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Contract 39308 (2)
V(Ty SECRETARY 'nNTRACT NO, TMA SYSTEMS, L.L.C. PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (this "Agreement"), made and entered into this 30"' day of September, 2009 by and between TMA Systems, L.L.C., an Oklahoma corporation having principal offices at 5100 East Skelly Drive, Suite 900, Tulsa, Oklahoma 74135 (the "Licensor"), and The City of Fort Worth, a Texas Municipal Corporation having principal offices at 1000 Throckmorton Street, Fort Worth, Texas 76102(the "Licensee"). PRELIMINARY STATEMENT Licensee has a personal, nonexclusive, nontransferable license to use the TMA Software licensed under the TMA Systems, L.L.C. License Agreement of even date separately executed by the parties. This license consists of a computer software program in machine-readable form and related user documentation (collectively, referred to as the "System"). This Agreement relates to professional services provided by Licensor for the implementation and installation of the System and the training of Licensee Personnel. LICENSOR AND LICENSEE, INTENDING TO BE LEGALLY BOUND, AGREE AS FOLLOWS: 1. DEFINITIONS In addition to the terms elsewhere defined in this Agreement, the following terms shall have the meanings set forth in this Section 1 for purposes of this Agreement: 1.1 "Agreement" means this Professional Services Agreement including when applicable: Exhibit A: Installation and Training; Exhibit M Pre -Implementation Services -Tentative Agenda; Exhibit C: Training Agenda; and Exhibit D: Rate Sheet, all of which are attached hereto and incorporated herein. 1.2 "Deliverable" is the written document identified in Exhibit A: Installation and Training, which Licensor is required to produce in connection with different Project Tasks including, without limitation, drawings, technical specifications and documentation, estimates, reports, user manuals, a completed systems installation, and other items, whether in the form of writing, figures, delineations, or electronic data, each as prepared in connection with this Agreement. 1.3 "Reimbursable Costs" means the actual out-of-pocket expenses incurred by Licensor in connection with the services performed herein and includes only the following, to wit: airfare (economy class), baggage handling, hotel accommodations (single room rate), auto rental (based upon a mid -level automobile classification or classification appropriate for the size of the group requiring use of the vehicle), meals (not to exceed $50 per day per person), laundry and dry cleaning charges (if Licensor staff is on travel for a period in excess of four (4) days), parking, ground transportation, and toll fees. 1.4 "Non -Allowable Expenses" means personal entertainment expenses, alcoholic beverages, travel expenses for family members, use of health facilities (unless included in the price of hotel accommodations), movies in a hotel and other non -business related costs, or Reimbursable Costs for which no receipt is produced by Licensor. 1.5 "Project Task" means the defined undertaking described in Exhibit A. 1.6 "Project Manager" means Licensor's employee assigned for coordinatuig, scheduling, and executing the Project Tasks and Deliverables set forth in Exhibit A. 1.7 "Subcontractor" means each person or firm retained by Licensor to assist in the performance of the Project Tasks required under this Agreement. Other teens used but not defined in this Agreement shall have the meaning given in the TMA Systems, L.L.C. License Agreement of even date separately executed by the parties.. 1 t:�Tl� ��CRETAFtY VVdRTHT� 2. CONSULTING SERVICES 2.1 Licensor agrees to provide its technical knowledge, skill, and expertise to perform the Project Tasks and to deliver the Deliverables set forth in Exhibit A, Exhibit B, and Exhibit C. Licensor agrees to complete the performance of the Project Tasks and deliver the Deliverables in accordance with the time schedule set forth in Exhibit A. Durnig the term of this Agreement, Licensor represents that it will maintain the ability to perform the services described herein. Licensor shall provide project management, including plalning, staffing, and coordination as part of the services to be provided herein. 2.2 Licensor shall be responsible for the professional quality, technical accuracy, timely completion, and coordination of all services funlished by Licensor, its subcontractors and consultants, and its and their principals, officers, employees and agents under this Agreement. In performing the specified services, Licensor shall follow practices consistent with generally accepted professional and teclnical standards. 2.3 Licensor has the duty to provide assurances that its work product is teclnically sound within the generally accepted standards of the Information Systems Industry. Licensor shall, without additional compensation, correct or revise any errors or material in Licensor's designs, specifications, reports, and other services not in conformance with the requirements of this Agreement identified by Licensee within ninety (90) days following Licensee's acceptance of each Deliverable as defined ili Exhibit A. 2.4 Licensor agrees that the Project Manager and other employees will cooperate with Licensee in the performance of services under this Agreement and will be available for consultation with Licensee at reasonable times with advance notice as to not conflict with their other responsibilities. 3. TERM OF AGREEMENT This Agreement shall commence as of the date first set forth above and continue for a period of 180 days; unless sooner terminated due to one of the following events: (i) Licensor completes the services required; (ii) the total Compensation set forth in Section 5 is expended; (iii) the Agreement is terminated under Section 9.1 below. However, the parties may agree to extend the term of this Agreement to complete the Project Tasks and Deliverables if it has been demonstrated to the satisfaction of Licensee that Licensor has substantially completed the Deliverables and Project Tasks identified in Exhibit A. 4. INSPECTION AND CORRECTIONS 4.1 Licensee's Right of Inspection. Licensee reserves the right to inspect all parts of the services and Deliverables provided by Licensor under this Agreement, as Licensee reasonably deems necessary. 4.2 Unsatisfactory Performance. If Licensor has not performed the Project Tasks and delivered the Deliverables in a timely mamier, or in a manner reasonably acceptable to Licensee, Licensee shall notify Licensor in writing that Licensoe's performance is unsatisfactory and that Licensor is in breach of this Agreement. Licensor agrees to remedy its unsatisfactory perfoi7nance within five (5) calendar days of receipt of written notice thereof, or to commence such a remedy and to complete it withili a reasonable time (not to exceed 15 calendar days). 5. COMPENSATION 5.1 Compensation. For the services provided under this Agreement, Licensee agrees to compensate Licensor in an amount equal to Licensoe's fee set forth in Exhibit D ("Compensation"). 5.2 Reimbursable Costs. hl addition to the Compensation set forth in subsection 5.1 above, Licensee agrees to reimburse Licensor for its Reimbursable Costs incurred each month in the performance of this Agreement. Licensor shall submit a monthly invoice for any Reimbursable Costs incurred (with receipts in support thereof) for the previous calendar month. Licensee shall have thirty (30) days from receipt to verify and pay the monthly invoice. 2 5.3 Invoice. Licensor shall submit an invoice for payment of the services rendered for the designated incremental periods wherein certain Deliverables and Project Tasks are completed. At a minimum, the invoice shall specify the date of the invoice, Licensor invoice number, the Project Task and Deliverable being invoiced, invoice total, and the total amount due as of the invoice date. Each invoice will represent the amount billed for the performance of services by Licensor based upon the completion of each Project Task and/or Deliverable and/or Consultant's services. Licensee shall have thirty (30) days to verify and pay the invoice. The net amount is due within thirty (30) days of receipt of invoice. 