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HomeMy WebLinkAboutExhibit - Addendumf'\NN 1)1RE7_, (1)11(,) t.'rocurcillierit Officer 'DAN IEL J. ALFONSO City Magr CLIENT AGREEMENT BETWEEN TARGETSOLUTIONS LEARNING, LLC AND THE CITY OF MIAMI ADDENDUM The City of Miami (City) is amending the above mentioned agreement to support continued, on- going use of proprietary software applications in accordance with City Code 18-72 (b) (15) as authorized by Resolution 11-0398. The original purchase of the software was procured through RFP Contract No. 251230 from TargetSolutions Learning, LLC (TargetSolutions) with an effective date of November 15, 2011 and expires March 14, 2017. This Addendum to the Client Agreement between the City of Miami and TargetSolutions Learning, LLC includes City of Miami legal requirements. The term of this Addendum is stated in Article 5 of the Client Agreement, entitled "Term", and as further outlined in Schedule A, License Terms. The Client Agreement and Schedule A, License Terms are attached hereto as Exhibit A and made a part hereof. A) Article Number 7.7 of the Client Aqreernent, titled "Entire Agreement" is hereby deleted and replaced with the following: "The Provisions of this Addendum shall supersede any and all provisions in any other agreement or understanding between the parties whether oral or in writing and, in the event a provision or this Addendum conflicts with a provision of TargetSolutions Learning, LLC Client Agreement, or seeks to eliminate a provision of the Client Agreement, the provisions of the Addendum shall apply. Collectively, this Addendum and Client Agreement are herein known as the "Agreement" between both parties." B) TargetSolutions Learning, LLC' Responsibilities: 1. TargetSolutions Learning, LLC has agreed to furnish the services as further described in RFP Contract No. 251230, as indicated in Exhibit B, Specification/Scope of Services as attached. 2. TargetSolutions Learning, LLC will provide the services to the City in an amount equal to the costs identified in Exhibit A, TargetSolutions Learning, LLC Schedule A. 3. TargetSolutions Learning, LLC responsibilities will commence on the effective date of this agreement. C) Indemnification: 1. Article Number 7.2 of the Client Agreement, titled "Indemnification" is hereby deleted and replaced with the following: TargetSolutions Learning, LLC shall indemnify and hold/save harmless and defend at its own cost and expense, the City, its agencies and instrumentalities such as its Community Redevelopment Agency, trustees, elected and- appointed officials, agents, servants and employees from and against any claim, demand or cause of action (in this Section collectively referred to as the "City") of whatsoever kind or nature arising out of error, omission, mistake, or negligent or careless act or failure to act of TargetSolutions Learning, LLC, its agents, servants or employees in the performance of its obligations pursuant to this Agreement, and/or of TargetSolutions Learning, LLC failure to comply with any applicable federal, state , county or city law, rule or regulation applicable to TargetSolutions Learning, LLC's responsibilities under this Agreement including without limitation Consumer, Debtor/ Creditor , Credit Reporting and/or Mortgage Laws, Rules or Regulations, and / or its performance of this Agreement. This indemnity, hold harmless and duty to defend is equally applicable to for all costs, losses and expenses, including but not limited to, damages to persons or property, judgments, reasonable attorney's fees, paralegal expenses, and court costs at both the administrative, regulatory , trial and appellate levels arising out of or in connection with the operations permitted under this Agreement". 2. The parties recognize that various provisions of this Agreement, including but not necessarily limited to this Section, provide for indemnification by TargetSolutions Learning, LLC and requires a specific consideration be given therefore. The parties therefore agree that the sum of Ten Dollars and 00/100 ($10.00), receipt of which is hereby acknowledged, is the specific consideration for such indemnities, and the providing of such indemnities is deemed to be part of the specifications with respect to the services to be provided by TargetSolutions Learning, LLC. Furthermore, the parties understand and agree that the covenants and representations relating to this indemnification provision shall serve the term of this Agreement and continue in full force and effect as to the TargetSolutions Learning, LLC responsibility to indemnify the City, will survive the cancellation or expiration of this Agreement, as applicable. TargetSolutions Learning, LLC will indemnify, defend, and hold City, harmless for any negligent acts of TargetSolutions Learning, LLC or for any violation of any intellectual property laws, intellectual property rights, contracts or, rules, regulations, or statutes, D) Ownership of Documents; Content Provided to Provider; Intellectual Property Rights and Security; Use of Media Management Software: TargetSolutions Learning, LLC understands and agrees that any information, document, report or any other material whatsoever (Information) which is given by the City to TargetSolutions Learning, LLC, its employees, or any subcontractor, or which is otherwise obtained or prepared by TargetSolutions Learning, LLC pursuant to or under the terms of this Agreement, is an shall at all times remain the property of the City. TargetSolutions Learning, LLC agrees not to use any