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HomeMy WebLinkAboutResolution - 4874 - Contract - Personnel Decision Inc - Training & Consulting Services - 06_22_1995Resolution No. 4874 June 22, 1995 Item #12 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Contract and all related documents by and between the City of Lubbock and Personnel Decision, Inc., a Minnesota Corporation, to provide materials, training and consulting services, for the City of Lubbock, which contract is attached hereto, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: C�'4"-) Betty M. Johnson, eity Secretary APPROVED AS TO CONTENT: Mary AndreVvs, Managing Director Human Resources APPROVED AS TO FORM: Donald G. Vandiver, First Assistant City Attorney :dp\ccdocs\pdi.res June 14, 1995 Resolution No. 4874 June 22, 1995 Item #12 PURCHASE OF TRAINING MATERIALS LICENSE AGREEMENT THIS AGREEMENT made this 8th day of June, 1995 by and between Personnel Decisions, Inc., a Minnesota Corporation, Licensor (hereinafter referred to as PDI) and The City of Lubbock (hereinafter referred to as User), a Texas home rule municipality. WHEREAS, PDI has heretofore provided training and consulting services to User; and WHEREAS, PDI has provided certain materials (workbooks, manuals, etc.) to User in conjunction with the provision of such services; and WHEREAS, User requires additional materials to continue effective training services; and WHEREAS, those materials include proprietary information, trade secrets, and know- how of PDI, which PDI is desirous of protecting. NOW, THEREFORE, in consideration of the mutual promises contained herein, PDI and User agree as follows: 1. Grant. PDI does hereby grant a limited, nonexclusive license to User, its employees, representatives, and agents (for the internal use by User) those materials specified in Schedule A, attached, subject, however, to the following: a) Except as expressly provided herein, the material shall not be used directly or indirectly by persons other than User, its employees, representatives, or agents for User's activities. b) Materials used by User hereunder shall be supplied to its employees, representatives, and/or agents only by trainers certified by PDI as qualified instructors. c) At no time may the materials be disclosed to third parties, sold, signed, leased, or otherwise made available or disposed of or commercially exploited or marketed in any way, with or without charge, by User, its employees, representatives, or agents, without the prior written consent of PDI. However, PDI acknowledges that User is a governmental subdivision subject to the Texas Open Records Act and this Agreement is subject to that law and any disclosure pursuant to that law shall not be deemed a breach of this agreement. d) A violation of any provision of this section will entitle PDI, at its discretion, to terminate User's license granted hereunder. 2. Term of License. This limited license will be granted only for the period of time or number of items specified in Schedule B, attached. 3. Consideration. User shall pay to PDI for its use of the materials those amounts specified in Schedule A, attached. 4. Termination. PDI may terminate this agreement upon thirty (30) days' written notice for User's material breach or default under this agreement and/or its bankruptcy, insolvency, or the appointment of a receiver for the benefit of its creditors, or its cessation of business. Upon such termination, the rights, privileges, and license granted hereunder shall thereupon immediately terminate. 5. Ownership. At all times during and upon termination, PDI is the owner of all proprietary rights in and to the materials, together with all the know-how, confidential information, and trade secrets arising therefrom and therewith. 6. Confidentiality. User agrees to hold in confidence, whether written or verbal, all information, secrets, know-how, materials, or proprietary information now or hereinafter provided to it in connection with this license. User agrees that all copies made by User shall include a copyright notice and statement as to the confidentiality or proprietary nature of the materials and its ownership by PDI. In the event an open records request is received by the User for such information, User shall immediately notify PDI of such request and it shall be the duty of PDI to defend the proprietary nature of its information as required by the Texas Attorney General or a Court of Law. 7. Remedies. PDI's entire liability, and User's exclusive remedy, for infringement shall be, at PDI's option: 1p a) Procure for User the right to continue tom the material; or b) Replace or modify the programs with substantially similar but noninfringing programs; or c) Refund User's purchase price. In no event shall PDI or its suppliers by liable for any consequential, indirect, special, or incidental damages whatsoever, including, without limitation, damages for loss of business profits, business interruption. loss of business information, or other pecuniary loss, including expenses or costs incurred by User arising out of the use of or inability to use the materials. 8. Assignment. This license may not be assigned by User without the prior written consent of PDI. 9. Law. This agreement shall be governed by the laws of the State of Texas. 10. Amendment. This agreement may not be changed, modified, or amended except in writing to be signed by both parties. 11. Relationship. PDI and User are, and at all times will continue to be, independent contractors of each other in the performance of this agreement. 12. Extension. This agreement may be extended for the use only upon the written consent of both parties. 13. Return. Upon termination of this agreement, User shall promptly deliver to PDI all unused materials and copies thereof in its possession. PDI shall reimburse User its purchase price therefor. 14. Warranty. PDI warrants to user that it is the owner of licensee of the materials and has the right to license the same to User. PDI specifically disclaims all other warranties with respect to said materials, either expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. 15. Indemnity. User shall indemnify and hold harmless PDI, its successors and assigns, from any claim, loss, liability, or damage, including reimbursement of costs, disbursements, and attorneys' fees and interest, arising out of or related to User's use of the materials in contravention of this agreement. 