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04-06-20 City Commission Packet Materials - C10. PSA with Target Solutions Learning for Training Software
Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: James Henderson, Human Resources Director SUBJECT: Authorize the signature of the Interim City Manager on Professional Services Agreement with Target Solutions Learning MEETING DATE: April 6, 2020 AGENDA ITEM TYPE: Consent RECOMMENDATION: City Commission authorizes the Interim City Manager’s signature on the Professional Services Agreement and Scope of Services between the City of Bozeman and Target Solutions BACKGROUND: To fulfill the mandate in section 7 of our Strategic Plan (High performing Organization), the city sought a vendor to centralize training and a means to track and assign tasks in an organized manner. Target Solutions Learning provides a Learning Management System (LMS) that will allow the newly hired training specialist to assign, track, and create training for the City’s employees. UNRESOLVED ISSUES: No unresolved issues. ALTERNATIVES: As suggested by the City Commission FISCAL EFFECTS: The agreement consists of an initial 12 month agreement at the cost of $24,791. The payment will come from the Human Resources budget. Attached Documents: Professional Services Agreement Scope of Services 101 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 1 of 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this _____ day of ____________, 2020 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and TargetSolutions Learning, LLC, d/b/a Vector Solutions (Target Solutions”), a Delaware limited liability company, powered by CrewSense, LLC (“CrewSense”) and Halligan, Inc. (“Halligan”) (collectively referred to herein as “TSL”) hereinafter referred to as “Contractor” and collectively with the City the “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with Contractor to provide the license and perform for City the services described in the Scope of Services attached hereto as Exhibit B and by this reference made a part hereof. 2. Term/Effective Date: The term of this Agreement shall commence on the Effective Date and will remain in full force and effect for twelve (12) months (“Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless notice is given by either party of its intent to terminate the Agreement, at least sixty (60) days prior to the scheduled termination date, but in no case will the Initial Term and any Renewal Term(s) exceed five (5) years. Upon expiration of the Initial or any Renewal Term, access to the Services may remain active for thirty (30) days solely for purpose of TSL’s record keeping (the “Expiration Period”). Any access to or usage of the Services following the Expiration Period shall be deemed City’s renewal of the Agreement under the same terms and conditions. DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 102 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 2 of 11 3. Scope of Services: Contractor will perform the work and provide the services in accordance with the requirements of the Scope of Services, Exhibit B. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay Contractor the amount specified in the Pricing Schedule attached hereto as Exhibit A and by this reference made a part hereof. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Contractor after written request by the City, and will become an additional charge over and above the amount listed Exhibit A. The City must agree in writing upon any additional charges. 5. Contractor’s Representations: To induce City to enter into this Agreement, Contractor makes the following representations: a. Contractor has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. Contractor represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 6. Independent Contractor Status/Labor Relations: The parties agree that Contractor is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in any dealings between Contractor and any third parties. Contractor shall comply with the applicable requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for all members and employees of Contractor’s business, except for those members who are exempted by law. Contractor shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 103 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 3 of 11 compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. In the event that, during the term of this Agreement, any labor problems or disputes of any type arise or materialize which in turn cause any services to cease for any period of time, Contractor specifically agrees to take immediate steps, at its own expense and without expectation of reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief to the City so as to permit the services to continue at no additional cost to City. Contractor shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes 7. Indemnity/Waiver of Claims/Insurance: For other than professional services rendered, to the fullest extent permitted by law and subject to the limits in amount and types of coverage contained in Contractor’s insurance policies identified in its Certificate of Insurance, a copy of which is attached hereto for reference,, Contractor agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith and without limit and without regard to the cause or causes thereof or the negligence of any party or parties that may be asserted against, recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii) any negligent, reckless, or intentional misconduct of any of the Contractor’s agents. For the professional services rendered, to the fullest extent permitted by law and subject to the limits in amount and types of coverage contained in TSL’s insurance policies identified in its Certificate of Insurance, a copy of which is attached hereto for reference,, Contractor agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct of the Contractor or Contractor’s agents or employees. DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 104 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 4 of 11 Contractor shall indemnify and hold City harmless from any and all claims, damages, losses and expenses, including but limited to attorney fees, arising out of or resulting from any third-party claim that the Services or any component thereof infringes or violates any intellectual property right of any person. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist except to the extent of Contractor’s insurance coverage limits as stated above. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). Contractor’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the Contractor to assert its right to defense or indemnification under this Agreement or under the Contractor’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. Contractor also waives any and all claims and recourse against the City or its officers, agents or employees, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except “responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent” as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. In addition to and independent from the above, Contractor shall at Contractor’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 105 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 5 of 11 conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the Contractor in this Section. Contractor shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Automobile Liability - $1,000,000 property damage/bodily injury per accident; and • Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate. The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non- contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any required insurance coverage will be terminated or Contractor’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the Contractor commencing work. 8. Termination for Contractor’s Fault: a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due to Contractor’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. b. In the event of a termination pursuant to this Section 8, Contractor shall be entitled to payment only for those services Contractor actually rendered. DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 106 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 6 of 11 c. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Contractor shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. e. In the event of termination under this Section 8 and upon City’s written request, Contractor shall ensure that all City Data is transferred to City or a third party designated by City securely, within a reasonable period of time, and without significant interruption in service.. 9. INTENTIONALLY OMITTED: a. b. c. e. 10. Limitation on Contractor’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by Contractor under this Agreement, Contractor’s damages shall be limited to contract damages and Contractor hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Contractor wants to assert a claim for damages of any kind or nature, Contractor shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, without unreasonable delay following the facts and circumstances giving rise to the claim. DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 107 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 7 of 11 11. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be James Henderson, Human Resources Director or such other individual as City shall designate in writing. Whenever approval or authorization from or communication or submission to City is required by this Agreement, such communication or submission shall be directed to the City’s Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when City’s Representative is not available, Contractor may direct its communication or submission to other designated City personnel or agents as listed above and may receive approvals or authorization from such persons. b. Contractor’s Representative: The Contractor’s Representative for the purpose of this Agreement shall be Chris Lawrence, Regional Sales Manager, or such other individual as Contractor shall designate in writing. Whenever direction to or communication with Contractor is required by this Agreement, such direction or communication shall be directed to Contractor’s Representative; provided, however, that in exigent circumstances when Contractor’s Representative is not available, City may direct its direction or communication to other designated Contractor personnel or agents. 12. Permits: Contractor shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 13 Laws and Regulations: Contractor shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination, affirmative action, and utilization of minority and small business statutes and regulations. 14. Nondiscrimination: The Contractor agrees that all hiring by Contractor of persons performing this Agreement shall be on the basis of merit and qualifications. The Contractor will have DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 108 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 8 of 11 a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Contractor shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Contractor shall require these nondiscrimination terms of its subcontractors providing services under this agreement. 