HomeMy WebLinkAboutContract 33954 41
SKIRE HOSTING AGREEMENT
This Hosting Agreement ("Agreement") is entered into between Skire, Inc. ("Skire") a Delaware
corporation with its principal place of business at 111 Independence Dr., Menlo Park, CA 94025 and the
City of Fort Worth("Customer"or"City"), a home rule municipal corporation in Tarrant, Denton,and Wise
counties Texas, and sets forth the terms and conditions under which Skire provides Hosting of, and
Customer access to (via the internet), the Applications licensed under the Software License and
Maintenance Agreement dated December 10, 2004, and identified as City Secretary Contract No. 31026
("SLM Agreement").
1. RECITALS
A. Skire develops, maintains, markets, supports, and provides Hosting for its software Application,
Unifier. Hosting services are provided (for a fee)for customers that do not wish to host the Application
themselves. Customers utilizing Skire's Hosting services access and use the Unifier Application over the
Internet.
B. The City of Fort Worth is a municipal government entity which seeks to use Unifier which the City
has licensed for separately via the SLM Agreement under a Hosting agreement with Skire.
C. Skire has customized and configured Unifier to meet the needs of the City. It is this customized
and configured version of Unifier that the City seeks to have Skire Host for its use under this Agreement.
2. DEFINITIONS
A. "Application" shall mean the specific Skire proprietary software application(s) identified by name
in an Order Form and as described in the documentation and any updates thereof and expressly
excludes any third party software or hardware necessary to install, access, operate and or use Skire's
application(s).
B. "Hosting" shall mean installing, configuring, maintaining and supporting the Unifier Application
and all necessary hardware, software and Customer Information to allow for the proper operation of the
Unifier Application and its availability on the Internet for use by the Customer consistent with the terms
and conditions of this agreement. In a hosting arrangement,the Customer is responsible for providing the
client computers, Internet browsers meeting Skire's then-current specifications and means of connecting
to the Internet in order to gain access to and utilize the hosted Application.
C. "Customer Access"shall mean the connection to and use of the Application by Customer for use
by Named Users(as defined in the Order Form)via an Internet web browser meeting Skire's then-current
specifications under the terms and conditions of this Hosting Agreement.
D. "Commercially Reasonable"shall mean all generally acceptable means of effort and performance
as dictated by industry standards for the type of work being performed. As it relates to communications,
"Commercially Reasonable"shall mean that all generally acceptable means of communication have been
utilized in attempting to notify the customer and/or obtain approval or agreement. Generally acceptable
means of communication shall include but not be limited to face-to-face, telephone, voice mail, email,
postal mail and fax.
E. "Customer Information" shall mean without limitation, any information, data, files, images,
materials or documents that Customer submits to, places on,creates, or otherwise makes available on,the
Application. Customer will have and retain all ownership rights to the Customer Information.
F. "Update(s)" shall mean subsequent generally available releases, fixes and modifications of the
Application that Skire makes at no additional charge, but shall not include any releases, options, modules
or future applications or functionality that Skire offers separately to customers other than the City.
G. "Service Provider(s)"shall mean any person or entity that is granted access to Unifier by the City
for the purpose of conducting capital-project-related business with the City.
H. "Production" shall mean the Hosted environment for the Unifier application and all related
hardware, software and Customer Information necessary for the proper operation of Unifier for the City's
live business operations.
1. "Development" shall mean the Hosted environment for the Unifier application and all related
hardware, software and Customer Information necessary for the support of all development activities
related to the customization and configuration of Unifier for the City.
J. "Test(ing)" shall mean the Hosted environment for the Unifier application and all related
hardware, software and Customer Information necessary for the support of all activities related to the
testing and validation of Unifier for the City. Customer and Skire agree that Customer shall be permitted
to conduct non-intrusive performance tests (not load testing) that are pre-approved by Skire and follow
generally acceptable industry standards for performance testing of a commercially hosted software
system.
K. "Training"shall mean the Hosted environment for the Unifier application and all related hardware,
software and Customer Information necessary for the support of all activities related to the training of City
personnel in the proper use of Unifier.
