HomeMy WebLinkAbout03/11/2014 05A Yakima Transit Run-Cutting Software Agreement with Schedule MastersBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting of: 3/11/2014
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ITEM TITLE:
SUBMITTED BY:
SUMMARY EXPLANATION:
Resolution authorizing agreement with Schedule Masters,
Inc. to provide Run -Cutting Software to Yakima Transit.
Sue Ownby, Purchasing Manager
On November 14, 2013, Requests for Proposals (RFP) were due from interested parties to
provide the City with Run -Cutting Software for Yakima Transit.
Recommendation of Award approved by the City Manager on 12/03/13 (see attached).
Resolution:
Other (Specify):
Contract: X
Start Date: March 4, 2014
Item Budgeted: Yes
Funding Source/Fiscal
Impact:
Strategic Priority:
Insurance Required? Yes
Mail to: Schedule Masters,
Ordinance:
Contract Term: Until Cancelled
End Date: Upon Completion
Amount: $62,350 plus
tax.
Dedicated Transit Sales Tax
Public Trust and Accountability
Inc. Suite 200--5A Conestoga Drive,
Brampton, Ontario, Canada L6Z 4N5
Phone: 905-495-5402
APPROVED FOR
SUBMITTAL:
RECOMMENDATION:
City Manager
Staff respectfully requests that Council approve the Agreement for signature by the City
Manager.
ATTACHMENTS:
Description Upload Date Type
resolution 2/21/2014 Cover Memo
Agreement with Schedule Masters, Inc. 2/11/2014 Contract
Recommendation of Award Approval 2/11/2014 Backup IMI ate ni a II
RESOLUTION NO. R -2014-
A RESOLUTION authorizing agreement with Schedule Masters, Inc. to provide
Run -Cutting Software to Yakima Transit per RFP 11337-P
WHEREAS, the City of Yakima Transit requires a contractor to provide Run -
Cutting Software, support, and maintenance; and
WHEREAS, on November 14, 2013, Requests for Proposals (RFP) were due from
interested parties to provide Yakima Transit with Run -Cutting Software; and
WHEREAS, One proposal was received from Schedule Masters, Inc..; and
WHEREAS, Purchasing reviewed the proposal submittal and determined it to be
responsive, an evaluation committee was formed, an analysis and scoring of the proposal
was done, the proposer was interviewed, and a Recommendation of Award for Schedule
Masters, Inc. was made to the City Manager; and
WHEREAS, the Department Manager and City Manager approved said
Recommendation of Award, now, therefore;
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is hereby authorized and directed to
execute the attached Agreement between the City of Yakima and Schedule Masters, Inc.
to provide Run -Cutting Software to Yakima Transit per RFP 11337-P.
ADOPTED BY THE CITY COUNCIL this day of , 2014.
ATTEST: Micah Cawley, Mayor
City Clerk
THIS AGREEMENT, entered
t"; 0 /10 /V5 ("Cont
WITNESSETH: The partes, in
follows:
into this
ractor").
consideration of the terms and conditions herein, do hereby covenant and agree as
AGREEMENT
CITY OF YAKIMA
RFP 11337-P
day of March, 2014, between the City of Yakima ("City"), and
1. Compensation:
The City promises and agrees to employ, and does employ, the Contractor to cause to be done the work
provided for in this Contract and to complete and finish the same according to the attached specifications,
offer, and terms & conditions contained herein. The City agrees to pay the Contractor according to the
payment schedule as listed in the Contractor's attached Bid response.
2. Scope of Work:
The Contractor shall perform the work according to the procedure outlined in the specifications & Request
for Proposals 11337-P attached hereto & incorporated herein.
Term:
It is the intent of the RFP to establish a long-term contractual relationship with the vendor to continue to
supply software, upgrades, and services as the City of Yakima requires. The period of this contract shall be
for a period of one year from its effective date. The City may, at its option, extend the contract on a year-to-
year basis provided, however, that either party may at any time during the life of this contract, or any
extension thereof, terminate this contract by giving thirty (30) days notice in writing to the other party of its
intention to cancel. Contract extensions shall be automatic, and shall go into effect without written
confirmation, unless the City provides advance notice of the intention to not renew. Prices shall remain firm
for the first twelve-month eriod of the contract unless an exce
4. Changes:
Any proposed change in this contract shall be submitted to the City of Yakima Purchasing Manager for her
prior approval and she will make the change by a contract modification. Any oral statement or
representation changing any of these terms or conditions is specifically unauthorized and is not valid.
5. Agency Relationship between City and Contractor:
Contractor shall, at all times, be an independent contractor and not an agent or representative of City with
regard to performance of the Services. Contractor shall not represent that it is, or hold itself out as, an
agent or representative of City. In no event shall Contractor be authorized to enter into any agreement or
undertaking for, or on, behalf of City.
6. Successors and Assigns:
Neither the City, nor the Contractor, shall assign, transfer, or encumber any rights, duties, or interests
accruing from this Contract without the written consent of the other.
7. Property Rights:
All records or papers of any sort relating to the City and to the project will at all times be the property of the
City and shall be surrendered to the City upon demand. All information concerning the City and said project,
which is not otherwise a matter of public record or required by law to be made public, is confidential, and the
Contractor will not, in whole or part, now or at any time disclose that information without the express written
consent of the City.
Work Made for Hire:
All work the Contractor performs under this agreement shall be considered work made for hire, and shall be
the property of the City. The City shall own any and all data, documents, plans, copyrights, specifications,
working papers, and any other materials the Contractor produces in connection with this agreement. On
completion or termination of the agreement, the Contractor shall deliver these materials to the project
manager.
9. Compliance with Law:
Contractor agrees to perform all services under and pursuant to this Agreement in full compliance with any
and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or
regulatory body, whether federal, state, local, or otherwise. Contractor shall have all applicable and
necessary permits, licenses and approvals of any federal, state, and local government or governmental
authority,
10. Federal Requirements and Changes:
The Contractor shall at all times comply with all applicable Federal Transit Administration (FTA) regulations,
policies, procedures and directives. The Contractor's failure to so comply shall constitute a material breach
of this Agreement.
