HomeMy WebLinkAboutAgreement - Master Sales & License Agreement - Implement Routeware for Solid Waste - Routware, Inc.1316 COUNTY -CITY BUILDING �' 4.�,J�ry
�MF'PHONE 574/ 235-925I
227 W. JEFFERSON BOULEVARD
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SOI ITH BEND_ INDIANA 46601-1830
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CITY OF SOUTH BEND PETE BUTTIGIEG, MAYOR
BOARD OF PUBLIC WORKS
November 12, 2019
Kerry Araujo
Routeware, Inc.
16525 SW 72nd. Ave., Bldg. F
Portland, OR 97224
RE: Master Sales and License Agreement
Dear Mr. Araujo:
The Board of Public Works, at its meeting held on November 12, 2019, approved the above
referenced agreement to Implement Routeware for the South Bend Solid Waste Division in
the amount of $386,269.85for a five (5) year yerm.
Enclosed please find the original of the agreement for your signature. Please sign and return
the original agreement to our office and retain a copy for your records.
If you have any further questions regarding this matter, please call this office at (574) 235-
9251.
Sincerely,
Linda M. Martin, Clerk
Enclosure
GARY A. GILOT GENEVIEVE E. MILLER ELIZABETH A. MARADIK LAURA L. O'SULLIVAN THERESE J. DORAU
Statement of Work
City of South Bend - Reroute
Project Outline
• Meeting, Project Kickoff (teleconference): 4 hrs
• Review data requirements
• Align resources on project methodology
• Validate South Bend Objectives
• Data Prep to As -Is: 72 hrs
• City of South Bend provide requested data
• Calculate route performance metrics (pick rates and yield)
• Build model of current routes and calibrate with performance data
• Meeting, As -Is Review (teleconference): 4 hrs
• Review As -Is route with City to confirm that they match current operations
• Make adjustments as needed
• Tactical Feasibility Checks: 8 hrs
• Confirm that daily trash routes can be reduced from 9 to 8
• Confirm that daily yard routes can be reduced from 4 to 3
• Create New Route Designs: 44 hrs
• Develop fully implementable routes for trash and yard service
• Meeting, Review Routes (on -site): 12 hrs
• Review routes with operational staff
• Polish/adjust according to staff feedback
• Create Outputs: 8 hrs
• Deliver new routes in format for upload to Routeware
Total Hours —152 hrs ($225 per hour)
Assumptions
• Approximately 40,000 collection locations
• The city will provide accurate geocodes (lat/long) for collection locations
• The city will ensure that the appropriate resources are available for all meetings
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� � re to perform the work stated in this document.
x .,. ,... .� .. _.,.,...._ Date
I certify that Routeware has completed and delivered all the work described in this document.
Signature Date
ROUTEWARE MASTER SALES AND
LICENSE AGREEMENT
This document lists the terms and conditions under which Routeware, Inc., a Delaware corporation
with offices located at 16525 SW 72nd Avenue, Portland, OR 97224 ("aatpre "), is willing to sell
products and services to the entity listed in an Order Form issued by Routeware ("gstornr").
Together with an Order signed by Customer, these terms and conditions form a "Master
g�e,ern„ant" with respect to the Products and Services listed in the Order. The signing of an Order
or issuance of a Purchase Order by the Customer and/or use of Services, having had the
opportunity to read these terms and conditions, shall be deemed conclusive evidence of the
Customer's acceptance of the terms of the Master Agreement.
TERMS AND CONDITIONS
1. GENERAL ORDERING PROCESS
1.1 Ordering. From time to time, Routeware may sell to Customer hardware products
(including all on- board computers and peripheral devices, such as the RCore devices) ("M-i, .r . rqN")
and software products ("5pftwgra") (together, Vrodfct "), and related Support (as defined in
Section 2) and/or other installation, support, consulting, software development, or disaster recovery
services (collectively," ge Micle_s"), all pursuant to an authorized order form issued by Routeware that
is signed by Customer (an "Order"). Together, an Order and these terms and conditions form a
" aster rc eN hereinafter "A reernent�", between Routeware and Customer regarding the
Products and Services subject to the Order.
