Loading...
HomeMy WebLinkAboutContract 31026 Skire,Inc. CITY Software License and Maintenance Agreement GIN R�GT TAy Order Form No. Order Form Number: 1 Effective Date: t.ROP4(No Later than Dec. 10,2004) 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")..,The Agreement contains important terms and conditions including among other things,disclaimers of warranties 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 A. Application:Unifier"8.1 (Enterprise Edition) B. Maximum number of Named Users:400 C. Term End Date: 1-Year Anniversary of the Effective Date D. Software License Fees:$360,000.00 E. Annual Maintenance and Support Fees:NA in IS`year. (Future Pricing for Annual Maintenance and Support Fees:Year 2: 17%of Software License Fee;The Maintenance Fees for years 3 and beyond shall be calculated using the Maintenance Fee for year 2 and shall be subject to a maximum increase on January 1 of each year based on the percentage increase in the Consumer Price Index for the prior year over the Consumer Price Index for the year in which the Agreement is signed.The annual Maintenance Fee shall be prorated for any partial calendar year included within the Maintenance Term and shall be paid in advance.Maintenance is not being purchased as part of this Order Form;if applicable,such purchases will be executed under a separate Order Form(s)). 2. Attachments(check all applicable attachments) X Software License and Maintenance Master Agreement 3, Customer Address and Contact Information Billing Information Project Manager Contact Information Contact: Name: Address: Phone: Email: Phone: Technical Contact Info Email: Name: Customer P.O.# 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. MWH Americas,Inc.("Customer") Skire,Inc. 309 West 7d'Street,Suite 1010 111 IndepeAidence Dr. Fort Wgth,T 6102 Menlo Par A 94025 By: CSJ ✓ By: Name: ��� C.� Name: 1 t a `( dlnj o t po u R Title: Title: C& ) Date Signed: \21°3-D&c Date Signed: Z.. Z 0 REV.04/04 Page 1 of 1 Skire,Inc. Software License and Maintenance Agreement This Software License,Maintenance and Services Agreement("Agreement")sets forth the terms and conditions under which Skire grants to Customer a limited license to one or more of Skire's proprietary software applications under the Unifieem suite of products. By installing, accessing or using the Application,or by utilizing Skire's services,Customer agrees to follow and be bound by all the terms,conditions and notices of this Agreement. 1. Definitions license granted herein;and(iii)make one(1)copy of the Application A. "Application"shall mean the specific Skire proprietary in machine-readable form solely for back-up purposes. (iv)install, software application(s)identified by name in an Order Form and as use,and allow copies of the Application to provide test and described in the Documentation and any Updates thereof and development environments as well as support possible high expressly excludes any 3`d party software or hardware necessary to availability and disaster recovery needs.The number of users shall install,access,operate and/or use Skire's applications. not exceed the licensed number of registered users. B. "Confidential Information"shall mean any non-public data, B. Restrictions. Customer shall not:(i)use any reverse information and other materials regarding the products,services or compilation,decompilation or disassembly techniques or other business of a party(and/or,if either party is bound to protect the methods to determine any source code,design structure,concepts and confidentiality of any third party's information,of a third party) construction method of the Application or replicate the functionality provided to either party by the other party where such information is of the Application for any purpose or create derivative works based marked or otherwise communicated as being"proprietary"or on the Application for any purpose;(ii)remove any proprietary "confidential"or the like,or where such information should,by its notices,labels,or marks in or on the Application or Documentation; nature,be reasonably considered to be confidential and/or proprietary (iii)reproduce,distribute,transfer,publicly display,resell,lease, Without limiting the foregoing,the Application,and all software, sublicense or loan the Application or Documentation to any other source code,inventions,ideas,know-how,approaches, party;(iv)use the Application or Documentation for any purpose methodologies,concepts,skills,tools,techniques,expressions, other than to support Customer's own internal business operations; processes,and documentation relating thereto constitutes (v)authorize any individual employed by,or acting under the Confidential Information of Skire. direction or control of,a direct competitor of Skire to be a Named C. "Customer"shall mean the MWH Americas,Inc.as User;(vi)make any copy of the Documentation without Stare's identified in the Order Form and/or proposal.After assignment of this express prior written consent;or(vii)make any copy of the agreement to the City of Fort Worth,Customer shall mean the City of Application except as expressly provided in this Agreement. Fort Worth. C. Reservation of Rights. All rights to the Application and D. "Documentation"shall mean user guides,installation Documentation not specifically granted herein are expressly reserved instructions,release notes and/or training manuals Skire provides to to Skire. Customer to assist in using the Application. Other contemporaneous D. Additional or Incremental Licenses.Customer may obtain or extraneous materials and communications,including but not additional licenses at the same price as stated in the Order Form or at limited to marketing collateral,proposals and presentations,are such lesser price that the Parties negotiate for the term end date expressly excluded from constituting Documentation. shown on the Order Form. The terms and conditions of this Software E. "Effective Date"shall mean the date indicated on the Order License and Maintenance Agreement shall apply to any additional Form. licenses purchased. F. "Named User"shall mean a named or specified(by password or other user identification)individual authorized by 3. Maintenance Customer to use the Application,regardless of whether such A. Description of Maintenance Services. Subject to the terns individual is actively using the Application at any given time. A and conditions of this Agreement,including without limitation the Named User may be internal to the Customer organization or external payment of all applicable Maintenance Fees,Skire shall provide to the Customer organization,such as a Service Provider(as defined maintenance and support for the Application during the Term as in Section 2(A)).H"Order Form"shall mean a document which described herein("Maintenance"). During Skire's normal business identifies the specific products purchased. hours(6 a.m.to 6 p.m.PT Monday through Friday excluding G. "Consumer Price Index"shall mean the Consumer Price Holidays),Skire shall provide technical support and assistance to any Index for all Urban Consumers,Dallas/Fort Worth Average,for the Named User who successfully completes formal Skire training. prior year over the Consumer Price Index the year in which the Customer shall report problems via Skire's then-current Customer Agreement is signed(as published by the United States Department Support contact method(s)posted on Skire's website at of Labor Statistics). http://www.skire.com. Skire will provide Customer with such subsequent releases,fixes and modifications of the Application that 2. License Grant are generally provided to Skire's customers who are active on A. Grant. Subject to the terms and conditions of this Maintenance,but shall not include any releases,options,modules or Agreement,including without limitation the full payment of the future applications or functionality that Skire offers separately to Software License Fee and Maintenance Fees by Customer to Skire, customers. Skire reserves the right to discontinue Maintenance on Skire grants to Customer for the Term specified in the Order Form any Application thirty-six(36)months after the release of a new (as defined in Section I 1 of this Agreement)a nonexclusive, version or release of such Application nontransferable limited right and license to:(i)install,use and allow B. Maintenance Renewals. Skire shall endeavor to invoice access to the Application for up to the number of Named Users Customer thirty(30)days prior to the expiration of the then-current identified in the Order Form for Customer's internal business Maintenance term,and Customer may accept such renewal purposes only;(ii)utilize the Application on any number of Maintenance under the terms of this Agreement by paying the invoice computers such that the use of the Application does not exceed the prior to the expiration of the then-current Maintenance term. If *SKIRE INC.CONFIDENTIAL*REV.11/03*Software Licensee Agreement*MWH Americas,Inc./City of Forth Worth* Page 1 of 5 Maintenance should terminate or expire,and Customer is in good 6. Title&Copyrights standing under this Agreement,Customer