HomeMy WebLinkAboutResolution - 4757 - Agreement-Biddle & Associates Inc-Test Prep Manual & Test Package, Civil Service - 02_23_1995Resolution No. 4757
February 23, 1995
Item #25
13UNT11111A•
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed
to execute for and on behalf of the City of Lubbock a Professional Agreement for Test
Preparation Manual and Test Package for Civil Service, attached herewith, by and between
the City of Lubbock and Biddle & Associates, Inc., and any associated documents, which
Agreement shall be spread upon the minutes of the Council and as spread upon the minutes
of this Council shall constitute and be a part of this Resolution as if fully copied herein in
detail.
Passed by the City Council this 23rd
ATTEST:
Betty NP Johnson, dity Secretary
APPROVED AS TO CONTENT:
Mary Andreils, Director of Human
Resources
APPROVED AS TO FORM:
Donald G. Vandiver, First Assistant
City Attorney
DGV:da
ccdocs/biddle.res
February 9, 1995
_ day of February , 1995.
BIDDLE & ASSOCIATES, INC.
2100 Northrop Avenue, Suite 200A Sacramento, CA 95825-3937
Office: (916) 929-7670 Fax: (916) 929-3307
TEST PREPARATION MANUAL/TEST
TERMS AND CONDITIONS OF LICENSE
(Signature Required)
Resolution No. 4757
February 23, 1995
Item #25
Subject to the following terms and conditions, and it is agreed by and
between BIDDLE & ASSOCIATES, INC. and City of Lubbock, TX
(hereinafter Agency), that for consideration in the sum of S 4,500.00
plus ( 0 ) sales tax ( n/a ) for California employers, for a
total of S 4,500.00 including shipping, Agency shall have the right
to use Biddle & Associates' Test Preparation Manual/Test Package which
includes the following:
1. One master copy of the Test Preparation Manual (TPM)
2. A pool of test items sufficient to construct three different
tests
3. Two stock test forms
4. Test Administration and Scoring Instructions
5. Instructions on conducting mini -academies for candidates
6. Key reference sheet for each item
7. Cutoff Score Analysis Data Entry Form and sample
8. Candidate Test Instruction Sheet
9. Test Scoring and Analysis Software (see Single Site Software
License Agreement)
As used herein, "TPM/Test Package," refers to all of the foregoing
materials.
1. It is expressly understood that in licensing the right to use its
TPM/Test Package, Biddle & Associates does not guarantee
compliance with the civil rights laws or the requirements of
federal or state enforcement agencies. Nor does Biddle &
Associates agree to stand as surety or otherwise immunize the
Agency from any civil rights liability that may result from the
Agency's use of the TPM/Test package. Biddle & Associates has
recommended to the Agency that a job analysis and link -up to the
validation study, approved by the court in the case, of LULAC,
et. al. V. City of Salinas, et, al. C-78-2608 SWSJ, would
greatly improve the defensibility of the TPM/Test Package.
2. The right to use Biddle & Associates' TPM/Test package is
licensed to the Agency for the internal use and benefit of the
agency only. The Agency agrees not to sell, rent, lease,
license, give, loan, or otherwise disclose or provide the
TPM/Test package to any other employer or entity, or use the
TPM/Test Package for the benefit of any other employer or entity.
Test materials may be reproduced or copied only for internal use
of the Agency, except in connection with litigation or
investigation by federal or state enforcement agencies.
EQUAL EMPLOYMENT OPPORTUNITY
0 Consulting 0 Training 0 Computer Software • Availability Data 0 Selection Procedures
2
3. The Agency is responsible for the security of the TPM/Test
Package throughout the time it is licensed. It is understood by
the Agency that any security breaches may adversely affect Biddle
& Associates' future ability to license or to lease its TPM/Test
Package. To protect test security, the agency agrees not to
provide, disclose, or otherwise reveal the TPM/Test Package to
any persons except the employees of the Agency directly and
necessarily involved in test administration and entry-level
selections, except that job applicants may, of course, see Test
Booklets, answer sheets and identification sheets at the time the
test is administered, unless ordered to do so by a court or by
the Attorney General of Texas. In no instance will the Agency
allow anyone other than the employees described in this item (3)
to have access to the Test Key.
Biddle & Associates understands that Agency is subject to the
Texas Open Records Act. In the event that a request is made to
see the TPM/Test, Agency agrees to notify the Attorney General
and request an opinion. Agency further agrees to notify Biddle
& Associates at that time and to inform the Attorney General that
the TPM/Test is protected by federal copyright and trade secret
laws.
4. In the event of the loss of one or more pages of a test booklet
or the loss of one or more test booklets, the agency agrees to
inform Biddle & Associates of such security breach within five
(5) working days of its occurrence.
5. The Agency agrees to pay $6,500 for each test booklet lost or
missing one or more pages.
6. The Agency agrees that neither it nor its officers, agents,
employees, representatives, nor any persons in active concert and
participation with it or them, shall modify, adapt, or alter the
TPM/Test package in any way, or develop any identical or similar
manuals/tests without the prior consent, in writing, of Biddle &
Associates, Inc., which shall retain the copyright to all
versions of the TPM/Test Package. Biddle & Associates should be
provided a copy of any change immediately.
