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HomeMy WebLinkAboutRES 11-203 RESOLUTION NO. 11-203 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby, authorized to execute a contract with the National Traffic Safety Academy, a non-profit youth traffic safety organization, and Ford Park forthe purpose of conducting a Collision Avoidance Training Program forteen drivers. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 26th day of July, 2011. �► yor Becky Ames - ,l COLLISION AVOIDANCE TRAINING PROGRAM AGREEMENT National Traffic Safety Academy, Inc. P.O. Box 13973 Tallahassee, Florida 32317 (850) 681-0800 AND r The Beaumont Police Department 255 College Beaumont,Texas 77704 This Collision Avoidance Training Program Agreement ("CAT Agreement") is entered into by and between National Traffic Safety Academy, Inc. ("NTSA") and The Beaumont Police Department. ('OPERATOR'S. ARTICLE 1.LEASE 1.1 Grant of Lease. NTSA grants to OPERATOR a nontransferable, nonexclusive right, privilege and authorization to teach the NTSA Collision Avoidance Training Pro gram (the "NTSA CAT Program'. This nontransferable, nonexclusive right, privilege and authorization includes the lease of the NTSA CAT Program printed materials as well as any related Software, if applicable. For purposes of this CAT Agreement, the term 'Software' refers to certain proprietary computer software belonging to NTSA and consisting of, but not limited to, a computerized administrative record-keeping system and related documentation. As consideration for the grant of this lease, OPERATOR agrees to pay NTSA a one-time "licensing" fee of Seven Thousand Six Hundred dollars (7,600.00) and certain fees enumerated below. OPERATOR agrees that it shall only use any and/or all materials for the OPERATOR'S benefit in the course of its normal business activities and shall not allow it to be used by any other person, company or agency, either directly or indirectly. OPERATOR understands and agrees that this agreement is limited to the City of Beaumont, Texas and will not offer, run or operate this program outside of Jefferson County, Texas. 1.2 Exclusivity. OPERATOR agrees that, during the Term of this CAT Agreement, OPERATOR shall only use the NTSA CAT Program in promoting and teaching licensed and insured motorists a course of Advanced Car Control. Neither OPERATOR nor any of its principals, shareholders, officers, or directors shall operate a related business under any other name. This provision may only be waived by NTSA in writing. A 'related business,' as used herein, shall mean and refer to any business Page 1 of 8 engaged in providing licensed and insured motorists and drivers a course of Advanced Car Control or Advanced Behind-the-wheel training. ARTICLE 2.TERM The initial Term of this CAT Agreement shall be for a period of three (3) years, commencing on July 12, 2011 and ending July 12, 2014 unless terminated earlier in accordance with the provisions of this Agreement. Unless notified of intent not to renew this agreement, in writing by either party at least 30 days prior to the termination date, this CAT Agreement shall automatically continue in effect under the original terms and provisions. ARTICLE 3. CLASSROOM or DRIVING RANGE LOCATIONS As used herein, the term "Classroom or Driving Range Location(s)," shall specifically refer to OPERATOR'S location(s) for conducting the NTSA CAT Program. OPERATOR must provide written notice to NTSA of all Classroom and Driving Range Locations utilized by OPERATOR. Should the OPERATOR wish to expand the program within Jefferson County, Texas by including additional or other agencies, OPERATOR will first get approval from NTSA. OPERATOR understand there will be fee's charged to the additional agency. ARTICLE 4. FEES 4.1 NTSA CAT Program Materials Fees. OPERATOR agrees at all times during the term of this CAT Agreement, to use the most current updates of the NTSA CAT Program Materials as released by NTSA. OPERATOR will purchase from NTSA or their designated agent all materials deemed necessary for this program, including but not limited to one (1) student workbook for each student enrolled in the NTSA CAT Program and one completion certificate. The following fees are in effect at the time this agreement is executed and may change from time to time as deemed reasonably necessary by NTSA. Student Workbook $15.00 Instructor's Manuel $50.00 Power Point Classroom Presentation $75.00 4.2 Instructor Training Fees. During the Term of this Agreement, OPERATOR hereby covenants and agrees to pay NTSA Instructor training fees as follows: (i) One complimentary initial Instructor training conducted on a mutually agreeable date and time at facilities provided by OPERATOR. Page 2 of 8 (ii) NTSA will train an "Instructor-Trainer" designee identified by OPERATOR who is agreeable to NTSA for the purpose of conducting additional Instructor training programs solely for the purpose of training instructional staff of the OPERATOR. OPERATOR shall provide a schedule of Instructor training programs in advance and shall purchase the mandated Instructional materials at a rate of $50 U.S. dollars per person trained. Such sessions shall include one Instructors Manual per Instructor and all necessary printed course materials. (iii) OPERATOR may, in lieu of OPERATOR-provided Instructor training programs as referenced in (ii) above, register instructor-candidates in scheduled NTSA pre-service training programs for which a per person fee shall be charged by NTSA. Fee schedules will be made available to the OPERATOR prior to registration. 