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R-1184 - 06/12/2012 - AGREEMENT - ResolutionsRESOLUTION 2012- AG- ITECH - ADJUD -EX2 -R -1184 A RESOLUTION APPROVING THE WAIVER OF COMPETITIVE BIDDING AND AUTHORIZING THE EXECUTION OF AGREEMENTS FOR THE PURCHASE OF VEHICLE PARKING AND LOCAL CODE ENFORCEMENT SOFTWARE AND FINE COLLECTION SERVICES WHEREAS, the Village of Oak Brook ( "Village ") purchased software from Municipal Systems, Inc. ( "MSI ") to more efficiently administer the Village's adjudication of vehicle towing ( "Towing Software"); and WHEREAS, the use of the Towing Software has resulted in more efficient operations and savings for the Village; and WHEREAS, the Village desires to use similar software to improve the administration of enforcement of other local ordinance violations including, but not limited to, vehicle parking violations ( "Adjudication Software "); and WHEREAS, MSI's software has met or exceeded the Village's expectations, there are only a few vendors that offer similar Adjudication Software products, and Village staff have reviewed the products offered by other vendors and believe that MSI's Adjudication Software is superior to other similar products; and WHEREAS, the Village's Police Chief recommends that the Village waive competitive bidding for Adjudication Software and enter into an agreement to purchase Adjudication Software from MSI ( "Software Agreement "), attached hereto as Exhibit A; and WHEREAS, MSI has partnered with Violations Payment.Com, Inc. ( "VPCI") to allow for people to pay their tickets and fines online by credit card ( "Payment Collection Services'l; and WHEREAS, the Village and VPCI desire to enter into an agreement for VPCI to provide the Village Payment Collection Services ( "Payment Agreement"), attached hereto as Exhibit B; and WHEREAS, the President and Board of Trustees, being fully advised in the premises, have determined that it is in the best interests of the Village and its residents to: (i) waive competitive bidding for Adjudication Software; (ii) waive competitive bidding for Payment Collection Services; (iii) approve the Software Agreement; and (iv) approve the Payment Services Agreement; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Waiver of Competitive Bidding Requirements. The advertising and bidding requirements for the purchase of Adjudication Software and Payment Collection Services shall be, and they are hereby, waived in accordance with Section 1 -7-4 of the Village Municipal Code. Section 3: Approval of Agreements. The President and Board of Trustees hereby approve the Software Agreement and the Payment Collection Agreement as attached in substantially the same forms as attached as Exhibit A and Exhibit B, and in final forms approved by the Village Attorney. Resolution 2012 -AG- (TECH- ADJUD -EX -R -1184 Approving Agreements - Purchase Of Vehicle Parking & Local Code Enforcement Software And Fine Collection Services Page 2 of 4 Section 4: Execution of Agreements. The Village President and the Village Clerk shall be, and are hereby, authorized to execute the final Software Agreement and Payment Agreement on behalf of the Village. Section 5: Effective Date. This Resolution shall be in full force and effect from and after its passage by two- thirds of the Trustees and its approval in the manner provided by law. APPROVED THIS 12th day of June, 2012 Gopal G. Lalmalani Village President PASSED THIS 12' day of June, 2012. Trustees Aktipis, Manzo, Moy, Wolin, Yusuf and Zannis None ATTEST: 4 A,4-,-�j Charlotte K. Pruss Village Clerk Resolution 2012 -AG- ITECH - ADJUD -EX -R -1184 Approving Agreements - Purchase Of Vehicle Parking & Local Code Enforcement Software And Fine Collection Services Page 3 of 4 EXHIBIT A Resolution 2012 -AG- ITECH - ADJUD -EX -R -1184 Approving Agreements - Purchase Of Vehicle Parking & Local Code Enforcement Software And Fine Collection Services Page 4 of 4 EXHIBIT B STANDARD TERMS AND CONDITIONS For The IMPLEMENTATION OF AN MUNICIPAL OFFENSE SYSTEM HEARINC SYSTEMS WITHIN THE lipliq IIIIII, I'' I III 1111111RIIII II'll P.'.