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17-125 Resolution No. 17-125 RESOLUTION AUTHORIZING EXECUTION OF AN AG' EMENT WITH OXCART PERMITS SYSTEMS, LLC, FOR PERMI T FEE PROCESSING IN CONJUNCTION WITH THE OVERWEIGHT T'+UCK FEE INITIATIVE BE IT RESOLVED BY THE CITY COUNCIL OF HE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9)t e 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 CO CIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimbe ly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement on bel alf of the City of Elgin with Oxcart Permits Systems, LLC for permit fee processing in conjunction with the overweight truck fee initiative, a copy of which is attached hereto and made a part ereof by reference. s/ Day d J. Ka stain David . Kaptain, Mayor Presented: September 27, 2017 Adopted: September 27, 2017 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is hereby made and entered into his 27 day ofSeptember , 2017, by and between the CITY OF ELGIN, an Illinois municipal col oration(hereinafter referred to as "City") and OXCART PERMITS SYSTEMS, LLC, an Il inois limited liability corporation (hereinafter referred to as"Oxcart") (the City and Oxcart are sometimes collectively referred to as the "Parties). WHEREAS, the City desires to engage Oxcart to i rnish certain processing services relating to the permitting of overweight and oversized vehicles ithin the City(hereinafter referred to as the"Services")(any third party requesting over-dimensio and/or overweight vehicle permits from the City shall be referred to as the "Customer"); and WHEREAS, Oxcart represents that it is in compliance ith Illinois any applicable statutes relating to professional registration of individuals and has the necessary expertise and experience to furnish such Services in a workmanlike manner upon the t:rms and conditions set forth herein below. NOW, THEREFORE, it is hereby agreed by and betwoen the City and Oxcart that the City does retain Oxcart for and in consideration of the mutual prom'ses and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, to perform the Services as described herein, subject to the following terms and conditions and stip lations: 1. SCOPE OF SERVICES A. Attachment A, entitled "Scope of Services and A ditional Terms," is attached hereto and incorporated herein by this reference. B. All work hereunder shall be performed under the(1'rection of the Chief of Police of the City or his or her designee. C. Oxcart shall develop, establish, set up and maintai an internet application,which shall include but not be limited to the creation of onli e over-dimension and overweight vehicle permit applications and the processing of so id permit applications for the City, for the purposes of accepting over-dimension and overweight permit applications and the payment for such permits as set forth herein. D. A detailed Scope of Services is set forth in Attach ent A, Section 1, entitled "Oxcart Services." 2. WORK PRODUCT All work product prepared by Oxcart pursuant hereto i eluding,but not limited to,reports, plans, designs, calculations, work drawings, s dies, photographs, models and recommendations shall be the property of the City an. shall be delivered to the City upon request of the City;provided,however,that Oxcart ma retain copies of such work product for its records. Oxcart's execution of this Agreement s all constitute Oxcart's conveyance and assignment of all right, title and interest, includi g but not limited to any copyright interest,by Oxcart to the City of all such work product prepared by Oxcart pursuant to this Agreement. The City shall have the right either en its own or through such other consultants as determined by the City to utilize and/or amend such work product. Any such amendment to such work product shall be at thr sole risk of the City. Such work product is not intended or represented to be suitable fo reuse by the City on any extension to the Services or on any other Services, and such reus- shall be at the sole risk of the City without liability or legal exposure to Oxcart. 3. PAYMENTS TO OXCART A. As full and complete compensation for the Services to be provided hereunder, Oxcart shall asses a Service Fee to the Customer, in addition to the credit card payment processing fees, as provided in Section 1.xi of Attachment A. B. Such Service Fees shall be assessed based upon the cost of the permit applied for and as provided in the following Schedule: City Permit Fee Oxcart Fee $0.00 - $50.00 $5.00 flat fee $50.01 - $100.00 10% $100.01 - $200.00 $12.50 flat fee >$200.00 $15.00 flat fee C. All payments are final and Oxcart will not refund the Customer any monies collected through the credit card payment processor unless the payment was made in error or without authorization, the permit was issued in error or an error occurred which was directly attributable to Oxcart or the credit card payment processor, or the City requests a refund be processed through the credit card processor for an approved permit to which the credit card processor fee assessed to Oxcart will be deducted from the monthly payment to the City. Oxcart may elect to refund monies via check or ACH at its sole discretion, and the City reserves the right to internally issue City permit fee refunds to Customers through their finance department. Oxcart shall provide the City with notice of any payment that is in dispute. D. Once the transaction has been completed and all fees received from the credit card payment processor, Oxcart will not store or retain any Customer