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HomeMy WebLinkAboutRes 12-09 WA Approving a Contract with 3rd Learning WESTLAKE ACADEMY RESOLUTION 12-09 A RESOLUTION OF THE WESTLAKE ACADEMY BOARD OF TRUSTEES APPROVING A CONTRACT WITH 3rd LEARNING FOR A LICENSE TO DEVELOP AND UTILIZE A WEB-BASED CURRICULUM MANAGEMENT SYSTEM FOR WESTLAKE ACADEMY. WHEREAS, Westlake Academy Staff have been working with representatives of 3`d Learning, a vendor that has developed a web-based curriculum management system, the purpose for which is to provide Academy Staff and students with a tool to provide an aligned and resourced curriculum; and WHEREAS, Staff has determined that this system with enhance the Academy's ability to move towards its vision, values, and mission by addressing the Academy's Strategic Plan Desired Outcomes of"Effective Educators and Staff"and "High Student Achievement"; and WHEREAS, Staff has negotiated a contract with 3`d Learning for a license for utilization of this web-based curriculum management system called "IB Learns" and the Westlake Academy Foundation has funded this contract via a grant; and WHEREAS, the Board of Trustees finds that the passage of this Resolution is in the best interest of the citizens of Westlake as well as the students, their parents, and faculty of Westlake Academy. NOW, THEREFORE,BE IT RESOLVED BY THE BOARD OF TRUSTEES OF WESTLAKE ACADEMY: SECTION 1: That, all matters stated in the recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: That, the Board of Trustees Westlake Academy, hereby approves the contract for a license with Yd Learning for Westlake Academy's use of this web-based curriculum management system attached to this resolution as Exhibit "A". SEC'T'ION 3: If any portion of this resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Board hereby determines that it would have adopted this Resolution without the invalid provision. Resolution 12-09 Page 1 of 2 SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED BY THE BOARD OF TRUSTEES OF WESTLAKE ACADEMY, A CHARTER SCHOOL OF THE STATE OF TEXAS, ON THE 7th DAY OF MAY 2012. ATTEST: Laura Wheat, President Kelly dward oard Secretary Thomas E. Bry�Tu erintendent APPROVE `T' F L. t o o r y 0,0 rf6lt S. Bert, School Atto e Resolution 12-09 Page 2 of 2 3,d Learning BE A PART OF THE REVOLUTION WESTLAKE ACADEMY IBLEARNS LICENSE AGREEMENT EFFECTIVE: JUNE 1, 2012 WA Resolution 12-09 r'1 1 1 IBLearns: Westlake Academy 5I-EARNING CONTRACT 30 LEARNING LICENSE AGREEMENT FOR IBLearns A web-based system for International Baccalaureate Schools This License Agreement (the "Agreement") is effective as of January 1, 2012 ("Effective Date") by and between 3rd Learning ("3rdL", and/or"Licensor"), a New York corporation, with an address at 678 Main Street, Buffalo, New York 14202 and Westlake Academy ("Westlake", and/or"Licensee'), with an address at 2600 J.T. Ottinger Road, Westlake, Texas. THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. Material Content: IBLearns A. License. The materials that are the subject of this Agreement shall consist of electronic information published or otherwise made available by Licensor(hereinafter referred to as the"Licensed Materials") to Licensee. The parties stipulate that IBLearns is not available from any other source. B. Product Description. IBLearns is a comprehensive website portal designed for use in International Baccalaureate Schools ("IB"). All of the following components are seamlessly horizontally and vertically aligned and integrated in the system - 1B Learning outcomes, Texas Essential Knowledge and Skills("TEKS") Standards, educational resources, Diploma Program ("DP")syllabi, assessment items, and a suite of tools for teachers. Formal learning activities, such as professional development workshops, and informal exploration conducted by 3rdL will provide meaningful and significant use of the system, However, in order to meet the needs of all users, it is critical that 3rdL include essential data and content within the system that are aligned and pertinent to Westlake educators. 3rdL has reviewed Westlake's computer hardware and software and confirms that Westlake has all necessary computer components in place to allow IBLearns to operate at an optimal level, 3rdL represents and warrants that IBLearns is compatible with Westlake's computer system. C. Deliverables. Specifically, 3rdL shall provide the deliverables in accordance with the product description in Paragraph I.B. and what is stated in Addendum A. D. Training and Support. 