& '. I � I 111 PR ON: June 6, 2,DIZ (94"alacepted, Offer aXpines 6o dWfMmtheabme Presentatba Date) PRESENTED BY Mwoc"lSysterns.Inc. 733,o �Ce O •8 Palos,HeW*t IL005 STANDARD TERMS AND CONDITIONS (Municipal Ordinance Violation Enforcement and Municipal Offense System) Municipal Systems, Inc. This Agreement made and entered into this tC% day of zoby and between Municipal Systems, Inc., an Illinois corporation with principal offices situated at 33o College Dr., Suite 1o8, Palos Heights, IL 60463, (hereinafter referred to as MSI), and Village of Oak Brook, IL an incorporated Municipality of the State of Illinois with Village offices situated at 1200 Oak Brook Rd, Oak Brook, IL (hereinafter referred to as "THE MUNICIPALITY "). WITNESSETH WHEREAS, the Legislature of the State of Illinois has enacted certain statutes, allowing a municipality to exercise enforcement power including but not limited to, all locally established ordinance violations and Parking and Compliance violations. WHEREAS, the Legislature of the State of Illinois has enacted statutes allowing a municipality to establish a system of administrative hearings for violations of ordinances and regulations concerning its "Code "; and WHEREAS, THE MUNICIPALITY is incorporated under the Laws of the State of Illinois and empowered under these statutes to enact ordinances and regulations, impose fines for violations thereof and to establish a system of administrative hearings for violations of ordinances and regulations; and WHEREAS, THE MUNICIPALITY desires to implement its authority under 65 ILCS 5/1 -2.1 and 625 ILCS 5h+- 208.3 WHEREAS, MSI has the knowledge, experience and expertise as well as computer software to assist THE MUNICIPALITY in implementing an effective administrative hearing system; and WHEREAS, it is contemplated THE MUNICIPALITY will generate additional revenues and compliance through an effective administrative hearing system, NOW, THEREFORE, in consideration of the mutual and several promises and covenants herein contained, the parties do hereby agree as follows: ARTICLE I General Terms t.oi THE MUNICIPALITY agrees to utilize MSI as the exclusive provider of the service and computer software for the implementation of an administrative hearing system (the "System ") for the adjudication of Code violations as allowed by State Statutes and to pay MSI in accordance with the terms and conditions hereinafter set forth. 1.o2 MSI agrees to provide specified services and computer software to THE MUNICIPALITY in accordance with the terms and conditions hereinafter set forth. 1.0; The term of this Agreement shall commence on the first day set forth above and shall continue until the end of the thirty -sixth billing month, as that term is defined in this Agreement. Unless written notice of termination is given by either party to the other at least ninety (go) days prior to expiration of the initial term or any extended term, this Agreement shall remain in effect for additional extended terms of twelve (12) months. ARTICLE 11 Terms and Conditions 2.o1 For and in consideration of payments to be made by THE MUNICIPALITY as described in ARTICLE 111 of this Agreement, MSI agrees to provide: 2.01.1 COMPUTER SOFTWARE (the "Software "): as more particularly set forth herein: 2.om.1LICENSE: In consideration of the software license below, MSI grants to THE MUNICIPALITY a non - exclusive, non - transferable license to use the object code for the standard or network program identified below. THIS LICENSE IS NOT TRANSFERABLE TO ANY OTHER PROCESSOR NOR MAY IT BE SUBLICENSED WITHOUT WRITTEN AUTHORIZATION FROM MSI. LICENSING $P - P,ROG „Munici ce Vlolatl r1t =. Web Bas -� ,OL' }r t (MOS) Municipal Offense System Web Based OLV 2.01.1.2 WARRANTY: MSI warrants, that during the term of the Agreement and any extended term, the software supplied hereunder will perform substantially in accordance with the representations set forth in this Agreement and the Software's System Users' Manual. Should the software fail to meet those requirements, MSI shall replace the defective software. This warranty shall not cover software errors or nonconformities resulting from (1) modifications of the software by THE MUNICIPALITY or a third party, (ii) THE MUNICIPALITY's negligence or fault, (iii) hardware malfunction, or (iv) THE MUNICIPALITY's failure to use the System for its intended purpose. MSI EXPRESSLY DISCLAIMS ANY WARRANTY. EXPRESS OR IMPLIED. OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW MSI SHALL NOT BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL OR SECONDARY DAMAGES MSI'S ONLY OBLIGATION HEREUNDER ISTO REPLACE DEFECTIVE SOFTWARE 2.01.1.3 UPGRADES: Software upgrades to the program or programs provided under the terms of the Agreement shall be provided to THE MUNICIPALITY at no additional cost when those upgrades are made available generally to MSI's customers. New programs are not considered an upgrade and may be offered at an additional cost. Failure of THE MUNICIPALITY to accept upgrades when offered will void MSI's obligation to provide support services as required in Article 2.01.3. 