4.3 Travel Allowance. OPERATOR understands that there will be a one time charge of$500.00 due NTSA at the time this agreement is executed. This charge will be considered and referred to as a "Travel Allowance." ARTICLE 5.OWISR RP AND USE OF THE CAT PROGRAM MATERIAT.4. SOFTWARE AND MARKS 5.1 Use of the Marks. During the Term of this CAT Agreement, NTSA shall permit OPERATOR to use, solely in connection with teaching the NTSA CAT Program, the names "National Traffic Safety Academy, Inc." and "NTSA'; also all names, service marks, logos, graphics, and any other commercial symbols, Identifying characteristics or indicta of the NTSA CAT Program, registered or not, and any materials, copyrighted or not, or derivations thereof, that are owned by NTSA and used in relation to the NTSA CAT Program and the teaching thereof (all of which shall be collectively referred to as the "Marks"). 5.2 Ownership of the CAT Program. CAT Program Materials. Software, and Marks. In connection with the CAT Program, CAT Program Materials, Software, and Marks, and this CAT Agreement, OPERATOR hereby specifically acknowledges NTSA's exclusive rights to the CAT Program, CAT Program Materials, Software, and Marks, and that NTSA is the sole and exclusive distributor of any rights, title or interest to the CAT Program. OPERATOR agrees and covenants not to contest, challenge or dispute, directly or indirectly, NTSA's ownership, title, right or merest in or to the CAT Program, CAT Program Materials, Software, or Marks, nor to contest NTSA's sole right to tease, register, use or license others to use the CAT Program. OPERATOR further understands and agrees that NTSA CAT Materials are copyright protected and shall not divulge or disclose any trade secretes or confidential information of NTSA made available to OPERATOR hereunder. Page 3 of 8 ARTICLE 6. OBLIGATIONS OF OPERATOR 6.1 Actions in Conflict With NTSA's Ownership Rights. OPERATOR expressly agrees that during the Term of this CAT Agreement, OPERATOR will not, directly or indirectly, enter into any subcontract, assignment, transfer, or sublease with any other entity for the use of the NTSA CAT Program, NTSA CAT Program Materials, Software, or Marks, or otherwise encumber any rights granted under this CAT Agreement, without the prior expressed written consent of NTSA. 6.2 Program Compliance. OPERATOR agrees that the NTSA CAT Program shall only be conducted by an Instructor who has been trained in a Instructor Development Program designed by NTSA, or a NTSA-approved Instructor/Trainer who has been certified by NTSA to teach the NTSA CAT Program on behalf of OPERATOR, and whose performance as an Instructor is subject to ongoing evaluation and approval by OPERATOR and NTSA. OPERATOR further agrees to at all times comply with all county, municipal, state and federal laws, ordinances, rules, regulations, and orders of any governmental or quasi-governmental entity, body, agency, commission, board or official, applicable to OPERATOR, its business, and the NTSA CAT Program. 6.3 Liabilities as to 'Third Parties. Only to the extent allowed by the laws and constitution of the State of Texas will OPERATOR be responsible for claims, losses, or damages arising out of or relating to OPERATOR'S negligence,including but not limited to claims for direct or indirect damage to property or for injury to any person or persons. OPERATOR expressly acknowledges that NTSA's relation to OPERATOR and to OPERATOR'S customers shall in no manner create liability or responsibility on the part of NTSA for any negligence, breach of warranty or breach of contract of OPERATOR NTSA acknowledges that OPERATOR is a municipal office organized and existing under the laws of the State of Texas. 6.4 Advertising OPERATOR may, in its advertising and conducting of the NTSA CAT Program, use the words "National Traffic Safety Academy, Collision Avoidance Training for Teen Driver's" as part of its advertising. OPERATOR may also use the Mark(s) in its advertising in a size reasonable considering the overall size of the advertisement. NTSA may from time to time provide OPERATOR with public service announcements created by NTSA for use in the OPERATORS area and NTSA may at their discretion and expense place and run advertisements for the NTSA CAT program in the OPERATORS area. NTSA will not be liable for any expense incurred for public service announcements. 