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Item 5Buthlake, I exas MEMORANDUM March 12, 2002 To: Billy Campbell, City Manager From: Pedram Farahnak, P.E., Director of Public Works, 481 -2308 Subject: Award of Professional Services Agreement to Stantec Consulting, Inc. for preparation of a Citywide Pavement Management Program Report. Action Requested: Award a Professional Services Agreement to Stantec Consulting, Inc. for an assessment report of the Citywide Pavement Management Program. Background Information: The 2001 -2002 CIP includes funds for a Citywide Pavement Management Program. This program was selected after a June 26, 2001 presentation to the City Council concerning the Southlake's poor pavement conditions. The City of Southlake Public Works Department maintains a 188 miles street network system. It is anticipated that more than 50% of City's street system is in poor condition. The recommended consultant, Stantec Consulting, Inc. has been providing street data collection and data management service to municipalities countrywide since 1978. A major advantage of a computerized pavement management system (PMS) is the ease of storage of required information and retrieval of large quantities of data to assist in the management of the data base. Data base and software are used to produce reports to prioritize maintenance according to the available budget, respective needed year, cost effectiveness, and the type of treatment and rehabilitation needed. Financial Consideration: The cost for the purchase of software and the pavement management system report is $129,720 (Exhibit A attached). The Finance Department has confirmed that funds in the amount of $150,000 for this project will be available in May, 2002. Citizen Input/ Board Review: None. Legal Review: The City Attorney has reviewed the agreement as to the form. Alternatives: Not applicable at this time. Supporting Documents: Professional Services Agreement for Pavement Management System. Staff Recommendation: Award a Professional Services Agreement for the Citywide Pavement Management Program Report be awarded to Stantec Consulting, Inc. in the amount of $129,720. Staff Contact: Pedram Farahnak, P.E., Director of Public Works, 481 -2308 Charlie Thomas, P.E., City Engineer, 481 -2175 Mike Hutchison, P.E., Senior Civil Engineer, 481 -2361 PF /kw STATE OF TEXAS § COUNTY OF TARRANT KNOW ALL MEN BY THESE PRESENTS: That the City of Southlake, a municipal corporation situated in Tarrant County, Texas, acting herein by and through Billy Campbell, its duly authorized City Manager, hereinafter called "CITY ", and Stantec Consulting Inc. (formerly ITX Stanley Inc.), acting herein by and through R.G. (Dick) Dorwart, P.E., its duly authorized Vice President, hereinafter called "Consultant" do enter into the following agreement. WITNESSETH That for and in consideration of the mutual covenants and agreements herein contained the parties hereto do hereby covenant and agree as follows: ARTICLE I SERVICES Section 1. The City hereby contracts with the Consultant as an independent contractor, and the Consultant hereby agrees to perform the services herein described with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described project: PAVEMENT MANAGEMENT SYSTEM Performing a Comprehensive field evaluation of the City's roadway network and the computerized program for classifying the current condition of each evaluated road, prioritizing roadway sections for repair or reconstruction and detailing appropriate repair strategies. Section 2. The services to be performed by Consultant shall include the following, but are not limited to, scope of services listed in Exhibit " A" attached hereto, incorporated herein and made a part hereof for all intents and purposes. ARTICLE II PHASES AND SCHEDULES Engineering work for the Pavement Management System shall be completed according to the schedule in Exhibit "B ". ARTICLE III COMPENSATION The Consultant shall be compensated as described in Exhibit "C ". Payments shall be considered full compensation for the services described in Exhibit" A" for all labor, equipment, materials, supplies, and incidentals necessary to complete the services. ARTICLE IV EXTENDED CLIENT SUPPORT AGREEMENT SOFTWARE LICENSE AGREEMENT Under this contract Stantec shall provide extended client support and software license agreement per Exhibit "D" attached. ARTICLE V COORDINATION WITH OWNER The City shall make available to the Consultant for use in performing services hereunder all existing plans, maps, field notes, statistics, computations, software programs, and other data in the City's possession relative to existing facilities and to the project. Upon termination or conclusion of this agreement Consultant shall return to City all copies of software programs and shall remove such programs from Consultant's computers. All provided information shall be City of Southlake GIS compatable. ARTICLE VI PROGRESS REPORT The Consultant shall submit monthly progress reports to the Director of the Public Works Department. ARTICLE VII TRANSFER OF CONTRACT The Consultant shall not assign, sublet or transfer, in whole or in part, its interest in this