financial or credit information. - 2 - 4. PAYMENTS TO THE CITY Oxcart shall make payment to the City of the City s ermit fees collected by Oxcart as provided in Attachment A. 5. TERMINATION OF AGREEMENT Notwithstanding any other provision hereof,the City ay terminate this Agreement at any time for any reason upon fifteen (15) days prior writte notice to Oxcart without penalty. In the event that this Agreement is so terminated, 0 cart shall be entitled to retain the Service Fees collected by Oxcart prior to the effectiv: date of termination in accordance with Paragraph 3, above. Upon the effective date of t•rmination, any unapproved permit application which have been submitted to the City thro gh Oxcart will be forwarded to the City, and Oxcart shall pay to the City all City pe it fees due and owing to the City pursuant to the terms of this Agreement. Oxcart will s ownload and transmit all previous permit data to the City. 6. TERM The term of this Agreement shall commence on the da le first written above(the"Effective Date") and, unless terminated for cause or pursuant to Paragraph 5, shall terminate on the fourth anniversary of the Effective Date. This agree ent shall automatically renew for successive four-year terms unless either Party gives notice to the other of its intent not to renew at least sixty (60) days prior to the expiration of the initial term or any successive renewal terms. Upon the effective date of termination, any unapproved permit application which have been submitted to the City through Oxca will be forwarded to the City, and Oxcart shall pay to the City all City permit fees due a d owing to the City pursuant to the terms of this Agreement. Oxcart will download and ansmit all previous permit data to the City. 7. NOTICE OF CLAIM INTENTIONALLY OMITTED. 8. BREACH OF CONTRACT If either party violates or breaches any term of this • greement, such violation or breach shall be deemed to constitute a default, and the othc r party has the right to seek such administrative, contractual or legal remedies as may b suitable to the violation or breach; and, in addition, if either party,by reason of any defau t, fails within fifteen(15)days after notice thereof by the other party to comply with the co ditions of the Agreement,the other party may terminate this Agreement. Notwithstandin: the foregoing, or anything else to the contrary in this Agreement, with the sole exceptioi of an action to recover the monies the City has agreed to pay to Oxcart pursuant to Par:graph 3 hereof, no action shall be commenced by Oxcart against the City for moneta , damages. Oxcart hereby further waives any and all claims or rights to interest on mon:y claimed to be due pursuant to this - 3 - Agreement, and waives any and all such rights to inter•st which it claims it may otherwise be entitled pursuant to law, including, but not limite• to, the Local Government Prompt Payment Act (50 ILCS 501/1, et seq.), as amended, o the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The parties hereto furt er agree that any action by Oxcart arising out of this Agreement must be filed within one ear of the date the alleged cause of action arose or the same will be time-barred. The provi,ions of this paragraph shall survive any expiration, completion and/or termination of this greement. 9. INDEMNIFICATION To the fullest extent permitted by law, Oxcart agrees to and shall indemnify, defend and hold harmless the City, its officers, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, atto eys' fees, damages or other relief, including, but not limited to, workers' compensation claims, in any way resulting from or arising out of negligent actions or omissions of Oxca in connection herewith, including negligence or omissions of employees or agents of 0 cart arising out of the performance of this Agreement. In the event of any action against the City, its officers, employees, agents, boards or commissions, covered by the foregoing duty to indemnify, defend and hold harmless such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any expirati on, completion and/or termination of this Agreement. 10. NO PERSONAL LIABILITY No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision oi this Agreement or because of their execution, approval or attempted execution of this Ag eement. 11. INSURANCE Oxcart shall carry Professional Liability Insurance covering claims resulting from error, omissions or negligent acts with a combined single li it of not less than $1,000,000 per claim. A Certificate of Insurance shall be submitted uo the City as evidence of insurance protection. The policy shall not be modified or termi ated without thirty (30) days prior written notice to the City. 12. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide o ccupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms o f compensation and selection for training, including apprenticeship. - 4 - • No person shall be denied or subjected to discriminat on in receipt of the benefit of any services or activities made possible by or resulting fro this Agreement on the grounds of sex,race,color, creed,national origin, age except mini urn age and retirement provisions, marital status or the presence of any sensory, mental o physical handicap. Any violation of this provision shall be considered a violation of a ms terial provision of this Agreement and shall be grounds for cancellation, termination or su.pension, in whole or in part, of the Agreement by the City. 13. ASSIGNMENT AND SUCCESSORS This Agreement and each and every portion thereof s all be binding upon the successors and the assigns of the parties hereto; provided, however , that no assignment shall be made without the prior written consent of the City. 14. DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and Oxcart s all remain liable to the City with respect to each and every item, condition and other pro ision hereof to the same extent that Oxcart would have been obligated if it had done t e work itself and no assignment, delegation or subcontract had been made. Any prsposed assignment, delegation, or subcontracting shall require the City's advanced written approval. 