11. Federal Funding:
On the basis of the federal funding that is part of the funding package for the services provided by the
Contractor under the Agreement, and to assure compliance with all federal regulations associated with
services compensated with federal funds, in addition to the terms of the primary Agreement, the Contractor
must also comply with the specific provisions of the attached Federal Funding Agreement, attached hereto
as Exhibit A and fully incorporated herein. If there is any conflict between the terms expressed in the
primary Agreement and those set forth in Exhibit A, the terms and conditions in Exhibit A shall prevail.
12. Hold Harmless:
Contractor shall, and hereby agrees to, release, save, otherwise hold harmless and indemnify the City of
Yakima from claims, demands, damages, actions, causes of actions or other liability, injury, or harm caused
by act or omissions, foreseen or unforeseen, negligent or otherwise, that would otherwise befall said City
arising out of the Contractor's implementation of the terms of this contract.
13. Commercial Liability and Professional Liability Insurance:
The Contractor shall obtain and maintain in full force and effect during the term of the contract, commercial
general liability and professional liability coverage with insurance carriers admitted to do business in the
State of Washington. The insurance companies must carry a Best's Rating of A- VII or better. The policies
will be written on an occurrence basis, subject to the following minimum limits of liability:
Commercial General Liability and Professional Liability:
Combined Single Limit: $1,000,000 Per Occurrence
$2,000,000 Annual Aggregate
The City of Yakima, its agents, elected and appointed officials, volunteers and employees are to be listed as
additional insureds under the policies.
The Contractor will provide a Certificate of Insurance to the City as evidence of coverage. The insured will
provide the City with 30 -days notice of cancellation in the event coverage is terminated during the term, of
this Contract. A copy of the additional insured endorsement attached to the policy will be included with the
certificate.
The Contractor shall also maintain worker's compensation through the State of Washington.
If at any time during the life of the contract or any extension, the Contractor fails to maintain the required
insurance in full force and effect, all work under the contract shall be discontinued immediately. Any failure
to maintain the required insurance may be sufficient cause for the City to terminate the contract.
This Certificate of insurance shall be provided to the Purchasing Manager, prior to commencement of this
work. A sample is attached.
14. Contract Documents:
This Agreement, the Request for Proposals, Scope of Work, conditions, addenda, and modifications and the
Contractor's Proposal, including the Software License and Service Agreement (to the extent consistent with
Yakima Transit's documents) constitute the Contract Documents and are complementary. Wherever the
terms of the two agreements conflict, the City's agreement will control the conflicting provision. Specific
Federal and State laws and the terms of this Agreement, in that order respectively, supersede other
inconsistent provisions. These Contract Documents are on file in the Office of the Purchasing Manager, 129
No, 2ad St., Yakima, WA, 98901, and are hereby incorporated by reference into this Agreement.
15. Governing Law:
This Agreement shall be governed by and construed in accordance with the laws of the State of
Washington.
16. Venue:
The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington
for Yakima County, Washington.
17. Authority:
The person executing this Agreement, on behalf of Contractor, represents and warrants that he/she has been
fully authorized by Contractor to execute this Agreement on its behalf and to legally bind Contractor to all the
terms, performances and provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first above
written.
CITY OF YAKIMA SCHEDULE MASTERS, INC.
BY
Tony O'Rourke, City Manager Authorized Representative
ATTEST:
Sonya Claar Tee, City Clerk
ntf ( -0 .Q a rel.- A 02
Address
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Exhibit A
Federal Certifications and Assurances
It is hereby understood that this application and attachments hereto, when approved and signed by all concerned
parties as indicated, shall constitute an agreement by and between the applicant organization to perform in
accordance with the terms of this application and attachments, taken as a whole. This agreement is based on
guidelines found in the Common Rule, the Office of Management and Budget (OMB) Circular A-102, in order to
standardize and simplify federal grants.
1) REPORTS — The CONTRACTOR shall submit quarterly reports, a final report at end of the project, and submit
special reports as outlined in the Project Agreement.
2) COPYRIGHTS, PUBLICATIONS, AND PATENTS — Where activities supported by this project produce original
copyright material, the CONTRACTOR may copyright such, but the CITY OF YAKIMA reserves nonexclusive
and irrevocable license to reproduce, publish, and use such materials and to authorize others to do so. The
CONTRACTOR may publish, at its own expense, the results of project activities without prior review by the CITY
OF YAKIMA, provided that any publications (written, visual, or sound) contain acknowledgment of the support
provided by the CITY OF YAKIMA. Any discovery or invention derived from work performed under this project
shall be referred to the CITY OF YAKIMA, who will determine whether patent protections will be sought, how any
rights will be administered, and other action required to protect the public interest.
3) TERMINATION — This project agreement may be terminated or fund payments discontinued or reduced by CITY
OF YAKIMA at any time upon written notice to the CONTRACTOR due to non-availability of funds, failure of the
CONTRACTOR to accomplish any of the terms herein, or from any change in the scope or timing of the project.
4) FISCAL RECORDS — Complete and detailed accounting records will be maintained by the CONTRACTOR of all
costs incurred on this project, including documentation of all purchases of supplies, equipment, and services;
travel expenses; payrolls; and time records of any person employed part-time on this project. Federal, state, or
CITY OF YAKIMA auditors shall have access to any records of the CONTRACTOR. These records shall be
retained for three years atter the final audit is completed or longer, if necessary, until all questions are resolved.
5) FUNDING — The CONTRACTOR will utilize funds provided to supplement and not to supplant state and local
funds otherwise available for these purposes. Funds are to be expended only for purposes and activities
approved in the project agreement. Reimbursement will be made periodically by CITY OF YAKIMA based on
approved requests for reimbursement. If matching funds are required, the CONTRACTOR will expend them from
nonfederal sources, which must be spent not later than 30 days following the completion of the project.
6) COST PRINCIPLES AND GRANT MANAGEMENT — The allowability of costs incurred and the management of
this project shall be determined in accordance with OMB 2 CFR Part 225 and 49 CFR Part 18 for state and local
agencies, OMB Circulars A-21 and A-110 for educational institutions, and OMB Circular A-122 for nonprofit
entities.
