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HomeMy WebLinkAboutContract 39722roN R CT ti� � 1a Skire, Inc. Software Maintenance Agreement This Software Maintenance Agreement ("Agreement") sets forth the terms and conditions under which Skire, Inc. ("Skire") provides to the City of Fort Worth ("Customer") maintenance and support services for Skire's proprietary software applications under the UnifierT"' suite of products as purchased by Customer under the Software License and Maintenance Agreement dated December 10, 2004, and identified as City Secretary Contract No. 31026 (SLM Agreement). Customer's purchase and use of such Application licenses is governed by the survival of the terms and conditions of the SLM Agreement. The licenses purchased by Customer in the SLM Agreement are perpetual licenses and therefore not subject to any renewal term. By utilizing Skire's services, Customer agrees to follow and be bound by all the terms, conditions and notices of this Agreement. 1. Definitions A. "Application" shall mean the specific Skire proprietary software applications) identified by name in an Order Form and as described in the SLM Agreement, and any Updates thereof, and expressly excludes rd any 3 party software or hardware necessary to install, access, operate and/or use Skire's applications. B. "Confidential Information" shall mean any non-public data, information and other materials regarding the products, services or business of a party (and/or if either party is bound to protect the confidentiality of any third party's information) provided to either party by the other party where such information is marked or otherwise communicated as being "proprietary" or "confidential" or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Without limiting the foregoing, the Application, and all software, source code, inventions, ideas, know- how, approaches, methodologies, concepts, skills, tools, techniques, expressions, processes and documentation relating thereto constitutes Confidential Information of Skire. C. "Customer" shall mean the City of Fort Worth ("City"), as identified in the Order Form and/or Agreement. The term City shall include all officers, employees, directors, agents or representatives of the City. D. "Order Form" shall mean a document that identifies the specific products) purchased. E. "Effective Date" shall mean the date indicated on the Order Form. F. "Named User" shall mean a named or specified (by password or other user identification) individual authorized by Customer to use the Application, regardless of whether such individual is actively using the Application at any given time. A Named User may be internal to the Customer organization or external to the Customer organization, such as a Service Provider (as defined in Section 2.A). G. "Consumer Price Index" shall mean the Consumer Price Index for all Urban Consumers, Dallas / Fort Worth Average, for the prior year over the Consumer Price Index for the year in which the Agreement is authorized (as published by the United States Department of Labor Statistics). 2. Maintenance A. Description of Maintenance Services. Subject to the terms and conditions of this Agreement, including without limitation the payment of all applicable Maintenance Fees, Skire shall provide maintenance and support for the Application during the Term, as described herein ("Maintenance"). During Skire's normal business hours (6 a.m. to 6 p.m. PST, Monday through Friday, excluding Holidays), Skire shall provide technical support and assistance to any Named User who successfully completes formal Skire training. Customer shall report problems via Skire's then -current Customer Support contact method(s� posted on Skire's website at http://www.skire.com. Skire will provide Customer with such subseq ent releases, fixes and modifications of the Application that are generally � ��'��i��,�� RECOR®� �IiY" S�GRETARY �'� �lIC�RTH, TX Page 1 of 8 - CFW Maintenance Agreement provided to Skire's customers who are active on Maintenance, but shall not include any releases, options, modules or future applications or functionality that Skire offers separately to customers. As a Skire-hosted solution, Skire's Maintenance only applies to the then -current version of the Application. B. Maintenance Renewals. Skire shall endeavor to invoice Customer thirty (30) days prior to the expiration of the then -current Maintenance terms, and Customer may accept such renewal Maintenance under the terms of this Agreement by paying the invoice prior to the expiration of the then -current Maintenance term. If Maintenance should terminate or expire, and Customer is in good standing under this Agreement, Customer may reinstate Maintenance on payment of the cumulative accrued Maintenance Fees applicable for the period during which Maintenance lapsed, plus Maintenance Fees for the then -current maintenance period. C. Discontinuance of Maintenance. If Customer decides to discontinue Maintenance, the Licenses granted and Customer's right to use the Application shall continue unabated. D. Maintenance Fees. The Maintenance Fees shall be calculated using the previous year's maintenance fee and may be subject to an increase on October 1 each year based on the percentage increase in the Consumer Price Index for the Dallas/Fort Worth metropolitan area for the prior year over the Consumer Price index for the same region for the year in which the Agreement is authorized. The annual Maintenance Fee shall be prorated for any partial calendar year included within the Maintenance Term and shall be paid quarterly in advance. 3. Fees and Payment A. Fees. Customer shall pay Skire the Annual Maintenance Fee on a quarterly basis as set forth in the Order Form, which is attached hereto and incorporated for all purposes incident to this Agreement. Each subsequent Order Form shall be listed as Appendix 1, Appendix 2, Appendix 3 and so forth, and each Order Form shall be attached and incorporated into the Agreement. B. Payment Terms. For each Order Form, the 1st quarterly payment of the Annual Maintenance Fee is due and payable on the Effective Date; subsequent Annual Maintenance Fee payments are due and payable thereafter quarterly for the duration of each Term (as defined below). Payment terms are due upon invoice date net thirty (30) days. Customer may not begin utilizing Skire's Maintenance services until the initial payment as agreed upon by the parties is received by Skire in accordance with the applicable Order Form. C. Taxes. Customer is a tax exempt entity; therefore, Customer shall not be liable for any taxes under this Agreement. 