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HUMAN RESOURCES MANAGEMENT TECHNICAL ASSISTANCE AND SOFTWARE LICENSE PROFESSIONAL CONSULTING AGREEMENT THIS AGREEMENT, entered into and effective this If)#- day of ~ 20~y and between HR Management Partners, Inc. (the "Consultant") and the City of Cle rwater (the "Client"), WITNESSETH THAT: WHEREAS, the Client is interested in obtaining human resources management technical assistance; and, WHEREAS, the Consultant is staffed with personnel knowledgeable and experienced in human resources management; and WHEREAS, the Client desires to engage the Consultant to provide human resource management services, '.~ NOW THEREFORE, the parties hereto mutually agree as follows: 1. Employment of Consultant. The Client agrees to engage the Consultant and the Consultant hereby agrees to conduct a classification and pay study, 2. Scope of Services. The Consultant shall do, perform and carry out in a professional manner quantitative job analysis, market analysis, Fair Labor Standards Act (FLSA) determinations and job description update/development for approximately 159 S~MP classifications. 3. Time of Performance. The Client and Consultant will select mutually agreeable dates to perform services hereunder. Services performed by the Consultant shall be undertaken and completed in such sequence as to assure their expeditious completion and best carry out the purposes of the Agreement. 4, Compensation, The Client agrees to pay the Consultant a total sum of $36,234.00 which includes professional fees and expenses. 5. Method of Payment. The Consultant's fee will be due and payable in four equal installments payable at the initiation of the project, atthe completion of the market analysis, at the submission of the draft report and at the submission of the final report. Client agrees to provide payment within thirty (30) days of receipt of an invoice by Consultant. 6. Chanqes, The Client may, from time to time, require changes in the scope of the services of the Consultant to be performed hereunder. Such changes, which are mutually agreed upon by and between the Client and the Consultant, shall be incorporated in written amendment to this Agreement. 7, Services and Materials to be Furnished by Client The Client shall furnish the Consultant with all necessary payroll and job classification information pertinent to the execution of this Agreement. The Client shall cooperate with the Consultant in scheduling and carrying out the work herein. 8, Riqhts to Terminate Contract. If, through any cause, the Consultant shall fail to fulfill, in a timely and proper manner, its obligation under this Agreement, the Client shall, thereupon have the right to terminate this Agreement, by giving written notice to the Consultant of such termination at least five (5) business days before the effective date of such termination pursuant to this paragraph, Consultant shall be entitled to compensation for services rendered and expenses incurred through the effective date of termination, 9, Indemnification, Each party shall be responsible for its own acts and will be responsible for all damages, costs, fees and expenses which arise out of the performance of this Agreement and which are due to that party's own negligence, tortuous acts and other unlawful conduct and the negligence, tortuous acts 1 .,tI {f2- II ~/,,/ -CO (~ ") and other unlawful conduct of its respective agents, officers and employees, In the absence of negligence or wrongful conduct in Consultant's performance herein, the Client shall defend, indemnify and hold Consultant free and harmless from and against any claims, demands or actions brought by third parties which are related in any way to the Client implementation of Consultant's recommendations. 10, Limitation of Liability. The Client agrees that Consultant's total aggregate limit of liability hereunder (whether contract statutory, in tort or otherwise) for damages on anyone or more or all claims (regardless of the number of different or other claims, claimants or occurrences) shall not exceed the total of professional fees paid under this Agreement. Client further agrees that Consultant shall not be liable to Client for any indirect, incidental, special or consequential damages, any lost profits or any claim or demand against Client by any other party, arising out of or in connection with the performance of services hereunder. 11. Accomplishment of Proiect. The Consultant shall commence, carry on, and complete the project with all practicable dispatch, in a sound economical and efficient manner, in accordance with the provisions thereof and all applicable laws, In accomplishing the project, the Consultant shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on within the Client organization. '-~ 12. Provisions ConceminQ Certain Waivers, Subject to applicable law, any right or remedy which the Client may have under this Agreement may be waived in writing by the Client if, in the judgement of the Client, this Agreement, as so modified, will still conform to the terms and requirements of pertinent laws. 13. Matters to be DisreQarded. The titles of the sections, subsections, and paragraphs set forth in this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of the provisions of this Agreement. 14. Completeness of Aqreement. This Agreement and any additional or supplementary document or documents incorporated herein by specific reference contain all the terms and conditions agreed upon by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement, or any part thereof, shall have any validity or bind any of the parties hereto. 15, Client Not ObliQated to Third Parties. The Client shall not be obligated, nor liable hereunder to any party other than the Consultant. 16, Personnel. The Consultant represents that it has, or will secure at its own expense, all personnel required in performing the services under this Agreement. All of the services required hereunder will be performed by the Consultant and all personnel engaged in the work shall be fully qualified to perform such services, ' 17. Certificate of Insurance. Prior to the performance of services hereunder, Consultant shall provide Client with a certificate of insurance of policies Consultant agrees to maintain in full force and effect during the term hereof. 