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2010-180 FILE REFERENCE FORM 2010-180 Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials JR First Amendment to Agreement – Ordinance No. 2011-086 05/17/11 JR Second Amendment to Agreement – Ordinance No. 2013-053 02/12/13 ORDINANCE NO. 201 �-1 g� AN ORDINANCE ACCEPTING SEALED PROPOSALS AND AWARDING AN AGREEMENT FOR THE PURCHASE OF AN ADVANCED METERING 1NFRASTRUCTURE SYSTEM FOR DENTON MiJNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFSP #4485-ADVANCED METER READING INFRSTRUCTURE SYSTEM AWARDED TO TRILLIANT NETWORKS, INC.1N AN AMOUNT OF NOT-TO-EXCEED $1,391,307.04). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the purchase of an advanced metering infrastructure 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 proposal is 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 #4485 TrilliantNetworks, Inc. $1,391,307.04 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 accardance 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 funds 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 � da of 2010. Y � � � i MARK A. BU UGH�;IVIAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By. - APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � � By: /�� ��� AGREEMENT FOR ADVANCED METERING INFRASTRUCTURE ("AMI") PROJECT BETWEEN THE CITY OF DENTON, TEXAS (Denton Municipal Electric) AND TRILLIANT NETWORKS, INC. A Delaware Corporation Dated: 063010 Trilliant Confidential AGREEMENT FOR ADVANCED METERING INFRASTRUCTURE ("AMI") PROJECT THIS AGREEMENT FOR ADVANCED METERING INFRASTRUCTURE ("AMI") PROJECT, and associated services ("Agreement") is made and entered into as of June 30, 2010 (the "Effective Date") by and between The City of Denton, Texas, a Texas municipal corporation, having its principal offices located at Denton City Hall, 215 East McKinney Street, Denton, TX 76201("Customer"); and TRILLIANT NETWORKS, INC. a Delaware corporation, having its principal office located at 1100 Island Drive, Redwood City CA 94065 ("Trilliant"). From time to time throughout this Agreement, Customer and Trilliant are referred to, individually, as a"Party," and, together, collectively as the "Parties." REClTALS WHEREAS, the Parties have entered into this Agreement for the purpose of setting forth the general terms and conditions for a program under which Trilliant shall provide an Advanced Metering Infrastructure consisting of products and related enabling equipment, services and software as provided in the Statement of Work, attached as Exhibit 1.1 (the "Deliverables") and as further specified herein; together with such other work as the Parties may agree to from time to time in accordance with the terms of this Agreement; WHEREAS, the Deliverables may include, without limitation, providing information technology equipment, materials, software, programming materials, hosting services, installation services and other related items or services to be provided to support the Customer's objective of establishing an Advanced Metering Infrastructure, and; WHEREAS, Trilliant represents that it has the expertise in the aforementioned areas including the design, development, creation, testing, delivery and deployment of information technology systems, provision of hardware, equipment, materials, hosting services, installation services, maintenance, communication services and other related services, items and tasks necessary to undertake the Deliverables; WHEREAS, each task, undertaking, delivery, or project that Customer desires Trilliant to undertake shall be defined in a separate Statement of Work signed by the Parties to this Agreement in a form which is attached as Exhibit 2.1; WHEREAS, additional terms and conditions for Software Licenses, Maintenance and Support, and Hosting Services incorporated in this Agreement are set forth respectively in Exhibits 3.1, 4.1, and 5.1; NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows: 1. DEFINITIONS Definitions Exhibit 1.1, attached hereto and hereof made a part, defines various terms used throughout this Agreement. 2. TERM This Agreement shall remain in effect until terminated by either party pursuant to Article 11. Trilliant Confidential Page 2 3. AGREEMENT TO PROVIDE SERVICES; CONFIDENTIAL INFORMATION 3.1 Retention. Each task, undertaking, delivery, or project that Customer desires Trilliant to undertake shall be defined in a separate Statement of Work signed by the Parties to this Agreement a form of which is attached as Exhibit 2.1. Each such Statement of Work shall be effective upon execution and shall thereafter become a part of this Agreement and subject to the payments in Article 6. 