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2010-179
ORDINANCE NO. 2010-179 AN ORDINANCE ACCEPTING SEALED PROPOSALS AND AWARDING AGREEMENTS FOR THE PURCHASE OF SERVICES REGARDING A UTILITY METER DATA MANAGEMENT SOLUTION RELATED TO AN AUTOMATIC METER READING INFRASTRUCTURE SYSTEM FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFSP #4448-REQUEST FOR SEALED PROPOSALS FOR UTILITY METER DATA MANAGEMENT SOLUTION; IN AN AMOUNT NOT-TO-EXCEED $330,030). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of a Utility Meter Data Management System in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Sealed Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City, considering the relative importance of price and the other evaluation factors included in the request for proposals. RFSP NUMBER CONTRACTOR AMOUNT #4448 Itron, Inc. $330,030 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into formal written agreement(s) as a result of the acceptance, approval, and awarding of the proposal, the City Manager or his designated representative is hereby authorized to execute the written agreements; provided that the written agreements are in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents, which are herein approved and accepted. SECTION 4. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of finds therefor in the amount and in accordance with the approved bids. SECTION 5.. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the k day of 0-&&', , 2010. MARK A BUR UGO , MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY B y: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: SOFTWARE LICENSE AND SERVICES AGREEMENT This Itron Software License and Services Agreement (the "Agreement") is entered into as of the last date of execution on the signature page hereto (the "Effective Date") by and between ltron, Inc. ("ltron") and the City of Denton, Texas Denton Municipal Electric ("Customer"). ltron and Customer may each be referred to as a "Part}' and together as the "Parties." The Parties agree as follows: Software Terms a. Definitions. "Delivery" with respect to Software, means that ltron has either made the Software available to Customer via electronic means or has provided the Software to a carrier on physical media for delivery to Customer. "Documentatlon" means all printed or electronic materials published or otherwise that are provided to Customer and that describe or relate to the functional, operational or performance capabilities of the Software. "Meter" means a device used for measuring the amount of electricity, gas or water used at a residence or business or by a machine. If a single Meter serves more than one residence, business or machine, it will count as the number of residences, businesses or machines being served (e.g., where a single Meter serves 10 residences, it will count as 14 Meters). "Object Code" means the binary, machine-readable version of the Software. "Production Environment" means a single instance of the Software used in an environment other than a Test Environment. "Software" means software identified on Attachment A that is owned by ltron and any modifications, corrections, improvements or enhancements thereto provided by Itron. "Source Code" means human-readable computer programming code, associated procedural code and related documentation. "Speciflcations" means the applicable published Itron functional specifications for an item of Software. "Test Environment" means a single instance of the Software used solely for test purposes. Such installation can only be used to verify the correct installation, operation, and integration of the Software and/or components. "Use" means the ability to run, execute, display and, subject to the restrictions described below, duplicate and distribute internally. "Warranty Period," with respect to a particular item of Software shall be 180 days from the date of Delivery. 2. Professional Services Terms a. Definitions. "Change Order" means a written confirmation of a change in the Professional Services, Deliverables or cost thereof that is executed by both Parties. "Deliverable" means any software, reports, results, studies or other documentation identified as a "Deliverable" to be provided by ltron in a SOW. "Professional Services" means the services to be provided by Itron pursuant to a SOW. "SONY' means a written statement of work describing the activities, tasks and responsibilities of ltron and Customer that, at the time of execution, is attached hereto as Attachment B or that, subsequent to execution, references this Agreement and is executed by authorized representatives of the Parties. 3. License Grant. Subject to the terms of this Agreement and for the license fee set forth on Attachment A, ltron grants to Customer a nonexclusive, nontransferable, perpetual Object Code license to Use the Software and Documentation for its internal business purposes only in connection with the number of Meters set forth in Attachment A. a. Restrictions. As a condition to the foregoing license grant, Customer shall not (i) violate any restriction set forth on Attachment A, (ii) modify or create any derivative work from the Software, (iii) include the Software in any other software, (iv) use the Software to provide processing services to third parties or on a service bureau basis, (v) reverse assemble, decompile, reverse engineer or otherwise attempt to derive Source Code (of the underlying ideas, algorithms, structure or organization) from Software, or (vi) use the Software to process business information concerning customers derived through merger, asset acquisition or other entity combination. Except as expressly permitted in this Agreement, (i) the Software may not be installed on a computer that is not part of the Customer's computer network, (li) Customer may not copy the Software other than to make one machine readable copy for disaster recovery or archival purposes, and (ili) installation of the Software shall be limited to one Production Environment and one Test Environment. Customer may only make copies of Documentation as reasonably necessary for the use contemplated herein. The Software and Documentation shall be considered the confidential information of Itron and, as such, shall be subject to the confidentiality provisions of this Agreement. 4. Involcinp. Itron will invoice Customer for the Software upon Delivery. 5. Limited Software Warranty. a. Warranty and Remedy. For the Warranty Period, Itron warrants to Customer that the Software will perform substantially in accordance with the Specifications. Itron does not warrant that the Software will operate uninterrupted or error-free. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron to repair or replace the non- conforming Software. if Itron, in its sole discretion, is unable to repair or replace non-conforming Software, Itron will refund to Customer the amount paid for such Software. Software that is repaired or replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 (thirty) days, whichever is longer. Customer's license to Software for which it has received a refund hereunder shall terminate upon its receipt of a refund. b. Exclusions. The warranty provided in this Section shall not apply to the extent that non-compliance relates to or is the result of (1) use of the Software in combination with software, equipment or communications networks not provided by Itron, (ii) a change to the Software's operating environment not made or authorized by Itron, (Iii) Customer's failure to install any correction or enhancement provided by Itron, (Iv) viruses introduced through no fault of Itron, (v) any use of the Software not authorized by this Agreement. The warranty provided in this Section is valid only if Customer has compiled with the terms of this Agreement (including paying the applicable Software license fees) and shall be void to the extent of any modification to the Software not authorized by Itron. c. Other Software Provisions. Customer shall not, directly or indirectly, export or transmit the Software to any country to which such export or transmission is prohibited by any applicable regulation or statute. The Parties agree that Software provided under this Agreement shall be deemed to be "goods" within the meaning of Article 2 of the Uniform Commercial Code, except when such a practice would cause an unreasonable result. The Parties agree that the Uniform Computer Information Transaction Act (or a version thereof or substantially similar law) shall not govern this Agreement. 6. Audit. a. Generally. Each Party shall have the right to audit and make copies of the books, records and computations pertaining to this Agreement in the possession of the other Party. Each Party shall retain such books, records, documents and other evidence pertaining to this Agreement during the contract period and for five (5) years thereafter; except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, each Party shall require all subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this Agreement, and to allow the other Party similar access to those documents. All books and records will be made available within a fifty (50) mile radius of the office(s) of the Party in possession. The cost of such audits shall be bome by the auditing Party unless the audit reveals an overcharge of 3% or greater by Itron, in which case Itron will be responsible for the reasonable costs and reasonable travel expenses of the audit. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. b. License. Customer shall maintain accurate and detailed records as necessary to verify compliance with the license terms of this Agreement. Itron may audit these records to verify compliance at any time during Customer's regular business hours after giving notice 10 business days in advance of the audit. Except as described below, Itron will bear all costs and expenses associated with the exercise of its audit rights. Any errors in payments identified will be corrected by Customer by appropriate adjustment. In the event of an underpayment of more than 5 percent, Customer will reimburse Itron the amount of the underpayment, reasonable costs associated with the audit, and interest on the overdue amount at the maximum allowable interest rate from the date the obligation accrued. 7. Purchase of Professional Services; License. During the term of this Agreement, Itron will make commercially reasonable efforts to provide to Customer the Professional Services and Deliverables, if any, described in the applicable SOW within the time periods set forth in such SOW. Changes to the Professional Services or Deliverables may only be made through a Change Order. Itron hereby grants to Customer a non-exclusive, perpetual license to use the Deliverables solely for Customer's internal purposes. a. Fees and Expenses. Customer agrees to pay for Professional Services in the manner set forth in the applicable SOW (e.g., on a time and materials basis or on a fixed-fee basis) and at the rates set forth in the applicable SOW. Itron reserves the right to adjust rates for Professional Services performed on a time-and-materials basis no more than once each year. Customer shall also reimburse Itron for reasonable and documented travel, lodging and related expenses incurred in direct connection with the Professional Services. b. Invoicing. Professional Services will be performed either on a time-and-materials basis or a fixed-fee basis, as set forth in the applicable SOW. Professional Services performed on a time and materials basis will be invoiced at the end of the calendar month in which they are performed. Professional Services that are performed on a fixed fee basis will be invoiced as set forth on the applicable SOW or, if not set forth on a SOW, upon completion. c. Limited Professional Services Warranty. Itron warrants to Customer that it shall perform the Professional Services with reasonable care and in a diligent and competent manner. Itron's sole obligation and Customers exclusive remedy in connection with a breach of the foregoing warranty shall be to correct or re- perform the non-conforming Professional Services until the breach is cured. If Itron, in its sole discretion, is unable to correct or re- perform non-conforming Professional Services, its sole obligation will be to refund to Customer the amount paid for such Professional Services within 30 business days after the receipt of Customers invoice. Customer must report any deficiencies with regard to the Professional Services rendered by Itron in writing within 60 (sixty) days of performance to receive the warranty remedies described herein. d. Access to Facilities and Personnel. Customer agrees to provide Itron with access to its facilities and personnel as reasonably required for Itron to provide the Professional Services and Deliverables. All employees and representatives of Itron that perform Professional Services on Customer's premises shall comply with all applicable guidelines pertaining to employee conduct, including Customer safety procedures and policies, provided to ltron by Customer. Neither Party shall require releases or waivers of any personal rights from representatives of the other in connection with visits to its premises, and the Parties agree not to plead any such releases or waivers in any action or proceeding. e. Compliance with Laws. Itron will comply with all federal, state, and municipal laws, ordinances, regulations and orders and all amendments thereto with respect to its performance of the Professional Services. Itron will provide Customer with such documents and other supporting materials as Customer may reasonably request to evidence Ilron's continuing compliance with the provisions in this Section. f. Insurance. During the term of this Agreement, Itron will maintain the levels of insurance as set forth in Attachment C. 8. Payment Terms and Taxes. Invoices will be due and payable 30 days following invoice receipt. For invoices not paid within 30 days of invoice receipt, in addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of 1 percent per month applied against overdue amounts. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Itron will be responsible for and pay all taxes associated with the provision of products or services by Itron generally, including taxes on Itron's income, as may required by law. As a tax exempt entity, Customer will provide Itron with a copy of its Tax Exemption Certificate upon execution of this Agreement. Customer shall pay all amounts due under this Agreement in lawful money of the united States, unless otherwise provided in Attachment A. 9. Chancres. Changes to the products or services ordered by Customer pursuant to this Agreement, including the purchase of additional quantities or entirely new products or services, may be made at Itron's then-current pricing by purchase order or Change Order (in a form acceptable to Itron), provided that any such purchase order must first be accepted by Itron. 10. Confidentiality. The Parties consider the pricing and other information which may be designated by either Party as confidential including, and without limitation, the other terms of this Agreement, to be sensitive commercial information, which is proprietary and is Public Power Competitive Information under applicable Texas law. Accordingly, the Parties shall not use, reproduce, or disclose the confidential information or the terms of this Agreement to any unaffiliated third party unless and to the extent required to make such disclosure by action of a court or other government authority or applicable law, including any requirement to comply with any applicable exchange, control area or independent system operator rule, provided, however, each Party shall provide the other Party with prompt notice of the requirement to disclose confidential information in order to allow the other Party to seek an appropriate protective order or other remedy. The Parties shall only disclose the terms and conditions of this Agreement and other confidential information received from the other Party to those of its affiliates, employees, consultants, authorized representatives, and attorneys having a "need to know" in order to carry out their functions in connection with the Agreement. The obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order Notwithstanding the foregoing, Itron acknowledges that Customer is a public entity and is required to comply with the provisions of any applicable open meeting and public records disclosure laws regarding disclosure of the pricing terms of this Agreement; provided, however, Customer shall use good faith and reasonable best efforts to ensure that all confidential information is kept confidential to the extent possible in accordance with such laws and the exemptions to disclosure therein. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, the non-disclosure obligations set forth in this Section 10; provided, that a breach of this Section 10 shall not give rise to a right to suspend or terminate this Agreement. Each Party will cause its Representatives to comply with the non-disclosure obligations set forth in this Section 10. 