2. CUSTOMER ACCESS AND RESPONSIBILITIES
A. Access. As soon as practical after receipt of payment of the 1st payment of the Annual Hosting
Fee, Skire shall provide Customer user name(s), password(s)and the Hosted Application environment as
specified in this Agreement to allow Customer Access. Skire may at its option make any Updates to the
Application, and will use commercially reasonable efforts to notify Customer 1 week in advance of any
Update. Such Updates will be made without Customer's prior approval. In no case shall Customer
access the Application in violation of the Named User license granted to Customer in the SLM
Agreement.
B. Data Entry. Customer is solely responsible for ensuring that the data entered into the Application
is accurate and reflects Customer's requirements. All data generated by and through Customer's Access
shall reside on Skire's and/or Skire's partners' server(s) and Skire shall have the right to use such
information for the purposes of this Hosting Agreement.
C. Equipment. Customer is solely responsible for, at Customer's own expense, all equipment,
facilities and services necessary to access and use the Application, including without limitation computer
hardware, software, and broadband Internet access.
D. Service Providers. Customer may grant access to parts of the Application to 3rd party entities for
purposes of this Hosting Agreement("Service Provider(s)"). Customer is solely responsible for all uses of
the Application by Service Provider(s). Customer is solely responsible for ensuring that Service
Provider(s) use of Application is in full accordance with all the terms and conditions of this Hosting
Agreement and only for use directly with Customer on Project as contemplated in this Hosting Agreement
E. Password Security. Customer shall ensure that only authorized individuals within Customer and
Service Provider(s) have access to any usernames or passwords provided by Skire for use with
Application and shall not disclose such usernames or passwords to any other individual. Customer shall
notify Skire immediately if the security or integrity of a username or password is compromised.
F. Compleance with Laws_Customer shall use the Application in compliance with all applicable laws,
statutes, rules and regulations governing this Agreement. Upon thirty(30)days written notice, Skire may
suspend Customer's Access to Application to comply with any law or regulation that prevents Skire from
1
performing its Hosting obligations under this Agreement.
3. HOSTING RESPONSIBILITIES
A. Skire will maintain and support the customized and configured version of Unifier for the City in the
same manner and under the same terms and conditions as a general release of the product.
B. Skire shall deploy, Host, maintain and support the customized and configured version of Unifier
for the City treating all Customer Information and business processes as confidential. Release or
disclosure of public information shall only occur as specified in 5(B). Any request for access to or
disclosure of information shall be referred to the City as the information owner.
C. Skire shall deploy, Host, maintain and support separate Application environments for
development,testing,training and production.
D. Skire shall provide, at Skire's own expense, all necessary computer servers, related information
technology equipment and facilities necessary to Host the customized and configured version of Unifier
and make it available and accessible via the Internet to the City. Skire shall Host the customized and
configured version of Unifier within the continental United States in a Hosting facility selected at Skire's
sole discretion. No Customer Information shall be stored or processed outside of the continental United
States.
E. Skire shall Host the customized and configured version of Unifier in such a way as to segregate
Customer Information from all other customers. Skire shall store and maintain Customer Information in a
secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt
Customer Information in any way. Skire shall notify the City immediately if the security or integrity of any
Customer information has been compromised. The City understands that the hosting services provided
by Skire to the City are on shared servers with other customers logically separated.
F. Skire shall back up all Customer Information on a daily basis such that it can be retrieved and
restored upon request by the City. Daily backups shall be maintained for 30 days.
G. Skire shall provide sufficient computer servers and related information technology equipment to
ensure an acceptable level of service as defined in the attached Service Level Agreement. Skire and the
City will confer monthly regarding Application performance, availability other operational support issues.
Should the City require any services above one hour per month for such discussions, the City shall pay
Skire services at a rate of $1,500/day. Such fee shall not apply if Skire is asked to perform legitimate
trouble-shooting services but shall apply for extended data analysis and/or consulting.
H. Should Skire become insolvent or make any assignment for the benefit of creditors or similar
transfer evidencing insolvency,Skire shall immediately notify the City in writing, and the City's information
and the current version of Unifier being utilized by the City shall be transferred to the City without claim
under Skire's financial or legal position.