may reinstate Maintenance Title and copyrights in and to the Application and Documentation on payment of the cumulative accrued Maintenance Fees applicable and any copies thereof are owned and remain with Skire. Customer for the period during which Maintenance lapsed,plus Maintenance shall obtain no ownership rights,express or implied,or any other Fees for the then-current Maintenance period. rights in the Application and/or Documentation other than those C. Discontinuance of Maintenance. If Customer decides to expressly set forth herein. If Skire merges with any other company discontinue Maintenance,the Licensee granted and Customer's right or is taken over/purchased by a third-party or discontinues doing to use the Application shall continue unabated. business,Customer's right to use the Application shall continue D. Maintenance Fees, Maintenance Fees shall be$0 per year unabated. (year 1)for the life of this agreement and shall not be subject to increase.The Maintenance Fees for year 2 shall be 17%of the 7. Warranties Software License Fee shown on the Order Form.The Maintenance A. Limited Warranty. Skire warrants to Customer that for a Fees for years 3 and beyond shall be calculated using the period of one hundred eighty(180)days from the date of receipt that Maintenance Fee for year 2 and shall be subject to a maximum the unmodified Application when properly installed and used in increase on January I of each year based on the percentage increase accordance with the Documentation,is capable of operating in in the Consumer Price Index for the prior year over the Consumer substantial conformance with the Documentation.Skire warrants to Price Index for the year in which the Agreement is signed.The Customer that it shall use commercially reasonable professional annual Maintenance Fee shall be prorated for any partial calendar practices in delivering the Services and Deliverables. These year included within the Maintenance Term and shall be paid in warranties extend only to Customer. EXCEPT FOR THE LIMITED advance. WARRANTY DESCRIBED IN THIS SECTION,THE APPLICATION, SERVICES AND DELIVERABLES ARE PROVIDED"AS IS"AND SKIRE 4. Customer Responsibilities MAKES NO OTHER WARRANTIES,EXPRESS,IMPLIED OR A. Project Manager, Customer shall appoint a project STATUTORY,AND EXPRESSLY DISCLAIMS ANY IMPLIED manager with the sole authority to communicate Customer decisions WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,GOOD TITLE,SATISFACTORY QUALITY to Skire. As reasonably requested by Skire,Customer will provide OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, materials and communicate decisions to Skire in a timely manner. SKIRE MAKES NO WARRANTY THAT:(i)THE APPLICATION, B. Equipment. Customer is solely responsible for,at SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED,TIMELY, Customer's own expense,all equipment,facilities and services SECURE,OR ERROR-FREE;(ii)THE RESULTS OBTAINED FROM USE necessary to use the Application,including without limitation OF THE APPLICATION,SERVICES OR DELIVERABLES WILL BE computer hardware,software,and broadband Internet access. EFFECTIVE,ACCURATE OR RELIABLE;(iii)THE QUALITY OF ANY C. Service Providers. Customer is solely responsible for all PRODUCTS OR SERVICES PURCHASED OR OBTAINED BY uses of the Application by Service Provider(s),including but not CUSTOMER VIA THE APPLICATION WILL MEET CUSTOMER'S EXPECTATIONS;OR(iv)THE APPLICATION IS NOT SUSCEPTIBLE limited to,ensuring that Service Provider(s)use of Application is in TO INTRUSION OR COMPUTER VIRUS INFECTION OR THE LIKE. full accordance with all the terms and conditions of this Agreement TO THE EXTENT PERMISSIBLE,ANY IMPLIED WARRANTIES THAT and only for use directly with Customer as contemplated in this CANNOT BY LAW BE EXCLUDED ARE LIMITED TO NINETY DAYS. Agreement. B. Exclusive Remedies. For any breach of the Application D. Password Security. Customer shall ensure that only warranties set forth in Section 7(A)above,Customer's exclusive authorized individuals within Customer and Service Provider(s)have remedy and Skire's entire liability will be to use commercially access to usernames and passwords providing access to the reasonable efforts to correct or provide a workaround for Application and shall not disclose such usernames and passwords to reproducible Application errors that cause the breach of warranty. If any other individual. Customer acknowledges and agrees that it is Skire is unable to make the Application perform as warranted within solely responsible for strictly maintaining the confidentiality and ninety(90)days of notice,then Customer shall be entitled to a pro- integrity of such usernames and passwords. Customer shall notify rated refund of the applicable Software License Fee paid to Skire for Skire immediately if the security or integrity of a username or the period following notification to Skire of the nonconformance. password is compromised. For any breach of the Services or Deliverables warranties set forth in Section 7(A)above,Customer's exclusive remedy and Skire's entire 5. Fees and Payment liability will be to use commercially reasonable efforts to correct or A. Software Fees. Customer shall pay Skire the Software provide a workaround for Services or Deliverables errors that cause License Fee and Annual Maintenance Fees as set forth in the Order the breach of warranty. If Skire is unable to make the Services or Form(s). Deliverables perform as warranted within ninety(90)days,Customer B. Software Payment Terms. The Software License Fee and shall be entitled to a refund of the pro rata amount of fees allocable to the 1 st payment of the Maintenance Fee are due and payable within such Services as determined by Skire. In order to receive remedies thirty(30)days from the Effective Date. for the Services or Deliverables warranties set forth above, C. Late Payment. In addition to other remedies available to deficiencies in the Services or Deliverables must be reported by Skire,any payment due to Skire by Customer not received by Skire Customer to Skire in writing within thirty(30)days of the delivery of when due will bear interest at a rate of 1'/Z%per month or the the applicable Services or Deliverables to Customer. maximum rate allowed by law,whichever is lower,from the date due until paid. 8. Limitation of Liability D. Taxes. All charges and fees listed on the Order Form Notwithstanding anything to the contrary in this Agreement, exclude taxes and mandated withholdings. If Skire is required to pay Customer agrees that regardless of the form of any claim Customer sales,use,value-added or other taxes resulting from sales made under may have under this Agreement,Skire's entire liability for any this Agreement,then such taxes will be billed to Customer and paid damages to Customer or to any other party shall not exceed the fees to Skire by Customer. paid to Skire under this Agreement for the twelve(12)months prior to the event giving rise to such liability. NEITHER PARTY SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY OR A THIRD *SI,CM INC.CONFIDENTIAL*REV.11/03*Software Licensee Agreement*MWII Americas,Inc./City of Forth Worth* Page 2 of 5 PARTY FOR ANY SPECIAL,INDIRECT,INCIDENTAL,EXEMPLARY, disclosure under Chapter 552 of the Texas Government Code,the PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING,BUT NOT Public Information Act;therefore,each party's confidentiality LIMITED TO,DAMAGES FOR LOST PROFITS,LOST REVENUES OR obligations hereunder shall not apply to information which:(i)is LOST DATA,ARISING UNDER CONTRACT,NEGLIGENCE,STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, already known to the Receiving Party prior to disclosure by the REGARDLESS OF WHETHER THAT PARTY HAS BEEN INFORMED Disclosing Party;(ii)becomes publicly available without fault of the OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. Receiving Party;(iii)is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure;(iv)is approved 9. Indemnification for release by written authorization of the Disclosing Party;(v)is A. Infringement Claims. Subject to Section 9(13)below,Skire developed independently by the Receiving Party without use of or shall defend any third party claim or action against Customer to the access to the Disclosing Party's Confidential Information;or(vi)is extent such suit or action is based on a claim that Customer's required to be disclosed by law or governmental regulation,provided permitted use of the Application or Deliverables under this that the Receiving Party provides reasonable notice to Disclosing Agreement constitutes an infringement of a United States patent, Party of such required disclosure and reasonably cooperates with the trademark,trade name,trade secret,copyright or other U.S. Disclosing Party in limiting such disclosure. In the event there is a intellectual property right,and Skire will pay those damages and request for inspection or reproduction of any confidential or proprietary j costs finally awarded against Customer in any monetary settlement of information of Skire under Chapter 552,Customer will notify Skire of such suit or action which