18, Notices, Any notices, bills, invoices, or reports required by this Agreement shall be sufficient if sent by the parties hereto in the United States mail, postage paid, to the addresses noted below: 2 jIJ ATTACHMENT A The Licensee acknowledges that it may be exposed to trade secrets or confidential information of HR Management Partners, Inc, I understand that the Licensee has an obligation to retain this information in confidence and not to disclose same or use it to compete with HR Management Partners, Inc, The Licensee agrees that it will not disclose, use, market or assist in marketing, directly or indirectly, any of HR Management Partners, Inc. software, confidential information and/or trade secrets. HR MANAGEMENT PARTNERS, INC. Date: J/;() /() / CO?J:~j~ Brian J. Aun Mayor-Commissioner ;-rr Approved as to form: Attest: - - t. ;k. bJDa Leslie K. Dougall-Si e Assistant City Attorney .rj) SOFTWARE LICENSE ~ l~ NOW ON THIS ~ day of aJ,;:;: k..-- 20Q0' come HR MANAGEMENT PARTNERS, INC., a Florida Company (he emafter referred to as "Licensor") and the City of Clearwater, 100 S. Myrtle Avenue Clearwater, FL 33756-5520 (hereinafter referred to as "Licensee"), and enter into this Software License, (hereinafter referred to as "License"), to-wit: WHEREAS, Licensor and Licensee entered into an Agreement dated sy-. 10 ,€!) , 20011, and WHEREAS, Licensor owns and is authorized to enter into Licenses for the use of the Point Factor Job Evaluation System consisting of computer software programs and basic and related materials pertinent to said programs in machine readable or printed form for use on IBM compatible hardware with at least 1 gigabyte of disc space and any updated program or program portion furnished hereunder (collectively "System"); and .. '.. WHEREAS, Licensee desires to acquire the System, in accordance with the terms and provisions hereinafter set forth, for its own use; NOW, THEREFORE, for and in consideration of the foregoing recitals, the agreements and undertakings hereinafter provided and other good and valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged by Licensor and Licensee, Licensor hereby grants to Licensee a non-exclusive, non-transferable license to use the System on the following terms and conditions: 1. CONTRACTING AUTHORITY. Licensee hereby states that it is authorized to enter this Software License and agrees to be bound by the terms and conditions contained herein. Licensee further states that it is authorized to and expressly agrees that the System is "proprietary." 2. LICENSE FEES. Licensee shall have the right to use the System in perpetuity at no cost, effective upon the installation of the System subject to the further terms and conditions of this License, Initial Fee: $7,500 Software/technical support after three months: Programming charges: $125/hour $125/hour 3, DELIVERY AND ACCEPTANCE. Licensor shall make the System available for installation at the Licensee's offices as mutually agreed by the parties. 4. TRAINING. Licensor shall provide eight hours of software training. Additional training is available, if requested by the City of Clearwater, at a charge of then current professional fees plus expenses. 5. TERM, This Agreement and the License herein granted may be terminated either (I) by Licensee at any time by giving written notice of termination to Licensor or (ii) by Licensor in the event: (a) Licensee fails to observe, perform or comply with any term or condition hereof and such failure is not cured within thirty (30) days after written notice of such failure; (b) Immediately and without notice if, Licensee files a petition in bankruptcy or insolvency, or after any adjudication that the Licensee is bankrupt or insolvent, or after the filing by the Licensee of any petition or answer seeking reorganization, readjustment or arrangement of the Licensee's financial affairs under any Federal or state law relating to bankruptcy or insolvency, or after the appointment of a receiver for any of the property of the Licensee, or after the making by the Licensee of any assignment for the benefit of creditors, or after the institution of any proceedings for the liquidation of the Licensee's assets or for the termination of its governmental charter; or 8 Licensee discontinues use of the System. Licensor shall give written notice of termination of Licensee's License to Licensee. Termination shall be effective upon the receipt by Licensee of the written notice of termination, except as specified in (b) above, Upon termination, Licensee shall not be released from any of its obligations which accrued under this Agreement under paragraphs 6,7,8 and 12. Neither party shall have the right to rescind any acts performed prior to the date of termination. In the event of termination, Licensee shall either return the System at its cost, or supply the Certification described at paragraph 8(b), as Licensor shall direct. '... Any failure or delay in the exercise of Licensor's right of termination for any default shall not prejudice Licensor's right of termination for such default or any other default. 6. LIMITED LICENSE. The License hereby granted authorizes Licensee to use the System and to utilize the System in printed form and with computer hardware owned or leased by Licensee but only when such utilization is by Licensee's employees in the Licensee Department and is for and on behalf of the Licensee Department of the Licensee. The License grants the right to make copies only for approved operations, back-up and security. The License does not grant Licensee the right to modify the System or to merge it into other software so as to form a modified work, without prior approval of Licensor. l,icensee hereby agrees not to reproduce, publish, use, or otherwise distribute the software, modifications and associated documentation except as provided by this License. Licensee hereby acknowledges and agrees that this License does not grant access to source code. 7. TRADE SECRET. Licensee acknowledges and agrees that the System and all copies thereof made under this License are proprietary information and are trade secrets of Licensor. Licensee agrees that all ownership rights and copyrights thereto lie with Licensor. Licensor may place additional copyright, trademark and similar notices on all or any part of the System which Licensee agrees shall neither be removed nor covered. 