15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, by any employee or agent engaged in services to the City under this Agreement while on City property or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the right to request proof of such compliance and Contractor shall be obligated to furnish such proof. The Contractor shall be responsible for instructing and training the Contractor's employees and agents in proper and specified work methods and procedures. The Contractor shall provide continuous inspection and supervision of the work performed. The Contractor is responsible for instructing his employees and agents in safe work practices. 16. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 17. Reports/Accountability/Public Information: Contractor agrees to develop and/or provide documentation as requested by the City demonstrating Contractor’s compliance with the requirements of this Agreement. Once per contract year and upon not less than ten (10) days prior written notice, Contractor shall allow the City, its auditors, and other persons authorized by the City to inspect and copy its books and records for the purpose of verifying that the reimbursement of DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 109 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 9 of 11 monies distributed to Contractor pursuant to this Agreement was used in compliance with this Agreement and all applicable provisions of federal, state, and local law. The Contractor shall not issue any statements, releases or information for public dissemination without prior approval of the City. 18. Non-Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all appropriate employee withholdings. 21. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days or such extended period time as may be mutually agreed upon by the parties, from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 22. Survival: Contractor’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 23. Headings: The headings used in this Agreement are for convenience only and are not DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 110 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 10 of 11 be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 24. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 25. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 28. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 29. Integration: This Agreement and all Exhibits attached hereto constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 111 Professional Services Agreement with TargetSolutions for Employee Training Platform FY 2019 – FY 2020 Page 11 of 11 IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA TargetSolutions Learning, LLC, d/b/a Vector Solutions ___________________________________ CONTRACTOR (Type Name Above) By________________________________ By__________________________________ Dennis Taylor, Interim City Manager Print Name: Print Title: ____________________________ APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C Phil Coons Vice President of Sales 112 Page 1 Rev. R (Issued 10.02.2019) Exhibit A Pricing Schedule By signing the Client Agreement, you are 1) agreeing to the pricing and terms presented in the Agreement; 2) agreeing you have read and accept the Client Agreement and License Terms and; 3) agreeing you have read the TargetSolutions Platform System Requirements and Platform Solution Description documents listed in detail at the following URL: https://www.targetsolutions.com/clients/client-resources/ Date: 02-07-2020 Pricing Valid for 90 days. Client Information Client Name: City of Bozeman Address: 121 N. Rouse Ave Bozeman, Montana 59715 Primary Contact Name: James Henderson MS, SPHR, SHRM-SCP, IPMA-SCP, CLRP Primary Contact Phone: 406-582-2346 Terms Effective Date: 04-30-2020 Initial Term (months): 12 Invoicing Contact Information (Please fill in missing information) Billing Contact Name: James Henderson MS, SPHR, SHRM-SCP, IPMA-SCP, CLRP Billing Address: 121 N. Rouse Ave Bozeman, Montana 59715 Billing Phone: 406-582-2346 Billing Email: james.henderson@bozeman.net PO#: Billing Frequency: Annual Payment Terms: Net 30 Annual Subscription Services Product Description Quantity Unit Price Total TargetSolutions Premier Membership Platform Blended rate for all city employees 494 $49.00 $24,206.00 TargetSolutions Maintenance Fee 3 $195.00 $585.00 TargetSolutions Enterprise Solution $500. Waived if signed by 3/31/20. 1 $0.00 $0.00 Total: $24,791.00 DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 113 Page 2 Rev. R (Issued 10.02.2019) Grand Total (including Implementation & Training): $24,791.00 Please note that this is not an invoice and taxes are excluded. An invoice will be sent within fourteen (14) business days of your Contract Effective Date. Implementation & Training Investment One-time Implementation & Training Investment includes the following: • Site Customization • Data upload assistance • Web Meeting Training for Training Administrators Product Description Quantity Sales Price Total TargetSolutions Implementation Investment $1500. Waived if signed by 3/31/20. 1 $0.00 $0.00 Total: $0.00 DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 114 Page 3 Rev. R (Issued 10.02.2019) Exhibit C Scope of Services and License 1. Services. TSL shall provide the following services: 1.1. Access and Use. TSL will provide City a non-exclusive, non-transferable, revocable, limited license to remotely access and use the software as a service (‘Services”) hereunder and, unless prohibited by law, will provide access to any person designated by City (“Users”). 1.2. Availability. TSL shall use commercially reasonable efforts to provide access to and use of the Services by Client’s Users twenty-four (24) hours a day, seven (7) days a week, subject to scheduled downtime for routine maintenance, emergency maintenance, system outages and other outages beyond TSL’s control. 1.3. Help Desk. TSL will assist Users as needed on issues relating to usage via Help Desk five (5) days per week at scheduled hours. 