HomeMy Public PortalAbout2016.06.09 BDPA Inc NW Data Exchange License AgreementNW DATA EXCHANGE
Corporate Compensation Data License Agreement
This License Agreement (this "Agreement") is made effective as of the 9 day of June,
2016 (the 'Effective Date") between BDPA, Inc, an Idaho Corporation, doing business as "NW
Data Exchange" ("Licensor") and the City of McCall, Idaho, a Municipal Corporation, whose
address is 216 E Park St, McCall, ID 83638 ("Licensee").
RECITALS
WHEREAS, the Licensee desires to obtain access to and use of the expertise and
information compiled, analyzed and provided by Licensor; and
WHEREAS, the parties recognize that the information provided by Licensor is the result
of the unique and exclusive efforts of Licensor and that said information has value because it is
not available to the general public and therefore the confidentiality of said information is critical
to maintaining that value; and
WHEREAS, the parties desire to maintain the confidentiality of the information provided
by Licensor to Licensee; and
NOW THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
I. Content of Licensed Data Provided
The materials that are the subject of this Agreement to be compiled and provided by Licensor to
Licensee shall consist of the following items (hereinafter referred to as the "Licensed Materials",
set forth in "Appendix A" which is attached hereto and incorporated by reference herein) as
selected by Licensee from the Subscription Package set forth in "Appendix B" which is attached
hereto and incorporated by reference herein. Licensee shall select (1) a Data Package, and (2) a
Region. In all reports, the organization names will be coded for confidentiality purposes, but the
organization type (city, county, non-profit, etc.) and the region will be displayed.
II. Authorized Use of Licensed Materials/Confidentiality
a. Licensed Materials are confidential and provided to Licensee on an exclusive basis.
Licensee agrees to not copy, disclose or distribute any Licensed Materials to any other
person or entity, without the prior written permission from Licensor.
b. Licensee shall not modify or create a derivative work from the Licensed Materials
without the .prior written permission of Licensor. Other than as specifically permitted in
this Agreement, Licensee may not use the Licensed Materials for commercial purposes,
including but not limited to the sale of the Licensed Materials or bulk reproduction or
distribution of the Licensed Materials in any form.
NW Data Exchange License Agreement (2016) Page 1
c. Exempt from Disclosure. Licensee recognizes and agrees that the materials, information
and analysis provided to Licensee under this Agreement has independent economic value
because it is not generally known and is not readily ascertainable by other persons or
entities who could obtain economic value from the disclosure and/or use of said
materials, information and analysis. Licensee agrees that Licensor's efforts to maintain
the confidentiality of the Licensed Materials provided under this Agreement are
reasonable under the circumstances and will assist Licensor in maintaining the desired
confidentiality. Licensee recognizes and agrees that the Licensed Materials provided
under this License Agreement are comprised of confidential proprietary information
and/or trade secrets and therefore are exempt from disclosure under the Idaho Public
Records Law pursuant to Idaho Code §74-101, et seq, as amended.
d. If any third party should make a demand to Licensee that the Licensed materials are a
Public Record and subject to disclosure under the law, Licensee shall provide Licensor
written notice of that claim within five (5) days of Licensee's receipt ("Notice of
Claim"). Upon Licensor's timely receipt of a Notice of Claim Licensor may elect to (i)
agree in writing to the disclosure of the requested materials, or (ii) refuse the request for
disclosure and in that case Licensor agrees to indemnify and hold harmless Licensee for
any costs or reasonable attorney's fees incurred by Licensee as a direct result of any
claim that such licensed materials are a Public Record under Idaho law.
e. These Authorized Use/Confidentiality provisions of this Agreement shall survive the
termination of this Agreement.
III. Licensee Performance Obligations
a. Licensee agrees to submit to Licensor payroll and benefit data in October/November of
each year.
b. All data provided by Licensee to Licensor herein must be in the Northwest Data
Exchange requested Spreadsheet format.
c. Licensee shall use reasonable efforts to protect the Licensed Materials from any use that
is not permitted under this Agreement. In the event of any unauthorized use of the
Licensed Materials by an Authorized User, Licensor may terminate such Authorized
User's access to the Licensed Materials and terminate this Agreement.
IV. Mutual Performance Obligations
a. Licensor and Licensee agree to maintain the confidentiality of any data provided from or
to NW Data Exchange in performance of this Agreement as set forth in paragraph II(b)
herein.
V. Term
a. This Agreement shall continue in effect each year based on a verbal renewal request after
the first year, until either party terminates this Agreement for any reason upon giving
sixty (60) days advance written notice.
NW Data Exchange License Agreement (2016) Page 2
VI. Disclaimer Notice
a. Notwithstanding anything else in this Agreement, Licensor shall not be liable for any
indirect, special, incidental, punitive or consequential damages, including but not limited
to loss of data, business interruption, or loss of profits, arising out of the use of or the
inability to use the Licensed Materials. Licensor makes no representation or warranty and
herein expressly disclaims any warranty or liability with respect to the content of any
Licensed Materials, including but not limited to errors or omissions contained therein,
libel, infringement of rights of publicity, privacy, trademark rights, moral rights, or the
disclosure of confidential information. The Licensed Materials are provided on an "as is"
basis, and Licensor disclaims any and all other warranties, conditions, or representations
(express, implied, oral or written), relating to the Licensed Materials or any part thereof,
including, without limitation, any and all implied warranties of quality, performance,
merchantability or fitness for a particular purpose.
