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R24-127 1 RESOLUTION NO. R24-127 3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, APPROVING A MARKETING AGREEMENT BETWEEN THE 5 CITY AND UTILITY SERVICE PARTNERS PRIVATE LABEL, INC., FOR THE 6 PURCHASE OF SERVICE PLAN AND OTHER SIMILAR PRODUCTS;PROVIDING 7 AN EFFECTIVE DATE; AND FOR ALL OTHER PURPOSES. 8 9 WHEREAS, sewer laterals between the external wall of the residential private property to 10 the homeowner's sewer cleanout or to the edge of the Right of way are owned by individual 11 residential property owners residing in the City ("Property Owners"); and 12 WHEREAS, water service lines between the water meter and the external wall of the 13 residential private property are owned by Property Owners; and 14 WHEREAS, City desires to offer Property Owners the opportunity, but not the obligation, 15 to purchase a service plan and other similar products or as otherwise agreed in writing from time 16 to time by the Parties (each, a "Product" and collectively, the "Products"); and 17 WHEREAS, Company, a subsidiary of HomeServe USA Corp., is the administrator of the 18 National League of Cities Service Line Warranty Program and has agreed to make the Products 19 available to Property Owners subject to the terms and conditions contained herein; and 20 WHEREAS, the City Commission, upon recommendation of staff, has deemed it to be in 21 the best interests of the citizens and residents of the City to approve a Marketing Agreement 22 between the City and Utility Service Partners Private Label, Inc., for the purchase of service plan 23 and other similar products. 24 25 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON 26 BEACH, FLORIDA, THAT: 27 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 28 being true and correct and are hereby made a specific part of this Resolution upon adoption. 29 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby 30 approve a Marketing Agreement between Utility Service Partners Private Label, Inc., and the City 31 for the purchase of a service plan and other similar products (the "Agreement") in form and 32 substance similar to that attached as "Exhibit A." 33 SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby 34 authorizes the Mayor to execute the Agreement and such other related documents as may be 35 necessary to accomplish the purpose of this Resolution. 36 SECTION 4. One fully executed original of the Agreement shall be retained by the City 37 Clerk as a public record of the City. A copy of the fully executed Agreement shall be provided to 38 Poonam Kalkat to forward to Utility Service Partners Private Label, Inc. 39 SECTION 5. This Resolution shall take effect in accordance with law. 40 41 PASSED AND ADOPTED this 18th day of June 2024. 42 CITY OF BOYNTON BEACH, FLORIDA 43 YES NO 44 Mayor—Ty Penserga 1A3- 45 46 Vice Mayor—Aimee Kelley ✓ 47 48 Commissioner—Angela Cruz 49 50 Commissioner—Woodrow L. Hay 51 52 Commissioner—Thomas Turkin 53 54 VOTE o 55 AT E'T: 56 57 111 P '__, / 'T• �/� 58 Mayl:e '- Jesus, MP a MMC Ty Pe 59 City le Ma .r 616 070 y OF B.._ APPROVED AS TO FORM: 62 (Corporate Seal) ��...• '•'coRP° �O . F. 63 • NCS ."-6� ���� 44/14 • RpR�rE : yr 64 � 0 65 lit, % 92Q . Shawna G. Lamb 66 ��� ORA"•� r City Attorney DocuSign Envelope ID:6DDB13CA-794E-4B1C-AA5E-CB90313D4BF3 MARKETING AGREEMENT This MARKETING AGREEMENT ("Agreement") is entered into by and between the City of Boynton Beach, Florida, a Florida municipal corporation("City"), and Utility Service Partners Private Label, Inc., a Delaware corporation, d/b/a Service Line Warranties of America ("Company"), herein collectively referred to singularly as "Party" and collectively as the "Parties". This Agreement shall be effective on the last signature date set forth below ("Effective Date"). RECITALS: WHEREAS, sewer laterals between the external wall of the residential private property to the homeowner's sewer cleanout or to the edge of the Right of way are owned by individual residential property owners residing in the City ("Property Owners"); and WHEREAS, water service lines between the water meter and the external wall of the residential private property are owned by Property Owners; and WHEREAS, City desires to offer Property Owners the opportunity, but not the obligation, to purchase a service plan and other similar products set forth in Exhibit A or as otherwise agreed in writing from time-to-time by the Parties(each, a"Product"and collectively,the"Products"); and WHEREAS, Company, a subsidiary of HomeServe USA Corp., is the administrator of the National League of Cities Service Line Warranty Program and has agreed to make the Products available to Property Owners subject to the terms and conditions contained herein; and NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,and with the intent to be legally bound hereby, the Parties agree as follows: 1. Purpose. City hereby grants to Company the right to offer and market the Products to Property Owners subject to the terms and conditions herein. 