11. Intellectual Property Ownership. Between Itron and Customer, all patents, copyrights, masts works, trade secrets, trademarks and other proprietary rights in or related to any product or software provided by ltron pursuant to this Agreement are and will remain the exclusive property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customers feedback shall be the exclusive property of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product, software or deliverable or Itron's confidential information other than rights granted in this Agreement. 12. Indemnification a. General Indemnity. If the defaulting Party is Itron, Itron shall indemnify and hold the Customer harmless from all claims and causes of action, and shall be responsible for Customer's reasonable costs and expenses, including reasonable attorney's fees, incurred in the exercise of its remedies hereunder. If the defaulting Party is the Customer, unless expressly prohibited by applicable law, it shall indemnify and hold Itron harmless from all claims and causes of action, and shall be responsible for Itron's reasonable costs and expenses, including reasonable attorney's fees incurred in the exercise of its remedies hereunder. b. Itron's Indemnification for Third-Party Claims. Itron shall indemnify, hold harmless, and defend Customer and its affiliates and their respective officers, directors, employees, agents, contractors, subcontractors, invitees, successors, representatives and permitted assigns ("Customer's Indemnitees") from and against any and all claims, liabilities, costs, losses, damages, expenses (including reasonable attorney and expert fees) arising out of unaffiliated third parties' claims for injury or the death of any person, and physical damage to tangible property (collectively and individually "Damages") to the extent that the action is caused by Itron's gross negligence or intentional torts. Itron will, at its own expense, defend any claim or action brought against Customer by an unaffiliated third party to the extent that the action is based upon a claim that any product manufactured, software licensed or service provided by Itron hereunder directly infringes any U.S. patent (issued as of the Effective Date) or any copyright or trademark and Itron will pay those costs and damages awarded against Customer (or settled) in any such action that are specifically attributable to such claim. The foregoing indemnity does not apply to products not manufactured by Ilron or software licensed by third parties. c. Customer's Indemnification for Third-Party Claims. Customer shall indemnify, to the extent provided by applicable law, hold harmless, and defend Itron and its affiliates and their respective officers, directors, employees, agents, contractors, subcontractors, invitees, successors, representatives and permitted assigns ("Itron's Indemnitees") from and against any and all claims, liabilities, costs, losses, damages, expenses (including reasonable attorney and expert fees), and/or penalties or fines imposed by government authorities, in any action or proceeding between Itron and a third party for damage to property of unaffiliated third parties, injury to or the death of any person (collectively and individually "Damages"), to the extent such Damages are directly caused by the Customer and/or its officers, directors, employees, agents, contractors, subcontractors or invitees to the extent that the action is caused by Customer's gross negligence or intentional torts. d. Conditions to Infringement Indemnity. Itron's infringement indemnity obligations under this Section are conditioned on Customers agreement that if the applicable product or service becomes, or in Itron's opinion is likely to become, the subject of such a claim, Customer will permit Itron, at ]trop's option and expense, either to procure the right for Customer to continue using the affected product or service or to replace or modify the same so that it becomes non-infringing. Such replacements or modifications will be functionally equivalent to the replaced product or service. If the foregoing alternatives are not available on terms that are reasonable in Itron's judgment, Itron shall have the right to require Customer to cease using the affected product or service in which case Itron will refund to Customer the depreciated value of the affected product or service. e. Exclusions. Itron shall have no obligation under this Agreement to the extent any claim of infringement or misappropriation results from: (i) use of a product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use, (ii) use of any product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combination; (Iii) any use of any release of a software or any firmware other than the most current release made available to Customer, (iv) any claim based on Customer's use of a product after Itron has informed Customer of modifications or changes to the product required to avoid such claims and offered to implement those modification or changes, if such claim would have been avoided or mitigated by the implementation of Itron's suggestions, (v) any modification to a product made by a person other than Itron or an authorized representative of Itron, or (vi) compliance by Itron with specifications or instructions supplied by Customer. Itron shall not be liable hereunder for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer. f. Right to Defend. As a condition to Itron's indemnity obligations under this Agreement, Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense, settlement, adjustment or compromise of the claim and provide Itron with reasonable assistance in connection with such defense. Customer may employ counsel at its own expense to assist it with respect to any such claim. g. Indemnity Disclaimer THIS SECTION CONSTITUTES A PARTY'S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST THE OTHER PARTY. 13. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, (1) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (il) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT AND (III) 4 WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. 14. Representations and Warranties. Each Party represents and warrants to the other Party that: (1) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; (ii) it has, and shall maintain, all regulatory authorizations necessary for it to legally perform its obligations under this Agreement and any other documentation relating to this Agreement to which it is a party; (iii) the execution, delivery and performance of this Agreement and any other documentation relating to this Agreement to which it is a party are within its powers, have been duly authorized by all necessary action and do not violate, to the best of its knowledge, any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; (iv) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms; (v) there are no bankruptcy proceedings pending or being contemplated by it or, to its knowledge, threatened against it; (vi) there is not pending or, to its knowledge, threatened against it or any of its affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement or any other document relating to this Agreement to which it is a party; and (vii) it is acting for its own account, has made its own independent decision to enter into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement. 15. WAIVER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 16. CAP ON LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (1) ITRON'S INDEMNIFICATION OBLIGATIONS HEREIN, AND (II) A BREACH BY CUSTOMER OF (a) ANY INTELLECTUAL PROPERTY RIGHT OF ITRON, OR (b) ANY LICENSE GRANTED BY ITRON HEREUNDER, THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT-WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE---- SHALL NOT EXCEED THE TOTAL AMOUNT PAID HEREUNDER. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 17. Term and Termination a. Term of Agreement. Unless terminated earlier as provided herein, the term of this Agreement shall be 365 days from the Effective Date of this Agreement. The term of this Agreement shall be eligible for renewal, but not automatically renewed, for successive one year periods. Notwithstanding the foregoing, the term of any license provided by Itron hereunder shall be as set forth in the provision granting such license. b. Termination for Convenience Customer may terminate this Agreement without cause, in whole or in part, at any time prior to its expiration by sending Itron written notice at least 30 (thirty) days prior to such termination. In the event of such a termination, Customer shall be obligated to (I) pay any Software license fees that remain unpaid at the time of termination (it being understood that Customer's license to the Software shall not be terminated by any such termination for convenience), and (ii) pay the fees due in respect of the Professional Services rendered prior to such notice plus the reasonable costs associated with winding down the Professional Services, provided that: (A) the Itron has taken reasonable steps to mitigate such costs; and (B) such costs do not exceed the price that was to paid for such Professional Services hereunder. Customer shall not be liable for any lost opportunities or anticipated profits based upon work not yet performed or goods not delivered or for any indirect, special, or consequential losses, relating to such termination. c. Termination for Cause. Either Party may terminate this Agreement by providing the other Party with written notice if the other Party (1) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings; (il) breaches its obligations related to the other Party's confidential information; or (iii) commits a material breach of this Agreement that remains uncured for 30 days following delivery of written notice of such breach (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default and the action required to cure the breach or default). The occurrence at any time with respect to a Party of any of the following constitutes an "Event of Default' with respect to such Party, and such Party shall be a "Defaulting Party": (i) the failure to make, when due, any payment required pursuant to this Agreement if such payment (with applicable interest) is not made within ten (10) business days after written notice is received by the other Party; and (ii) any representation or warranty made by such Party herein that is false or misleading in any significant respect 5 when made or when deemed made or repeated; (ill) the failure to schedule, deliver or take the products or services set forth in Attachments A and B to this Agreement if provided in a quality and manner prescribed in this Agreement; and (iv) default regarding the covenants and provisions of Section 27 herein regarding assignment, consolidation, merger, transfer or amalgamation of a Party's obligations of all or a part of the obligations contained herein d. Obligations Upon Termination for Cause. Upon a termination by Itron for cause, Customer's license to any Software and right to receive maintenance and support for such Software shall immediately terminate and Customer shall (1) delete any Software from all of its computers, (ii) immediately deliver to Itron or destroy all copies of such Software and any related Documentation and (iii) certify in writing to Itron within 10 days of any such termination that, to the best of Customer's knowledge, Customer has complied with this Section. e. Survival. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement shall survive termination or expiration and continue in full force and effect for the period so contemplated including, but not limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, payment terms, confidentiality, waiver of consequential damages, and cap on liability. 18. Miscellaneous. a. Entire Agreement. This Agreement, including all attachments made part hereof, is the Parties' complete and exclusive statement of the terms of the Agreement and the matters contemplated herein. All prior written and oral understandings, offers or other communications of every kind pertaining to the subject matter of this Agreement are hereby superseded. It is understood and agreed that this Agreement contains the entire Agreement between the Parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. This Agreement cannot be changed or terminated orally and no written modification of this Agreement shall be effective unless executed and signed by both Parties. b. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only by a writing signed by an authorized representative of each Party and declared to be an amendment hereto. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. 19. Governing Law; Dispute Resolution This Agreement and all rights and obligations of the Parties hereunder are subject to all applicable State and Federal laws and all applicable duly promulgated orders and regulations and duly authorized actions taken by the executive, legislative or judicial branches of government, or any of their respective agencies, city councils, public utility boards, departments, authorities or other instrumentalities having jurisdiction. This Agreement was executed in the State of Texas and must in all respects be governed by, interpreted, construed, and shall be exclusively enforced in accordance with the laws of the State of Texas. It is agreed that the provisions and obligations of this Agreement are performable in the City of Denton, Denton County, Texas. Should either Party to this Agreement commence legal proceedings against the other to enforce the terms and provisions of this Agreement, the Party who does not substantially prevail in the proceeding(s) shall pay a reasonable amount of attorney's fees and expenses (including, but not limited to expert witness fees and deposition expenses) incurred by the prevailing Party. Any dispute, need of interpretation, claim, counterclaim, demand, cause of action, or other controversy arising out of or relating to this Agreement or the relationship established by this Agreement, any provision hereof, the alleged breach thereof, or in any way relating to the subject matter of this Agreement, involving the Parties and/or their respective representatives (for purposes of this Section 13 only, collectively, the "Claims"), even though some or all of such Claims allegedly are extra-contractual in nature, whether such Claims found in contract, tort, or otherwise, at law or in equity, under state or federal law, whether provided by statute or the common law, for damages or any other relief, shall, if mutually agreed to by the Parties at the time of the Claims, be resolved by binding arbitration in accordance with this Section 13. Arbitration shall be conducted in accordance with the rules of arbitration of the Federal Arbitration Act and, to the extent an issue is not addressed by the federal law on arbitration, by the Commercial Arbitration Rules of the American Arbitration Association ("AAA') as the same may be in effect from time to time to the extent not in conflict with this Section 13 and shall be subject to the Federal Arbitration Act. Each Party shall appoint an arbitrator, within 30 days of the notification of a Party's intent to proceed with arbitration. Within 30 days of their appointment, the two party-appointed arbitrators shall appoint a third arbitrator, who shall be neutral and shall have at least eight years' professional experience in electrical energy-related transactions; shall not have been previously employed by either Party; and shall not have a direct or indirect interest in either Party or in the subject matter of the arbitration. If either Party fails to designate an arbitrator within the time specified or the two Party appointed arbitrators fall to designate a third arbitrator within 30 days of their appointment, the remaining arbitrator(s) shall be appointed by the AAA. Each Party shall pay for the expenses incurred by its designated arbitrator and the costs of the third, neutral arbitrator shall be divided between the parties. 6 The validity, construction, and interpretation of this agreement to arbitrate, and all procedural aspects of the arbitration conducted pursuant hereto shall be decided by the arbitrators. In deciding the substance of the Parties' Claims, the arbitrators shall refer to the governing law. Only damages allowed pursuant to this Agreement may be awarded and, without limitation of the foregoing, the arbitrators shall have no authority to award damages contravening in any way the limitation of liability agreed to by the parties pursuant to this Agreement. It is understood and agreed that judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. It is agreed that the arbitrators shall not have the authority to make rutings of law other than rulings as to the interpretation of this Agreement. 20. Relationship of the Parties. Nothing in this Agreement is intended to create a partnership, joint venture or other joint legal entity making any Party jointly or severally liable for the acts of the other Party. Each Party shall be solely liable for the payment of all wages, taxes, and other costs related to the employment of persons by that Party to perform under this Agreement, including all federal, state, and local income, social security, payroll and employment taxes and statutorily mandated workers' compensation coverage. None of the persons employed by either Party shall be considered employees of the other Party for any purpose; nor shall either Party represent to any person that such persons are or shall become employees of the other Party. 