7) OBLIGATION FUNDS — Federal funds may not be obligated prior to the effective date or subsequent to the
termination date of the project period. Requests for reimbursement outstanding at the termination date of the
project must be made within 30 days or those funds may not be paid.
8) CHANGES — The CONTRACTOR must obtain prior written approval from the CITY OF YAKIMA for major
project changes including: changes of substance in project objectives, evaluation, activities, the project manager,
key personnel, or project budget. The period of performance of the project, however, cannot be changed.
9) INCOME — Income earned by the CONTRACTOR with respect to the conduct of the project (sale of publications,
registration fees, service charges, etc.) must be accounted for and income applied to project purposes or used to
reduce project costs.
10) BUY AMERICA ACT — The CONTRACTOR will comply with the provisions of the Buy America Act (49 U.S.C.
5323(j)) which contains the following requirements: Only steel, iron and manufactured products produced in the
United States may be purchased with Federal funds unless the Secretary of Transportation determines that such
domestic purchases would be inconsistent with the public interest; that such materials are not reasonably
available and of a satisfactory quality; or that inclusion of domestic materials will increase the cost of the overall
project contract by more than 25 percent Clear justification for the purchase of non-domestic items must be in
the form of a waiver request submitted to and approved by the Secretary of Transportation.
11) PURCHASES — Purchase of equipment or services must comply with state or local regulations. After the end of
the project period, equipment should continue to be utilized for traffic safety purposes and cannot be disposed of
without written approval of the CITY OF YAKIMA. The CONTRACTOR shall make and maintain an inventory of
equipment to include descriptions, serial numbers, locations, costs or other identifying information, and submit a
copy to the CITY OF YAKIMA.
12) Third Party Participants — No contracts or agreements may be entered into by the CONTRACTOR related to
this project, which are not incorporated into the project agreement and approved in advance by the CITY OF
YAKIMA. The CONTRACTOR will retain ultimate control and responsibility for the project. CITY OF YAKIMA
shall be provided with a copy of all contracts and agreements entered into by the CONTRACTOR. Any contract
or agreement must allow for the greatest practical competition and evidence of such competition or justification
for a negotiated contract or agreement shall be provided to the CITY OF YAKIMA.
13) PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES — The CONTRACTOR agrees to take all
necessary and reasonable steps in accordance with Title 49, CFR, Subtitle A, Part 26 to ensure that minority
business enterprises have the maximum opportunity to compete for and perform contracts. The CONTRACTOR
shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any
subcontracts financed in whole or in part with federal funds.
14) AMERICANS WITH DISABILITIES ACT — In the performance of this agreement, the CONTRACTOR shall
comply with the provisions of Title VI of Civil Rights Act of 1964 42 USC 200d, Section 504 of the Rehabilitation
Act of 1973 29 USC 794 Chapter 49.60 RCW, and the Americans with Disabilities Act (42 USC § 12101, et seq.;
PL 101-336), which prohibits discrimination on the basis of disabilities (and 49 CFR Part 27). The
CONTRACTOR shall not discriminate on the grounds of race, color, national origin, sex, religion, marital status,
age, creed, Vietnam -Era and Disabled Veterans status, or the presence of any sensory, mental, or physical
handicap in any terms and conditions of employment to induce taking affirmative action necessary to accomplish
the objectives of this Act and denying an individual the opportunity to participate in any program provided by this
agreement through the provisions of services, or otherwise afforded others.
15) POLITICAL ACTIVITIES — No funds, materials, equipment, or services provided in this project agreement shall
be used for any partisan political activity or to further the election or defeat of any candidate for public office or to
pay any person to influence or attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the
awarding of any federal loan or the entering in of any cooperative agreements.
16) CERTIFICATION REGARDING FEDERAL LOBBYING –
Certification for Contracts, Grants, Loans, and Cooperative Agreements.
The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to
any person for influencing or attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection
with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal
loan, the entering into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in connection with this
Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit
Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents
for all sub -award at all tiers (including subcontracts, sub -grants, and contracts under grant, loans, and
cooperative agreements) and that all sub -recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction
was made or entered into. Submission of this certification is a prerequisite for making or entering into this
transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
17) SINGLE AUDIT – State and local governments and nonprofit organizations that receive federal assistance are
subject to the audit requirements of OMB Circular A-133.
18) FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT –
The CONTRACTOR will report for each grant awarded:
• Name of the entity receiving the award;
• Amount of the award;
• Information on the award including transaction type, funding agency, the North American Industry
Classification System code or Catalog of Federal Domestic Assistance number (where applicable),
program source;
• Location of the entity receiving the award and the primary location of performance under the award,
including the city, State, congressional district, and country; and an award title descriptive of the
purpose of each funding action;
• A unique identifier (DUNS);
• The names and total compensation of the five most highly compensated officers of the entity if - of the
entity receiving the award and of the parent entity of the recipient, should the entity be owned by
another entity;
(i) The entity in the preceding fiscal year received—
(1) 80 percent or more of its annual gross revenues in Federal awards; and (11) $25,000,000 or
more in annual gross revenues from Federal awards; and (ii) the public does not have access to
information about the compensation of the senior executives of the entity through periodic reports
filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a),
78o(d)) or section 6104 of the Internal Revenue Code of 1986;
Other relevant information specified by the Office of Management and Budget in subsequent guidance
or regulation.
19) SEAT BELT POLICY — No funds, materials, property, or services will be provided to any political subdivision that
does not have a current and actively enforced policy requiring the use of seat belts.
20) POLICY TO BAN TEXT MESSAGING WHILE DRIVING — The CONTRACTOR are encouraged to adopt and
enforce workplace safety policies to decrease crashes caused by distracted driving including policies to ban text
messaging while driving.