agreement without the prior written consent of the City. However, Stantec Consulting Inc., has several subsidiary companies which may from time to time assist on the project. These companies are identified as follows: • Stantec Consulting LTD ARTICLE VIII TERMINATION OF CONTRACT Section 1. The City may terminate this contract at any time upon ten (10) days written notice to the Consultant for convenience or for any cause. Upon receipt of such notice the Consultant shall immediately discontinue all services and work and the placing of all orders or the entering into contracts for supplies, assistance, facilities, and materials, in connection with the performance of this contract and shall proceed to cancel promptly all existing contracts insofar as they are chargeable to this contract. Section 2. If the City terminates this contract under the foregoing Section 1, the City shall pay the Consultant a reasonable amount for services performed prior to such termination, which payment shall be based upon an agreed upon percentage complete up to the date of termination of the contract and for subcontract and reproduction in accordance with the method of compensation stated in Article Ill hereof. Section 3. All completed or partially completed reports prepared under this contract, including the original drawings, shall become the property of the City when the contract is terminated, and may be used by City in any manner it desires; provided, however, that the Consultant shall not be liable for the use of such drawings for any project other than the project described in this contract. The Consultant agrees that the City will receive a royalty -free, non - exclusive and irrevocable right to use for internal purposes, the software and documentation/user manuals to be prepared under this Agreement. The Client agrees that it will not reproduce or circulate beyond its own organization, either verbally or by written work, information pertaining to the working components of the software and the documentation/user's manuals, either in part or in full without the written consent of the Consultant. The Client also agrees to sign the software license agreement attached hereto as Exhibit "D". ARTICLE IX SUCCESSORS AND ASSIGNS The City and the Consultant each bind themselves, their successors and assigns, to the other party to this Agreement and to the successors and assigns of each other party in respect to all covenants of this contract. ARTICLE X INDEPENDENT CONTRACTOR Consultant covenants and agrees that it will perform the work hereunder as an independent contractor, and not as an officer, agent, servant, or employee of the City; that the Consultant shall have exclusive control of and the exclusive right to control the details of the work performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors, and consultants; that the doctrine of respondeat superior shall not apply as between the City and the Consultant, its officers, agents, employees, contractors, subcontractors, and consultants, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Consultant. ARTICLE XI DISCLOSURE By signature of this contract, the Consultant warrants to the City of Southlake that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interests, direct or indirect, in property abutting the proposed project and business relationships with abutting property owners. The Consultant further warrants that it will make disclosure in writing of any conflicts of interest which develop subsequent to the signing of this contract and prior to final payment under the contract. ARTICLE XII INDEMNITY AND INSURANCE Approval by the City of this agreement shall not constitute or be deemed to be a release of the responsibility and liability of the Consultant, its officers, agents, employees, and subcontractors for the accuracy and competency of the services performed under this agreement, including but not limited to surveys, designs, working drawings and specifications and other engineering documents. Such approval shall not be deemed to be an assumption of such responsibility and liability by the City for any negligent act, error or omission in the performance of Consultants services or in the conduct, surveys, software programs or other documents by the Consultant, its officers, agents, employees and subcontractors, it being the intent of the parties that approval by the City signifies the City's approval of only the general concept of the system to be constructed. In this connection, the Consultant shall indemnify and hold the City and all of its officers, agents, servants, and employees harmless from any loss, damage, liability or expenses, on account of damage to property and injuries, including death, to all persons, including but not limited to officers, agents, or employees of the Consultant or subcontractors, and all persons performing any part of the work which may arise out of any negligent act, error or omission in the performance of Consultant's services or in the conduct or preparation of surveys, software programs, and other consultant documents incorporated into the project in accordance therewith. The Consultant shall defend at its own expense