EXHIBIT 10.15
-------------
(Arvida)
INFORMATION SYSTEMS SHARING AGREEMENT
-------------------------------------
This INFORMATION SYSTEMS SHARING AGREEMENT (this "Agreement"), dated
as of November 6, 1997, (the "Effective Date"), by and between ARVIDA/JMB
PARTNERS, L.P., a limited partnership organized and operating under the
laws of Delaware (the "Partnership"), and ARVIDA COMPANY, formerly known as
Arvida Management Company, a corporation organized and operating under the
laws of Illinois ("Arvida").
WHEREAS, the Partnership and Arvida are parties to that certain
Management, Advisory and Supervisory Agreement (the "Management Agreement")
dated as of September 10, 1987, pursuant to which Arvida provides certain
management, advisory and supervisory services to the Partnership;
WHEREAS, pursuant to the Management Agreement, Arvida manages the
Partnership's information systems function;
WHEREAS, Arvida and the Partnership have collaborated on the
development of certain computer software, and now wish to document their
ownership and use rights in such computer software;
AND WHEREAS, Arvida uses the computer hardware and software owned,
leased or licensed by the Partnership and its affiliated entities and
various related information systems services ("Partnership IS Resources")
to perform services for legal entities other than the Partnership, and the
parties hereto now wish to formalize the procedures under which Arvida
reimburses the Partnership for Arvida's share of the cost of the
Partnership IS Resources;
NOW, THEREFORE, the Partnership and Arvida agree as follows:
SECTION 1.1 CERTAIN TERMS. The following terms shall have the
meanings set forth below:
(a) "A/P, Job Cost and G/L Record Count" means the cumulative year
to date number of data records created and stored in data files by the
Partnership's accounts payable, job cost and general ledger systems (not
including backup copies or other duplicates of such records).
(b) "Intellectual Property" means confidential information,
copyrights, patents, mask works, trademarks, trade secrets and all other
intellectual property rights.
(c) "Owned Software" means any and all software jointly developed
by the Partnership and Arvida (including all intermediate and partial
versions thereof and the look and feel thereof), including without
limitation the software commonly referred to by the parties hereto as Sales
Tracking and Reporting (a/k/a STAR), Event Tracking, Design Options,
Construction Purchase Orders, Prospect Tracking, Inventory and Customer
Service.
(d) "Shared IS Resource Costs" means the total costs that the
Partnership incurs to create, obtain or provide Partnership IS Resources
that are used to provide services to both the Partnership and its
subsidiaries, joint ventures and other entities controlled by the
Partnership (collectively with the Partnership, the "Partnership Entities")
and to some legal entities other than the Partnership Entities. The Shared
IS Resource Costs include, without limitation, the following amounts:
(i) The costs of (A) leasing, maintaining and operating the
Partnership's AS/400 processor, (B) development of applications software
and (C) providing LAN and desktop support.
(ii) The compensation and benefits of the Partnership's
employees who are dedicated to providing Partnership IS Resources that are
used to provide services both to one or more Partnership Entities and to
some legal entities that are not Partnership Entities.
(iii) The out-of-pocket expenses (whether as single period
expenses or as reflected by amortization or depreciation) incurred solely
to provide the Partnership IS Resources.
(iv) The product of (x) the cost of rent, power,
communications and other utilities, HVAC services, real and personal
property taxes, janitorial and other facility maintenance services and
other costs related to the operation of each of the Partnership's offices
where the Partnership IS Resources are housed multiplied by (y) a fraction,
the numerator of which is the number of square feet occupied by the
Partnership IS Resources in such facility and the denominator of which is
the number of square feet occupied by the Partnership in such facility
determined on an annual basis.
(v) The product of (x) the Partnership's total cost for Human
Resources and payroll administration MULTIPLIED BY (y) a fraction, the
numerator of which is the number of employees whose payroll is administered
by the Partnership who are dedicated to providing the Partnership IS
Resources and the denominator of which is the total number of employees
whose payroll is administered by the Partnership determined on a quarterly
basis.
(vi) The product of (x) the Partnership's total cost for
administering accounts payable MULTIPLIED BY (y) a fraction, the numerator
of which is the cumulative, year to date number of invoices paid by the
Partnership that are solely to provide Partnership IS Resources and the
denominator of which is the cumulative, year to date number of invoices
paid by the Partnership updated on a quarterly basis.
SECTION 1.2 OWNERSHIP. Arvida and the Partnership shall jointly and
equally own the Owned Software (including all Intellectual Property
inherent therein or appurtenant thereto), and each of them shall have the
right to fully exercise the rights of an owner with respect to the Owned
Software. Arvida and the Partnership each hereby assign to such joint and
equal ownership all of their right, title and interest in the Owned
Software. Arvida and the Partnership each waive any rights to an
accounting or a share of profits from the use of other exploitation of the
Owned Software.