2.01.2 TRAINING: Training for employees of THE MUNICIPALITY as may initially be required to allow said employees to operate the computer software supplied by MSI as specified below: 2.01.2.1 If during the period of this Agreement or any extended term, THE MUNICIPALITY requests additional training, or training after initial implementation of the System, MSI will charge THE MUNICIPALITY at the current hourly rate as specified for training in Article 2.01.3 below. The rates are valid for the initial 36 month term of this Agreement. Thereafter, the then prevailing current rates as established by MSI shall apply. 2.01.3 SUPPORT to THE MUNICIPALITY for the specified software in this Agreement shall include those services necessary to cause said software to perform in conformance with the warranty provided for in Article 2.01.1.2. In the event that service is provided for what is determined to be a problem which is not covered by the warranty, THE MUNICIPALITY shall pay for the services rendered as an extra cost according to the rates set forth in Article 2.01.3.1: Software warranty support costs during the initial term of this Agreement and any extended term are covered by the monthly compensation as set forth in Articles III and IV, below. Costs for support services not covered by warranty and any additional services requested by THE MUNICIPALITY shall be charged in accordance with the following, during the initial term and at MSI's then prevailing rates during any extended terms. DESCRIPTION OF SERVICES COST i. Customer Telephone Support $125.00 per hour Free for go days from Billed in 15 minute increments 2. On -Site Customer Assistance $125.00 per hour $.75 cents per mile round trip 2.01.3.2 Initial installation shall include installation of the software on current network nodes designated to use MSI software. Installation of additional nodes, past the initial installation set -up shall be an extra cost and provided in accordance with the rates set forth in Article 2.07.3.1. 2.01.4 SOFTWARE SYSTEM USERS' MANUALS, sample forms and reports 2.01.5 SPECIFICATIONS FOR SUPPLIES needed or required, it being understood that THE MUNICIPALITY need not purchase supplies from or through MSI, but any supplies obtained from sources other than MSI or MSI designated suppliers must meet all specifications as are set forth by MSI. 2.01.6 MSI COVENANTS AND WARRANTS that it has the full power and authority to license the use of the computer software set forth in subsection (1) above. 2.01.7 ENVIRONMENTAL SOFTWARE necessary to operate the program software 2.02 For and in consideration of MSI providing THE MUNICIPALITY with the afore stated services and computer software, THE MUNICIPALITY hereby covenants and warrants that it will: 2.02.1 ENACT A MUNICIPAL ORDINANCE providing for the regulation of Code violations within the geographical boundaries of THE MUNICIPALITY as allowed by IL State Statutes, and the assessment of fines and other sanctions for such Code violations. 2.02.2 ENACT A MUNICIPAL ORDINANCE providing for the establishment of a system of administrative adjudication of Code violations under 65 ILCS 511-2.1 and Parking and Compliance violations under 625 ILCS 5111 -208.3 or any other applicable Law, within the geographical boundaries of THE MUNICIPALITY. Should MSI update or change the software which it provides, and THE MUNICIPALITY does not adopt necessary amendments to its ordinance, or THE MUNICIPALITY adds violation areas not supported by MSI's software, MSI shall not be responsible for support services or any deficiencies in the administrative adjudication system caused by inconsistencies between the ordinance and the software. 202.3 MANAGE ITS SYSTEM'S FIREWALL settings to allow access to the remote web database by its personal computers and workstations. MSI shall have no liability or responsibility resulting from the Municipality's failure to properly manage said firewall settings. 