any suits or other proceedings brought against the City and its officers, agents, servants, and employees, or any of them on account thereof, and shall pay all expenses and satisfy all judgements which may be incurred by or rendered against them or any of them in connection therewith, provided and except, however, that this indemnification provision shall not be construed as requiring the Consultant to indemnify or hold the City or any of it's officers, agents, servants, or employees harmless for any loss, damages, liability or expense, on account of damage to property to injuries to persons caused by defects or deficiencies in design criteria and information furnished Consultant by City. Without limiting the above indemnity, Consultant shall provide to City a certificate of insurance as proof that the Consultant has obtained a policy of comprehensive general liability coverage (occurrence basis) with carriers acceptable to City covering all risks relating to the services to be performed under this contract, by the Consultant, its subcontractors and consultants, such insurance to be in at least the following amounts: Bodily Injury Liability $250,000 Each Person $500,000 Each Occurrence Property Damage Liability $300,000 Each Occurrence Contractual Bodily Injury Liability $250,000 Each Person $500,000 Each Occurrence Contractual Property Damage $300,000 Each Occurrence The Consultant shall not commence work under this Agreement until it has obtained Professional Liability Insurance as required hereunder and such insurance coverage has been approved by the City. Such insurance shall be in the minimum amount of $1,000,000. The insurance coverage prescribed herein shall be maintained until one (1) year after City acceptance of the construction project and shall not be canceled without prior written notice to the City. In this connection, upon the signing and return of this Agreement by the Consultant, a Certificate of Insurance shall be furnished to the City as evidence that the insurance coverage required herein has been obtained by Consultant, and such certificate shall contain the provision that such insurance shall not be canceled without thirty (30) days prior written notice to the City. Consultant shall notify City within ten (10) days of any material modification or alteration in such Professional Liability Insurance. ARTICLE XIII VENUE- LAW Venue of any suit or cause of action under this contract shall lie exclusively in Tarrant County, Texas. This contract shall be construed in accordance with the laws of the State of Texas. IN TESTIMONY WHEREOF, the City of Southlake has caused this instrument to be signed in quintuplet in its name and on its behalf, by its City Manager and attested by its City Secretary, with the Corporate Seal affixed; and the Consultant also has properly executed this instrument in quintuplet copies each of which is deemed an original. EXECUTED in the City of Southlake, this CITY OF SOUTHLAKE Billy Campbell City Manager Rick Stacy Mayor ATTEST: WE dad- of A.D. 2002. Kim Bush Acting City Secretary R.G. Dick Dorwart, P.E. Vice President, Stantec Consulting Inc EXHIBIT A PAVEMENT MANAGEMENT SYSTEM SCOPE OF SERVICES TASK LIST 1. Project Initiation, and Mobilization .................................. ............................... $ 5,240.00 2. PMA Software ................................................................. ............................... $25,000.00 3 . Build Database .................................................................. ............................... $4,160.00 4. Data Collection (SDI & RCI) on all Streets classified - approximately 180 test miles @ $120.00 per mile .......... ............................... $21,600.00 5. Data QA/QC & Editing — approximately 180 test miles @ $15.00 per mile ......................................................... ............................... $ 2,700.00 6. PMA Implementation (decision criteria) ........................... ............................... $ 9,560.00 7 . Reports ........................................................ ............................... ......................$5,840.00 8. MPMA Software Training (First day @$2, 080) ................ ............................... $4,160.00 9. MPMA Software Training (Additional days same trip @ $1,380) .................... $2,760.00 10. Deflection Testing @ $9 per test (Typically 25 tests per mile) ....................... $36,000.00 11. Deflection Mobilization ................................................... ............................... $2,200.00 12. Extended Client Support (2 years) .............. ............................... ......................$9,000.00 13. Presentation to Administrative Staff and City Council) .............. ......................$1,500.00 Total $129,720.00 EXHIBIT B SatOlake Texas Project Schedule F1 2 ko*13 ag11A0 ISMS .!] TaQ /lea! YhaL1 Wt 2 1W'de3 '08W.4 47MS Wu1116 Nhet7 We9ti lYRN9 4h1eW IYaet11 •/1i�12 i1Ni111 W4akW YIRaN1s vw Is 4htl 77 1Wapw 1 rT IN(fo1O�SYttrz"w - 3 aocermoiL -- iaaaivac a rein Reich i / i 7 • LiL4t �Ctlsie7roYfretas� eel .. LYNK SrstaxaN :aiti"NS bB.scrt - - ._. .OandlolTesthp Ueidma LYAI'aeeU EIVew Cfl:tl sap.;i(23,.A � - � 1�I � . •" a • 9 I(1 11 12 VeeaaeillbmbPOMnRn4o 9il/a�e CTr /fnmul • i Tat ' biw%ea ♦ lads W Rn .................. r�omrTa/eN osdrft =-I i�Ojpp tRedWto12r2 8b11 S\emmsy � RdkdWMme bl "OlsLem ri Oetc rue1V12R '••.