21. Waiver. Delay by any Party in enforcing its rights under this Agreement shall not be deemed a waiver of such rights. The failure of a Party to this Agreement to insist, on any occasion, upon strict performance of any provision of this Agreement will not be considered to waive the obligations, rights, or duties imposed upon the Parties. No waiver of any breach or violation of any term of this Agreement shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or of a different type of breach or violation. 22. SeverabilitvlMateriat Adverse Change. If the federal government or the State government of Texas adopts, enacts, or otherwise imposes a new law, rule or regulation which either makes a Party's performance under this Agreement unlawful or makes this Agreement unenforceable, and such governmental action does not constitute a Force Majeure event under Section 29 of this Agreement, (i) the remainder of the terms, conditions, covenants restrictions and other provisions of this Agreement shall remain in full force and effect unless such an interpretation would materially alter the rights and privileges of any Party hereto; and (li) the Parties shall negotiate in good faith to amend the terms of this Agreement and to determine the appropriate changes, if any, so that the Party affected by such change in law or regulation is able to lawfully perform the entirety of its obligations without materially adversely affecting the financial benefit hereunder to the other Party. 23. Headings and Captions. Section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall include all genders. 24. Counterparts. This Agreement may be executed in any number of counterparts, which may be executed at different times. Each counterpart, including applicable individual attachments shall constitute an original but all such counterparts together shall constitute one and the same instrument. 25. No Third-Party Beneficiaries. This Agreement is neither intended to nor does it create rights, remedies, or benefits of any character whatsoever in favor of any persons, corporations, associations, or entities other than the Parties, and the obligations herein undertaken and assumed are solely for the use and benefit of the Parties, their successors-in-interest and, where permitted, their assigns. 26. No Solicitation. For 18 months following the termination of this Agreement, Customer will not solicit any employee or consultant to leave the employ of Itron, provided that the foregoing shall not be construed to prohibit mass media advertising not specifically directed towards employees or consultants of Itron. 27. Assignment. Neither Party will assign this Agreement, directly or indirectly, without the prior written consent of an authorized executive officer of the other Party, with such consent not to be unreasonably withheld, provided that either Party may assign all or any part of this Agreement to its successor in a merger, consolidation or comparable transaction or to the purchaser of all or substantially all of its assets (or the assets associated with a particular line of business) so long as such successor or purchaser agrees in writing to comply with the terms and conditions of this Agreement and provided that the successor or purchaser has a comparable credit rating with Dun and Bradstreet, or other similar rating agency; and, provided further that Itron may assign this Agreement to an affiliate, including to a parent, subsidiary or sister entity, while remaining liable for performance of this Agreement. 28. Publicity. Unless otherwise provided in a separate confidentiality agreement between the Parties, each Party may issue a press release following the execution of this Agreement, subject to the other Party's advance written approval, which shall not be unreasonably withheld. Each Party hereby consents to the other Party's use of its name, URL and logo on its website and in its customer and partner lists for corporate and financial presentations. 29. Force Majeure. "Force Majeure° means an event or circumstance which prevents one Party from performing its obligations under this transaction, which is not within the reasonable control of, or the result of the negligence of, the claiming Party, and which, by the exercise of due diligence, the claiming Party is unable to overcome or avoid or cause to be avoided. Neither economic harm to a Party nor the financial condition of a Party shall constitute Force Majeure hereunder. In the event that either of the Parties should be delayed in, or prevented from performing or carrying out any of the agreements, covenants and obligations under this Agreement by reason of Force Majeure, then, during the pendency of such Force Majeure but for no longer period, the obligations of the Party affected by the event, shall be suspended to the extent required. Neither Party shall be liable to the other Party for, or on account of, any loss, damage, injury or expense (including consequential damages) resulting from, or arising out of any such delay or prevention from performing; provided, however, the pendency of such Force Majeure will be of no greater scope and of no longer duration than is reasonably required by the Force Majeure, and the Party suffering such delay or prevention shall use its reasonable best efforts to provide the other Party with written notice within twenty four (24) hours after the occurrence of such event, and shall take all commercially reasonable efforts to mitigate the effects of such event of Force Majeure and to remove the cause(s) thereof. Neither Party shall be required by the forgoing provisions to settle a strike affecting it except when, according to its best judgment, such a settlement seems advisable. Force Majeure shall include, without limitation, strike, stoppage in labor, riot, significant fire, flood or ice damage, tornados, invasion, insurgency, civil war, commotion, insurrection, blockades, embargoes, sabotage, epidemics, explosions, acts of terrorism, military or usurped power, order of any court granted in any bona fide adverse legal proceeding or action, order of any civil, military or governmental authority (either de facto or de jure and including, without limitation, orders of governmental and administrative agencies other than The City of Denton or the ltron which conflict with the terms of this Agreement), acts of God or public enemies; provided, however, that existence of the foregoing factors shall not be sufficient to conclusively or presumptively prove the existence of a Force Majeure event. 30. Notices. All notices, requests, statements or payments shall be made as specified below. Notices required to be in writing shall be delivered by letter, electronic media, facsimile or other documentary form. Notice shall be deemed to have been received by the close of the day on which it was transmitted or hand delivered (unless transmitted or hand delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received at the close of the next day on which recipient is open for business). Notice by overnight mail or overnight courier shall be deemed to have been received one (1) day after it was sent (unless delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received on the next day on which recipient is open for business). A Party may change its addresses by providing notice of same in accordance herewith: Itron: Attn: General Counsel Customer: Itron, Inc. Denton Municipal Electric 2111 North Molter Road 1659 Spencer Rd Liberty Lake, WA 99019 Denton, TX 76205 Phone No.: (509) 891-3377 Fax No.: (940) 349-7334 Fax No.: (509) 891-3331 Phone No.: (940) 349-8487 Attn: Phil Williams, General Manager INVOICES: Denton Municipal Electric 1659 Spencer Rd Denton, TX 76205 Phone No.: (940) 349-7642 Attn: J.R. Richardson, Metering Superintendent Email: JR.Richardson@cityofdenton.com [Signature Page Follows] 8 Agreed to and accepted: THE CITY OF DENTON, TEXAS A TEXAS MUNICIPAL CORPORATION Itron, Inc. f : Signature: - Signature I ! Print name: Title: Date: r f.G. . 0 . f 0 ATTEST: JENNIFER WALTERS, CITY SECRETARY Print name: Steven M. Heimbrecht Title: Sr. Vice President & CFO ,uon, Inc. Date l k )J(0 Address: Itron, Inc. Attention: General Counsel 2111 North Molter Road Liberty Lake, WA 99019 v~ APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _0 B w.. U - \ Tax Exempt: Yes / No (if yes, attach copy of Tax Exemption Certificate) [Signature Page to Software License and Services Agreement] Attachment A Pricing Summary Software Quantity One Time License: Fee Itron Enterprise Edition Meter Up to 45,000 Meters $50,000.00 Data Management (IEE MDM), Mass Market IEE MDM AMI Interval Data Billing Up to 45,000 Meters $95,000.00 Module Total $65,000,00 Attachment B Statement of Work ,~i~►~~v~ i~~~~,~~`~~'1~~~ ~~~~i,1~~~~,~l~a~~~~~~~i~~i~~~~ii~~i~,~~~~ i~.i~ii~ii~~~i„1~~~ ~~~~►c~~,~~~,~t~~~~~i~,i Author: ltron fate: January 28, 2010 Version: 1. 1 E_MUMSO*-~ b,-n-[X(vl1l01-2i3-10)( ;t ~ I 1of27 A. About this Document ..........................3 B. Document Controls _ . 4 B.1. Change Record .............4 B.2. Reviewers - Itron ............4 B.3. Reviewers - DMU............................................. .............4 B.4. Document Storage .............4 B.5, Document Owner .........,,.........................,.................................5 C. Project Overview .....6 C.1. Project Overview .....................................................................6 C.2. Delivery Methodology...,..... .....................................................................6 D. Solution Overview ......................11 DA, Solution/ Business Objectives . ......,...11 D.2. Itron Solution To Be Delivered . . .........11 D.3. Solution Diagram 12 E. Key Deliverable Overview 13 F. Project Timeline & Resources 15 F.1. Itron Project Roles and Responsibilities F.2. DMU Project Roles and Responsibilities. 15 G. General Project Assumptions ..................................................................16 GA.. Project Management 17 . G.2 Define, Design, System Architecture & Environments ................................................17 G.3. Install, Build & Configure ...........................................................1g GA. Testing 20 G.5. Training. ..,..,,2Q G.6. Project Transfer 20 H. Service Fees 21 H.I. Additional Services . 21 H.2. Change Control Process ...........................................................21 1. Statement of Work Agreement Approval 22 J. Appendix A - Change Control Process 23 K. Appendix B Change Order Form "Sample' 24 Purpose 1 Rationale for Change Order. 24 Tasks and Responsibilities... 24 Additional Effort & Fees 24 Billing Information- 24 Agreement 25 L. Appendix C ® Project Plan 26 M, Appendix D -Key Terms 27 - ,UN-~ , n rX(v1.101-M-10).dc'm (a~ftwnlc'~I t' ~22d21 PPruxr This document is intended to provide a basis of mutual agreement for the project service required to implement the IEE Meter Data Management (MDM) solution provided by Itron, Inc. (Itron) in accordance with the Itron Software License and Service Agreement signed July 14, 2010, This SOW shall be updated under the Change Control Procedures throughout the duration of the Agreement as needed. This information may also be contained in a Change Carder to which this SOW may be attached and the language in that Change Order would take precedence, Definitions for this document are contained in the Agreement and in Appendix D, ffa~a~ B.. Change Record Date Author Version Change Reference Jan. 27, 2010 Steve Firth 1.0 Date Created Jan. 28, 2010 Phil Duncan 1.1 Various edits and content review B.2. Revicvvers - lion Name Sign Off Required? Position Phil Duncan `Y Director, Software Solutions Delivery 3,. Revi ers - M U Name Sign Off Required' Position :4. Docu °nent Storage This document was created using M (Nord. 1lrara B.5. Doctmvnt Owner This document contains information that is considered "Confidential Information" under the Contract / Agreement.. This document, or portions thereof, should not be referred to, distributed or utilized in any other way outside of the project's needs. P "50',I7 lYr~~a CA Project Overview The purpose of this project is to define I design, install, configure and test the lEE MDM system. The solution must be designed and deployed in a way that does not require changes to the IEE MDM software application. Denton Municipal Utilities (DMU) will be collecting meter data from approximately 45,000 electric meters and 28,000 water meters. Most meter readings are currently being collected over 21 billing cycles with Itron MV-RS, and handhelds. Additionally, DMU has approximately 60 electric meters with 15-minute load profile data being read daily with MV-90xi. DMU is currently installing the Trilliant AMI solution for electric meters and will be collecting one channel of 15-minute interval data from 40,000 residential and approximately 5,300 commercial meters. Approximately 150 additional commercial meters will have two channels of kW and kVA at 5-minute interval data. DMU will want to store two years of on-line data for all meters. Water meter readings will continue to be collected once per month. C.2. Delivery Methodology The Itron Advantage methodology closely follows standard project lifecycle I systems development life cycle (SDLC) methodologies and consists of five phases. They are Define, Design, Build, Deploy f Operate, and Transfer. Each phase is described below. The activities are listed in the phases in the order they are typically performed. Since every implementation is unique, these activities may be able to be performed earlier or later in the implementation process as a project demands. During the Define phase,. the project team scopes the work, prepares a project plan, assigns a project team, conducts a kickoff meeting, and establishes a communication and risk plan. This phase also includes gathering and documenting requirements through workshops. These workshops are organized to gather high-level business f functional, technical, and integration requirements of the solution. The Define phase is critical to launching the rest of the project activities. The Design phase is key to successfully designing the solution. Detailed design sessions and documentation may be used to ensure project requirements are met through system design and business process mapping and testing and training plans are developed.. Two key design documents are created during the Define phase and updated as necessary in the Design phase. These are the Business Solution Design (BSD), which maps requirements to the system design and configuration; and the Technical Architecture Design (TAD), which documents the solution architecture diagram, the required environments, hardware and software requirements, and imports and exports. The Build phase includes installing and configuring the software to meet the business requirements, testing the Itron system and providing training as outlined in the training plan. Configuration includes: defining and applying the system settings, code table lists and field values; creating 1 updating task templates for imports, exports, reports and other processes; importing meter configuration information into ICE MDMS; and setting up process schedules. Testing includes software product QA testing performed by Itron CA in-house, the onsite testing performed by the Itron project team, and the support of client testing. Training is customized for functional and technical personnel and typically delivered using a train-the-trainer approach prior to Go-Live. To move on to the Deploy I Operate phase, the customer must sign off on the solution tested and readiness to cutover and go-live. ! 