6. SUBCONTRACTS Provided prior approval has been given by Licensee, Licensor may retain various subcontractors to assist in the performance of the Project Tasks and Deliverables set forth in Exhibit A. The compensation to be paid to a retained subcontractor shall be the sole responsibility of Licensor and shall not require the payment of any additional Compensation under this Agreement. 7. PAYMENT OF TAXES Licensee shall pay all taxes, duties, levies, and assessments applicable to and assessable against any equipment, materials, and services, incidental to or involved in this Agreement including but not limited to, retail sales and use, transportation, export, import, business, and special taxes. Licensee is responsible for ascertaining and acquainting itself with such taxes and making all necessary arrangements to pay them. The fixed fee established in this Agreement does not include compensation for any taxes Licensee is required to pay by the laws and regulations in effect during the tenn of this Agreement. 8. DISPUTES S.1 Disputes on Quality or Acceptability of Services. If Licensee and Licensor cannot agree as to the quality or acceptability of the services performed hereunder, or whether there is a change in the services and/or the Compensation required under this Agreement, Licensee or Licensor may promptly give to the other written notice thereof. A written response shall be given by the other within ten (10) days thereafter. 8.2 Licensor's Notice. Any notice given by Licensor pursuant to subsection 8.1 above shall include any possible claims against Licensee, including the amount of Compensation requested. Thereafter, Licensee shall, with reasonable diligence, determine the quality or acceptability of the services or whether a change in the services is required, and/or the Compensation payable to Licensor. 9. RIGHT OF TERMINATION - - 9.1 Both Licensor and Licensee may, upon thirty (30) days written notice, terminate this Agreement, in whole or in part, for any reason whatsoever. Upon receipt of such notice, Licensor shall: immediately discontinue the performance of any further services (unless the notice directs otherwise), deliver all data, drawings, specifications, reports, estimates, summaries, and other information and material as may have been prepared or developed by Licensor pursuant to this Agreement, whether completed or in progress, to Licensee. Termination of this Agreement shall be effective as of the date that such notice is received by Licensor unless otherwise specified in the notice. 9.2 Licensor shall submit a final invoice within thirty (30) days of termination. Licensee shall pay Licensor Compensation and costs incurred up to the effective date of termination. Licensor shall deliver or otherwise make available to Licensee all Deliverables in the form in which they exist on the effective date of termination. k? 10. LICENSOR AS INDEPENDENT CONTRACTOR Licensor represents that it is fully experienced and properly qualified, licensed, equipped, organized, and financed to perform the services required under this Agreement. In the performance of the services required hereunder, Licensor is acting as an independent contractor and not as the agent of Licensee. Licensor shall maintain complete control over its employees and all of its subcontractors. Nothing contained in this Agreement or any subcontract awarded by Licensor shall create any contractual relationship between any subcontractor and Licensee. Licensor shall perform its services in accordance with its own methods subject to compliance with this Agreement. 11. NOTIFICATIONS Notice to either party to this Agreement shall be deemed given (1) when mailed by certified mail, postage prepaid, or (2) when dispatched by facsimile or electronic mail (and confirmed by written instrument mailed by regular mail, postage prepaid, within 48 hours after such dispatch). Mail shall be addressed as follows: Licensor: TMA Systems, L.L.C. Attn: Chief Executive Officer 5100 East Skelly Drive, Suite 900 Tulsa, OK 74135 e-mail: sales@tmasystems.com Licensee: Licensee of Fort Worth Attn: Barbara Wilson Water Information Technology 10 )0 Throckinorton Street Fort Worth, TX 76102 e-mail: barbara.wilson@fortworth.org Copy to Licensee Attorley 1000 Throckmorton Street Fort Worth, TX 76102 Notification address can be changed by either party by notification of the other party pursuant to the provisions of this Section 11. 12. DELIVERABLES 12.1 Each Deliverable, whether finished, unfinished, draft, developed, prepared, completed, or acquired by Licensor during the performance of services required by this Agreement for which Licensor has been compensated shall become the property of Licensee and shall be delivered to Licensee's representative upon completion of such Deliverable or termination of this Agreement, whichever occurs first. 12.2 Each Deliverable prepared by Licensor shall be reviewed and approved by Licensee as to compliance with the requirements of this Agreement. Licensee's approval of a Deliverable shall not be unreasonably delayed or withheld. 12.3 Licensee's review and acceptance of a Deliverable shall be solely for the purpose of determining compliance with requirements hereof and not for format or style or for the incorporation of additional ideas and functionality. Acceptance shall be granted if the Deliverable conforins in all material respects to the descriptions set forth in Exhibit A and this Agreement. In the event of Licensee's rejection of a Deliverable, Licensee shall identify in reasonable detail, with specific references to the requirements of this Agreement, all deficiencies which require corrective actions or changes to be made by Licensor in order to make the Deliverable conform to the requirements of this Agreement. 13. RIGHTS IN TECHNICAL DATA 13.1 Documents and Materials Prepared. All documents and materials first prepared or developed by Licensor pursuant to this Agreement including, but not limited to computer software or database applications, patentable work product, or other work product entitled to protection under the laws of the United States shall be deemed work made for hire and shall become the property of Licensee without any restriction or limitation on their use, and shall be made available for transmittal to Licensee upon request. The originals of such documents and materials shall be delivered to Licensee upon completion of the services or termination of this Agreement. Licensor shall be pennitted to retain copies of such items for its internal use only. Licensee acknowledges that Licensor retains ownership and all other rights associated with the System and Licensor Intellectual Property (IP) as set forth in the TMA Systems, L.L.C. License Agreement, 13.2 Right to Duplicate Technical Data. Licensee shall have the right to use, duplicate, modify, or disclose the technical data and the infonnation prepared or developed for Licensee, in whole or in part, in any manner whatsoever, and to have or permit others to do so. 14. WARRANTY Licensor warrants that all services shall be in accordance with this Agreement and shall comply with the standard of performance for a period of ninety (90) days from acceptance of the services. In the event of breach of this warranty, Licensor shall take the necessary actions to correct the breach at Licensor's sole expense. Such corrective actions shall be carried out in the most expeditious manner as permitted by existing circumstances. 15. ASSIGNMENT OF CONTRACTUAL RIGHTS It is agreed that Licensor shall not assign, transfer, convey, or otherwise dispose of any of Licensor's rights or duties under this Agreement, without prior written consent of Licensee which consent will not be unreasonably withheld or delayed. 16 MISCELLANEOUS 16.1 Waiver. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. 16.2 Attorney Fees. In the event of any litigation arising out of or relatilig to this Agreement, the prevailing party shall be entitled to recover from the unsuccessful party costs and expenses, including reasonable attorneys' fees. 16.3 Applicable Law and Forum Selection. This Agreement shall be governed by and construed under the laws of the State of Oklahoma. Licensee herein consents to venue and jurisdiction of both the state and federal courts of Tulsa County, Oklahoma. Any lawsuit seeking to enforce or interpret the terms of this Agreement shall be brought in the state or federal courts located in Tulsa County, Oklahoma. This Agreement constitutes the complete and entire agreement between the parties concerning the subject matter of the present transaction and supersedes any prior representations, understanding, communications, commitments, agreements or proposals, oral or written, concerning such transaction. No amendment or modification of this Agreement shall be effective unless made in writing and signed by Licensor and Licensee. 