I. Skire and Customer shall also agree on terms of applicable Service Level as set forth in the Skire
Service Level Agreement, which is attached hereto as Exhibit "A" and incorporated for all purposes
herein.
4. FEES AND PAYMENT
A. Fees. Customer shall pay Skire the Annual Hosting Fees as set forth in the Order Form.
B. Payment Terms. For each Order Form, the 1st payment of the Annual Hosting Fee is due and
payable on the Effective Date as defined in Section 6; subsequent Annual Hosting Fee payments are due
and payable thereafter annually 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 Hosting services until the
initial payment as agreed upon by the parties is received by Skire in accordance with the applicable Order
Form No. 5 attached hereto as Exhibit"B"and made a part of this Agreement.
C. Late Payment. In addition to other remedies available to Skire, any payment due to Skire by
Customer not received by Skire within 30 days of the due date will bear interest at a rate of 1%per month
or the maximum rate allowed by law,whichever is lower,from the date due until paid.
D. Taxes. Customer is a tax exempt entity; therefore, Customer shall not be liable for any taxes
under this Agreement.
4. SCHEDULED MAINTENANCE
Skire will use commercially reasonable efforts to perform any scheduled downtime outside of
Customer's normal business hours. Skire shall notify Customer of scheduled downtimes at least one (1)
week in advance. All unscheduled and emergency maintenance shall be communicated immediately to
the City and is subject to the terms and conditions of the attached Service Level Agreement.
5. CUSTOMER INFORMATION
A. As between Customer and Skire, Customer will have and retain all ownership rights to the
Customer Information. Customer shall obtain any and all licenses to, or releases of intellectual or
proprietary rights in or to the Customer Information before delivery to Application. To the best of
Customer's knowledge, Customer Information will not: (i) contain contents that are unlawful, harmful,
libelous, obscene, violent, scandalous, or defamatory, (ii) contain viruses or other contaminating or
destructive features, or(iii) violate the rights of any third party. Notwithstanding the foregoing, Customer
shall not be liable for any information delivered to the Application beyond Customer's reasonable care
and control. Subject to the terms and conditions of this Hosting Agreement, Customer hereby grants to
Skire a nor-exclusive, non-transferable, worldwide, and royalty-free license and right to use, reproduce,
copy, back-up, modify and transmit electronically or otherwise the Customer Information in whole or in
part for the purpose of performing its obligations under this Hosting Agreement. Skire will have and retain
all title and ownership of, and other rights in and to,the Application and Documentation, and all materials
utilized or developed by Skire in connection with this Hosting Agreement, other than Customer
Information.
B. 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 may be
subject to disclosure under the Texas Public Information Act. Any 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 for release as a result of a decision of the Texas Attorney
General pursuant to the Public Information Act, by other applicable law,or by court order.
6. TERM AND TERMINATION
A. Term. This Hosting Agreement shall commence on the Effective Date indicated in the attached
Order Form and shall continue thereafter unless and until all Order Forms have been fully terminated in
accordance with the terms of this Hosting Agreement. The initial term of each Order Form commences on
the Effective Date of such Order Form and continues until the Initial Term End Date as defined in such
Order Form ("Initial Term"). Thereafter, each Order Form shall be renewed automatically for subsequent
Renewal Period terms as defined in such Order Form(each a"Renewal Term"), unless either party gives
notice of its intent to terminate no less than thirty (30) days prior to the end of the then-current term.
Notwithstanding the foregoing, this Agreement shall not extend beyond August 24, 2009. The Initial Term
and any subsequent Renewal Term(s)are collectively referred to herein as the"Term."
B. Termination, The Customer may terminate this Agreement for convenience, with or without
cause, upon sixty (60) days written notice to Skire. This Agreement may be terminated by either party
upon forty-five (45) days written notice if the other party shall be in breach or default of any material
provision of this Hosting Agreement; provided however that the breaching party may avoid termination if,
before the end of such 45 day period,the breaching party cures such breach. Upon termination for cause,
Skire shall provide a professional service credit as set forth in Sections 2 and 3 of the attached Service
Level Agreement. Any use of the Application by Customer or Service Provider(s) beyond the intended
use of this Hosting Agreement shall be deemed a material breach of this Hosting Agreement. Any
unrecoverable loss or corruption of Customer Information by Skire shall be deemed a material breach of
this Hosting Agreement. Any unapproved disclosure of Customer Information or commingling of Customer
Information with the information of other customers shall be deemed a material breach of this Hosting
Agreement. The City understands that the hosting services provided by Skire to the City are on shared
servers with other customers logically separated and such set-up shall not be deemed to be commingling
in interpreting the prior sentence.