are specifically attributable to such claim. such request,cooperate with Skire in limiting disclosure,and give Skire This indemnity does not apply to any claims based on:(i)use of the reasonable opportunity to explain why the requested information Application or Deliverables in violation of this Agreement or in a should not be open for public inspection.Information designated as manner not provided for or described in the Documentation or "Confidential,"or"Proprietary,"shall not be open for public inspection Deliverables;(ii)use of the Application in combination with any at any time,unless Customer is required to make such documents other software;or(iii)Skire's compliance with Customer's available as a result of a decision of the Texas Attorney General instructions,designs or specifications. If any portion of the pursuant to the Texas Public Information Act,by other applicable law, Application or Deliverables becomes,or in Skire's opinion is likely or judicial order. to become,the subject of a claim of infringement,then Skire may,at its option and expense,procure for Customer the right to continue 11. Term&Termination using the Application or Deliverables,or replace or modify the A. Term. This Agreement shall commence on the Effective affected portion of the Application or Deliverables so that it becomes Date indicated on the Order Form and shall continue until the Term non-infringing. If neither alternative is reasonably available,Skire End Date defined in such Order Form("Term")unless and until may terminate this Agreement and Customer shall have no further terminated in accordance with the terms of this Agreement. payment obligations hereunder except with respect to accrued fees. B. Termination. This Agreement may be terminated by either THE FOREGOING STATES SKIRE'S ENTIRE LIABILITY FOR party upon sixty (60)days written notice if the other party shall be in INFRINGEMENT CLAIMS. breach or default of any material provision of this Agreement; B. Infringement Conditions. Skire's indemnity obligations provided however that the breaching party may avoid termination if, under Section 9(A)are contingent upon:(i)Customer giving prompt before the end of such 30-day period,the breaching party cures such written notice to Skire of any such claim;(ii)Skire having sole breach. Notwithstanding this Section 11(B),any use of the control of the defense or settlement of such claim;and(iii)at Skire's Application by Customer or Service Provider(s)beyond the license request and expense,Customer cooperating in the investigation and granted shall be deemed a material breach of this Agreement defense of such claim(s). justifying,at Skire's sole discretion and without prior notice, termination of this Agreement and/or ternnation of Customer's 10. Confidentiality/Confidential Information license to the Application A. Disclosure and Use.The Confidential Information C. Effect.Upon any termination of this Agreement by Skire disclosed by either party("Disclosing Party")to the other pursuant to Section l l(B)of this Agreement,or upon any termination ("Receiving Party")constitutes the confidential and proprietary by Customer other than a termination for Skire's material breach, information of the Disclosing Party and the Receiving Party agrees to Customer shall be liable for all fees due pursuant to this Agreement, treat all Confidential Information of the other in the same manner as including the Software License Fee and all Maintenance Fees due for it treats its own similar proprietary information,but in no case shall the Term. Upon termination of this Agreement for any reason the degree of care be less than reasonable care. The Receiving Party whatsoever,(i)Customer must immediately cease using the shall use Confidential Information of the Disclosing Party only in Application;(ii)all rights to the Application granted to Customer performing its obligations under this Agreement and shall retain the shall immediately cease;and(iii)Customer shall promptly destroy Confidential Information in confidence and not disclose to any third and erase all copies(including back-up copies)of the Application. party(except as authorized under this Agreement)without the The following provisions of this Agreement will survive any Disclosing Party's express written consent. The Receiving Party. termination or expiration of this Agreement:Sections 2,4,5,6,7,8, shall disclose the Disclosing Party's Confidential Information only to 9, 10, 11,and 12. those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, 12. General Provisions and such employees and contractors must be bound by this A. Assignment. Skire understands that MWH will assign this Agreement or have entered into agreements with the Receiving Party Agreement to the City of Fort Worth,a municipal corporation. Skire containing confidentiality provisions covering the Confidential hereby authorizes and approves such assignment. Other than the Information with terms and conditions at least as restrictive as those assignment to the City of Fort Worth,neither this Agreement nor any set forth herein. rights,licenses or obligations hereunder,may be assigned by any B. Exceptions.Notwithstanding the foregoing,Skire party without the prior written consent of the non-assigning party. understands and acknowledges that Customer is a public entity under Notwithstanding the foregoing,either party may assign this the laws of the State of Texas,and as such,all information held by Agreement to any acquirer of all or of substantially all of such party's Customer or that Customer has a right of access to is subject to equity securities,assets or business related to the subject matter of *SICM INC.CONFIDENTIAL*REV.11/03*Software Licensee Agreement*MWII Americas,Inc./City of Forth Worth* Page 3 of 5 this Agreement. Any attempted assignment in violation of this government,flood,fire,earthquake,civil unrest,stoke or labor Agreement shall be void and without effect. problems,onany other reason where failure to perform is beyond the B. Compliance Audit. Skire may, at its expense, perform-an reasonable control of the non-performing party. audit of Customer and/or Service Provider(s)use of the Application. H. Governing Law and Venue. This Agreement shall be Any such audit shall be made upon thirty (30)business days notice governed by and construed under the laws of the State of Texas and and during regular business hours at Customer and/or Service the United States without regard to conflicts of laws provisions Provider(s) facilities. If such audit reveals Customer and/or Service thereof. Unless waived by Skire in writing for the particular instance, Provider(s)use of Application beyond any terms of this Agreement, the exclusive jurisdiction and venue for actions related to the subject Customer shall pay Skire's reasonable expenses associated with such matter hereof shall be the Texas state courts and the U.S.federal audit. These remedies shall be in addition to, and shall not limit, courts for the Northern District of Texas—Fort Worth Division. Skire's ability to terminate this contract based on material breach or L No Restrictions. Customer understands and acknowledges pursue any other remedies available under law or equity. that Skire is in the business of providing products and services which C. Right to Audit Skire agrees that the Customer shall,until the are or may be substantially similar to the Application,and expiration of three(3)years after final payment under this contract,have Deliverables to third parties. Customer understands and agrees that access to and the right to examine and photocopy any directly pertinent this Agreement does not prevent Skire from pursuing its stated books, documents, papers and records of Skire involving transactions business with such third parties. relating to this contract. Skire agrees that the Customer shall have J. Notices. All notices required or permitted in this access during normal working hours to all necessary Skire facilities and Agreement shall be made in writing by registered or certified mail, shall be provided adequate and appropriate work space in order to return receipt requested,addressed to the MWH Americas,Inc.at the conduct audits in compliance with the provisions of this section. The address indicated in the Agreement,or as later amended,and shall be Customer shall give Skire thirty(30)business days notice of intended deemed given upon receipt or confirmation of receipt.After the audits. Skire further agrees to include in all its subconsultant assignment to the City of Fort Worth,notice shall be given in writing agreements hereunder a provision to the effect that the subconsultant by Skire to the Director,Department of Information Technology agrees that the Customer shall, until the expiration of three(3)years Solutions,City of Fort Worth, 1000 Throckmorton,Fort Worth, after final payment under the subcontract,have access to and the right Texas 76102. to examine and photocopy any directly pertinent books, documents, K. Promotion. Subject to prior written authorization by the papers and records of such subconsultant, involving transactions