4. Warranties A. Limited Warranty. Skire warrants to Customer that it shall use commercially reasonable professional practices in delivering the Services to meet service commitments as contained in this Agreement. —TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES THAT CANNOT BY LAW BE EXCLUDED ARE LIMITED TO NINETY (90) DAYS. B. Exclusive Remedies. For any breach of the Services warranties set forth in Section 4 above, Customer's exclusive remedy and Skire's entire liability will be to use commercially reasonable efforts to correct or provide a workaround for such Services errors that cause the breach of warranty. If Skire is unable to make the Services perform as warranted within ninety (90) days of notice, then Customer shall be entitled to a prorated refund of the applicable Software Maintenance Fee paid to Skire for the period or fees allocable to such Services as determined by Skire, following notification to Skire of the nonconformance. In order to receive remedies for the Services warranties set forth above, deficiencies Skire Inc. - CFW Maintenance Agreement in the Services must be reported by Customer to Skire in writing within thirty (30) days of the delivery of the applicable Services to Customer. 5. Limitation of Liaty Notwithstanding anything to the contrary in this Agreement, Customer agrees' that regardless of the form of any claim Customer may have under this Agreement, Skire's entire liability for any damages to Customer or to any other party shall not exceed the fees paid to Skire under this Agreement for the twelve (12) months prior to the event giving rise to such liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO A THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST REVENUES OR LOST DATA, NOTWITHSTANDING ANY OF THE FOREGOING, THE CUSTOMER IN NO WAY WAIVES ANY RIGHTS TO LIMITATION OF LIABILITY THAT IT MAY HAVE PURSUANT TO THE TEXAS TORT CLAIMS ACT, 6. Confidentiality /Confidential Information A. Disclosure and Use. The Confidential Information disclosed by either party ("Disclosing Party") to the other ("Receiving Party") constitutes the confidential and proprietary information of the Disclosing Party and the Receiving Party agrees to treat all Confidential Information of the other in the same manner as it treats its own similar proprietary information, but in no case shall the degree of care be less than reasonable care. The Receiving Party shall use Confidential Information of the Disclosing Party only in performing its obligations under this Agreement and shall retain the Confidential Information in confidence and not disclose to any third party (except as authorized under this Agreement) without the Disclosing Parry's express written consent. The Receiving Party shall disclose the Disclosing Party's Confidential Information only to those employees and contractors of the Receiving Parry who have a need to know such information for the purposes of this Agreement, and such employees and contractors must be bound by this Agreement or have entered into agreements with the Receiving Party containing confidentiality provisions covering the Confidential Information with terms and conditions at least as restrictive as those set forth herein. B. Exceptions. Notwithstanding the foregoing, Skire understands and acknowledges that Customer is a public entity under the laws of the State of Texas, and as such, all information held by Customer or that Customer has a right of access to is subject to disclosure under Chapter 552 of the Texas Government Code, the Public Information Act; therefore, each party's confidentiality obligations hereunder shall not apply to information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third parry without restriction as to disclosure; (iv) is approved for release by written authorization of the Disclosing Party; (v) is developed independently by the Receiving Party without use of or access to the Disclosing Parry's Confidential Information; or (vi) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure and reasonably cooperates with the Disclosing Party in limiting such disclosure. In the event there is a request for inspection or reproduction of any confidential or proprietary information of Skire under Chapter 552, Customer will notify Skire of such request, cooperate with Skire in limiting disclosure, and give Skire reasonable opportunity to explain why the requested information should not be open for public inspection. Information designated as "Confidential," or "Proprietary," shall not be open for public inspection at any time, unless Customer is required to make such documents available as a result of a decision of the Texas Attorney General pursuant to the Texas Public Information Act, by other applicable law, or judicial order. 7. Term &Termination A. Term. This Agreement shall commence on the Effective Date indicated on the Order Form and shall Page 3 of 8 Skire Inc. - CFW Maintenance Agreement continue until the Term End Date defined in such Order Form ("Term") unless and until terminated in accordance with the terms of this Agreement. B. Termination. This Agreement may be terminated by either party upon sixty (60) days written notice for convenience, or with or without cause. If the other parry shall be in breach or default of any material provision of this Agreement, this Agreement may be terminated upon forty-five (45) days written notice; provided however, that the breaching parry may avoid termination if, before the end of such 45 -day period, the breaching parry cures such breach. C. Effect. Upon any termination of this Agreement by Skire pursuant to Customer's material breach , or upon any termination by Customer other than a termination for Skire's material breach, Customer shall be liable for all fees due pursuant to this Agreement, including the Maintenance Fees due for the Term. Upon termination of this Agreement in any instance, Customer will retain ownership of and rights to access its data. Skire will return such data to customer in accordance with the procedure outlined in Section 8 of the Skire Hosting Agreement, City Secretary Contract No. 3102&R1. The following provisions of this Agreement will survive any termination or expiration of this Agreement: Sections 1, 31 4-8. D. Non -Appropriation of Funding. In the event no funds or insufficient funds are appropriated by the Customer in any fiscal period for any payments due hereunder, Customer will notify Skire of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the Customer of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 8. General Provisions A. Assignment. Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by any party without the prior written consent of the non -assigning party. Notwithstanding the foregoing, either party may assign this Agreement to any acquirer of all or of substantially all of such parry's equity securities, assets or business related to the subject matter of this Agreement. Any attempted assignment in violation of this Agreement shall be void and without effect. B. Right to Audit. Skire agrees that the Customer shall, until the expiration of three (3) years after final payment under this contract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of Skire involving transactions relating to this contract. Skire agrees that the Customer shall have access during normal working hours to all necessary Skire facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The Customer shall give Skire thirty (30) business days notice of intended audits. Skire further agrees to include in all its sub -consultant agreements hereunder a provision to the effect that the sub -consultant agrees that the Customer shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such sub -consultant, involving transactions to the subcontract, and further, that the Customer shall have access during normal working hours to all sub -consultant facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this article, together with subsection (3) hereof, Customer shall give sub -consultant reasonable advance notice of intended audits. Skire and sub -consultant agree to photocopy such documents as may be requested by the Customer. The Customer agrees to reimburse Skire for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. C. Disclosure. Skire acknowledges to the Customer that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or rect, in property abutting the proposed PROJECT and business relationships with abutting property cities. Skire further acknowledges that it will make disclosure in writing of any conflicts of interest that Skire Inc. - CFW Maintenance Agreement develop subsequent to the signing of this contract and prior to final payment under the contract. D. Entire Agreement. Provided that the parties have not entered into a separate definitive agreement encompassing all of the material categories of terms and conditions contained herein signed by duly authorized representatives of each parry, this Agreement, and any attachments hereto, constitute the entire, final, complete and exclusive agreement between Skire and Customer and supersedes all previous agreements or representations, oral or written, including but not limited to any proposals, relating to the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. Both parties acknowledge having carefully read the terms and conditions set forth in this Agreement and all attachments hereto, understand all terms and conditions, and agree to be bound thereby. E. Force Majeure. Except for the obligation to make payments, nonperformance by either party shall be excused to the extent that performance is rendered impossible by acts of God, acts of government, flood, fire, earthquake, civil unrest, strike or labor problems, or, any other reason where failure to perform is beyond the reasonable control of the non -performing party. F. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the State of Texas and the United States without regard to conflicts of laws provisions thereof. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the Texas state courts and the U.S. federal courts for the Northern District of Texas Fort Worth Division. G. Notices. All notices required or permitted in this Agreement shall be made in writing by registered or certified mail, return receipt requested. If to the City, address notice to the City of Fort Worth, Assistant Director, Program Management Office, City Manager's Office City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, or as later amended, and shall be deemed given upon receipt or confirmation of receipt. If to Skire, address notice to: Sateez Kadivar, Vice President of Business Operations, 111 Independence Drive, Menlo Park, California 94025. H. Relationship of the Parties. The relationship of Skire and Customer established by this Agreement is that of independent contractor, and nothing contained in this Agreement shall be construed to give either party the power to direct or control the day to -day activities of the other or to constitute the parties as partners, franchisee -franchiser, joint ventures, co -owners or otherwise as participants in a joint or common undertaking, or otherwise give rise to fiduciary obligations between the parties. I. Severability. Should any court of competent jurisdiction declare any term of this Agreement void or unenforceable, such declaration shall have no effect on the remaining terms, which shall continue in full force and effect. J. Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. K. Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that parry as to subsequent enforcement rights or subsequent actions in the event of future breaches. L. Source Code Escrow. The parties have previously entered into an Escrow Agreement and Rider C-1 pursuant to CSC Contract No. 31026, as assigned to the Customer, executed on December 9, 2004 ("Escrow Agreement"), attached hereto as Exhibit A and incorporated herein for all purposes. The Escrow Agreement identifies Customer as a Licensee pursuant to its terms and entitles Customer to all rights and protections thereunder. In accordance with the Escrow Agreement, Skire previously deposited the source code for the Application(s) identified under CSC No. 31026, and as amended by subsequent Order Forms pursuant to Section 1 of the Escrow Agreement. The parties hereby agreed that said Escrow Agreement shall continue in full force and effect for the life of this Agreement, unless otherwise amended or modified by the parties. The Escrow Agreement shall govern all matters related to the Skire Inc. - CFW Maintenance Agreement Deposit Materials set forth in Exhibit B as between the parties. Provided Customer complies with all material terms and conditions, including all payment obligations and is an active paying subscriber to the Application, Customer shall be entitled to receive the Escrow Material if Skire (i) becomes or declares that it is insolvent or bankrupt, (ii) becomes or declares that it is the subject of any proceedings relating to its liquidation or insolvency, (iii) appoints, has appointed on its behalf, or consents to the appointment of, a receiver of similar officer, or with respect to all or substantially all of its assets under any bankruptcy, insolvency, or other similar law, or (iv) makes an assignment for the benefit of all or substantially all of its creditors. M. Insurance. Consultant shall provide the City with certificates) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,0002000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non -owned (c) Worker's Compensation -Statutory limits Employer's liability $1001000 Each accident/occurrence $1005000 Disease - per each employee $5009000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee (d) Technology Liability (Errors &Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Technology E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims. made, and maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. Skire Inc. - CFW Maintenance Agreement General Requirements (a) The commercial general liaty and automobile liaty policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. (b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. Page 7 of 8 Skire Inc. - CFW Maintenance Agreement IN WITNESS WHEREOF, the parties have executed this Agreement by and through their duly authorized agents as of the Effective Date. CITY OF FORT WORTH: ACCEPTED: Fernando Costa Assistant City Manager Date: /4 APPROVED AS TO FORM AND LEGALITY: Maleshia B. Farmer Assistant City Attorney SKIRE, INC. ACCEPTED: Name: Sateez Kadivar Title: Vice President of Operations 111 Independence Drive,. Menlo Park, California 94025 Date: it //�5^! zo/ o ATTEST: By: Marty Hendrix City Secretary CONTRACT AUTHORIZATION: Date Approved: I 1 L()q By: ATTEST: o. �r 00000000 1. 0 0. o r, o c`' 00p000 OFFICIAL RECORD CITY SECRETARY T. WORTH, TX Skire Inc. - CFW Maintenance Agreement Two -Party (Master) Agreement Among Software Developer and Escrow Associates, LLC The two-party escrow agreement allows numerous licensees and software products to be protected under a single escrow contract with a single set of escrow conditions. Future additions and changes to this escrow arrangement can be made under the discretion of the Developer. Multiple licensee service levels can be managed under a single escrow agreement, an exclusive industry service by Escrow Associates, LLC. *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A (Escrow) /City of Forth Worth* Two -Party Escrow Agreement This Technology Escrow Agreement ("Agreement") between Escrow Associates, LLC ("Escrow Associates") and Skire, Inc. ("Developer") is effective on this 14t' day of March 2003 (the "Effective Date") Recitals Whereas, Developer licenses technology to Licensees) in the form of software object code (the "Software") pursuant to a license or subscription agreement ("License Agreement"). The source code is defined as the Software in source code form, including all relevant documentation and instructions necessary to maintain, duplicate, and compile the source code (the "Source Code"). The Source Code is necessary to maintain and support the Software as defined in the License Agreement(s). The Source Code and any other components Developer provides which are related to building and maintaining the Software identified on Exhibit B (as the same may be modified herein) are hereafter referred to collectively as the deposit materials ("Deposit Materials"). Whereas, the purpose of this Agreement is to protect Developer's ownership and confidentiality of the Deposit Materials and to protect a Licensee's legitimate use of the Deposit Materials as defined by the License Agreement(s). Further, this Agreement is intended to provide for certain circumstances under which the Licensee(s) shall be entitled to receive the Deposit Materials held in escrow by Escrow Associates to continue its legitimate use and support of the Software. Whereas, the Developer hereby designates and appoints Escrow Associates as the escrow agent under this Agreement. Escrow Associates hereby accepts such designation and appointment and agrees to carry out the duties of escrow agent pursuant to the terms and provisions of this Agreement. Escrow Associates is not a party to, and is not bound by, any agreement that might be evidenced by, or might arise out of, any prior or contemporaneous dealings between Developer and Licensee(s) other than as expressly set forth herein. NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally. bound hereby, covenant and agree as follows: 1. Deposit Materials (a) Initial Deposit -Developer shall submit the initial Deposit Materials to Escrow Associates within thirty (30) days of the Effective Date or sixty (60) days after development of the Deposit Materials it completed. Developer shall complete and deliver with all Deposit Materials a form as shown herein as Exhibit B, which shall then become part of this Agreement. Escrow Associates shall notify Developer within ten (10) days of receipt of the initial Deposit Materials. Escrow Associates has no obligation with respect to the initial Deposit Materials for delivery, functionality, completeness, performance or initial quality. (b) Deposit Material Updates -Developer shall submit updates to the initial Deposit Materials to Escrow Associates within ninety (90) days of any material modification, *SKIRE CON FIDENTIAL*Software Licensee Agreement Exhibit A (Escrow) /City of Forth Worth* upgrade or new release