C. Effect. Upon any termination of this Hosting Agreement by Skire pursuant to Section 6(B) of this
Hosting Agreement, 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 Hosting Agreement,including a pro-rated
amount for the Annual Hosting Fees for the therrcurrent Term for all Order Forms up to the time of
termination. Provided that Customer has met all payment obligations under this Hosting Agreement, upon
termination of this Hosting Agreement, Skire shall , within thirty (30) days of termination, return all
Customer Information to Customer, in a format similar to that which is stored within the Application at the
time of termination of the Hosting Agreement,at no cost to the Customer. The following provisions of this
Hosting Agreement will survive any termination or expiration of this Hosting Agreement:Sections 2,3 and
5.
7. 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 at reasonable times any directly pertinent
books, documents, papers and records of Skire involving transactions relating to this Agreement. Skire
agrees that the City shall have access during normal working hours to all necessary Skire facilities and
pertinent records and shall be provided adequate and appropriate work space in order to conduct audits
in compliance with the provisions of this section. The City shall give Skire reasonable advance notice of
intended audits.
S. LIABILITY/INDEMNIFICATION
A. SKIRE SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS,
PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT
CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL
MISCONDUCT OF SKIRE, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES.
B. SKIRE COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD
HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES,
FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR
LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO SKIRE'S BUSINESS AND ANY RESULTING
LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS,
OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR
OMISSIONS OR MALFEASANCE OF SKIRE, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES.
C. 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.
D. SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION, SKIRE SHALL DEFEND
ANY THIRD PARTY CLAIM OR ACTION AGAINST CUSTOMER TO THE EXTENT SUCH SUIT OR
ACTION IS BASED ON A CLAIM THAT CUSTOMER'S PERMITTED USE OF THE APPLICATION
UNDER THIS AGREEMENT CONSTITUTES AN INFRINGEMENT OF US PATENT, TRADEMARK,
TRADE NAME, TRADE SECRET, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS,
AND SKIRE WILL PAY THOSE DAMAGES AND COSTS FINALLY AWARDED AGAINST CUSTOMER
IN ANY MONETARY SETTLEMENT OF SUCH SUIT OR ACTION WHICH ARE SPECIFICALLY
ATTRIBUTABLE TO SUCH CLAIM. SKIRE'S INDEMNITY OBLIGATIONS ARE CONTINGENT UPON (1)
CUSTOMER GIVING PROMPT WRITTEN NOTICE TO SKIRE OF ANY SUCH CLAIM; (11) SKIRE
HAVING SOLE CONTROL OF THE DEFENSE OR SETTLEMENT OF SUCH CLAIM; AND (III) AT
SKIRE'S REQUEST AND EXPENSE, CUSTOMER COOPERATING IN THE INVESTIGATION AND
DEFENSE OF SUCH CLAIM(S).
E. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS HOSTING AGREEMENT,
CUSTOMER AGREES THAT REGARDLESS OF THE FORM OF ANY CLAIM CUSTOMER MAY HAVE
UNDER THIS HOSTING AGREEMENT, SKIRE'S ENTIRE LIABILITY FOR ANY DAMAGES TO
CUSTOMER OR TO ANY OTHER PARTY SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID
TO SKIRE UNDER THIS HOSTING AGREEMENT.
9. INDEPENDENT CONTRACTOR
It is expressly understood and agreed that Skire shall operate as an independent contractor as to all
rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to
and in accordance with the conditions and provisions of this Agreement, Skire shall have the exclusive
right to control the details of its operations and activities and be solely responsible for the acts and
omissions of its officers, agents, servants, employees, contractors and subcontractors. Skire
acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers,
agents, servants and employees, and Skire, its officers, agents, employees, servants, contractors and
subcontractors. Skire further agrees that nothing herein shall be construed as the creation of a
partnership or joint enterprise between City and Skire.