to City Manager of the City of Fort Worth or his designee,Customer the subcontract, and further, that the Customer shall have access agrees to allow Skire to:(i)use Customer's name and logo as a Skire during normal working hours to all subconsultant facilities,and shall customer in Skire's marketing materials including its website without be provided adequate and appropriate work space,in order to conduct implying Customer's endorsement of Skire or the Application;(ii) audits in compliance with the provisions of this article together with issue a press release indicating that Customer has agreed to purchase subsection(3)hereof. Customer shall give sub-consultant reasonable Application licenses;(iii)use Customer as a telephone reference for advance notice of intended audits.Sldre and subconsultant agree to the Application,upon obtaining Customer's prior consent and at photocopy such documents as may be requested by the Customer. The times that are convenient to Customer;and(iv)publish a case study Customer agrees to reimburse Skire for the cost of copies at the rate that describes how the Application was used to solve Customer's published in the Texas Administrative Code in effect as of the time business needs,subject to Customer's prior review and written copying is performed approval,such approval being in addition to the general authorization D. Disclosure. Skire acknowledges to the Customer that it has described above. made full disclosure in writing of any existing conflicts of interest or L. Relationship of the Parties. The relationship of Skire and potential conflicts of interest,including personal financial interest,direct Customer established by this Agreement is that of independent or indirect,in property abutting the proposed PROJECT and business contractor,and nothing contained in this Agreement shall be relationships with abutting property cities. Skire further aclmowledges construed to give either party the power to direct or control the day- that it will make disclosure in writing of any conflicts of interest that to-day activities of the other or to constitute the parties as partners, develop subsequent to the signing of this contract and prior to final franchisee-franchiser,joint venturers,co-owners or otherwise as payment under the contract. participants in a joint or common undertaking,or otherwise give rise E. Entire Agreement. Provided that the parties have not to fiduciary obligations between the parties. entered into a separate definitive agreement encompassing all of the M. Severability. Should any court of competent jurisdiction material categories of terms and conditions contained herein signed declare any term of this Agreement void or unenforceable,such by duly authorized representatives of each party;this Agreement,and declaration shall have no effect on the remaining terms,which shall any attachments and attached agreements hereto,constitutes the continue in full force and effect. entire,final,complete and exclusive agreement between Skire and N. Titles and Subtitles. The titles and subtitles used in this Customer and supersedes all previous agreements or representations, Agreement are used for convenience only and are not to be oral or written,including but not limited to any proposals,relating to considered in construing or interpreting this Agreement. the subject matter of this Agreement. This Agreement may not be O. Waiver. The failure of either party to enforce any rights modified or amended except in writing signed by a duly authorized granted hereunder or to take action against the other party in the representative of each party. Both parties acknowledge having event of any breach hereunder shall not be deemed a waiver by that carefully read the terms and conditions set forth in this Agreement party as to subsequent enforcement of rights or subsequent actions in and all attachments hereto,understand all terms and conditions,and the event of future breaches. agree to be bound thereby. P. Source Code Escrow. Within sixty(60)days from the F. Compliance with Laws. Customer shall use the issuance of the Customer purchase order and a signed copy of the Application,Deliverables and Documentation in compliance with all Order Form and contemporaneous with the payment of all fees due at applicable laws,statutes,rules and regulations. such time,Skire will deposit with Escrow Associates,LLC,its G. Force Maieure. Except for the obligation to make escrow agent,the source code for the Application identified in the payments,nonperformance by either party shall be excused to the Order Form("Escrow Material"),such deposit being made pursuant extent that performance is rendered impossible by acts of God,acts of to the terms of a Technology Escrow Agreement,a copy of which is *SK RE INC.CONFIDENTIAL*REV.11/03*Software Licensee Agreement*MWH Americas,Inc./City of Forth Worth* Page 4 of 5 attached hereto as Exhibit"A". Provided Customer has complied transaction,reference and control data. The Customer may not with all material terms and conditions,including all payment modify any licensed Software. The Customer may combine such obligations and is an active paying subscriber to the Application, Software with other programs or materials,provided that upon Customer shall be entitled to receive the Escrow Material if Skire (i) discontinuance of use of the Licensed Materials or termination of this becomes or declares that it is insolvent or bankrupt,(ii)becomes or License,the Skire application Software will be returned to Skire. declares that it is the subject of any proceedings relating to its Skire may not use,license or sell any work product(including,but liquidation or insolvency,(iii)appoints,has appointed on its behalf, not limited to,interfaces,external applications,reports,forms, or consents to the appointment of,a receiver or similar officer,of or workflows and policies)developed by the Customer. The Customer with respect to all or substantially all of its assets under any shall own all intellectual and other property rights to any work bankruptcy,insolvency,or other similar law,or(iv)makes an product developed by the Customer.An individual authorized by assignment for the benefit of all or substantially all of its creditors. Customer to access the Application database directly(without use of Q. Modifications. The Customer may modify those an Application username and password)for audit purposes shall be components of the Unifier Enterprise Edition,such as workflow, excluded from constituting a Named User provided that such usage code tables,code mappings,business rules and procedural controls does not circumvent the intent of this Agreement and provided that that are accessible to Administrative Users of the applications.The no more than three individuals access the Application under the Customer shall own and maintain all data in the system,including aforementioned exclusion within a 12-month period. IN WITNESS WHEREOF,the parties by their duly authorized representatives agree to be bound by all the terms and conditions of the Master Agreement. MWH Americas,Inc.("Customer") Skire,Inc. 309 West 7s'Street,Suite 1010 111 Independence Dr. Fort Worth,TX,76102 Menlo Park,CA 94025 c 'r � k By: By: Name:Todd Papes Name:Massy Mehdipour Title:Vice President I ( Title:Chief Executive Officer Date Signed: Date Signed: 12— 12- � *SKM INC.CONFIDENTIAL*REV.11/03*Software Licensee Agreement*MWH Americas,Inc./City of Forth Worth* Page 5 of 5 Skire,Inc. Software License and Maintenance Agreement Exhibit A Technology Escrow Agreement j i l i I I *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH/City of Forth Worth* Page 1 of 13 Two-Party (Master) Agreement Among Software Developer and Escrow Associates, LLC The two-party escrow agreement allows numerous licensees and software products to be protected under a single escrow contract with a single set of escrow conditions. Future additions and changes to this escrow arrangement can be made under the discretion of the Developer. Multiple licensee service levels can be managed under a single escrow agreement, an exclusive industry service by Escrow Associates, LLC. *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH/City of Forth Worth* Page 2 of 13 Two-Party Escrow Agreement This Technology Escrow Agreement ("Agreement") between Escrow Associates, LLC ("Escrow Associates") and Skire, Inc. ("Developer") is effective on this 14th day of March 2003 (the "Effective Date"). Recitals Whereas, Developer I'icenses technology to Licensee(s) in the form of software object code (the "Software") pursuant to a license or subscription agreement ("License Agreement"). The source code is defined as the Software in source code form, including all relevant documentation and instructions necessary to maintain, duplicate, and compile the source code (the "Source Code"). The Source Code is necessary to maintain and support the Software as defined in the License Agreement(s). The Source Code and any other components Developer provides which are related to building and maintaining the Software identified on Exhibit B (as the same may be modified herein) are