2.02.4 PROVIDE SUFFICIENT PERSONNEL, as maybe required to operate and/or manage the System 2.02.5 PURSUE THE ENFORCEMENT of the Code within the geographical boundaries of THE MUNICIPALITY. 2.02.6 PURSUE THE COLLECTION of sanctions and fines assessed pursuant to an applicable Law. Should THE MUNICIPALITY not collect the imposed fines, or other sanctions, within go days of the issuance of the citation, or other required notice, the pursuit of the collection of fines shall be through the use of a commercial collection service. 2.02.7 COMPENSATE MSI FOR the use of the System, during the term of this Agreement. 2.02.8 The Municipality understands and agrees that the Software is "web- based ", and that all of the Municipality's access to and storage of its data relative to the use of the Software for its Administrative Hearing System shall be through a website procured by MSI. Therefore, the Municipality must have high speed (not dial -up) access to the internet; and must have computer software and hardware which meet the following minimum specifications: Client: Windows 2000 SP 4 or highertWindows XP SP 2 or higher/Windows Vista, Windows 7. RAM: Windows 2000jXP - 512 MB or higher. Windows Vista 1GB or higher. Broadband: DSLorhigher. Note: Failure to meet the above minimum hardware requirements by THE MUNICIPALITY will void the MSI warranty for the Software as more particularly set forth in Article 2.01.1.2 above ARTICLE III Compensation 3.01 THE MUNICIPALITY agrees to make a monthly payment of: to MSI for installation of software, initial training, software license, warranty, and support, as set forth in Article 2.01, for period of 36 billing months, as that term is defined below. 3.01.1 Once MSI performs its obligation to install the software necessary to begin operation of the System, the obligation of THE MUNICIPALITY to pay the Monthly Amount shall commence. Any Monthly Amounts paid by THE MUNICIPALITY prior to the commencement of the billing months shall not affect the length of the term of this Agreement. 3.01.2. Billing for extra services provided to THE MUNICIPALITY shall occur at the end of the month in which they are rendered and shall be due with that month's monthly amount or extension monthly amount, as the case may be. 3.01.3 Payments to MSI shall be due not later than 45 days after the last day of each month for which a payment is due. A late payment of 1.0% per month shall be added for any amount remaining unpaid after the 45th day. 3.01.4 In the event that THE MUNICIPALITY is under contract with Municipal Collection Services, Inc. ( "MCSI ") for collection of overdue fines for violations processed through the system, the revenues collected by MCSI shall not be subject to a percentage of revenue payment to MSI that is set forth above. ARTICLE IV Software License; Extension 4.01 In the event that THE MUNICIPALITY chooses to extend the term of the Agreement for one or more 12 month periods, the terms of payment as set forth in Article III, above shall remain as follows: 4.01.1 Such payments shall be timely and THE MUNICIPALITY acknowledges and agrees that continued use of the software or the providing of services without prompt payment therefore is a violation of the license to use the software. ARTICLE V Termination 5.01 THE MUNICIPALITY acknowledges and agrees that MSI will have substantially performed its initial obligations under this Agreement upon the installation of the computer software system within facilities of THE MUNICIPALITY and the completion of training for designated municipal employees. 5.02 It is agreed that THE MUNICIPALITY may terminate this Agreement upon written notice to MSI of its non - compliance with the terms of this Agreement and upon MSI's failure to cure the default (non - compliance) within thirty (3o) days of the date written notice is received from THE MUNICIPALITY. In the event THE MUNICIPALITY terminates the Agreement due to MSI's failure to cure the default, no further payments past the effective date of termination will be due to MSI. 5.03 In addition to any other remedies of MSI hereunder or under applicable law, MSI may terminate this Agreement upon written notice to THE MUNICIPALITY of its non - compliance with the terms of the Agreement and upon THE MUNICIPALITY's failure to cure the default (non - compliance) within thirty (3o) days of the date written notice is received from MSI. MSI's termination of this Agreement shall not affect any other rights or remedies of MSI, including the right to bring an action for unpaid amounts due hereunder, actions for injunctive relief and actions for damages incurred by MSI as a result of any breach of this Agreement by THE MUNICIPALITY. 