16.4 Meaning of Article and Section Headings. The section headings appearing throughout this Agreement are for convenience of reference only and shall not be deemed to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Agreement. _ 16.5 Severability. hi the event that any portion of this Agreement is held unenforceable, the remainder of the provisions shall remain in full force and effect and the parties shall negotiate in good faith a substitute provision which most nearly affects the parties' Intent in entering into this Agreement. 16.6 General Limitation of Liability. THE TOTAL LIABILITY OF THE LICENSOR (INCLUDING ITS SUBCONTRACTORS AND SUPPLIERS) FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER 1N CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE SHALL NOT EXCEED THE AMOUNT PAID FOR THESE SERVICES. IN NO EVENT, INCLUDING NEGLIGENCE, WILL TMA OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, 5 OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF DATA OR LOST PROFITS, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF TMA OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY. 16.7 Force Maieure. Neither party shall be liable, nor be deemed in default for failure in its performance of its obligations under this Agreement where such failure is due to causes beyond the reasonable control of the party affected, including but not limited to acts of God, acts of the government, fires, flood, riots, labor difficulties, embargo, and civil commotion. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the above date. Licensor: TMA Systems, L.L.C. By: �r _ Authorized Signature Name: � �•; : , a Title © 2009, TMA Systems, L.L.C. (01/Ol/09) Licensee: City of Fort Worth Authorized Signature Name: Fernando Costa Title: Assistv.` city mariaver Attested boo CITY ATTORNEY ADDENDUM TO TMA SYSTEMS, L.L.C. PROFESSIONAL SERVICES AGREEMENT This Addendum sets forth the modifications to the terms and conditions of the TMA Systems, L.L.C. Professional Services Agreement. Licensor and Licensee, intending to be legally bound, agree as follows: Pursuant to Section 6 The following language is added to this section: "Licensor shall ensure that any subcontractor retained has the legal right to work in the United States and shall comply with the Immigration and Nationality Act." Pursuant to Section 7 All prior language in this section is replaced with the following language: "Licensor accepts that Licensee is a tax exempt entity and shall not be liable for any taxes under the agreement." Pursuant to Section 8.1 The following modification is made to this section: ten Pursuant to Section 9.3 The following is added as an additional Section to the Agreement: "Non -Appropriation. In the event no funds or insufficient funds are appropriated by the Licensee in any fiscal period for any payments due hereunder, Licensee will notify Licensor 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 Licensee of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated." Pursuant to Section 12.2 The following language is added to this section: "Licensee's acceptance shall be communicated in any written forinat to Licensor." Pursuant to Section 16.2 The following language is added to this section: "Both parties shall be responsible'ts�at" torney's fees." Pursuant to Section 16.3 The following modification is made to this section: Each instance of the "State of Oklahoma" is replaced with the "State of Texas and each instance of "Tulsa County" is replaced with "Tarrant County." Pursuant to Section 16.6 This section is replaced in its entirety with the following language: "EXCEPT FOR DAMAGES FOR PERSONAL INJURY OR DAMAGES TO TANGIBLE PROPERTY CAUSED BY LICESOR5 ITS AGENTS, OFFICERS, OR EMPLOYEES, THE TOTAL LIABILITY OF THE LICENSOR (INCLUDING ITS SUBCONTRACTORS AND SUPPLIERS) FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE SHALL NOT EXCEED TWO TIMES THE AMOUNT PAID FOR THESE SERVICES. IN NO EVENT, INCLUDING NEGLIGENCE, WILL TMA OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF DATA OR LOST PROFITS, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF TMA OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY." Pursuant to Section 16.8 The following is added as an additional Section to the Agreement: "Indemnification. LICENSOR AGREES TO INDEMNIFY, SAVE, HOLD HARLESS, AND DEFEND LICENSEE, ITS OFFICERS AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS FOR DAMAGES, LIABILITIES, CLAIMS, AND LOSSES OCCURRING OR RESULTING IN CONNECTION WITH ANY BOLIDY INJURIES OR DAMAGES INCURRED AS A RESULT OF LICENSOR'S NEGLIGENCE WHILE PROVIDING SERVICES ON LICENSEE'S PREMISES OR RELATED TO LICENSEES' NETWORK SYSTEM." Pursuant to Section 16.9 The following is added as an additional Section to the Agreement: "Dispute Resolution. In the event of a dispute or controversy between the parties for any matter related to this Agreement, the parties shall, in good faith, exercise their best efforts to negotiate and attempt to resolve the dispute. If the dispute or controversy cannot be resolved within thirty (30) days, the parties may submit the dispute or controversy to mediation pursuant to the Commercial Mediation Rules of the American Arbitration Association. Mediation shall take place in Tarrant County, Texas. The parties shall share the costs of the mediation; however, each party shall be liable for its own expenses and attorney's fees. A mediator shall be jointly chosen by the parties and such mediator shall have expertise in computer law and information technology. Either party may, without waiving any remedy under this Agreement, seek from any court having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that party." Pursuant to Section 16.10 The following is added as an additional Section to the Agreement: "Insurance. Licensor shall provide the Licensee with certificate(s) 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, $1,000,000, Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Licensor, 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 General Requirements (a) The commercial general liability and automobile liability policies shall name the Licensee as an additional insured thereon, as its interests may appear. The term Licensee 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) ui favor of the Licensee of Fort Worth. (c) A minimum of thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the Licensee. Ten (10) days notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, Licensee of Fort Worth, 1000 Throckinorton, Fort Worth, Texas 76102, with copies to the Licensee 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 Licensee to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Licensor has obtained all required insurance shall be delivered to the Licensee prior to Licensor proceeding with any work pursuant to this Agreement." The parties have executed this addendum by their duly authorized representatives on the below date. TMA SystenM: L.L.C. By: ( — 7 L Name: r�N S,00 �70 ,%J Title: ✓f, 05 Date: /?