hereafter referred to collectively as the deposit materials ("Deposit Materials"). Whereas, the purpose of this Agreement is to protect Developer's ownership and confidentiality of the Deposit Materials and to protect a Licensee's legitimate use of the Deposit Materials as defined by the License Agreement(s). Further, this Agreement is intended to provide for certain circumstances under which the Licensee(s)shall be entitled to receive the Deposit Materials held in escrow by Escrow Associates to continue its legitimate use and support of the Software. Whereas, the Developer hereby designates and appoints Escrow Associates as the escrow agent under this Agreement. Escrow Associates hereby accepts such designation and appointment and agrees to carry out the duties of escrow agent pursuant to the terms and provisions of this Agreement. Escrow Associates is not a party to, and is not bound by, any agreement that might be evidenced by, or might arise out of, any prior or contemporaneous dealings between Developer and Licensee(s)other than as expressly set forth herein. NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, covenant and agree as follows: 1. Deposit Materials (a) Initial Deposit- Developer shall submit the initial Deposit Materials to Escrow Associates within thirty (30) days of the Effective Date or sixty (60) days after development of the Deposit Materials is completed. Developer shall complete and deliver with all Deposit Materials a form as shown herein as Exhibit B, which shall then become part of this Agreement. Escrow Associates shall notify Developer within ten (10) days of receipt of the initial Deposit Materials. Escrow Associates has no obligation with respect to the initial Deposit Materials for delivery, functionality, completeness, performance or initial quality. (b) Deposit Material Updates - Developer shall submit updates to the initial Deposit Materials to Escrow Associates within ninety (90)days of any material modification, *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH/City of Forth Worth* Page 3 of 13 II upgrade or new release of the Software. Developer shall complete and deliver with all updates to the Deposit Materials an amended Exhibit B form, which shall additionally become part of this Agreement. Escrow Associates shall notify Developer within ten (10) days of receipt of updates to the Deposit Materials, and also notify those Licensees designated to receive such notices per Exhibit C or Rider C as may be amended from time to time. Escrow Associates has no obligation with respect to the updates to the Deposit Materials for delivery, functionality, completeness, performance or initial quality. (c) Electronic Deposit— In the event the Developer elects to utilize electronic means to transfer the Deposit Materials to Escrow Associates, whether through a service provided by Escrow Associates or other means, Escrow Associates shall not be liable for transmissions that fail in part or in whole, are lost, or are otherwise compromised during transmission. Furthermore, Escrow Associates shall not be liable for any subsequent services that may or may not be delivered as a result of a failed transfer. Escrow Associates shall not be liable to Developer or Licensee(s)for any encrypted update, or any part thereof, that is transmitted over the Internet to Escrow Associates' FTP Site but is not received in whole or in part, or for which no notification of receipt is given. (d) Duplication of Deposit Materials - Escrow Associates may duplicate the Deposit Materials only as necessary to comply with the terms of this Agreement. Escrow Associates at its sole discretion may retain a third party for the purpose of duplicating the Deposit Materials only as necessary to comply with the terms herein. All duplication expenses shall be borne by the party requesting duplication. (e) Deposit Material Verification— Upon Developer's prior written consent, Escrow Associates may be retained by separate agreement or by alternative means, to conduct a test of the Deposit Materials to determine the completeness and accuracy of the Deposit Materials. Escrow Associates shall be liable for any actions taken on the part of any third party with regards to the Deposit Materials. 2. Licensee(s) - From time to time, Developer may, at its sole discretion, add or remove Licensee(s)as beneficiaries to this agreement utilizing the Exhibit C form herein. Any current Licensee shall have the right to request a release of the Deposit Materials only if (i) Licensee is a party to a License Agreement with the Developer that is in force and not in default, (ii) all fees due are paid to Escrow Associates and (iii)the Release of Deposit Materials provisions of Section 7 herein are met in full. 3. Term (a)Term of Agreement—The term of this Agreement shall be for a period of one (1) year from the Effective Date. At the end of the initial and each subsequent term, this Agreement shall automatically renew for an additional one (1) year term unless terminated according to the terms herein. (b)Termination of Agreement-This Agreement may be terminated as follows: i. The Developer provides written notice to Escrow Associates of its desire to terminate the agreement, or ii. The Deposit Materials have been released in accordance with the terms hereof. *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH/City of Forth Worth* Page 4 of 13 (c) Termination for Non-Payment In the event that full payment of any or all fees due to Escrow Associates by Developer under this Agreement have not been received by Escrow Associates within thirty (30)days of the date payment is due, Escrow Associates will notify Developer of the delinquent fees. If the delinquent fees are not received within thirty (30) days of the delinquency notification, Escrow Associates shall notify the Licensee(s) of the option to remit payment of the fees. If the delinquent fees are not received within ninety (90) days of the delinquency notification, Escrow Associates shall have the right to terminate this Agreement. (d) Return of Deposit Materials—Upon termination of this Agreement for any reason other than in the event all Deposit Materials have been released, Escrow Associates shall return the Deposit Materials to the Developer via commercial courier to the address of the Developer shown in this Agreement, provided that all fees due Escrow Associates are paid in full. If two (2) attempts to return Deposit Materials via commercial courier to the Developer fail or the Developer does not accept the Deposit Materials, Escrow Associates shall destroy the Deposit Materials. 4. Fees (a) Payment- Upon receipt of signed Agreement or initial Deposit Materials, whichever comes first, Escrow Associates will submit an initial invoice to Developer for amount shown on Exhibit A attached hereto. If payment is not received, Escrow Associates shall have no obligation to perform its duties under this Agreement. Developer agrees to pay to Escrow Associates all additional fees for services rendered related to this Agreement as shown on Exhibit A. The fee for any service that is not expressly covered in Exhibit A shall be established by Escrow Associates upon request. All fees are due within 30 days of invoice date.. Escrow Associates may amend Exhibit A at any time upon sixty (60)days written notice to Developer, provided however that in no case shall Escrow Associates raise any of the fees listed in Exhibit A by more than 5%. (b) Currency-All fees are in U.S. dollars and payment must be rendered in U.S. dollars unless otherwise agreed to in advance by Escrow Associates. 5. Indemnification -With the exception of gross negligence, willful misconduct or intentional misrepresentation on behalf of Escrow Associates, Developer and Licensee(s)shall,jointly and severally, indemnify and hold harmless Escrow Associates and each of its directors, officers, agents, employees, members and stockholders ("Escrow Associates Indemnities") absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys'fees and costs, that may be asserted against any Escrow Associates Indemnitee in connection with this Agreement or the performance of Escrow Associates or any Escrow Associates Indemnitee hereunder. 6. Developer's Representations and Warranties (a)The Deposit Materials as delivered to Escrow Associates are a copy of Developer's proprietary information corresponding to that described in Exhibit B and *SKIRE CONFIDENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH/City of Forth Worth* Page 5 of 13 are capable of being used to generate the Software. Developer shall update the Deposit Materials as provided for in the License Agreement(s) and/or as provided for herein. The Deposit Materials shall contain all information necessary to enable a reasonably skilled and experienced software programmer to understand, maintain and correct the Deposit Materials. (b) Developer owns the Deposit Materials and all intellectual property rights therein free and clear of any liens, security interests, or other encumbrances. 