1.2 Delivery and Acceptance. Routeware will use reasonable efforts to meet the delivery
dates for Products and Services that are specified in an Order. All Product shipments are delivered
F.O.B. Destination ("Customer's facility), with title and risk of loss passing at that time. For Products
to be installed by Routeware, acceptance does not occur until, the sooner of: the system go live
event including the successful sending of routes to the drivers with implies hardware and software
acceptance; or successful acceptance testing has been completed during a mutually agreed upon
testing period. For Products that are not installed by Routeware, acceptance is deemed upon
delivery.
(c) Payment Terms. Each Order sets forth the amounts due for all Products and Services that it
covers (the "Fees"). Unless otherwise stated in an Order, Customer will pay all invoiced Fees in
United States Dollars within thirty (30) days following invoice date. Any Fee not paid when due will
bear a late payment charge of 1.5% per month compounded daily from the due date until the date
paid, or such lower rate as allowed by applicable law. All Fees are non-refundable. Customer will
reimburse Routeware in full for any and all collection costs incurred by Routeware. Routeware may,
at its option, delay the delivery of Products and/or suspend Services and Support until all overdue
Fees and late charges have been paid in full. If Routeware permits delayed payment or otherwise
finances any purchases of Products by Customer, (a) Customer grants to Routeware a first priority,
purchase money security interest in such Products as collateral until payment is made in full, (b)
Routeware will enjoy all rights and remedies available to it with respect to such collateral under
applicable law, Customer will take all steps reasonably requested by Routeware to facilitate such
security interest, and (d) Customer will not transfer nor permit any other security interests or liens
to be applied to such Products until payment is made in full. Customer is responsible for all
applicable taxes and will reimburse Routeware for the same.
2. SOFTWARE LICENSES; SUPPORT
2.1 Truckware License. Truck are" means all Software that is pre -loaded and operates on
the hardware that is integrated into the Customer's vehicle fleet, whether sold by Routeware or
certified and approved by Routeware in writing. Subject to the provisions of the Agreement and
subject to Customer continuing to maintain Support per Section 2.3, Routeware grants a limited,
non-transferrable, perpetual license to Customer to operate the Truckware on the specific hardware
product on which it was originally loaded (whether sold by Routeware or certified and approved by
Routeware), in accordance with the user guides, specifications, and other documentation provided
by Routeware for that Truckware (the "_Qo,umen„tp.t,ipn"), and up to the number of trucks authorized
on the Order provided that Customer maintains a current support plan. Under no circumstances may
Customer load Truckware on hardware (including computers and peripherals) that is not sold or
certified and approved by Routeware.
2.2 Officeware License. "Officeware" means all Routeware-supplied, server -based Software
that is provided to Customer for installation and use for reporting, status checking, alert
management, dispatching, and other purposes either locally or remotely. Subject to the provisions of
the Agreement, Routeware grants a limited, non-transferrable license during the License Period to
Customer to install a single instance of the server version of Officeware on a networked server and
to allow up to ten (10) users to use the client version of Officeware, all in accordance with its
respective Documentation. The Officeware license will continue in force for the period listed on the
applicable Order, or if no such period is stated, for automatically renewing periods of one (1) year
started from the Order date (in either case, the Lwgwri„ is e _ Per"i,od"), subject to either party electing
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against renewal by notifying the other party in writing at least ninety (90) days prior to the end of
the then- current License Period.
2.3 Support. All support services for Software listed in an Order are further subject to
the terms and conditions listed under Support Plans Terms & Conditions ("Support").