2. City Obligations. A. Grant of License. City hereby grants to Company a non-exclusive license ("License") to use City's branding ("Marks"), on marketing materials in accordance with Exhibit A to be sent to Property Owners from time to time, and to be used in advertising (including on the Company's website), all at Company's sole cost and expense and subject to City's prior review and approval, which will not be unreasonably conditioned, delayed, or withheld. Company's use of the Marks in accordance with this Agreement will not infringe any other party's rights. In the event that City extends a similar license to a competitor of Company during the Term and any Renewal Term of this Agreement, the City shall provide thirty (30) days' notice prior to such grant of license and Company may immediately terminate this Agreement. DocuSign Envelope ID:6DDB13CA-794E-4B1 C-AA5E-CB90313D4BF3 B. Property Owner Data. If City elects to do so, City may provide Company with Property Owner Data for use by Company in furtherance of the advertisement, marketing, and sale of the Products. Any name, service address,postal address,and any other appropriate or necessary data for Property Owners in City is defined as "Property Owner Data". Property Owners Data shall be and remain City's property. For any Property Owner Data provided by City to Company, City warrants that Property Owner Data has been and will be collected in compliance with all laws, statutes, treaties, rules, codes, ordinances, regulations, permits, official guidelines, judgments, orders and interpretations ("Applicable Laws"); and City is permitted by Applicable Laws and by any applicable privacy policy to provide Property Owner Data to Company and to permit Company to use Property Owner Data for the purposes of this Agreement. A Property Owner who has purchased a Product is a member ("Member") and, following such purchase, all data in Company's control or possession relating to Members is Company's property. C. Entities of Foreign Concern. The provisions of this section apply only if Company or any subcontractor will have access to an individual's personal identifying information under this Agreement. Company represents and certifies: (i) Company is not owned by the government of a foreign country of concern; (ii) the government of a foreign country of concern does not have a controlling interest in Company; and (iii) Company is not organized under the laws of and does not have its principal place of business in a foreign country of concern. Prior to City providing any Property Owner Data to Company, Company and any subcontractor that will have access to personal identifying information shall submit to City executed affidavit(s) under penalty of perjury, in a form approved by City attesting that the entity does not meet any of the criteria in Section 287.138(2), Florida Statutes. Terms used in this section that are not otherwise defined in this Agreement shall have the meanings ascribed to such terms in Section 287.138, Florida Statutes. 3. Term. The term of this Agreement ("Initial Term") shall be for Three Years from the Effective Date. The Agreement may be renewed for additional one (1) year terms (each a "Renewal Term",and collectively with the Initial Term,the"Term")upon a written amendment executed by the Parties at least thirty (30) days prior to end of the Initial Term or of a Renewal Term. In the event that Company is in material breach of this Agreement,the City may terminate this Agreement thirty (30) days after giving written notice to Company of such breach, if said breach is not cured during said thirty (30) day period. Company will be permitted to complete any marketing initiative initiated prior to termination of this Agreement and within fifteen (15) days after termination, City shall be paid the License Fee(as defined below)through the effective date of termination, after which time, neither Party will have any further obligations to the other and this Agreement will terminate. 4. Consideration. A. As consideration for such License, Company will pay to City a License Fee of as set forth in Exhibit A ("License Fee") during the Term of this Agreement. The first payment shall be due by January 30th of the year following the conclusion of the first year of the Term. Succeeding License Fee payments shall be made on an annual basis throughout the Term, due and payable on January 30th of the succeeding year, or within thirty(30)days after the expiration of this Agreement. City agrees to provide a completed Form W-9 to Company in order to facilitate proper payment of the License Fee. City will have the right, at its sole expense, to conduct an audit, upon reasonable notice and during normal business hours, of Company's books and records pertaining to any fees due under this Agreement while this Agreement is in effect and for one (1) year after any DocuSign Envelope ID:6DDB13CA-794E-4B1C-AA5E-CB90313D4BF3 termination of this Agreement. B. In addition to the License Fees set forth in this Section, Company shall pay City a brand fee ("Brand Fee") as set forth on Exhibit A. Company will pay City Brand Fees within thirty (30) days after the date such Brand Fee becomes payable. 