SECTION 1.3 WORKS MADE FOR HIRE. All copyrightable aspects of any
Owned Software created after the Effective Date are "works made for hire"
within the meaning of the Copyright Act of 1976, as amended (the "Act"), of
which Arvida and the Partnership are to be the "authors" within the meaning
of the Act. All such copyrightable works, as well as all copies of such
works (in whatever medium fixed or embodied), shall be owned by Arvida and
the Partnership on their creation, Arvida and the Partnership shall have
joint and equal ownership of the Owned Software, regardless of whether the
Owned Software or any part or element thereof is found as a matter of law
not to be a "work made for hire" within the meaning of the Act.
SECTION 1.4 FURTHER ASSURANCES. At all times during the term of
this Agreement and thereafter, Arvida and the Partnership shall assist each
other in protecting their respective ownership of the Owned Software,
provided that the other party shall reimburse such party for its out-of-
pocket costs incurred in rendering such assistance. Such assistance shall
include, without limitation, providing such assistance as may be necessary
for each of them to obtain registrations for their respective rights in
Intellectual Property in the Owned Software and to enforce their respective
rights in such Intellectual Property. Each of Arvida and the Partnership
agrees to execute and deliver all documents and provide all testimony
reasonably requested by the other in connection therewith.
SECTION 1.5 SURVIVAL. This Article I shall survive the termination
of this Agreement.
ARTICLE II
PERMITTED USE OF PARTNERSHIP INFORMATION SYSTEMS RESOURCES
SECTION 2.1 RIGHT TO USE. The Partnership hereby authorizes Arvida
to use, and ratifies Arvida's part use of, the Partnership IS Resources to
provide management, advisory, supervisory and other related services to
itself or any legal entity other than the Partnership Entities, but only to
the extent that the Partnership IS Resources exceed those required to meet
the Partnership's needs for the service to be provided by Arvida to the
Partnership Entities pursuant to the Management Agreement. The term
"Partnership IS Resources" does not include the Owned Software or any
Intellectual Property rights therein. The Partnership is providing Arvida
use of the Partnership IS Resources "AS IS" and "WHERE IS" with no
warranties whatsoever. ARVIDA EXPRESSLY WAIVES, AND THE PARTNERSHIP
EXPRESSLY DISCLAIMS, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
SECTION 2.2 INDEMNITY. Arvida shall indemnity, defend and hold the
Partnership and each of its partners and employees harmless from any claims
by third parties based on Arvida's use of any Partnership IS Resources to
provide services to third parties.
SECTION 2.3 PAYMENT. Arvida shall pay the Partnership an amount
equal to the aggregate direct or allocable cost of providing the
Partnership IS Resources to Arvida (the "Arvida Cost") and any sales,
service, excise, value added or other similar taxes as may be assessed in
connection with such payments (other than taxes based on Arvida's net
income, assets or corporate organization) ("Taxes"). The Partnership shall
determine the Arvida Cost and the Taxes for each month within fifteen (15)
days of the end of such month. Arvida shall pay the Arvida Cost and the
Taxes to the Partnership within thirty (30) days of the end of such month.
Alternatively, Arvida may set off its obligation to pay the Arvida Cost
against amounts that the Partnership would otherwise be required to pay to
Arvida pursuant to the Management Agreement.
SECTION 2.4 DETERMINATION OF ARVIDA COST.
(a) CALCULATION. Arvida Cost shall include the sum of:
(i) The total cost that the Partnership incurs to create,
obtain or provide Partnership IS Resources that Arvida uses solely to
provide service to itself or any other legal entity other than the
Partnership Entities; PLUS
(ii) The product of (x) the cumulative, year to date Shared IS
Resource Costs MULTIPLIED BY (y) a fraction, the numerator of which is the
cumulative, year to date A/P, Job Cost and the G/L Record Count for legal
entities other than the Partnership Entities and the denominator of which
is the cumulative, year to date total A/P, Job Cost and G/L Record Count.
(b) ALLOCATION METHODS. All allocations not otherwise described in
this Agreement shall be made using reasonable, fair, common, consistent and
documented methods of allocation that are based on consumption metrics that
are closely related to the type, amount and/or levels of the cost or costs
being allocated. Without limiting the generality of the foregoing,
allocation methods in use as of the Effective Date shall initially be used
to determine the Arvida Cost but may be modified as appropriate under the
circumstances to allocate the Arvida Cost in a fair and reasonable manner
and consistent with the manner in which costs are incurred in regard to the
Partnership Entities, on the one hand, and Arvida and any other legal
entities, on the other hand. Such allocation methods in effect at any time
shall be described in reasonable detail upon the request of either party
hereto.