••.' .. .. •••'• pbvjoo del t31YdwTaet Rdkdtrpp -w— � Emma w4su e pop I EXHIBIT C EXTENDED CLIENT SUPPORT Time and Material Fees Schedule I. Time is billed at the rate of $200.00 per hour, one (1) hour minimum. IL Material is billed for all expenses plus fifteen (15) percent, (other than time covered in Section L), to include but not be limited to: travel; lodging, meals, communication; and consumable supplies mutually deemed necessary to provide requested CLIENT assistance. EXHIBIT D SOFTWARE LICENSE AGREEMENT Agreement Number: This License Agreement, made and entered into by and, BETWEEN: Hereinafter called `CLIENT' - and - STANTEC CONSULTING INC. 8211 South 48 Street Phoenix, AZ 85044 - 5355 Hereinafter called `STANTEC' IN CONSIDERATION OF the mutual covenants contained herein, the parties hereto agree as follows: TERMS AND CONDITIONS 1. SCOPE This License Agreement (hereinafter referred to as `AGREEMENT') shall apply to the rental, lease and /or license of the proprietary computer software product(s) specified in Paragraph 1 herein. For purposes of this Agreement, the term `PRODUCT' shall mean that specific proprietary computer software product (including programs, documentation and any subsequent updates) specified as follows: (Name of Software covered by licensel - (Name of Modules if - applicable) 2. LICENSE The PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The PRODUCT is licensed, not sold. STANTEC hereby grants to, and the CLIENT hereby accepts, subject to the terms and conditions specified herein, a nontransferable and nonexclusive license to use the PRODUCT exclusively in the CLIENT's business, for the CLIENT's benefit and on CLIENT operated computing equipment. The CLIENT expressly agrees to use the PRODUCT for its own internal operations only and not to allow the PRODUCT to be re- marketed, shared, assigned or used in any manner whatsoever by any other party. The PRODUCT shall be used by the CLIENT only at the following location: ocation of Computer to Use Software This license and the PRODUCT may not be shared or used concurrently on different computers unless authorized to do so herein. The PRODUCT is licensed as a single product. Its component parts may not be separated for use on more than one computer. The CLIENT assumes full responsibility for the condition and effectiveness of the operating environment in which the PRODUCT is to function. The CLIENT shall use the PRODUCT for internal purposes only. The CLIENT shall not copy or duplicate the PRODUCT without the prior written consent of STANTEC, except that the CLIENT may copy the PRODUCT once, only to ensure adequate back -up in support of the CLIENT's use of the PRODUCT. The CLIENT shall not provide, transfer, assign, rent, lease, lend or otherwise make available the PRODUCT or any part or copies in any form to any third party, except as may be permitted in writing by STANTEC. The CLIENT may not copy the printed materials accompanying the PRODUCT. 3. TITLE Title to the PRODUCT and any reproduction thereof, all property rights therein, and all materials supplied to the CLIENT under this Agreement shall remain the sole property of STANTEC. All copyright, patent, trade secret and other intellectual and proprietary rights in the PRODUCT are and remain the valuable property of STANTEC. 4. NON - DISCLOSURE The CLIENT understands and agrees that the PRODUCT constitutes proprietary information and trade secrets of STANTEC. The CLIENT agrees to keep confidential and to exercise its best efforts to prevent and protect the PRODUCT, or any part thereof, from disclosure to any person other than the CLIENT's employees having need for disclosure incident to the CLIENT's use of the PRODUCT. In order to prevent unauthorized use, STANTEC may install such security devices as they deem necessary. 5. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY Reverse engineering, decompilation or disassembly of the PRODUCT is prohibited, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. 6. YEAR 2000 COMPLIANCE Stantec warrants that the currently supported releases of the PRODUCT will: a) correctly handle date information before, during and after 1 January 2000, accept date input, provide date output and perform calculations on dates, including leap year calculations; b) function according to the documentation, during and after 1 January 2000, without changes in operation associated with the advent of the new century; and c) store and provide output of date information in ways that are unambiguous as to century when configured and used according to the documented instructions, provided that the hardware, software, firmware, and other computing facilities used in combination with the PRODUCT properly exchange date and other data with the PRODUCT. 