6.5 Independent Contractor. It is expressly agreed and understood between NTSA and OPERATOR that OPERATOR has no power, right, duty or authority to bind or obligate NTSA in any manner. OPERATOR is not an agent of NTSA and is in all things an independent contractor in its teaching of the NTSA CAT Program. NTSA Page 4 of 8 shall not be deemed responsible in any way by any governmental agency or any person or entity for the consequences of OPERATOR'S acts or conduct and no person or entity that is not a party to this CAT Agreement shall be entitled to claim any rights hereunder of whatsoever nature. OPERATOR is, and shall remain, an independent contractor responsible for all obligations and liabilities arising with respect to each NTSA CAT Program taught hereunder. 6.6 Reports and Records. OPERATOR agrees to submit to NTSA monthly, in a timely manner all student data (Parents Name, Students Name, Full Address, Date of birth and Drivers license number) required for submission to NTSA. OPERATOR shall only present, or cause to be presented, the NTSA designed and approved NTSA CAT Program "Certificate of Completion" issued by NTSA, whenever a student has successfully completed the NTSA CAT Program. OPERATOR agrees to maintain all student records for a period of three years from date of program completion. OPERATOR agrees to include notification to student's parents or legal guardian of NTSA's intent to follow student's driving record for a period of three (3) years from date of completion. Student information will be used for the express purpose of research only and will only be used by NTSA or a NTSA agency conducting research under the direction of NTSA. Should the OPERATOR retain NTSA through a separate Administrative Agreement, this section shall be null and void. 6.7 Periodic Inspection and Supervision. NTSA shall have the right to audit OPERATOR'S classes from time to time in order to verify OPERATOR'S compliance with the NTSA CAT Program curriculum. All books and records maintained by OPERATOR relating to its NTSA CAT Program business shall be open at all reasonable times to inspection and verification by NTSA or its authorized agents and/or representatives. NTSA shall be entitled to have OPERATOR'S NTSA CAT Program business books and records examined or audited, at NTSA's cost and expense, and OPERATOR shall cooperate fully with the party or parties making such examination or audit on behalf of NTSA. NTSA acknowledges and agrees that OPERATOR'S books and records are and shall remain the sole and exclusive property of OPERATOR. ARTICLE 7.TERMINATION 7.1 OPERATOR'S Right to Terminate with Notice. In the event, during the Term of this CAT Agreement, NTSA is in material breach of this CAT Agreement, and OPERATOR has fully and faithfully complied with all of the terms and conditions of this CAT Agreement, OPERATOR may terminate this CAT Agreement, in accordance with this Article, upon thirty (30) days' written notice to NTSA, and provided that during such thirty (30) day period NTSA fails to cure the breach. Such notice shall state specifically the particular Article(s) of this NTSA CAT Agreement that OPERATOR claims have been breached by NTSA. At the time of termination Operator agrees to Page 5 of 8 return to NTSA all CAT Materials including but not limited to Software, Student workbooks and Instructor manuals. 7.2 NTSA's Right to Terminate with Notice. This NTSA CAT Agreement may be terminated by NTSA in the event OPERATOR commits a material breach of any of the provisions of this NTSA CAT Agreement, upon thirty (30) days' written notice to OPERATOR, and provided that during such thirty (30) day period OPERATOR fails to cure the breach. Such notice shall state specifically the particular Article(s) of this NTSA CAT Agreement that NTSA claims have been breached by OPERATOR. 7.3 NTSA 's Right to Terminate Without Notice. In addition to any other rights of termination, and without waiver thereof, NTSA shall have the right to terminate this NTSA CAT Agreement immediately, without notice, upon the occurrence of any of the following events: (a) OPERATOR, or any of its shareholders, officers, directors or employees, taking any action in connection with the use of the NTSA CAT Course, NTSA CAT Course Materials, Software, and/or Marks that damages or reflects adversely upon NTSA , the NTSA CAT Course, NTSA CAT Course Materials, Software, and/or Marks; (b) OPERATOR'S breach of any provision of this NTSA CAT Agreement that prohibits OPERATOR from directly or indirectly assigning, transferring, subleasing or otherwise encumbering any rights granted under this NTSA CAT Agreement; (c) OPERATOR, or any of its shareholders, officers, directors or employees, falsifying any report, statement or other written date furnished by OPERATOR to NTSA , to any governmental agency, or to the public; (d) OPERATOR'S breach of its promise not to release, copy, extract, modify, or duplicate all or any part of the NTSA CAT Course Materials or Software as proscribed by this NTSA CAT Agreement; (e) OPERATOR, or any of its shareholders, officers, directors or employees, taking any action that would result in the imposition of sanctions by an official agency responsible for licensing and/or regulating NTSA and the NTSA CAT Course. 