3.2 Multiple Retentions. This Agreement contemplates the possibility that Customer may retain the services of Trilliant on more than one occasion for more than one project ("Project"). In each such instance, the Parties will jointly negotiate and develop a Statement of Work with a corresponding Purchase or Purchase Orders covering the Deliverables to be performed by Trilliant for each Deliverable. 3.3 Requests for Chanqe. From time to time during the duration of this Agreement, in the event that Customer desires to change the scope of an issued Statement of Work, Customer will issue to Trilliant a written request to retain Trilliant (each, a"Request for Change"). In each instance, upon receipt of such written notification, Trilliant will have the time period stated on such written notification, or, if no time period is mentioned, a reasonable period of time, within which to respond to Customer's Request for Change. The Customer is not obligated to issue any Purchase Order Requests or to accept any proposals or offers made by Trilliant. 3.4 Order of Precedence. For all Deliverables governed by this Agreement, in the event any conflict arises between the terms of this Agreement and those of the associated Statement of Work or other contract documents, the terms of this Agreement shall govern, unless reference to a specific conflict is made in the Staternent of Work with language indicating that the terms of the Statement of Work are to have precedence over the expressly identified conflicting term in this Agreement. 3.5 Confidentialitv and Non-Disclosure. 3.5.1 Obliqations of Confidentiality Non-Use. Each Party (in such capacity, the "Receiving Party") acknowledges and agrees to maintain the confidentiality of Confidential Information (as hereafter defined) provided by the other Party (in such capacity, the "Disclosing Party") hereunder or under any Statement of Work. The Receiving Party shall not disclose or disseminate the Disclosing Party's Confidential Information to any Person other than those employees, agents, contractors, subcontractors and licensees of the Receiving Party, or its affiliates, who have a need to know same in order to assist the Receiving Party in performing its obligations, or to permit the Receiving Party to exercise its rights under this Agreement or any Statement of Work. In addition, the Receiving Party (a) shall take all reasonable steps to prevent unauthorized access to the Disclosing Party's Confidential Information, and (b) shall not use the Disclosing Party's Confidential Information, or authorize other Persons or entities to use the Disclosing Party's Confidential Information, for any purposes other than in connection with performing its obligations or exercising its rights hereunder and/or under any Purchase Order Request and its associated Statement of Work. As used herein, "reasonable steps" means steps that a Party takes to protect its own, similarly confidential or proprietary information of a similar nature, which steps shall in no event be less than a reasonable standard of care. Trilliant Confidential Page 3 3.5.2 Definition of Confidential Information. The term "Confidential Information," as used herein, shall mean all business strategies, plans and procedures, proprietary information, software, tools, processes, methodologies, data and trade secrets, and other confidential information and materials, in whatever form or media, of the Disclosing Party, its affiliates, their respective clients or suppliers, or other Persons or entities with whom they do business, that may be obtained by the Receiving Party from any sources or that may be developed as a result of this Agreement. Trilliant acknowledges and agrees, and without limiting the foregoing, that Customer's Confidential Information shall include all data and information, in whatever form, regarding the Customer's customers. 3.5.3 Exclusions. The provisions of this Article respecting Confidential Information shall not apply to the extent, but only to the extent, that such Confidential Information is: (a) already known to the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party; (b) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (c) is or becomes publicly available through no wrongful act of the Receiving Party or any third party; (d) is independently de�eloped by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party; or (e) is required to be disclosed pursuant to any applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange (provided, however, that the Receiving Party shall advise the Disclosing Party of such required disclosure promptly upon learning thereof in order to afford the Disclosing Party a reasonable opportunity to contest, limit and/or assist the Receiving Party in crafting such disclosure). Nothing in this Article shall be construed as restricting Customer's rights with respect to any Deliverable as provided for Customer's business purposes, and for the business purposes of Customer's subsidiaries and affiliates. 