3rdL shall provide the following training and support for the deliverables throughout the term of this Agreement. 1. 24-hour service and maintenance of all problems associated with Authorized Users' use of IBLearns, 2. Helpdesk, repair and customer service to Authorized Users of IBLearns, during regular business hours, no less than 10 hours per day, Monday through Friday. 3. All training listed in Addendum A, to be provided at Westlake 4, All system upgrades 5. Support to assist authorized Users in maximizing their beneficial case of IBLearns. 6. User and/or training manuals, if applicable, on the IBLearns systems and available at av times. 2 May I, 2012 WA Resolution 12-09 I [AP ING tBLearns: Westlake Academy CONTRACT li.fBLearns Components and General Provisions Licensor will provide the Licensed Materials to Westlake Academy in the following manner: A. Product."Product"and "Licensed Materials" shall be synonymous and shalt include each and every component specified herein and in accordance to Addendum A, Project Plan, which Licensor has developed, owns or which Licensor has acquired the right to license, which consists of a series of instructions or statements in coded form, including machine language, assembly language, or other machine readable form and any related materials in printed form, provided for use in connection with specified components. B. Fees. All fees are outlined in Addendum B, Financials. Pees shall be paid by Westlake based on invoices sent in accordance with the schedule outlined in Addendum A, and only after work has been completed, Additional services shall be billed to Westlake on a monthly basis, in accordance with the fees outlined in Addendum B. All payments by Westlake shall be made in accordance with the Texas Prompt Pay Act, Texas Government Code Chapter 2251. Provided, however, should the Westlake Board of Trustees, in any fiscal year, due to limited financial resources, fail to appropriate adequate funds to fully fund the contract obligation herein,Westlake shall give such notice to 3rdL and this Agreement shall terminate at the end of the last fiscal year for which funding for Westlake's obligations under this Agreement was appropriated. In the' event of non-appropriation, Westlake shall have no further financial obligation to 3rdL after the conclusion of the fiscal year in which funding was available, except that even in the event of non-appropriation, Westlake nevertheless shall be obligated to pay 3rdL all amounts due in a pro rata amount for all services and other deliverables already provided by 3rdL to Westlake, before 3rdL receives notice of non-appropriation, based on the amounts provided in Addendum A and Addendum B. C. Taxes. Westlake is an exempt entity under the tax laws of the State of Texas. Texas Tax Code §151.315, 34 TAC §3.322, Westlake represents that all products and services under this Agreement are eligible for exemption from the State Sales Tax. 3rdL will accept a Certificate of Exemption from Westlake, pursuant to Texas Tax Code§151.155. D. Unauthorized Use, Westlake Academy shall not knowingly permit anyone other than Authorized Users to use the Product and/or Licensed Materials. All employees, independent contractors, and educational volunteers of Westlake Academy performing educational services shall be deemed to be Authorized Users, E. Maintaining Confidentiality of Access Passwords.Where access to the Licensed Materials is to be controlled by use of passwords, Westlake Academy shall issue log-on identification and passwords to each Authorized User and use reasonable efforts to ensure that Authorized Users do not divulge their identification and passwords to any third party. F. Confidential Information. "Confidential Information" means the following: Westlake student record information: Westlake employee evaluative documentation, security access codes, other information deemed confidential under Texas law, and any non-public information disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidentiaE by that party prior to disclosure, Both parties agree not to disclose any such confidential information, provided, however, that IBLeams recognizes and acknowledges that Westlake must comply with the Texas Public information Act, Texas Govemment Code Chapter 552, 3rdL recognizes that, in the event of a Public Information Act request involving IBLearns, Westlake shall have no responsibility to spend its financial resources to protect 3rdL's confidential records. Father, Westlake shall file the appropriate request for opinion with the Texas Attorney General's office, shall promptly provide the Public Information Act request to 3rdL, and shall allow 3rdL to submit its own briefing to the Texas Attorney General's office. 