8. PROTECTION OF SYSTEM. (a) Without the prior written consent of Licensor, Licensee agrees not to provide or otherwise make the System available in any form to any person other than Licensee's employees in the Merit System and Personnel Administration who need to use or know about it in order for Licensee to maintain the evaluation system. Licensee agrees that it will take appropriate action by instruction, agreement or otherwise with its employees including but not limited to, execution by appropriate employees of Attachment A attached hereto and incorporated herein by reference to satisfy its obligations under this License with respect to use, copying, modification, protection and security of the System. To the extent practicable, all elements of the licensed System provided hereunder shall be kept in locked storage when not in use, (b) Within ten (10) days after termination under paragraph 5 by either Licensee or Licensor, Licensee shall deliver to Licensor a written Certification certifying that the original and any copies of all or any portion of the System affected by the termination have been destroyed, or, if Licensor requests either in Licensor's notice of termination or in writing upon receipt of Licensee's notice of termination, Licensee shall deliver such original and any copies of the System to Licensor within such ten (10) day period, . jJtJ 9, WARRANTIES. LICENSOR GRANTS NO WARRANTIES, EITHER EXPRESS OR IMPLIED, IN RESPECT TO THE SYSTEM, ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED. 10. SYSTEM AND ENHANCEMENTS. Licensor shall not be obligated to provide any major enhancements or minor enhancements. "Major enhancements" means enhancements by Licensor that result in substantial performance, structural or functional improvements or additions, including substantial redesigning or replacement of parts of the product. "Minor enhancements" means updates and modifications which do not result in a substantial redesign or replacement. Licensor shall correct any problems with the System software. This License does not cover problems outside the System. System upgrades will be offered to Licensees for an amount not to exceed ten percent of the current (time of upgrade release) retail value of the system. 11. HOLD HARMLESS. Licensee shall be responsible for any claims and liability arising by virtue of the sole acts or omissions of Licensee with regard to its use, operation or control of the System. .'" '.", 12. CLOSING. If any licensed program or optional material is lost or damaged during shipment, Licensor will replace licensed program or optional material and program storage media at no additional charge to customer. If any licensed program or optional material is lost or damaged while in possession of the client, Licensee shall pay for the replacement materials at an amount equal to Licensor's cost. 13, AMENDMENTS. (a) Agreement. Any modification or amendment of this License must be in writing and signed by the parties. (b) License. Licensor reserves the right to modify or amend the System during the installation period, without charge to Licensee, provided the System, as amended or modified, will provide report formats and data processing in substantially the same form and manner as the original System. . Licensee shall have no right to modify or amend the System, or to merge it into another work, without the consent of the Licensor. 14. NOTICE. Any notice or consent required to be given in accordance with this License shall be in writing and shall be either (I) actually delivered to the party thereto entitled or (ii) mailed, with first class postage prepaid, to the address of the party entitled thereto hereinafter set forth, by certified mail, return receipt requested: LICENSOR: HR Management Partners Inc, 1938 Westpointe Circle, Suite 350 Orlando, FL 32835 LICENSEE: The City of Clearwater 100 S, Myrtle Avenue Clearwater, FL 33756-5520 /)(J . . A notice shall be deemed to be received (I) on the date of its actual receipt by the party thereto and (ii) on the date as reflected on the United States Postal Service return receipt form and if said return receipt form is not signed by the party to whom notice is to be given, upon the date of the first attempted delivery as reflected thereon. 15, ASSIGNMENT. Licensee may not assign its rights or delegate its duties under this License without the prior written consent of Licensor, binding Licensor to the assignment. 16. GOVERNING LAW. The law of the state in which Licensee is organized shall govern Licensee's execution and funding of its obligations under and pursuant to this Agreement. In all other respects, the validity, enforceability and interpretation of this Agreement shall be governed and construed by the laws of the State of Illinois. 17, SEVERABILITY. If any of the provisions of this License are invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted, .~ '.~ 18, CAPTIONS. Captions used herein are inserted for reference purposes only and shall not affect the interpretation or construction of this License. 19, FURTHER ASSURANCES. Each party hereto shall execute and deliver all such further instruments and documents as may reasonably be requested by the other party from time to time in order to fully carry out the intent and accomplish the purposes of this License and the transaction referred to herein. Licensee grants Licensor the right to audit Licensee's use of the System, at reasonable times, in order to insure Licensee's compliance with the terms and conditions herein above described. QJ , ~ . , Juana Ayers President HR Management Partners, Inc. 1938 Westpointe Circle, Suite 350 Orlando, FL 32835 City of Clearwater 100 S, Myrtle Avenue Clearwater, FL 33756-5520 IN WITNESS WHEREOF, the Client and the Consultant have executed this Agreement as of the date first written above. HR MANAGEMENT PARTNERS, INC. Approved as to form: Leslie K. Dougall-Sides Assistant City Attorney ~ Date: 9/1c;/o ) Attest: 2.