7. As part of this contract, Biddle & Associates will conduct
without charge one Cutoff Score Analysis for the Agency after any
test administration the Agency desires. Upon receipt from the
Agency of a completed Cutoff Score Analysis Data Entry Form,
Biddle & Associates will conduct one statistical analysis of the
data and recommend to the Agency how to establish a cutoff score
to minimize adverse impact. The cutoff score analysis will be
completed within ten (10) working days after receipt of the
Cutoff Score Analysis Data Entry Form.
Page 2 of 3
8. Biddle & Associates will submit a bill for licensing costs to the
Agency after delivery of the TPM/Test Package. Payment is due on
receipt of Biddle & Associates' bill. A service fee of one and
one-half percent (1-1/2%) per month (eighteen percent (18%] per
year) will be charged on all unpaid balances in excess of
forty-five (45) days past due.
In the event of the loss of one or more Test Booklets or if one
or more pages are missing from a Test Booklet, Biddle &
Associates will submit a bill to the Agency, per Item 5 above,
which is due on receipt of Biddle & Associates' bill. A service
fee of one and one-half percent (1-1/2%) per month (eighteen
percent (18%] per year) will be charged on all unpaid balances in
excess of forty-five (45) days past due.
9. Should the Agency become the subject of any litigation or
investigation by state or federal enforcement agencies arising
from the Agency's use of the TPM/Test package, Biddle &
Associates agrees to assist the Agency in its defense, on a
time -and -charges basis at such hourly rates as may then be
current.
10. In the event of any litigation rising from or relating to the
terms of this agreement between the parties hereto, the losing
party shall pay all attorney's fees, costs and damages incurred
by the prevailing party occasioned by the dispute and litigation.
Costs for time spent by Biddle & Associates, Inc. employees will
be according to their rate schedule at the time work was
performed.
BIDDLE i ASSOCIATES, IrN�C. �/ p
Name • m c,�bk
Title:
Signature:
Date: A-10�
AGENCY:
APPROVED AS TO CONTENT:
_//4W e��,
Mary An ews
Director of Human Resources
LANG5KN, MAYODfV-
APPROVED AS FORM:
91�
Mal G. Van v
First Attorney
ATTEST:
f:\forms\contract\tpn_lics.con
Bett ohnsonv Page 3 of 3
City Secretary
SINGLE SITE SOFTWARE LICENSE AGREEMENT
1. GRANT OF LICENSE: Biddle & Associates, Inc. grants to � .� � U �' j� l iec & 1 K • ,
hereinafter referred to as the "Employer," the right to use certain software from Biddle &Associates at a single site for which
a license fee has been paid. A "site" is defined as one building. The combination of software licensed will be referred to
hereinafter as the "System." Use of the System is provided under this license agreement. The Employer does not become the
owner of the software. The Employer may network the System or otherwise use it on more than one computer or computer
terminal at the same time but only at the same site. Products of the System (e.g., reports, tabulations, etc.) may be used for
internal purposes at or for other sites of the Employer.
The System is defined by the invoice(s) that identifies the software, such as, Module A also called "Tracking," Module B also
called "Test Scoring & Analysis," Module C also called "EEO/AAP Analysis" (Equal Employment Opportunity/Affirmative
Action Plan), Module D also called "Job & Pay Analysis" which includes Simplified GOJA (Guidelines Oriented Job Analysis),
SOT also called "1990 SOT Program" (Special Occupation Tabulation) which includes the program and data, utility programs,
or other sofhvare distributed by Biddle & Associates, Inc. Unauthorized use of any part of the System or related materials
can result in civil damages and criminal penalties.
2. COPYRIGHT: All parts of the System are owned and copyrighted by Biddle & Associates, Inc, and are protected by
United States copyright laws and international treaty provisions. The Employer agrees to abide by these laws and provisions.
Therefore, the Employer must treat the System as any other copyrighted material (e.g., a book or musical reading) except that
the Employer may (a) make one copy of the System solely for backup or archival purposes, (b) transfer the System to hard
disks provided the hard disks are in computers that are located at the licensed site, (c) install the System on more than one
terminal at the licensed site, (d) reproduce an unlimited number of the forms, manuals, charts, Simplified GOJA booklets,
or SOT data for internal use only at any of the Employer's sites, or in response to compliance agencies, complaints, or
litigation, and (e) any copy of the System or any part of the System, SOT data, Simplified GOJA booklet, manual, or form
must maintain the copyright notice. This permission for reproduction does not apply to the copyrighted programs, tapes,
and/or disks.
System program tapes, disks, CD ROASs, or coding, in any form are not to be reverse engineered, decompiled, or
disassembled, and neither these nor any form of Simplified GOJA or any part of any SOT can be sold, rented, leased, given,
or lent to another person or employer. Modifications to any part of the System, including Simplified GOJA or SOT in any
way will be sent to Biddle & Associates, Inc. and will retain the Biddle & Associates, Inc. copyright on all versions regardless
of the extent of modification, amplification, or change.