/a City of Fort Worth Name: F®rnand® C®Sta �r Title: pssistr ~; pity Mana9 Date: ANT CITY ATTURNEY Exhibit A Installation and Training 9i30.i2009 Exhibit A Intentionally Omitted Exhibit B Pre -Implementation Services - Tentative Agenda Exhibit B - Pre -Implementation Services - Tentative Agenda Scope of Services for City of Fort Worth Water Department TMA Systems proposes to provide professional services to help City of Fort Worth Water Department improve its operational processes, increase productivity and efficiency, and ensure successful facility management system implementation. Where knowledge of facility operations, project management and information technology can add value to City of Fort Worth Water Department, TMA Systems will provide professional services and expertise to meet business needs. In order to meet the objectives of City of Fort Worth Water Department , TMA will provide data assessment and services as described below: • Discuss work flow processes and recommend features available in the application to work more efficiently. • Assess data structure and make recommendation for improvements based on departmental goals and expectations. • Review static data tables to identify problem areas and make I ecommendation for data clean-up where applicable. • Provide an assessment summary document with recommendations for data structure changes if needed, for work flow process changes to take advantage of features in the application and data clean up. Data Clean-up work up to two days. 9i30�2009 Signature %J Acceptance This form may be used to notify TMA Systems to proceed with the services described in this document. Please sign and date below and return to TMA via mail or fax if you comply with the scope of services being proposed. Client Signature Printed Name Please fax signed copy to 918.858.6655. Date ��i3o�2o0�> Exhibit C Training Agenda Exhibit C Intentionally Omitted Exhibit D Rate Sheet Exhibit D Rate Sheet Submitted for consideration to: Barbara Wilson IT Manager City of Fort Worth - Water Dept. Exhibit D Pricing 1511 11 th Ave. Fort Worth, TX 76102 817-9944912 lionel.bland@fortworthgov.org - fax TMA Systems Proposal for' TMA Ente�p�ise (MS SQL) Vaciiities Maintenance Management Software / CM1 IS Exhibit D Rate Sheet Proposal Valid Through: October 23, 2009 Submitted Bv: Dave Whitney Account Executive TMA Systems, LLC 5100 East Skelly Drive, Suite 900 Tulsa, OK 74135 (918) 858-6680 - office (918) 858-6655 - fax dave.whitney@tmasystems.com TMA Systems, LLC -Confidential 9/28/2009 Page 1 of 6 TMA Systems, LLC 5100 East Skelly Drive, Suite 900 Tulsa, OK 74135 800,862,1130 918.858.6655 fax www.tmasystems.com Federal Employment Number: 73-1554384 Q Barbara Wilson u IT Manager t City of Fort Worth - Water Dept, Exhibit D Pricing e 1511 11 th Ave. Fort Worth , TX 76102 F 817-994-4912 r lionel.bland@fortworthgov.org Date September 28, 2009 Valid Through October 23, 2009 Quote Number DW 090928-0632-5 Client Number 0632 PROFESSIONAL SERVICES Reference Attached Scope of Services Exhibit A, B & C • Consulting Services 3 Client Site Assessment - Done On Location $ 4,500.00 • Travel Expenses 1 Not To Exceed 3 Day Trip to Fort Worth (21 Day Notice for booking) $ 11200,00 • Data Clean Up Days 2 Estimate of Data Clean Up Time following Assessment $ 3,000.00 Note: TMA professional services to be performed in-house, through web services (TMA iPortal, Live Meeting, etc.) or at client site. TMA consultant will prepare a project schedule identifying necessary allocation of service days upon review with client. Travel expenses are quoted as a not to exceed price with 21 days advance notice for booking. Actual expenses will be charged as incurred. Total Professional Services $ 8,700.00 SUPPORT SERVICES • Gold Annual Support 1 Annual Support Plan -Previous Contract Ended 2003 $ 9,741.75 • Reinstatement Fee 1 15% Annual Support Contract $ 1,461.26 Total Support Services $ 11,203.01 TOTAL COST OF PROPOSED SOLUTION $ 19,903.01 SUPPORT SERVICES Future Pricing • Future Services $1500/Day Plus Travel Expenses TMA Systems, LLC -Confidential 9/28/2009 Page 2 of 6 TERMS and CONDITIONS • Software is subject to TMA Systems, LLC License Agreement for the following location(s): City of Fort Worth - Water Dept, Exhibit D Pricing 1511 11th Ave. , Fort Worth , Tx 76102 • Interface upgrades and compatibility are subject to continued support of associated vendors. • Travel, shipping and handling expenses not included. • Payment is due net 30 days after receipt of software. • Past due invoices will be charged 1.5% per month. • These prices do not include applicable sales tax. • Oracle or Microsoft SQL Server database and any other third party software not included. • Quotation is for Software, Service and Support referenced on attached Client Profile. • Software is compatible with systems meeting the requirements outlined on the Systems Requirement attachment. TMA Systems, LLC Dave Whitney Account Executive (918) 858-6680 - office (918) 858-6655 - fax dave.whitney@tmasystems.com City of Fort Worth -Water Dept. Exhibit D Pricing �iF1i�r! Title Date Attested byo Marty 3 ®FFIGIQL REGOR[� �=ITY SEGRETARN FT WORTH, U. TMA Systems, LLC -Confidential 9/28l2009 Page 3 of 6 TMA Enterprise, TMA WorkGroup, and TMA eXto To run these products on a PC, the following hardware and software are $erVer Pentium 4 class (or equiv) or better (Dual Xeon recomm) 1 GB RAM (2 GB recommended) Tape, optical, or other suitable backup medium Appropriate Backup Software (e.g., BackupExec) Windows 2003 Server (SP 1 or greater) Windows 2000 Server (SP 4 or greater) Novell 4.x and 5.x Workstation Minimum Requirements • Pentium 4 class (or equivalent) or better 512 MB RAM (1 GB recommended) DVD-ROM or CD ROM Windows XP (SP 2 or later) (Recommended) Windows 2000 Professional (SP 4 or newer) Oracle Instant Client, Oracle Net; or SOL Server Native Client or SOL Server ODBC Driver Macintosh Requirements • Minimum of 1 GB Free Space (preferred) RAID 5 or equivalent Gigabit Ethernet or Fast Ethernet 800 x 600 resolution (or greater) Keyboard and mouse Supports shared server (i.e., not required to be dedicated) • 700 MB Free Hard Drive Space or more 400 MB Free Hard Drive Space for full installation (with multi -media tutorial) Gigabit Ethernet or Fast Ethernet 800 x 600 resolution (or greater) Keyboard and mouse t;urrentty, t mH does not support tnese motlules on the Macintosh US X Plattorm: Active Reports, TMA CAFM, cellularTMA, TMA Executive Dashboard, mobileTMA, TMA Room Inspections, and TMA iSD (the client pages work fine, but not the server application). In addition, LDAP is not available for the Macintosh. To run other TMA solutions on an Apple Macintosh computer, the following hardware and software are required (Note: Macs with Intel processors are not supported): Server • Power Mac or X Server G5 2.3 GHz 2 GB RAM (80 GB Hard Drive) Microsoft Windows Server 2003 or Microsoft Windows 2000 Server for mixed PC/Mac Environments DVD ROM or CD ROM Tape, optical, or other suitable backup medium Mac OSXv10.4 Workstation Minimum Requirements • G5 processor (Intel processor not supported) DVD-ROM or CD ROM 1 GB RAM • 100 MB Free Space (preferred) • Mac OSXv10.4 • t00 MB Free Space (preferred) • 1 GB Free Space (preferred) • Oracle 10G for OSX Gigabit Ethernet or Fast Ethernet AppleSharelP 6.3.3 (AppleTalk not supported) Monitor — 800x600 resolution or greater Keyboard and mouse • Keyboard and Mouse • Gigabit Ethernet or Fast Ethernet (AppleTalk is not supported) 800 x 600 resolution (or greater) Oracle Instant Client or Oracle Net, or SQL Server Native Client or SOL Server ODBC Driver TMA Systems -Confidential 9/28/2009 Page 4 of 6 Printer Requirements • Laser • Minimum 32 MB RAM • Avoid dot matrix printers • Network Card or Network Printer Server (recommended) RDBMS (Relational Database Management System Software -Oracle Server (for TMA Enterprise and TMA WorkGroup) • Oracle 10g, Release 10.x or greater (recommended) * • Oracle 9i, Release 2 or greater * Assure that the latest security updates and Service Packs are applied. Note: TMA is compatible with some desupported versions of Oracle. Check with TMA for more information. Software - MS SQL Server (for TMA Enterprise and TMA WorkGroup) • Microsoft SQL Server 2005 with Service Pack 2 or later (recommended) * • Microsoft SQL Server 2000 with Service Pack 3a or later * * Assure that the latest security updates and Service Packs are applied. Software -SQL Server 2005 Express (for TMA WorkGroup and TMA eXpress) • Microsoft SQL Server 2005 Express (recommended) • Microsoft MSDE 2000 * * Assure that the latest security updates and Service Packs are applied. TMA iServiceDesk Reauirements Server • Pentium 4 1 GHz or greater (3 GHz or greater recommended) • Microsoft Windows 2003 Server (SP 2 or later), MS Windows 2000 Server (SP 4 or later) • 512 MB RAM (1 GB recommended) • 100 MB free hard drive space • Fast Ethernet Network Card (Gigabit Ethernet recommended) • Internetfintranet connection to iServiceDesk server Dedicated server recommended. ** * iServiceDesk may run on the database server for low volume web traffic, iServiceDesk server may be shared with other server applications, depending upon usage volume of each application. Software • TCP/IP Network • Static IP address or DNS host name (including DNS name resolution) Microsoft Internet Explorer