5. Confidentiality. Each party will treat all non-public, confidential and trade secret information (collectively "Confidential Information") received from the other party as confidential, and such party shall not disclose or use such information in a manner contrary to the purposes of this Agreement. Any material submitted to City that Company contends constitutes or contains Confidential Information, trade secrets, or is otherwise exempt from production under Florida public records laws (including Chapter 119, Florida Statutes) must be separately submitted and conspicuously labeled "EXEMPT FROM PUBLIC RECORD PRODUCTION — TRADE SECRET." In addition, Company must, simultaneous with the submission of any Confidential Information, provide a sworn declaration or affidavit from a person with personal knowledge attesting that Trade Secret Materials constitute trade secrets under Section 688.002, Florida Statutes,and stating the factual basis for same. If a third party submits a request to City for records designated by Company as Confidential, City shall refrain from disclosing the Confidential Information,unless otherwise ordered by a court of competent jurisdiction or authorized in writing by Company. Company shall indemnify and defend City and its employees and agents from any and all claims, causes of action, losses, fines,penalties, damages,judgments, and liabilities of any kind, including attorneys' fees, litigation expenses, and court costs, relating to the nondisclosure of any Confidential Information in response to a records request by a third party. Notwithstanding the foregoing, the City shall not be liable for any disclosure of confidential information that is required to be disclosed under any applicable public records act, including, but not limited to, Chapter 119, Florida Statutes, or under court order. City shall provide notice to Company prior to any such disclosure pursuant to court order. 6. Code Change. The Parties understand that the pricing of the Products and compensation provided for in this Agreement are based upon the currently applicable City, municipal, or similar codes. In the event Company discovers a code change, Company shall have the ability to reassess the pricing of this Agreement. 7. Indemnification. Company will indemnify, defend, and hold City and its directors, officers, employees, agents, and assigns (collectively, the "City Parties") harmless against any and all third party claims, liabilities, losses, damages, and expenses any City Party may suffer and which arise directly or indirectly from: (a) Company's breach of this Agreement; or (b) any negligent or fraudulent act or omission of the Company, or its officers, employees, contractors, subcontractors, or agents in the performance of this Agreement.Company will have no obligation to indemnify any City Party to the extent the liability is caused by such City Party's negligence or willful misconduct. Notwithstanding anything herein, and except to the extent sovereign immunity may be deemed to be waived by entering into the Agreement, nothing in the Agreement is intended to serve as a waiver of sovereign immunity by City nor shall anything included therein be construed as consent by City to be sued by third parties. City is a municipal corporation of the State of Florida as defined in Section 768.28, Florida Statutes, and shall be responsible for the negligent or wrongful acts or omissions of its employees to the extent required pursuant to Section 768.28, Florida Statutes. 8. Notice. Any notice required to be given hereunder shall be deemed to have been given when notice is(i)received by the Party to whom it is directed by personal service, (ii) sent by electronic DocuSign Envelope ID:6DDB13CA-794E-4B1C-AA5E-CB90313D4BF3 mail (provided confirmation of receipt is provided by the receiving Party), or (iii) deposited as registered or certified mail, return receipt requested, with the United States Postal Service, addressed as follows: To: City: ATTN: Dr. Poonam Kalkat City of Boynton Beach 100 E. Boynton Beach BLVD Boynton Beach, FL 33435 Email: kalkatp@bbfl.us Phone: (561) 742-6403 To: Company: ATTN: Chief Growth Officer Utility Service Partners Private Label, Inc. 601 Merritt 7, 6th Floor Norwalk, CT 06851 Phone: (203) 840-8276 9. Modifications or Amendments/Entire Agreement. Except for the list of available Products under the Agreement, which may be amended from time to time by the Parties in writing and without signature, any and all of the representations and obligations of the Parties are contained herein, and no modification, waiver or amendment of this Agreement or of any of its conditions or provisions shall be binding upon a Party unless in writing signed by that Party. 10. Assignment. Neither Party may assign its rights or delegate its duties under this Agreement without the prior written consent of the other Party unless such assignment or delegation is to an affiliate or to an acquirer of all or substantially all of the assets of the transferor. 11. Counterparts/Electronic Delivery; No Third Party Beneficiary. This Agreement may be executed in counterparts, all such counterparts will constitute the same contract and the signature of any Party to any counterpart will be deemed a signature to, and may be appended to, any other counterpart. Executed copies hereof may be delivered by email and upon receipt will be deemed originals and binding upon the Parties hereto, regardless of whether originals are delivered thereafter. Nothing expressed or implied in this Agreement is intended, or should be construed,to confer upon or give any person or entity not a party to this agreement any third-party beneficiary rights, interests, or remedies under or by reason of any term, provision, condition, undertaking, warranty, representation, or agreement contained in this Agreement. 