21) DRUG FREE WORKPLACE — In accordance with the Anti -Drug Act of 1988 41 USC 702-707 and Drug Free
Workplace 42 USC 12644, CITY OF YAKIMA has the responsibility to ensure that unlawful manufacture,
distribution, dispensing, possession or use of a controlled substance by any employees, grantees, and/or sub -
grantees of the CONTRACTOR and/or any such activity is prohibited in the CONTRACTOR's workplace.
22) DEBARMENT AND SUSPENSION — The applicant certifies, by signature below, that neither it nor its principals
are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from
participation in this transaction by any Federal department or agency.
Schedule Masters, Inc
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement (the "Agreement") is between Schedule Masters, Inc. with its principal place of business at
5A Conestoga Drive, Suite 200, Brampton, Ontario 16Z 4N5 Canada ("SMI") and its client City of Yakima with its principal place of business
at 1,29 North Second Street, Yakima, WA 98901 ("Client") under which SMI is providing services and licensing software on a non-exclusive
basis for the Client's own use under the terms and conditions stated below.
1. DEFINITIONS
(a) "Delivery Date" shall mean the date that the Client receives
the Program.
(b) "Documentation" shali mean the user manual(s), help files
and any other materials supplied by SMI for use with the
Program or with any Release.
(c) "Effective Date" shall mean the date upon which both parties
have signed this Agreernent.
(d) "License Fee" shall mean the fee for licensing the Program or
Programs specified in the Program Description and Price
Schedule attached as Schedule A to the Agreement.
(e) "License Fee Schedule" shall mean SMI's listing of Programs
and License Fee as it may be in effect from time to time. SMI
reserves the right to change the License Fee Schedule
without notice.
(f) "Program" shall mean the machine-readable object code of
the computer software program or programs described in
the Program Description and Price Schedule attached as
Schedule A to the Agreement and such additional Releases of
such programs as shall be supplied by SMI to Client from
time to time together with its Documentation.
(g) "Release" shall mean any version of a Program or any
materials which are supplied by SMI at or after the delivery
of a Program, including any software provided for the
purpose of improving the functions or performance of the
Program, changing the intellectual property contained in the
Program, expanding the capability or ease of operation of
the Program, or for the purpose of fixing errors in program
logic, together with Documentation.
(h) "Software Support" shall mean support and maintenance
services for Programs provided for in this Agreement.
(i) "Software Support Fee" shall mean that applicable annual
fee due for Software Support in accordance with SMI's
Software Support Schedule.
(j) "Software Support Description and Price Schedule" shall
mean SMI's written statement of Software Support offered
and the fees due for such Software Support as it may be in
effect from time to time (attached as Schedule C).
(k) "Supported Products List" shall mean a list of Program
versions, together with associated computer hardware arid
operating system software platforms, for which SMI provides
Software Support.
(I) "Authorized User" shall mean a member of Client's
organization who has successfully received training on the
Program by SMI or has sufficient working knowledge of the
Program as mutually agreed upon.
2. GRANT OF LICENSE
2,1 One copy of the Program must be licensed for each computer
or work station on which the Program is installed in "Read/Write"
mode. Client may add an unlimited number of "Read -Only"
stations to its network.
3. SCOPE OF THE AGREEMENT
3.1 This Agreement shall apply to each Program or Release of a
Program that Client is currently licensing from SMI or shall license
in the future,
4. RESTRICTION AGAINST THIRD PARTY USE
4.1 The Program may not be used by any person that is not an
Authorized User.
4.2 The Program may be used for Client's internal business use
and only to process information or data of Client. Client may not
process information or data belonging to other parties.
5. COPIES OF THE PROGRAM
5.1 SMI shall furnish to Client copies of the Program as specified
in Schedule A.
5.2 Client shall have the right to make one copy of the machine-
readable object code for the Program solely for archive purposes.
On such archival copy, Client shall mark copyright, trademark,
patent, and/or trade secret notices identical to those on the copy
of the Program provided to Client. Client may not otherwise make
copies of the Program.
5.3 SMI shall furnish to Client one copy of the Documentation for
each "Read/Write" user. Upon request, at SMI's option, additional
copies of the Documentation may be supplied to Client at SMI's
then current price. Client may, without the prior written consent of
SMI, copy and reproduce this Documentation,
5.4 At the client's request, SMI will undertake to deposit the
licensed software source code and documentation in escrow to a
third party after acceptance of the program. These source codes
Schedule Masters, Inc.
- 1 - Software License and Services Agreement Rev. 20 01022
shall be updated if necessary after the Warranty period. This
external agent will be chosen by the client. The corresponding
escrow deposit costs will be at the client's charge. The list of
documents shall include, but not be limited to:
Technical documentation of the system
Source code
Gi Database models
The Escrow Deposit shall be released to the Client in the event
that SMI fails to or in all probability can be expected to fail to fulfill
his obligations pursuant to the License Agreement, for example due
to bankruptcy, suspension of payments or compulsory
composition.
6. INSTALLATION
6.1 SMI shall load the Program on Client's computer hardware
and conduct SMI's standard test procedures on the installed
Program. SMI shall be relieved of its obligation to perform the
installation, and the Program shall be deemed accepted, if Client's
computer hardware or operating system software, in whole or in
part, is defective or is not otherwise in good operating condition.
Client shall provide SMI with access to the computer hardware and
electrical power, work space and such other items as may be
required to complete the installation.
7. DATA CONVERSION
7.1If Client engages SMI to convert Client's data files from Client's
current system, this work shall be carried out at a charge
determined by SMI's current fee schedule. Client shall provide all
information reasonably required for conversion. SMI shall use
reasonable efforts in converting the data; however, all converted
data files shall be supplied "as is" and 5M1 disclaims all warranties,
either express or implied, including but not limited to implied
warranties of merchantability and fitness for a particular purpose
with regard to converted data files. It shall be Client's obligation to
test the converted data files to verify the accuracy of the
conversion of data.
8. ACCEPTANCE
8.1 The Program will be accepted when the Program has been
installed and performs substantially as described in the
Documentation, or if Client uses the Program, or benefits from the
Program in any way.
9. PAYMENT PROVISIONS
9.1 In consideration of the license granted under this Agreement,
Client shall pay to SMi the License Fee in accordance with the
attached Schedule B.