1.4. Upgrades and Updates. TSL may update or upgrade the Services at any time at its discretion. Without paying additional compensation, City will receive access to any general upgrades and updates to the Services licensed from TSL, which upgrades and/or updates TSL makes generally available to its other clients. All updates and upgrades to the Services are subject to the terms and conditions of this Agreement. 2. City’s Obligations. 2.1. Compliance. City shall be responsible for Users’ compliance with this Agreement and use commercially reasonable efforts to prevent unauthorized access to or use of the Services. 2.2. Identify Users. City shall (i) provide a listing of its designated/enrolled Users; (ii) cause each of its Users to complete a profile; (iii) maintain user database by adding and removing Users as appropriate; and (iv) when purchasing asset inventory management Services, identify stations, vehicles, drug safes, and other service specific details, as may be applicable. 2.3. Future Functionality. City agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any public comments regarding future functionality or features. 2.4 Incident Tracking Service and Incident Management System Specifically Excluded. TSL is not offering to provide, and the City is not purchasing “Incident Tracking Services” or “Incident Management System” under this Agreement and such Services are not available under the terms and conditions of this Agreement. Should the City subsequently request “Incident Tracking Service” or “Incident Management System”, then such Services may only be added by mutual written amendment to this Agreement. Any order for such Services submitted via issuance of a City purchase order is hereby rejected and shall be of no force and effect absent a written agreement signed by both parties detailing the terms, conditions, and restrictions applicable to the provision of such “Incident Tracking Service” and “Incident Management System”. 3. Fees and Payments. 3.1. Fees. City will pay for the Services in accordance with the fee schedule in Exhibit A attached to the Agreement. Fees listed in Exhibit A shall be increased by 3% per year both during the term of the Agreement, as well as for any renewal terms. License fees do not include any shipping, duties, bank fees, sales, use, excise or similar taxes due. If TSL is required to pay any such amounts, City shall reimburse TSL in full. 3.2. Payments. All fees due under the Agreement must be paid in United States dollars or Canadian Dollars, as applicable to City’s location. Such charges will be made in advance, according to the frequency stated in Schedule A. TSL will invoice in advance, and such invoices are due net thirty (30) days from the invoice date. All fees collected under this Agreement are fully earned when due and nonrefundable when paid. 3.3. Suspension of Service for Overdue Payments. Any fees unpaid for more than ten (10) days past the due date shall bear interest at 1.5% per month. With fifteen (15) days prior written notice, TSL shall have the right, in addition to all other rights DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 115 Page 4 Rev. R (Issued 10.02.2019) and remedies to which TSL may be entitled, to suspend City’s Users’ access to the Services until all overdue payments are paid in full. 4. Intellectual Property Rights. 4.1. City acknowledges that TSL alone (and its licensors, where applicable) shall own all rights, title and interest in and to TSL’s software, website or technology, the course content, translations, compilations, partial copies, modifications, and updates, and the Services provided by TSL, as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by City, and this Agreement does not convey to City any rights of ownership to the same. The TSL name and logo are trademarks of TSL, and no right or license is granted to City to use them. 4.2. City recognizes that TSL regards the software it has developed to deliver the Services as its proprietary information and as confidential trade secrets of great value. City agrees not to provide or to otherwise make available in any form the software or Services, or any portion thereof, to any person other than Authorized Users of City without the prior written consent of TSL. City further agrees to treat the Services with at least the same degree of care with which City treats its own confidential information and in no event with less care than is reasonably required to protect the confidentiality of the Services. 4.3. Except as otherwise agreed in writing or to the extent necessary for City to use the Services in accordance with this Agreement, City shall not: (i) copy the course content in whole or in part; (ii) display, reproduce, create derivative works from, transmit, sell, distribute, rent, lease, sublicense, transfer or in any way exploit the course content or Services in whole or in part; (iii) embed the course content into other products; (iv) use any trademarks, service marks, domain names, logos, or other identifiers of TSL or any of its third party suppliers; or (v) reverse engineer, decompile, disassemble, or access the source code of any TSL software. 4.4. If City chooses to participate by uploading content to its shared resource sections of TSL’s website, City hereby authorizes TSL to share any intellectual property owned by City (“User Generated Content”) that its Users upload to the shared resources section of TSL’s website with TSL’s third-party customers and users that are unrelated to City (“Other TSL Customers”); provided that TSL must provide notice to City’s users during the upload process that such User Generated Content will be shared with such Other TSL Customers. 