15. NO CO-PARTNERSHIP OR AGENCY This Agreement shall not be construed so as to c eate a partnership, joint venture, employment or other agency relationship between the sarties hereto. 16. SEVERABILITY The parties intend and agreed that, if any paragraph, sus-paragraph,phrase, clause or other provision of this Agreement, or any portion thereof, s n all be held to be void or otherwise unenforceable, all other portions of this Agreement sh.11 remain in full force and effect. 17. HEADINGS The headings of the several paragraphs of this Agree ent are inserted only as a matter of convenience and for reference and in no way are they ntended to define, limit or describe the scope of intent of any provision of this Agreement, or shall they be construed to affect in any manner the terms and provisions hereof or the i erpretation or construction thereof. 18. ENTIRE AGREEMENT- MODIFICATION OR A ENDMENT This Agreement and its attachments constitutes the en ire Agreement of the parties on the subject matter hereof and may not be changed,modifies, discharged or extended except by written amendment duly executed by the parties. I o the extent there is any conflict - 5 - between the provisions of this Agreement and the provisions of any attachments hereto, the provisions of this Agreement shall control. Each I arty agrees that no representations or warranties shall be binding upon the other party unl ss expressed in writing herein or in a duly executed amendment hereof, or change order a• herein provided. 19. APPLICABLE LAW This Agreement shall be deemed to have been rn,,de in, and shall be construed in accordance with the laws of the State of Illinois. Ven e for the resolution of any disputes or the enforcement of any rights pursuant to this Agri ement shall be in the Circuit Court of Kane County, Illinois. 20. NEWS RELEASES Oxcart may not issue any news releases without prior .pproval from the City, nor will the Oxcart make public proposals developed under thi' Agreement without prior written approval from the City prior to said documentation be oming matters of public record. 21. COOPERATION WITH OTHER CONSULTANT. Oxcart shall cooperate with any other consultants 'n the City's employ or any work associated with the Services. 22. SEXUAL HARASSMENT As a condition of this contract, Oxcart shall have wri en sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing e samples; D. the vendor's internal complaint process includ ng penalties; E. the legal recourse, investigative and compl.int process available through the Illinois Department of Human Rights, and the llinois Human Rights Commission; F. directions on how to contact the department a d commission; G. protection against retaliation as provided by 'ection 6-101 of the Human Rights Act. A copy of the policies shall be provided by Oxcart to the Department of Human Rights upon request 775 ILCS 5/2-105. - 6 - • 23. NOTICES All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: A. As to the City: With a c•py to: Chief of Police Corporation Counel Elgin Police Department Legal De.artment City of Elgin City of E gin 151 Douglas Avenue 150 Dext-r Court Elgin, Illinois 60120-5555 Elgin, Illi ois 60120-5555 B. As to Oxcart: Bryce Baker David W irdhouse COO/Member CISO/M:mber Oxcart Permit Systems Oxcart P:rmit Systems 440 W. Colfax, Suite 2384 440 W. •olfax, Suite 2384 Palatine, IL 60078 Palatine, I L 60078 24. COMPLIANCE WITH LAWS Notwithstanding any other provision of this Agre•ment it is expressly agreed and understood that in connection with the performance o f this Agreement that Oxcart shall comply with all applicable federal, state, city and othe requirements of law, including,but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Wit out limiting the foregoing, Oxcart hereby certifies, represents and warrants to the City hat all Oxcart's employees and/or agents who will be providing products and/or services ith respect to this Agreement shall be legally authorized to work in the United States. 0 cart shall also at its expense secure all permits and licenses,pay all charges and fees and gi e all notices necessary and incident to the due and lawful prosecution of the work, and/o i the products and/or services to be provided for in this Agreement. The City shall have he right to audit any records in the possession or control of Oxcart to determine Oxcart'• compliance with the provisions of this paragraph. In the event the City proceeds wit such an audit Oxcart shall make available to the City Oxcart's relevant records at no c e st to the City. Oxcart shall pay any and all costs associated with any such audit up to $901. 25. 