10. ACKNOWLEDGMENT OF SUR'S OWNERSHIP RIGHTS
10.1 Client acknowledges that it obtains no ownership rights in the
Prograrn under the terms of this Agreement. All rights in the
Program including but not limited to trade secrets, trademarks,
service marks, patents, and copyrights are, shall be and will remain
- 2 - Software License and Services Agreement Rev. 20140210
the property of SMI. Ali copies of the Program delivered to Client or
made by Client remain the property of SMI. Client shall not directly
or indirectly call into question the validity, enforceability or
ownership by SMI of the Program.
11. CONFIDENTIAL INFORMATION
11.1 Client acknowledges that the Program and the
Documentation contain proprietary and confidential information of
SMI. Client agrees to keep the Program and Documentation in
confidence and to take all reasonable precautions to ensure that
no unauthorized persons have access to the Program and
Documentation and that no unauthorized copies are made. An
unauthorized person is anyone not employed as the Client's
administrative staff, or the Client's IT Department. Breach of this
provision shall be grounds for immediate termination of this
Agreement without further obligation to Client, at SMI's option.
11.2 Client may not alter any proprietary markings on the
Program, including copyright, trademark, trade secret and patent
legends.
11.3 Client may not decornpile, disassemble, or reverse engineer
the Program. In jurisdictions where .a right to reverse engineer is
provided by law unless information is available about products in
order to achieve interoperability, functional compatibility, or
similar objectives, Client shall submit a detailed written proposal to
SMI concerning Client's information needs before engaging in
reverse engineering. SMI may, in its sole discretion, propose to
Client terms and conditions under which it is willing to make such
information available.
12. WARRANTY
12.1 SMI warrants that the Program will perform substantially in
accordance with accompanying Documentation for a period of one
year from the date of Client's receipt of the Program ("Warranty
Period") and for any period thereafter in which Software Support is
paid for and in effect under the terms of this Agreement. SMI
disclaims all other warranties and conditions (either express or
implied and those arising by statute or otherwise or from a
course of dealing or usage of trade) including but not limited to
implied warranties of merchantability, fitness for a particular
purpose and non -infringement, with respect to the Program and
the Documentation.
12.2 In no event shall SMI have any liability for loss of profits,
loss of business revenue or other expenses incurred by Client as a
result of any breach by SMI (including fundamental breach) or
any other act or omission of SMI (including negligence). Nor shall
SMI be liable for any indirect, special or consequential damages
even if advised of the possibility thereof.
12.3 Exclusive remedy: Client's exclusive remedy against SMI for
breach of this agreement shall be, at SMI's choice, {a) correction
of any error or defect in the Program as to which Client has given
notice (b) replacement of the Program involved. If any problem,
operational failure or error of the Program has resulted from any
alteration that the Client makes to the Program, or the operating
environment, accident, abuse, or misapplication, caused by the
Schedule Masters, Inc.
Client, then this exclusive remedy shall be null and void, at SMI's
option.
12.4 As an accommodation to Client, SMI may supply Client with
Limited Production Program(s) or with pre -production releases of
Programs (which may be labeled "Alpha" or "Beta" or "Limited
Production"). These products are not suitable for production use.
SMI does not warrant Limited Production Program(s) or pre-
production releases; these products are distributed "as is".
13. OVERALL LIMITATION OF DAMAGES
13.1 In no case shall the aggregate amount of darnages payable
to Client by SMI as ordered payable by a court of competent
jurisdiction regarding any claim arising from the Program or
breach or this agreement (including, without limitation, its
warranty and indemnification provisions) exceed the amounts
paid by Client to SMI under this Agreement.
14. INDEMNIFICATION
14.1 SMI agrees to indemnify and hold Client harmless against
any loss, damage, expense, or cost, including reasonable legal fees,
arising out of any claim, demand, or suit asserting that the Program
infringes or violates any copyright, patent, trade secret, trademark,
or proprietary right existing under the laws of Canada or any
province or territory thereof ("Claim"), subject to the overall
limitation of damages hereunder and provided that the Claim has
been reduced to final judgment or has been settled with the
consent of SMI.
14.2 The indemnification obligation in this section shall be
effective only if (1) at the time of the alleged infringement, Client
was using a currently supported version of the Program listed in
SMi's then current Supported Products List, (2) Client gave prompt
notice of the Claim and permitted SMI to defend, and (3) Client has
reasonably cooperated in the defense of the Claim. SMI shall be
entitled to any award of damages or costs awarded by a court of
competent jurisdiction with respect to any Claim. SMI shall have no
obligation to Client to defend or satisfy any Claims made against
Client that arise from the use, sale, licensing or other disposition of
the Program by Client other than as permitted by this Agreement.
14.3 To reduce or mitigate damages, SMI may at its own expense
procure the right for Client to continue licensing the Program or
replace it with a non -infringing product. If SMI supplies a non -
infringing Release of the Program, Client shall promptly install it on
its computer system, and terminate use of prior Releases of the
Program. If Client is not entitled to such non -infringing Release
under the terms of the SMI's Software Support arrangement with
Client, Client shall pay any applicable fee for upgrading to the non -
infringing Release, as stated in SMI's then current fee schedule,
within thirty (30) days of delivery of such Release. If, in its
judgment, SMI deems that, due to the Claim or for any other
reason, it is not in SMI's practical interest to continue distributing a
Program, SMI may require Client, upon thirty (30) days written
notice, to terminate use of a Program. Thirty days after notice to
terminate use of a Program, this Agreement shall terminate as to
the Program involved, Client shall receive a refund of a percentage
of the current year's Software Support Fee for the Program
corresponding to the remaining portion of the year, and in
addition, if such termination takes place during the first year after
the Delivery Date, a refund of a percentage of the License Fee for
such Program corresponding to the remaining portion of the first
year The foregoing is Client's exclusive remedy against any and
all parties for any claim arising from or relating to loss of use of
the program or to any other damage arising as a result of this
provision.
