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2020-10-19 - Ordinance 2020-081 - AUTHORIZING EXECUTION OF AN AGREEMENT WITH DACRA TECH LLC., FOR AN ELECTRONIC CITATIONS AND ADJUDICATION SOFTWARE LICENSE ORDINANCE 2020—81 AN ORDINANCE AUTHORIZING EXECUTION OF AN AGREEMENT WITH DACRA TECH LLC., FOR AN ELECTRONIC CITATIONS AND ADJUDICATION SOFTWARE LICENSE WHEREAS, the Village of Buffalo is a home rule unit pursuant to the Illinois Constitution of 1970; and WHEREAS, the Village is a participant in the Northwest Central Dispatch system. WHEREAS,the Village of Buffalo Grove seeks align with other member communities of Northwest Central Dispatch. NOW THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS, as follows: SECTION 1,. The foregoing recitals are hereby adopted and incorporated and made a part of this Ordinance as if fully set forth herein. SECTION 2. The Village Manager is authorized to execute an agreement with DACRA Tech LLC., pending review and approval by the Village Attorney at a price not to exceed $25,800.00 per year. SECTION 3. If any section, paragraph, clause or provision of this Ordinance shall be held invalid, the invalidity thereof shall not affect any other provision of this Ordinance. SECTION 4. This Ordinance shall be in full force and effect from and after its passage and approval and not be codified. AYES: 6—Stein Ottenheimer, Weidenfeld Johnson Smith Pike NAYES: 0—None ABSENT: 0—None PASSED: October 19 2020 APPROVED: October 19, 2020 APPROVED: Beverly Suss ma, Village President ATTEST,': Janet Sirabian,Village Clerk Village of Buffalo Grove DACRA MUNICIPAL ENFORCEMENT SYSTEM Software License Agreement Subject to the Terms and Conditions attached hereto, DACQAAdiudicadmn Systems, LLC Q/B/A /°DACRA"i10275VV. Higgins Rd, Smite480, Rouenmont, |L6O018, berebyognees to allow the Village of Buffalo Grove, an Illinois municipality (the "Municipality"), 46 Raupp Boulevard, Buffalo Grove, UL60089 to access the DACRA Tech Municipal Enforcement System under the following terms and conditions, (the °Agreement"\. 1. Monthly Usage Fee—Price Locked During Initial Term: in exchange for the licensed Use 0fDACRA software and service, as defined in this Agreement, Municipality will be billed a K8unLh|y Subscription Fee calculated by totaling the fee for all citations issued that month. The tiered fee is based nm annual citation volume and is subject tV m monthly minimum of$1,58O.00: NWCDS Tiered Pricing Model Per Ticket Fee Tier I Adjudication Citations-First 10K Issued Annually $3.00 Tier 2 Adjudication Citations-Second 10K Issued Annually $2.50 Tier 3 Adjudication Citations -Above 20K Issued Annually $2.00 �Varning Tickets/Tow Receipts _$0.50 Notwithstanding anything herein to the contrary, bug fixes or necessairy updates to the current fmnctiona|ityof the system are included im the Monthly Usage Fee. Additional user modules are subject to mutually agreed upon fees. As utilized herein, the term "Annually" shall refer tothe number of Citations issued ima calendar year. 2. Annual State Ticketing Fee As an NVVCOS member the anmuai| $5,0,08 fee for services related to state ticketing set-up, training,and suipporL |s covered per the master NVVCOS agreement between NVV[DS and OACRA. In the event that the NVVCDS agreement is no longer in place,, the pricing Vf this Agreement will be adjusted upward solely to reflect an additional annual fee of $5,ODO. Notwithstanding the foregoing, DACR4 shall provide 90'deys written notice of the NVVC0S agreement termination before any pricing adjustment to this Agreement shall beeffective. 3. Credit for Annual Software Miaintenanc�e Fee - 2020: |n recognition of the AnnmaK Software Maintenance Fee paid tmDACR4 per invoice no2020-l47 covering the period January 1, 2020 to December, 31, 2020, Municipality shall receive a credit in theamoumtof$761.46foreachnmon1hofthe2O2Qca/emdaryeornotut0|zedamd covered under this agreement. 4' Hardware: All hardware, connectivity, maintenance and usage costs related to the DAC8A hosted service is the responsibility mfDACRA. D,ACRA Tech 1LC—Buffalo Grove Software License Agreement Page 1of9 All hardware, connectivity, maintenance and usage costs for hardware directly used by the Municipality (laptops, PCs, printers, network) ir the responsibility of the Municipality. -' DACRA Interface: The DACRA interface with New World Logos interface purchased under your prior agreement will be included mtno additional charge. The D�A[RA interface with MotoroUa, provided as part of the NVVCD5 agreement, is inoUuded at no additional charge. O. Tern : The Initial Term of this Agreement shall be, two (2) years and shall commence on November 1, 3y020. After the Initial Term, upon mutual written agreement of the parties hereto, not less than 90-days prior to the end of the relevant term, this Agreement shall be renewed in, successive periods of one /1\ yea,reach. (The Initial Term and any successive renewal term(s) shall be collectively referred toam the "Termm"). All terms and conditions shall remain in full force ameffect during the entire Term, except after the Initial Term of this Agreement, the K&on1hUV Usage Fee [Minimum Monthly Fee and each Per Ticket Fee type]' shall increase to the then prevailing market rates for the services covered under this agreement for each renewal period. 