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 Agree ent. For the purposes of executing this Agreement, any signed copy of this Agreement tri nsmitted by fax machine or e-mail shall be treated in all manners and respects as an origi al document. The signature of any - 7 - party on a copy of this Agreement transmitted by fax m.;chine or e-mail shall be considered for these purposes as an original signature and shall hav e the same legal effect as an original signature. Any such faxed or e-mailed copy of this Agieement 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-execut:d by the parties in an original form. No party to this Agreement shall raise the use of fax mJ chine or e-mail as a defense to this Agreement and shall forever waive such defense. 26. JURISDICTION Oxcart hereby irrevocably consents to the jurisdiction e f the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolu lion of any disputes and/or for the purposes of any lawsuit brought pursuant to this Agre•ment or the subject matter hereof; and Oxcart agrees that service by first class U.S. mail to the entity and address provided for herein shall constitute effective service. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Agreement effective as of the date and year first written above. FOR THE CITY OF ELGIN: FOR OX I ART IERMITS SYSTEMS,LLC: B L By: _ � City Manager Name: B - ' , er Title: CO•/Member Attest: A.A /L/ City Clerk - 8 - ATTACHMENT A SCOPE OF SERVICES - 9 - Scope of Services and Additi nal Terms 1. Oxcart Services. Oxcart shall develop, establish, set up and main gain an internet application ("City web page"), which shall include but not be limit:d to the creation of online over- dimension and overweight vehicle permit applica ions and the processing of said permit applications, for the City for the purposes pf accepting over-dimension and overweight vehicle permit applications and paym-nt for such permits as set forth herein,which shall be referred to as the "Service." i. All Services provided by Oxcart shall be conducted and accomplished in a professional and workmanlike manner. ii. The Service will be made available per the provisions of Section 9, below. iii. The Service will allow for the acceptance a d processing of over-dimension and overweight vehicle permit applicatio s as authorized by the City's Municipal Code. iv. The Service will be hosted using computer -ervers contracted by Oxcart. v. Oxcart reserves the right to change compu er servers and computer server hosting providers at any time with notice du ing the term of this Agreement. vi. Oxcart reserves the right to update code -nd/or security measures at any time without notice during this agreement. Oxcart will maintain a Security Incident Response plan which will be made available to the City for review. vii. The content of the City web pages within the Service shall be dedicated solely to the City. The content of such pages shall include but not be limited to: 1. Application fields necessary to receive pay for, and process a permit. 2. Maintain user information and icons representative of the City. 3. Automated permits, in which permits do not need to be reviewed by City, and non-automated permits, in which permits must be reviewed by City, as directed by the City. viii. The online over-dimension and overweight ehicle permit application will be based upon and processed according to the requirements of the City's Code. ix. The Service shall provide the City and Customers with an unlimited number of free user access accounts with which to pply and pay for the issuance of over-dimension and overweight vehicle per its. x. Oxcart shall process all permit applications (both automated and non- automated). Upon receipt of an automate• permit application, Oxcart shall within the time limit set forth in Section 9, pelow, contact the Applicant with information regarding the approval, denial, .r approval with pre-programmed conditions of the permit, and, upon approval, collect payment for City permit fees and any other applicable fees, and iss e the permit. Upon receipt of a non-automated permit application, Oxcart s all within the time limit set forth 1 in Section 9, below, provide the City with all in ormation necessary for the City to review, approve or deny, or establish condi ions under which the permit will be granted. Upon the City's review of a no -automated permit application, Oxcart shall contact the Applicant with info mation regarding the approval, denial, or approval with conditions of the per it, and, upon approval, collect payment for City permit fees and any other applicable fees, and issue the permit. xi. All payments shall be accepted utilizing an integrated credit card payment processor to accept online payments for the 4 ity. In addition to the City permit fee, for each transaction, the credit card pa ment processor will assess the Customer with a fee calculated on the sum of the total of the maximum City permit fee and the Oxcart Service Fee, plus .n additional service fee for each transaction. Payment in full of the City per it fee, the credit card payment processor fee, the transaction fee and the Ox art Service Fee will be required in order for the Customer to access the approved permit. 1. Oxcart does not set the credit care payment processor fees or transaction fees, which are subject to c ange at any time without notice. As of the effective date of this Agreeme t, the payment processor fee is 2.9% of the calculated sum of the total of the maximum City permit fee and the Oxcart Service Fee, plus a $.30 per transaction fee. Oxcart shall promptly notify the City of changes to these rates as soon as Oxcart becomes aware of the rate change. 2. Upon change of credit card payment processor fees, Oxcart shall update the City web application to reflect the n:w rates and notify the City of the change. 