7. NO WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STANTEC DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT, WITH REGARD TO THE PRODUCT, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. NOTWITHSTANDING THE FOREGOING DISCLAIMER, THE CLIENT MAY HAVE SPECIFIC LEGAL RIGHTS WITH RESPECT TO WARRANTIES, WHICH RIGHTS VARY FROM STATE /JURISDICTION TO STATE /JURISDICTION. 8. LIMITS OF LIABILITY TO THE MAXIMUM EXTENT PERMITED BY APPLICABLE LAW, IN NO EVENT SHALL STANTEC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF STANTEC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF A BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED, OR ANY TERM OF THIS AGREEMENT, STANTEC'S ENTIRE LIABILITY AND THE CLIENT'S EXCLUSIVE REMEDY SHALL BE THE RIGHT TO TERMINATE THIS AGREEMENT BY RETURNING THE PRODUCT AND OBTAINING A REFUND OF MONIES PAID TO STANTEC FOR THE PRODUCT. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO THE CLIENT. 9. RESTRICTED USE The PRODUCT will be used by the CLIENT to process or analyze data collected within the jurisdiction of the CLIENT for the CLIENT's internal purposes and no other. The output from the PRODUCT may be provided to a third party who is doing design work for the CLIENT for the period of the working arrangement. Under no circumstances shall the CLIENT use the PRODUCTS to provide services, to any third party, related to infrastructure data, needs or evaluation analysis. 10. TERM This AGREEMENT is effective from the date of its acceptance by STANTEC and shall remain in force until terminated by either party as provided herein. However, the terms and conditions of this AGREEMENT under Paragraphs 3, 4, and 8 shall continue in full force and effect and shall survive the termination of this AGREEMENT and any Schedule(s) that become a part of this AGREEMENT. 11. TERMINATION (a) If either party shall be in default of its obligations under this AGREEMENT and such default continues for thirty (30) days after written notice thereof by the other party, this AGREEMENT may thereupon be terminated by such other party. (b) Upon any termination of this AGREEMENT, the CLIENT shall deliver to STANTEC forthwith all the PRODUCT, copies, materials, reproductions and modifications held by the CLIENT and shall warrant in writing to STANTEC that all copies thereof have been returned to STANTEC or destroyed. 12. GENERAL PROVISIONS (a) Neither party shall be held responsible for any delay in performance hereunder arising out of causes beyond its control and without its fault or negligence. Such causes may include, but are not limited to, fires, strikes, embargoes, acts of God, inability to secure transportation facilities or other causes beyond the control of either party. (b) The failure of STANTEC in any one or more instances to insist upon strict performance of any of the terms or provisions of this contract shall not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms or provisions on any future occasions. If any term, provision or condition of this AGREEMENT is held to be invalid, void or unenforceable by a court of competent jurisdiction, the remainder of the AGREEMENT shall remain in full force and effect and in no way shall be affected, impaired or invalidated. (c) This AGREEMENT, constitutes the entire AGREEMENT between the parties hereto with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, and writings and no representation or statement not contained in this AGREEMENT shall be binding upon STANTEC as a warranty or otherwise. (d) The CLIENT agrees that because of the unique nature of the PRODUCT, irreparable harm will be caused by a breach by the CLIENT of its obligations hereunder, that monetary damages will be inadequate to compensate for such harm, and that injunctive relief will be an appropriate remedy to enforce this AGREEMENT. (e) This AGREEMENT may not be released, discharged, modified or assigned, sublicensed or otherwise transferred or attached in any way except by a written instrument ratified by a duly authorized representative of each of the parties. This AGREEMENT shall be governed by the laws of the State of Arizona. Each of the parties hereto irrevocably attorns to jurisdiction of the courts of the State of Arizona and further agrees to commence any litigation which may arise hereunder in the courts located in State of Arizona. The terms and conditions contained herein shall prevail notwithstanding any variance with the terms and conditions of any other submitted by the CLIENT. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on this day of , Name of Client (Agency) WITNESS PER: (Typed Name of Person Signing) STANTEC CONSULTING INC. PER: M.A. Karan, Ph.D. Senior Vice President Management Systems PER: Francis Meyer, Ph.D. Vice President Management Systems Agreement Number: EXTENDED CLIENT SUPPORT AGREEMENT This contract, made and entered into as of the dad of is a Software Upgrades and Program Support Agreement between: Stantec Consulting Inc. 8211 South 48 Street Phoenix. AZ 85044 and customer name and address (hereinafter referred to as "STANTEC ") (hereinafter referred to as the "CLIENT ") WHEREAS, the CLIENT has acquired a License to use certain computer programs o'kilied or re- marketed by STANTEC: and WHEREAS. the CLIENT is desirous of obtaining support seivices for the software: and WHEREAS. STANTEC is