15. TRAINING
15.1 Upon delivery and installation, SMI will provide Client with
Training Services as specified on Schedule B upon the payment
terms stated therein. Thereafter training services will be provided
on the terms and at prices stated in SMI's then current schedule of
fees for training services.
16. SOFTWARE SUPPORT
16.1 Software Support for the Program shall consist of the
services listed on the Client's current Software Support Schedule,
which may change from time to time.
16.2 During the Warranty Period specified above, Client shall be
entitled to software support without additional charge. "Expiration
Date" shall mean the date of the expiration of the Warranty Period
and each subsequent anniversary of such date. Before each
Expiration Date, Client shall be billed for the then applicable annual
Software Support Fee. The yearly increase will never exceed the
then current CPI. If Client has paid the applicable Software Support
Fee on or before the Expiration Date, Client shall be entitled to
receive an additional year of Software Support. SMI shall have no
obligation to provide Software Support after the Expiration Date if
the applicable Annual Software Support Fee is unpaid.
16.3 The Software Support Fee shall be sent to SMI at the address
set forth above, or such other address as SMI may designate.
Information as to the amount of the currently applicable Software
Support Fee for the Program is available from SMI on request.
16.4 SMI's current policy is to support the most recently released
version of the Program, provide only telephone support for the
next prior version and to cease maintenance of earlier versions.
SMI reserves the right to change this policy in its discretion and
reserves the right to discontinue support of Programs or versions
of Programs for hardware and/or operating systems that are used
by numbers of Clients that SMI deems inadequate to justify the
cost of support. SMI shall provide Client with 20 days written notice
of changes in support policy.
16.5 Client agrees that in order to receive Software Support for a
Program, Client must use a currently supported version of the
Program as listed in SMI's Supported Products List. Client
acknowledges and agrees that it may be necessary to update its
computer hardware and/or operating system to achieve
compatibility with the currently supported version. Client
acknowledges and agrees that if it has allowed its subscription to
Software Support to lapse, and if its version of the Program is not
currently supported, it may have to obtain a current version to
obtain Software Support, as is discussed below.
Schedule Masters, Inc. - 3 - Software License and Services Agreement Rev. 20140210
16.6 If Client is not using a currently supported version of a
Program as listed in SMI's Supported Products List, SMI may
suspend provision of Software Support for the Program until Client
cures this condition without refunding the Software Support Fee.
16.7 Client may terminate Software Support by written notice to
SW, prior to any Anniversary of the Expiration Date. However, SMI
shall not be required to refund any Software Support Fee.
16.8 If Software Support has been terminated or has lapsed,
Client may reinstate its subscription to Software Support upon
payment of (1) the annual Software Support Fee in effect at the
time, plus (2) a reinstatement fee equal to the greater of (a) the
difference between the License Fee paid hereunder and the
applicable license fee for the then current version of the Program
and (b) 50% of the annual Software Support Fee in effect at the
time. Upon reinstatement of Software Support, Client will be
upgraded to the current version of the Program.
17. TERM AND TERMINATION
17.1 The term of this Agreement shall commence upon the
Effective Date and shall continue in effect for an initial period of
three (3) years from the Effective Date, which initial period shall be
automatically renewed for additional periods of one (1) year
("Additional Periods"). In the event of a default, either party may
elect to terminate this Agreement by giving written notice to the
other at least sixty (60) days prior to the expirations of the initial
periods or any Additional Period. The Software License portion of
this Agreernent shall be considered a perpetual license at a one
time cost.
17.2 SMI may terminate this Agreement in the event Client (a)
fails to make when due any License Fee payment or other payment
required under this Agreement; (b) commits a material breach of
any of its obligations concerning scope of use of the Program,
Documentation, intellectual property of SMI, (c) makes an
assignment for the benefit of creditors, commits an act of
bankruptcy or Client is adjudicated bankrupt or insolvent or (d)
materially breaches any of its other obligations under any provision
of this Agreement, which breach is not remedied within thirty (30)
days after notice thereof by SMI to Client.
18. RIGHTS UPON TERMINATION
18.1 Upon termination of this Agreernent, Client's license to use
the Program shall terminate, and Client shall immediately turn over
to SMI all copies of the Program and Documentation, and any
other confidential information relating to the Program and
Documentation and shall remove and erase completely any copies
of the Program installed or recorded on any hard disk or other
storage medium. Client shall promptly certify to SMI in writing that
it has complied with this requirement.
18.2 Upon termination of this Agreement, Client shall pay to SMI
all fees due through the effective date of such termination. Unless
otherwise specified herein or otherwise agreed in writing, all fees
collected or accrued prior to the date of termination shall be
retained by SMI without any pro rata refund to Client.
19. AUDIT
19.1 During the term of this Agreement and for a term of one
year after termination, upon reasonable notice, SMI may enter the
premises of Client and perform reasonable audit and inspection
procedures to confirm that Client is in compliance with the terms
and conditions of the Agreement, including, but not limited to,
provisions relating to scope of use of the Program, protection of
Confidential Information, and termination. Client shall cooperate in
any such inquiry.
20. ASSIGNMENT
20.1. Client may not sell, pledge, assign, sublicense, or otherwise
transfer or share its rights or delegate its obligations under this
Agreement without the prior written consent of SMI, which SMI
may withhold in its sole discretion. Any attempted' sale, pledge,
assignment, sublicense or other transfer in violation hereof shall be
void and of no force or effect. SMI may assign its rights and
delegate its duties hereunder at any time without the consent of
Client. SMI shall provide Client with reasonable prior written notice
of assignment of SMI's duties,
20.2 The Client's assignment of this Agreement shall not
discharge Client from its obligations, but shall make Client's
assignee an additional obligor under this Agreement. Any
assignment by Client will be invalid unless the assignee agrees in a
writing delivered to SMI to be bound by and perform all obligations
and terms of this Agreement.
21. GENERAL PROVISIONS
21.1 Applicable Law. This Agreement shah be construed pursuant
to the law of the Province of Ontario and the law of Canada
applicable therein.