3. Oxcart reserves the right to change cr:dit card payment processors at any time with notice to the City. xii. City permit fees shall be collected by Oxcart i accordance with the provisions of the City's Code. xiii. On or before the tenth business day of eac month, Oxcart shall transfer to the City through ACH direct deposit or bill pa ment system through the United States Postal Service, as directed by the ity, all City permit fees for all approved permits for the preceding calenda month. All City permit fees shall be paid in full by Oxcart each month to th- City. In addition, by the tenth business day of each month, Oxcart shall tr.;nsmit by email or United States Postal Service, as directed by the City, a report providing the name, address, date of payment, date of permit issuance -nd City permit fee collected for each permit approved and issued. Such report shall be sent as provided in Section 8 herein. 2 xiv. Oxcart will not disseminate any phone num sers, email addresses or other personal information of Customers other Shan what is displayed on an approved permit. xv. Oxcart shall maintain permit data for online a cess by the City for a minimum of ninety (60) calendar days and allow the C ty to download City permit data during this time. Oxcart shall maintain the •ity's permit data for a period of seven (7) years. xvi. Oxcart shall maintain complete and accurat- books, records and accounts showing the permits issued and its billings '•r the City permit fees and the permit services provided to the City and the :mount collected for City permit fees. Such books and records shall be mad- available for examination and audit by the City at any time during business hours upon request. xvii. Notwithstanding anything to the contrary in he foregoing, Oxcart is free to upgrade and modify its network, application, and backup infrastructure pursuant to a Systems Maintenance policy hich will be available to the City for review. xviii. Oxcart may choose to add standard features and upgrades to the application at no additional charge to the City or Custo er. Oxcart reserves the right to add proprietary premium features for Custo ers at an additional cost to the Customer. xix. Oxcart is free to market the Service to other organizations, municipalities, and customers without exception or exclusion :xcept at the sole discretion of Oxcart. 2. Oxcart Representations and Warranties. Oxca represents and warrants to City that: i. It holds all necessary third party gover ment rights, including without limitation all intellectual property rights to ani and all applications needed to provide the Service; ii. It maintains commercially reasonable electr•nic security to protect Customer information from third party intrusion; iii. It has full power and authority to enter i to and fulfill the terms of this Agreement and it has not entered and will not enter into any agreements or activates that will or might interfere or conflist with the terms hereof; iv. In performing its obligations hereunder, it .hall comply with all applicable laws, rules and regulations of any federal or state regulatory body that has jurisdiction over its activities hereunder. 3 3. City Representations and Warranties. The Ci y represents and warrants to Oxcart that: i. It shall encourage all Customers to apply for oversize and overweight vehicle permits using the City web page developed .y Oxcart. However, the City is free to maintain an internal system of issuing oversize and overweight permits as it deems necessary, in its sole discretion. ii. It will inform Oxcart of any technological diff culties with the City web page and the Service as soon as reasonably practicable; iii. It will take reasonable steps to approve on-automated permits for the Customer within twenty-four (24) hours, on normal business days, of receipt of the permit application from Oxcart except i cases of permits for extremely large or heavy vehicles which require rou e studies, surveys or special engineering; iv. It shall provide Oxcart with all pertinent information and ordinances necessary to adequately set-up and maintain the City web page and the Service as requested by Oxcart. It shall be the duty of th- City to update Oxcart with any changes or modifications to the permit requir-ments or permit structure; v. It shall provide Oxcart with the names, email addresses and phone numbers of any City personnel who will be administr.tively accessing the application on behalf of the City; vi. It has full power and authority to enter into and fulfill the terms of this Agreement and it has not entered and will not enter into any agreements or activities that will or might interfere or conflic with the terms hereof. 4. Confidentiality. Oxcart and the City shall each ho d in confidence and not disclose (except on a confidential basis to its employees w o need to know) all Proprietary Information received from the other Party, and shall not use any such Proprietary Information except for the purposes contemplated by this Agreement. Either Party shall promptly report to the other any unautho ized disclosure of use of any Proprietary Information of the other Party of which it becomes aware and shall take such further steps as may reasonably be request-d by the other Party to prevent unauthorized use thereof. As used in this Agreement, "Proprietary Information" shall mean with respect to the City all confidential and proprietary information, i cluding but without limitation, all customer, contact, payment, data, and files cover-d by this Agreement. In addition, Proprietary Information