1 , Tit I 1 O1 2 10) ' During the Deploy t Operate phase Itron supports the implementation rollout. This includes the activities immediately preceding the Go-live as well as any post production support provided. Key activities include: finalization of Production Cutover Plan and support of client-created organizational readiness plan(s); support of client creation of standard operating procedures (if not included in the original estimate, this can be added using a change order if desired), support of the client setup, installation and configuration of the production environment; execution of the steps contained in the production cutover and organizational readiness plans, cutting over to production; and support of post-go-live activities. Tho Transfer pt) w a occurs after project tasks have been completed, and the purpose is to close out project activities and transition the client to Itron Support Services. Key deliverables include: the finalization of project documentation, a knowledge transfer check list identifying the completion of each item on this list in preparation for turnover to the client; formally transitioning client to Itron Support Services; project checklist review and sign- off.. Upon completion of the project, the customer signs off on the project. Itron will prepare a post-project review survey and report that is used for lessons-learned sessions of what worked well and what didn't work as well during the project. Additionally, Itron can provide a system use assessment and optimization session after the system has been operational in order to identify areas that are underutilized, sections that could use additional training, and to answer questions that users have regarding the system and processes. This activity has not been included in the estimate provided; however, it can be added using a change order. Testing Methodology Clients will typically set up a minimum of two environments labeled test and production. Itron performs initial installation, configuration and testing in the test environment. After all interfaces have been implemented and tested, a copy of the code will be taken to be used for the configuration of the production environment. As a best practice, Itron recommends testing be performed in cycles. This iterative approach ensures the system is configured and refined property to achieve the project objectives. Additionally, it serves as training opportunity for the customer Itron's standard testing approach includes the following activities 1 deliverables: Test Plan a Identifies the approach, roles and responsibilities, test cases and acceptance criteria, The test plan will identify the test approach, participants, schedule, environment setup, testing requirements, retesting strategy, test case listing, success 1 acceptance criteria, and test defect management processes. It will be used to create the detailed test cases. Test Cases - Designed to validate functionality, non-functional, scalabil'ity, security and usability, Test cases are developed based on the processes outlined in the test plan. Itron will assist l support the client in their development of additional test cases. The test cases will cover the basic operation of the system. Test cases include the following types of information: • Test condition d Test steps for that test condition m Expected result • Actual result d If test failed, identify impact (severity level) Pre-Testing Review - If requested 1 included, this provides for a pre-testing training session to ensure all participants understand the solution and testing procedures. This is often done by wilking through one or more test cases in the actual system. Testing The actual execution of the tests on the client's hardware performed by the Itron project team and then the client team, supported by the Itron learn (reference the testing type summary table below). Obtain Test Case Sign-riff - Ensures test was completed and expected results achieved. llro g Obtain Test Results Sign-Off - Marks the end of the testing and confirms that the client is ready to deploy in a production environment. Testing Types - Summary ®I ~ ;t •Y'y~~r; Ih~ ,rription fVliahort ~ - FuM,tionai Fuii~Wn.-il tesoig ins-lodes rouGrie tests performeJ anytim(~ a product is Inst_iii, buiid & Yr . tu11e,_l or upg i aded.. It ensures the application ope i ates as expr ;ted. Co, fig _ l ,c It also tests the hierarchy and configuration to ensure accuracy of setup and expected operations. Integration Integration testing is performed by the client with Itron support to ensure the Test IEE MIDMS data interfaces are functioning and system components can pass data and commands as designed!. System End-to-End "system" testing is performed by the client with Itron support to Test ensure that all standard functionality, business scenarios, and custom functionality works as identified in the solution design. Solution End-to-End "solution" testing is identical to the System Test. It is entirely Test performed by the customer to ensure the solution achieves the business objectives. Test cycles are iterative cycles for testing the solution Cycle ? - Owned by Itron. This cycle ensures everything is operating as expected and test cases are complete / comprehensive. Cycle 2- Generally, collaborative testing between Itron and the customer (side by side) to ensure test cases and system configuration meet the requirements. This cycle also provides the opportunity for additional one-on-one training. Cycle 3 - Integration, System and Solution Testing are owned by the customer. By Cycle 3, test cases, interfaces and system configuration are final. Solution should operate as expected. list Y ypu Testing Cycla 1 Tontincy Cycle 2 Tc stir cY Cycle 3 f Ilflttlr nal Itron Owns Min Owns Itrun U.`el1,~ Integration Itron Owns Side by Side Customer Owns System (End-to-End) Itron Owns Side by Side Customer Owns Solution (End-to [Ad) CustomerOwns Training Training is a key component of Itron's delivery methodology to ensure the client's staff is ready to design, test, operate and maintain the IEE MDMS solution. Training is based' on the training plan developed during the project and is conducted over the following phases: Cellne Phase: Solution Capabilities Overview - Near the beginning of the project, the Solution Capabilities Overview is provided. This is a base product overview of the IEE MDMS solution. This ensures that the entire project team understands the solution and can be active participants in the requirements gathering and solution design. tArv Design Phase: Technical Team Training Prior to design, the Technical Team is trained. It provides the technical team with the basic understanding so that they may actively participate in the design and build activities. Build Phase. Testing Team Training Phis training is geared to prepare the testers for testing. They must understand the solution they are testing and the overall testing process. In some cases the client's team identified to test the solution may not be the same as those who participated in prior training, offered. For these individuals, client-specific Solution Capabilities Overview session may be offered to bring them up to speed with basics such as navigation, key product features and functionality. Build Phase: End User Training - Our End User Training is targeted to the users of the system after go live. A sampling of these users is listed below. This training may be delivered in formal course delivery by Itron or in a train-the-trainer approach. M1)%1- LlM MDIVI-CBI ~Ca~ r~~rn~rrarr, custhmerCar~, - Custorn~ri.ar~ kPr. n1i0 IVIDIIVIA,(l~a~A •(Fl,eralor 01)er.)tor 1~1t"`1 c€d ~avaS~urc~ Frr~It~ tS i t a -Advanceti E aii_uituin?r lOl lle ~ 'Cs,teir ~E ~ L +E~:Iei11111 1,lol of 0-e"Ai)r •lirr~; 3 , ~ . . en~a ol . •St ;,;ilr~lill ~ ~~.Elnlir~ 'A4h111r1Iih )tot -Aflinh lor(toi -Adm0)istratg3 +A1.1i00,Jr•A,,,i G `rho table below outlines types of specific training courses conducted in typical IFF MOMS Implementations. Craut'scr Objective Main Training Topics Business Operations This course will provide training on the > Navigation and Ul Training baseline Itrcn system, prior to customer > hfIgh-level data model (key configuration. Training includes functionality Kr-. MDMS entities and and tools and alternatives for customer- relationships) specific configuration. > Graphs and Reports Alerts Security and User Profiles Configuration Par'amotors Application specific features API Training This course provides technical personnel with API overview the knowledge and tools to support > XML integration to Itron products in the customer's > Web Services environment. Training is specific to each API. Real time and batch needs Ik€ t UMfG!-P t';ill'!'M(yr,tO1<<R10)1,- i i Rate Modeler This course provides business and technical personnel with the knowledge to use the Rate Modeler. The course includes many hands- on exercises. > Introduction to the Rate Modeler > Where do I build formulas? > Simple formula syntax and functions Formula constants Integration with VEE Aggregation System This is hands-on training for the System > Security Administration Administrator and is targeted to daily System Settings operation of the Itron product. Training will > User Administration include system settings, security and user > Task Management administration, and task management. Mote > Troubleshooting that more formal classroom-style training is Installing upgrades and available, it desired, but is not anticipated for patches standard projects. "Day in the Life" User This course will provide training on each Itron Details are dependent on the Training system, including functionality and tools and class to be offered. All courses will be useful for system operators and other follow the following high-level users. format; Navigation and User Interface Overviews of solution-specific business functionality Land-on class exercises P1s~rs This section provides an overview of the Itron solution to be deployed as part of this project. W. Soludmi Business 0;)) : 1 ivo'i Itron will work with DMU' to implement the IEE Mf?M solution to achieve the following objectives: Solution Objective (business objectives) project Strategy Deploy a meter data collection, data ruin lgeinont, data Support DMU's requirements for meter data collection, storage, and data distribution solution which includes data management, data storage, and data distribution Validation, Estimation, and Editing (VEE) functionality. including DMU's Validation„ Estimation, and Editing (VEE) requirements. Support the integration between IEE lVDM and external Support DMU's requirements for the Integration between systems to facilitate the distribution of meter configuration and IEE MDM and external systems to facilitate the meter reading data. distribution of meter configuration and meter reading data. Deploy a scalable system and architecture to support growth. Provide DMU with a scalable interval meter data acquisition and management platform to support potential growth in interval meter deployments. Provide an architecture that will support DMU in future efforts to improve and enhance surrounding technologies and business processes. Consolidate system data. Consolidate DMU's existing meter data collection production systems into a single meter data collection and VEE solution. Continue to support customers with minimal disruption Support a variety of internal and external Interval meter through Implementation process. data customers with a bare minimum of disruption to their existing technology and business processes. Provide a set of tools to improve accuracy, integrity, and Support DMU's requirements for providing a centralized audit-ability of meter configuration and meter reading data. energy data repository including a set of tools for ensuring the accuracy, integrity, and audit-ability of meter configuration and meter reading data. D.2. ftron rt To DeRvored This section provides a brief description of the capability to be delivered to DMU. IEE Deter Data Management Itron Enterprise Edition TM Meter Data Management (IEE MDM) is the meter data management component of the IEE platform and provides centralization of meter data management business processes. IEE MDM provides comprehensive validation, editing, and estii nation (VEE) capabilities, composed of both pre-defined and user-defined VEE rules and allows different rule sots to be applied against different meters or groups of meters. IEE MDM also provides robust calculation capabilities via the Universal Calculation Engine (UCE). eves " E' 9 gSKL8S3 }:617AA8'ffan to -d F-°a Catieauan 3eAadutatl 1121--14-1 6vvdd Billing/ C9 CW !'ens aqqc pacC! Business °.acsa "n' Fa t~Asce Sy5ten1Slt ~'fP:. oi, crl Data •wtl,~ Cnnenmarc Outage Management /Network Operations - . _ z P tY of 7 ltl I . „i l X 1 t 01 2R 10),l!:%: rPwr~zt The following are key deliverables required for the successful implementation of the solution. This section provides an overview of these deliverables. Pha o/Area tCcyi'7ztivQralolesl Description rammy Activities' U~^rnr: r ofino Phase 1. Project Planning & Pr%ct ConUW & Project Management is achieving the goals or Itron Kickoff Management Services objectives of the project within budget, on time, and at the desired quality level to meet the Client's expectations. This includes managing resources, scope, risk, project financials and communication. Other activities include project planning a project kickoff meeting. 2. Business Solution Solution Capabilities At the binning of the project, and prior to Itron Requirements & Overview (rralning) requirements gathering, Itron delivers a Design "generic" Itron solution capabilities overview (training). It ensures all project members have a baseline understanding of the Itron solution. 3. Business Solution Solution R ulrer»ents The Itron Business Consultant schedules Itron Requirements & Workshops & Solution Requirements Workshops. These Design Document workshops are working sessions where the Client's current processes (As,ls) are shared and understood and detailed requirements are gathered. Upon completion of the Workshops, solution requirements are documented, in the Business Solution Requirements (BSR) document, and signed-off by the Client. Design Phase 4. System Technical Architecture Upon completion of the Solution Requirements I Itron Architecture, Design & Document Workshops, the Technical Architecture Design Environments & (TAD) Is documented. This documents the To- resign Business Solution Be environment(s) and provides a Design Document recommendation for hardware sr~zing'. The Business Solution Design (BSD) document maps requirements to the system design and 5. System Test & Training Plans Test and Training Plan Design documents are Itron 1 Client Architecture, Design created and Production cut-over planning Environments & begins. Design Production Cut-over Planning Build Phase 6. Installation, Build Install Hardware & Once the hardware has been procured it will be Client & Configure Prepare Environments installed and the environments readied for development, testing, training and production deployment. 7. installation, Build Install & Configure During the product installation, the Itron Itron 1 Client & Configure Software Technical Consultant performs many activities including establishing the server, installing the Interfaces & Integration applications and configuring software connections. Itron will also suppo rt the client in ILL t „f~yr2r lrasa¢a ff Phase /Area Key DellverablesI Description Primary Activities Owner building the interfaces (if included In the original estimate). Once installation is complete, data is forrnatted and collected. Once data is collected, the IEE MDM solution will be configured. Functional testing should occur to ensure all is working as intended. One-on-One hands on training should occur during each of these activities. 8. Installation, Build Pre-Testing Training Prior to testing. Ilron will provide additional IEE Itron i Client & Configure solution training to the core project teach to Test Cases, Scripts & facilitate the testing process. The Client is Data responsible for developing all test cases, scripts and data with support from Won (if included in the original estimate). Jointly undertaken by Testing ltron and the Client, testing is Initiated and follows the sequence outlined in the Itron methodology (Functional, Integration, System i End-to-End, and Solution testing). Client sign- off at each stage is required. 8. Pre- Go-Live and Support Services Upon successful completion of testing, a plan Itron Production Cut- Transition Planning to transition the implementation project to Itron Over Support Services is created. Pre, Go-Live Pro- Go-Live Training training is scheduled and conducted and formal cut-over to Production occurs. Go-Live Transfer Phase - 10, Project Pest-Implementation Postdmplementation support begins on the Go- Itron i Client Support Support Live date. The Itron implementation project team will provide both on-site and remote Execute Transition Plan support to the Client during the agreed upon to Support Services post-implementation timeframe. The Support Services transition plan created prior to Go-Live will be executed, followed by a Phase l Project Client Review and Sign- review between Itron and the Client to assess off (successful Phase/ the success of project efforts and provide sign- Project completion) off i approval to close the Phase i Project. 11,r; n The projer t timeline and resources are based on Itron's hest practices for delivery of IEE MDUtS interfaces as well as the) deliverables and assumptions provided in this Statement of Work. The detailed project schedule and project plan aro located in Appendix C. The project timeline contains estimates based on the information known at this time. F.I. Rol and R 6 Jd i ' a The fallowing table provides an overview of the Itron project roles and responsibilities: Itron ttoto Rosponslhilltles Marne Project Manager Mar :ages the following: TRL - Project Planning & scope - Project Financials - Scheduling & Meetings - Active Participant infTL Business and Technical Facilitates Requirements Gathering TBD Consultants Designs Solution Leads Training Activities Supports Project I Implementation Work Assesses and Designs: - Technical Architecture - Data Workflow - Installs, Configures & Test° th,,RN r ,m MU Pro ro !..:s arm I ~,.