of the Software. Developer shall complete and deliver with all updates to the Deposit Materials an amended Exhibit B form, which shall additionally become part of this Agreement. Escrow Associates shall notify Developer within ten (10) days of receipt of updates to the Deposit Materials, and also notify those Licensees designated to receive such notices per Exhibit C or Rider C as may be amended from time to time. Escrow Associates has no obligation with respect to the updates to the Deposit Materials for delivery, functionality, completeness, performance or initial quality. (c) Electronic Deposit — In the event the Developer elects to utilize electronic means to transfer the Deposit Materials to Escrow Associates, whether through a service provided by Escrow Associates or other means, Escrow Associates shall not be liable for transmissions that fail in part or in whole, are lost, or are otherwise compromised during transmission. Furthermore, Escrow Associates shall not be liable for any subsequent services that may or may not be delivered as a result of a failed transfer. Escrow Associates shall not be liable to Developer or Licensee(s) for any encrypted update, or any part thereof, that is transmitted over the Internet to Escrow Associates' FTP Site but is not received in whole or in part, or for which no notification of receipt is given. (d) Duplication of Deposit Materials -Escrow Associates may duplicate the Deposit Materials only as necessary to comply with the terms of this Agreement. Escrow Associates at its sole discretion may retain a third party for the purpose of duplicating the Deposit Materials only as necessary to comply with the terms herein. All duplication expenses shall be borne by the party requesting duplication. (e) Deposit Material Verification —Upon Developer's prior written consent, Escrow Associates may be retained by separate agreement or by alternative means, to conduct a test of the Deposit Materials to determine the completeness and accuracy of the Deposit Materials. Escrow Associates shall be liable for any actions taken on the part of any third party with regards to the Deposit Materials, 2. Licensee(s) -From time to time, Developer may, at its sole discretion, add or remove Licenseels) as beneficiaries to this agreement utilizing the Exhibit C form herein. Any current Licensee shall have the right to request a release of the Deposit Materials only if (t) Licensee is a party to a License Agreement with the Developer that is in force and not in default, (it) all fees due are paid to Escrow Associates and (iii) the Release of Deposit Materials provisions of Section 7 herein are met in full. 3. Term (a) Term of Agreement —The term of this Agreement shall be for a period of one (1) year from the Effective Date. At the end of the initial and each subsequent term, this Agreement shall automatically renew for an additional one (1) year term unless terminated according to the terms herein. (b) Termination of Agreement -This Agreement may be terminated as follows: i. The Developer provides written notice to Escrow Associates of its desire to terminate the agreement, or it. The Deposit Materials have been released in accordance with the terms hereof. *SK►RE CON FIDENTIAL*Software Licensee Agreement Exhibit A (Escrow) . l City of Forth Worth* (c) Termination for Non -Payment - In the event that full payment of any or all fees due to Escrow Associates by Developer under this Agreement have not been received by Escrow Associates within thirty (30) days of the date payment is due, Escrow Associates will notify Developer of the delinquent fees. If the delinquent fees are not received within thirty (30) days of the delinquency notification, Escrow Associates shall notify the Licensee(s) of the option to remit payment of the fees. If the delinquent fees are not received within ninety (90) days of the delinquency notification, Escrow Associates shall have the right to terminate this Agreement. (d) Return of Deposit Materials —Upon termination of this Agreement for any reason other than in the event all Deposit Materials have been released, Escrow Associates shall return the Deposit Materials to the Developer via commercial courier to the address of the Developer shown in this Agreement, provided that all fees due Escrow Associates are paid in full. If two (2) attempts to return Deposit Materials via commercial courier to the Developer fail or the Developer does not accept the Deposit Materials, Escrow Associates shall destroy the Deposit Materials, 4. Fees (a) Payment -Upon receipt of signed Agreement or initial Deposit Materials, whichever comes first, Escrow Associates will submit an initial invoice to Developer for amount shown on Exhibit A attached hereto. If payment is not received, Escrow Associates shall have no obligation to perform its duties under this Agreement. Developer agrees to pay to Escrow Associates all additional fees for services rendered related to this Agreement as shown on Exhibit A. The fee for any service that is not expressly covered in Exhibit A shall be established by Escrow Associates upon request. All fees are due within 30 days of invoice date.. Escrow Associates may amend Exhibit A at any time upon sixty (60) days written notice to Developer, provided however that in no case shall Escrow Associates raise any of the fees listed in Exhibit A by more than 5%. (b) Currency -All fees are in U.S. dollars and payment must be rendered in U.S. dollars unless otherwise agreed to in advance by Escrow Associates. 5. Indemnification With the exception of gross negligence, willful misconduct or intentional misrepresentation on behalf of Escrow Associates, Developer and Licensee(s) shall, jointly and severally, indemnify and hold harmless Escrow Associates and each of its directors, officers, agents, employees, members and stockholders ("Escrow Associates Indemnities") absolutely and forever, from and against any and. all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys' fees and costs, that may be asserted against any Escrow Associates Indemnitee in connection with this Agreement or the performance of Escrow Associates or any Escrow Associates Indemnitee hereunder. 