willing to provide support services under this Extended Client Support Agreement ("Agreemenf): NOW THEREFORE, in consideration of the mutual agreements contained herein, STANTEC agrees to provide and the CLIENT agrees to accept and pay for support sere ices as follows: A. TERM This Agreement will commence on the date written above and will remain in effect for the period , 2000 to , 2001, hereinafter referred to as "MAINTENANCE PERIOD - . This Agreement is an extended support contract intended for the sole use and benefit of the CLIENT. B. SCOPE Subject to the terms of this Agreement, STANTEC will provide the CLIENT with software upgrades, related documentation updates and telephone support as described herein. The CLIENT shall pay to STANTEC a fee as described in Exhibit "A" attached hereto and incorporated herein by reference. The services provided hereunder apply only to STANTEC software modules licensed for use by the CLIENT as described in Exhibit "A ". The Software License Agreement for all products supported by this Agreement must be in effect without default on the part of any party prior to the signing of this Agreement. C. DEFINITIONS 1. Software Upgrades - Software upgrades encompass new capabilities /features that serve to improve software performance, or to enhance any function currently supported by STANTEC software together with related documentation updates. 2. Telephone Support - Telephone support is the provision of technical consultation, including: remote installation assistance; assistance in the use of STANTEC software products; and, remote assistance in error isolation and correction. Telephone support only applies to STANTEC software programs licensed for use by the CLIENT. D. SOFTWARE SUPPORT SERVICES Under this Agreement, the CLIENT will receive during the MAINTENANCE PERIOD software upgrades and associated documentation updates to STANTEC software modules which were licensed for use by the CLIENT. The costs of shipping and handling of software upgrades and associated documentation are included in the annual fee as described in Exhibit "A ". 2. During the "Principal Period of Support" defined in Exhibit "B ", attached hereto and incorporated herein by reference, STANTEC will provide the CLIENT support services to keep the software performing in accordance with its written specifications. If support service is requested by CLIENT to be performed outside the Principal Period of Support, such service will be provided at the applicable STANTEC per call rates and terms then in effect. 3. Subject to the terms of this Agreement, the CLIENT is entitled to telephone support during the MAINTENANCE PERIOD. 4. In the event problems cannot be resolved through telephone consultation, STANTEC will provide on -site assistance as mutually deemed necessary on a time and materials basis pursuant to Exhibit "C" attached hereto and incorporated herein by reference. Such time and materials charges will be paid by CLIENT in addition to the annual fee described herein. 5. Maintenance of and upgrades to custom software will be charged to the CLIENT on a time and materials basis pursuant to Exhibit "C ". Such charges are in addition to the amounts prescribed by Exhibit "A ". STANTEC will provide the CLIENT a non - binding written estimate of the cost of custom programming and will obtain approval from the CLIENT before commencing and such work. E. EXCLUSIONS FROM STANTEC SUPPORT SERVICES Support seiv ice provided under this Agreement does not assure uninterrupted operation of the software. The following services are outside the scope of STANTEC support services provided hereunder and the CLIENT mm- incur charges. on a time and materials basis, in addition to the support fee prescribed herein, if support sel ices are required for and of the following reasons: 1. Failure to continually provide a suitable installation environment including, but not limited to, the failure to provide adequate electrical power, air conditioning or humidity control, or the CLIENT's improper use, management or supervision of the equipment including, without limitation, the use of supplies, disc packs, and cartridges; 2. Any cause external to the software adversely affecting its operability or serviceability which shall include, but not be limited to fire, flood, water, wind, lightning, and transportation, neglect or misuse; 3. System hardware failure; 4. Use of the software for purposes other than that for which it is designed; 5. Customized features made to the base software program released by STANTEC. Upon review by STANTEC, said customized features may be eligible for support at an additional fee or on a time and materials basis as mutually agreed upon by STANTEC and the CLIENT; 6. Alterations to the software by non STANTEC personnel. If persons other than STANTEC personnel change any support service on any software covered by this Agreement, and as a result thereof, any support service by STANTEC is required to restore the software to good operating, such support service will be provided at the applicable STANTEC rates for time and materials then in effect. 7. Assistance with data conversion for software upgrades. 