2.4 Restrictions; Reservation of Rights. Customer agrees not to (and to not enable any third
party to):
(a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied
in the Software (except to the extent required by law or as necessary for interoperability purposes as
required under terms and conditions required by the providers of Third -Party Products); (b)
distribute, transfer, grant sublicenses to, or otherwise make available the Software or
Documentation to third parties, including making the Software or Documentation available (i)
through resellers or other distributors, or (ii) as an application service provider, service bureau, or
rental source; (c) embed or incorporate in any manner all or part of the Software into other
applications of Customer or third parties other than as authorized in applicable Documentation; (d)
create modifications to or derivative works of the Software; (e) reproduce the Software (except that
Customer may make up to two archival copies of the Officeware solely for backup purposes); (f)
attempt to modify, alter, or circumvent any license control and protection mechanisms within the
Software; (g) use or transmit the Software in violation of any applicable law, rule or regulation,
including any export/import laws; and (h) remove, obscure or alter any copyright notices or any
name, trademark, service mark, tagline, hyperlink or other designation included on any display
screen within the Software. All Software is a "commercial item," as that term is defined at 48 C.F.R.
2.101(OCT 1995), and more specifically is "commercial computer software" and "commercial
computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995).
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), Software
is provided to U.S. Government End Users (i) only as a commercial end item and (ii) with only those
rights as are granted to all other end users pursuant to the terms and conditions herein. Other than
as stated in this Agreement, Routeware grants Customer no other right, title or interest in any
Software.
3. CLOUD HOSTING. All cloud hosting services are subject to the terms and conditions listed
under the Cloud Hosting Service Level Agreement found at http://www.routeware.com/Clients,.
4. THIRD PARTY HARDWARE AND SOFTWARE. Certain hardware and software sold by
Routeware is manufactured, developed or made available by other companies and distributed by
Routeware for use in conjunction with the Products, including but not limited to open source or
"free" software (collectively, "Tt rrt ,(� rty prr O.uc s"). Third -Party Products may be subject to
additional license terms and restrictions (" Third -Party T .r s"), which we will make available to you
as required by the suppliers of such Third -Party Products. In the event of a conflict between the
terms of this Agreement and any Third -Party Terms, the Third -Party Terms shall control to the
extent of the conflict. Routeware hereby assigns to Customer (to the extent assignable) all
warranties given by the supplier(s) of Third -Party Products; provided, however, that Customer
agrees to look to the supplier(s) for any Third -Party Product warranty, service and other post -
purchase issues. Customer is solely responsible for obtaining any and all components, updates, new
versions, and releases for any Third -Party Products necessary for use in connection with the
Products.
S. OTHER SERVICES. All other Services provided by Routeware under an Order are further
subject to a statement of work issued by Routeware. Routeware will perform such Services in a
professional, competent and workmanlike manner in accordance with the prevailing standards in
Routeware's industry. Customer acknowledges that the timely and successful performance of
Services requires good faith cooperation by Customer. Therefore, Customer shall furnish all
information, access, assistance and services reasonably requested by Routeware. In the event that
any failure by Customer to comply with the provisions of this Section 5 results in any delay in
performance of the Services by Routeware, Routeware shall not be deemed in breach of the
Agreement for such delay. Customer shall reimburse Routeware for all expenses reasonably incurred
in the performance of Services, as such have been approved in advance by Customer. Except with
respect to any Customer Confidential Information or pre-existing intellectual property included
therein (collectively, " ustoyjpr Pr „pggy"), Routeware will retain all right, title and interest in and to
all deliverables and work product (including any and all intellectual property rights therein)
generated as a result of the Services. Customer's rights to the deliverables and work product shall be
the same as the rights granted to Customer under this Agreement with respect to the applicable
Hardware and Software.
6. AUDITS. During any time that Customer is using Hardware or Software under an Agreement,
and for one year thereafter, Routeware will have the right to perform an audit not more than once
each year to verify that Customer is using the Products in compliance with this Agreement. The audit
will include at a minimum Routeware having access to all Software, Hardware, Documentation and
related Customer equipment (including all servers and personal computers that contain Officeware,
and any hardware that contains Truckware). The audit will be performed from Monday through
Friday, between 8:00 a.m. and 5:00 p.m. local time, and upon not less than 15 days' prior written
notice to Customer. The audit will be conducted at Routeware's sole cost and expense, subject to
reasonable security and access restrictions. Customer will be permitted to have Customer personnel
present during the audit. If an audit conducted under this Section discloses that Customer has
underpaid by more than 3% any amounts payable under this Agreement during the period covered
by the audit, Customer will pay Routeware the amount of that underpayment and, in addition, will
reimburse Routeware's reasonable and actual costs for that audit.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
7.1 Mutual. Each party represents and warrants to the other party that: (a) it has the full
corporate right, power and authority to enter into this Agreement and to perform the acts this
Agreement requires of it;
(b) the execution of this Agreement and performance of its obligations under this Agreement do not
and shall not violate any other agreement to which it is a party; (c) when executed and delivered this
Agreement constitutes the legal, valid and binding obligation of such party; and (d) any and all
activities it undertakes in connection with this Agreement shall be performed in compliance with all
applicable laws, rules and regulations.