v 4.0 or later (v6.0 recommended) Netscape Navigator or Netscape Communicator v4.6 or 4.7 .NET Framework v1.1 installed on the same computer as iServiceDesk Server (applies to iSD v4.x and later) TMA Systems -Confidential 9/28/2009 Page 5 of 6 TMA's mobileMA for Palm OS Requirements TMA products for client/server backend applications support Palm OS version 3.5 through 5.x. Versions of TMA that use the Omnis datafile support the Palm OS Platform version 3.5 through 4.x. Some examples of hardware options are: • Palm OS devices • Symbol Technologies devices such as SPT 1800 series • Handspring Visor and Handspring Visor with Symbol CSM 150 Bar Code Scanner Springboard v3.x or v4.x • Higher speed processors are desirable Hardware RAM • Recommended RAM: 8MB Supported OS Versions • Palm OS 3.5 to 5.x * * Only the TMA products for client/server backend applications support Palm OS v3.5 through 5.x. TMA Omnis datafile products support palm OS v 3.5 through 4.x. TMA's mobileTMA for Pocket PC Requirements TMA's mobileTMA for the Pocket PC is compatible with Pocket PC versions 2002 & 2003. This includes units manufactured by various companies such as Dell (Dell Axim devices), Toshiba, and Hewlett Packard. In addition, the Cingular 8125 PDA phones with Mobile Windows v5 or greater, any PDA phones running MS Pocket PC or Windows Mobile, and the Treo PDA phone with Pocket PC 2002 or 2003 are compatible with this module. Minimum Environment Requirements • Pocket PC 2002 Processors: • ARM • ARMV • MIPS • SH# • WCE420X86 • X86 Minimum Processor Requirements: • 200Mhz processor * • Memory sufficient to allow 10 MB free space plus 2 MB for each technician (several technicians can use the same handheld device) * Performance may vary from model to model regardless of Processor speed. Recommended 400Mhz processor or greater * Memory: 64 MB NOTE: Loading other applications or games causes memory issues. System Requirements Minimum Operating System: Windows 98 .NET Framework installed on Desktop NOTE: TMA and associated products will function on hardware with lower requirements than presented; however, unacceptable performance degradation may occur. 6-REF-01.1238 Rev. 14 04111l07 TMA Systems -Confidential 9/28l2009 Page 6 of 6 TMA SYSTEMS, L.L.C. LICENSE AGREEMENT THIS TMA SYSTEMS, L.L.C. LICENSE AGREEMENT (this "Agreement"), made and entered into this 30`h day of September, 2009 by and between TMA Systems, L.L.C., an Oklahoma corporation having principal offices at 5100 East Skelly Drive, Suite 900, Tulsa, Oklahoma 74135 (the "Licensor"), and The City of Fort Worth, a Texas Municipal Corporation having principal offices at 1000 Tln-ockinorton Street, Fort Worth, Texas 76102 (the "Licensee"). PRELIMINARY STATEMENT This Agreement sets forth the terms and conditions under which this Software is Licensed from Licensor to Licensee. The license consists of a computer software program in machine-readable form and related user documentation. LICENSOR AND LICENSEE, INTENDING TO BE LEGALLY BOUND, AGREE AS FOLLOWS: 1. DEFINITIONS "Software" means: A) all of the contents of the disk(s), CD-ROM(s), or other media with which this Agreement is provided, including but not limited to TMA or third -party software and related explanatory written materials ("Documentation"); and B) modified versions, upgrades, updates, additions, and copies of the Software, if any, licensed to Licensee by TMA (collectively, "Updates"). "Licensed Location" is the physical location of the structures and buildings for which this software is to be used as described in the Client Registration Profile completed in connection with the purchase of this license. If a Client Registration Profile has not been completed or retained, then "Licensed Location" means the buildings or structures located at the street address to which this Software has been shipped by TMA. "Licensee Equipment" is the local area network, central processing units, including all terminals, and other components thereof, situated at the Licensed Locations where this Software will be installed, operated, and maintained. For purposes of this Agreement, a "local area network" is a set of high-speed links connecting computers at the Licensed Location to one or more computers or networks that are external to the Licensed Location. TMA grants to Licensee a nonexclusive license to use the Software provided that Licensee agrees to the following: Z. GRANT OF LICENSE In consideration of the mutual promises and covenants provided herein and for other good and valuable consideration, and conditioned upon compliance with all of the terms and conditions set forth in the License Agreement, including, but not limited to, Article 3 of this Agreement, TMA grants to the Licensee a personal, nonexclusive, nontransferable license to use the Software and Documentation as a single package for Licensee's internal use only. 3. USE OF THE SOFTWARE Licensee may install one copy of the Software onto a hard disk or other storage device for use on the Licensee Equipment. Licensee may use this Software only in connection with operations at the Licensed Location. Licensee may make one backup copy of the Software for archival purposes during the term of this agreement, provided Licensee's backup copy is not installed or used on any computer. Licensee may NOT modify, translate, reverse engineer, decompile, or disassemble the Software, Data, or Documentation, except to the extent such activity is permitted by applicable law not withstanding this restriction in order to protect TMA's trade secrets and proprietary information contained in the Software, Data or Documentation. Licensee may NOT sell, rent, lease, sublicense, lend, assign, time share, transfer or grant any rights in the Software to any person without the prior written consent of TMA which, if given, is subject to the conferee's consent to the terms and conditions of this license. Licensee may NOT remove any proprietary notices, labels, or marks on the Software and accompanying Documentation. Licensee may NOT use the Software on a wide area network or intranet unless Licensee has an explicit written exception to this license, signed by TMA. Licensee may NOT use the Software for use in a Call Center, act as a Service Bureau or provide processing of third party data unless they have an explicit written exception to this license, signed by TMA. TMA CAFM and _KS Means are purchased on a per node basis. 4. COPYRIGHT The Software and any copies that Licensee makes are owned by TMA. The Licensee recognizes that the Software's structure, organization, and code are the valuable trade secrets of TMA and shall NOT be disclosed to any person. The Software and Documentation are also protected by United States laws and applicable international laws, treaties, and conventions regarding intellectual property or proprietary rights, inclusive of trade secrets. Licensee may not copy the Software, except as set forth in the "Use of the Software" section or the Documentation. Any copies that Licensee is permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. Licensee agrees not to modify, adapt, or translate the Software. Licensee also agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software. Except as stated above, this Agreement does not grant Licensee any intellectual property rights in the Software. This Agreement provides the terms and conditions under which Licensee is licensed to use the Software. It is not an agreement for the sale of the Software to Licensee. Licensee's license is NOT for sale. Title and copyrights to the Software, and any copy made by Licensee, remain the property of TMA. 5. LIMITED WARRANTY TMA warrants that for ninety (90) days after purchase of the license by Licensee, the software shall reasonably conform to the standards defined in the Documentation. The sole and exclusive remedy for a failure of the software to perform in accordance with the Documentation is for Licensee to notify TMA in writing of the nonperformance within ninety (90) days of purchase. TMA's sole obligation shall be to provide Licensee with a performing copy of the software within a reasonable time after receiving notification of nonperformance. Any replacement software provided under this limited warranty will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDIES FOR TMA'S BREACH OF WARRANTY. THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION. 6. DISCLAIMER OF WARRANTIES EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, TMA MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON4NFRINGEMENT OF THIRD -PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. TMA DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS LICENSEE MAY OBTAIN BY USING THE SOFTWARE. Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to Licensee. To the extent permissible, any implied warranties are limited to ninety (90) days. 7. GENERAL LIMITATION OF LIABILITY THE TOTAL LIABILITY OF THE LICENSOR (INCLUDING ITS SUBCONTRACTORS AND SUPPLIERS) FOk ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER 1N CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE SHALL NOT EXCEED THE AMOUNT PAID FOR THIS LICENSE. IN NO EVENT, INCLUDING NEGLIGENCE AND PRODUCT LIABILITY, WILL TMA OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF DATA OR LOST PROFITS, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF TMA OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY. 8. GOVERNING LAW AND GENERAL PROVISIONS This agreement will be governed by the laws of the State of Oklahoma, excluding the application of its conflicts of law rules. In any dispute arising out of this Agreement, TMA and Licensee both consent to venue and jurisdiction of both the state and federal courts of Tulsa County, Oklahoma. Any lawsuit seeking to enforce or interpret the terms of this Agreement shall be brought in the state or federal courts located in Tulsa County, Oklahoma. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement which shall remain valid and enforceable according to its terms. Licensee agrees that the Software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations. This Agreement may only be modified in writing and signed by an authorized officer of TMA, although TMA may vary the terms of this Agreement in connection with. the licensing of any Updates to Licensee. This Agreement is the entire agreement between the Licensee and TMA, and supersedes any other communications with respect to the Software. If any provision of this Agreement is held to be unenforceable, the remainder of this Agreement shall continue in full force and effect. 9. NOTICE TO U.S. GOVERNMENT USERS Use, duplication or disclosure by the U.S. Government is subject to restrictions stated in the Rights in Technical Data and Computer Software clause at 48 C.F.R. 252.227-7013. The parties have executed this agreement by their duly authorized representatives on the above date. TMA Systems, Name: �•� , — , ..� 1 A y..:.� Title: 2009, TMA systems, L.L.C. (01/01/2009) City of Fort Worth Name: i`ernand® Costa Titre: Assists City Manager ASSISTANT CITY ATTnRNEY Attested by: P�FFICiAL RECOR@ 1.#1TY SECRETARY 3 FT WORTH, TX ADDENDUM To TMA SYSTEMS, L.L.C. LICENSE AGREEMENT This Addendum sets forth the modifications to the terms and conditions of the TMA Systems, L.L.C. License Agreement. Licensor and Licensee, intending to be legally bound, agree as follows: Pursuant to Section 7 This section is replaced in its entirety with the following language: "EXCEPT FOR LICENSORS OBLIGATIONS UNDER SECTION 10 HEREIN, THE TOTAL LIABILITY OF THE LICENSOR (INCLUDING ITS SUBCONTRACTORS AND SUPPLIERS) FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE SHALL NOT EXCEED THE AMOUNT PAID FOR THIS LICENSE. IN NO EVENT, INCLUDING NEGLIGENCE AND PRODUCT LIABILITY, WILL TMA OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF DATA OR LOST PROFITS, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF TMA OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY." Pursuant to Section 8 The following modification is made to this section: Each instance of the "State of Oklahoma" is replaced with the "State of Texas and each instance of "Tulsa County" is replaced with "Tarrant County." Pursuant to Section 10 The following is added as an additional Section to the Agreement: "INFRINGEMENT INDEMNIFICATION Licensor agrees to defend, save, hold harmless, and uldenmify the Licensee, at Licensor's own cost and expense, for any claim or action against the Licensee for infringement of any patent, copyright, trade secret, or similar property right arising from Licensee's use of the software in accordance with this agreement. Licensor shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim, and Licensee agrees to cooperate with it iil doing so. Licensee agrees to give Licensor timely written notice of any such claim or action, with copies of all papers Licensee may receive relating thereto. If the software or any part thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Licensor shall, at its own expense either: (a) procure for Licensee the right to continue to use the software; or (b) modify the software to make it non -infringing, provided that such modification does not materially adversely affect Licensee's authorized use of the software; or (c) replace the software with equally suitable, compatible, and functionally equivalent non -infringing software at no additional charge to Licensee; or (d) if none of the foregoing alternatives is reasonably available to Licensor, terminate this agreement and refund to Licensee the payments actually made to Licensor under this agreement." date. The parties have executed this addendum by their duly authorized representatives on the below L.L.C. ame: 1$ -�T ..-a / r4 N Title: v P, S P4 Date: 9/ /cp 5� City of Fort Worth By: Name: Fernand®Cosa Title: AsslVfi 'T Ely MRnager' Date: TANT CITY ATTnRNEY CITY SECRETARY FT. WORTH, TX TMA SYSTEMS, L.L.C. MAINTENANCE AGREEMENT THIS MAINTENANCE AGREEMENT (this "Agreement"), made and entered into this 30`1' day of September, 2009 by and between TMA Systems, L.L.C., an Oklahoma corporation having principal offices at 5100 East Skelly Drive, Suite 900, Tulsa, Oklahoma 74135 (the "Licensor"), and The City of Fort Worth, a Texas Municipal Corporation having principal offices at 1000 Throckmorton Street, Fort Worth, Texas 76102(the "Licensee"), PRELIMINARY STATEMENT Licensee has a personal, nonexclusive, nontransferable license to use the TMA Software licensed under the TMA Systems, L.L.C. License Agreement of even date separately executed by the parties. This license consists of a computer software program in machine-readable form and related user documentation (collectively, referred to as the "System"). LICENSOR AND LICENSEE, INTENDING TO BE LEGALLY BOUND, AGREE AS FOLLOWS: 1. SOFTWARE MAINTENANCE 1.1 Licensor shall provide to Licensee all modifications to the System inn the form of maintenance releases and future releases that Licensor makes generally available to all end -users. 1.2 Such modifications, when delivered, shall become part of the System, shall be maintained in accordance with this Agreement, and shall otherwise be subject to all of the terms of the TMA Systems, L.L.C. License Agreement. 2. ERROR CORRECTION 2.1 Licensor shall correct, within a reasonable period of time, any material reproducible error or malfunction in the System. Licensee agrees to notify Licensor of any such material error or malfunction in the System immediately upon Licensee's detection. If Licensor, in its discretion, requests written verification of a material error or malfunction discovered by Licensee, Licensee shall immediately provide such verification, by e-mail, facsimile transmission or overnight mail, setting forth in reasonable detail the respects in which the System fails to perform. Licensor agrees to commence correction within eight (8) business hours after receiving notice from Licensee of such material error or malfunction. An error or malfunction shall be "material" if it represents a material nonconformity with Licensor's current published specifications for the System and Licensee, in its discretion, determines (and notifies Licensor) that such error or malfunction unreasonably restricts Licensee's use of the System. 2.2 Licensee shall reimburse Licensor at Licensor's then -current time and material rates for all work of Licensor spent investigating an error or malfunction that Licensor reasonably determines to have been caused by a modification to the System that was neither made nor authorized by Licensor. 3. SUPPORT Licensor shall, during the hours of 7:00 a.m. to 5:00 p.m. CST on weekdays (exclusive of holidays), make reasonable support available to Licensee's Project Leader or other persoimel of Licensee who have been fully trained by Licensor in the use of the System. Thus support shall be via phone, fax, e-mail, and access to www,tmasystems.net (Internet support site). 