3.5.4 Recipient's Emplovees and Others. The Receiving Party shall advise its employees, agents, contractors, subcontractors and licensees, and shall require its affiliates to advise their employees, agents, contractors, subcontractors and licensees, of the Receiving Party's obligations of confidentiality and non-use under this Article, and shall be responsible for ensuring compliance by its and its' affiliates employees, agents, contractors, subcontractors and licensees with such obligations. The Receiving Party shall promptly notify the Disclosing Party in writing upon learning of any unauthorized disclosure or use of the Disclosing Party's Confidential Information by such Persons or entities. 3.5.5 Return or Destruction of Confidential Information. Upon the Disclosing Party's written request following the completion or termination of any Purchase Order Request, and its associated Statement of Work, the Receiving Party promptly shall return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party provided under or in connection with such Statement of Work, including all copies, portions and summaries thereof. Notwithstanding the foregoing sentence, (a) the Receiving Party may retain one copy of each item of the Disclosing Party's Confidential Information for purposes of identifying and establishing its rights and obligations under this Agreement, and (b) Customer may retain Confidential Information of Trilliant to the extent that such information is necessary or desirable in connection with Customer's use of any Deliverables as permitted hereunder; provided, however, that in either case all such Confidential Information retained by the Receiving Party shall remain subject to the provisions of this Article for so long as it is so retained. If requested by Trilliant Confidential Page 4 Disclosing Party, the Receiving Party shall certify in writing its compliance with the provisions of this Article. 3.5.6 Iniunctive Relief. In addition to any other remedy a Party may have under this Agreement, in the event of any breach or potential breach of a Party's non- disclosure obligations under this Section 3.5, the Disclosing Party shall be entitled to seek injunctive relief and, in connection with such relief, shall not be required to show the inadequacy of money damages or be required to post a bond. 3.5.7. Applicabilitv of Texas Government Code, Sections 551.086 and 552.133. The Parties agree and stipulate that the two above statutory provisions of the Texas Government Code, as amended, shall apply to any materials claimed as "proprietary" or "confidential" by either Party. Customer represents that all materials included in this Agreement are also subject to the provisions of the City of Denton, Texas "Competitive Matters Resolution" enacted by the Denton City Council on April 18, 2000, as Resolution No. R2000-15. 4. DEVELOPMENT COORDINATION; PERSONNEL 4.1 Proiect Manaaer. Customer and Trilliant shall each designate in writing to the other a responsible individual with adequate authority as such Party's Project Manager for the applicable Deliverables (each such individual a"Project Manager," and together, collectively, the "Project Managers"), whose responsibility it is to serve as a Project leader and interface with the other Party hereto. 4.1.1 The Project Managers shall be the primary non-technical contact between the Parties relative to the Deliverables, The Project Managers will be responsible for identifying non-technical issues, including schedule adherence, Change Order Requests, progress reporting and/or other non-technical matters and bring them to the attention of their respective managements. 4.1.2 Customer's Project Manager is responsible for providing such information about Customer, its external and internal procedures and such other information as Trilliant reasonably requires for its provision of the Services. 4.1.3 Trilliant's Project Manager is responsible for coordinating Trilliant's obligations and duties with respect to the Services and shall be fully qualified, knowledgeable and experienced in the actual design, installation, implementation and launch of systems and associated Deliverables contemplated by this Agreement. Trilliant's Project Manager is authorized to sign Change Orders on behalf of and binding upon Trilliant. 4.1.4 The Project Managers shall have no authority to amend, modify or otherwise change this Agreement, and shall work closely with and oversee their respective Technical Coordinators. 4.1.5 The Project Managers shall communicate with each other on a regular periodic basis to assure the smooth administration of the development process and the coordination of activities between the Parties. Trilliant Confidential Page 5 4.1.6 Promptly upon their respective appointments, each of the Project Managers shall establish contact and mutually develop guidelines for accomplishment of the development goals. 