7. Incorporation of Software License Agreement Terms and Conditions. This Agreement incorporates those additional Software License Agreement Terms and Conditions set forth following the mutual execution page asifset forth herein, in this Agreement |m their entirety. Village mf Buffalo Grove: D/\CN&Tech, LLC: 8V: BY; Print Name: Print Name: Robert Schur � Tide: � Title: Chief Executive Officer \�� -��-7~ ����~�� ��ctober24L 2020 Date: ^ Date: DACAATechLLC—Bwffallo Grove Software License,Agreement Page 2uf9 DACRA MUNICIPAL ENFORCEMENT SYSTEM Software License Agreement Terms and Conditions A. Agreement Definitions "Municipality" and °Yo�u" and "Your" refers to the governmental entity that has executed DACRA~s Municipal Enforcement Software License Agreement (the "Pricing Agreement") that accompainies and incorporates these Software License Agreement Terms and Conditions (the Pricing Agreement and these Software License Agreement Terms and Conditions are collectively referred to as the "Agreement"). Software as a, service consists of system administration, system management, and system monitoring activities that DACRA performs for its Adjudication, System /coUective|y, the "Serwicem°\. The term "Prograrm Documnentat|on" refers to materials provided by UACRA as part of the Services. The term "Adjudication System" refers to the software products owned or distributed Uy0ACKA to which DACRA grants You access as part of the Services. The term "Users" shall mean those individuals authorized by You or on Your behalf to use the Services. B. Rights Granted Upon DACR/\'oacumpLance of Your order and mutual execution of the Agreement, and for the duration of the Term of this Agreement, You have the nonexclusive, non-assignable, royalty free, worldwide limited license (the "License") to use The Services, during the Term solely for Your municipality's ordinance aimd code compliance purposes and subject to the terms of the Agreement (the "Purpose°\. You may allow Your Users to use the Services solely for this Purpose and' You are responsible for Your Users' compliance with the Agreement. You acknowledge that DACRA has no delivery obligation and will not ship copies of the software that runs DACRA'sAdjudicatUon System to You as part of the Services. You agree that You do not acquire under the Agreement any right to use the Adjudication System beyond the scope or the duration uf the Term of thisAgreernent- UpamtheendoftheTernn, YoVrrightandLicenseto, access and/or use the Services shaU| terminate. C. Third-Party Agreements It may be necessary for You to enter into, additional contracts at Your expense, with third-party vendors in order to use and/or maximize some of DACRA's features such as the Municipality's online payment processor nr the Municipality's collection agency. DACRA has nV control and is not liable with respect to the services provided to You by third-party vendors and any price increases from such third-party vendors shall be Your responsibility. D. Your Data You retain all ownership in and to Your Data. The term "Your Data" refers to the aU| citation and hearing data collected on behalf of You with respect10 the Services. As penL of DACRA/s Services, reciprocal access to Your Data is provided to authorized DA[R4 users in other municipalities, in return for aOuvvinQ Your authorized Users to access similar data in such participating municipalities. You may opt out of this reciprocal data sharing arrangement atany time,during the Term, by providing written notice 1oDACRA. Upon termination of the Agreement, and upon Your written request, DACRA will p,rovide You onelectronic copy of Your Data within sixty days after the effective date oftermination. E. DACAA's |nte|hectua| Property DACRA or its licensors retain all ownership and Intellectual Property Rights LVthe Services and to its Adjudication System. D/\CR/\ retains all ownership and |mte1|e«tma| Property Rights to anything (including without limitation software and written product) delivered under the Agreement, including any future deve|0prne,n1stbe[eVf rgga[dU8ss of whether You, or ainy of Your employees or agents, had any input or in any way assisted in any such new development. You may not: , Allow accessto the Services available in any manner to any third-party or for any purpose not authorized by this Agreement unless such