7.2 Products.
1. Subject to the exceptions listed below in part (b), Routeware warrants (i) that the
Hardware will be free from material defects in materials and workmanship and will operate in all
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.
material respects in accordance with its applicable Documentation (the ").la..�.d�+avreWarrantY,") for
Y Y ( _ ..ware Warranty, Ppripd"); and (ii) for a
one year from the date of initial deliver or renewal the I lard„
period of ninety (90) days from the date of initial delivery (the " of are arr nwtywPp„r o ") the
Software will perform in substantial conformance with its Documentation. Customer may purchase
renewals of the Hardware Warranty Period through extended service plans made available by
Routeware in its discretion. Following the end of the Hardware Warranty Period, Routeware will
have no further obligation to repair or support the applicable Hardware.
2. Routeware's entire liability and Customer's exclusive remedy for any reported
breach of the Hardware Warranty or Software Warranty will be repair or replacement of the
defective Product. All claims must be received by Routeware promptly upon discovery of any defect,
and in no event after expiration of the applicable Warranty Period. The foregoing Hardware and
Software Warranties do not apply to any defect or failure to operate that is attributable to: (i)
Customer's misuse or abuse of or failure to maintain the Product; (ii) Customer's failure to operate
the Product in accordance with Routeware's Documentation; (iii) any change made to the Product
by Customer without Routeware's written approval; (iv) any defect, limitation or incompatibility in
any equipment or other component installed by Customer; (v) any accident, catastrophe, act of God,
or interruption or fluctuation in electrical power supplies; (vi) any material change in Customer's
business or in the operating conditions under which the Product is used; (vii) translations; or (viii)
Third -Party Products.
7.3 Disclaimer. THE WARRANTIES OF THIS SECTION 7 ARE THE EXCLUSIVE WARRANTIES
OFFERED BY EITHER PARTY AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR
WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF
LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER CONDITIONS AND
WARRANTIES, INCLUDING ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, NON -INFRINGEMENT, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF
DEALING OR COURSE OF PERFORMANCE, ARE HEREBY DISCLAIMED.
8. LIMITATION OF LIABILITY
8.1 INDIRECT DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BYLAW AND EXCEPT
WITH RESPECT TO THE FAILURE TO PAY AMOUNTS PROPERLY OWED, SECTION 10.1
(CONFIDENTIALITY), OR VIOLATIONS OF ROUTEWARE'S INTELLECTUAL PROPERTY RIGHTS, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, WHETHER
UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT DAMAGES THAT ARISE
FROM OR RELATE TO THIS AGREEMENT (INCLUDING LOST PROFITS AND ANY OTHER INCIDENTAL,
PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES), WHETHER FORESEEABLE OR NOT AND
WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 TOTAL LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BYLAW AND EXCEPT WITH
RESPECT TO THE FAILURE TO PAY AMOUNTS PROPERLY OWED, BREACHES OF SECTION 10.1
(CONFIDENTIALITY), OR VIOLATIONS OF ROUTEWARE'S INTELLECTUAL PROPERTY RIGHTS, EACH
PARTY'S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER IN CONNECTION WITH THIS
AGREEMENT (INCLUDING ANY WARRANTY CLAIMS) WILL NOT EXCEED, IN THE AGGREGATE AND
REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL
AMOUNT PAID OR PAYABLE BY CUSTOMER TO ROUTEWARE IN THE 12 MONTHS PRIOR TO THE
EVENT THAT GAVE RISE TO LIABILITY.