21.2 Shipping Costs and Risk of Loss. All costs relating to the
shipment of the Program and the Documentation, including freight
and insurance costs shall be borne by Client. Upon delivery and
installation of the Program and the Documentation, Client shall
assume all risk of loss and damage to the Program and the
Documentation, and shall at its sole cost and expense replace any
lost or damaged portion thereof.
21.3 Taxes. The fees listed in this Agreement do not include taxes.
Client shall pay, in addition to the other amounts payable under
this Agreement, all applicable local, provincial or state and federal
excise, sales, use, personal property, gross receipts and similar
taxes (excluding taxes imposed on or measured by SMI's net
income) levied or imposed by reason of the transactions under this
Agreement. Client shall, upon demand, pay to SMI an amount
equal to any such tax(es) actually paid or required to be collected
or paid by SMI.
21.4 Required Consents. Client warrants that it has obtained
lawful permission to use all hardware and software required in
order for the Program to be used on Client's computer system.
21.5 Public Reference. Client consents to the public use of its
name as a Client of SMI.
Schedule Masters, Inc.
- 4 - Software License and Services Agreement Rev. 20140210
21.6 Software Lock. Client consents to acts by SMI to disable the So agreed between the parties signing below.
Program (including the triggering of software features that prevent
operation of the Program) in the event that Client fails to pay the
License Fee for the Program or uses or transfers the Program in The Effective Date of this Agreement is: March 31, 2014
breach of this Agreement.
21.7 Modification. This Agreement may not be modified or
amended except by a writing .which is signed by authorized
representatives of each of the parties. No other act, document,
usage or custom shall be deemed to amend or modify this
Agreement.
21.8 No Waiver. The failure of either party to exercise any right or
the waiver by either party of any breach, shall not prevent a
subsequent exercise of such right or be deemed a waiver of any
subsequent breach of the same of any other term of the
Agreement.
21.9 Notice. Any notice required or permitted to be sent
hereunder shall be in writing and shall be deemed to have been
given when mailed by first class mail, fax or personal delivery
(including overnight mail by private carrier). Notice is effective
upon receipt. To expedite order processing, Client acknowledges
Transmitted Copies as binding documents equivalent to original
documents. "Transmitted Copies" shall mean requests for
additional user licenses and other ordering documents which (a)
contain no modifications or amendments to this Agreement, {b)
are copied or reproduced and transmitted to SMI via photocopy,
facsimile, or any other process which accurately reproduces and
transmits the original documents, and (c} are accepted by SMI.
21.10 Entire Agreement. This Agreement constitutes the sole and
entire agreement of the parties with respect to the subject matter
hereof and supersedes any prior oral or written promises or
agreements. There are no promises, covenants or undertakings
other than those expressly set forth in this Agreement. Title:
21.11 Equitable Remedies. The parties recognize that money
damages is not an adequate remedy for any breach or threatened
breach of any obligation hereunder by Client involving use of the
Program beyond the scope of the license granted by this
Agreement. The parties therefore agree that in addition to any
other remedies available hereunder, by law or otherwise, SMI shall
be entitled to an injunction against any such continued breach by
Client of such obligations.
21.12 Late Fees, Costs. A late payment charge of 1.5% per month,
compounded monthly, shall apply to any payment due from Client
that is in arrears for a period exceeding thirty (30) days.
Executed by Schedule Masters, Inc.:
Authorized Signature:
Print Name: David Reed
Title: President
Date: February 10, 2014
Executed by Client:
Authorized Signature:
Print Name:
Date:
Schedule Masters, Inc.
- 5 - Software License and Services Agreement Rev. 20140210
Schedule A: Program Description and Prices
AU prices are in United States dollars.
Operating System (check one):
[11 Microsoft
Windows XP
Microsoft
Windows 7
The Master SchedulerTM Version 5.0 Base
System:
• Trip Specification
• Blocking
• Runcutting
• Rostering
▪ Operator Bidding Module
• Mapping Utilities
• Sixty already -designed reports and unloads
• One Year Support and Upgrades
Schedule Masters, Inc.
- 6 - Software License and Services Agreement Rev. 20140210
Schedule B: Training Description and Schedule
of Payments
22. SERVICES PROVIDED
22.1 SMI will conduct training on-site at Client's location or at
other premises determined by prior agreement.
22.2 SMI shall explain and demonstrate all major features of the
Program as they apply to its intended purpose.
22.3 SMI shall be obligated to provide training on features of the
computer hardware or operating system only as they pertain to the
intended operation of the Program. SMI may provide additional
training services if specified by prior written agreement.
23. CONDITIONS OF SOFTWARE TRAINING
23.1 The following terms and conditions shall apply at all times
during Training:
23.2 Client shall provide sufficient on-site training space and white
board, flip chart or other presentation medium.
23.2 Client shall provide sufficient computer hardware to the
training area so that there is a least one computer to share between
every two attendees. Client shall also provide sufficient electrical
current and power outlets to operate the computer hardware,
23.4 SMI will be relieved of its obligation to perform training if
Client's training computer hardware or operating system software,
in whole or in part, is defective or is not otherwise in good operating
condition.
23.5 SMI will also be relieved of its obligation to perform training if
greater than six (6) members of Client's organization attend training
except by prior written agreement.
24. PRICE AND SCHEDULE OF PAYMENTS
24.1 As per SMI's "Price Proposal" to Client:
Base TMS System
$42,500.00
Mapping Utilities
$15,000.00
Projected Expenses
$4,850.00
562, 0.00
2.350.00
Payable as:
$15,000.00
Upon contract signing
$4.2,500.00
Upon software installation
$4,850.00
Upon presentation of SMI's
incurred expenses report
(not to exceed)
562, 0.00
Schedule Masters, Inc.
- 7 - Software License and Services Agreement Rev. 20140210
Schedule C: Software Support Description and
Price
25. SUPPORT SERVICES PROVIDED
25.1 SMI shall assist Client in diagnosing errors and malfunctions
which occur when the Program is used by Client. SMI is not
responsible for errors or malfunctions caused by any hardware or
any third party operating system.