8. Assistance with upgrade to newer releases of operating systems and database platforms approved by STANTEC, on which the software and database are installed. 9. Support for the software on operating systems and database platforms not approved by STANTEC. 10. Modifications to the software for compatibility with operating systems and database platforms not approved by STANTEC. F. ACCESS TO SOFTWARE CLIENT will provide STANTEC with full and free access to the software to provide the services hereunder. 2. Should CLIENT have modem access or add modem access during the term of this Agreement, CLIENT will provide modem access to the computer on which the software is operating to authorized STANTEC support representatives for such time as is deemed necessary by STANTEC. Telephone modem remote access expenses will be paid by the CLIENT. These modem access expenses are in addition to the support fee described herein. G. FEES The amoral support fees shall be set forth in Exhibit A and are subject to adjustment amorally on the anniversary° date of this Agreement. The total amoral fees shall be due and payable upon receipt of STANTEC`s invoice. Any amount not paid within thirty (30) business days of the date of the invoice shall bear interest at the rate of eighteen percent (18 %) per annum until payment has been received by STANTEC. If CLIENT fails to make payment -,ti - ithin thirty (30) days of receipt of the invoice, all extended support will be paid by CLIENT at STANTEC's then current time and materials fees. H. TAXES Any sales, use or other federal, state or local tales required based on the services provided pursuant to this Agreement, shall be billed to and paid by CLIENT. I. TERMINATION 1. The CLIENT will notify STANTEC in writing at least 60 days prior to expiry of Extended Client Support Services whether or not it wants to continue receiving Extended Client Support Services. If no notice is received by STANTEC, then Extended Client Support Services will continue for the next year under STANTEC's then current prices and policies. 2. Should the CLIENT elect not to renew support service on any anniversary date of the installation or terminate support as provided above, and then later elect to reinstate support services, CLIENT agrees to pay STANTEC's Extended Client Support re- instatement fees in effect on the date that Support is re- ordered. 3. Either party may terminate this Agreement at any time for failure of the other to comply with any of its terms and conditions. STANTEC reserves the right to terminate support service immediately in the event the CLIENT is in default under any agreement with STANTEC or any of its affiliated companies and if such default continues for 15 days after written notice of default is given to the CLIENT by STANTEC. This Agreement will terminate immediately and all charges due hereunder will become immediately due and payable in the event that the CLIENT makes an assignment for the benefit of creditors or a petition is filed by or against the CLIENT under any law having for its purpose the adjudication of the CLIENT as bankrupt or the reorganization of the CLIENT. GOVERNING LAWS This Agreement shall be governed by the laws in force in the State of Arizona. K. DISCLAIMER - CLIENT'S RESPONSIBILITIES 1. STANTEC's obligations under this Agreement are in lieu of all warranties, express or implied. STANTEC will not be liable for special, indirect, or consequential damages, arising out of or in connection with this Agreement or the maintenance service performed hereunder. 2. It is the responsibility of the CLIENT to ensure that all of its files are adequately duplicated and documented. STANTEC will not be responsible for the CLIENT's failure to duplicate and document its files, or for the cost of reconstructing data stored on disc files, tapes, memories, etc., lost during the course of performance of maintenance service or hardware failure. 3. STANTEC is not responsible for any failure to render service due to strikes or causes reasonably beyond its control. L. NOTICES Any notice or other communication given hereunder shall be in writing and mailed, if to STANTEC, to the address of STANTEC headquarters, and if to the CLIENT, to the address of the CLIENT shown on this Agreement or to such other address as such party shall have designated by notice in writing. Any such notice, if mailed properly addressed, and postage prepaid, shall be deemed given when deposited in the U.S. Mail. M. ENTIRE AGREEMENT The foregoing terms and conditions shall prevail, notwithstanding any variance with the terms and conditions of any order submitted by the CLIENT for the repair or support of the software. The CLIENT acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. Further, the CLIENT acknowledges that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. ACCEPTED BY: ACCEPTED BY: Stantec Consulting Inc. Signature Signature Name (typed) M.A. Karan, Ph.D. Print Title Senior Vice President Title Management Systems Date Date Signature Name (typed) Richard G. Dorwart, P.E. Title Vice President Management Systems Date 8211 South 48 Street Phoenix, AZ 85044 (602)438 -2200 (Voice) (602)438 -0469 (Fax)