shall include all data an. other information or material, owned, possessed or used by either Oxcart or the City which is at any time so designated by such Party in writing, whether by le ter or by the use of a proprietary stamp or legend, prior to the time any such Propr etary Information is disclosed to the other Party. In addition, information which is •rally disclosed to the other Party 4 shall constitute Proprietary Information if identifie. as such at such time and if within 10 days after such disclosure the disclosin• Party delivers to the receiving Party a written document describing such Propriet;ry Information and referencing the place and date of such oral disclosure and the name of the employees of the Party to whom such disclosure was made. "Pr.prietary Information" does not include information already known to the public or i formation subject to disclosure under the Illinois Freedom of Information Act. Notwithstanding the foregoing, this confidentialit, obligation shall not apply to information if Oxcart or the City receives a validly ssued administrative or judicial order, warrant or other process requiring disclosur- of Proprietary Information or if Oxcart or the City is otherwise required to disclose Proprietary Information in order to comply with any law. Each Party agrees that, in addition to any other re edies to which a Party may be legally entitled, a Party may seek immediate inj nctive relief in the event of a breach or threatened breach of this Section 4 suc by the other Party or any of the other Party's employees. 5. Disclosure. Oxcart and the City may notify existing and pros•ective customers that the City online permit application system is provided by 0 cart. 6. Independent Contractors. Oxcart is and shall be considered an independent contractor of the City and neither Oxcart nor i is officers, directors, agents or employees shall be deemed to be an agent, emp oyee or joint venture partner of the City, nor shall this Agreement be interpreted .s creating a partnership or joint venture between the Parties. Oxcart shall be sol-ly responsible for the payment of salary, payroll taxes, benefits and worker's ompensation insurance for its employees. 7. Survival. Notwithstanding anything in this A.reement to the contrary, the representations and indemnification obligations of the Parties, the disclaimer of warranties, the limitation of liabilities, the indepe dent contractor status and the governing law and venue provisions and this s rvival section shall survive any termination of this Agreement and remain binding upon the Parties. 8. Freedom of Information Act. Oxcart understano s and agrees that the City, as a public body, is subject to and obligated to comply with the Freedom of Information Act, 5 ILCS 104/1 et seq., (FOIA) and certain information with respect to the 5 Service provided hereunder may be subject to dis•losure in whole or in part under FOIA. Oxcart acknowledges the requirements of OIA and agrees to comply with all requests made by the City for public records (a that term is defined by Section 2(c) of FOIA) in Oxcart's possession and provide he requested public records to the City within two (2) business days of the request being made by the City. Oxcart agrees to indemnify and hold harmless the City rom all claims, costs, penalty, losses and injuries (including but not limited to, attorneys' fees, other professional fees, court costs and/or arbitration or other disputa resolution costs) arising out of or related to its failure to provide the public r-cords to the City under this Agreement. 9. Service Level. Oxcart will use commercially r:asonable efforts to make the Service available 24 hours a day, 7 days a wee Down time is defined as the period of time over which the City and/or Customers is unable to access the Service due to a failure of Oxcart's application. Scheduled maintenance will be performed from time to time as determined by written and available Oxcart policy which may result in the Application being inaccessible to the City and/or Customers. Such si heduled maintenance activates are not considered down time. Care will be taken to minimize impact to the Service during normal business hours, considered as Mo day through Friday 7:00 AM to 6:00 PM Central Standard Time. Information regarding the approval, denial, or :pproval with pre-programmed conditions of a new automated permit application will be sent by Oxcart to the Customer via email within one (1) hour of su o mittal of the Application. Non- automated permit applications will be sent by Oxi art to the City for review by the City via email within four (4) hours of submission by the Customer within the Application. Upon the City providing Oxcart information regarding the approval, denial, or approval with conditions of the non-auto ated permit, Oxcart will provide said information to the Customer via email within our (4) hours. The following items or situations are exempt from the availability service level commitment: • Down time resulting from issues with the Ci y's and/or Customer's networks, hardware, or software. • All internet connectivity and infrastructure 'ssues/failures not attributable to Oxcart's facilities or equipment. • Service or availability issues related to malicious behavior by the City or any of its employees, agents or Customers. 6 • Attacks by third parties (hacks, viruses, etc.) provided that Oxcart has made all reasonable efforts to defend against such attacks. • Events of force majeure, including acts of war, earthquake, flood, acts of God, etc.