7. Release of Deposit Materials (a) Release -The Deposit Materials, including any copies thereof, will be released to the Licensee(s) after the receipt of the written request for release only in the event that the release procedures set forth in Section 7(a)-(e) is followed and: i. Developer notifies Escrow Associates in writing by a Duly Authorized Representative of Developer(as defined in this Agreement Section 12(j))to effect such release; or ii. Licensee(s) makes written request to Escrow Associates; and a. Licensee(s) asserts that Developer has ceased its on-going business operations or has filed for bankruptcy; and b. Licensee(s) asserts that Licensee(s) is not in default on any material term of the License Agreement and is current on all payments due in accordance with the License Agreement: and b. Licensee(s) includes a written statement that the Deposit Materials will be used in accordance with the terms of the License Agreement(s); and c. Licensee(s) includes specific instructions for the delivery of the Deposit Materials. (b) Developer Request for Release- If the provisions of Section 7(a)(i)are met, Escrow Associates will release the Deposit Materials to Licensee(s)within ten (10) business days. (c) Licensee Request for Release - If the provisions of Section 7(a)(ii) are met, Escrow Associates will within ten (10) business days forward a complete copy of the request to a Duly Authorized Representative of Developer and contact such duly Authorized Representative of Developer via telephone during Developer normal business hours to inform him/her of said action. Developer shall have thirty (30) days to make any and all objections to the release known to Escrow Associates in writing. If after thirty (30) days Escrow Associates has not received any written objection from Developer, Escrow Associates shall release the Deposit Materials to the Licensee(s) as instructed by the Licensee(s). (d) Developer Objection to Release- Should the Developer object to the request for release by Licensee(s) in writing, Escrow Associates shall notify the Licensee(s) in writing within ten (10) business days of Escrow Associates receipt of said objection and shall notify both parties that there is a dispute to be resolved pursuant to Section 8 (Dispute Resolution)of this Agreement. Escrow Associates will continue to hold the Deposit Materials without release pending (a) instructions from Developer; (b) dispute resolution according to Section 8 (Dispute Resolution); or (c) order from a court of competent jurisdiction. *SKIRE CONFI]DENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MVirH/City of Forth Worth* Page 6 of 13 (e) Right to Use Following Release - Unless otherwise provided in the License Agreement(s), upon release of the Deposit Materials in accordance with this Section 7, Licensee(s) shall have the right to use the Deposit Materials for the sole purpose of continuing to support its licensed usage afforded to Licensee(s) by the License Agreement(s). Licensee(s) shall be obligated to maintain the confidentiality of the released Deposit Materials. Any and all modifications or derivative works created through use of the Deposit Materials shall be deemed as the Software governed by the terms of the License Agreement(s). 8. Dispute Resolution - Except as expressly provided for herein, any dispute or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled in the State of California by a court of competent jurisdiction. Developer and Licensee(s)jointly agree to reimburse Escrow Associates for any and all costs incurred as a result of any Dispute Resolution including attorney's fees. 9. Confidentiality- Except as otherwise required to carry out its duties under this Agreement, Escrow Associates shall hold in strictest confidence and not permit any third party access to nor otherwise use, disclose, transfer or make available the Deposit Materials except as otherwise provided herein, unless consented to in writing by Developer. 10. Limitation of Liability- Under no circumstance, other than willful misconduct or gross negligence on the part of Escrow Associates, its representatives or subcontractors, shall Escrow Associates be liable for any special, incidental, or consequential damages (including lost profits) arising out of this Agreement even if Escrow Associates has been apprised of the possibility of such damages. In performing any of its duties hereunder, Escrow Associates shall not incur any liability to any party for any damages, losses, or expenses, except for willful misconduct or gross negligence on the part of Escrow Associates, its representatives or subcontractors, 11. Notices - Notices shall be deemed received on the third business day after being sent by first class mail, or on the following day if sent by commercial express mail. All notices under this Agreement shall be in writing and addressed and sent to the person(s) listed in the space provided below: Developer Company: Skire, Inc. Contact: Sateez Kadivar Title: Senior Manager, Sales Operations Address: 111 Independence Dr. City, State, Zip: Menlo Park, CA 94025 Telephone: 650-289-2603 Fax: 650-289-2650 Email: skadivar(a-),skire.com Billing Contact: SAME *SKIRE CONFI]DENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH City of Forth Worth* Page 7 of 13 Escrow Associates Attn: Contracts Administration 1010 Huntcliff, Suite 1350 Atlanta, GA 30350 USA Telephone: 800-813-3523 Fax: 770-518-2452 Email: info@escrowassociates.com 12. Miscellaneous (a) Counterparts -This Agreement may be executed in any number of multiple counterparts, each of which is to be deemed an original, and all of such counterparts together shall constitute one and the same instrument. (b) Entire Agreement-This Agreement supersedes all prior and contemporaneous letters, correspondences, discussions and agreements among the parties with respect to all matters contained herein, and it constitutes the sole and entire agreement among them with respect thereto. (c) Limitation of Effect-This Agreement pertains strictly to the escrow services provided for herein and does not modify, amend or affect any other contract or agreement of one or more of the parties. The terms and provisions of the License Agreement(s), as the same may be physically modified by the terms and provisions hereof, shall continue in full force and effect and be binding upon and inure to the benefit of the parties hereto, their legal representatives, successors and assigns. (d) Modification -This Agreement shall not be altered or modified without the express written consent of all parties. (e) Survival of Terms -All obligations of the parties intended to survive the termination of this Agreement, including without limitation, are the provisions of paragraphs 3 (Term), 4 (Fees), 5 (Indemnification), 8 (Dispute Resolution), 10 (Limitation of Liability), and 12 (Miscellaneous)which shall survive the termination of this Agreement for any reason. (f) Governing Law-This Agreement shall be governed by the laws of the State of California. (g) Successors and Assigns-This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties, provided, however, that Licensee(s) shall have no right to assign any rights hereunder or with respect to the Deposit Materials except as permitted with respect to assignment of Licensees' rights under the License Agreement(s). (h) Duly Authorized Representatives—A Duly Authorized Representative of Developer shall be defined as either Sateez Kadivar or Massy Mehdipour, and only such persons may in writing name another individual to be a Duly Authorized Representative of Developer. (Signatures are on following page. Remainder of this page intentionally left blank.) *SKIRE CONFI]DENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH City of Forth Worth* Page 8 of 13 IN WITNESS WHEREOF, the parties have executed this Agreement by and through their duly authorized agents as of the Effective Date. Developer Signature: Name: Title: Company: Date: Contract Negotiated by: Negotiator Telephone: Escrow Associates, LLC Signature: Name: Title: Date: *SKIRE CONFI]DENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH City of Forth Worth* Page 9 of 13 Exhibit A Schedule of Fees Initialization Fee $900 (First-year fee only. Includes all contract review,modification and set-up of account.) Annual Maintenance Fee $ 1200 (Annual fee. Includes escrow deposit maintenance,all account activity notifications, unlimited escrow deposit material updates, online account information access,electronic depositing option, two(2)cubic ft. storage allowance.) Licensee Options Standard Licensee Fee $200 (Annual fee. Licensee enrolled via Exhibit C form.) or Registered Licensee Fee $700 (Annual fee. Licensee executes enrollment form and modifies contract terms via Rider C form.) Additional Items Menu Additional Storage Space $ 100/ cubic ft. Deposit Material Reporting $ 600 annually Technical Verification Contact Us *SKI RE CONFI]DENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH/City of Forth Worth* Page 10 of 13 Exhibit B Deposit Materials Please complete an Exhibit B document for the Deposit Materials to be stored under this account. Enclose a copy of this Exhibit B with