5.04 Upon termination of this Agreement, the License shall terminate and the System and all software and other intellectual property comprising the System, including all upgrades and modifications thereto and all information and ideas which are of value primarily in connection with this System shall be immediately returned to MSI by THE MUNICIPALITY. ARTICLE VI Software Use and Authorization 6.o1 THE MUNICIPALITY is granted a license to use the Software set forth in Article II only so long as THE MUNICIPALITY complies with the terms of this Agreement. 6.02 THE MUNICIPALITY further covenants and warrants not to in any manner, directly or indirectly, copy, convey, transfer or allow the unauthorized use of any of the Software for which a license use is granted under this Agreement. Any such action or attempted action on the part of THE MUNICIPALITY shall be sufficient grounds for MSI to obtain equitable relief preventing same, without bond or notice to THE MUNICIPALITY. 6.03 If THE MUNICIPALITY does not make the payments required by this Agreement, all software used under the terms of this Agreement shall be returned immediately to MSI. Failure to return the software shall be sufficient grounds for MSI to obtain equitable relief without bond or notice to THE MUNICIPALITY to effect return thereof. The System, all software, object codes, source codes, upgrades, enhancements and other intellectual property rights pertaining thereto, including patents and copyrights, constitute the sole and exclusive property of MSI. 6.04 All confidential or proprietary information disclosed by MSI to THE MUNICIPALITY shall be held in trust and confidence by THE MUNICIPALITY at all times during the terms of this Agreement and for two (z) years thereafter unless disclosure is required by law. THE MUNICIPALITY shall take all reasonable precautions, but not less than those employed to protect its own confidential and proprietary information, to prevent any confidential information of MSI from being divulged to or used by third persons. *The residents and visitors of the Village of Oak Brook entrust the Village with important information relating to their interests. The nature of this relationship requires maintenance of confidentiality. In safeguarding this information received, the Village earns the respect and further trusts of our residents and visitors. As a software vendor for the Village of Oak Brook, MSI is expected to assume an obligation to maintain confidentiality. No one is permitted to remove or make copies of any Village records, reports or documents without prior written approval for the Village of Oak Brook. Disclosure of confidential information is cause to terminate this agreement. 6.05 During the term of this Agreement, THE MUNICIPALITY shall not directly or through active assistance to any third parties develop substitute or competitive software products or systems which perform the same or substantially similar functions to those performed by the System. Nothing in this Section is intended to prevent THE MUNICIPALITY from investigating or purchasing an alternative solution. ARTICLE VII Damages 7.01 With regard to the installation, service and support of the Software by MSI; MSI shall have no liability with respect to its obligations under this Addendum or otherwise for consequential, exemplary, special, incidental or punitive damages even if it has been advised of the possibility of such damages. In any event, the liability of MSI to THE MUNICIPALITY, for any reason and upon any cause of action, shall be limited to the lesser of the amount paid to MSI by THE MUNICIPALITY under this Addendum or $I,000.00. This limitation applies to all causes of action in the aggregate, including without limitation to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. Both parties understand and agree that the remedies and limitations herein allocate the risks of product and service non - conformity between the parties as authorized by the Uniform Commercial Code and of other applicable laws. The fees herein reflect, and are set in reliance upon, this allocation of risk and the exclusion of consequential damages set forth in this Addendum. ARTICLE VIII Website 8.01 While MSI will use reasonable efforts to provide maximum uptime for the website to be used, it is agreed and understood that there will be downtime for the website due to planned and unplanned maintenance and repair of the website; and due to conditions beyond the control of MSI. THE MUNICIPALITY agrees that MSI shall have no liability for downtime of the website unless caused by MSI's own willful conduct. 