access is expressly permitted in writing byO4CR4; ~ Copy, reproduce, distribute, republish, download, display, post or transmit in, any form or by any means, any of the Program Materials, except for the use of Your authorized Users; and, ~ Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the fo�negoim8prmhibition includes but is not limited to review of data structures orsimilar mater[a|sprmd�uced byprognanmsk As utilized herein, the phrase "Intellectual Property Rights" shall include,, without limitation, all patent, trademark, trade secret and copyrights relating in whole or in part to the Services and whether such right arises by registration with the United States Patent &Trademark Office (the "USPTO",through the U!nited States Library of Congress, with any state or municipal body and/or a:rising by common law or statute, including without limitation the Illinois Trade Secrets Act, 765 |LCS1065otneQor The Defend Trade Secrets Act of20�16. Further Assurances, You further agree at any time in the future and upon request by DACRA, to execute any further documentation as may be reasonably necessary to effectuate the intent of the parties to thisAgreement in accordance with the terms of this paragraph E including, without limitation, any Assignment to DACRA or waiver by You of Intellectual Property Rights. F. Pricing and Billing The Monthly Usage Fee pricing set forth in the Pricing Agreement will remain fixed during the Initial Term. After the expiration of the Initial Term, D4CRA reserves the right, in its sole discretion, to modify the Monthly Usage fee pricing by providing You a! nnimimourn of 120 days advanced written notice before such price change goes into effect. You agree to pay any sales, value-added or other similar taxes imposed byapp,hosb/e law that DACRA must pay based on the, Services, except for taxes based omDACRA'sincome. For any partial month during the Term, the Monthly Usage Fee (including the minimum fee) shall be prorated based on the number of days that the Services were provided for such month. O/\CR/\ may audit Your use of the, Services. You agree t0 cooperate with UA[RA's audit and: provide reasonable aiss|stamce and access to information. AM payments shall be made in accordance with the Illinois Local Government prompt Payment Act (5O |L[SSOS/1-9). G. Termination DACRA may immediately suspend Your License and Your password, account, and access to or use of the Services (i) if You fail to pay any sums due DACRA under the Agreement within thirty (30) days after written notice from DACRA of the payment default, or (ii) if You violaite any other provision of thiis Agreement and you do not cure said default within thirty days after written notice from DACRA. Regardless of the reason for the termination of this Agreement, you agree to pay all fees due DACRA which accrue or are incurred prior to the,termination of the Agreement. H. Limitation of Liability DACRA DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT DACRA WILL CORRECT ALL SERVICE ERRORS. YOU ACKNOWLEDGE THAT DACRA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS, FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. DACRA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN THE EVENT THERE IS A SERVICE INTERRUPTION WHICH LASTS MORE THAN 24 HOURS DUE TO THE FAULT OF DACRA, DACRA WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NIET MONTHLY USAGE FEE FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANYOUTS,TANDPNG BALANCE FOR SERVICES OWED TO DACRA, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMIEDY, AND DACRA'S SOLE LIABILITY, FOR ANY BREACHES OF THIS AGREEMIENT. TO THE EXTENT NOT PROHIBITED BY LAW, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS. DACRA'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO, THE SERVICES, OR THE AGREEMENT , WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF: (A) THE TOTAL AMOUNTS ACTUALLY PAID TO DACRA FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TOSUCH CLAIM; OR(B)SUCH AMOUNT OF CLAIMED DAMAGES THAT ARE ACTUALLY ALLOCATED (AS, REASONABLY DETERMINED BY DACRA AND/OR ITS INSURANCE CARRER), AND THAT ARE COVERED AND PAID BY THE INSURANCE CARRIER PROVIDING INSURANCE TO DACRA UNDER THE TERMS OF A POLICY OF INSURANCE CARRIED BY DACRA AS REQUIRED UNDER THE TERMS OF THE AGREEMENT, (THE "LIMITATION OF LIABILITY"). ANY DAMAGE AWARDED IN YOUR FAVOR AGAINST DACRA SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BYYOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY. PRIOR TO TAKING ANY LEGAL ACTION ARISING UNDER IN WHOLE OR PART UNDER THE TERMS OF THE AGREEMENT, YOU HEREBY AGREE TO PROVIDE DACRA WITH NOT LESS THAN 60 DAYS ADVANCE WRITTEN NOTICEAND AGREE TO MAKE BEST EFFORTS TO RESOLVE SAID DISPUTE OR CLAIM PRIOR TO FILING FORMAL LEGAL ACTION' IN THE CONTEXT OF ARBITRATION OR OTHERWISE. 1. Other 1. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other. DACRA Tech LLC—Buffalo Grove Software License Agreement Page 5 of 9 2. Upon the full execution of this Agreen1,ent, all prior agreements, if any, shall terminate and beofno further force and effect, and shaNbe superseded and replaced in its entirety by this Agreement. 1 DACRA may assign this Agreement by providing written notice of the assignee who will assume DACRA's obligations under this Agreement. You may not assign this Agreement without DACRA's prior written consent. 4. You shall obtain at Your sole expense any rights and consents from third-parties necessary for DACRA and its subcontractors to perform the Services under the Agreement. 5. The AG[2erOeDt is governed by the substantive and procedural laws of Illinois. Any dispute, claim or controversy arising out ofmr relating to this Agreement orthe breach, termination,enforcement, interpretation or validity thereof, including the, determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in: Chicago, Illinois before one arbitrator. The ai,bitrahonshaU be administered by ]AKH5 in accordance with JAMS" Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered [m any court having jurisdiction. 6. Except for actions for nonpayment or breach mfDACRA,'s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after 1hie cause of action has accrued. 7. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obUigmted party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonab�|e efforts to mitigate the effect ofa force ma'eureevent. |f such event continues for more than 3O days, either ofusmay cancel unperformed Services upon written notice. This section does not excuse either part/s obligation to Lake reasonable steps to h>Uoxv its normal disaster recovery procedures or Your obligation to pay for the Services. 8. You agree that DACRA may identify You as a recipient of Services in sales presentations and marketing materials. 9. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument. Copies of this Agreement (as well as any documents related to this Agreement) signed and transmitted by party by electronic transmission sh8|U be deemed" for all purposes as containing the original signature of the transmitting party and legally binding upon such transmitting party. 10.yow agree that this Agreement is the complete, agreement for the services ordered by You, and that this Agreement supersedes all prior or contemporaneous agreements or DACRA Tech kLC—Buffalo Grove Software License Agreement Page 6af 9 representations, written or oral, regarding such services, This Agreement may not be modified in any way except in writing signed by authorized! representatives of You and DA[R/k. J. Maintenance and Support The Services, including all features, must have qualified and available support included to be effective. DACRA shall provide thie following maintenance and support as a component of the Services using guidelines, structures, and materials meeting the following criteria: 1. Training. As part of the start-up and implementation phase of the delivered Services, all users will be trained om the use of the Services through a combination mf in-person and/or vwebinmrsand recorded training video sessions for all users not able to participate in the initial training sessions. 2. Support. D�ACRA shall provide access to live support toa designation user ofmunicipality available via e-mail or phone during DACRA's normal business hours. The 0ACRAsupport team will be fluent im the functionality of the system. Responses to critical issues shall be as defined in Service SLA section as outlined below in paragraph K. of this Agreement. Exclusions. DACR/\ updates the Service on on as needed basis from time-to-time to implement bug fixes, if auy, and enhanced functionality to the existing Service such as additional reporting and enhanced user interface. Notwithstanding the forgoing, all provision and maintena,nce of hardware and software, including buit not limited to laptop computers, desktop computers, printers, modems & routers and software to operate the hardware such as operating systems,and browsers [Google Chro,me, Microsoft Edge, 10S] necessary to run the Service, are the sole cost and responsibility efMunicipality. N. Serv|cmSLA DACRA, as part of its commitment to the continuity of the Services, shall maintain the following service level that details the rnimirnumn customer support standards tobefollowed for issues, both major and minor, as well as, any modifications made tothe Service from time-to-time. As partof the Service, DACRA will create an alert email distribution group for use by the Municipality to send notification of issues as they arise. Municipality may also contact DACRA via phone. DACRA will respond to Municipality initiated issues in accordance with