10. ASSIGNMENT
Skire shall not assign or sublet any of its duties,obligations or rights under this Agreement without the
prior written notice to the City. Notwithstanding the foregoing, either party may assign this Agreement to
any acquirer of all or of substantially all of such party's equity securities, assets or business related to the
subject matter of this Agreement. If Skire makes such an assignment, Skire shall ensure that the
assignee or subcontractor adheres to all obligations and duties to which Skire is bound to carry out under
this Agreement. If assignment is to an acquirer of all or substantially all of such party's equity securities,
assets or business, the assigning party shall give written notice to the other party as soon as practicable
but not less than thirty(30)days prior to the effective date of such assignment.
11. NOTICES
A. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to
have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or
representatives, (2)delivered by facsimile with electronic confirmation of the transmission, or(3)received
by the other party by United States Mail, registered, return receipt requested, addressed as follows:
OR,
9 Uo L'U'G✓d� 9 �
To THE CITY: To Skire:
City of Fort Worth Skire, Inc.
Budget Department Legal Department
1000 Throckmorton Street 111 Independence Dr.
Fort Worth TX 76102 Menlo Park, Ca 94025
12. NO WAIVER
The failure of the City or Skire to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Skire's
respective right to insist upon appropriate performance or to assert any such right on any future occasion.
13.CHOICE OF LAW/VENUE
This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any
action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for
such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for
the Northern District of Texas, Fort Worth Division.
14. FORCE MAJEURE
The City and Skire shall exercise their best efforts to meet their respective duties and obligations as
set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to
force majeure or other causes beyond their reasonable control (force majeure), including, but not limited
to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy,
fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental
authority,transportation problems and/or any other similar causes.
15. SEVERABILITY
The provisions of this Agreement are severable, and if any word, phrase, clause, sentence,
paragraph, section or other part of this Agreement or the application thereof to any person or
circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for
any reason,the remainder of this Agreement and the application of such word, phrase,clause, sentence,
paragraph, section, or other part of this Agreement to other persons or circumstances shall not be
affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had
never been contained therein.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties by their duly authorized representatives agree to be bound by all
the terms and conditions of this Hosting Agreement.
CITY OF FORT WORTH: SKIRE, INC:
By: By:
Name: Marc A. Ott Name: gateez Kadivar
Title: Assistant City Manager Title: Director of Sales Operations
r
Date Signed: ?- -7-66 Date Signed: ,j2>/- C
APPROVE AS FORM AND LEGALITY:
Ass—istarkCity Attorney
M&C: P-10384
Date Approved: 5/16/06
ATTT: rj
By: aj�;"
Marty Hendrix
City Secretary
F F I 1 1 E(1j:1 '
EXHIBIT"A"
SKIRE SERVICE LEVEL AGREEMENT
This Service Level Agreement("SLA") is part of the Skire Hosting Agreement entered into between Skire
and the City of Fort Worth("Customer'or"City').
Capitalized terms in this SLA not otherwise defined herein shall have the same meaning as in the Hosting
Agreement.
1. APPLICATION AVAILABILITY
Skire shall provide Business Service Availability (defined below) of at least ninety-nine and one-half
percent (99.5%) on a monthly basis ("Guaranteed Business Service Availability Level"), or Skire shall
provide a Prorated Subscription Fee Reimbursement Credit as provided for in this SLA.
"Business Service Availability" shall be calculated as follows: [(Total business-hour minutes in calendar
month — total business-hour minutes Application unavailable — total Business Excluded Downtime
minutes)/(total business-hour minutes in calendar month—total Business Excluded Downtime minutes)]
* 100. For any partial calendar month during which Customer has Customer Access, Business Service
Availability shall be calculated based on the entire calendar month, not just the portion for which
Customer has Customer Access.
"Business hours" shall mean from 7:00 a.m. to 6:00 p.m. Central Standard Time, Monday through Friday,
excluding City holidays.
"Business Excluded Downtime"shall mean any of the following:
A. Scheduled down time,which shall be any period, not to exceed 24 hours,for which Skire gives 1 week
or more notice that the Application will be unavailable.