3 May I, 2012 WA Resolution 12-09 trnRNIN G IBLeams: Westlake Academy CONTRACT G. Exclusivity. Because IBLearns is a sole source, Westlake Academy agrees that during the term of this Agreement, unless terminated earlier pursuant to the Early Termination provision herein, Westlake will not, directly or indirectly, engage services from any entity or corporation whose products or services are in direct competition with any products or services of 3rd Learning or any of its affiliates. Ill. Term This Agreement shall continue in effect for three (3) years, commencing on the Effective Date of June 1, 2012; and terminating on May 31, 2015. IV, Renewal This Agreement shall be renewable at the end of the current term upon the mutual agreement of both parties. For each renewal, any price increase shall be reasonable, and shall be tied to inflation, with cost-based evidence furnished which justifies the price increase. V. Early Termination Either party, following a sixty (60) day written notice to the other party and an opportunity to cure, may terminate this Agreement with cause for nonperformance of the obligations herein. Upon termination, no further action is necessary, and all contractual obligations are excused, including the payment of any further monthly payment, except that even in the event of termination under this Section, Westlake nevertheless shall be obligated to pay 3rdL all amounts due for all license periods, and for all services and other deliverables provided by 3rdL to Westlake, before the effective date of such termination, in the amounts provided in Addendum A and Addendum S. Either party may terminate this Agreement without cause upon a one year notice, and, at the conclusion of the one year, all contractual obligations shall cease. Notice shall be provided to the address noted on page 1 of this Agreement, VI. Indemnities and Insurance 3rdL hereby waives, releases, and agrees to defend, indemnify and hold harmless Westlake Academy from and against any and all losses, claims, demands, damages, awards, penalties and injuries incurred by the other party, including but not limited to reasonable attorney's fees, arising out of or in connection with any breach, default or noncompliance with any of 3rdIL's representations, warranties, covenants and other obligations stated in this Agreement. This waiver, release, and indemnity shall survive termination of this Agreement. VII.Warranties and Representations 3rdL represents and warrants that the Product and Licensed Materials furnished under this Agreement shall be of good quality and shall operate as described in 3rdL's promotional material, attached hereto and incorporated herein as Addendum C. 3rdL warrants that the Product and Licensed Materials shall be fully compatible with Westlake's computer system, shall be free from defects, and that 3rdL shall repair any defect which becomes evident during operation and use. The representations and warranties of 3rdL in this Section shall be in complete replacement and substitution of all other express and implied warranties and guarantees concerning all Products and related deliverables under this Agreement, including but not limited to warranties of merchantability and fitness for a particular purpose. 4 May 1, 2012 WA Resolution 12-09 EANIN IBLearns: Westlake Academy �� 1-� r�. CONTRACT Vill. Copyright 3rdL warrants and represents that all deliverables, including the Product, Licensed materials and the system and ali components and support provided under this Agreement can be provided to Westlake without any infringement of any copyright or other intellectual property interest. 3rdL further represents and warrants that, to the extent components of IB or C-SCOPE are incorporated into same, 3rdL has a license to do so and to allow Westlake and its Authorized Users to use same. 3rdL acknowledges that Westlake holds the copyrights on all Westlake employees' work, incorporated into the Product, and 3rdL agrees to not infringe same, 3rdL agrees to track Westlake employees' contributions to the Product so that, upon termination of this Agreement, all work for which Westlake holds the copyright can be identified and shall be fully removed from 3rdL's system. To the extent 3rdL is unable to fully remove said copyrighted materials, 3rdL agrees to fully compensate Westlake for same. DC Worker Conduct 3rdL shall be responsible to Westlake for costs and omissions of 3rdL's employees performing work on Westlake's premises. As part of that responsibility, 3rdL shall enforce the Westlake's alcohol-free, drug-free, tobacco-free, harassment- free and weapon-free policies and zones, which will require compliance with those policies and zones by 3rdUs employees, subcontractors, and all other persons carrying out the Agreement. 