25.2 SMI shall provide support services to Client to attempt to
correct diagnosed errors and malfunctions. SMI shall attempt to
provide Releases that implement corrections and shall attempt to
assist Client in using the Program in a way that can avoid diagnosed
errors, malfunctions and defects.
25.3 SMI shall provide support services to Client to attempt to keep
the Program compatible with the then current version of the
operating system of the computer hardware.
25.4 SMI may provide Client with new Releases for the Program
licensed to Client. Releases may include new features and functions
added to the Program and/or may provide corrections to errors or
malfunctions. The timing and content of Releases will be at the sole
discretion of SMI.
25.5 SMI will effect delivery of each Release to Client. All deliveries
and shipments of Releases will be at SMI's expense. The Client will
install each Release within 30 days of receipt.
25.6 SMI shall use its best efforts to respond to Client's notification
of material errors on the same day as notification is given to SMI or
on the following business day.
25.7 All Software Support shall be performed during the Service
Hours unless other arrangements are mutually agreed to by the
parties in writing. "Service Hours" shall mean the hours of on-call
service coverage under this Agreement which are from 8:00 a.m. to
6:00 p.m. MST during business days.
25.8 SMI will provide reasonable technical support by telephone
concerning use of the Programs and diagnosis of problems or errors.
25.9 Software Support does not entitle Client to Software Modules
or Programs available from SMI which are designed to increase the
number of users, to add additional applications or to cover business
functions that are not included in the Program currently licensed to
Client. Such Software may be licensed from SMI. If such additional
Software is licensed by Client, Releases relating to it will be available
as part of Software Support under this Agreement upon current
payment of the then current Support Fees for such Software.
26. PRICING
26.1 SMI will provide support services on an annual basis for a fee
of 58,625.00 (plus applicable taxes), payable yearly starting on the
first anniversary date of the initial installation.
26.2 in the event that the Client purchases additional licenses of
the Program, support cost will increase by 15% of the non -
discounted additional license(s) purchase price as listed in SMI's then
current License Fee Schedule.
26.3 Support fees shall be payable annually in advance; such fees
shall be those in effect at the beginning of the period for which the
fees are paid.
27. CONDITIONS OF SOFTWARE SUPPORT
The following terms and conditions shall apply at all times while
Software Support is in effect:
27.1 Client shall provide SMI with access at Client's site and
through the use of telephone line(s) and modem(s) to Client's
computer hardware, systern software, and the Program and Client
data files to perform the Software Support services. Client shall also
provide sufficient on-site work space, electrical current, telephone
and power outlets for SMI's use in performing Software Support.
27.2 Client's computer system must be equipped by Client with an
internet connection capable of receiving email messages with
attachments up to 5Mb in size. Client's computer system must be
configured to allow the opening of these attachments.
27.3 Client shall be solely responsible for backup software and
hardware. Client shall provide the safe storage of all backup tapes
and/or disks. Client shall be responsible for keeping its computer
system free of computer viruses.
27.4 SMI shall be obligated to only support Authorized Users.
27.5 Client shall designate an individual who shall be the System
Manager. The System Manager must have a working knowledge of
the Program and the system hardware and will be responsible for
the computer system backups and user access. The System Manager
will also be responsible for recording and reporting errors and
malfunctions and for recording and communicating the status of
fixes to problems by SMI to Authorized Users.
27.6 Client shall use its best efforts to notify SMI of any Program
errors or malfunctions on the same day such problems become
apparent or on the following business day during Service Hours. SMI
shall not be obligated to repair or otherwise rectify any corruption of
Client's data files or remedy any loss of work resulting from an
apparent problem not reported to SMI within the prescribed time
period.
Schedule Masters, Inc.
- 8 - Software License and Services Agreement Rev. 20140210
December , 2013
Mr. O'Rourke,
Com
ittee Reco mendation
11337-P Ru -Cutting Software for
Y k' Transit
%, 4/7 '4%4 47,7 ex,,r 7" 4rpv, r 74p.or,
Iloilo 1111 Hy' 1 1111 111111111, 11 II iiih111
On November 14, 2013, Requests for Proposals (RFP) were due from interested parties to provide
the City with Run -Cutting Software for Yakima Transit. Proposals were received from the following:
• Schedule asters (The Master Scheduler)
• No other roposals received
Purchasing reviewed the Proposal submittal and determined it to be responsive.
The evaluation committee was formed and given materials and instructions on how to conduct the
analysis and score the proposals. The Committee met on November 22, 2013 and at that time
conducted a telephone interview with Schedule Masters. Once the telephone interview was
complete, the Committee scored Schedule Masters' proposal. Committee Members:
1.Ken Mehin, Transit Manager
2.Kevin Futrell, Transit Project Planner
3.Wayne Parsley, Transit Field Operations Supervisor
4.David Mauk, Transit Field Operations Supervisor
5.Tom Sellsted, information Technology Supervising Senior Analyst
6.John Carney, Information Technology Operations Supervisor — Non scoring
7. Maria Mayhue, Purchasing Sr. Buyer - No -Scoring Committee Chair
The proposal was scored utilizing the following scoring matrix, as listed in the RFP:
EVALUATION CRITERIA
POINTS
POSSI LE
Ability to interface with existing Yakima Transit software & hardware systems:
A. Compatibility with the City's hardware and software
B. Paratransit software
C. Microsoft Office software (Word, Excel, Access)
15
User interface/help features/other usability concerns
10
System expendability & compatibility with future upgrades (AVL, MDT, GPS, etc.)
10
Report generation and other outputs (operator paddles, efficiency reports, etc.)
10
Ability to incorporate YT labor agreement
10
Training/customer support
10
Cost
10
Geographic Information System/Mapping capabilities
5
Corporate stability
5
Database functionality
15
.
TOTAL
100
Out of 500 possible points (100 total points for each scoring evaluator) the combination of the scores
was as follows:
Schedule asters: 429
The committee unanimously recommends that we proceed to contract award with Schedule Masters.
Sincerely,
Maria Mayhue, CPPB
Senior Buyer
APPROVED:
Ken
-hin, Yakima Transit Manager
Tony 'Roy
ke, City Manager