8.3 Indemnification for Intellectual Property Right Infringement.
1. Subject to the terms and conditions set forth in this section "Indemnification for
Intellectual Property Right Infringement", the Contractor shall, at its own expense, defend the
Customer from and against any and all claims, suits, and proceedings brought by a third party
(collectively "Claims") alleging that the Contractor's software, hardware, applications, or services
(collectively known as "Products") that is used by the Customer directly infringes such third party's
intellectual property rights and shall indemnify the Customer from and against liability, damages,
and costs finally awarded or entered into in settlement (collectively, "Losses") to the extent based
upon such Claims.
2. If a Claim of direct infringement as set forth above is brought, the Contractor shall,
at its sole option and expense, use commercially reasonable efforts either (a) to procure a license
that will protect the Customer against such Claim without cost to the Customer; (b) to modify or
replace all or portions of the Products as needed to avoid infringement, such update or replacement
having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible,
terminate the Agreement and refund to the Customer a pro-rata refund of the monthly service fees
and Product fees paid for under the Agreement for the terminated portion of the Term upon which
the Customer shall return all Products to the Contractor. The rights and remedies granted the
Customer under this paragraph "2" of section "Indemnification for Intellectual Property Right
Infringement" state the Contractor's entire liability, and the Customer' exclusive remedy, with
respect to any claim of the Contractor Products' direct infringement of the intellectual property
rights of a third party.
3. In the event of a potential indemnity obligation under the section "Indemnification
for Intellectual Property Right Infringement", the Customer shall: (i) notify the Contractor in writing
of such Claim within 30 days of receipt of the Claim; (ii) allow The Contractor to have sole control of
its defense and settlement; and (iii) upon request of the Contractor, cooperate in all reasonable
respects, at the Contractor's cost and expense, with the Contractor in the investigation, trial, and
defense of such Claim and any appeal arising therefrom. The indemnification obligations under the
section "Indemnification for Intellectual Property Right Infringement" are expressly conditioned
upon the Customer' compliance with this paragraph "3" of section "Indemnification for Intellectual
Property Right Infringement".
4. The Contractor will have no liability for Claims to the extent arising from and, but for one
or more of the following, there would be no infringement: (a) use of the Products in violation of this
Agreement or applicable law, (b) use of the Products after the Contractor notifies the Customer to
discontinue use due to an infringement claim, (c) modifications to the Products not made by the
Contractor or made by the Contractor based on the Customer specifications or requirements, (d) use of
the Products in combination with any software, hardware, application, service, or third party content
not provided by the Contractor, (e) use of the Products in combination with services, regulations, or
ordinances imposed or offered by the Customer, (f) infringement of any intellectual property
infringement claim(s) known by the Customer at the time Products are obtained, or (g) the Customer'
failure to use reasonable materials or instructions from the Contractor which would have rendered the
Products non -infringing after a reasonable implementation period, provided that (i) use of such
materials and instructions are communicated in writing to the Customer and identified as required to
be implemented to avoid loss of IP indemnification, (ii) no substantial material or labor cost addition,
or qualification or re -tooling costs shall be incurred as a result of using such materials or carrying out
such instructions (unless the Contractor reimburses such costs), and (iii) the implementation of such
instructions or use of such materials can be completed in a commercially reasonable timeframe and do
not materially and adversely affect the performance and specifications of the Products.
8.4 EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF
LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE RISK
BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE
BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT
OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY
EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9. TERM AND TERMINATION
9.1 Term of Agreement. This Agreement begins on the Effective Date (defined as the
order form signature date or purchase order date) and continues until terminated pursuant
to this Section 9.
9.2 Termination Rights. This Agreement may only be terminated as follows: (a) by mutual,
written agreement of the parties; (b) by either party if the other party materially breaches this
Agreement, and does not cure the breach within 30 days after receiving written notice from the non -
breaching party; (c) by either party if such party elects to not renew all License Periods; or (d) by
either party if the other party makes a general assignment for the benefit of creditors, suffers or
permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject
to any proceeding under the U.S. Federal Bankruptcy Act or any other foreign or domestic statute,
law, rule or regulation relating to insolvency or the protection of rights of creditors, which
proceeding is not dismissed within 60 days.