The programs in the System are not to be used to input data provided by or for the benefit of a person or employer other than
the Employer licensing the System, without written permission from Biddle & Associates, Inc.
3. 30 DAY MONEY BACK GUARANTEE: Biddle & Associates, Inc. provides the Employer with a 30 day money back
guarantee beginning on the date System materials are shipped from Biddle & Associates, Inc. to the Employer. Should the
Employer decide to return the System during the 30 day period, then the Employer agrees to return all original materials
including program diskettes and cassette tapes in the original packing, purge all copies of the System from all computers,
destroy all copies of the System that may have been made, destroy all output generated from the System, and to not use the
System without an authorized license agreement from Biddle & Associates, Inc. Upon receipt of the original materials, a
signed form attesting to the requirements in this section, and a signed authorization form, Biddle & Associates, Inc. will refund
the licensing fee to the Employer. This guarantee does not apply to the 1990 SOT Program or any SOT data.
4. MIMI) WARRANTY: Biddle & Associates, Inc. warrants that the System will perform substantially in accordance with
the Operator's Manual for a period of 30 calendar days from the date mailed. This warranty may be extended for one year
from the end of the 30 calendar day period for module(s) licensed, if the Employer has signed and mailed to Biddle &
Associates, Inc. its Annual Maintenance Agreement within 30 calendar days from the date the System is mailed to the
Employer. It is also recognized that Biddle & Associates, Inc. cannot provide a guarantee of compliance or immune the
employer from any civil rights or any other type of liability.
5. PAYMENT OF FEES: Payment for all fees must be received by Biddle & Associates, Inc. within 30 days from the license
acceptance date. A service fee of 1-1/2% per month will be assessed on all balances over thirty days.
6. CUSTOMER REMEDIES: Biddle & Associates, Inc.'s entire liability and the Employer's exclusive remedy shall be, at
Biddle & Associates, Inc.'s option, either (a) return of the price paid or (b) repair or replacement of the System which does
Biddle & Associates, Inc., 2100 Northrop Avenue, Suite 200-A, Sacramento CA 95825, (916) 929-7670, FAX: (916) 929-3307
not meet Biddle & Associates, Inc.'s Limited Warranty and which is returned to Biddle & Associates, Inc. with a copy of the
Employer's license agreement within the 30 calendar day period referred to above for the original license fee. This Limited
Warranty is void if failure of the System resulted from accident, abuse, or misapplication. Any replacement System will be
warranted for the remainder of the original warranty period.
7. NO OTHER WARRANTIES: Biddle & Associates, Inc. disclaims all other warranties, either express or implied, including
but not limited to implied warranties of merchantability and fitness for a particular purpose.
8. NO LIABILITY FOR CONSEQUENTIAL DAAIAGES: In no event shall Biddle & Associates, Inc. or its suppliers be liable j
for any damages whatsoever (including, without limitation, damages for loss of business profits, business interrbption, loss
of business information, or other pecuniary loss) arising out of the use of or inability to use the System, even if Biddle &
Associates, Inc. has been advised of the possibility of such damages.
aid *j,, -teat PcW6crl and COR& i
9. INTEGRATION CLAUSE: This Agreement represents the entire integrated agreement between the Employer and Biddle 7
& Associates, Inc. and any written or oral communications regarding the foregoing and supersedes all prior negotiations,UCe166
representations, and agreements, whether written or oral. This agreement may be modified, or any provision waived, only `k
by a writing executed by both parties. p� i
10. SUCCESSORS: The burdens and benefits of this agreement shall be binding upon the respective successors and assigns
of the Employer and Biddle & Associates, Inc. C
11. AGREEMENT PARTS: If any provision of this agreement is found to be invalid, illegal, or unenforceable, the remainder
of this agreement shall not be construed to be invalid, illegal or unenforceable and shall remain in full force and effect and
the provision found to be invalid, illegal, or unenforceable shall be rewritten by the parties to express the parties' intent in
a valid, legal, and enforceable W nner.
12. STATE OF his agreement shall be governed by the laws of the State of-Cali%amiih
13. ATTORNEY FEES AND COSTS: If any party commences an action, special proceeding, arbitration, administrative, or
other proceeding to enforce this agreement, the prevailing party shall recover as costs its reasonable attorney's fees, consultant
fees (Biddle & Associates, Inc. staff fees per the firm's published rate schedule), costs, and expenses.
14. AUTHORITY: Each of the persons executing this agreement represents that he or she is authorized to so execute on behalf
of the signatory person or entity and accepts the terms above.
LICENSE ACCEPTANCE:
V
Software Modules: A_ B C_ D_ SOT
Date:
Size Diskettes:
BIDDLE & ASSOCIATES. INC.
Name: 1 , 1W�P_
1l�;��[�i`!A
Signature: �fo. .A.'.//.� _' /I
Date:-. j / &
CONTACT PERSON/SITE LOCATION:
M` MI
Title:
Address:
City/State: Zip:
Phone:
FOR OFFICE USE ONLY:
Date programs shipped:
Shipped by:
Init:
Site number: Size diskettes:
Software Modules: A B C D SOT
10-29.92
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