(;.3t)ott >iuiiu The following table providua an overview of the Mill project roles and responsibilities: Cficnt Rolo RQSIjDnSit]IIItIes Name Project Sponsor _ Drive ; project charter for the company TBD Provides resources removes obstacles reviews I approves plans & agreements Project Manager Supports Itron Project Manager in: TBD a Achieving project objectives • Tracking progress o Communtcating & managing change Business Process Owner Works with ltron Business Consultant to gather TBD requirements, deskgn & test the solution and leaved the business-related project activities Technical Resources Works with Itron Technical Consultant to design and TBD support meter collection interfaces with all AMI vendors Hardware Procurement. Provides ongoing adminisimlion of Itron system XA~tie~ The purpose of this section is to list the project "general" assumptions about the solution to be delivered and the services to be provided for both Itron and DMU. Listing assumptions ensures expectations are set and clearly understood by both parties. In addition, these assumptions WIl help drive an on time, on budget, in scope delivery of this project. # Assrrmptlon Project S copa Assumptions 1. This is a "baseline" implementation project for the Itron's Enterprise Edition (iEE) Meter Data Management application software. No customization of the Itron application modules or of the standardized' reports, other than explicitly noted in these assumptions, is included in the scope of work. If, during requirements definition and/or business process discussions, the need for a product enhancement, product customization or custom repots are identified, this will be considered out of scope, and wilt require a either a change order or a new Statement of Work to be approved prior to implementation of any change. 2 Itron is proposing the IEE MDM (rel 7.0 with appropriate Service Packs and / or hot fixes) solution only. No upgrade to a future IEE release during this project has been included, nor is an upgrade advisable during the project due to the potential to add significant risks and impacts. 3. This project will focus on DMU's electric meter population. DMU's water meter population can be added at a later time via a change order or a separate Statement of Work (SOW) 4. Scope is based on these assumptions that are limited in nature and have not been confirmed with DMU and / or through detailed requirements gathering which may alter scope, effort, price and / or timeline. Any changes, including changes to approved requirements, wait be documented and managed via the Statement of Work (SOW) and Change Control Process. 5, Any scope not specifically identified in this estimate, Itron's responses to clarifying questions, the approved project plan or Statement of Work (SOW), is expressly excluded. No integration with systems other than those explicitly noted in these assumptions is included in this project 6. The level of services estimated assumes that the project time line is consistent with the schedule specified in the final work plan provided by Itron. Changes to the schedule, including changes in the project start date and / or changes in project duration, may require changes in the estimated effort. 7. Itron has assumed no Systems Integrator (S4) will be involved in this project. This estimate is based on Itron's standard implementation methodology. Should a St be used by DMU on this project, any SI-imposed deviation from Itron's standard implementation methodology will have an impact on the estimate provided. 8. No work will commence unfit the required contractual documents are executed, including Software Licensee agreements, Maintenance Agreement and I or Professional Services Agreement and a Statement of Work (SOW).. Any scope changes to this estimate will only be accomplished by a change order agreed to and signed by both parties. The current Itron hourly consulting services rates will be used for all such additional work. Itron will use their standard Change Order form, unless otherwise specified. For more information about the Change Order process, please refer to Itron's standard Chao( aq ntfol Process, Project Personnel Assumption 9. The Itron Project Manager and /or Solution Delivery Manager Wit provide overall responsibility, sponsorship and executive level support for Itron. 10. Itron has primary responsibility for project planning, management and delivery as specified in the project plan. All Itron project resources Wit report to the Itron Project Manager. 11. The specific Itron personnel who will be assigned to this project may change subject to availability. 12. i;tron and DMU will provide qualified personnel to staff the project to ensure project success and will use reasonable efforts to maintain the c ontinuity of personnel assigned. Itron and DMU will provide dedicated project team members and management resources to ensure timely completion of work, reviews & approvals as agreed upon in the project plan I schedule. 13, DMU will assign a project manager and appropriate staff for the duration of the project. DMU will Identity fi:. r # Assumption experienced resources as outlined in this document pier to the end of the De[ine phase of the project and will ensure that subject matter experts are available for all system components that will integrate with the IF system or use I data. DMU will identify all outside consultants and partners who will participate in the project, along with their roles and provide Itron with their appropriate contact information. 18. Work under this estimate will be performed at DMU facilities and f or Itron locations. DMU will furnish all facilities and related services at the DMU's site that are required by Itron personnel engaged to perform the Services. This includes access to desks, phones, Internet access and conference rooms. 19. Itron will provide the Services under this estimate primarily during normal business hours, 8:00 AM to 6:00 PM Monday through Friday, except holidays. If necessary, DMU will provide after-hours access to DMU facilities for Itron personnel, especially if the testing process requires weekend work. 0,9. ProjectP~7a3i # Assurnptlnn s - 27. All Itron pro;oct resources will use methodologies, tools and templates to be delelmined by the Itron Project Manager. All deliverables completed by Itron wilt conform to standards defined and agreed upon by DMU and Itron. 21. Itron will provide the DMU project team morn. rs wilh standard Itron documentation such as technical architecture, functional P technical specifications, product installation f configuration guide, training presentations 1 materials, etc. for DMU's use in preparing for and executing the project.. 22. DMU will provide access to in-house issue tracking / resolution tools to entire project team. DMU can use M WORD or MS EXCEL to track changes. The objective is to have a single report that is available to all parties that will be wend to record issues and progress towards their resolution. The logging of these issues will be the responsibility of DMU. 0 r' JArchitcf m & Environments 23. Per Itron' standard impl., monti-llion methodology, requirements workshops for lFF product components and configuration will have been identified and communicated to DMU. !iron expects that the appropriate DMU Subject Matter Experts (SMFs) will participate in (nest workshops. Poor attendance or inability to quickly resolve discussion items within the workshops (e.g., vV thin 24 hours) will increase the time to complete the requirements gathering activities and may require a chnngo ordr.,c 24. Itron will be responsible for scheduling addih)nal design sessions (if needed) and producing the Technical Architecture Design (TAD) document. 25. Completed architecture and system design documents (technical architecture and Gvlsiness designs) will include flow charts, outlines, Doses out uts and re rt descriptions and will be reviewed b bosh Itron and DMU and form 1 PYaen the basis for design decisions. 26. Remote access to test and production IEE server(s), networks and gateways will be provided (VPN I Terminal Services f WebEx) by DMU. 27. DMU will provide Itron a local administrator account on all gateways and servers as needed for software installation purposes. DMU acknowledges that the installation of software may require machine restarts and agrees to allow such restarts as may be required. 28, ]iron is not providing any hosting services or servers as part of this scope. DMU is responsible for procuring, setup and configuration of servers and all associated hardware, software and network connections for all environments to support this project including, but not limited to, development 1 test and production servers, in accordance with Itron recommendations and specifications. DMU will be responsible for troubleshooting all network related issues. Hardware configuration guidelines will be provided as a deliverable of the Requirements Sessions. 29. Project assumes that there will be two (2) computer environments: test 1 development and production. 30. The IEE standard' windows authentication functionality will be used to allow IEE users to automatically log on to the GUI using DMU network credentials. If additional functionality is required, a change order will be created and an estimate for the effort will be provided. Application server(s) require Windows 2003 server and client machines require Windows 2003 or Windows XP. Clarification in regards to MS Active Directory: AD groups can only be used for authentication, that is, grant users access to log in to IEE. AD groups cannot be used to authorize or deny specific functions. For this, IEE security roles must be employed. 31. Depending on the actual software to be implemented, all prerequisite hardware and operating system, database and any applicable 3rd party software are the responsibility of DMU and will be installed and configured per Itron`s guidelines by DMU"s IT group prior to Itron commencing the project. These may include some, or all, of the following: • Operating systems • Microsoft IIS • Database software- SQL server or Oracle (including Oracle Enterprise Edition and / or Partitioning license) • Pervasive (current version per IEE Service Mode requirements - required for C&I with A Seance Mode) • Crystal Reports developer license • ChartFX 7,4 WebForms (required for Customer Care) • NetUnity WSRP .NET Framework 2.0 (required for MMCC using porttets within an existing utility portal) • Any other required software if 1 as needed Clarification: Pervasive is not a requirement for this project (we do not anticipate using the "service mode" functionality which is a replacement for MV-90). The NetUnity WSRP is not an Initial requirement as "Mass Market Customer Care - MMCC" is not part of the scope of the project. 32. Desktop (hardware and software) requirements for all DMU systems users will be the responsibility of DMU`s IT group to purchase, install and configure prior to the start of the project. 31 DMU will utilize 3 r party reporting software to create any additional reporting needs beyond the baseline IEE reports and DMU`s personnel will create and maintain those additional reports. Itron will provide an IEE Data Dictionary and training on the document and schema. Aron advisory effort for report design or troubleshooting is additional and not included in the estimate. 34. DMU will be responsible for developing training, production cut-aver and transition to support plans with assistance from Itron. Production cut-over plans include deployment and organizational readiness plans. Itron will share current knowledge and best practices information with DMU. 35. DMU will be responsible for developing and implementing any disaster recovery (DR) plan, including procuring, installing and testing necessary hardware and software and securing any required services and resources. ~.'1 i .1v1101 cL 1ti)~ ;fix r'~ . 1tk[. J rtrc~~r , " &Coiiii! olio # Assumption 36. Ghan es to the IEE MDM meter configuration hierarchy not explicitly covered by the agreed upon Business Requirements document will require an approved charge order to be in place before the changes can be made. The impact of changes will also need to be assessed by Itron and DMU as to the need for additional Itron effort and 1 or changes to schedule. 37. Itron will do or will assist DMU with the initial install of IEE MOM In the test environment. Itron will need, to be advised on any environmental changes made to the network during the course the implementation (i.e. upgrades in OS, security, db, etc.). This will facilitate troubleshooting any conflicts that come up as a result of these changes. Itron does not need to perform these upgrades or additions. 38. Once the hardware has been installed and the environment(s) readied, the software will be Installed and configured. A backup of the IEE database will be made and copied to all subsequent environments. 39. Initial configuration of standard user roles and permissions will be set-up by Itron project team. DMU's technical resources will be responsible for providing initial user data in an Itron approved fonnat. Itron will provide training in the administration of users and permissions to U MU pe rsonnel. DMU personnel wilt be responsible for subsequent additions, deletions or changes to users, perm%ssions and rotes. 40, The Itron solution will be configured according to the customer data provided to Itron by DMU. DMU technical resources will be responsible for providing customer data in an Itron approved format (e.g., program-based configuration, etc.) prior to Itron consulting resources beginning the solution system configuration f implementation. 41. Data migration services will not be provided by Itron and are not Included in this estimate. Data migration is the responsibility of the DMU using the standard IEE product APIs. DMU is responsible for all data cleansing and remediation. 42. Integration 1 interfaces, data migration (if included) and conversion between IEE database and application software and DMU's systems is accomplished using standard IEE product API's as the demarcation point between Itron and DMU. DMU (and f or DMU`s System Integrator) will be responsible for taking data from the Itron interfaces in standard IEE formats to DMU's existing information systems and delivering data from DMU's existing systems to the Itron IEE interfaces in standard IEE formats as follows: • Loading, migration, and importing of DMU's meter configuration data between IEE and DMU's CIS system is the responsibility of DMU and will be accomplished via standard IEE, product APIs using program-based configuration constructs. Any translation required between DMU's core business systems (e.g., CIS 1 Billing, MV-90xi, etc.) is not covered in this estimate. DMU is responsible for formatting all initial customer configuration data into the Itron-provided format. This includes converting XML into an IEE-standard XML format where required. Itron wiill traln and support DMU's personnel to load the initial configuration data. • All subsequent updates, deletions or additions of configuration data will be generated by DMU and delivered by DMU to IEE in IEE standard configuration XML API formats. (WU is responsible for the accurate generation and formatting of the configuration data and for all synd ironization interface development within DMU's systems and between IEE. • IEE provides standard interfaces which will accept meter reads in standard P4, MV-RS or baseline IEE XML format. Any translation required from the meter collection systems is not covered in this estimate. • IEE will supply a read response (meter read data) In baseline P4, MV-RS or IEE XML (using IEE Reading XML) format to DMU's CIS system. DMU will be responsible to translate the standard file format to support integration to other systems, as desired. • MV-RS is assumed to be the method of interfacing with DMU's CIS system. Only limited technical training is included in this estimate to assist DMU in the design, testing and troubleshooting of meter reading data requests and responses. No effort for Itron coding of business logic or data transformation is included. 43. After approval of the solution requirements document, any ongoing system configuration changes are the responsibility of DMU. Ongoing system configuration (adding, removing, or changing, meters, accounts, service points, customers, etc.) will be the responsibility of t MIJ. 44. Assumes Itron will design and implement VEE for interval data; however, there will be no estimation of register data. 45. Development of Standard Operating Procedures (SUPS) is not included in this proposal. If this support is needed, a i aTX(-,,IA01rF 10) Wool # Assumption change order can be generated and approved. G.4. Testing # Assumption 46. Unless otherwise agreed upon, the following rotes related to testing will apply: • DMU will be responsible for leading all testing efforts with support from Itron. Itron will share current knowledge and best practices information with DMU in support of DMU's development and execution of testing activities. • DMU will define testing criteria, test cases and scripts, map requirements to test cases, and create test data. Itron will assist DMU in developing test plans by providing basic test plans to DMU. DMU will further tailor Itrons' test plans if required. • Itron will be responsible for initial functional unit testing upon successful installation and configuration of the database and application software • DMU will be responsible for leading and performing all business and integration testing with support from ltron as needed' Clarification: Itron has a range of recommended tests that we will review with DMU as part of the project definition process. DMU's contribution to this will be to define and document the end to end components of the testing that are outside of the lEE system (beyond the import, system operations, and export), DMU will run the required end to end tests with guidance from Itron on the IEE MDM components and the import and export files. Itron and DMU will jointly agree on the test process in the early stages of the project. G.5. Traintruf Assumption 47. All training will use DMU data, if possible. However, if it is not possible, training will be provided v th test data or Itron demo data. Through prior implementations. Itron has observed that it may be beneficial to utilize demo data for initial / preliminary training (pre-requirements, pre-testing, etc.) as it helps client representatives participating in the training stay more focused (some students have questions, discussions, concerns when seeing their data in the new system for the first time). Using client data during pre- go-live training is generally seen as a best practice. 