3rdL shall require all workers, whether 3rdus own forces or the forces of 3rdL's subcontractors, while on Westlake's property, to refrain from committing any criminal conduct, using tobacco products, possessing or drinking alcoholic beverages, possessing or using illegal drugs or any controlled substance, carrying weapons, speaking profane and/or offensive language, or engaging in any inappropriate interactions of any nature whatsoever with students and employees, including talking, touching, staring or otherwise contributing to a hostile or offensive environment for Westlake's students and employees, 3rdL shall also require adequate and appropriate dress and identification of 3rdL's employees, subcontractors, and all other persons carrying out 3rdL's work. 3rdL shall require all workers, whether 3rdL's own forces or the forces of 3rdL's subcontractors, to wear identification tags on the front of their persons during all times that they are on Westlake's property. Such identification tags shall contain a current photograph and the worker's full name in a typeface large enough to be seen from a reasonable distance. 3rdL shall further ensure that no on-site fraternization shall occur between personnel under 3rdL and 3rdL's employees or subcontractor's direct or indirect supervision and Westlake's students or employees and the general public. Failure of an individual to adhere to these standards of conduct shall result in the immediate removal of the offending person from any of Westlake's property. Repeated removal of 3rdL's forces, or one serious infraction, shall constitute a substantial breach of the Agreement, justifying the immediate termination by Westlake. X. Criminal history 3rdL shall obtain all criminal history information required by Texas Education Code Chapter 22 regarding its "covered employees", as defined below. If 3rdL is required by Chapter 22 to obtain the information from the Fingerprint-based Applicant Clearinghouse of Texas, then 3rdL will also subscribe to that person's criminal history record information. Before beginning any Work on the Project, 3rdL will provide written certification to Westlake that 3rdL has complied with the statutory requirements as of that date. Upon request by Westlake, 3rdL will provide, in writing: updated certifications and the names and any other requested information regarding covered employees, so that Westlake may obtain criminal history record information on the covered employees. 3rdL shall assume all expenses associated with obtaining criminal history record information. 5 May I, 2012 WA Resolution 12-09 JfIARNING IBLearns: Westlake Academy CONTRACT 3rdL will not assign any "covered employee" with a "disqualifying criminal history" as those terms are defined below, to work on the Project. If 3rdL receives information that a covered employee has a reported disqualifying criminal history, then 3rdL will immediately remove the covered employee from the Project and notify Westlake in writing within three business days. If Westlake objects to the assignment of any covered employee on the basis of the covered employee's criminal history record information, then 3rdL agrees to discontinue using that covered employee to provide services on Westlake's Project. If 3rdL has taken precautions or imposed conditions to ensure that the employees of 3rdL and any subcontractor will not become covered employees, 3rdL will ensure that these precautions or conditions continue throughout the time the contracted services are provided. For the purposes of this Section, "covered employees" means employees, agents or applicants of NIL who have or will have continuing duties related to the services to be performed Westlake property and has or will have direct contact with Westlake's students. Westlake will decide what constitutes direct contact with Westlake's students. "Disqualifying criminal history" means; any conviction or other criminal history information designated by Westlake; any felony or misdemeanor conviction that would