B.Any single period of business-hour unavailability lasting 15 minutes or less on a single day. The sum
of multiple periods of business-hour unavailability of any duration in a single day will constitute
downtime.
C.Any unavailability due to causes beyond the reasonable and immediate control of Skire,including, but
not limited to, acts of God,acts of government,flood,fire,earthquake,civil unrest,strike or labor
problems,failures attributable to any co-location company,failure of the electrical sub-systems and
back-up systems,computer or network intrusions, denial of service attacks,or any failure of
Customer's Internet Service Provider or Customer's communication systems.
2. APPLICATION RESPONSIVENESS
Skire shall provide Application Response Time of no greater than five(5)seconds measured at a properly
configured Internet browser workstation meeting Skire's then-current specifications utilizing a
commercially reasonable industry standard broadband connection at least ninety percent (90%) of the
time measured from the time a user clicks on the login button after entering the correct login information
to the time such user enters the Application measured over a sample set that is statistically valid
("Guaranteed Application Response Time").
In the event that Skire does not meet this Guaranteed Application Response Time, Customer shall have
the option of terminating the Hosting Agreement,and receiving a Professional Services Credit for the fees
attributable to the period from date of termination through the end of the applicable 1-year term. The
scope of professional services of a Professional Services Credit must be acceptable to Skire as follows: i)
if they are related to software enhancement and/or configuration,then they must be of the form that Skire
deems consistent with Skire's product direction and valuable to multiple customers; ii) the delivery
schedule must be acceptable to Skire with respect to product release cycles, and requirements must be
provided in a detailed and timely manner; and iii)the services credit shall not apply to any other future or
prior purchase types such as software license, software maintenance and support,or training.
3. REIMBURSEMENT CREDIT
In the event that Skire does not provide the Guaranteed Business Service Availability Level in any
calendar month, and provided that Customer has met the requirements of Section 4 of this SLA, then
Skire will credit to Customer a percentage of the affected year's Yearly Subscription Fee equal to the
difference between the Business Service Availability for the affected calendar and 100%
("Reimbursement Credit").
In the event that Skire does not provide the Guaranteed Business Service Availability Level in any
calendar month, and provided that Customer has met the requirements of Section 4 of this SLA, then
Skire will credit to Customer a fee calculated as follows: (the affected year's Yearly Subscription Fee/ 12
" the difference between the Business Service Availability for the affected calendar month and 100%
("Reimbursement Credit").
4. REPORTING REQUIREMENTS
In order to receive a Reimbursement Credit per this SLA, Customer must notify Skire in writing within ten
(10)days of the end of the affected calendar month of its request for a Reimbursement Credit and include
in such writing downtime or response time information detailing the dates and time periods for each
instance of downtime or slow response during the relevant calendar month, and an explanation of the
claim made under this SLA, including calculations of unavailability percentages. Customer's
Reimbursement Credit notification must be sent via email to sla@skire.com and via regular mail to Attn:
Legal Department, Skire, Inc., 111 Independence Dr., Menlo Park, CA 94025. Skire may change this
manner of notification including the email and mailing addresses at its discretion at any time upon proper
notification of Customer of such changes.
5. GENERAL
A. This SLA commences on the Effective Date of the Hosting Agreement of which it is a part and shall
continue in force until the termination of such Hosting Agreement.
B. All Reimbursement Credit claims will be verified against Skire's system records. Should any down
periods or response times submitted by Customer be disputed, Skire will provide to Customer a record of
Application availability and response times for the periods in question. In the event that Skire does not
provide records refuting Customer's claim, Customer's claim shall stand as valid and verified. In the event
that Customer's claims and records are in conflict with Skire's records and the parties (Customer and
Skire) cannot resolve the disputed claims to the satisfaction of both parties, the parties may, but are not
required, to submit the matter to mediation, with a mediator who is acceptable to both parties. Nothing
herein shall eliminate either party's rights to seek injunctive relief or any or legal remedy that may be
available to that party.
EXHIBIT "B"
Skire,Inc.