6. Developer's Representations and Warranties (a) The Deposit Materials as delivered to Escrow Associates are a copy of Developer's proprietary information corresponding to that described in Exhibit B and *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A (Escrow) /City of Forth Worth* are capable of being used to generate the Software. Developer shall update the Deposit Materials as provided for in the License Agreement(s) and/ or as provided for herein. The Deposit Materials shall contain all information necessary to enable a reasonably skilled and experienced software programmer to understand, maintain and correct the Deposit Materials. (b) Developer owns the Deposit Materials and all intellectual property rights therein free and clear of any liens, security interests, or other encumbrances. 7. Release of Deposit Materials (a) Release -The Deposit Materials, including any copies thereof, will be released to the Licensee(s) after the receipt of the written request for release only in the event that the release procedures set forth in Section 7(a)-(e) is followed and: i. Developer notifies Escrow Associates in writing by a Duly Authorized Representative of Developer (as defined in this Agreement Section 1.20)) to effect such release; or ii. Licensee(s) makes written request to Escrow Associates, and a. Licensee(s) asserts that Developer has ceased its on -going business operations or has filed for bankruptcy; and b. Licensee(s) asserts that Licensee(s) is not in default on any material term of the License Agreement and is current on all payments due in accordance with the License Agreement: and b. Licensee(s) includes a written statement that the Deposit Materials will be used in accordance with the terms of the License Agreement(s); and c. Licensee(s) includes specific instructions for the delivery of the Deposit Materials. (b) Developer Reouest for Release - If the provisions of Section 7(a)(i) are met, Escrow Associates will release the Deposit Materials to Licensee(s) within ten (10) business days. (c) Licensee Request for Release - If the provisions of Section 0) are met, Escrow Associates will within ten (10) business days forward a complete copy of the request to a Duly Authorized Representative of Developer and contact such duly Authorized Representative of Developer via telephone during Developer normal business hours to inform him/her of said action. Developer shall have thirty (30) days to make any and all objections to the release known to Escrow Associates in writing. If after thirty (30) days Escrow Associates has not received any written objection from Developer, Escrow Associates shall release the Deposit Materials to the Licensee(s) as instructed by the Licensee(s). (d) Developer Objection to Release -Should the Developer object to the request for release by Licensees) in writing, Escrow Associates shall notify the Licensees) in writing within ten (10) business days of Escrow Associates receipt of said objection and shall notify both parties that there is a dispute to be resolved pursuant to Section 8 (Dispute Resolution) of this Agreement. Escrow Associates will continue to hold the Deposit Materials without release pending (a) instructions from Developer; (b) dispute resolution according to Section 8 (Dispute Resolution); or (c) order from a court of competent jurisdiction. *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A (Escrow) /City of Forth Worth* (e) Right to Use Following Release - Unless otherwise provided in the License Agreement(s), upon release of the Deposit Materials in accordance with this Section 7, Licensee(s) shall have the right to use the Deposit Materials for the sole purpose of continuing to support its licensed usage afforded to Licensee(s) by the License Agreement(s). Licensee(s) shall be obligated to maintain the confidentiality of the released Deposit Materials. Any and all modifications or derivative works created through use of the Deposit Materials shall be deemed as the Software governed by the terms of the License Agreement(s), 8. Dispute Resolution -Excepexp t as ressly provided for herein, any dispute or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled in the State of California by a court of competent jurisdiction. Developer and Licensee(s) jointly agree to reimburse Escrow Associates for any and all costs incurred as a result of any Dispute Resolution including attorney's fees. 9. Confidentiality -Except as otherwise required to carry out its duties under -this Agreement, Escrow Associates shall hold in strictest confidence and not permit any third party access to nor otherwise use, disclose, transfer or make available the Deposit Materials except as otherwise provided herein, unless consented to in writing by Developer. 10. Limitation of Liability -Under no circumstance, other than willful misconduct or gross negligence on the part of Escrow Associates, its representatives or subcontractors, shall Escrow Associates be liable for any special, incidental, or consequential damages (including lost profits) arising out of this Agreement even if Escrow Associates has been apprised of the possibility of such damages. In performing any of its duties hereunder, Escrow Associates shall not incur any liability to any party for any damages, losses, or expenses, except for willful misconduct or gross negligence on the part of Escrow Associates, its representatives or subcontractors, 11. Notices -Notices shall be deemed received on the third business day after being sent by first class mail, or on the following day if sent by commercial express mail. All notices under this Agreement shall be in writing and addressed and sent to the person(s) listed in the space provided below: Developer Company: Skire, Inc. Contact: Sateez Kadivar Title: Senior Manager, Sales Operations Address: 111 Independence Dr. City, State, Zip: Menlo Park, CA 94025 Telephone: 650-289-2603 Fax: 650-289-2650 Email: skadivar6Dskire.com Billing Contact: SAME *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A (Escrow) / City of Forth Wortli* Escrow Associates Am. Contracts Administration 1010 Huntcliff, Suite 1350 Atlanta, GA 30350 USA Telephone: 800-813-3523 Fax: 770-518-2452 Email: info@escrowassociates.com 12. Miscellaneous (a) Counterparts -This Agreement may be executed in any number of multiple counterparts, each of which is to be deemed an original, and