48. Training approach is assumed that Itron is responsible for initial Project Team training on the baseline application, prior to requirements workshops and testing / client-configuration. DMU will identify attendees for each training session and ensure their attendance at all relevant sessions. The maximum number of attendees for each session will be ten (10) attendees. More than ten (10) attendees will require additional instructors and associated costs. Itron will also provide pre- go live training on the Itron products in scope via a "Train-the-Trainer" approach. DMU will be responsible for all subsequent in-house training needs (DMU's users within, and outside of, DMU). 49, DMU agrees to fumish training facilities as required by Itron including dedicated training space (not shared with other concurrent company work activities), white board' and / or tablet space with markers for instructor notations and diagrams, projection equipment (minimum 1020 X768 lines of resolution). Itron recommends one training computer per student. A minimum of one training computer for every two students is required. G.6. Tra # Assumption 50. Once transition of the project to Itron Support occurs, standard product support begins (as described in the Maintenance Services provisions). Mon Total fees are estimated to be in U 330,030.00 on a Time & Materials (T M) basis. I'liv- l Area 1. Project Management 2. Define 3. Design 4. Build (includes testing) 5. Transfer Total Est. Flours I Est. `total 246 471 396 672 52 $46,740.00 $89,490.00 $75,240.00 $108,1680.00 $9,880.00 $330,030.00 Actual, reasonable travel related expenses will be billed directly to UMU on a monthly basis with no markup. Itron will invoice DMU on a monthly basis for work performed and for costs incurred. If at any paint, there is reason to believe that this amount will be exceeded, Itron will immediately notify t3MU as to the changes in the estimate and request a Change Order, which must be approved by both DMU and Itron prior to being in effect. Payment terms are net 30 unless other terms are specified in the Contract / Agreement (or within ether Master or Solutions Contract Agreements) executed by and between Itron and DIVIU. DMU and Itron agree to process invoices in a timely manner consistei it with the payment terms. H.1. Additional Services Additional services are subject to the terms in the Contract / Agreement. - 6.12. Chan Control Procm A Project change order (Change Order) will be the vehicle for communicating changes. The Change Order must describe the change requested, the rationale for the change, the estimated price and the effect the change will have on the Project. All Change Orders must be approved in advance by UMU. The Change Control Procedure is described in Appendix A and a sample Change Order Form is included in Appendix S. h,` 41 ~Y-L ~e~~Tv(+~11 G1 f_u 111).a~ ~t".~i P'~,e.21 o 27 rfr~;@ Denton Municipal Electric agrees to these terms and authorizes commencement of the Project as described in this SOW. 6entan Municipal Electric ltron `title Steve M. Helmbrecht Sr. Vice PresWent & CFO 11ron, Inc. Title Date Date SOW Author: Steve Firth Please return this signed SOW to: itron, Inc. 2111 N. Molter Pd. Liberty Lake„ WA 99019 Attn: Contract Administration Fax: (509) 891-3331or PDF and email to contract.re4 i(F ,n,com. -a fully executed version will be returned. EE ~ F)V Pea.vn IX(v1.1 !t?vura Project Scopo Change Proco'E Change Rc(1tre3t Form Utility & ltron Initiate Change Reque_,t Form including: ■ Project Requiremerits ■ Problem Statement Utility & Itron Determine Change Classification and impact to the Project based on: ■ Scope ■ Resources ■ Schec!rf; Utility Screens Change Request Form for preliminary approval and if approved forward to ltron for processing llron Project Management assigns Change Request Form to appropriate Itron personnel for analysis Itron Perform analysis of change request and document results including changes to: ■ Cost or schedule Project scope, strategy Itron Once complete, submit Change Request Fon n to Utility for approval utility Approve or dispute Change Request findings: ® Approve ® Provide alternative and nOgGtiat() ~-Jltron Itron When approved, forward form to Itron Account Executive to initiate an Agreement Change Older and implement Nip ehanaefsl 11 M'~' P,=.<,riIXlvl.'1~1-.tlisp!'2K frr,~n This document references the Statement of Work between Client ("Customer") and itron, Inc. Corp (Itron) > Insert Title of SOW or Project Name. signed > Insert Hate when SOW was signed.). The document specifies a change to the original agreement. At Client's request, Itron is providing additional effort > Insert brief description of additional work. The detailed tasks, time estimates and additional fees are outlined below. A signature on this document will represent the required authorization to proceed with the additional tasks specified in this Change Order. Purpose/ Rafionale for Change o >(List reason for change order, Include other options discussed and conclusions):. Li Tasks and ResponsiblIfts 9 >(I..ist task(s), approach(es) to be taken, responsibilities of all parties, deliverables):.. Addi nal Effort & Fees Below is an estimate of the additional Itron hours and fees associated with the additional tasks outlined above. Billing Informaflon To ensure that Itron has all the correct billing information, please verify the following Client billing information: > Insert it there are special billing requirements Special Fulling Requirements? > If unknown, make space in here (by pressing [Enter) key...} ...so that the customer can handwrite instructions. P(? # >Insert PO# (if there is one) ffrr a I accept the noted terms and authorize commencement of the project described in this Statement of Work. Client Itron, Inc. Authorized Signature Authorized Signature <DO NOT SIGN - SAMPL > Printed Name Title Date Printed Name Title Date Please return this signed Change Order to: Itron, Inc. 2111 N. Molter Rd. Liberty Lake, VILA 99019 Attn: Contract Administration Fax: (509) 891-3331or pdf and email to i .ln i ,1:-t r~~'p t in, ;om -a fully executed version will be returned. W6 i.'.'I Denton tEE VIDM Std Irfem Proj Plan v2, 4-1 '!l Ixvl 101 1014! This section provides a listing and definition of the key terms referred to in this document. Town Daflnition API ,Appliratlon Programming Interface BUR Business Management Review. BSD Business Solution Design document IEE Itron Enterprise Edition MCM Meter' Data Management System SME Subject Matter Expert sow Statement of Work TAIL Technical Architecture design document T's and C's Terms and Conditions UCE Universal Calculation Engine VEE Validation, Editing, Estimation Events 1 Alarms 1 Tampers IEE supports the import of any diagnostic events, alarms (including outage and restore) and tamper flags currently recorded by the meter and output as an event or alarm to the collection system. Events are typically delivered to IEE as part of a response to a scheduled read request. Alarms are typically delivered as they occur. Scheduled Read Request A "scheduled react" or "periodic read" request is the method by which interval reads, register reads and diagnostic event data is requested from AMI meters on a regularly scheduled basis. Readings requested via a Scheduled Read Request are intended to be validated by the MDM, permanently stored, and eventually distributed to other utility systems. Is,r;;17,[V Attachment C Insurance Requirements CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from award of the contract. Upon bid award, all insurance requirements shall become contractual obligations, which the successful bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, avner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of bid mvard, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the bid number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractors are strongly advised to make such requests prior to bid opening, since the insurance requirements may not be modified or waived after bid opening unless a written exception has been submitted with the bid Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted. Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A-. • Any deductibles or self-insured retentions shall be declared in the bid proposal. • Liability policies shall be endorsed to provide the following; • Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. • That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 (lay written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims-made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of two years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered, • Should any of the required insurance be provided under a farm of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract tern, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X ] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for; any auto, or all owned, hired and non-owned autos. [X] Workers Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. [ ] Professional Liability Insurance Professional liability insurance with limits not less than per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. MAINTENANCE AGREEMENT This Maintenance Agreement (this "Maintenance Agreement") is entered into as of the last date of execution on the signature page hereto (the "Effective Date") by and between Itron, Inc. ("ltron") and of the City of Denton, Texas (Denton Municipal Electric) ("Customer"). Itron and Customer may each be referred to as a "Party' and together as the "Parties." The Parties agree as follows: 1. Technical Support a. Support Services. Itron will make available qualified technical representatives by telephone, email or other remote means during its then-current normal business hours to assist Customer Coordinators (defined below) with the operation of and answer questions related to the Itron software (the "Software") Identified on Attachment A which is covered by the services described herein (the "Maintenance Services"). Such technical support shall include, but is not limited to, troubleshooting, problem diagnosis, release or system management, and recommendations for fully utilizing the Products. ltron's current Support Services contact and support hours are described in the "Itron Supports Services Contacts" document (the "Contacts Document'), a copy of which is attached hereto as Attachment B. Consistent with Section 1.c hereof, Customer wiil not use Support Services technical representatives in lieu of having qualified and trained support personnel of its own. b. Field Support. Upon mutual agreement of the Parties, Itron will dispatch support personnel to Customer's location to provide technical support. Such support will be billed at Itron's then-current hourly rates (with reasonable travel and living expenses invoiced at Itron's cost) unless the cause of the reported problem is found to be the fault of Itron. C. Customer Coordinators and Service Requests. Customer will identify no more than 2 supervisory level employees (each a "Customer Coordinator") for each Itron product line, as identified in the Contacts Document, to serve as administrative liaisons to Itron for all matters pertaining to the Maintenance Services for such product line. Customer Coordinators shall report problems with the Software (each such report, a "Service Request") as soon as practicable for entry into Itron's support tracking system. Before a Customer Coordinator interfaces with Itron, he or she will attend training sessions offered by Itron to ensure that he or she is (a) knowledgeable about the operation of the Products, and (b) qualified to perform problem determination and remedial functions with respect to the Products. Such training sessions will be at Itron's then-current rates. Customer will be solely responsible for all travel and other expenses incurred in connection with such training sessions. If Itron notifies Customer that additional training is necessary, Customer will promptly ensure that all applicable employees and/or Customer Coordinators receive such training. 2. Software Maintenance a. Definitions. "Error" means a failure of the Software to substantially comply with the applicable published Itron specifications. "Fix" means a correction of an Error, including a work-around, in order for the Software to function in accordance with the applicable published Itron specifications. "Improvement' means an update, modification, enhancement, extension, new version (regardless of name or number), new module, or other change to the Software that is developed or otherwise provided by Itron. "Software Release" means a collection of Fixes or Improvements made available to Itron customers(eilher via physical media or download access). b. Fixes. Itron shall make commercially reasonable efforts to provide Fixes for Errors identified in a Service Request in accordance with the Response Time, Effort Level, and Escalation Path guidelines (together, the "Service Levels") outlined below for the applicable Severity Levels identified therein. Itron's obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, and (III) assigning its most qualified personnel to help Itron address the Error. Severity Level Response Times Effort Level and Escalation Path Severity Level 1. An Error for which there Itron will respond to the Service Itron will have technical analysts make diligent efforts on a 24x7 is no work-around that causes the Software Request within 4 business hours of basis, or as otherwise agreed by the Parties. A Service Request to be unavailable. receipt and will update Customer at shall be escalated to ltron's Call Center Manager if a Fix Is not three hour Intervals each day for provided within 1 business day of Itron's receipt of a Service unresolved Service Requests, or as Request. otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three hours. Severity Level 2. An Error other than a Itron will respond to the Service Itron will have technical analysts make diligent efforts during Severity Level 1 Error for which there is no Request within 1 business day and normal business hours. Service Requests shall be escalated to work-around that results in a severe loss of will update Customer at least every Itron's Call Center manager if a Fix is not provided within 3 access to the Software or that causes other day. Customer will respond to business days of Itron's receipt of a Service Request. essential features of the Software to not an Itron inquiry or request within 1 work. business day. SeyerityLevel Response Times Effort Level and Escalation Path Severity Level 3. An Error other than a Itron will respond to the Service Itron will have technical analysts make diligent efforts during Severity Level 1 or Severity Level 2 Error Request within 2 business days. normal business hours. that has a material impact on the functionality of the Software (e.g., a feature is not working as documented but a work- around is available and significant business functions are not materials impaired). Severity Level 4. An Error other than a Itron will respond to the Service Itron will have its support analysts devote commercially Severity Level 1, Severity Level 2 or Request within 3 business days, or reasonable efforts during normal business hours. Severn Level 3 Error. as otherwise agreed by the Parties. Severity Level 5. A Service Request for an NIA Itron will pass the Service Request to its internal Product enhancement or new functionality. Management for review. If the enhancement or new functionality requires more immediate attention, Itron Consulting Services can be engaged to create a customized proposal at Itron's then-current services rates. C. Improvements. Itron shall provide Improvements, if any, at its then-current price for such Improvements (or at no charge if such Improvements are made available to Itron customers generally at no charge). d. Software Releases. I. Release Numbering Convention. Fixes and/or Improvements are made available to customers through periodic Software Releases. For informational purposes, Itron's current practice (which may be changed at any time in Itron's discretion) is to provide Releases using the numbering convention "XX.YY.ZZ." • The "XX" in Itron's numbering convention refers to a "System Release," which is a new version of the item of Software. A System Release may include Fixes, Improvements or interfaces to new functional modules or platforms not previously supported by Itron. • The "YY" in Itron's numbering convention refers to a "Service Pack Release," which is an update to a System Release. Service Pack Releases may include Fixes or Improvements and are provided to Itron customers generally on a periodic basis. • The "ZZ" in ltron's numbering convention refers to a "Hot Fix Release," which is an unscheduled release provided to one or more customers as a short-term, temporary fix to a Severity Level 1 Error. While not utilized by all Itron software product lines, Hot Fix Releases are not made available to Itron customers generally but may be included in the next scheduled Service Pack for general release. fl. Support for Releases of Itron Enterprise Edition and Openway Software. This subsection applies only to Itron Enterprise Edition and OpenWay software products. Maintenance Services for Itron Enterprise Edition and OpenWay software products shall be limited to the most recent System Release and the prior System Release (and the most current Service Pack Release associated with such System Release). Customer will test and install Service Pack Releases associated with the System Release in use by Customer within 6 months of such Service Pack Releases being made available to Customer. Customer will upgrade to the latest System Release at least every twenty-four (24) to thirty-six (36) months. At Customer's request, Itron will assist with any such upgrade at its then-current hourly rates. Itron may elect to provide Maintenance Services for an unsupported Release of Software at its then-current rates for customer support. iii. Support for Releases of all Other Itron Software. This subsection applies to all Itron software other than Itron Enterprise Edition and OpenWay software products. Maintenance Services for all Itron software other than Itron Enterprise Edition and OpenWay software products shall be limited to the most recent System Release and the two prior Service Pack Releases. Customer will test and install System Releases and Service Pack Releases within 12 months of such Releases being made available to Customer. At Customer's request, Itron will assist with any such upgrade at its then-current hourly rates. Itron may elect to provide Maintenance Services for an unsupported Release of Itron software at its then-current rates for customer support. e. Interoperability. Itron makes no representation or warranty regarding the ability of the Software to interoperate with third party hardware or software other than software or hardware identified as compatible with the Software in Itron's published documentation for such Software (the "Documentation"). f. Documentation and Software Library. Itron will make an electronic copy of the Documentation available to Customer at no additional charge via physical media or download access. Itron will maintain a copy of its most recent supported version of the executable Software to be made available to Customer as necessary in the event of corrupted or inoperative Software. g. Restoring Software to Maintenance Services. If Customer declines Maintenance Services after the end of warranty or discontinues Maintenance Services for any Software, and thereafter wishes to resume Maintenance Services for the most recent Release of such Software, Customer shall, prior to receiving such Maintenance Services, notify Itron in writing of its request for Maintenance Services and pay Itron's then-current re-initiation fee. h. Exclusions. Itron shall have no obligation to Customer to the extent any Software is adversely affected by: (i) use of the Software in combination with other software, equipment or communications networks that are not referenced in the Documentation; (ii) any modification to the software or operating environment that is made other than through the fault of Itron, after the Effective Date; (iii) the use of a version of the Software that is not supported by Itron; (iv) Customer's failure to implement a Fix provided by Itron; (v) the operation or maintenance of the Software other than through the fault of Itron; (vi) viruses introduced through no fault of Itron; (vii) use of the Software other than as permitted by Itron; or (viii) Customer's failure to perform Customer responsibilities in accordance with this Agreement. I. Customer Responsibilities. Remote Communications. Customer will obtain, install, operate, and maintain remote communications software and equipment in a manner that will allow for remote access to the Software. Customer will make such remote access available to Itron representatives, as necessary, for remote diagnosis and troubleshooting of the Software. ii. System Configuration and Administration. Customer will ensure that its equipment, operating system, and data communications environment associated with the Software is configured, operated, and maintained in accordance with the Documentation and any applicable third party documentation. These administrative activities shall include but not be limited to: checking audit logs, clearing discovered exceptions, and performing daily, weekly, and monthly operational tasks and system responsibilities. Customer will consult with Itron prior to making changes that may affect the operation of the Software. Ill. Network Administration. Customer will monitor and maintain, repair, replace and upgrade its local, and wide area network components (if any)-including network servers, network clients, network hubs, routers, modems, and other software components necessary for efficient and reliable network operations associated with the Software-to ensure continued conformance with the Documentation. In addition, Customer will administer related host names, Internet Protocol addresses, network interfaces, access, security, communications, and equipment and software version control. iv. Database Administration. Customer will administer the agreed upon database(s) associated with the Software, including hardware and software components, in accordance with the Documentation or any applicable third party documentation, which administration shall include, monitoring the database server, backing up electrical power sources, and configuring and administering of database schema, application interfaces, networking operating system, communications, and file transfer software. Customer will maintain database files (e.g., truncate, cleanup, and delete files consistent with industry standard practices)and perform regular data backup and data archiving. V. Data Review. If Itron determines that it is necessary to evaluate Customer data in order to reproduce error conditions not reproducible with Itron's standard test data sets, Customer will provide Itron with access to such data. Itron will manage such data in a secure manner while in use and delete the data from Itron systems upon completion of the investigation. Itron shall not be liable for any delay or failure to resolve the problem if access to such production data is denied to Itron. 3. Compensation and Payment a. Definitions "Annual Adjustment' means Itron's standard price increase. "Annual Fee" means the annual fee set forth on Attachment A hereto for the Software identified thereon plus the Annual Adjustment, if any. The Annual Fee for Maintenance Services to be provided for any partial Maintenance Year (i.e., for software with a Maintenance Commencement Date that falls after the beginning of the Maintenance Year) shall be prorated based on the applicable number of months Customer Is to receive Maintenance Services during such Maintenance Year. "Maintenance Commencement Date" means the date for commencement of the Maintenance Services for the Software identified on Attachment A hereto. "Maintenance Year" means any period of 1 year during the Term beginning on the Effective Date or any anniversary thereof b. Compensation and Invoicing. As compensation for the Maintenance Services, Customer shall, in advance, pay to Itron the Annual Fee for each Maintenance Year In which it receives Maintenance Services.. Itron shall invoice Customer for Maintenance Services to be provided during the first Maintenance Year as soon as practicable following the Effective Date. For Maintenance Services provided during any subsequent Maintenance Year, including Maintenance Services for newly purchased software, Itron shall provide Customer with a renewal notice at least 100 days prior to the commencement of each Maintenance Year. Customer may discontinue Maintenance Services by providing Itron with written notice of nonrenewal no less than 30 days prior to the commencement of any subsequent Maintenance Year. Approximately 20 days prior to the commencement of any subsequent Maintenance Year, Itron shall provide Customer with an invoice for the Annual Fee payable by Customer for the forthcoming Maintenance Year. Itron may, in its discretion, invoice Customer for Maintenance Services for a product that is added during the course of any Maintenance Year as soon as such product has been added or at the beginning of the next Maintenance Year. C. Payment. Invoices will be due and payable 30 days following invoice receipt. For invoices not paid within 30 days of invoice receipt, in addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of 1 percent per month applied against overdue amounts. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Itron will be responsible for and pay all taxes associated with the provision of products or services by Itron generally, including taxes on Itron's income, as may required by taw. As a tax exempt entity, Customer Will provide Ilron with a copy of its Tax Exemption Certificate upon execution of this Agreement. Customer shall pay all amounts due under this Agreement in lawful money of the United States, unless otherwise provided in Attachment A. 4. Term and Termination a. Term. Unless terminated earlier as provided herein, the term of this Agreement shall be 365 days ("Term") from the Effective Date of this Agreement. The term of this Agreement shall be eligible for renewal, but not automatically renewed, for successive one year periods. b. Termination. Either Party may terminate this Maintenance Agreement effective as of the end of any Maintenance Year by giving the other Party written notice of termination at least 60 days prior to the end of such Maintenance Year. If either Party commits a material breach of or default under this Maintenance Agreement or any agreement between the Parties related to this Maintenance Agreement, then the other Party may give such Party written notice of the breach or default (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Maintenance Agreement that are in breach or default and the action required to cure the breach or default) and, at the notifying Party's election, this Maintenance Agreement shall terminate pursuant to this Section if the breach or default is not cured within 30 days after receipt of notice (or such later date as may be specified in the notice). The occurrence at any time with respect to a Party of any of the following constitutes an "Event of Default" with respect to such Party, and such Party shall be a "Defaulting Party": the failure to make, when due, any payment required pursuant to this Agreement if such payment (with applicable interest) is not made within ten (10) business days after written notice is received by a Party any representation or warranty made by such Party herein that is false or misleading in any significant respect when made or when deemed made or repeated; (Ili) the failure to schedule, deliver or take the products or services set forth in Attachments A and B to this Agreement if provided in a quality and manner prescribed in this Agreement; and (iv) default regarding the covenants and provisions of Section 9 herein regarding assignment, consolidation, merger, transfer or amalgamation of a Party's obligations of all or a part of the obligations contained herein. C. Effect of Termination. Itron shall not be obligated to provide any Maintenance Services after the end of the Term. If either Party terminates the Maintenance Agreement for a reason other than a termination for breach or default or if Itron terminates Maintenance Services for one or more Products, Customer shall be entitled to a prorated refund of the Annual Fee within 30 business days. d. End of Life /End of Support. Itron may discontinue Maintenance Services for the Software, effective as of the end of the current Maintenance Year, by giving Customer written notice of such discontinuance no less than 120 days prior to the end of such Maintenance Year. At Customer's request, Itron may elect to provide custom support for products for which Maintenance Services have been discontinued at Itron's then-current rates. e. Survival Any provision of this Maintenance Agreement that contemplates performance or observance subsequent to termination or expiration of this Maintenance Agreement shall survive termination or expiration and continue in full force and effect for the period so contemplated including, but not limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, payment terms, confidentiality, waiver of consequential damages, and cap on liability. S. Indemnification a. General Indemnity. If the defaulting Party is Itron, Itron shall indemnity and hold the Customer harmless from all claims and causes of action, and shall be responsible for Customer's reasonable costs and expenses, including reasonable attorney's fees, incurred in the exercise of its remedies hereunder. If the defaulting Party is the Customer, unless expressly prohibited by applicable law, it shall indemnify and hold Itron harmless from all claims and causes of action, and shall be responsible for Itron's reasonable costs and expenses, including reasonable attorneys fees incurred in the exercise of its remedies hereunder. b. Right to Defend. As a condition to Ilron's indemnity obligations under this Agreement, Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense, settlement, adjustment or compromise of the claim and provide Itron with reasonable assistance in connection with such defense. Customer may employ counsel at its own expense to assist it with respect to any such claim. 6. Representations and Warranties. Each Party represents and warrants to the other Party that: it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; (ii) it has, and shall maintain, all regulatory authorizations necessary for it to legally perform its obligations under this Agreement and any other documentation relating to this Agreement to which it is a party; (Ili) the execution, delivery and performance of this Agreement and any other documentation relating to this Agreement to which it is a party are within its powers, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents, any contracts to which it is a party or any law, rule, regulation, order or the like applicable to it; (iv) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms; (v) there are no bankruptcy proceedings pending or being contemplated by it or, to its knowledge, threatened against it; (vi) there is not pending or, to its knowledge, threatened against it or any of its affiliates any legal proceedings that could materially adversely affect its ability to perform its obligations under this Agreement or any other document relating to this Agreement to which it is a party; and (vii) it is acting for its own account, has made its own independent decision to enter Into this Agreement and as to whether this Agreement is appropriate or proper for it based upon its own judgment, is not relying upon the advice or recommendations of the other Party in so doing, and is capable of assessing the merits of and understanding, and understands and accepts, the terms, conditions and risks of this Agreement. 7. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MAINTENANCE AGREEMENT, EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREIN, THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS MAINTENANCE AGREEMENT--WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE-SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS MAINTENANCE AGREEMENT DURING THE MAINTENANCE YEAR IN WHICH THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE. 8. Force Majeure. "f=orce Majeure" means an event or circumstance which prevents one Party from performing its obligations under this transaction, which is not within the reasonable control of, or the result of the negligence of, the claiming Party, and which, by the exercise of due diligence, the claiming Party is unable to overcome or avoid or cause to be avoided. Neither economic harm to a Party nor the financial condition of a Party shall constitute Force Majeure hereunder. In the event that either of the Parties should be delayed in, or prevented from performing or carrying out this Agreement, covenants and obligations under this Agreement by reason of Force Majeure, then, during the pendency of such Force Majeure but for no longer period, the obligations of the Party affected by the event, shall be suspended to the extent required. Neither Party shall be liable to the other Party for, or on account of, any loss, damage, injury or expense (including consequential damages) resulting from, or arising out of any such delay or prevention from performing; provided, however, the pendency of such Force Majeure will be of no greater scope and of no longer duration than is reasonably required by the Force Majeure, and the Party suffering such delay or prevention shall use its reasonable best efforts to provide the other Party with written notice within twenty four (24) hours after the occurrence of such event, and shall take all commercially reasonable efforts to mitigate the effects of such event of Force Majeure and to remove the cause(s) thereof. Neither Party shall be required by the forgoing provisions to settle a strike affecting it except when, according to its best judgment, such a settlement seems advisable. 