8.02 THE MUNICIPALITY will have up to 10 gigabytes of storage resources at the website at no additional cost. In the event that THE MUNICIPALITY exceeds 10 gigabytes of data storage, additional charges may be assessed as additional compensation to MSI, based on the increased charges to MSI from its website host. 8.03 With regard to the website access to be provided by MSI: (a) MSI shall have no liability for unauthorized access to, or alteration, theft or destruction of, the website or THE MUNICIPALITY's data files, programs or information through accident, fraudulent means or devices, and (b) MSI shall have no liability with respect to MSI's obligations under this Agreement or otherwise for consequential, exemplary, special, incidental, or punitive damages even if MSI has been advised of the possibility of such damages. In any event, the liability of MSI to THE MUNICIPALITY for any reason and upon any cause of action shall be limited to the lesser of the amount actually paid to MSI by THE MUNICIPALITY under this Agreement or $1,000.00. This limitation applies to all causes of action in the aggregate, including without limitation to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The fees herein reflect, and are set in reliance upon, this allocation of risk and the exclusion of consequential damages set forth in this Agreement. ARTICLE IX Agreement Modification 9.01 This Agreement may be modified only in writing, executed by both parties. ARTICLE X Miscellaneous Provisions 10.01 This Agreement shall be governed by and interpreted in accordance with the Laws of the State of Illinois. Any dispute arising out of this Agreement shall be instituted in the 18th Judicial Circuit Court in DuPage County, Illinois. 10.02 This Agreement shall not be construed more strongly against the party responsible for its preparation. 10.03 In the event that either party retains attorneys to enforce its rights under the terms of this Agreement, the prevailing party in any litigation shall be reimbursed for their reasonable attorneys' fees and other costs associated with enforcement and litigation. 10.04 The Model Ordinance and training provided by MSI are intended to comply with existing state law and designed to be consistent therewith. However, MSI does not warrant that the Model Ordinances and training are legally sufficient and THE MUNICIPALITY should determine for itself, prior to adoption, that the same comply with existing law. 10.05 This Agreement and the Addendums attached hereto, represent the entire Agreement between the parties. The parties agree that THE MUNICIPALITY and MSI are acting as separate and independent entities and neither party is partner, joint venturer, agent, or employee of the other. 10.06 The parties shall not be liable for any delay in the performance of their obligations hereunder if such delay is caused by causes beyond the reasonable control of the parties, including, without limitation, any act of God or force majeure, or revolution, terrorist act, riot, commotion or any applicable governmental or judicial law, regulation, order or decree. ARTICLE XI Notices Any and all notices required hereunder shall be by certified mail - return receipt requested - and shall be deemed properly given and received mailing to the parties at the address listed below. MUNICIPALITY: VILLAGE of OAK BROOK 1200 Oak Brook Rd. Oak Brook, IL 60523 MSI: MUNICIPAL SYSTEMS, INC. 7330 College Drive, Suite 108 Palos Heights, IL 60463 ARTICLE XII Approval IN WITNESS WHEREOF the parties have hereunto set their respective hands and seals the day and date first above written. PILLAGE OF OAK BROOK, IL MUNICIPALITY By; i o I Mayor /Pre . eht (PRINT) j A Mayor /President (SIGNATURE) Attested: Clerk (PRINT,) Clerk (SIGNATURE) 1 i44 I Date 120 Ja1.. M An Illinois Corporation - By- Matthew C. Regan Chief Executive Officer (PRINT) Chi fExecutiveOfficer IGNATURE) Attested: Frank Repn Secretary (PRINT) Secretary (SIGNATUM ^• 201,2