the Deposit Materials and retain a copy for your records. Ship the Deposit Materials to Escrow Associates at the following address: Attn: Vault Manager Escrow Associates, LLC 1010 Huntcliff, Suite 1350 Atlanta, GA 30350 USA 1-800-813-3523 Company Name: Product Name &Version: Media Description Quantity Type Description Label CD-ROM DAT/DDS Tape Documentation Other Deposit Prepared by: Date: E-mail: Escrow Associates has inspected and accepted the above Deposit Materials. Signed: Name: Date: *SIURE CONFIDENTL4,L*Software Licensee Agreement Exhibit A(Escrow)*MWH/City of Forth Worth* Page 11 of 13 Exhibit C Standard Licensee Addition Form Licensee#1 Company Name: Contact: Address: City, State, Zip: Telephone: Fax: E-mail: Applicable Product(s): Send Notifications to this Licensee? Yes No Licensee#2 Company Name: Contact: Address: City, State, Zip: Telephone: Fax: E-mail: Applicable Product(s): Send Notifications to this Licensee? Yes No (copy as necessary) *SKIRE CONFI]DENTL4,L*Software Licensee Agreement Exhibit A(Escrow)*MWH City of Forth Worth* Page 12 of 13 Rider C Registered Licensee Addition Form Whereas, ("Developer") and Escrow Associates have entered into a two-party escrow agreement dated 200 ("The Agreement"). Whereas, Developer, ("Registered Licensee") and Escrow Associates agree to modify the terms of The Agreement as follows: 1. (insert modification) 2. (insert modification) 3. (insert modification) 4. (insert modification) NOW, THEREFORE,for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, covenant and agree to The Agreement and the modifications herein: Developer Escrow Associates, LILC Signature: Signature: Name: Name: Title: Title: Date: Date: Registered Licensee Signature: Name: Title: Company: Address: City, State,Zip: Date: Telephone: Fax: E-Mail: Applicable Product(s): *SKIRE CONFI]DENTIAL*Software Licensee Agreement Exhibit A(Escrow)*MWH City of Forth Worth* Page 13 of 13 ASSIGNMEENT AGREEMENT This Assignment Agreement ("Assignment") dated December S , 2004, is by and between Skire,Inc. ("Skire"),MWH Americas,Inc("Assignor"),and the City of Fort Worth("Assignee"); WHEREAS, contemporaneously with the execution of this Assignment, Assignor will execute a Software License and Maintenance Agreement ("License Agreement"), attached hereto and specifically incorporated herein,with Skire for the license of certain proprietary software as described therein; WHEREAS,Assignor desires to assign all its rights and obligations therein to Assignee in accordance with the terms and conditions of this Assignment,and Assignee is willing to accept such assignment; and i WHEREAS, the License Agreement requires pursuant to Section 12 that Assignor provide prior written consent to the assignment or transfer of the License Agreement to another party; Now,THEREFORE, for good and valuable consideration,the receipt of which is hereby acknowledged,the parties hereby agree as follows: 1. Consent 1.1 By execution of this Assignment, Skire hereby consents to the assignment of all rights and obligations under the License Agreement from Assignor to Assignee. 2. Assignment 2.1 Assignor agrees to make payment to Skire under the License Agreement the initial one time fee as provided in the Order Form and License Agreement. Assignee agrees to reimburse such fee within 30 days of receipt of invoice from Assignor. 2.2 Except as provided in Section 2.1 above, Assignor hereby irrevocably assigns, transfers and conveys unto Assignee, its legal representatives, assigns, and successors, any and all rights and obligations under the License Agreement, including any future payment obligation thereunder, including but not limited to all Annual Maintenance Fees as described in the License Agreement. 2.3 Assignee agrees to assume and be bound by all obligations of Assignor under the License Agreement and all provisions of the License Agreement and ratifies and confmns the License Agreement as if an original party to it. 3. Release&Indemnification 3.1 With the exception of Assignors obligations set forth in Section 2.1 above,Assignee and Skire hereby release, hold harmless and forever discharge Assignor, and its shareholders, directors, officers, employees, subsidiaries, agents, and affiliates, from any and all actions, causes of action, claims, demands, costs, liabilities, losses, expenses, past, present or future, known or unknown, foreseen or unforeseen,which they may have,now or in the future, against Assignor, whether in contract,tort, or other legal theory, relating to or in connection with the License Agreement, save and except for any obligations that Assignor may have to Assignee under any other contract between Assignor and Assignee. 3.2 To the extent permitted by law,Assignee agrees to indemnify,defend and hold harmless Assignor,its shareholders, directors, officers, agents, and employees from and against any and all liability, claims, suits, loss, fines, penalties, damages, costs, and expenses, including but not limited to, reasonable attorneys' fees and court costs, arising out of, or in connection with, the License Agreement and this Assignment, including any nonpayment of fees by Assignee to Skire Nothing herein shall ever be construed so as to require Assignee to assess, levy, or collect any tax to fund this indemnification obligation. 4. Additional Provisions 4.1 Notice. Unless otherwise provided in this Assignment, any notice or communication required or permitted by this Assignment shall be deemed sufficiently given if in writing and when delivered personally or 72 hours after deposit with a receipted commercial courier service or the U.S. Postal Service as registered or certified mail,postage prepaid,and addressed to each party. 4.2 Governing Law. The validity, construction and performance of this Assignment and all disputes between the parties arising out of this Assignment shall be governed by the law,without regard to the law as to choice or conflict of laws,of the State of Texas. 4.3 Assi ment. Neither this Assignment nor any rights or obligations under this Assignment may be assigned by any party without the prior written consent of the all parties hereunder. 4.4 Amendment and Waiver. This Assignment may be amended, modified or supplemented only by a writing executed by each of the parties. Any party may in writing waive any provisions of this Assignment to the extent such provision is for the benefit of the waiving party. No action taken pursuant to this Assignment, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by that party of its or any other party's compliance with any provisions of this Assignment. No waiver by any party of a breach of any provision of this Assignment shall be construed as a waiver of any subsequent or different breach, and no forbearance by a party to seek a remedy for noncompliance or breach by another party shall be construed as a waiver of any right or remedy with respect to such noncompliance or breach. 4.5 Severability. The invalidity or unenforceability of any particular provision of this Assignment shall not affect the other provisions, and this Assignment shall be construed in all respects as if any invalid or unenforceable provision were omitted. 4.6 Entire Assig-mnent. This Assignment embodies the entire agreement and understanding between the parties pertaining to the subject matter of this Assignment, and supersedes all prior agreements, understandings,negotiations,representations and discussions,whether verbal or written,of the parties pertaining to that subject matter. 4.7 Authority. The parties represent and warrant that they have the full right and authority to necessary to enter into and execute this Assignment. MWH Americas,Inc. Skire,Inc. � Si bn ature: ��n� �� S i gnature: lam---� Title: �1 c� \ CAS - Title: G City of Fort ort Attest: Signature: Title: tmY4ar4lendrix, City Secretary c Approved as to Form and Legality: I PP g tY Contrac-L Authorization Assistant City ttorney Date Rider C-1 AMEDMENT TO TWO PARTY ESCROW AGREEMENT Registered Licensee Addition Form Whereas, Skire, Inc. ("Developer") and Escrow Associates have entered into a two-party escrow agreement dated March 14, 2004 ("The Agreement"). Whereas, Developer, The City of Fort Worth ("Registered Licensee") and Escrow Associates agree to modify the terms of The Agreement as follows as it relates to the aforementioned Registered Licensee only: 1. Replace Section 5. Indemnification in its entirety with the following: "Section 5. Indemnification -With the exception of gross negligence, willful misconduct or intentional misrepresentation on behalf of Escrow Associates, Developer shall indemnify and hold harmless Escrow Associates and each of its directors, officers, agents, employees, members and stockholders ("Escrow Associates Indemnities") absolutely and forever, from and against any and all claims, actions, damages, suits, liabilities, obligations, costs, fees, charges, and any other expenses whatsoever, including reasonable attorneys' fees and costs, that may be asserted against any Escrow Associates Indemnitee in connection with this Agreement or the performance of Escrow Associates or any Escrow Associates Indemnitee hereunder." 