such information, document, report or material for any other purpose whatsoever without the written consent of the City Manager, which may be withheld or conditions by the City Manager in his sole discretion. TargetSolutions Learning, LLC is permitted to make and to maintain duplicate copies of files, records, documents, etc. if it Page 2 determines copies of such records are necessary subsequent to the termination of this Agreement; however, in no way shall the confidentiality as permitted by applicable law be breached. The City shall maintain and retain ownership of any and all documents which result upon the completion of the work and services under this Agreement. E} Audit And Inspection Rights And Retention Of Records: TargetSolutions Learning, LLC hereby agrees and understands that the public shall have access, at all reasonable times, to all documents and information pertaining to the City, subject to the provisions of Chapter 119, Florida Statutes, arid any specific exemptions there from, and TargetSolutions Learning, LLC agrees to allow access by the City and the public to all documents subject to disclosure under applicable law unless there is a specific exemption from such access. TargetSolutions Learning, LLC' failure or refusal to comply with the provisions of this section shall result in immediate termination of TargetSolutions Learning, LLC by the City. Pursuant to the provisions of Section 119.0701, Florida Statutes, TargetSolutions Learning, LLC must comply with the Florida Public Records Laws, specifically Target Solutions Learning, LLC must: 1) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. 2) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. 3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. 4) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of TargetSolutions Learning, LLC upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. 5) All records stored electronically must be provided to the City in a format compatible with the information technology systems of the public agency. The inspection and Audit provisions set forth in Sections 18-101 and 18-102 of the City Code are deemed as being incorporated by reference herein and additionally apply to this Agreement. F) Independent Contractor: This Agreement does not create an employee/employer relationship between the parties. It is the express intent of the parties that TargetSolutions Learning, LLC is an independent Contractor under this Agreement and not the City's employee for all purposes, including but not limited to, the application of the Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Workers Compensation Act, any benefits under the City Pension Ordinances, and the State unemployment insurance law. TargetSolutions Learning, LLC shall retain sole and absolute discretion in the judgment of the manner and means of carrying out TargetSolutions Learning, LLC' activities and responsibilities hereunder, TargetSolutions Learning, LLC agrees that it is a separate and independent enterprise from the City, that it has full opportunity to find other Page 3 business, that it make its own investment in its business, and that it will utilize a high level of skill necessary to perform the work. This Agreement shall not be construed as creating any joint employment relationship, joint venture partnership or other affiliated entity status between TargetSolutions Learning, LLC and the City and the City will not be liable for any obligation incurred by TargetSolutions Learning, LLC, including but not limited to unpaid minimum wages and/or overtime premiums. In this regard the City is not responsible for any debts, defaults, acts or omissions of TargetSolutions Learning, LLC or its officials, agents, servants and employees. G) Notices: TO THE C TY: Daniel J. Alfonso City Manager 3500 Pan American Drive Miami, Florida 33133 Victoria Mendez City Attorney 444 SW 2nd Avenue, 9th Floor Miami, Florida 33130 Annie Perez, CPPO Procurement Director City of Miami 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 TO TARGETSOLUTIONS LEARNING, LLC: TargetSolutions Learning, LLC 4890 Kennedy Blvd Suite 740 Tampa, FL 33609 Attn.: Jon Katz, EVP, Corporate Development H) Applicable Law, Venue and Attorney's Fees: This Agreement with the City of Miami will be governed by and construed under the laws of the State of Florida regardless of choice or conflict of laws principles. Venue in any proceedings between Champions and the City of Miami will be in a court of competent jurisdiction located in Miami -Dade County, Florida. Each party shall bear their own respective attorney's fees. Page 4 1) Laws and Ordinances TargetSolutions Learning, LLC shall be responsible to follow and observe all applicable laws, rules, regulations and ordinances of the City, County, State, Federal governments or other public agencies having jurisdiction over the subject matter of this Agreement relating to the activities, undertakings and operations being conducted pursuant to this Agreement. J) Equal Employment Opportunity: In the performance of this Agreement, TargetSolutions Learning, LLC shall not discriminate against any firm, employee or applicant for employment or any other firm or individual in providing services because of sex, age, race, color, religion, ancestry, disability, or national origin. K) Insurance: TargetSolutions Learning, LLC shall provide and maintain in force at all times during the Agreement with the City, such insurance, including Workers' Compensation and Employer's Liability Insurance, Comprehensive General