7.4 OPERATOR'S Right to Terminate without Notice. In addition to any other rights of termination, and without waiver thereof, OPERATOR shall have the right to terminate this NTSA CAT agreement immediately, without notice, at any time after the payment of the licensing fee set forth in paragraph 1.1. At the time of termination Operator agrees to return to NTSA all CAT Materials including but not limited to Software, Student workbooks and Instructor manuals. ARTICLE 8.RIGHTS AND OBLIGATIONS AFTER TERMINATION 8.1 General Provisions Regarding Termination. Termination of this NTSA CAT Agreement under any circumstances shall not abrogate, impair, release or extinguish any debt, payment, obligation or liability of the parties that may have accrued hereunder. All covenants and agreements of the parties that by their terms or by reasonable implication are to be performed hereunder, in whole or in part, after the termination of this NTSA Page 6 of 8 CAT Agreement, shall survive such termination, including but not limited to OPERATOR'S obligation to maintain trade secretes and confidentiality associated with the NTSA CAT Program, OPERATOR'S covenant not to compete with NTSA, and any obligation to pay sums due and owing under this NTSA CAT Agreement. OPERATOR agrees not to offer, run or operate a similar or competitive car control or driving program in the City of Beaumont, Texas area for a period of 24 months beginning the date of termination of this agreement by either party. 8.2 Use of the NTSA CAT Course Materials. Software and/or Marks Following Termination. Upon termination of this NTSA CAT Agreement, by any manner whatsoever, OPERATOR, its receivers, representatives, trustees, agents, administrators, successors or assigns, shall thereafter have no right to use the NTSA CAT Course, NTSA CAT Course Materials, Software, and/or Marks in any way and shall immediately cease teaching the NTSA CAT Course; however, OPERATOR shall be permitted to conclude any NTSA CAT Course scheduled prior to termination. OPERATOR shall be strictly responsible to NTSA for any damages caused by the unauthorized use by OPERATOR or others of the NTSA CAT Course, NTSA CAT Course Materials, Software, and/or Marks. 8.3 Provisions, Regarding Post-Termination Disposition of the NTSA CAT Course Materials and Records. Upon termination of this NTSA CAT Agreement, by any manner whatsoever, OPERATOR shall cease to be an authorized operator of NTSA CAT Program, and OPERATOR shall immediately and permanently discontinue use of the NTSA CAT Course, NTSA CAT Course Materials, Software, and Marks, as well as any combination or derivative thereof, any and all other proprietary marks, trade secrete, indicia, color schemes and patterns, slogans, designs, signs and emblems relating to. the NTSA CAT Course and; (a) immediately return to NTSA any and all original or replacement NTSA CAT Course Materials in its possession or under its control; (b) immediately return to NTSA any and all copies made from the original or replacement NTSA CAT Course Materials, no matter what the format or medium of such copies; (c) promptly destroy or surrender to NTSA all stationery, letterhead, forms, printed matter, displays and advertising containing marks or indicia of NTSA or the NTSA CAT Course; and (d) immediately transfer to NTSA any and all NTSA CAT Course reports and records due NTSA under this NTSA CAT Agreement. ARTICLE 9. MISCELLANEOUS 9.1 Non-Waiver.No failure by NTSA or by OPERATOR to take action on account of any default hereunder, whether a single instance or repeated,shall constitute a waiver of any such default or the performance required by either party hereunder. 9.2 No k s. Any notice or demand given or made pursuant to the terms of this NTSA CAT Agreement shall be deemed to be property given when deposited in the United States mail,certified mail,postage prepaid,and addressed to the other party's business. Page 7 of 8 9.3 Venue and Controller law. For the purpose of determining venue this NTSA CAT Agreement shall be deemed performable in Jefferson County,Texas in all respects and the parties agree to bring any and an legal action(s) regarding interpretation, enforcement, and/or any other aspect of this NTSA CAT Agreement in the Courts of Jefferson County,Texas. 9.4 Entire Agreement.This written NTSA CAT Agreement contains the entire agreement between the parties. There are merged herein all prior and collateral representations,promises,and conditions in connection with the matter hereof. Any representation, promise, or condition not incorporated herein shall not be binding on either party. No modification to this NTSA CAT Agreement will be valid and binding on either party unless made in writing and signed by both parties. The ed hereto execute this Collision Avoidance Training Program Agreement,on the dates set ow. For The National Traffic Safety Academy,Inc. ate Ann Burris Executive Director � 1L 7-z7- 1( For The City of Beaumont Date Kyle Hayes City Manager Page 8 of 8