the following levels: MAJOR ' The Service is down or precludes the Municipality from successful operation, of the total system and requires immediate attention (the "Downtime") (for exarmp|c, the Municipality is unable to,cVnmect, via an approved internet browser, tothe Service). KHN{}R A minor issue exists with the Service, but the majority of the functions are still usable, and some circumvention may be required to provide service (for example, subcommand gives an incorrect response). Also includes minor issues, m, questions that do not affect the Service function (for example, the text of message is worded poorly or misspelled). DACRATechLLC—Buffalo Grove Software License Agreement Page 7of 9 Response Timelines: O,ACR4 shall acknowledge and make reasonable efforts to respond to Municipality notification in material compliance with the following general guidelines and performance objectives: K8AJC}R— Issue notification via alert email or by phone will be acknowledged and responded to within one /1\ hour if notification is received during DACRA's normal business houn. For any major issues that occur during DACRA's non-normal business hours, Lhe customer shall e-mail and DACRA will respond to the notification within three (3) hours. MINOR - Issue notification via alert email or by phone will be acknowledged and responded to within eight /O\ hours if notification is received during normal BACRA business hours. If received after normal DACRA business hours, the notification will be responded to within eight /B\ hours after the start of the normal OACRA business hours. Uptime: DACRA shall make reasonable efforts to maintain the Services such that the Services will be operational and accessible by the Municipality's users a minimum of 9996 of the time, not including maintenance which will be scheduled with Municipality in advance and will be kept to an absolute minimum. In the event that the Services are unavailable less than 99% of the time as a result of the failure by DACR/\ to adhere to its obligations under this Agreement, (said percentage excepting and not including downtime for scheduled maintenance or factors outside the reasomeb,|e cnutxm| of D/\CR/\\, them in such instance, the Mimn|dpaOtV shall receive the following Service Discounts (the "Service Discounts") as its sole and absolute remedy relating thereto with the mutual understanding that this Agreement shall continue in full force and effect: 9,796 -9996 optimme in any given month - 1096 discount of the monthly fee; 9596- 96.99% uptirne, not including scheduled maintenance - IO% discoont of the monthly fee; 909$ 94.9976 uptinoe, not including scheduled maintenance 30% discount of the monthly fee; 80�96 89.99 Y6 uptirne, not including scheduled maintenance - 50% discount of the monthly fee; less than 79.99q& uptime, not including scheduled maintenance - 100% discount of the monthly fee. Notwithstanding the foregoing, the following are not counted as Downtime for the purpose of calculating of this Service 5LA. Service unavailability caused by schiedu|ed maintenance of the Service (DACRA will endeavor to provide five days' advance notice of service-affecting scheduled nmaimtenance\; or, unavailability caused by events outside of the direct control of 04CR4, including but not limited to any force majeure event, the failure or unavailability of Municipality's systems,the Internet or anyfailure thereof,aind the failure,of any other techinology or equipment used toconnect toor access the service by the Municipality. To receive a Service Discount for a particular calendar month, Municipality must submit a claim by email to the OACRA supporttemmn within 30 days of the end of the month during which the Service did not meet this Service SL4~ and include the following information: a\ requester name and contact information, b\ details of the notification LV OA[RA of the Downtime, and c\ im6ormabon supporting the doinn of Downtime, including date, time, and a description of the incident and affected service. DACRA TechLL,C—Ruffalo Grove Software License Agreement! Page 8of9 L. Insurance Requirements, 1. DACRA shall maintain during the entire term of the Contract, the following insurance cVvereges: a. Commercial General Liability: $1,000.000 comnbimed single, limit per occurrence for bodily injury, personal injury, and property damage. The general aggregate shall be $2,OOO,OOO per project. b. Professional Liability: $1,000,000 single limit for errors and omissions, professional / malpractice liability. c. Worker's Cmmmpensation and Employers' Liability: Worker's Compensation limits of $1,080,088and as Employers' Liability limits of$58D,8O0 per accident or as required by Illinois law. d. Umbrella Liability: $1,OUO,Q0O combined single |inmit per occurrence for bodily injury, personal injury, and property damage.