disqualify a person from obtaining educator certification under Texas Education Code Section 29.060 and 19 Texas Administrative Code §249.16; or one of the following offenses, if at the time of the offense, the victim was under 18 years of age or enrolled in a public school: a felony offense under Texas Penal Code Title 5 Offenses Against Persons; an offense for which a defendant is required to register as a sex offender under Texas Code of Criminal Procedure Chapter 62; or an equivalent offense under federal law or the laws of another state. Subcontractors or any subcontractor entity, as defined by Texas Education Code §22.0834(p)(2), shall be required by the terms of their contract with 3rdL or any other contracting entity (as defined in Texas Education Code §22.0834(p)(1)), and by Texas law, to obtain the required criminal history record information on their employees, agents, or applicants, to give required certifications to Westlake and the contracting entities, and to obtain required certifications from the subcontracting entity's subcontractors. On request of Westlake, 3rdL shall provide all necessary identifying information to allow Westlake to obtain criminal history record information for covered employees of the 3rdL and all subcontractors. 3rdL shall update this list on Westlake's request. XI, Insurance 3rdL shall maintain insurance in effect throughout the term of this Agreement or any extension thereof in sufficient quantities and amounts to enable 3rdL to satisfy all provisions and agreements in this Agreement, XII. Use of Westlake Likeness 3rdL represents and warrants that it shall not use Westlake's name, logo, or image, or its employees' statements, images, or likenesses, without the express prior written consent of Westlake, Xtll. Entire A reement This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written. 6 May I, 2012 WA Resolution 12-09 .-); I J)LFAj NlN(i IBLearns: Westlake Academy CONTRACT XIV. Governing Law Texas law shall apply to all terms of this Agreement, Exclusive and mandatory venue for any dispute arising under this Agreement shall be in state district court in Tarrant County, Texas. XV. Dispute Resolution Disputes arising under this Agreement shall first be subject to non-binding mediation as a precursor to litigation. Arbitration shall not be allowed under this Agreement. XVI. Amendment No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Westlake Academy. XVIL Successors and Assigns 3rdL and Westlake bind themselves, their successors and assigns to all agreements, representations and warranties in this Agreement. Neither party shall assign this Agreement without written notice to and prior written consent from the other party, except that 3rdL may assign this Agreement and all of its rights and obligations hereunder to a third party who acquires all or substantially all of its business assets upon written notice to Westlake and without the need for any written consent from Westlake Academy. Any subsequent assignee of 3rdL shall be required by 3rdL to provide assurance to Westlake Academy that it will comply with all the terms and conditions of this Agreement. XVIII. Rights and Remedies Duties and obligations imposed by this Agreement shall be in addition to, and not a limitation on, the duties, obligations, rights, and remedies otherwise imposed or available by law. Contract Agreement: Westlake Academy V Learning Signature Skjn� Name(Please Print) Name(Please Print) Title Title 7 May 1, 2012 WA Resolution 12-09 IBLearns: Westlake Academy � L EAR N I�G CONTRACT 1 n 1 2, � Date Date 8 May 1, 2012 WA Resolution 12-09 . l_=�1I.N1NG IBLearns: Westlake Academy CONTRACT ADDENDUM A IBLearns:Westlake Academy Portal 3rd LEARNING DELIVERABLES and ASSOCIATED COST 3rd Learning agrees to provide services in accordance with the following components and schedule in order to appropriately develop and effectively implement the IBLearns web-based system/portal within Westiake Academy, In general, the implementation will occur in three phases: preparation and development, pilot group use of the system, and school-wide implementation. In order to successfully launch and implement the system, 3rdL will work with the identified team from Westlake if other items need to be addressed and to best meet the needs of all Westlake educators. Phase 1: Preparation and Development • Ramp-up meetings,topics include: Implementation Plan, 3fd Party Materials, User Provisioning, and Peer Review/Quality Review Protocol • Document review • System Development • Data input training • Data input of relevant Westlake materials • Professional Development Training of Pilot Group Phase 2: Pilot Westlake Implementation Team use of site Phase 3: School-wide implementation The activities and associated cost below will encompass the initial phases of the system development, implementation and use. Primary Fee Due upon Timeframe Objective Person(s) Completion Responsible Larch 2012 1 Westlake Implementation team identified. Weekly meetings with Westlake and 3rdL staff members online scheduled and conducted. 