(c) COMPATIBILITY. The practices for charging and allocating costs
shall be consistent with Arvida's methods with respect to its other
customers and shall not unfairly disadvantage the Partnership relative to
Arvida or its other customers.
(d) CONSISTENT ACCOUNTING PRINCIPLES. All costs shall be
accounted for and determined in accordance with generally accepted
accounting principles applied uniformly in preparing the Partnership's
financial statements, and cost accounting principles utilized consistently
by the Partnership in calculating costs. Modifications or additions to
such principles which would reduce the portion of Shared IS Resource Costs
that are allocated to Arvida shall apply to calculations for this purpose
only to the extent that they have been approved by the Partnership.
(e) REVIEW OF COSTS. The Partnership shall cause its professional
accounting staff to monitor and audit all charges or allocations using
processes which identify any inconsistencies in recordkeeping. These
processes shall be as stringent as those that Arvida uses to monitor and
audit similar costs that shall be borne entirely by Arvida without
reimbursement in a cost-plus or similar arrangement.
(f) OPEN BOOKS. Each party shall have full access to all
information (including source documents) related to any cost charged or
allocated to the Partnership or the Shared IS Resource Costs, and any
method of allocation used in any such calculation. The Partnership shall
provide Arvida any assistance reasonably requested by Arvida in
understanding such costs.
ARTICLE III
TERM AND TERMINATION
SECTION 3.1 TERM. The term of this Agreement shall be from the
Effective Date until the expiration or earlier termination of the
Management Agreement.
SECTION 3.2 OTHER TERMINATIONS. If this Agreement is terminated
other than upon or in connection with the dissolution of the Partnership,
Arvida and the Partnership shall each provide the other such termination
assistance and cooperation as may reasonably be requested to assure a
smooth transition and termination of this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 RELATIONSHIP OF THE PARTIES. By virtue of this
Agreement, the Partnership and Arvida are not partners or joint venturers
with each other and nothing contained herein shall be construed so as to
make them such partners or joint venturers in respect of this Agreement or
to impose any liability as such on either of them.
SECTION 4.2 NOTICES. Any notice required or permitted to be given
hereunder shall be in writing unless some other method of giving notice is
accepted by the party to whom it is given. Notice shall be effective upon
delivery by mail, air courier, or other appropriate means to the following
addresses of the parties hereto:
To the Partnership:
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
and Xxxx Xxxxxxx
To Arvida:
0000 Xxxxxx Xxxx,
Xxxx Xxxxx, Xxxxxxx 00000
and
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Either party hereto may at any time give notice in writing to the
other party of a change of this Section 4.2.
SECTION 4.3 AMENDMENT. This Agreement shall not be changed,
modified, terminated or discharged in whole or in part except by an
instrument in writing signed by both parties hereto, or their respective
permitted successors or assigns, or as otherwise provided herein.
SECTION 4.4 HEADINGS. The Article and Section headings hereof have
been inserted for convenience of reference only and shall not be construed
to affect the meaning, construction or effect of this Agreement.
SECTION 4.5 ASSIGNMENT. This Agreement may be assigned by any party
hereto in connection with (and to the same assignee as) an assignment of
the Management Agreement by such party in accordance with Section 9.2 of
the Management Agreement. Arvida may assign and transfer its rights and
obligations under this Agreement to any entity that acquires the "Arvida"
name without the prior consent of the Partnership. Except as otherwise
provided in this Section 4.5, neither party may assign or transfer its
rights or obligations under this Agreement without the prior written
consent of the other party, which consent may be granted or withheld in the
sole discretion of such other party.
SECTION 4.6 SUCCESSORS AND ASSIGNS. This Agreement shall bind any
successors or assigns of the parties hereto as herein provided.
SECTION 4.7 CHOICE OF LAW. The provisions of this Agreement shall
be construed and interpreted in accordance with, and be governed by, the
laws of the State of Illinois as at the time in effect.
SECTION 4.8 NO THIRD PARTY BENEFICIARIES. It is agreed and
understood that no person other than Arvida, the Partnership and Arvida/JMB
Managers, Inc. (the general partner of the Partnership) will be entitled to
rely upon or enforce any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers thereunto duly authorized as of the Effective
Date.
ARVIDA COMPANY
By: _____________________________
Name:
Title:
ARVIDA/JMB PARTNERS, L.P.
By: ARVIDA/JMB MANAGERS, INC.,
Its General Partner
By: ___________________________
Name:
Title:
