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Resolution 2017-20 Resolution No. 2017- A RESOLUTION OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS,APPROVING A PROFESSIONAL SERVICES AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES WHEREAS, the United City of Yorkville, Kendall County, Illinois ("City") is a duly organized and validly existing unit of local government created in accordance with the Constitution of the State of Illinois of 1970 and the laws of this State; and, WHEREAS, the Constitution of the State of Illinois of 1970, Article VII, Section 10, provides that units of local government may contract or otherwise associate among themselves to obtain or share services and to exercise, combine, or transfer any power or function in any manner not prohibited by law or by ordinance and may use their credit, revenues, and other resources to pay costs related to intergovernmental activities; and, WHEREAS, the City and the Village of Oswego, Kendall and Will Counties, Illinois (the"Village") have entered into an intergovernmental agreement (the "City/Village Agreement") for the sharing of information technology services ("IT Services") to keep up with technology best practices and better serve the needs of their residents; and, WHEREAS, the City/Village Agreement requires the City and Village to each enter into a contract for the provision of IT Services with Interdev, LLC, a Georgia limited liability company(the"IT Service Provider"); and, WHEREAS, the City believes it to be in its best interests and the best interests of its citizens and taxpayers to engage the IT Service Provider in furtherance of the City/Village Agreement and in accordance with the terms and conditions as set forth in a contract for the provision of IT Services. NOW, THEREFORE,BE IT RESOLVED,by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the Professional Services Agreement for Information Technology Services, attached hereto and made a part hereof, is hereby approved and the Mayor and City Clerk are hereby authorized to execute and deliver said Agreement on behalf of the United City of Yorkville. Resolution No.2017-4aO Page 1 Section 2. The Mayor, City Clerk, and City Administrator are hereby authorized and directed to undertake any and all actions as may be required to implement the terms of said Agreement. Section 3. This Resolution shall be in full force and effect from and after its passage and approval as provided by law. Passed by the City Cocil of the United City of Yorkville, Kendall County, Illinois this o(day of /��c{/`G � ,2017. CITY CLERK l CARLO COLOSIMO KEN KOCH JACKIE MILSCHEWSKI JOEL FRIEDERS CHRIS FUNKHOUSER DIANE TEELING SEAVER TARULIS Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this 5 day of APRIL , 2017. A.4, /V A O XI Attes City Clerk I Resolution No.2017- 0�O Page 2 PROFESSIONAL SERVICES AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES THIS PROFESSIONAL SERVICES AGREEMENT FOR MUNICIPAL GOVERNMENT SERVICES("Agreement") dated n- 2017, is entered into by and between the United City of Yorkville, Illinois("City"), whose address is 800 Game Farm Road,Yorkville, IL 60560 and InterDev,LLC,a domestic limited liability company whose business address is 2650 Holcomb Bridge Road,Suite 120,Alpharetta,GA 30022(the"Contractor").The City and the Contractor may be collectively referred to as the"Parties" and each individually a "Party". 1. DEFINITIONS 1.1. "Contractor Employee(s)"shall mean person(s)under the direct supervision and control of the Contractor who perform Services hereunder,whether employees,contract employees or volunteers. 1.2. "City Representative" shall mean the senior City representative assigned the responsibility of overseeing the administration of this Agreement for the City and the provision of Services by Contractor along with other City-assigned responsibilities. 1.3. "Exhibits"to this Agreement include the following: Exhibit A—Services Exhibit B—Compensation 1.4. "Project Manager"shall mean the Contractor Employee who shall serve as the primary point of contact with oversight and administration of the Services to be provided hereunder. 1.5. "Services"shall mean those services as fully described in Exhibit A to be provided within the City. 1.6. "Services Commencement Date"shall be 12:00 am on APAiL 112017. 1.7. "Subcontractor"shall mean any individual or entity retained,affiliated,or engaged by or under contract with Contractor to undertake any Services to be performed hereunder. 1.8. "Term"shall be as defined in Section 8.1. 1.9. "Total Annual Fees"shall be those amounts set forth on Exhibit B of this Agreement for each year or partial year of the Agreement and shall be the total maximum amount to be paid for Services for the applicable period. 2. SERVICES AND PERFORMANCE 2.1. Services. The Contractor shall provide the City with the Services as defined in Exhibit A,within the boundaries of the City,which boundaries may be modified from time to time,and Page 1 which generally include municipal services of the type coming within the jurisdiction of and customarily rendered by municipalities(other than those provided by other contract providers or special districts). As an independent contractor,the Contractor offers to perform and/or deliver the Services in accordance with the terms and conditions of this Agreement. 2.2. Qualification.Contractor represents to the City that the Contractor and the Contractor Employees and any Subcontractor performing Services hereunder possess the skills, knowledge, and abilities to competently,timely,and professionally perform the Services in accordance with this Agreement. 2.3. [Section deleted] 2.4. Changes to Services. From time-to-time,either Party may identify new services that were not included in Exhibit A,or events may warrant modification to the Services.Within a reasonable period of time,the respective Party will notify the other Party of the Services modification opportunity. If agreed to by both Parties,Contractor will,within a reasonable time period (generally within ten (10) business days)provide to the Village in writing a price and modification to Services for the proposed addition to Services. Any changes that are mutually agreed upon between the City and the Contractor shall be made in writing and, upon execution by both Parties,shall become an amendment to the Services described in this Agreement.To be effective,such amendment must be signed by the Contractor and by the Village. Unless otherwise stated in the amendment, Contractor will invoice the City on the next billing cycle after completion of the addition to Services or, if the change involves an ongoing new addition to Services,Contractor will include the associated adjustment to the Total Annual Fees and will pro rate the billing in accordance with provisions of Section 7.1 of this Agreement.All Disputes will be handled in accordance with Section 21(Disputes)of this Agreement. 2.5. Allocation of Resources.The parties recognize that this Agreement is intended to provide flexibility to the City in order to meet its evolving challenges in the delivery of municipal services to the City residents.The Contractor may reasonably allocate Contractor and Subcontractor resources for the performance among the Services in accordance with the priorities agreed-to with the City Representative so long as such allocations do not affect either:(1)increase in Total Annual Fees under this Agreement;or(2)Service quality. 2.6. Required Permits and Licenses. The Contractor shall be responsible at the Contractor's expense for obtaining and maintaining in a valid and effective status, all licenses and permits required by governmental entities by certifying organizations necessary to perform the Services as required by law. The City agrees to timely provide to Contractor in writing copies of all City obtained permits and/or required compliance information from third parties. Should the City fail to timely Page 2 provide this information,Contractor shall not be obligated to comply with the new permit requirements until the permit and/or compliance information is provided to it. All persons engaged in providing Services to the City shall be duly certified by the federal, state, or local jurisdiction, federal or national association, or other state or nationally recognized authority for the performance of the duties to which such person is assigned, if such certification is offered to and required of members of the profession. Contractor represents to the City that the Contractor is, and the Contractor Employees or any Subcontractors performing Services are, properly licensed and/or registered within the State of Illinois for the performance of the Services(if licensure and/or registration is required by applicable law). 2.7. Implementation of Innovations. The Parties mutually desire that the Services delivered hereunder are rendered in a manner that is highly efficient,effective and that utilizes innovative processes and technology.To that end,Contractor,in its normal course of Service delivery,will stay abreast of new technologies or processes related to Service delivery hereunder,and upon discovery,will present such new technologies or processes to the City. Before implementation, the Parties shall mutually agree,through negotiations in good faith,to determine whether implementation is mutually beneficial and, if so,shall negotiate appropriate changes to the Services and, if applicable,to Exhibit B. Under no circumstances is the Contractor required by the City to invest,fund or incur costs associated in the exploration, development or testing of new innovative processes or technologies that are the subject of this provision. 2.8. Obligation to Acquire Necessary Information.The Contractor shall become fully acquainted with the available information, laws,and regulations related to the Services. The Contractor is obligated to affirmatively request from the City and other available resources such information that the Contractor, based on the Contractor's professional experience,should reasonably expect is available and which would be relevant to the performance of the Services.Contractor is not responsible for the accuracy of the information obtained.City will use its best efforts to affirmatively obtain from third parties such information that the Contractor may request and which the Contractor, based on the Contractor's professional experience,should reasonably expect is available and which would be relevant to the performance of the Services. 2.9. Ambiguity Concerning Services. The Contractor shall perform the Services in accordance with this Agreement and shall promptly inform the City concerning ambiguities and uncertainties related to the Contractor's performance that are not addressed by the Agreement. 2.10. City Compliance with Laws. The City shall comply with all applicable federal,state and local laws,ordinances, regulations and resolutions.Without limiting the foregoing,City shall comply with all wage and hour laws and other applicable federal and state statutes, regulations and standards for work place safety.As to any facilities in which the Parties are co-located,the Page 3 City shall comply with all applicable laws regarding hazardous materials and maintain all required MSDS forms on site. 2.11. Contractor Compliance with Laws.The Contractor shall comply with all applicable federal,state and local laws,ordinances, regulations,and resolutions. Without limiting the foregoing, Contractor shall comply with all wage and hour laws and OSHA and other applicable federal and state statutes, regulations and standards for work place safety. Contractor shall comply with all applicable laws regarding hazardous materials and maintain all required Manufacturer's Safety Data Sheets(MSDS)forms on site in the City. 2.12. City Obligations. In performance of the Services,Contractor shall require and City shall provide the following for Contractor's use: 2.12.1. A Work Location and appropriate office space for Contractor's employees performing the Services,which Contractor will keep in a neat and orderly manner and free from accumulation of any waste; 2.12.2. Furniture,fixture and equipment for the Work Location, 2.12.3. Computer equipment and software systems,telephone and internet services,and printers; 2.12.4. An uninterruptable power supply and all other utilities at the Work Location;and 2.12.5. Parking for Contractor's employees at the Work Location. 2.13. Change in Laws. Any change in law, regulation, rule, requirement, interpretation,statute, permit requirement or ordinance adopted, promulgated, issued or otherwise specifically modified or changed by any local,state,federal or other governmental body which impacts Service delivery may necessitate a change in compensation. If such change affects Contractor's cost of or time required for performance of the Services,the parties agree to meet and agree to an equitable adjustment through executing an amendment to this Agreement in accordance with Section 19.11. 2.14. Assignment of Personnel.All Contractor employees performing Services hereunder shall be screened and satisfactorily pass drug testing prior to assignment to perform any Services under this Agreement.The drug testing laboratory or service and the methodology of testing, reporting,and pass/fail determination shall be acceptable to the City. The Contractor shall receive the results of the drug testing and, in the event of a testing failure,shall immediately remove any such person from providing Service to the City.The cost of drug testing shall be borne by the Contractor. 2.15. Drug Free Workplace Policy. Contractor shall adopt and enforce a policy for a drug-free workplace applicable to all persons delivering Services under this Agreement consistent with the Illinois Drug-Free Workplace Act. 2.16. Relationships and Public Interactions. All persons providing Services under this Agreement shall, at all times,foster and maintain professional and harmonious relationships with all employees of the City,all employees of the City's contract services providers and all City's residents Page 4 and customers,and shall represent the City in the best light possible to members of the public, staff,elected and appointed officials and media.The Contractor recognizes that its conduct during the performance of the Services hereunder reflects upon its reputation in the community as well as upon the public perception of the City.Therefore,the Contractor offers and warrants to the City that the Contractor, its agents and employees will conduct all of their interactions with the citizens,customers and the public relating to the performance of the Services hereunder in such a manner as to provide customer service that reflects positively upon its reputation and the City's public image. 2.17. Performance Issues with Contractor Employees. Based upon the Contractor's representations herein and the City specifications herein regarding the Services,the Contractor offers the City the following process by which the Contractor will resolve issues of dissatisfaction by the City when a Contractor employee is failing to effectively perform Services hereunder. Utilizing an objective standard based upon job performance,the City Representative shall have the right to reasonably request any Contractor employee is prohibited or reasonably limited, in any manner,from performing Services for the City. The City Representative shall notify the Contractor should any personnel or employment problem arise with regard to any such person performing Services under this Agreement.The notification shall include the known facts which give rise to the problem,and may include a request by the City that the Contractor transfer or otherwise reassign such employee out of service to the City. Thereafter, representatives of the Contractor and the City shall meet to discuss possible remedies the Contactor might voluntarily offer to address the problems experienced by the City in accordance with the dispute resolution provisions of Section 21. If problems persist after the conclusion of any Upper Management resolution meeting,and provided the City Representative has notified the Contractor of the City's continuing dissatisfaction,the Contractor offers to remove any Contractor employee from performing any work for the City. By its signature to this Agreement,the City accepts the Contractor's offer of this process. Nothing in this Agreement shall be construed to abrogate in whole or in part the right of the Contractor to hire,discipline,terminate,assign or otherwise manage or control its workforce. 3. CITY AND CONTRACTOR COORDINATION 3.1. City Representative.The City Representative shall be the City's primary representative and point of contact for all regular reports,work orders and amendments to Services pursuant to this Agreement in the agreed-upon format between the City and the Contractor.The City Representative has the authority and authorization to monitor the Contractor's performance, respond to Contractor's questions,assist Contractor in understanding City policies, procedures and practices,and supervise the performance of any City obligations under this Agreement. 3.2. Contractor Program Director. The Contractor will assign a Program Director who shall be the Contractor's primary representative and the point of contact for all Service matters and amendments to Services allowable under this Agreement.The Contractor shall not replace the Program Director without City approval,which shall not be unreasonably withheld. Page 5 4. FORCE MAJEURE. Neither Party shall be liable for damages,delays,or failure to perform its obligations under this Agreement if performance is made impractical or impossible,or unpredictably and abnormally difficult or costly,as a result of any unforeseen occurrence, including but not limited to fire, flood,acts of God,civil unrest,failure of a third party to cooperate in providing services other than Contractor's Subcontractors,or other occurrences beyond the reasonable control of the party invoking this Force Majeure clause. The Party invoking this Force Majeure clause shall notify the other Party immediately by verbal communication and in writing of the nature and extent of the contingency within five(5)business days after its occurrence or discovery of its occurrence, and shall take reasonable measures to mitigate any impact of the event that triggered the invoking of this Force Majeure clause. If the Force Majeure event shall impact schedule or increase the costs incurred by Contractor,such items shall be handled in accordance with Section 2.4(Changes to Services). 5. INDEPENDENT CONTRACTOR 5.1. Independent Contractor.The Contractor and any subcontractor providing Services hereunder shall perform the Services as independent contractors to the City and shall not be deemed by virtue of this Agreement to have entered into any partnership,joint venture, employer/employee or other relationship with the City other than as a contracting party and independent contractor. This Agreement does not require the Contractor or any subcontractor providing Services hereunder to work exclusively for the City.This Agreement shall not be interpreted as the City dictating or directing the Contractor's or any subcontractor's performance or the time of performance beyond the requirements for the Services and Performance Measurements set forth herein. Subject to conformance with City-adopted policies and procedures and full conformance with Contractor's representations set forth in this Agreement,the Contractor shall have and maintain the requisite judgment,discretion,and responsibility for and control of the performance of the Services,the discipline of the Contractor's employees and other matters incidental to the performance of the Services,duties and responsibilities as described and contemplated in this Agreement. Unless specifically stated otherwise herein,Contractor shall provide and bear the cost of all tools,and any other items,wages,or services required in the performance of the Services,and the City shall not provide any other assistance or benefits to Contractor for performance of the Services under this Agreement. 5.2. Liability for Employment Related Rights and Compensation. Each Party shall be solely responsible for all compensation, benefits, insurance and employment-related rights of their employees and contractors providing Services hereunder during the course of or arising or accruing as a result of any employment or other relationship,whether past or present,with the Contractor or any subcontractor,as the case may be, as well as all legal costs including attorney's fees incurred in the defense of any conflict or legal action resulting from such employment or related to the corporate amenities of such employment.The Contractor and any subcontractor providing Services hereunder will comply with all laws, regulations, municipal codes,and ordinances and other requirements and Page 6 standards applicable to the Contractor's employees, including,without limitation,federal and state laws governing wages and overtime,equal employment,safety and health,employees' citizenship,withholdings, reports and record keeping.Accordingly,the City shall not be called upon to assume any liability for or direct payment of any salaries,wages,contribution to pension funds, insurance premiums or payments,workers'compensation benefits or any other amenities of employment to any of the Contractor's or any subcontractor's employees,sub- consultants,Subcontractors,agents,volunteers or representatives,or any other liabilities whatsoever,unless otherwise specifically provided herein. 6. CITY EMPLOYEES AND THIRD PARTY CONTRACTORS The following provisions shall apply with respect to Services provided: 6.1. Each Contractor employee shall perform such services as an independent supplier and not as an employee or agent of City. As such,Contractor employees shall not be entitled to nor shall they claim any benefits or rights accorded to employees of City.Contractor shall be solely responsible for all employer obligations including, but not limited to, provision of employee benefits and compliance with state and federal laws including the Fair Labor Standards Act for their employees.The fact that Contractor supervisory employees may provide direct or indirect supervision of City's employees shall not alter the employment relationship for purposes of workers compensation and unemployment compensation. Under no circumstances are employees of Contractor to be considered the City's employees, loaned employees or borrowed servants and vice versa. 6.2. All City employees furnished by City shall be employees of City and shall not be employees of Contractor. The parties agree that City shall remain solely responsible for all Employer Obligations with respect to all City employees. 6.3. Each City employee shall perform such services as an employee of City and not as an employee or agent of Contractor.As such,City employees shall not be entitled to nor shall they claim any benefits or rights accorded to employees of Contractor. City shall be solely responsible for all Employer Obligations including, but not limited to, provision of employee benefits and compliance with state and federal laws including the Fair Labor Standards Act for their employees. 6.4. City will be solely responsible for all Employer Obligations with respect to City personnel and City employees. "Employer Obligations"as used in this Agreement means all obligations of any kind imposed customarily or by law or agreement on persons acting in the capacity of an employer in relation to persons acting in the capacity of an employee. These include,without limitation: (a)responsibility for hiring,assigning,compensating and terminating City personnel and City employees;(b)withholding and paying taxes; (c)verification of employment eligibility, including compliance with IRCA, FCRA, DOT drug and alcohol regulations,and all DOD and DOC export licensing and control requirements; (d) providing workers'compensation insurance and complying with all applicable workers compensation laws; (e)compliance with all federal,state and local laws(both common and statutory)and regulations relating to employment and the rights of City personnel and City employee(s), including but not limited to FICA and FUTA withholding;the Fair Labor Standards Act;wage and hour laws, including overtime,and benefits requirements;workers' Page 7 compensation;safety and health; payment of wages; unemployment compensation; COBRA; immigration;compliance with laws relating to employment, illegal employment discrimination and retaliation; leaves; benefits;the Immigration Reform Act of 1986; and all record keeping requirements. 6.5. Contractor may terminate Services for its convenience,without penalty,only upon the occurrence of the following event: 6.5.1. City not implementing suggested Contractor recommendations for vulnerability situations,safety,or compliance matters that Contractor reasonably determines may cause City and/or Contractor to violate any applicable regulation, laws,codes or permits. 6.6. Contractor hereby agrees to indemnify and hold City, its directors,officers,agents and employees, harmless from all claims,charges,demands,complaints,damages, losses or liability of any kind (including attorney's fees and reasonable expenses) (collectively, "Liabilities")that arise from or relate in any way to: 6.6.1. Claims by Contractor's employees,current or former,for wages and overtime pay arising under the Fair Labor Standards Act or any other federal,state or local labor or wage-hour laws,workers'compensation or unemployment compensation for services performed under this Agreement; 6.6.2. Claims by Contractor's employees,current and former,alleging entitlement to pension, health and welfare,profit sharing,401(k)and other benefit plans by reason of employment with Contractor;or 6.6.3. Employment-related claims,charges and demands alleged against City or by Contractor's employees,current or former,or any applicant for employment with Contractor as related to the services provided under this Agreement. 7. COMPENSATION 7.1. Compensation for Services. In consideration for the provision of Services described herein,the City agrees to pay the Contractor the Total Annual Fees for each year or partial year of this Agreement as set forth on Exhibit B.The timing for all invoices shall be as set forth in Section 7. Except as otherwise provided for in this Agreement,Contractor agrees to perform the Services within the allotted Total Annual Fees,which shall constitute full compensation and consideration under this Agreement. 7.2. Payment Processing. 7.2.1. Total Annual Fees shall be allocated over the number of months of Services in the relevant calendar year and invoiced to the City equally over a twelve-month period for every calendar year this Agreement remains in effect and any partial year shall be prorated and invoiced equally over the number of months of each partial year. 7.2.2. The allocated Total Annual Fees will be billed monthly by the Contractor on the last business day of the month in which the Services shall be rendered. Following receipt of a Contractor's invoice,the City shall promptly review the Contractor's invoice and approve for payment. Page 8 7.2.3. The City shall make payments to InterDev in compliance with the terms of the Illinois Local Government Prompt Payment Act, 50 ILCS 505/1 et.seq except that the time for approval of disapproval of a bill shall be sixty(60)days. 7.2.4. The City Representative or his/her designee shall contact the Program Director should there be any discrepancies in the invoice or invoices submitted, identifying the specific cost which is in dispute. The City shall pay the Contractor as provided in Section 7.2.3 for any undisputed charges or, if the City disputes an invoice,within thirty(30)calendar days of resolution of the dispute. To the extent possible, undisputed charges within the same invoice as disputed charges shall be timely paid in accordance with this Agreement. 7.3. Increases in Compensation or Reimbursable Expenses.Any increases or modification of compensation or reimbursable expenses shall be subject to the approval of the City and shall be made only by written amendment of Agreement executed by both Parties in accordance with Section 19.11. 8. TERM 8.1. Term. This Agreement shall be effective on the_day of , 2017, at 12:01 a.m., (the "Effective Date")and shall terminate at 11:59 p.m. on , 2017,or on a prior date of termination as may be permitted by this Agreement ("Term"). Services to be provided hereunder,shall begin on the Effective Date. 8.2. Option to Renew. Unless either party gives thirty days(30) notice of its intent to not renew,this Agreement will automatically renew for up to four (4) additional one (1) year renewal periods (each, a "Renewal Term") at the expiration of the Term. Thereafter, both Parties must agree to renew via an amendment to this Agreement. In the event that the Agreement is not renewed after the Term or after each of the first two (2) Renewal Terms, the City shall pay Contractor a Demobilization Fee equal to ten percent(10%)of the Annual Fee of the term then in effect. 9. DEFAULT AND TERMINATION 9.1. Events of Default.An event of default("Default")shall mean a material breach of this Agreement. If situations arise which are not considered a material breach, such issues will be resolved as per Section 21 (Disputes). Without limiting the generality of the foregoing and in addition to those instances referred to as a breach,a Default shall include the following: 9.1.1. Contractor has not performed Services as listed in Exhibit A of this Agreement;or 9.1.2. Contractor has refused or failed,except in the case for which an extension of time is provided,to supply properly skilled personnel;or 9.1.3. Contractor has failed to obtain the approval of the City where required by this Agreement;or Page 9 9.1.4. Contractor has refused or failed, except in the case for which an extension of time is provided,to provide the Services as defined in this Agreement;or 9.1.5. The City has failed, refused or defaulted in its duty: (1)to pay the amount required to be paid to the Contractor under this Agreement on the due date for such payment as set forth in Section 7 of this Agreement; or (2) to perform any other material obligation under this Agreement (unless such Default is excused by any Force Majeure and to the extent provided herein);or 9.1.6. The City has failed, refused or defaulted in its duties under Section 2.12;or 9.1.7. Either Party made a representation or warranty hereunder or herein that was false or inaccurate in any material respect when made, and which materially and adversely affects the legality of this Agreement or the ability of either Party to carry out its obligations hereunder. 9.2. Termination for Failure to Cure an Event of Default. In the event of a Default, unless otherwise excused under this Agreement,this Agreement may be terminated by the performing Party only after following the dispute resolution procedure set forth in Section 21 and its subsections, except for events of default set forth in Section 9.1.5, in which case Contractor may terminate after ten (10) days of issuing a written notice of Default and termination. After following the dispute resolution procedure set forth in Section 21 and its subsections, if the aggrieved Party finds that a Default continues to exist, the aggrieved Party may issue a notice of Default and termination, providing a date for termination of this Agreement. Such notice shall be delivered in accordance with Section 19.15. 9.3. Final Invoice. In the event of receipt of a notice of Default and termination,and upon the date of the resulting termination for Default,the Contractor shall prepare a final accounting and final invoice of charges for all performed but unpaid Services,and allowable charges under this Agreement and authorized reimbursable expenses. Such final accounting and final invoice shall be delivered to the City within forty-five(45)calendar days of the date of termination. Thereafter, no other invoice, bill, or other form of statement of charges owing to the Contractor shall be submitted to or accepted by the City.The final invoice shall be paid in conformity with the times allowed for paying monthly invoices under this Agreement. In the event payment has been made for Services not completed,Contractor shall return these sums to the City within thirty(30) business days after receipt of notice that these sums are due. 9.4. No Limitation on Actions. Provided that notice of Default is provided in accordance with this Section and its subsections, nothing contained herein shall prevent, preclude,or limit any claim or action for Default or breach of this Agreement resulting from non-performance by a Party. Either Party may take advantage of each and every remedy specifically existing at law or in equity. Each and every remedy shall be in addition to every other remedy specifically given or otherwise existing and may be exercised from time to time as often and in such order as may be deemed expedient by the Party. The exercise or the beginning of the exercise of one remedy shall not be deemed to be a waiver of the right to exercise any other remedy.The Parties' rights and remedies as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to either Party in law or in equity. Page 10 10.TRANSITION UPON TERMINATION 10.1. Transition upon Termination. Upon termination or prior to expiration of the Term or any applicable Renewal Term, the City shall begin transition efforts and Contractor shall assist such transition. Contractor and City shall cooperate in good faith in order to effectuate a smooth and harmonious transition from Contractor to City, or to any other person or entity City may designate, and to maintain during such period of transition the same quality of Services otherwise afforded to the residents of the City pursuant to the terms hereof. 10.2. Extension of Services. In the event of the full termination,or expiration of this Agreement, and in the further event that the City is not in breach of this Agreement and is unable to provide the same level of services at the time of such termination or expiration, the then pending term of this Agreement may be extended by the City for a period of ninety(90)calendar days or until City or a contractor of the City is capable, in the City's sole discretion, of rendering such Services, whichever occurs later providing the City has provided Contractor thirty (30) calendar days' notice of such need for contract extension.The remuneration to be paid to Contractor during the transition period shall be based upon actual cost of providing such services during the transition period plus a mutually agreed upon fee, provided, however such fee shall not exceed the pro- rated Total Annual Fees amount which would be due and owing to the Contractor for the provision of said services pursuant to the terms of this Agreement. In no event shall the extension of Services under this provision be extended beyond one hundred and eighty (180) calendar days. 10.3. Records to be Delivered. During any transition period as described in this Section 10 and its subsections, Contractor shall timely share with the City and deliver to the City all records in the possession of Contractor that concern or relate to the Services and that are not "Data" as such term is defined in Section 16.1. 11. EMERGENCIES 11.1. Emergency Reimbursement Funds. In the event of an emergency or disaster declared by law enforcement or a governmental agency for which reimbursement funds are made available by a third party funding agency or source, Contractor will be entitled to reimbursement for all work performed and/or material losses on a pro rata basis with the City determined by the proportion for which the reimbursement was for Services rendered by the Contractor in remedying or responding to the emergency or disaster over the total reimbursement amount so that the City receives its pro rata share of such reimbursement for City losses or materials expenses paid as a result of the disaster or emergency. Any reimbursement provided for administrative costs directly related to any declared emergency or disaster shall be equally proportionally shared between the Parties. Contractor shall not make claims for extra costs associated with responding to any such disaster or emergency beyond the reimbursement set forth in this provision. 12. AUDIT AND INSPECTION RIGHTS 12.1. Audits. The City may,at reasonable times, and for a period of up to three(3)years following the delivery of the Services in question by Contractor under this Agreement, audit, or cause to be audited, those books and records of Contractor that are related to Contractor's performance under this Agreement, excluding all financial records unless related to direct cost reimbursable expenses or other matters contemplated herein, including buyout provisions, unless a court of Page 111 competent jurisdiction orders disclosure of such information. Contractor agrees to maintain all such books and records at its principal place of business for a period of three (3)years after final payment is made under this Agreement. 12.2. Inspection of Facilities and Materials. The City may, at reasonable times and upon reasonable notice during the Term or any Renewal Term hereof, inspect Contractor's facilities and materials stored therein, and perform such inspections and process reviews and sample materials as the City deems reasonably necessary,to:(1)determine whether the Services required to be provided under this Agreement conform to the terms of this Agreement; and/or (2) determine whether the materials to be provided hereunder meet the quality standards required hereunder; and/or (3)verify inventory;and/or(4) balance load sheets;and/or(5)ensure materials purchased by the City are used only for Services under this Agreement. Contractor shall make available to the City all reasonable facilities and assistance to facilitate the performance of inspections by the City or its representatives. 13. INDEMNIFICATION 13.1. Definitions. For purposes of this Section 13 and its subsections,an "affiliate"of the Contractor shall mean and include the officers and employees of the Contractor but shall include the Contractor's subcontractors and an "affiliate"of the City shall mean and include the elected officials,officers,employees,and agents of the City. 13.2. Contractor Indemnification. Contractor shall indemnify,defend and hold harmless the City and its affiliates from and against any and all liability,claims,adjudications and demands (including attorneys'fees and expenses)of whatsoever nature arising out or alleged to arise out of any errors,omissions,willful misconduct or negligent acts of the Contractor in providing the Services contemplated by this Agreement.The Contractor shall investigate, handle, respond to,and provide defense for and defend against any such liability,claims,and-demands,and to bear all other costs and expenses related thereto,including court costs and attorneys'fees so long as Contractor is deemed liable under this Agreement. The Contractor's indemnification obligations hereunder shall not apply to the extent any damages have been caused by the act,omission,or other fault of the City,the City's affiliates or a third party not under the legal control of Contractor. In the event of a conflict of interest between the Contractor and the City,the City may choose its own attorney to defend at the cost of the Contractor. 13.3. City Defense.The City shall defend against any and all liability,claims,adjudications and demands(including attorneys'fees and expenses)of whatsoever nature arising out of or alleged to arise out or resulting from the acts or omissions of the City,errors or omissions,willful misconduct and/or negligent acts of the City, its other contractors or agents providing services similar to the services contemplated by this Agreement or the ownership of any City asset upon which Services are provided under the Agreement if the liability,claim,judgment or demand relates to such ownership and not to the provision of Services hereunder. 13.4. Special Damages. In disputes between City or its affiliates and the Contractor or its affiliates,in no event shall either party or their affiliates be liable to the other party for any special, indirect or consequential damages,whether such liability arises in breach of contract or warranty,tort including negligence,strict or statutory liability,or any other Page 12 cause of action, provided, however,such limitation does not include any liability for which Contractor is obligated to indemnify City based upon special, indirect or consequential damages suffered by any third-parties. 13.5. Notice of Third Party Claims. In the event that either Party receives any form of notice that a third party asserts against the City or any City affiliate or the Contractor or any Contractor affiliate any claim, liability,suit,action,damage,cost, loss,or expense for personal injury,bodily injury,sickness,diseases or death or damage or destruction of tangible property arising out of the performance of the Services under this Agreement (a "Third Party Claim"),the Party receiving notice of such Third Party Claim shall immediately and without delay notify the other party in writing of such Third Party Claim and transmit any written documents received by such Party to the other party. 13.6. Nothing in this Section and its subsections shall: 13.6.1. Limit or prevent the City or the Contractor from determining positions and actions relative to settlement or defense on any matter for which the City or the Contractor are responsible;or 13.6.2. Limit or prevent either Party from joining the other Party or any affiliate of a Party in any claim,suit,action,or proceeding involving a Third Party Claim through interpleading,third-party claim,cross-claim,or otherwise limit or prevent a Party from voluntarily joining any claim,suit,action,or proceeding through intervening or as may otherwise be permitted by law or rule. 14. INSURANCE 14.1. Insurance Generally.The Contractor shall obtain and shall continuously maintain during the Term and any Renewal Term of this Agreement insurance of the kind and in the minimum amounts specified as follows: 14.1.1. Worker's Compensation Insurance in the minimum amount required by applicable law for all employees and other persons as may be required by law. 14.1.2. Comprehensive General Liability insurance with minimum combined single limits of Two Million Dollars($2,000,000)each occurrence and in the aggregate. The policy shall be applicable to all premises and all operations of the Contractor. The policy shall include coverage for bodily injury, broad form j property damage(including completed operations), personal injury(including coverage for contractual and employee acts), blanket contractual, independent contractors, products,and completed operations. The policy shall contain a severability of interests provision. Coverage shall be provided on an "occurrence" basis as opposed to a "claims made basis. Such insurance shall be endorsed to name the City,and its elected officials,officers,employees and agents as additional insured parties. 14.1.3. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than of Two Million Dollars($2,000,000)each occurrence with respect to each of the Contractor's owned, hired and non-owned vehicles assigned to or used in performance of Page 13 the Services.The policy shall contain a severability of interests provision. Such insurance coverage must extend to all levels of Subcontractors. Such coverage must include all automotive equipment used in the performance of the Agreement, both on and off any work site,and such coverage shall include non- ownership and hired cars(vehicles and equipment)coverage.Such insurance shall be endorsed to name the City,and its elected officials,officers,employees and agents as additional insured parties. 14.1.4. Professional Liability(errors and omissions) Insurance with a minimum limit of coverage of One Million Dollars($1,000,000) per claim and annual aggregate. Such policy of insurance shall be obtained and maintained for one(1)year following completion of all Services under this Agreement. 14.2. Requirements of Insurance. 14.2.1. Insurance shall be procured and maintained with insurers with an A-or better rating as determined by Best's Key Rating Guide.All insurance shall be continuously maintained to cover all liability,claims,demands,and other obligations assumed by the Contractor. 14.2.2. All policies of insurance shall be primary insurance,and any insurance carried by the City,its officers,or its employees shall be excess and not contributory insurance to that provided by the Contractor. The Contractor shall not be an insured party for any City-obtained insurance policy or coverage. 14.2.3. The Contractor shall be solely responsible for any deductible losses. 14.2.4. No policy of insurance shall contain any exclusion for bodily injury or property damage arising from completed operations. 14.2.5. Proof of required insurance shall be maintained in all equipment and motor vehicles insured in accordance with the provisions of this Agreement. 14.3. Failure to Obtain or Maintain Insurance. The Contractor's failure to obtain and continuously maintain policies of insurance in accordance with this Section and its subsections shall not limit, prevent, preclude,excuse,or modify any liability,claims, demands,or other obligations of the Contractor arising from performance or non- performance of this Agreement. Failure on the part of the Contractor to obtain and to continuously maintain policies providing the required coverage,conditions, restrictions, notices,and minimum limits shall constitute a material breach of this Agreement upon which the City may immediately terminate this Agreement. 14.4. Insurance Certificates. Prior to commencement of the Services,the respective party shall submit to the other party certificates of insurance for all required insurance. Insurance limits,term of insurance, insured parties,and other information sufficient to demonstrate conformance with this Section and its subsections shall be indicated on each certificate of insurance. 15. RECORDS AND OWNERSHIP OF DOCUMENTS 15.1. Retention and Open Records Act Compliance. All records of the Contractor related to the provision of Services hereunder and records produced or maintained in accordance Page 14 with this Agreement,are to be retained and stored in accordance with the City's records retention and disposal policies.Those records which constitute"public records" under Illinois law are to be at the City offices or accessible and opened for public inspection in accordance with applicable law and City policies. Public records requests for such records shall be processed in accordance with City policies.Contractor agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. 15.2. Ownership. As per Section 16,any work product, materials,and documents produced by the Contractor for the City under this Agreement shall become property of the City upon delivery and shall not be made subject to any copyright unless authorized by the City. The Contractor waives any right to prevent its name from being used in connection with the Services. 16. RIGHTS IN DATA;COPYRIGHT;INTELLECTUAL PROPERTY;DISCLOSURE;CONFIDENTIALITY 16.1. Definition. The term "Data" as used in this Agreement includes commercial proprietary written reports, studies, drawings, trademarks, specifications, designs, models, processes, systems, photographs, computer CADD discs, reports, surveys, software, or other graphic, electronic, chemical or mechanical representations of the Contractor. Data does not include public records information compiled on the City's behalf for the purpose of Service delivery under this Agreement. For purposes of this Agreement, "commercial proprietary" shall not include any written reports, studies, drawings, trademarks, specifications, designs, models, processes, systems, photographs, computer CADD discs, reports, surveys, software, or other graphic, electronic, chemical or mechanical representations of the Contractor that have been or are required to be provided to the City pursuant to this Agreement. 16.2. Rights in Data, Drawing. All Data shall be the property of the Contractor. The licensed software code copyrights and licensed software documentation are licensed to the Contractor for use by the City for the term of this Agreement. No title or ownership or any intellectual property or proprietary rights are transferred to the City under this Agreement. City shall have the full right to use such Data for any official purpose required by law. Such use shall be without any additional payment to or approval by the Contractor. Purpose of the Data under this Agreement shall be limited to provision of the Services. The Contractor shall not be responsible for the use of the Data for any other purpose and the City or any third party users do so at their own risk. 16.3. Copyrights. No Data developed or prepared in whole or in part under this Agreement shall be subject to copyright protection owned by a third party in the United States of America or other country, except to the extent such copyright protection is available for the City. Contractor shall not include in the Data any copyrighted matter owned by a third party unless Contractor obtains the written approval of the City Administrator or designee and provides said City Representative or designee with written permission of the copyright owner for Contractor to use such copyrighted matter in the manner provided herein. 16.4. Right to Data Upon Early Termination. If this Agreement is terminated for any reason prior to completion of the Term,the Contractor shall provide for a fee to the City the right of use for any Data, prepared hereunder which are reasonably required for the City to sustain operation. However, such right shall not be transferable to third parties without Contractor's written approval. Page 115 16.5 Non-Disclosure of Data. City will treat Data and any information received under or through this Agreement in strictest confidence and will not disclose such information to third parties except where such information: (a) was part of the public domain when received, or becomes a part of the domain through no action or lack of action by City, or (b) prior to disclosure was already in City's possession and not subject to an obligation of confidence imposed in another relationship, (c) subsequent to disclosure is obtained from a third party whom is lawfully in possession of such information and not subject to a contractual relationship to Contractor with respect to such information, or (d) is subject to disclosure under the Illinois Freedom of Information Act. City shall continue to maintain appropriate internal policies and procedures which in its judgment are reasonably sufficient to protect the confidential nature of such information. 17. CONFLICTS OF INTEREST 17.1. Refraining from Creatine Conflicts.The Contractor shall refrain from knowingly providing services to other persons,firms,or entities that would create a conflict of interest for the Contractor with regard to providing the Services pursuant to this Agreement.As soon as the Contractor becomes aware of a potential, perceived or real conflict of interest,the Contractor shall immediately inform the City of that conflict. If first notification to the City is verbal,a written notification of the potential conflict will be made within twenty-four(24) hours after verbal notification is made. Said conflict notification will include a recommended approach to mitigating the conflict. If the City concurs with the Contractor's recommended approach,Contractor will immediately implement the conflict mitigation resolution. The Contractor shall update the City on a regular basis regarding the status of the conflict mitigation resolution. If the City believes the recommended approach to the conflict mitigation resolution is insufficient to resolve the conflict,the City shall suggest modifications to the conflict mitigation resolution. The Parties shall endeavor to work out a mutually agreeable resolution. At no time shall the City approve a resolution that permits a management Employee to be involved in a third party project or contract which could give rise to a conflict or potential conflict with the City. If the Parties are unable to reach agreement as to the conflict mitigation resolution,the matter shall proceed to resolution of the matter pursuant to Section(Disputes). 17.2. Public Trust.The Contractor shall not offer or provide anything of benefit to any City official or employee that would place the official or employee in a position of violating the public trust,or any City—adopted Code of Conduct or ethical principles. 17.3. Participation in Other City RFPs. Nothing in this Agreement shall prohibit Contractor from being eligible to participate in any additional requests for proposals,statements of qualifications,or any other bids the City may request. If the Contractor is awarded any of these additional bids,Contractor agrees to enter into a separate agreement for those services to be provided. 17.4. Costs for Conflict Resolution. Any reasonable costs incurred by the City related to resolution of any matter addressed by this subsection shall be reimbursed to the City by the Contractor or off-set against compensation otherwise owing the Contractor. Page 16 18. MUTUAL NON-SOLICITATION The Contractor agrees that during the term of the Agreement and for a period of one year following the termination or non-renewal of the Agreement, Contractor shall not either directly or indirectly solicit, induce, recruit or encourage any of the City's employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage, take away or hire employees of the City, either for Contractor or any other person or entity. Nothing contained in this provision shall prohibit the hiring of any City employee if such hire was not induced and the employee independently and without notice of opportunity by the Contractor applied for the position and the position was both open to the public for application and the employee was subject to a competitive process. Unless mutually agreed, during the term of the Agreement and for a period of one year following the termination or non-renewal of the Agreement, the City shall not solicit for employment any of Contractor's management employees. Nothing contained in this provision shall prohibit the hiring of any employee if such hire was not induced and the employee independently and without notice of opportunity by the City applied for the position and the position was both open to the public for application and the employee was subject to a competitive process. 19. MISCELLANEOUS PROVISIONS 19.1. No Waiver of Rights. A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either Party. 19.2. No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the City, its officials, employees, contractors, or agents, or any other person acting on behalf of the City and, in particular,governmental immunity afforded or available pursuant to the laws of the state of Illinois. 19.3. Affirmative Action. Contractor will not discriminate against any employee or applicant for employment because of race,color, religion,sex,sexual orientation or national origin. Contractor will take affirmative action to ensure applicants are employed,and employees are treated during employment without regard to their race, color, religion, sex, sexual orientation or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation;and selection for training, including apprenticeship. 19.4. Binding Effect. The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns; provided that this Section shall not authorize assignment. 19.5. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub-consultant or sub-contractor of Contractor. Absolutely no third party beneficiaries are intended by this Agreement. Any third-party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. Page 117 19.6 Governing Law, Venue and Enforcement. This Agreement shall be governed by and interpreted according to the law of the State of Illinois. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement,the Parties may waive any and all rights to a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Agreement. If there is any conflict between the language of this Agreement and any exhibit or attachment, the language of this Agreement shall govern. 19.7. Survival of Terms and Conditions.The Parties understand and agree that all terms and conditions of the Agreement that require continued performance, compliance, or effect, beyond the termination date of the Agreement shall survive such termination date and shall be enforceable in the event of a failure to perform or comply. 19.8. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Contractor without the express written consent of the City. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by the City. No assignment shall release the Applicant from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. 19.9. Paragraph Captions. The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. 19.10. Integration. This Agreement represents the entire and integrated agreement between the City and the Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. 19.11. Amendment. Any amendments to this Agreement, including any exhibits hereto, must be in writing and be signed by both the City and the Contractor. 19.12. Severability. Invalidation of any of the provisions of this Agreement or any paragraph sentence, clause, phrase, or word herein or the application thereof in any given circumstance shall not affect the validity of any other provision of this Agreement. 19.13. Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated into this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 19.14. Employment of or Contracts with Illegal Aliens. Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. Contractor shall not contract with a Subcontractor that fails to certify that the Subcontractor does not knowingly employ or contract with any illegal aliens. If the Contractor obtains actual knowledge that a Subcontractor performing work under this Agreement knowingly employs or contracts with an illegal alien, the Contractor shall be required to notify the Subcontractor and the City within three (3) business days that the Contractor has actual knowledge that a Subcontractor is Page ( 18 employing or contracting i i i Page 119 with an illegal alien.The Contractor shall terminate the subcontract if the Subcontractor does not stop employing or contracting with the illegal alien within three(3) business days of receiving the notice regarding Contractor's actual knowledge. The Contractor shall not terminate the subcontract if, during such three (3) business days, the Subcontractor provides information to establish that the Subcontractor has not knowingly employed or contracted with an illegal alien. The Contractor is required to comply with any reasonable request made by the Department of Labor and Employment made in the course of an investigation undertaken to determine compliance with this provision and applicable state law. If the Contractor violates this provision, the City may terminate this Agreement, and the Contractor may be liable for actual and/or consequential damages incurred by the City, notwithstanding any limitation on such damages provided by such Agreement. 19.15. Notices. Unless otherwise specifically required by a provision of this Agreement any notice required or permitted by this Agreement shall be in writing and shall be sent by certified mail or registered mail, postage and fees prepaid, addressed to the Party to whom such notice is to be given at the address set forth below. Such notice shall be deemed to have been given when deposited in the United States Mail properly addressed to the intended recipient. If to the City: If to Contractor: City Administrator InterDev, LLC United City of Yorkville 2650 Holcomb Bridge Road 800 Game Farm Suite 120 Road Alpharetta,GA 30022 Yorkville, IL 60560 ATTN: Contracts Page 20 19.16. Negotiation. The Parties acknowledge that the terms of this Agreement were jointly negotiated between the Parties, that both Parties were represented by attorneys and that, and in the case of any dispute regarding the terms of this Agreement,the terms should not be construed in favor of or against either Party. 20.AUTHORITY 20.1. Authority. The person executing this Agreement on behalf of Contractor, by execution hereof, hereby represents to the City that such person has full power and authority to make and execute this Agreement and that the making and execution hereof shall create a legal obligation upon Contractor, enforceable according and to the extent of the provisions hereof. The Mayor, by his execution hereof, represents to Contractor that he has full power and authority to make and execute this Agreement on behalf of the City, pursuant to the Resolution of the City Council of the City, and that the making and execution hereof shall create a legal obligation upon the City, enforceable according and to the extent of the provisions hereof. 20.2. Obligations Not Contrary to Insurance Requirements. Nothing contained herein or any obligation on the part of Contractor to be performed hereunder shall in any way be contrary to or incontravention of any policy of insurance or surety bond required of Contractor pursuant to the laws of the State of Illinois. 20.3. Service by Affiliates. Contractor shall perform this Agreement under the name of InterDev LLC. It shall be the duty of Contractor to insure: (1)that any affiliates who conduct business for the City pursuant to this Agreement have executed all documents necessary to be legally bound to the City regarding said business; and (2) that any affiliates who conduct business for the City pursuant to this Agreement are in full compliance with the terms hereof. 21. DISPUTES 21.1. Key Personnel Resolution Meeting. In the event that a Party believes there is a controversy or dispute regarding this Agreement or any of its terms, conditions or obligations, the Program Director and the City Representative shall within a reasonable timeframe meet and attempt to reach resolution on such dispute within the timeframe requested by the aggrieved Party. 21.2. Mediation. If resolution is not reached as provided in Section 21.1, the Parties shall refer the matter to non-binding mediation. The mediator shall be selected by joint agreement of the Parties within thirty (30) calendar days of the date of the Key Personnel Resolution Meeting and such mediation shall be scheduled to occur as soon as is reasonably possible, depending on the nature of the dispute. Each Party shall pay 50% of the third party costs of mediation. Mediation shall occur in the Chicago area. 21.3. Continuation of Services. Unless otherwise agreed in writing, Contractor shall continue to provide Services during any dispute resolution proceedings. If Contactor continues to perform, City shall continue to make payments in accordance with this Agreement. 21.4. Emergency Action Not a Waiver. Under certain emergency circumstances related to the Services hereunder, either Party may from time to time take immediate action to remedy such problem. Such action shall not be deemed a waiver of such Party's right to seek reimbursement or exercise any other remedy available to such Party hereunder. Page ( 21 21.5 If any matter is not resolved via mediation,the venue for any judicial action shall be in the Circuit Court of Kendall County,Illinois. The Parties, intending to be legally bound, indicate their approval of the Agreement by their signatures below. InterDev, LLC: THE UNITED CITY OF YORKVILLE,ILLINOIS: By: �lf�10 By: Name: Gary E. Nichols Name: Title: CEO Title: City Admi istrator Date: March 9,2017 Date: Page 122 EXHIBIT A-SERVICES Yorkville is looking to partner with an IT services provider that can help support, manage and provide guidance for the best use of technology in support of its service goals for the citizens of Yorkville. InterDev provides its clients with highly trained staff that exhibit the drive, initiative and commitment to achieve the very best results for the customers they serve. InterDev's team will be dedicated to the success of the Municipality and its initiatives and they will work closely with the municipal staff to improve services while monitoring budgets and reducing costs. Scope of Work- IT Support: 1. Strategic Planning InterDev will prepare and distribute an annual strategic management plan describing goals, objectives,and budgetary numbers to facilitate budgets and planning for the next year. For the IT team this role is expanded to cover all City Departments to ensure that all initiatives that have IT components are planned and coordinated across the Municipality.This allows for resource planning and for the IT team to determine overlaps in technology and services, eliminating duplication and waste. • For planning purposes,the CIO level experience you receive as part of our model will be invaluable in setting the direction of IT for the Municipality. We will develop,with the input and approval of the City/City Administrator and other municipal-designated staffers,a comprehensive strategic IT plan on a timeline to be mutually agreed upon by InterDev and the Municipality prior to contract initiation and updated on a regular basis.As both technology and needs may evolve rapidly,we recommend semi-annual reviews of the plan. Page 21 2. Server and Workstation Administrative Services • InterDev utilizes ConnectWise for our practice management application and LabTech for our server/desktop monitoring and support application.These best-in-class solutions have helped InterDev build an excellent reputation among its clients for IT service and satisfaction. InterDev can continue to support the Oswego staff using the Municipality's existing support tools.We would suggest leveraging the ConnectWise/Labtech technology to support a more efficient service delivery for Yorkville. The use of this technology by all of the GovIT consortium members allows for constant monitoring by staff which may not strictly assigned to Yorkville. Additional help and support service expertise is more available through this shared support model. We automate and monitor the patch management process for servers and workstations to ensure timely implementation of security updates.Automation is key to this process as it keeps this tedious yet critical task from being relegated to the back burner. .CoanedWise Today r: L My Projects 4p Service Ticket Search }. f +�I ConnectOse Servke 7kkM Search>New TskM _. MMv Tid[et - ^*My Favorites riA + 8 0 - 0 ... -. Lnks- _. Ow (D a y Comlectwise Today SH1taWty:- Eych.WEmar NOTReapm w. ConnecfMse 1 conttaly �.. biaye ixd T£le Central certpany. lrh O . Sic Mas L.Awn My Calendar P"Wt Guy Nkhoht • i +yr Adele 1 50 26Nobome lYtlpe Ad q _. Died v (6781672 1502 (s Addrasa 2 suis ata Project Board €t#, _. 6nN prlchobtantaea cam i CN AOar#U My Proje- ' st te: GA Service Board Zip: 30022 country: Service Ticket .. search Ticket Companies a°er° suywwsk ------ SLA: Sumaw SLA isafes Typo Genual&*Pm Pied—..: ©Marl0elltlg Subtype: ..___.. __._._.---_._--— .-- E.*.w SlatV ie, I it- - D.Dun: &i Proje Duriw,: SeMce DeSK Priub: O Rare 3•AlaOasn . I � SLA Sta n: Time Expense I Finance kdltel Description 4 Unade taconneel to Emit Er.ahanpe server 44 System - • This technology is scalable and can provide great insight into the support and optimization of the Municipality's environment.We are able to accurately track equipment and software inventory to ensure an efficient refresh schedule. InterDev has an established PC/Server Lifecycle plan for Yorkville to ensure that all desktop and laptop hardware is up-to-date and stays current with industry standards. Page 122 3. Data Backup and Disaster Recovery • The foundational underpinning for the Municipality's technology infrastructure will be the development and implementation of comprehensive disaster recovery and IT business continuity plans.These plans will directly influence policy,security, network and hardware infrastructure and software setup and deployment. • InterDev will develop a business plan that identifies critical functions, identifies resources that support the critical functions,develops scenarios for potential disasters, and develops a strategy for testing and revising the plan.The plan will detail how long it will take to get back online,what it will cost and what plan is followed in the interim. • InterDev has completely restructured and improved many backup and recovery infrastructures for our customers by implementing solutions that drastically reduce the amount of downtime that could occur during a disaster situation, while increasing the customers' backup capabilities. InterDev will improve backup and recovery systems and procedures to ensure all of the Municipality's critical data are properly protected. • Annual reviews and training for the Disaster Recovery/Business Continuity plan will be conducted and subsequent to any significant changes that are made to the computer/network/telecommunications,so that changes to the Municipality's environment can be incorporated. In addition,audits and simulation of a disaster and recovery will be conducted on a schedule to be mutually determined during initial planning. 4. Desktop Application Support • Installing, configuring and maintaining any additional hardware and software is a fundamental component of our service. Our goal will be to ensure new products integrate and work effectively and perform as expected by the Municipality, its staff and its citizens. InterDev commits to support the entire technology infrastructure for the Municipality and effectively merging new technology into the environment is part of that commitment. Page 123 5. Network Administration Services • Our staff has extensive network switching, routing,and security experience. We will manage all aspects of the Municipality's network, along with looking at ways to improve IT operations to better serve the staff and citizens of the Municipality. InterDev staff has experience with multiple VolP systems, including the Oswego's Cisco Unified Communications version 10.5 system. 6. 24/7/365 troubleshooting for all Municipal 1T systems • InterDev will provide for the 24/7/365 systems support and troubleshooting for all Municipality systems. We will staff an onsite help desk with extended business hours to provide local support for the users between the hours 7:30 AM and 6:00 PM Monday through Friday. InterDev will commit to a 15-30-minute response time for all calls. • After-hours support calls will be managed via phone support or through our remote management toolset.This toolset provides our support staff with a secure method of remotely controlling and troubleshooting user PCs, networks and systems infrastructure. • Incident reports and warnings are sent via email and text messages automatically to the on-duty InterDev support staff. Examples of this type of issue may include:failed backup processes,network downtime, offline servers,or delayed responses for networked resources. 7. Telephone,Email,and Security • InterDev will manage and support the Municipality's Microsoft Exchange email systems to provide a safe and secure communications environment for the Municipality.This includes full archival services during the duration of the contract,to support all local, state and federal laws and regulatory requirements. • New user accounts will be set up with appropriate security and access levels, and existing accounts will be reviewed to ensure they are in compliance. InterDev will engage in user and group data integration and aggregation to create common contact lists and facilitate scheduling of individuals and resources for meetings,events and action items. • InterDev will support the Municipality's VoIP phone system if procured by the City during the contract term and work with the vendor to ensure all necessary updates and upgrades are evaluated and implemented according to Municipality approved timelines and budgets. 8. Remote Access Administration • InterDev will provide, monitor,and improve upon any existing VPN system that the Municipality has been utilizing.We will make sure that all access through the VPN is Page 124 secured to comply with various government and industry standards,along with maintain a two-factor authentication system for access for added security. 9. Annual Vulnerability Assessment • At InterDev we internal Vulnerabilities strive to provide best practice PornograpRg �■�1mz security services sn,r°w.re tom. using state of the utarex ��I�.80:r art techniques WO Mae, and tools.To v iD 20 3'- AD 50 60— 70 80 90 100 conduct our 9i Tett"Sme Unt"tricted Vulnerability Assessment,we use the Rapid Fire Tools Network Detective Scanner. Driven by the largest and most up-to-date knowledgebase of vulnerability checks in the industry, Rapid Fire Tools external and internal scanners safely and accurately detect security vulnerabilities across your entire network.As an on-demand service, new signatures are delivered weekly,giving users the ability to scan for the latest threats. Network Detective's extremely accurate scans eliminate the time drain of chasing false positives,false negatives and host crashes. Risk Score The Risk Score is a value from 1 to 100, where 100 represents significant risk and potential issues. Low Disk Hi h Risk 77 Several critical issues were identified. Identified issues should be investigated and addressed according to the Management plan. • In addition to using the Network Detective Scanner, InterDev provides detailed analysis of all vulnerabilities discovered during the scanning process.We then provide customized remediation suggestions to fit the needs of your organization.We can also assist or carry out any task that is associated with our recommendations. Page 25 External Vulnerabilities 23 H# i lnedf.X, I tm4 3 Host Issue Summary Hent A—b'— 0p P— Nigh M" 3— Fatre C'v55 4162AS25 Med—rl< 14 0 i 3 D 2! 17l,]i.si58(n208304nAasxunpc.dej Hi4+i lili 7 2 0 3.9.4 46 M.23a232(M1nhEbm�dc1 l4edur.re. 13 0 . 4 0 O.H li.x3o.ln.u(eec+s.e4...dm.q eewt...nr: u o 3 o is.l 1/323.323.+18 yerQiOsvm.I+� rYe ! 0 0 27.0 T-1:5 Hlpfld 54 3 l2 12 0 53.9 Detected owa0eg Sw ms laYn 1(Mkl 1 11nkM.t) 1 1X•Ulf[lAe i 10.Network Monitoring We will utilize the Auvik network monitoring solution to monitor critical hardware and services for the Municipality while tracking overall network performance.Automated mapping,automated Inventory, Network documentation,and IP address management are just a few features provided by this state of the art solution.The Auvik solution also automatically syncs with the ConnectWise management application. 9DFP0 KXEMDDYS ffiDMC� �>�, •-'`•• A.w�=. r'Z6 SERVICESauvik F4wSmsea G �..w.�....ers�i•vim.— ��Y"�.��'el Y.•wl n®.uat sex. _ X1Tn 194X+ WYf d N 1 6 m !D Page 26 Service Levels and Response Times Below is our standard calculation to determine support issues, primarily desktop support. We have also included a template for the matrix we use to help setup Service Level Agreements (SLAs)for clients. InterDev will work with the Municipality to determine the most appropriate levels of support for each category of incident then abide by and follow the Municipality's existing support response standards. This process will ensure InterDev's response is in sync with the Municipality's expectations, business needs and budgets. Urgency+ Impact= Priority An Incident's priority is usually determined by assessing its impact and urgency,where • Urgency is a measure how quickly a resolution of the Incident is required • Impact is measure of the extent of the Incident and of the potential damage caused by the Incident before it can be resolved. "(H) r enc Categories of Urgency) Description • The damage caused by the Incident increases rapidly. • Work that cannot be completed by staff is highly time sensitive. . A minor Incident can be prevented from becoming a major Incident by acting immediately. • Several users with VIP status are affected. Medium (M) . The damage caused by the Incident increases considerably over time. • A single user with VIP status is affected. Low(L) • The damage caused by the Incident only marginally increases over time. Work that cannot be completed by staff is not time sensitive. Incident Im act Categories of Impact) Description High(H) • A large number of staff are affected and/or not able to do their job. A large number of customers are affected and/or acutely disadvantaged in some way. The damage to the reputation of the business is likely to be high. Someone has been injured. Medium (M) . A moderate number of staff are affected and/or not able to do their job properly. A moderate number of customers are affected and/or inconvenienced in some way. Page 127 • The damage to the reputation of the business is likely to be moderate. Low(L) • A minimal number of staff(single user incidents)are affected and/or able to deliver an acceptable service but this requires extra effort. • A minimal number of customers are affected and/or inconvenienced but not in a significant way. • The damage to the reputation of the business is likely to be minimal. The finalized Priority Matrix for each Service Level or SLA layer would look something like below. Impact H M L H 1 2 3 Urgency M 2 3 4 L 3 4 5 Priority Code Description Target Response Time Target Resolution Time 1 Critical 30 Minutes 1 Hour 2 High 1 hour 8 Hours 3 Medium 4 Hours 24 Hours 4 Low 8 Hours 24 Hours 5 very low 1 Day 1 Week An SLA structure such as this helps increase our efficiency and effectiveness of dispatching tickets and getting them resolved in a timely manner. It also helps to set municipal staff expectations for when they can expect their incident or service requests to be filled.These levels can be modified by department if higher response levels are necessary for certain municipal services(i.e. Public Safety). Page 128 Staffing Plan InterDev's Managed IT Services'solution is based on a joint RFP to serve both Oswego and Yorkville.The agreement is designed to meet both Municipality's technical and service level objectives and provide a reliable and scalable platform for future growth. Per the RFP,Oswego is requesting 32 hours per week of on-site support and Yorkville is requesting eight hours per week for Yorkville. Based on the requested assistance and the results of our IT assessment InterDev is proposing an IT Staffing Plan with one(1) Systems Engineer II on-site resource. Monthly Tier III During InterDev's recent IT assessment of Oswego and Yorkville, many discoveries were made within the Network environment of both Municipalities (see assessment documentation). Remediation of these issues will require advanced network engineering therefore we are proposing additional Tier III engineering services on an indefinite monthly basis.We believe 10 hours/month will allow for adequate time to complete some of the crucial project initiatives we identified during the assessment. Invoicing for Tier III services shall be allocated based on actual time used by each municipality. Additional Resources Additional networking engineering support,security engineering and support will be available from InterDev. Project Management resources will be applied from our PMO office,as well as senior Technical or Security Engineers as needed.The InterDev transition team will be onsite initially as needed to ensure a smooth conversion to InterDev's management of the Municipality's IT environment.Should either Municipality join the GovIT Consortium additional local IT resources will be available in the consortium's shared services model for larger projects, planning or conversions. Oswego and Yorkville, IL IT Support Team T3 Systems Engineer vG0 (OPTIONAL:10 hrs/month) T2 i Project Manager Systems Engineer (Onsite 40 hrs/week) i Security Engineer BackOffice L----- ----� Support T1 Systems Engineer i Accounting&HR Helpdesk Transitional/As NeedJed Resources GavCr Consortium Resources (Contingent on membership) Page 29 EXHIBIT B-COMPENSATION Pricing The following table includes InterDev's recommended resources for Oswego and Yorkville's Information Technology Department and their corresponding rates.The Municipalities are requesting a combined total of five (5)days/week(40hrs) of Level I and II support. We are recommending and prepared to provide one(1)Tier II engineer who will split time between Village/Village Hall. Resources Hourly Monthly Cost Rate Systems Engineer Tier II—Yorkville Onsite $77.64 $2,691 (8 Hours/Week) Total IT Services Price on Joint Contract: $2,691/Month 5%Escalator shall apply at anniversary of agreement. Monthly Tier III Resource (Optional) Recommended Resource: Recommended Rate Monthly Cost • Systems Engineer Tier III 10 Hours/Month $102.81 $1,028 Profiles for the InterDev Management team are included in the body of this proposal.InterDev will provide any additional information regarding each participant upon request.Due to the sensitive nature of the data managed by InterDev at our Public Sector clients,and in accordance with State and Federal laws,all InterDev government team members have participated in official FBI-Criminal Justice Information Systems(C/1S)training.All members of the transition team have undergone thorough background checks by multiple municipalities,state and federal agencies.Any and all additional staff members assigned to support Oswego and Yorkville will be subject to InterDev's rigorous internal background checks and any Municipality background investigations requested. Page 130 Additional Available Project Resources Both municipalities have anticipated additional planning and resources for special projects.We have provided a listing of the resources available from InterDev and their hourly rates in the table below. Contracted Billable Hourly Resources and Services Hourly Rate As Needed (Contracted Billable Hour and As Needed Rates) (9 month or greater Hourly Rate Full-Time contract) Additional Technical Consulting Resources: • Systems Engineer 1 $61.69 $95.91 • Security Engineer $143.94 $223.80 • Sr. Project Manager $87.39 $135.88 • Chief Information Officer $179.92 $279.95 Recommended Software Licensing (Estimates based on Proposal) Recommended Software Licensing Rate Oswego Cost Yorkville Cost ConnectWise-Helpdesk,Ticketing and CRM LabTech- Server and Desktop Monitoring, Patching,Asset Inventory and Remote Access Webroot- AntiVirus and Endpoint Security Auvik—Advanced Network Monitoring, Switches, Routers, Firewalls and VOIP • ConnectWise technician License $75.00/seat/month $75.00 $75.00 85 PC's, 9 143 PC's, 10 • LabTech License-per device $3.00/device/month Servers Servers (workstation or server) $282.00 $459.00 85 PC's 143 PC's • Webroot AV License-per PC $1.50/PC/month $127.50 $214.50 24 Cisco 3 Switches,2 • Avik License $10.00/device Devices AP's $240.00 $50.00 Monthly Software License Total $724.50 $798.50 Page 131