9.3 Effect of Termination. Upon any termination of this Agreement, without prejudice to
any other rights or remedies which the parties may have, the following applies: (a) Customer shall
immediately cease all use of all Hardware and all Software; (b) all other rights and obligations
immediately cease, except that Sections 1.3, 2.3, 2.4, 6, 7.3, 8, 9.3, 10, and 12 shall survive
termination; (c) upon written demand, each party as a receiving party will return or destroy all of
the other party's Confidential Information; and (d) Customer will immediately pay Routeware any
undisputed amounts still outstanding.
10. CONFIDENTIAL INFORMATION; PUBLICITY
10.1 Confidential Information. Both parties recognize that they may each receive (as a
Rec,i i ) from the other (as a Discloser") certain confidential and valuable proprietary
information that is identified pursuant to the terms of this Section 10.1 as confidential (collectively,
the "Confidential Information"). Both parties agree to identify any Confidential Information as
follows: if written, with a written legend that says "confidential" or a similar term; or if verbal, by
identifying the information as confidential when disclosed, and then sending the Recipient a written
confirmation of that confidential status within 30 days after disclosure. Notwithstanding the
foregoing, all documentation and Software are Routeware Confidential Information. A Recipient will
not, without the Discloser's prior written consent, disclose Confidential Information to any person
other than those of its employees, independent contractors or consultants who need to know it for
the purposes of this Agreement and who are bound by confidentiality agreements with the Recipient
that are at least as protective as this section. A Recipient may only use Confidential Information for
the purpose of this Agreement. A Recipient will handle any Confidential Information with the same
care as it does its own Confidential Information, but in any event no less than reasonable care. None
of the provisions of this section, however, apply to any Confidential Information that meets any one
of the following criteria: (a) information possessed by the Recipient without restriction prior to
receiving it from the Discloser, provided that the Recipient can demonstrate such possession; (b)
information that the Recipient developed independently and without use of or reference to the
Confidential Information, as documented by its written records; (c) information that the Recipient
receives from another party who is not in breach of any of that party's obligations as a result of that
disclosure; or (d) information that the Discloser intentionally discloses to any other party without any
restriction on confidentiality. Additionally, a Recipient may disclose Discloser's Confidential
Information to the extent required by applicable law or that a court or other governmental body
orders such Confidential Information disclosed by the Recipient, provided that with respect to
disclosure pursuant to a court or governmental body order, the Recipient promptly notifies the
Discloser of such order and provides the Discloser with notice and opportunity to contest it, if
possible. These obligations shall survive the termination of this Agreement for a period of five (5)
years, except with respect to any source code, which will remain protected until it is no longer
Confidential Information. This Section does not intend to grant a Recipient any ownership interest or
license or right to any intellectual property rights of the Discloser.
(d) Terms; Publicity. The parties will keep the terms and conditions of this Agreement
confidential and will not divulge any of this information to any third party except as follows: (a) with
the prior written consent of the other party; (b) as otherwise may be required by law or legal
process; (c) during the course of litigation, so long as the disclosure is restricted in the same manner
as is the confidential information of other litigating parties; and in confidence to its legal counsel,
accountants, banks, and financing sources and their advisors solely in connection with complying
with or administering its obligations with respect to this Agreement; provided that, in (b) and (c)
above, to the extent permitted by law, the disclosing party will use all legitimate and legal means
available to minimize the disclosure to third parties, including seeking a confidential treatment
request or protective order whenever appropriate or available, and the disclosing party will provide
the other party with at least 10 days' prior written notice of such disclosure. Neither party may use
the other party's trade names, trademarks or service marks, or engage in any publicity regarding this
Agreement or its subject matter, without the other party's express written consent, which will not
be unreasonably withheld or delayed.