all of such counterparts together shall constitute one and the same instrument. (b) Entire Agreement -This Agreement supersedes all prior and contemporaneous letters, correspondences, discussions and agreements among the parties with respect to all matters contained herein, and it constitutes the sole and entire agreement among them with respect thereto: (c) Limitation of Effect -This Agreement pertains strictly to the escrow services provided for herein and does not modify, amend or affect any other contract or agreement of one or more of the parties. The terms and provisions of the License Agreement(s), as the same may be physically modified by the terms and provisions hereof, shall continue in full force and effect and be binding upon and inure to the benefit of the parties hereto, their legal representatives, successors and assigns. Al Modification -This Agreement shall not be altered or modified without the express written consent of all parties. (e) Survival of Terms -All obligations of the parties intended to survive the termination of this Agreement, including without limitation, are the provisions of paragraphs 3 (Term), 4 (Fees), 5 (Indemnification), 8 (Dispute Resolution), 10 (Limitation of Liability), and 12 (Miscellaneous) which shall survive the termination of this Agreement for any reason. (f) Governing Law -This Agreement shall be governed by the laws of the State of California. (g) Successors and Assigns - This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties, provided, however, that Licensee(s) shall have no right to assign any rights hereunder or with respect to the Deposit Materials except as permitted with respect to assignment of Licensees' rights under the License Agreement(s). (h) Duly Authorized Representatives — A Duly Authorized Representative of Developer shall be defined as either Sateez Kadivar or Massy Mehdipour and only such persons may in writing name another individual to be a Duly Authorized Representative of Developer. (Signatures are on following page. Remainder of this page intentionally left blank.) *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A (Escrow) / City of Forth Worth* IN WITNESS WHEREOF, the parties have executed this Agreement by and through their duly authorized agents as of the Effective Date. Developer Signature: Name: Title: Company: Date: Contract Negotiated by: Negotiator Telephone: Escrow Associates, LLC Signature: Name: Date: *SKIRE CONFIDENTIAL*Software Licensee Agreen►ent Exhibit A (Escrow) /City of Forth Worth* Rider CA AMEDMENT TO TWO PARTY ESCROW AGREEMENT Registered Licensee Addition Form Whereas, Skire, Inc. ("Developer") and Escrow Associates have entered into a two-party escrow agreement dated March 14, 2004 ("The Agreement"). Whereas, Developer, The City of Fort Worth ("Registered Licensee") and Escrow Associates agree to modify the terms of The Agreement as follows as it relates to the aforementioned Registered Licensee only: 1. Replace Section 5. Indemnification in its entirety with the following: "Section 5. Indemnification - With the exception of gross negligence, willful misconduct or intentional misrepresentation on behalf of Escrow Associates, Developer shall indemnify and hold harmless Escrow Associates and each of its directors,- officers, agents, employees, members and stockholders ("Escrow Associates Indemnities") absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys' fees and costs, that may be asserted against any Escrow Associates Indemnitee in connection with this Agreement or the performance of Escrow Associates or any Escrow Associates Indemnitee hereunder." 2. Replace Section 8. Dispute Resolution in its entirety with the following: "8. Dispute Resolution At claims, disputes, and other matters in question between the City of Fort Worth and Skire, Inc. arising out of, or in connection with this Agreement or the Software License and Maintenance Agreement, or any breach of any obligation or duty of the City of Fort Worth or Skire, Inc. hereunder, will be submitted to mediation. If mediation is unsuccessful, the claim, dispute or other matter in question shall be submitted to arbitration if both parties acting reasonably agree that the amount of the dispute is likely to be less than $50,000, exclusive of attorney's fees, costs and expenses. Arbitration shall be in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules of the Association then in effect. Any award rendered by the arbitrators less than $50,000, exclusive of attorney's fees, costs and expenses, will be final, judgment may be entered thereon in any court having jurisdiction, and will not be subject to appeal or modification except to the extent permitted by Sections 10 and 11 of the Federal Arbitration Act (9 U.S.C. Sections 10 and 11). Any award greater than $50,000, exclusive of attorneys fees, costs and expenses may be litigated by either party on a de r�ovo basis. The award shall become final ninety (90) days from the date same is issued. If litigation is filed by either party within said ninety (90) day period, the award shall become null and void and shall not be used by either party for any purpose in the litigation. Developer and Licensee(s) jointly agree to reimburse Escrow Associates for any and all costs incurred as a result of any Dispute Resolution including attorneys fees." *SKIRE CONFIDENTIAL*Software Licensee Exhibit A (Escrow) Rider C' /Cite or f orth ��'ortl►* 3. Replace Section 12(f) Governing Law in its entirety with the following: "(f) Governing Law - This Agreement shall be governed by the laws of the State of Texas." NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, covenant and agree to The Agreement and the modifications herein: _ Deve Signat Name: Title: t7;� Date: Register ice ee Signature: 0 / A v c 12`-f Name: Marc A. Ott, As�istanl Company: City of Fort Worth Address: 1000 Throckmorton Escrow Associates, LLC Signature: �C__`_ Name: �+ Date: i� / 8 o y Attest: , Mart Hendrix, City Secretary City Manager Approved as to Form and Legality g Assistant i Attorney City, State, Zip: Fort Worth, Texas 76102 Date ax: E-Mail: Applicable Product(s): *SKIRE CONFIDENTIAL*Sofhvare Licensee Exhibit A (Escro�ti) Rider C{ i /City of Forth V1'orth* S k hr Speed. Cwt of Insight City of Fort Worth Form # CPDCFW1209011 