3rd Learning Determine 3rd Party proprietary materials to be included in the Westlake and April 2072 Z system (i.e., CSCOP> Materials). 3rd Learning included in line 20 Provide an onsite summary of the system to Implementation 3 Team. 3 Learning No charge 9 May t, 2012 WA Resolution 12-09 ,-W I L.', _ 1BLeams: Westlake Academy CONTRACT Primary Fee Due Upon Timeframe Objective Person(s) Completion Responsible Identify Unit Planrers and Units of Inquiry to be put into the May 2012 4 system. Mathematics and Language will be aligned by end of Westlake May (Alignment to TEKS and Learning Outcomes ("LO") included in the templates,) 5 Provide standards crosswalks for TEKS and IB Learning Westlake Outcomes Determine User Administration and process Westlake and Included in fine 6 Peer Review- rubric, review team and process 3rd Learning 20 Confirm IB templates Primary Years Program ("PYP")and 7 Westlake Middle Years Program("MYP°) 8 Identify what school or discipline general documents, if any, Westlake and Included in line need to be included in the"My School"section of the portal 3rd Learning 20 1 half-day webinar consultation, training, and professional 9 development sessions 3rd Learning No charge (OoToMeeting) June 2012 10 Input TEKS into the standards database 3rd Learning Included in lime 12 Resources from 3rdL database available via keyword search. July 2012 11 These resources can be imbedded as the implementation 3rd Learning Included in lure grows 20 Full integration of Westlake Academy's current curricular 12 materials, TEKS standards and provided crosswalks into 3rd Learning $18,006 IBLearns Identify exemplar resources needed for the DP Syllabi and align Westlake with August 2012 13 to assessment statements (August). 3rd Learning support 14 Modify content detail pages to match specific MYP & PYP 3rd Learning Included in line templates (August) 20 10 May I, 2012 WA Resolution 12-09 ISLearns• Westlake Academy CONTRACT Primary Fee pine Upon Timeframe Objective Person(s) Completion Responsible 15 Revised MP Syllabi Misplay inputted (August) 3rd Learning No charge Westlake Implementation Staff members trained by 3rdL staff August 2012 16 on Publish Your Best ("PYB") (Resources and Unit 3rd Leaming No charge Planslinquiry inputted)via webinar 17 1 day on-site consultation,training and professional 3rd Learning development for Westlake Academy educators $2,220 18 Facilitated feedback and preparation for school implementation 3rd Learning with pilot group leading the initiative with Westlake Nelpdosk support live and available for Westlake Academy 19 educators 3rd Learning No charge Full school subscription, access, adoption and implementation Sept.2012 20 of the IBLearns system.* 3rd Learning and Westlake $7,600 *Discounted by 20% 21 1 day on-site consultation, training and professional 31d Learning $2,220 development for Westlake Academy educators (Sept 2012 Content published to development site via Publish Your Best Westlake with Jan. 2013) 22 (content management tool). [System seeded with: DIP Syllabi, 3rd Learning 3rd Learning resources, IB resources.] support Total Cost for 2012 Westlake $30,040 Note: As the Westlake Academy curriculum is being reviewed on a cyclic basis there may be an adjustment in stated deadlines in the above timeline. The flexibility within the development process between 31d Learning and Westlake Academy was discussed and agreement reached in meetings held in initial conversations and at the March 2012 meeting. 11 May 1, 2012 WA Resolution 12-09 J D ,)LEARNII' G 1BLearns: Westlake Academy ; CONTRACT ADDENDUM B 1BLearns:Westlake Academy Portal ADDITIONAL, FINANCIALS Additional onsite consultation, training and professional development sessions(includes all travel expenses)—per day $2,800 Annual renewal subscription price for f,BLearns for years 2 and 3 of agreement. $7,600 Additional Development cost per hour for requests outside of the initial scope $925 12 May 1, 2012 WA Resolution 12-09