4.5 The parties agree that as between them, all rights including all intellectual property rights in and to City Data (defined as information uploaded by City in using the Services but not including content uploaded to City’s shared resource sections of TSL’s website) shall remain the exclusive property of City. TSL shall have a limited, nonexclusive license to use City Data as provided in the Agreement solely for purposes of performing its obligations under the Agreement. This Agreement does not give a party any right, implied or otherwise, to the other’s data, content, or intellectual property, except as expressly stated in this Agreement. 5. Mutual Warranties and Disclaimer. 5.1. Mutual Representations & Warranties. Each party represents and warrants that it has full authority to enter into this Agreement and to fully perform its obligations hereunder. 5.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS WITH CLIENT. TSL DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. 5.3. WORKPLACE SAFETY IS YOUR RESPONSIBILITY. THAT DUTY CANNOT BE DELEGATED AND TSL ACCEPTS NO DELEGATION OF THAT DUTY. TSL WILL ASSIST YOU BY PROVIDING SPECIFIC SERVICES FOR WHICH YOU HAVE CONTRACTED. 6. Miscellaneous. 6.1. Limitation on Liability. Except as it relates to claims related to Section 4 (Intellectual Property Rights) or Section 7.2 of this Agreement, (a) in no event shall either party be liable to the other, whether in contract, warranty, tort (including negligence) or otherwise, for special, incidental, indirect or consequential damages (including lost profits) arising out of or in connection with this Agreement; and (b) the total liability of either party for any and all damages, including, without limitation, direct damages, shall not exceed the amount of the total fees due to, or already paid to, TSL for the preceding twelve (12) months. 6.1.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, UNDER NO CIRCUMSTANCES SHALL TSL BE LIABLE TO CLIENT OR TO ANY OF CLIENT’S OFFICERS, DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 116 Page 5 Rev. R (Issued 10.02.2019) DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS,EMPLOYEES, CONTRACTORS, AGENTS, OR REPRESENTATIVES; OR TO ANY THIRD PARTY FOR ANY CLAIM, CAUSE OF ACTION, DEMAND, LIABILITY, DAMAGES, AWARDS, FINES, OR OTHERWISE, ARISING OUT OF OR RELATING TO PERSONAL INJURY, DEATH, OR OTHER HARM CAUSED FROM USE OF OR RELIANCE ON THE CONTENT OF THE COURSES. CLIENT, ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES RELY ON THE CONTENT OF THE COURSES AT THEIR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES SO, SOLELY TO THE EXTENT SUCH LAW APPLIES TO CLIENT, THE ABOVE LIMITATIONS AND EXCLUSIONS MIGHT NOT APPLY TO CLIENT. DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 117 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?(Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of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ocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 118 ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of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ocuSign Envelope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he lessor of a covered “auto”while the “auto”is leased to you under a written The “auto”is leased without Such leased “auto”will be considered a covered “auto”you own and not a covered “auto”you hire. However,the lessor is an “insured”only for “bodily injury”or “property damage”is an “insured”under any “insured”under such a policy but for its Any of your “employees”or agents; any “employee”or agent of the lessor,operating an “auto”with the That is an “insured” covered “auto”,provided that you and Coverage does not apply to “bodily injury”or “property damage”that results from an “accident” “insured contract”,written agreement or a as an “insured”. “employee”of yours while using a covered “auto”you don’t own,hire or an “insured”only: DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 120 !"#$ $" %" &"'("$#"$ " " ("$# $$$# $"' "$ = -! $ -)# "$# -" $ ! . /D,0@%&.*5 /00&?/10&2// %/,)&.0+*0)2,&A/+B/ $ ! E #+E)+.%&)+)&./D/.%/% %/,)&.82%,+03+1+B/ ,&A/+B/" $ " ""$F5 !$ !$ $$"9 ' -<$$ 9" ""$F' / 0 #+E,&A/+B//D)/.%&.% %/,)&.82%,+03+1+B/,&A/+B/" $ $# (" "- ( " ( ! ! )(", " !! " $ $# )# $ " $##! " 3 ,%$"$# "!= +! & C !$ $$#$" -"" $" " 9 " '- ( $ #"#" = % "$! 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" $$ $"; " $$#$ '" $ "$ "'" $ " (#"#'$$#$" '" $ !" $ " $# $"# "' " $# $"$#$" $ ! -! $# $ $ $#" $ $" #; " $= - $ !" $ # " "$ "- " # -" "$ $$#$ ; " $= +"$ $ #; " $ : . “auto” for “bodily injury”or “property damage” an “accident”which takes any of your “employees”are legally obligated You executed the “insured contract”or written agreement;or or “loss”of that vehicle arising out of a covered “loss”;and In the event of a total “loss”to a covered “auto”,we w covered “auto”minus: stolen covered “auto”to you. the “loss”; covered “auto”; Loss Coverage is provided for any covered “auto”; DocuSign Envelope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before such “loss”. To the extent that the “insured’s”rights to must do nothing after “accident”or “loss”to same “accident” 11 ))11 ll ii )) II II Any “auto”hired or rented by your “employee” considered an “auto”you hire. “employee’s”personal insurance on an excess basis to a covered “auto” or rented by your “employee”on your behalf primary to the “employee’s”personal ii iiIIit I!II )A covered “auto”of the private passengerIII! II I! “nsured’s” “Bodily injury”means bodily injury,sickness or II 11 organization for “loss”to which applies,provided the “insured”has waived DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 122 DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 123 DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 124 DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 125 DocuSign Envelope ID: 27CA754B-ABA2-4219-8BBF-F46516C0131C 126