9. Assignment. Neither Party will assign this Maintenance Agreement, directly or indirectly, without the prior written consent of an authorized executive officer of the other Party, with such consent not to be unreasonably withheld, provided that either Party may assign all or any part of this Maintenance Agreement to its successor in a merger, consolidation or comparable transaction or to the purchaser of all or substantially all of its assets (or the assets associated with a particular line of business) so long as such successor or purchaser agrees in writing to comply with the terms and conditions of this Agreement and provided that the successor or purchaser has a comparable credit rating with Dun and Bradstreet, or other similar rating agency, and provided further that Itron may assign this Maintenance Agreement to an affiliate, including to a parent, subsidiary or sister entity, while remaining liable for performance of this Agreement. 10. Waiver. Delay by any Party in enforcing its rights under this Agreement shall not be deemed a waiver of such rights. The failure of a Party to this Agreement to insist, on any occasion, upon strict performance of any provision of this Agreement will not be considered to waive the obligations, rights, or duties imposed upon the Parties. No waiver of any breach or violation of any term of this Agreement shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or of a different type of breach or violation. 11. Audit. Each Party shall have the right to audit and make copies of the books, records and computations pertaining to this Agreement in the possession of the other Party. Each Party shall retain such books, records, documents and other evidence pertaining to this Agreement during the contract period and for five (5) years thereafter; except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, each Party shall require all subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this Agreement, and to allow the other Party similar access to those documents. All books and records will be made available within a fifty (50) mile radius of the office(s) of the Party in possession. The cost of such audits will be bome by the auditing Party unless the audit reveals an overcharge of 3% or greater by Itron, in which case Itron shall be responsible for the reasonable costs and reasonable travel expenses of the audit. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 12. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only by a writing signed by an authorized representative of each Party and declared to be an amendment hereto. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. 13. Governing Law; Dispute Resolution This Agreement and all rights and obligations of the Parties hereunder are subject to all applicable State and Federal laws and all applicable duly promulgated orders and regulations and duly authorized actions taken by the executive, legislative or judicial branches of government, or any of their respective agencies, city councils, public utility boards, departments, authorities or other instrumentalities having jurisdiction. This Agreement was executed in the State of Texas and must in all respects be governed by, interpreted, construed, and shall be exclusively enforced in accordance with the laws of the State of Texas. It is agreed that the provisions and obligations of this Agreement are performable in the City of Denton, Denton County, Texas. Should either Party to this Agreement commence legal proceedings against the other to enforce the terms and provisions of this Agreement, the Party who does not prevail in the proceeding(s) shall pay a reasonable amount of attorney's fees and expenses (including, but not limited to expert witness fees and deposition expenses) incurred by the prevailing Party. Any dispute, need of interpretation, claim, counterclaim, demand, cause of action, or other controversy arising out of or relating to this Agreement or the relationship established by this Agreement, any provision hereof, the alleged breach thereof, or in any way relating to the subject matter of this Agreement, involving the Parties and/or their respective representatives (for purposes of this Section 13 only, collectively, the "Claims"), even though some or all of such Claims allegedly are extra-contractual in nature, whether such Claims found in contract, tort, or otherwise, at law or in equity, under state or federal law, whether provided by statute or the common law, for damages or any other relief, shall, if mutually agreed to by the Parties at the time of the Claims, be resolved by binding arbitration in accordance with this Section 13. Arbitration shall be conducted in accordance with the rules of arbitration of the Federal Arbitration Act and, to the extent an issue is not addressed by the federal law on arbitration, by the Commercial Arbitration Rules of the American Arbitration Association ("AAA") as the same may be in effect from time to time to the extent not in conflict with this Section 13 and shall be subject to the Federal Arbitration Act. Each Party shall appoint an arbitrator, within 30 days of the notification of a Party's intent to proceed with arbitration. Within 30 days of their appointment, the two party-appointed arbitrators shall appoint a third arbitrator, who shall be neutral and shall have at least eight years' professional experience in electrical energy-related transactions; shall not have been previously employed by either Party; and shall not have a direct or indirect interest in either Party or in the subject matter of the arbitration. If either Party falls to designate an arbitrator within the time specified or the two Party appointed arbitrators fail to designate a third arbitrator within 30 days of their appointment, the remaining arbitrator(s) shall be appointed by the AAA. Each Party shall pay for the expenses incurred by its designated arbitrator and the costs of the third, neutral arbitrator shall be divided between the parties. The validity, construction, and interpretation of this agreement to arbitrate, and all procedural aspects of the arbitration conducted pursuant hereto shall be decided by the arbitrators. In deciding the substance of the Parties' Claims, the arbitrators shall refer to the governing law. Only damages allowed pursuant to this Agreement may be awarded and, without limitation of the foregoing, the arbitrators shall have no authority to award damages contravening in any way the limitation of liability agreed to by the parties pursuant to this Agreement. It is understood and agreed that judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. It is agreed that the arbitrators shall not have the authority to make rulings of law other than rulings as to the interpretation of this Agreement. 14. Relationshiv of the Parties. Nothing in this Agreement is intended to create a partnership, joint venture or other joint legal entity making any Party jointly or severally liable for the acts of the other Party. Each Party shall be solely liable for the payment of all wages, taxes, and other costs related to the employment of persons by that Party to perform under this Agreement, including all federal, state, and local income, social security, payroll and employment taxes and statutorily mandated workers' compensation coverage. None of the persons employed by either Party shall be considered employees of the other Party for any purpose; nor shall either Party represent to any person that such persons are or shall become employees of the other Party. 15. Severability/Material Adverse Change. If the federal government or the State government of Texas adopts, enacts, or otherwise imposes a new law, rule or regulation which either makes a Party's performance under this Agreement unlawful or makes this Agreement unenforceable, and such governmental action does not constitute a Force Majeure event under Section 8 of this Agreement, (i) the remainder of the terms, conditions, covenants restrictions and other provisions of this Agreement shall remain in full force and effect unless such an interpretation would materially alter the rights and privileges of any Party hereto; and (ii) the Parties shall negotiate in good faith to amend the terms of this Agreement and to determine the appropriate changes, if any, so that the Party affected by such change in law or regulation is able to lawfully perform the entirety of its obligations without materially adversely affecting the financial benefit hereunder to the other Party. 16. Headings and Captions. Section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall include all genders. 17. Counterparts. This Agreement may be executed in any number of counterparts, which may be executed at different times. Each counterpart, including applicable individual attachments shall constitute an original but all such counterparts together shall constitute one and the same instrument. 18. No Third-Party Beneficiaries. This Agreement is neither intended to nor does it create rights, remedies, or benefits of any character whatsoever in favor of any persons, corporations, associations, or entities other than the Parties, and the obligations herein undertaken and assumed are solely for the use and benefit of the Parties, their successors-in-interest and, where permitted, their assigns. 19. Confidentiality. The Parties consider the pricing and information which may be designated by either Party as confidential including, and without limitation the other terms of this Agreement to be sensitive commercial information, which is proprietary and is Public Power Competitive Information under applicable Texas law. Accordingly, the Parties shall not use, reproduce, or disclose the confidential information or the terms of this Agreement to any unaffiliated third party unless and to the extent required to make such disclosure by action of a court or other government authority or applicable law, including any requirement to comply with any applicable exchange, control area or independent system operator rule, provided, however, each Party shall provide the other Party with prompt notice of the requirement to disclose confidential information in order to allow the other Party to seek an appropriate protective order or other remedy. The Parties shall only disclose the terms and conditions of this Agreement and other confidential information received from the other Party to those of its affiliates, employees, consultants, authorized representatives, and attorneys having a "need to know" in order to carry out their functions in connection with the Agreement. The obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. Notwithstanding the foregoing, Itron acknowledges that Customer is a public entity and is required to comply with the provisions of any applicable open meeting and public records disclosure laws regarding disclosure of the pricing terms of this Agreement; provided, however, Customer shall use good faith and reasonable best efforts to ensure that all confidential information is kept confidential to the extent possible in accordance with such laws and the exemptions to disclosure therein. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, the non-disclosure obligations set forth in this Section 19; provided, that a breach of this Section 19 shall not give rise to a right to suspend or terminate this Agreement. Each Party will cause its Representatives to comply with the non-disclosure obligations set forth in this Section 19. 20. Intellectual Property. Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to any product or software provided in connection with the Maintenance Services are and will remain the exclusive property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property of Itron, itron will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product, software or deliverable or Ilron's confidential information other than rights granted in this Maintenance Agreement. 21. Entire Agreement. This Agreement, including all attachments made part hereof, is the Parties' complete and exclusive statement of the terms of the Agreement and the matters contemplated herein. All prior written and oral understandings, offers or other communications of every kind pertaining to the subject matter of this Agreement are hereby superseded. It is understood and agreed that this Agreement contains the entire Agreement between the Parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. This Agreement cannot be changed or terminated orally and no written modification of this Agreement shall be effective unless executed and signed by both Parties. 22. No Solicitation. For 18 months following the termination of this Agreement, Customer will not solicit any employee or consultant to leave the employ of Itron, provided that the foregoing shall not be construed to prohibit mass media advertising not specifically directed towards employees or consultants of Itron. 23. Publicity. Unless otherwise provided in a separate confidentiality agreement between the Parties, each Party may issue a press release following the execution of this Agreement, subject to the other Party's advance written approval, which shall not be unreasonably withheld. Each Party hereby consents to the other Party's use of its name, URL and logo on its website and in its customer and partner lists for corporate and financial presentations. 24. Notices. All notices, requests, statements or payments shall be made as specified below. Notices required to be in writing shall be delivered by letter, electronic media, facsimile or other documentary form. Notice shall be deemed to have been received by the close of the day on which it was transmitted or hand delivered (unless transmitted or hand delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received at the close of the next day on which recipient is open for business). Notice by overnight mail or overnight courier shall be deemed to have been received one (1) day after it was sent (unless delivered after the close of recipient's business or on a day on which recipient is not open for business, in which case it shall be deemed received on the next day on which recipient is open for business). A Party may change its addresses by providing notice of same in accordance herewith: itron: Attn: General Counsel Customer: ltron, Inc. Denton Municipal Electric 2111 North Molter Road 1659 Spencer Rd Liberty Lake, WA 99019 Denton, TX 76205 Phone No.: Fax No.: Fax No.: (940) 349-7334 Phone No.: (940) 349-8487 Attn: Phil Williams, General Manager INVOICES: Denton Municipal Electric 1659 Spencer Rd Denton, TX 76205 Phone No.: (940) 349-7642 Attn: J.R. Richardson, Metering Superintendent Email: JR.Rfchardson@cityofdenton.com (Signature Page Follows] Agreed to and accepted by: THE CITY OF DENTON, TEXAS A TEXAS MUNICIPAL CORPORATION r Signature: Print name: !l'r Title: dMwl-l Date;,. ATTEST: JENNIFER WALTERS, CITY SECRETARY itron, Inc. r Signature: Print name: Ste-van M. HeitilbrOcht Tilde:' Sr, Vice President & CFO Date: F i Address: Itron, Inc. Attention: General Counsel 2111 Borth Colter Road Liberty Lake, WA 99019 Ely: r [Signature Page to Maintenance Agreement] Billing Contact Information Name: Address: Phone: Email: Renewal Notice Contact Information Name: Address: Phone: Email: Purchase Order Number: [Signature Page to Maintenance Agreement] Attachment A Product Quantity Annual Maintenance Maintenance Fee Commencement Date Software First clay of the month following Itron Enterprise Edition Meter Up to $10,000.00 shipment or Data Management (!EE MDM), 45,000 electronic delivery by Mass Market Meters Itron IEE MDM First day of the AN Interval Data Billing Module Up to $3,000.00 month following 45,000 shipment or Meters electronic delivery by Ilron Total Annual Maintenance $13,000.06 c m Cal E Z 0 0 E 0 U) Q ~ 0 U a3 ~ ~ Z . 7 Vl O j N ~ 02 d p4 r~ m J `v d 10 `acy BOO or d Wa~ U c _0 c cv ° m o cx,` o15 0 o~ N a d -pC] ~jCJp Eut o- Z.-g 8 ~ ¢ 0. ) aid TN E or a n 49 ©8 ~ "6~ 9" ~i E O m 000° g o g w 0 ° t i c~ ,f 0) ~p v cm ° 82 z iL F-WW~ d Qy a1 c q~ Ec)~ a~j U ~ J ~ (co .a 5 o a7 41 c ~ VS cry FD y 01 O - 5 ~ o 7w d ~O Y 1 CL 7 2 o 7 ak O leg 0 c N .v. ° ~ f Q C: ~ o a o r/~ rn ~a y . 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