Software License and Maintenance Agreement
Order Form
Order Form Number:5 Effective Date:08/25/06
This Order Form("Order Form")and any addendum(s)and attachment(s)are part of and incorporated into the Software License and Maintenance
and Agreement between Skire,Inc.("Skire')and Customer(as defined below)("Agreement"). Thg Age ement contains important terms and
go r�ditipns including.among other things,disclaimers of w&mwties.limitations of liability and restrictions on usage. There shall be no force or effect
given to any different or additional terms of any Customer purchase order,confirmation or similar writing. The fees indicated herein do not include
sales taxes(if any).
1. Software Hosting
A. Application:Unifier'8.5(Includes 200 GS of storage)
B. Hosting Fees:$170,000(Covering Named Users per Order Form#I and Order Form#2)
C. Term End Date:09/30/08
D. Year 3 Annual Hosting Fee(for period beginning 10101108)is available at Customer's option for a maximum of the 440 users as covered in
Order Forms#I and#2 for a fee of$110,000 or$187,000 paid upfront for 2 years.
E. Customer must at all times being an active paying subscriber to Skire Maintenance as a prerequisite to Hosting.
F. Payment Terms:
i, $80,000 due and payable on or before September 8,2006,
ii. $90,000 due and payable on or before October 6,2006.
iii. Payment MUST be received by the above dates—NOT Net 30 from these dates.
2. CPMS-Specific Administrative Support—Full-Time Employee allocated 50%of the time for 1 year to provide Customer-specific Unifier"`'
administrative support:$150,000 paid in full within 30 days from"Go-Live Date"Optional (Check if selected)
3. Attachments(check all applicable attachments)
X_Hosting Agreement
_X_Service Level Agreement
4. Customer Address and Contact Information
Billing Information > ject Manager Contact Information
Contact: Name:
Address: Phone:
Email:
Phone: Tcehni Contact Info
Email: Name:
Customer P.O.ft Phone:
Email:
IN WITNESS WHEREOF,the parties by their duly authorized representatives agree to be bound by all the terms and
conditions of the Master Agreement.
The City of Fort Worth,Texas("Customer") Skire,Inc.
111 Independence Dr.
Menlo Park,CA 94025
r
By: By:
Name: Name:Sateez Kadivar
Title: Title:Director of Sales Operations
Date Signed: Date Signed: 6
REV.04/04*$°VERSION 4*** Page I of 1
Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 5/16/2006
DATE: Tuesday, May 16, 2006
LOG NAME: 13P06-0123 REFERENCE NO.: **P-10384
SUBJECT:
Authorize a Sole Source Purchase Agreement with Skire Inc., for Unifier Software Support,
Maintenance and Application Hosting Services of the Capital Project Management Systems for the
Information Technology Solutions Department
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize a sole source purchase agreement with Skire Inc., for Unifier software support, maintenance
and application hosting services of the Capital Project Management Systems for the Information
Technology Solutions Department in the amount of $61,200 and payment due 30 days from receipt of
invoice;
2. Authorize the sole source agreement from Skire Inc., for the hosting of the Unifier application for an
annual amount of$100,000; and
3. Authorize the agreements to begin May 16, 2006 and expire May 15, 2007, with options to renew for
two additional one-year periods.
DISCUSSION:
The purpose of this purchase agreement is to provide future function upgrades for the City's Capital Project
Management System (CPMS). On August 5, 2004, (M&C C-20183) the City Council authorized the
execution of an agreement with MWH America's Inc. (MWH) for the acquisition, program management and
implementation of CPMS. These upgrades will enable the City to fully utilize the Unifier system to
automate and/or improve current business functions. The scheduled go-live date is July 26, 2006.
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 by the Purchasing
Division and approved by the M/WBE Office because the purchase of goods or services is from sources
where subcontracting or supplier opportunities are negligible.
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.
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 11/9/2006
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FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated, of
the Information Systems Fund.
BQN\06-0123\bdh
TO Fund/Account/Centers FROM Fund/Account/Centers
P168 537100 0045020 $61,200.00
P168 539120 0045000 $100,000.00
Submitted for City Manager's Office by: Richard Zavala (Acting) (6222)
Originating Department Head: Jim Keyes (8517)
Additional Information Contact: Robert Combs (8357)
Pete Anderson (8781)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 11/9/2006