the Bockyn, LLC software (1 day)
V. Online Registration template design modifications
i. Assessment standard color and logo designs (1 day)
14
ii. Assessment of sort functions required for online registrants (1 day)
iii. Design of online registration interface colors scheme for approval (1 day)
iv. Approval of Design (2 days)
v. Implementation of Online Registration design (1 dap
VI. Implementation of Online Merchant Services and Gateway
vi. Implement Online Registration and Online Processing Gateway (1 day)
vii. Test Online Registration Processing (1 day)
VII. Initial Internal Testing of Server Solution (Starts—90 days after award)
i. Data entry testing of all BlueRec features (1 day)
ii. Verification of Security Functions (2 days)
VIII. Bockyn, LLC Hardware Integration—September 2016
i. Configuration and Verification of Bockyn, LLC software function at each
implementation location.
ii. Installation of pre-determined standard card printing, photo capture and
scanning technologies.
IX. Bockyn, LLC Implementation Testing(including card printers and scanners)
i. Testing of hardware function utilizing BlueRec
ii. Testing data entry through all onsite terminals
X. Bockyn, LLC Software Utilization Training—October/November
i. Provide Step by Step based manual
ii. `Drain designated trainers on the feature and utilization of BlueRec
XI. Bockyn, LLC Test Mode Data Entry on all Remote Sites—November/December
2016
i. Testing of all data entry features from all remote sites including online
registration.
15
ii. Verify that all facilities are working after test mode and complete a database
wipe for final launch preparations.
Final Implementation and Going Live—February, 2017
XII. Software Implementation Final Review
i. Review all tasks and their status, determine if there are any pending issues that
need to be completed before implementation (1 day)
ii. Notify all parties of scheduled implementation start date (1 day)
XIII. Software Implementation Sign-Off
i. Sign-Off on verification of all tasks completed with client (I day)
ii. Final implementation Launch and Go-Live-- March 1,2017
XIV. Review of live functionality
i. Complete User Satisfaction Surveys (1 week to complete)
ii. Submission of post Launch Issues (30 days after launch)
iii. Resolution of all follow-up problems (within 60 days of live date)
Timeline Notes:
I) The proposed work plan will need to be approved by City and is subject to modifications
as we have more opportunity to interface with city staff
?) Bockyn, LLC has submitted a plan with itemized tasks from installation 10 production.
This plan will need to be finalized with City staff.
3) Bockyn, LLC will work with City's project team in evaluating the existing business
process. Bockyn, LLC will likely be able to accommodate current process, if there is an
instance where Bockyn, LLC cannot accommodate existing processes, Bockyn, LLC will
provide an alternative process or solution to work around the existing process in Bockyn.
LLC.
16