Liability Insurance, Automobile Liability Insurance and Errors and Omissions Insurance to assure the protection contained in the foregoing indemnification undertaken by TargetSolutions Learning, LLC. 1. Workers' Compensation subject to Statutory limits for the State of Florida with $100,000 Employers Liability, 2, Commercial General Liability Insurance with limits of no less than $1,000,000.00 per occurrence, $2,000,000 policy aggregate, affording coverage for bodily injury, including death, and property damage. The certificate of insurance shall insure exposures arising out of premises and operations, products and completed operations, personal injury and advertising liability, and include coverage for contingent and contractual exposures. This insurance shall be written on a primary and non-contributory wording, and shall list the City of Miami as an additional insured. 3. Business Auto Liability protecting against bodily injury and property damage arising out of operation, maintenance or use of any auto, including owned, non -owned and hired automobiles exposures, with limits of not less than $1,000,000.00 per accident. The City shall appear listed as an additional insured on this coverage, 4. Professional Liability/Errors and Omissions Insurance with limits of liability provided by such policy of no less than Si,000,000,00 per claim, $2,000,000 policy aggregate including retro date coverage. 5. A Certificate of Insurance acceptable to the City shall be provided listing the above coverages and providing 30 days prior written notice to the City in the case of cancellation. The City shall be named as an additional insured on all liabilities, except professional liability and workers' compensation coverage. A copy of the certificate shall be mailed to the City's Risk Management Department at the time TargetSolutions Learning, LLC executes this Agreement. Page 5 L) Default: If TargetSolutions Learning, LLC fails to comply materially with any term or condition of this Agreement, or fails to perform in any material way any of its obligations hereunder, and fails to cure such failure within 60 days after reasonable notice from the City, then TargetSolutions Learning, LLC shall be in default. TargetSolutions Learning, LLC understands and agrees that termination of this Agreement under this section shall not release TargetSolutions Learning, LLC from any obligation accruing prior to the effective date of termination. M) Termination: 1. The City, acting by and through its City Manager, shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to TargetSolutions Learning, LLC at least sixty (60) calendar days prior to the effective date of such termination. In such event, the City shall pay TargetSolutions Learning, LLC compensation for services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable to TargetSolutions Learning, LLC for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. 2. The City Manager shall have the right to terminate this Agreement, without notice or liability to TargetSolutions Learning, LLC, upon the occurrence of an event of a material default hereunder. In such event, the City shall not be obligated to pay any amounts to TargetSolutions Learning, LLC for services rendered by TargetSolutions Learning, LLC after the date of termination, but the parties shall remain responsible for any payments that become due owing as of the effective date of termination. In no event shall the City be liable to TargetSolutions Learning, LLC for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. 3. This Agreement may be terminated, in whole or in part, at any time by mutual consent of the parties hereto. In such event the City shall not be obligated to pay any amounts to TargetSolutions Learning, LLC for services rendered by TargetSolutions Learning, LLC after the date of termination, but the parties shall remain responsible for any payments that have become due and owing as of the effective date of termination. In no event shall the City be liable to TargetSolutions Learning, LLC for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. 4. This Agreement may be terminated, in whole or in part, by either party if there has been a material default or breach on the part of the other party in any of its representations, warranties, covenants, or obligations contained in the Agreement and such default or breach is not cured within ninety (90) days following written notice from the non -breaching party. In such event, the City shall not be obligated to pay any amounts to TargetSolutions Learning, LLC for services rendered by TargetSolutions Learning, LLC after the date of termination, but the parties shall remain responsible for any payments that have become due and owing as of the effective date of the termination. In no event shall the City be liable to TargetSolutions Learning, LLC for any additional compensation and expenses incurred, Page 6 other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. N) Assignment: Article Number 7.3 of the Client Agreement, titled "As n ent" is hereby deleted in its entirety and replaced with the following: "TargetSolutions Learning, LLC was selected for these services due to their particular and unique experience in the subject matter of this Agreement which Agreement is not freely assignable or transferable. This Agreement shall not be assigned, transferred, or otherwise sold, by TargetSolutions Learning, LLC, in whole or in part, and TargetSolutions Learning, LLC shall not assign any part of its operations, without the prior written consent of the City Manager, which may be denied, withheld or conditioned, in the City's sole discretion through the City Manager. TargetSolutions Learning, LLC shall have no recourse from the City Manager's refusal to approve this Assignment, other than to cancel the Agreement in the manner provided by subsection (M) above". 