2. Replace Section 8. Dispute Resolution in its entirety with the following: "8. Dispute Resolution -All claims, disputes, and other matters in question between the City of Fort Worth and Skire, Inc. arising out of, or in connection with this Agreement or the Software License and Maintenance Agreement, or any breach of any obligation or duty of the City of Fort Worth or Skire, Inc. hereunder, will be submitted to mediation. If mediation is unsuccessful, the claim, dispute or other matter in question shall be submitted to arbitration if both parties acting reasonably agree that the amount of the dispute is likely to be less than $50,000, exclusive of attorney's fees, costs and expenses. Arbitration shall be in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules of the Association then in effect. Any award rendered by the arbitrators less than $50,000, exclusive of attorney's fees, costs and expenses, will be final,judgment may be entered thereon in any court having jurisdiction, and will not be subject to appeal or modification except to the extent permitted by Sections 10 and 11 of the Federal Arbitration Act (9 U.S.C. Sections 10 and 11). Any award greater than $50,000, exclusive of attorney's fees, costs and expenses may be litigated by either party on a de novo basis. The award shall become final ninety (90) days from the date same is issued. If litigation is filed by either party within said ninety (90) day period, the award shall become null and void and shall not be used by either party for any purpose in the litigation. Developer and Licensee(s)jointly agree to reimburse Escrow Associates for any and all costs incurred as a result of any Dispute Resolution including attorney's fees." *SKIRE CONFIDENTIAL*Software Licensee Exhibit A(Escrow)Rider C*MWH/City of Forth Worth* Page 1 of 2 3. Replace Section 12(f) Governing Law in its entirety with the following: "(f) Governing Law- This Agreement shall be governed by the laws of the State of Texas." NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, covenant and agree to The Agreement and the modifications herein: C Develope Escrow Associates, LLC Signature: ko " Signature: Name: MA V � u- s_� ft7H 01 Oct R Name: , 4pr- Title: - C-E ) Title: VIP Date: t2-/q /oc( Date: o- I S 04 Registered U 6 Attest: Signature: arty endrix, City Secretary Name: Marc A. Ott, Assistant City Manager Approved as to F and Legality Company: City of Fort Worth <--�z: A4sistant City Ahorney­�� Address: 1000 Throckmorton City, State, Zip: Fort Worth, Texas 76102 Date: Telephone: --- Fax: E-Mail: Applicable Product(s): *SKIRE CONFIDENTIAL*Software Licensee Exhibit A(Escrow)Rider C*MWH City of Forth Worth* Page 2 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 8/5/2004 - Ordinance No. 16059 DATE: Thursday, August 05, 2004 LOG NAME: 60MWH2 REFERENCE NO.: C-20183 SUBJECT: Appropriation Ordinance and Amendment No. 2 to Agreement with MWH Americas, Inc. for Acquisition, Program Management and Implementation Services for a Capital Project Management System RECOMMENDATION: It is recommended that the City Council: 1. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Water Capital Project Fund by $926,526, in the Sewer Capital Project Fund by $926,526, in the Aviation Improvement Fund by $396,262, and in the New Equipment Purchases Fund by $1,188,786 from funds to be obtained through the City's Equipment Note Program; and 2. Authorize the City Manager to execute Amendment No. 2 to the agreement with MWH Americas, Inc. (City Secretary No. 29129) for acquisition of a capital project management system, including software and maintenance, for a total cost not to exceed $3,438,100; and 3. Authorize the Program Manager, MWH Americas, Inc., to execute a purchase agreement with Skire, Inc. for software and maintenance of a capital projects management system; and 4. Authorize payment of funds to MWH Americas, Inc. for payment to Skire, Inc. under the contract. DISCUSSION: In the current environment, managing capital projects across the organization is facilitated through a variety of fragmented, inefficient systems. With the passage of the 2004 Bond Program, the City will manage over $200 million in capital projects each year. In an effort to effectively manage these projects, a comprehensive capital projects management system is recommended. On August 12, 2003 (M&C C-19708), the City Council authorized the execution of an agreement with MWH Americas Inc. ("MWH") to assist in the implementation of the Water Information Technology Program (WIT), Phase I. Phase I included the deployment of a Maintenance Management System and a Geographic Information System. The agreement also provided funds for an assessment of the Water Department's current ability to manage and monitor spending for capital projects, and to make recommendations on the need for a Capital Project Management system. During the assessment process, it was determined that the consultant's scope of work should be accelerated and expanded to include other departments, in order to effectively manage the capital projects in the 2004 bond program and other capital projects across the organization. On April 13, 2004 (M&C C-20031), the City Council authorized Amendment No. 1 to the agreement with MWH to provide additional services related to the acquisition of a capital project tracking system to be used Citywide. The additional work approved under this amendment included the preparation of a Request for Logname: 60MVIH2 Page 1 of 3 Proposal for C|P software vendors, assistance in the analysis of the proposals submitted and the development of a business case for the program. [)n May 2O' 2OO4. the Purchasing Division issued a Request for Proposals tOsolicit capital project tracking software system proposals. Six responses were received. Based on vendor presentations during the demonstration process, the C|P selection committee, made Up of representatives from the City Manager's Office' IT Solutions, Water, Transportation and Public Works, Engineering, Parks and Community Services, Finanoe, and the K8/VVBE {3ffice. recommended Gkine's Unifier system. Skine's Unifier system has the functionality a||oxV the City to better manage and track capital projects across departments. The primary functions include: � Portfolio Management � Project Control ~ ExecutiveDoshboards � Report Generation * Contract Management w Field Inspection w Document Management * K8/V\BE Compliance Tracking � Workflow Automation Implementation of the system will enable effective tracking and instant communication of capital project expenditures and projections to pnJvide real-time decision-making support in monitoring and controlling projects, to eliminate multiple sources of input into the capital project process and to consolidate disparate systems into a single, central database. . Under the terms of the program agreement, K8\&H will execute a purchase agreement with 8hipe. Inc. and manage the system installation. Payments will be reviewed and recommended to the City for approval by K8VVH. which will then be paid bv the City for payment to the vendor. In addition to the acquisition of the eofbmens and maintenance from Skire' Inc., Amendment No. 2 will authorize K8VVH to provide the following additional services to ensure successful implementation. Capital Projects ProQramK8anage0eDt � Contract Management of Capital Projects Implementation � Project Management of Capital Projects Management Systems Implementation and Integration firm � Development of Capital Projects FonJgmgDl Management pnJoedunee and Methodologies � Capital Planning Business Process Modeling Organizational Readiness Preparation � Capital Projects K8anagenmentSyotomm |rnp|enneDb3tionandTeohnica| Senxicea p Procurement ofCapital Projects Management System Implementation Services w Procurement of associated hardware and software � Integration with other City systems and data conversion w Employee Training � C|P Software and Microsoft Enterprise Project Software Training 0 Project Management Training K8\&4H /\Dnehooa. Inc. is in compliance with the City's K0/VVBE Ordinance by committing to on additional 2296 K8/VVBE participation on this amendment for all hardware and professional services. The General Fund. Municipal Airports Fund, and Water and Ggvvar Fund will share the total cost of system acquisition and implementation. Logname: 60MVM2_ ' Page 20f3 FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds for this purchase will be obtained through the City's Equipment Note Program. TO Fund/Account/Centers FROM Fund/Account/Centers P162 539120 060162151030 $926,526.00 P172 539120 070172131010 $926,526.00 P162 485200 060162151030 $926,526.00 P172 485200 070172131010 $926,526.00 G193 485200 020193020020 $1,188,786.00 G193 539120 020193020020 $1,188,786.00 GC24 485200 055240450010 $396,262.00 GC24 539120 055240450010 $396,262.00 Submitted for City Manager's Office b Marc Oft (8476) Originating Department Head: Frank Crumb (Acting) (8243) Additional Information Contact: Frank Crumb (Acting) (8243) Lognaine: 60MWH2 Page 3 of 3