VII. Indemnities
a. Each party shall indemnify and hold the other harmless for any losses, claims, damages,
awards, penalties, or injuries incurred by any third party, including reasonable attorney's
fees, which arise from any alleged breach of such indemnifying party's representations
and warranties made under this Agreement, provided that the indemnifying party is
promptly notified of any such claims.
b. The indemnifying party shall have the option to defend such claims at its own expense.
The other party shall provide, at the indemnifying party's expense, such assistance in
investigating and defending such claims as the indemnifying party may reasonably
request. This indemnity shall survive the termination of this Agreement.
VIII. Assignment and Transfer
a. Neither party may assign, directly or indirectly, all or part of its rights or obligations
under this Agreement without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed.
IX. Governing Law
a. This Agreement shall be interpreted and construed according to, and governed by, the
laws of the State of Idaho. Subject to the provisions of Section X. concerning Dispute
Resolution below, the venue for any litigation shall be exclusively in Ada County, Idaho.
X. Dispute Resolution
a. In the event any dispute or controversy arising out of or relating to this Agreement, the
parties agree to exercise their best efforts to resolve the dispute as soon as possible by
mediation and the parties shall, without delay, continue to perform their respective
obligations under this Agreement which are not affected by the dispute. Any
controversies or disputes arising out of or relating to this Agreement that are not resolved
NW Data Exchange License Agreement (2016) Page 3
by mediation shall be resolved by binding arbitration in accordance with the Arbitration
Rules of the American Arbitration Association. The parties shall endeavor to select a
mutually acceptable arbitrator knowledgeable about issues relating to the subject matter
of this Agreement. In the event the parties are unable to agree to such a selection, each
party will select an arbitrator and the arbitrators in turn shall select a third arbitrator who
shall serve as the sole arbitrator for the matter. The arbitration shall take place in Ada
County, Idaho.
b. All documents, materials, and information in the possession of each party that are in any
way relevant to the claim(s) or dispute(s) shall be made available to the other party for
review and copying no later than thirty days after the notice of arbitration. The arbitrator
shall not have the authority, power, or right to alter, change, amend, modify, add, or
subtract from any provision of this Agreement or to award punitive damages.
c. The arbitrator shall have the power to issue mandatory orders and restraining orders in
connection with the arbitration. The award rendered by the arbitrator shall be final and
binding on the parties, and judgment may be entered thereon in any court having
jurisdiction. The agreement to arbitration shall be specifically enforceable under
prevailing arbitration law. During the continuance of any arbitration proceeding, the
parties shall continue to perform their respective obligations under this Agreement.
d. The prevailing party shall be entitled to reimbursement of its attorney's fees incurred in
the arbitration.
XI. Force Majeure
a. Neither party shall be liable in damages or have the right to terminate this Agreement for
any delay or default in performing hereunder if such delay or default is caused by
conditions beyond its control including, but not limited to Acts of God, Government
restrictions, wars, insurrections and/or any other cause beyond the reasonable control of
the party whose performance is affected.
XII. Entire Agreement
a. This Agreement constitutes the entire agreement of the parties and supersedes all prior
communications, understandings and agreements relating to the subject matter hereof,
whether oral or written.
XIII. Amendment
a. No modification or claimed waiver of any provision of this Agreement shall be valid
except by written amendment signed by authorized representatives of Licensor and
Licensee.
XIV. Severability
a. If any provision or provisions of this Agreement shall be held to be invalid, illegal,
unenforceable or in conflict with the law of any jurisdiction, the validity, legality and
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enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
XV. Waiver of Contractual Right
a.
Waiver of any provision herein shall not be deemed a waiver of any other provision
herein, nor shall waiver of any breach of this Agreement be construed as a continuing
waiver of other breaches of the same or other provisions of this Agreement.
XVI. Notices
a. A11 notices given pursuant to this Agreement shall be in writing and may be hand
delivered, or shall be deemed received within three days after mailing if sent by
registered or certified mail, return receipt requested. If any notice is sent by facsimile,
confirmation copies must be sent by mail or hand delivery to the specified address. Either
party may from time to time change its Notice Address by written notice to the other
party.
If to Licensee: City of McCall
Address: 216 E Park St,
McCall, ID 83638
Telephone: (208) 634-7142
E-Mail: tmalvich@mccall.id.us
XVII. Miscellaneous
If to Licensor: NW Data Exchange
PO Box 140661
Garden City, Idaho 83714
(208)853-1655
eafog@msn.com
a. If any portion of this Agreement is found to be invalid, unenforceable or unlawful, the
remainder shall be construed to conform to the intent of the parties and shall survive the
severed provisions.
b. The captions and headings in this Agreement are for reference only and shall not be
deemed to define or limit the scope or intent of any of the terms, covenants or conditions
contained herein.
c. The parties mutually agree to all terms and conditions contained in this Agreement. The
terms and conditions of the Agreement shall not be construed more strictly against a party
to this Agreement regardless of whether that party prepared the Agreement.
d. This Agreement is not intended to create nor shall it create any third party beneficiary
rights in any person or entity unless expressly provided herein.