16. Notice. Any notice required under this license shall be in writing and delivered by hand, confirmed telecopier (fax transmission or mail, postage prepaid, certified, or return receipt requested) to the addresses set forth in Exhibit A. 17. Survival of Representations. Except as otherwise provided, representations and warranties contained in this agreement shall survive its termination. 18. Waiver. No term or provision of this agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing, and signed by the party claimed to have waived or consented. 19. Entire Agreement. This agreement constitutes and contains the entire agreement of the parties. Failure of either party to enforce any of its rights shall not constitute a waiver of such rights. In the event any of the provisions are held to be unenforceable, such unenforceability will not affect the other provisions. IN WITNESS WHEREOF, the parties, by and through their authorized representatives, do hereby acknowledge that each has read, understands, and consents to the terms, conditions, and obligations contained herein. PERSONNEL DECISIONS, INC. Dated: " ' (- Dated: June 22, 1995 A TEST: -Betty N. JohnsoU,City Secretary APPROVED AS TO NTENT: a iy� ary ndre , Managing Director of Human Re ources APPROVED AS TO FORM: Do d G. Vandiver, 7 irst Assistant City Attorney EXHIBIT A Licensor: PERSONNEL DECISIONS, INC., with its principal place of business at: 2000 Plaza VII Tower 45 South Seventh Street Minneapolis, MN 55402 User: THE CITY OF LUBBOCK with its principal place of business at: 1625 13th Street Lubbock, TX 79457 Trainer Certification. PDI requires that each potential trainer be certified by PDI personnel. This certification will be conducted by PDI at User's location. The certification will be a four day program for up to three trainers. On site certification (four days for three trainers) $6,880.00 Leader's Guides 1,500.00 Leaders Kit 1,500.00 Cancellation. The City of Lubbock has the right to cancel any PDI delivered program. There will be no charge for cancellation if the program is canceled with at least 30 business days notice prior to the scheduled delivery date. Otherwise, if cancellation notice is received in advance of the first day of the program by: 30 - 20 business days 35% of total program fee based upon 20 participants 19 -11 business days 75% of total program fee based upon 20 participants 10 - 0 business days 100% of total program fee based upon 20 participants Fees. Shipping charges will be invoiced at cost. Reasonable and necessary travel and living expenses will be invoiced at cost. For ongoing implementation, the pricing will be as follows: The PROFILORO $185 Successful Manager's Handbook $ 30 Emerging Manager Program Student Material $330 Group Report of The PROFILORO $195 SCHEDULE A Terms of Payment PDI shall invoice User monthly for such services and expenses and User shall pay such charges within 30 days of receipt of such invoice. A service charge of one percent (1%) per month will be assessed in addition for past due charges. Invoices not objected to in writing within said thirty (30) day period shall be deemed admitted, final and approved. Any amount disputed shall be identified in writing by User and the balance of the invoice, less 120% of the amount disputed, owed, within ten (10) days of resolution. SCHEDULE B Tenn of License Until terminated under the terms of this agreement, but in no event to exceed the period of five years. LETTER OF AGREEMENT This agreement, entered into as of June 8, 1995, by and between Personnel Decisions, Inc., (referred to as PDI) and The City of Lubbock, concerns PDI's presentation of Leadership Development for The City of Lubbock. By signing, the client agrees to the following terms, conditions, and provisions. Leadership Development The City of Lubbock agrees to have PDI conduct the Leadership Development program. PDI will provide all materials, testing and trainers for the program. The City of Lubbock will be responsible for the facility, equipment needs (e.g., flipcharts, overheads), food, etc. The dates of the program are September 7, 8, and 22, 1995. The cost of the program will be 130,655.00. This covers the trainer fees, participant materials, and test instruments. This does not include facility costs, accommodation fees, or trainer expenses. Assessment: • The PROFILORO (24 PARTICIPANTS @ $185 each) • Successful Manager's Handbook (24 @ $30 each) • Group Report of The PROFILORO results, each Development: • PDI facilitation (three days @ $2,500 per day) • Participants Materials (24 participants @ $330 each) $4,440.00 $ 720.00 $ 195.00 $7, 500.00 $7,920.00 Certification: $9,880.00 $30,655.00 2. Program Cancellations The client has the right to cancel any program. There will be no charge for cancellation if the program is canceled with at least thirty (30) business days notice prior to the scheduled delivery date. Otherwise, if cancellation notice is received in advance of the first day of the program by: A. 30 - 20 business days B. 19 - 11 business days C. 10 - 0 business days 3. Incidental Expenses A cancellation charge will be due: 35% of total program fee based upon 20 participants 75% of total program fee based upon 20 participants 100% of total program fee based upon 20 participants The City of Lubbock will be responsible for all incidental expenses including travel, room and board required for all training, transportation fees, telephone charges, faxes and courier and express mail fees related to conducting the training program. 4. Terms of Payment PDI will bill professional services and incidental expenses within 30 days following he delivery of the training. Invoices will be sent to the following address: Mary Andrews The City of Lubbock P.O. Box 2000 Lubbock, TX 79457 Payment is due within thirty (30) days and a finance charge of 1 1 /2% per month will be assessed on late payments. I have reviewed this agreement in detail and find it acceptable and agree to honor its terms. Reviewed and agreed, Dated: June 22, 1995 ATTEST: &��— )j C�� Betty o nso , y Secretary Dated: June 22, 1995 APPROVED AS TO CONTENT: jx�� dl� Mary Andrew Managing Director of Human Res urces APPROVED AS TO FORM: e d G. Vandiver, First Assistant City Attorney P RS NNEL DECISIONS, INC. Dated: MW 3