12. Choice of Law/Attorney Fees. The Parties shall maintain compliance with all Applicable Laws with respect to its obligations under this Agreement. The governing law shall be the laws of the State of Florida, without regard to the choice of law principles of the forum state. Venue for any litigation shall be exclusively in Palm Beach County, Florida. THE PARTIES HERETO HEREBY KNOWINGLY,VOLUNTARILY,AND INTENTIONALLY WAIVE ANY RIGHT THAT MAY EXIST TO HAVE A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON OR ARISING OUT OF, UNDER, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT. DocuSign Envelope ID:6DDB13CA-794E-4B1 C-AA5E-CB90313D4BF3 13. Verification of Employment Eligibility. Company represents that Company has registered with and uses the E-Verify system maintained by the United States Department of Homeland Security to verify the work authorization status of all newly hired employees in compliance with the requirements of Section 448.095,Florida Statutes, and that entry into this Agreement will not violate that statute. If Company violates this section, City may immediately terminate this Agreement for cause and Company shall be liable for all costs incurred by City due to the termination. 14. Public Entity Crime Act. Company represents that it is familiar with the requirements and prohibitions under the Public Entity Crime Act, Section 287.133, Florida Statutes, and represents that its entry into this Agreement will not violate that Act. Company further represents that there has been no determination that it committed a "public entity crime" as defined by Section 287.133, Florida Statutes, and that it has not been formally charged with committing an act defined as a "public entity crime" regardless of the amount of money involved or whether Company has been placed on the convicted vendor list. 15. Incorporation of Recitals and Exhibits. The above Recitals and Exhibit A attached hereto are incorporated by this reference and expressly made part of this Agreement. [Signature Page Follows] DocuSign Envelope ID:6DDB 13CA-794E-4B 1 C-AASE-CB90313D4BF3 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first written below. CITY OF BOYNTON BEACH /� Name n$er364-- CITY ATTORNEY'S OFFICE Title: Approved as tin and legality rtuo- By: J Stacey .Weinger, Date: \ VOAL. ISIgO24 Deputy City Attorney c� UTILITY SERVICE PARTNERS PRIVATE LABEL, INC. �pY N TO `% \ —DocuSigned by: N Math ttJ, badatts „ O•GpRPOR qT �:• •\ �y„ �0FSAA4D7076A470 SEAL �.l Name: Michael Backus ; INCORPORATED: r 192 0 .' Title: Chief Growth Officer ,t .... +n• Date: 3/6/2024 I 5:11 PM EST DocuSign Envelope ID:6DDB136A-794E-4B1C-AA5E-CB90313D4BF3 Exhibit A NLC Service Line Warranty Program City of Boynton Beach Term Sheet January 10,2023 I. Initial Term. Three Years. II. License Fee. Company will pay City ten percent (10%) of the payments of plan fees actually received from members during the Term under any plans sold hereunder,net of any discount,rebates, refunds, chargebacks, credits,and sales or similar taxes incurred or paid by Company in connection with such plans for: A. Use of City logo and name on letterhead, advertising, signature line, and marketing materials. III. Brand License Fee. $ 30,000.00 spread across the first three years of the Term,as follows: A. Year 1 - $ 10,000.00 B. Year 2 - $ 10,000.00 C. Year 3 - $ 10,000.00 Payment of the Brand Fee for the first year is subject to the approval and mailing of the first campaign for that year. In subsequent years,payment of the Brand Fee is subject to City's timely approval of all other marketing materials for the prior year and the approval and mailing of the first campaign of the current contract year. IV. Products. A. External water service line plan(initially, $5.75 per month) B. External sewer/septic line plan(initially,$7.75 per month) C. Interior plumbing and drainage plan(initially, $9.99 per month) Pricing does not include taxes. Company may adjust the foregoing Product fees;provided,that any such monthly fee adjustment shall not exceed $0.50 in any 12-month period. If such adjustment shall exceed $0.50,both Parties must agree in writing. V. Scope of Coverage. A. External water service line plan: i. Covers Property Owner responsibility: From the meter to the external wall of the home. ii. Covers thawing of frozen external water lines. iii. Covers well service lines if applicable. B. External sewer/septic line plan: i. Covers Property Owner responsibility: From the external wall of the home to the Property Owner's sewer cleanout or if no cleanout is installed, to the edge of the Right of way. ii. Covers septic lines if applicable. C. Interior plumbing and drainage plan: i. Covers water supply pipes and drainage pipes within the interior of the home. VI. Marketing Campaigns.Company shall have the right to conduct up to three campaigns per year(each campaign consists of two mailings) and such other channels as may be mutually agreed. Initially, Company anticipates offering the interior plumbing and drainage plan Product via in-bound phone or web only.