4. OTHER MODIFICATIONS Licensee may at any time request that Licensor make additional modifications to the System to add functionality or improve performance. Licensor shall, within sixty (60) days after receiving Licensee's request in writing, take one of the following actions, in Licensor's sole discretion: • Notify Licensee that Licensor has determined that the modification would be of sufficient interest to enough end -users that Licensor intends to provide such modification as part of its regular maintenance service. Such notice shall specify an estimated date on which the modification may be supplied. • Notify Licensee that Licensor has determined that the modification will be undertaken only on an individual basis and if requested, will provide Licensee with a written estimate of the charges for performing such modification. If Licensee accepts Licensor's proposal by written notice, Licensor agrees to perform the modification for the estimated charges plus out-of-pocket expenses for travel and materials. Should Licensee revise its request for modification after Licensee accepts Licensor's estimate, Licensee acknowledges that Licensor may impose additional charges, calculated at its then -current time and material rates, for work performed to accommodate those revisions. • Notify the Licensee that Licensor has determined that the modification is not technically feasible. 5. DELIVERY In order to satisfy any delivery obligation hereunder, Licensor may, at its option, send Licensee a single copy of any modification, error correction, or release to the System, together with instructions for Licensee's installation and implementation thereof. 6. CHARGES 6.1 Licensee shall pay Licensor an agreed upon annual maintenance fee. The first such annual fee for the 12-month period commencing on the date Licensor installs the System shall be due and payable ninety (90) days after such installation. 6.2 At least thirty (30) days prior to the end of the initial teen or any renewal term of maintenance services, Licensor shall send to Licensee a renewal invoice for maintenance services for the subsequent twelve (12) month period. Each subsequent annual maintenance fee shall be due and payable within thirty (30) days of the beginning of each such 12-month period. If payment is not made within sixty (60) days of the start of any renewal term, Licensor will cease providing maintenance services to Licensee and this Agreement will automatically tenninate without further responsibility on Licensor. After the initial 12-month period, Licensor may increase the annual maintenance fee by an amount no greater than 5% of the previous annual maintenance fee. In no event will Licensor increase the annual maintenance fee other than on an anniversary of any 12-month period, except if additional Licensor software options or users are added to the System. In addition, Licensee agrees to the following: 6.2.1 Licensee agrees to pay all charges resulting from additional functionality, improved performance, or other modifications provided to Licensee based on Licensee's specific request and agreed to in writing by Licensee. 6.2.2 Licensee agrees to pay all charges resulting from issues caused by exceeding the recommended data specifications. (Exceeding the recommended data specifications may impact data integrity.) 2 6.2.3 Licensee agrees to pay when due (or reimburse Licensor, as applicable, for) any applicable sales, use, property, excise, and other similar taxes. A monthly interest charge at the rate of one and one-half percent (1-1/2%) or the maximum legal rate, whichever is less, will be assessed on all charges more than thirty (30) days past due. Licensee's obligation to pay the amounts due or to become due under this Section 6.0 shall be absolute and unconditional and shall not be subject to any reduction, setoff, defense, counterclaim, or deferment for any reason whatsoever. 7. OWNERSHIP The modifications to the System, including all intellectual property rights associated therewith, made or provided by Licensor pursuant to this Agreement, whether alone or with any contribution from Licensee or its personnel, shall be owned exclusively by Licensor. To the extent Licensee or its personnel may acquire any right or interest nn such modifications or associated intellectual property by operation of law, Licensee irrevocably assigns all such right and interest exclusively to Licensor. Licensee shall maintain and enforce agreements and policies with its personnel sufficient to give effect to the provisions of this Section 7. 8. LIMITED WARRANTY 8.1 Licensor warrants that it will render its services under this Agreement in a good and workmanlike manner. 8.2 As Licensor's sole responsibility and Licensee's exclusive remedy for any breach of subsection 8.1 above, Licensor shall make a reasonable effort to remedy any such breach reported to Licensor by Licensee within ninety (90) days following the provision of services or the date of required provision of services. 8.3 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, LICENSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ITS SERVICES, THE SYSTEM, THE DESIGN OR CONDITION OF THE EQUIPMENT OR ANY PROGRAMMING, OR ANY OUTPUT BASED ON USE OF THE SYSTEM, LICENSOR SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 9. GENERAL LIMITATION OF LIABILITY THE TOTAL LIABILITY OF THE LICENSOR (INCLUDING ITS SUBCONTRACTORS AND SUPPLIERS) FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE SHALL NOT EXCEED THE FEES ALLOCABLE TO THE SERVICE THAT GIVES RISE TO THE CLAIM. IN NO EVENT, INCLUDING NEGLIGENCE AND PRODUCT LIABILITY, WILL LICENSOR OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF DATA, LOST PROFITS, COST OF CAPITAL, CLAIMS OF LICENSEE FOR SERVICE INTERRUPTIONS OR FAILURE OF SUPPLY, AND COSTS AND EXPENSES INCURRED IN CONNECTION WITH LABOR, OVERHEAD, TRANSPORTATION, INSTALLATION, OR REMOVAL OF EQUIPMENT OR PROGRAMMING OR SUBSTITUTE FACILITIES OR SUPPLY SOURCES. 3 10. TERM 10.1 This Agreement shall commence on the date of Licensor's acceptance of this contract, as set forth at the end of this Agreement. Unless sooner terminated in accordance with this Section 10, this Agreement shall continue in effect for (1) year renewal terms. Agreement will be deemed renewed if payment of renewal invoice is made within thirty (30) days after the start of the renewal term. If payment is not made within sixty (60) days after the start of the renewal term, Licensor will cease providing maintenance services to Licensee and this Agreement will automatically terminate without further responsibility on Licensee or Licensor. 10.2 In addition to its termination rights set forth nl Section 10.1 above, Licensor may terminate this Agreement by giving written notice of termination to Licensee upon the occurrence of any of the following events: 10.2.1 Licensee defaults in the performance of any requirement or obligation created by this Agreement, the TMA Systems, L.L.C. License Agreement, any Equipment Lease Agreement, any Equipment Purchase Agreement, or any other agreement between Licensor and Licensee; 10.2.2 Licensee fails to make any payment to Licensor within thirty (30) days of its due date, whether under this Agreement, or the TMA Systems, L.L.C. License Agreement; 10.2.3 Licensee ceases doing business; 10.2.4 Licensee is the subject of any state or federal bankruptcy, insolvency, or similar proceeding, becomes insolvent, or makes an assignment for the benefit of creditors; 10.2.5 A receiver is appointed for a substantial part of Licensee's assets; 10.2.E Licensee becomes unable to pay its debts when due; 10.2.7 Any action is taken toward the liquidation or winding up of Licensee's business; 10.2.8 An agreement between Licensee and its creditors generally is entered into providing for extension or composition of Licensee's debt; or 10 .2.9 Licensee suffers a materially adverse change in its financial condition or operations. 