0 Mediation: These parties may, at their discretion, agree in writing to resolve any dispute between them arising under this Agreement by submitting such dispute to non —binding mediation by a certified mediator in Miami -Dade County, Florida. The parties shall split the cost of the mediator. The decision of the mediator shall not be binding. P) Contingency Clause: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds, failure to allocate or appropriate funds, and/or change in applicable laws, city programs or policies, or regulations, upon thirty (30) days written notice. Q) Force Majeure: Article Number 7.4 of the Client Agreement titled "Force Majeure" is hereby deleted and placed in its entirety with the following; "A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the event that either party is delayed in the performance of any act or obligation pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for required completion of such act or obligation shall be extended by the number of days equal to the total number of days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking' delay in performance shall give notice to the other party specifying the anticipated duration of the delay, and if such delay shall extend beyond the duration specified in such notice, additional notice shall be repeated no less than monthly so long as such delay due to a Force Majeure Event continues. Any party seeking delay in performance due to a Force Majeure Event shall use its best efforts to rectify any condition Page 7 causing such delay and shall cooperate with the other party to overcome any delay that has resulted'. R) City Not Liable for Delays: TargetSolutions Learning, LLC hereby understands and agrees that in no event shall the City be liable for, or responsible to TargetSolutions Learning, LLC or any subcontractor, or to any other person, firm, or entity for or on account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever related thereto, because of any injunction or other legal or equitable proceedings or on account of any delay(s) for any cause over which the City has no control. S) Use of Name: TargetSolutions Learning, LLC understands and agrees that the City is not engaged in research for advertising, sales promotion, or other publicity purposes. TargetSolutions Learning, LLC is allowed, within the limited scope of normal and customary marketing and promotion of its work, to use the general results of this project and the name of the City. TargetSolutions Learning, LLC agrees to protect any confidential information provided by the City and will not release information of a specific nature without prior written consent of the City Manager or the City Commission. T) No Conflict of Interest: Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of interest, Champions hereby certifies to the City that no individual member of TargetSolutions Learning, LLC, no employee, and no subcontractors under this Agreement or any immediate family member of any of the same is also a member of any board, commission, or agency of the City. TargetSolutions Learning, LLC hereby represents and warrants to the City that throughout the term of this Agreement, Contractor, its employees, and its subcontractors will abide by this prohibition of the City Code. U) No Third -Party Beneficiary No persons other than TargetSolutions Learning, LLC and the City (and their successors and assigns) shall have any rights whatsoever under this Agreement. V) Survival: All obligations (including but not limited to indemnity and obligations to defend and hold harmless) and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement shall survive such expiration or earlier termination, W) Truth -in -Negotiation Certification, Representation and Warranty: TargetSolutions Learning, LLC hereby certifies, represents and warrants to the City that on the date of Contractor's execution of this Agreement, and so long as this Agreement shall remain in full force and effect, the wage rates and other factual unit costs supporting the compensation to TargetSolutions Learning, LLC under this Agreement are and will continue to be accurate, complete, and current. TargetSolutions Learning, LLC understands, agrees and acknowledges that the City shall adjust the amount of the compensation and any additions thereto to exclude Page 8 any significant sums by which the City determines the contract price of compensation hereunder was increased due to inaccurate, incomplete, or non -current wage rates and other factual unit costs. All such contract adjustments shall be made within one (1) year of the end of this Agreement, whether naturally expiring or earlier terminated pursuant to the provisions hereof. X) Counterparts: This Agreement may be executed in three or more counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized. TargetSolutions Learning, LLC: City OF MIAMI, a municipal corporation: BY: BY: Jon Katz, EVP Corporate Development Daniel J. Alfonso, City Manager DATE: DATE: ATTEST: Corporate Secretary/Notary Public ATTEST: Corporate Seal/Notary Seal Todd Hannon, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Risk Management APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, City Attorney Page 9