11. MISCELLANEOUS
11.1 Independent Contractors. The parties are independent contractors with respect to each
other, and nothing in this Agreement shall be construed as creating an employer -employee
relationship, a partnership, agency relationship or a joint venture between the parties.
11.2 Force Majeure. Each party will be excused from any delay or failure in performance
hereunder, other than the payment of money, caused by reason of any occurrence or
contingency beyond its reasonable control, including but not limited to acts of God, earthquake,
labor disputes and strikes, riots, war and governmental requirements. The obligations and rights
of the party so excused will be extended on a day -to- day basis for the period of time equal to
that of the underlying cause of the delay.
11.3 Assignment. Neither party may assign its rights or obligations under this Agreement to
any other person or entity, except for assignment and transfer of all of a party's rights and
obligations under the following circumstances: (a) with the express written consent of the other
party, which may not be unreasonably delayed or withheld; (b) as part of a re -organization or
restructuring; (c) to the surviving entity of a merger transaction; or (d) to the purchaser of a
Controlling Interest in, or more than 50% of, the assets of the assigning party. A "Cont ro l„i—ng
Interest" means more than 50% of the total outstanding voting stock of the assigning party. Any
attempted assignment or delegation in violation of this section is void. Subject to the foregoing, this
Agreement will bind and inure to the benefit of the parties and their respective successors and
assigns.
11.4 Changes & Waivers. The terms and conditions of this Agreement may only be
changed by mutual written agreement of the Parties. No waiver of any breach of this
Agreement shall constitute a waiver of any prior, concurrent or subsequent breach, and no
waiver is effective unless made in writing and signed by an authorized representative of the
waiving party.
11.5 Governing Law; Jurisdiction. The laws of the State of Indiana, without regard to
conflict of laws rules, govern the interpretation and enforcement of this Agreement. The United
Nations Convention on Contracts for the International Sale of Goods will not apply. The parties
agree with and submit to the state or federal courts located in Indiana as the exclusive venue and
jurisdiction for any and all disputes arising from or relating to this Agreement. Each party waives
any objection (on the grounds of lack of jurisdiction, forum non conveniences or otherwise) to the
exercise of such jurisdiction by these courts.
11.6 Arbitration. Customer agrees that any and all controversies, claims, or disputes arising
out of this Agreement, including any breach of this Agreement, shall be subject to binding
arbitration under the Arbitration Rules set forth by the American Arbitration Association (the
"Rules") and pursuant to Oregon law. Disputes that Customer agrees to arbitrate, and thereby
agrees to w iv a �y�r��hk toa _r' 1 byjpgrr, include any statutory claims under state or federal law.
The place of arbitration shall be an agreed upon location in the State of Indiana. Indiana State law
shall apply. Judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. The number of arbitrators shall be one (1) The arbitrator shall have the
power to decide any motions brought by any party to the arbitration, including motions for
summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any
arbitration hearing. The arbitrator shall issue a written decision including findings of fact and
conclusions of law on the merits of its award. The arbitrator shall have the power to award any
remedies, including attorneys' fees and costs, available under applicable law.
11.7 Attorney Fees. The prevailing party in any litigation between the parties regarding this
Agreement shall be entitled to recover reasonable attorney's fees and other costs from the other
party. These fees and other costs are in addition to any other relief to which the prevailing party
may be entitled.
11.8 Conflicts; Order of Precedence. In the event that any term of this Agreement conflicts
with governing law or is held to be ineffective or invalid by a court of competent jurisdiction, such
term will be deemed to be restated to reflect as nearly as possible the original intentions of the
parties in accordance with applicable law, and the remaining terms of this Agreement shall remain
in full force and effect. This Agreement, including any amendments, controls any conflicts between
any of its provisions and those of any Order.
11.9 Integration. This Agreement and the Orders together constitute the entire agreement
between the parties with respect to the Products and Services and supersede all prior and
contemporaneous discussions, negotiations, communications or agreements regarding the same
subject matter. The terms on any purchase order, invoice, or other ordering document will have no
effect and are hereby rejected.