10.3 Upon and after any termination of this Agreement: - 10.3.1 Licensee, its receivers, trustees, assigns, or other representatives shall iiiuuediately cease using and shall return without delay all properly belonging to Licensor, including, without limitation, all manuals andnlfornational materials furnished by Licensor to Licensee. - 10.3.2 Neither Licensee, its receivers, trustees, assigns, or other representatives shall, in advertising or otherwise, use or display any of Licensor's trademarks, trade names, or logos, or any name, mark, or logo that is confusingly siinilar to Licensors trademarks. 4 10.4 No termination of this Agreement shall release Licensee from any obligation to pay Licensor any amount that has accrued or become payable at or prior to the date of termination. 10.5 All communications from Licensee relating to the termniation of this Agreement shall be directed to Licensor at the address indicated on the first page of this Agreement. No sales person or field representative of Licensor shall be authorized to act or make any commitment for Licensor except pursuant to written instructions made and signed by a duly appointed officer of Licensor. 11. DELAYS The date on which Licensor's obligations are required to be fulfilled will be extended for a period equal to the time lost by reason of any delay arising directly or indirectly from (1) acts of God, unforeseeable circumstances, acts (including a delay or failure to act) of any governmental authority, war, riot, revolution, fires, floods, strikes, labor disputes, sabotage, or epidemics; (2) inability to perform due to causes beyond Licensor's reasonable control (3) inability to obtain timely instructions or information from Licensee, or necessary and proper labor, materials, components, facilities, or transportation to perform; or (4) any other cause beyond Licensor's reasonable control. The foregoing extension will apply even though such cause(s) may occur after Licensor's performance of its obligations has been delayed for other causes. 12. GOVERNMENTAL AUTHORIZATIONS Licensee will be responsible for timely obtaining all required authorizations. Licensor will not be liable if any authorization is delayed, denied, revoked, restricted, or not renewed and Licensee will not be relieved thereby of its obligations to pay Licensor under Section 6 above. 13. NOTICES Any notice to a party required or permitted under this Agreement shall be sufficiently given only when provided in writing, and either personally delivered, sent via certified or registered mail, or sent via facsimile with hardcopy sent via regular U.S. Mail within three (3) business days, to the party's address indicated herein. Licensee shall promptly give Licensor notice of any address change. 14. MISCELLANEOUS The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with provisions of this Agreement. This Agreement shall obligate and benefit the parties, their personal representatives, heirs, successors, and assigns. Licensor may assign all or any part of this Agreement, but no assignment or transfer of any interest in this Agreement may be made by Licensee without the prior written consent of Licensor. In the event that any portion of this Agreement is held unenforceable, the remainder of the provisions shall remain in full force and effect and the parties shall negotiate in good faith a substitute provision which most nearly affects the parties' intent in entering into this Agreement. This Agreement shall be governed by and construed under the laws of the State of Oklahoma. Licensee herein consents to venue and jurisdiction of both the state and federal courts of Tulsa County, Oklahoma. Any lawsuit seeking to enforce or interpret the terns of this Agreement shall be brought in the state or federal courts located in Tulsa County, Oklahoma. This Agreement constitutes the complete and entire agreement between the parties concerning the subject matter of the present transaction and supersedes any prior representations, understanding, communications, commitments, agreements or proposals, oral or written, concerning such transaction. No amendment or modification of this Agreement shall be effective unless made in writing and signed by Licensor and Licensee. Any provisions in any purchase order, quotation, acknowledgment or other forms or contract documents applicable to any service, performance, purchase, or other transaction that are inconsistent, or in conflict, with any of the provisions of this Agreement or the TMA Systems, L.L.C. License Agreement will be ineffective and inapplicable, unless the inconsistent or conflicting provisions are in a written agreement dated subsequent to the effective date of this Agreement and signed by Licensor. By execution hereof, the person signing for Licensee below certifies that he/she has read this Agreement and that he/she is duly authorized to execute this Agreement on behalf of the Licensee. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the above date. Licensor: TMA Systems, L.L.C. Licensee: City of Fort Worth By: By: 416t�.1+ Authorized Signature Authorized Signature Name: ;r • �► �'�`' "�— Name: � ���� � ��4 Fernando Costa Title ✓ ,P, 5 •� Title: Assist.-` City Manager © 2009, TMA Systems, L.L.C. (O]/01/09) ASSIST�INT �IT`f ATTC7RN��` 4FFlCf�1L i�EC�R� �lTlf ��CIr�ETAI,�� Te WORTH, TX TO TMA SYSTEMS, L.L.C. MAINTENANCE AGREEMENT This Addendum sets forth the modifications to the terms and conditions of the TMA Systems, L.L.C. Maintenance Agreement. Licensor and Licensee, intending to be legally bound, agree as follows: Pursuant to Section 6.2.3 The following language is added to this section: "Licensor accepts that Licensee is a tax exempt entity and shall not be liable for any taxes under the agreement." Pursuant to Section 9 This section is replaced in its entirety with the following language: "EXCEPT FOR DAMAGES FOR PERSONAL INJURY OR DAMAGES TO TANGIBLE PROPERTY CAUSED BY LICESOR, ITS AGENTS, OFFICERS, OR EMPLOYEES, THE TOTAL LIABILITY OF THE LICENSOR (INCLUDING ITS SUBCONTRACTORS AND SUPPLIERS) FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE SHALL NOT EXCEED TWO TIMES THE AMOUNT PAID FOR THESE SERVICES. IN NO EVENT, INCLUDING NEGLIGENCE, WILL TMA OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF DATA OR LOST PROFITS, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF TMA OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY." Pursuant to Section 10.1.1 The following language is added to this section: "In the event no funds or insufficient funds are appropriated by the Licensee in any fiscal period for any payments due hereunder, Licensee will notify Licensor of such occurrence and thise%greement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the Licensee of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated." Pursuant to Section 10.2.2 All prior language in this section is replaced with the following language: "Licensee fails to make any payment to Licensor within thirty (30) days of written notice of termination and following ten (10) business days to cure, whether under this Agreement, or the TMA Systems, L.L.C. License Agreement;" Pursuant to Section 10.2.E This section is omitted in its entirety. Pursuant to Section 10.2.9 This section is omitted in its entirety. Pursuant to Section 10.4 The following modification is made to this section: "Subject to Section 10.1.1," is added to the beginning of this section. Pursuant to Section 11 The following language is omitted from this section: "or necessary and proper labor, materials, components, facilities, or transportation to perform." Pursuant to Section 11 The following modification is made to this section: "The terms expressed are applicable to both parties." Pursuant to Section 13 The following language is added to this section: "Each party shall promptly give the other party notice of any address changes." Pursuant to Section 14 The following language is added to this section: "Licensee shall be notified of any assignment in writing and given thirty (30) days to terminate without penalty." Pursuant to Section 14 The following modification is made to this section: Each instance of the "State of Oklahoma" is replaced with the "State of Texas and each instance of "Tulsa County" is replaced with "Tarrant County." The parties have executed this addendum by their duly authorized representatives on the below date. TMA Sv By:K� Citv of Fort Worth By Name: � •, 5 � N � T' "yam Name: �er�aandcCosta Title: V'0, S � L." ��� �- T-� Title: Agsistr-"ry City Manager Date: `3/� :� Date: alp ASSISTANT CITY ATTORNEY . �FFIir1�� RECAR[� lTY SECRETARY F TRWARTH, TX