IN WITNESS WHEREOF, the parties have executed this Agreement by their respective,
duly authorized representatives as of date noted below.
NW Data Exchange License Agreement (2016) Page 5
LICENSOR: NW DATA EXCHANGE LICENSEE: CITY OF MCCALL
DATE: June , 2016 DATE: June 9 , 2016
BY:
Its: I�' °f Mayor A
Attest:
Cit
Clerk
NW Data Exchange License Agreement (2016)Page 6
Appendix A
Licensed Materials
The Licensed Materials and information to be provided by Licensor referenced below are
confidential and constitute proprietary information and/or trade secrets and are exempt from
disclosure under Idaho Code §74-107. These Licensed Materials are a compilation of
information and analysis prepared by Licensor and shall not be disclosed by Licensee without the
express written permission of Licensor. Licensee's execution of this Agreement constitutes
Licensees' acknowledgment of and agreement to the confidential nature of the Licensed
Materials and that they are exempt from public records disclosure.
1. Annual Report - This report consists of a compilation of data for matching positions
within your region and/or additional regions or system -wide (depending on subscription
level). Reported data will include average hourly rate, salary range minimum, and salary
range maximum by organization; all reported data will be included in a simple average
for each job that has matches in the Northwest Data Exchange. The annual report also
includes a compilation of benefit data. Benefit Data collected will include vacation time
accrued monthly at 5, 10 and 15 years of employment; sick leave hours granted per
month, retirement contributions, and the premium amount paid by the employer and
employee, for health, dental, and vision insurance.
2. Customized Report - This report includes detailed data comparisons for matching
positions within your region and one other region, plus five (5) comparable employers
that you choose within the Northwest Data Exchange. At the Gold Level the report may
also include data from five (5) organizations outside the NWDE, from whom we will
attempt to collect data. Reported data for each of your jobs will include the average
hourly rate, and salary range minimum and maximum by organization compared to the
same data for your organization, resulting in a market ratio (a percentage amount that
shows how your pay rate for each job compares with the surveyed jobs, above or below
market rates). This report will include a summary page that lists each of your jobs and
shows the survey data in condensed format with an overall market ratio for your
organization. The customized report will also provide a "range analysis" showing how
your salary ranges, by job, compare to the survey data ranges for matching jobs.
3. Detailed Benefit Data Comparison to show how your benefits compare to surveyed
comparables.
4. Total Compensation Analysis is included that utilizes the compensation formula
adapted from the one developed by the City/County Managers Association to display a
Total Compensation value.
5. Data Requests for Specific Positions — This on request report will provide you a means
to obtain data throughout the year for individual positions. When you want to find out the
salary for any position, new or existing, the Northwest Data Exchange is a phone call or
e-mail away. We will always try to process individual requests within 72 hours.
NW Data Exchange License Agreement (2016) Page 7
Appendix B
2015 Annual Subscription Levels and Fees
Silver Subscription
• One Annual Report with regional data from subscriber's
region and one other of subscriber's choice for your job $1,800 Annual
matches; Subscription
• One Customized report (by request) with data from your
region, plus 5 comparables from the database, including
detailed data by position for your job matches, summary
survey results, market -ratio analysis, benefit data
comparison and total compensation analysis;
• Six (6) salary data requests for specific positions at
anytime during the year.
Gold Subscription
• One Annual Report with system -wide data. $2,200 Annual
• One Customized report for your identified market Subscription
comparables from the database; and, upon request we will
solicit data from up to five organizations outside the
database. The report includes detailed data by position
for your job matches, summary survey results, market -
ratio analysis, benefit data comparison and total
compensation analysis
• Eight (8) data requests for specific positions at anytime
during the year;
• Three (3) hours of compensation consulting time with
BDPA, Inc.
One -Time Set Up Fee based on size of workforce:
• 100 FTE's or less = $600
• 101— 299 FTE's = $1,000
• 300 — 999 FTE's = $1,500
• 1000+ FTE's = $2,000
• Compensation Consulting Services - At Gold Level, BDPA includes three (3) hours of
compensation consulting time to meet your needs. This may include, but is not limited to,
advice and counsel on updating your salary schedule, additional compensation analysis,
obtaining additional market data from employers not participating in the Northwest Data
Exchange, or similar compensation related consultation. Requested hours over 3 will be
billed at BDPA's current hourly rate.
NW Data Exchange License Agreement (2016) Page 8
Additional Services
• NWDE will complete .surveys for subscribers using subscriber's data for $100 per survey
(with maximum 30 job matches) with a copy of completed survey returned to subscriber.
• Individual data requests for specific positions, over and above the allowed number in each
subscription level, are based on BDPA's hourly rate with a minimum charge of $50.00 per
request.
NW Data Exchange License Agreement (2016) Page 9