11.10 Notices. Unless stated otherwise, all notices, consents and approvals under this
Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail
(postage prepaid and return receipt requested) to the other party at the address set forth on at the
beginning of this Agreement, and are deemed delivered when received. Either party may change its
address for notices by notice to the other party given in accordance with this Section 12.10.
11.11 Counterparts. This Agreement may be executed in counterparts, each of which will be
deemed to be an original and together will constitute one and the same agreement. This
Agreement may also be executed and delivered by facsimile and such execution and delivery will
have the same force and effect of an original document with original signatures.
11.12 Headings; Interpretation. Headings are used in this Agreement for reference only and
will not be considered when interpreting this Agreement. As used in this Agreement, "includes"
(or "including") means without limitation.
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date 10/30/19
Department
Name Daniel O'Connor Innovation & Tech
BPW Date 11/12/19 Phone Extension 6201
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�.�.. .�.e... w� �...n.�,�,.�,...a.......,�....�.�....�.�.,..�.�.�.�.�.�,,,..u._...�......�.�..�...�,w.,..,.....,.e ...,�,m..�.�..�.. ........�.�. .,tee .............
Requirtl Prior to Submittal to Board
BPW Attorney ® Attorney Name McDaniels
Dept. Attorney ® Attorney Name Kennedy
Purchasing Schmidt
Check the Appropriate Item Type
❑] Professional Services Agreement Contract
❑ Open Market Contract
❑ Amendment/Addendum
❑ Bid Opening
Bid Award
R Quote Opening
Quote Award
❑ Proposal Opening
C/O & PCA No.
❑ Chg. Order, No.
Traffic Control
Other:
Reuuired Information
All Submissions
Proposal
❑ Special Purchase, QPA
❑ Req. to Advertise
Reject Bids/Quotes
❑ PCA
❑ Resolution
Ease./Encroach
❑ Title Sheei
Company or Vendor Name RouteWare
Nos® If Yes Approved by .. ...
New Vendor � Purchasing
MBE/WBE Contractor ❑ WBE Completed E-Verify Form Attached Nos
Routeware Solid Waste System implementation(To replace existing
Project Name Elemos System)
Project Number
Funding Source Solid Waste Capital
.. _____ mm,,....,,.. ...........__-
Account No. 611-0610-415.43.08
Amount $386.269.85 over the 5 year term of the agreement
Yearl - $126,326.98, Year2 - $63,541.68, Year3 - $64,494.80, Year4 -
$65,462.23, Year5 - $66,444.16
Terms of Contract 5 year agreement . with one time hardware purchases and implementation
Yp p
—mn
thly r�currip services anc .o... ®_
Purpose/Description To Implement Routeware for Solid waste to replace Elemos
For Change Orders Only
Amount of
Increase $LL
❑
Decrease ($
Previous Amount
$ ................................................%.................................................................................�
...........
Increase�
�...�..............................._............................
Current Percent of Chan e:
Decrease
%)
New Amount
$
Increase
/o
Total Percent of Change:
Decrease
/o
Time Extension Amount:
V
INTER -OFFICE MEMORANDUM
Department of Innovation & Technology
City of South Bend 227 W Jefferson Blvd
Pia
TO: Board of Public Works, Linda Martin
CC: Shawn Delahanty, Dan Parker, Michael Schmidt, Clara McDaniels, Sandi
Kennedy, Kelly Smith, Eric Horvath
FROM: Daniel O'Connor
SUBJECT: Routeware Solid Waste Solution Implementation to replace Elemos
DATE: 10/30/2019
Linda and Members of the Board
We are submitting for review and approval a Proposal for the acquisition and implementation of
Routeware, a Solid Waste system that once implemented will replace the existing Elemos System. Also
included is a Statement of Work for Professional Services with Routeware to one time use their
Easyroute module to ensure Solid Waste routes are optimized within the first year of implementation.
The total cost of the 5 year agreement will be $386,269.85. One time acquisition and installation
expenses will occur in year one and annual recurring cost will be incurred each year of the 5 year
agreement.
Attached is the Routeware Proposal and the Statement of Work for the one-time use of Easyroute.
Thank you.
Daniel O'Connor