Primary Contact: Billing Contact: Skire System Administrator: Order Form Date: 12/10/2009 Sandy Oliver Sandy Oliver Sandy Oliver _ Assistant Director, Program Mgmt Assistant Director, Program Mgmt Assistant Director, Program Mgmt Order Effective Date: 12/10/2009 City of Fort Worth City of Fort Worth City of Fort Worth 1000 Throckmorton Street 1000 Throckmorton Street 1000 Throckmorton Street Order Term End Date: 9/30/2010 Fort Worth, TX 76102 Fort Worth, TX 76102 Fort Worth, TX 76102 (817)392-7371 (817)392-7371 (817)392-7371 sandy.oliver@fortworthgov.org sandy.oliver@fortworthgov.org sandy.oliver@fortworthgov.org Skire Contact: Catherine Phan-Dang 'Invoice Format: Email* •ESCRIPTION AMOUNT Maintenance Fee for the term 12110/2009 - 9/30/2010 $57,790.50 'Annual Fee for 365 day term = $71, 504; Price per day = $71, 504 y 365 days = $195.90/ day ' Term = 121112009 - 913012010 = 295 days ' 295 days ' $195.90 / days = $57, 790.50 OFFICIAL RECORD Quarterly Calculations: ` 1st Payment Partial Quarter (December 10, 2009 - December 31, 2009) = $4.309.80 C17 Y SECRETARY ' 2nd Quarter Payment (January 1, 2010 - March 31, 2010) = $17,826.90 F 1. WORTH, Ty ' 3rd Quarter Payment (April 1, 2010 - June 30, 2010) = $17,826.90 fl /� ' 4th Quarter Payment (July 1, 2010 -September 30, 2010) = $17,826.90 L O^7 Contract AuthoriZAt10ll SUBTOTAL: $579790,50 1 1 l EST. TAX: WA TOTAL: $57,790.50 All fees are in United States Dollars (USD). 1) Customer's signature on this Order Fonn constitutes a binding agreement pursuant to the terms and conditions of the Skire Inc. Software Maintenance Agreement which is incorporated herein by reference. This Order Form and the aforementioned agreement contain the entire agreement between the parties with respect to the subject matter hereof and supersede any and all other agreements and communications, written or oral, expressed or implied. 2) Skire is tree to invoice 30 days prior to the respective quarterly period. 1st Payment Partial Quarter and 2nd Quarter Payment shall be invoiced together. 3) Pricing terms provided to Customer are highly confidential and for Customer internal use only. AGREED AND ACCEPTED Authorized Signature Printed Name: Title: City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Fcrr�x.�de Cosh A>kt• Ct itM�wi.�lcr Skire, Inc. 1111ndependence Dr. Menlo Park, CA 94025 Authorized Signature: IOOOpo_, Sateez Kadivar President of Business Operations �lSr�`� ��T1' ATTQRNFY Copyright ©2009 Skire, Inc. All Righlsjij�rEavdl+l/ M&C Review Page I of 2 CITY COUNCIL AGENDA DATE: 11 /17/2009 CODE: C COUNCIL ACTION: Approved on 11/17/2009 REFERENCE NO.: **C-23907 TYPE: CONSENT LOG NAME: PUBLIC HEARING: Official site of the City of Fort Worth, Texas 02SKIRE AGREEMENT NO SUBJECT: Authorize a Sole Source Agreement with Skire, Inc., for a Unifier Software License and for Continued Use of Maintenance and Customer Support Services for the Capital Projects Management System for an Annual Amount Up to $71,504.00 RECOMMENDATION: It is recommended that the City Council: FORT WORTN 1. Authorize a Sole Source Agreement with Skire, Inc., fora Unifier software license and for continued maintenance and customer support services for the Capital Projects Management System for an annual amount up to $ 71,504.00; and 2. Authorize the Agreement to begin upon execution and expire September 30, 2010, with options to renew for two additional one year periods. DISCUSSION: The purpose of this License, Maintenance and Customer Support Services Agreement (Agreement) is to continue technical support and maintenance services for the Unifier software, which is the foundation of the City's Capital Projects Management System (CPMS). Services to be provided under this Agreement include future functional software upgrades and technical customer support provided by Skire, Inc., (Skire) to CPMS administrators and users. Functional software upgrades pushed out by Skire will enable the City to more fully utilize all system functionality developed, which is offered by the software vendor at no additional cost to the City, as well as allow the City to automate and/or improve current business functions. The Unifier application was licensed initially under the Software License and Maintenance Agreement dated December 10, 2004, (City Secretary Contract No. C-31026) and all renewal options have been exhausted. CPMS, which went live in April 2007, is a web -based application used by infrastructure staff Citywide for tracking and managing capital project processes, including capital costs and business process flows/electronic approvals, managing multiple and diverse funding sources and utilizing document storage capacity within the software for related project documentation. In a separate but related contract approved by the City Council on October 27, 2009, (M&C C-23875) the City outsourced with Skire, Inc., to host this application, thereby providing for necessary redundant facilities, servers and staff to ensure that CPMS is available to users on the Internet. Skire, Inc., is the documented sole source vendor for the Unifier software license, maintenance and hosting services. M/WBE — A waiver of the goal for M/WBE subcontracting requirements was requested and approved by the M/WBE Office because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. http://apps.cfwnet.org/council�acket/mc review.asp?ID=12698&councildate=ll/17/2009 1/27/2010 M&C Review Page 2 of 2 RENEWAL OPTIONS —This Agreement may be renewed for up to two additional one year terms at the City's option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. This Agreement begins upon execution. In order to align the agreement period with fiscal year end, the pricing structure for this period reflects costs of $57,790.50 for only 295 days. Should the City opt to renew the Agreement, the new pricing structure for the next annual agreement will be adjusted to cover a full 365 day period. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Information Systems Fund. TO Fund/Account/Centers Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS FROM Fund/Account/Centers P168 539120 0045020 $71,504.00 Fernando Costa (8476) Randle Harwood (6101) Sandra Oliver (7371) http://apps.cfwnet.org/council�acket/mc review.asp?ID=12698&councildate=ll/17/2009 1/27/2010