4.2 Technical Coordinators. Each Party shall appoint an individual on their respective behalf who has a technical background for purposes of coordinating communication with his or her counterpart for the other Party on a regular basis with respect to the technical aspects of the Deliverables under this Agreement (each a"Technical Coordinator"). The Technical Coordinators will be responsible to identify technical issues and bring them to the attention of their respective Project Manager. The Technical Coordinators shall have no authority to amend, modify or otherwise change this Agreement and shall report to their respective Project Manager. 4.3 Project Coordination. The following shall apply for all Deliverables under this Agreement: 4.3.1 Coordination and Communication. The Project Managers shall communicate and meet where and when necessary to ensure that the Deliverables are properly performed in a timely manner. The Project Managers shall involve the Technical Coordinators from each organization, as necessary. 4.3.2 Chanqes to Deliverables. The Parties understand and expect that there may be changes to the Deliverables. In each instance, requests for changes (each a "Change Order") shall be proposed by the Project Managers or the Technical Coordinators, but shall not be effective without the Customer issuing a Change Order Request. Changes to Deliverables shall only be made by following the Change Order Procedure. 4.3.3 Project Timetable and SchedulinQ. For all Deliverables, the Project Managers and Technical Coordinators of each Party shall establish a target timetable for achievement of milestone goals for the corresponding Project. 5. PROJECT SCHEDULE 5.1 All Deliverables shall be perFormed in accordance with a published project schedule incorporated into the applicable Statement of Work. Within a mutually agreed upon timeframe, but not more than ninety calendar days of executing this Agreement, Trilliant shall deliver to the Customer's Project Manager a project schedule. Project schedules shall contain critical milestone dates as mutually determined by Customer and Trilliant. 5.2 The Project Schedules shall fully describe the sequence of activities and plan of operation for perForming the Deliverables. 5.3 The Project Schedules shall be supported by such data and documentation as Customer reasonably deems appropriate and shall be revised and updated in accordance with this Agreement to reflect the status and progress of the Deliverables. 5.4 The Project Schedules shall include, at a minimum: 5.4.1 the order in which Trilliant proposes to perform the Deliverables; 5.4.2 the start and completion dates of the Deliverables; Trilliant Confidential Page 6 5.4.3 the dates of order, receipt, and delivery of significant portions and/or components of Deliverables; 5.4.4 the dates for the submittal and approval of drawings or data, testing and inspection dates; and 5.4.5 the project milestone dates, personnel forecasts by individual craft and non- manual personnel, turnover dates for final reports and other details, dates, or information Trilliant deems appropriate, including schedules for Deliverables procurement and drawing submissions. 5.5 Trilliant shall be responsible to ensure that all Deliverables, including that of its Subcontractors, as well as work performed by others that may affect Trilliant's Deliverables, is included on the Project Schedules. 6. COMPENSATION AND PAYMENTS 6.1 With regards to any Deliverable(s), Trilliant's compensation and Payment Schedule shall be as follows: 6.1.1 Unless otherwise agreed by the Parties, in writing, in a Statement of Work the payment and invoice schedule shall consist of a percentage of the value of the Statement of Work being payable at the time of issuance of the Statement of Work with the remainder payable according to the milestones set forth in the applicable Statement of Work. 6.1.2 Unless otherwise agreed to by the Parties in the applicable Statement of Work, all payments under this Agreement are net due thirty (30) days from the date of receipt of invoice or receipt of goods by Customer whichever is later. 6.1.3 Unless otherwise agreed to by the Parties in the applicable Statement of Work, Customer shall reimburse Trilliant for its expenses incurred as to a Project, provided: 6.1.3.1 Unless otherwise stated in the Statement of Work, expenses must be presented to Customer for its review. For any and all such expenses to be approved by Customer, expenses shall be reasonable, actual and verifiable. To the extent that Customer reimburses Trilliant for any out-of- pocket expenditures directly relating to providing Deliverables to Customer under this Agreement, such expenditures shall be passed through to Customer at actual cost. 6.1.3.2 To be eligible for reimbursement, expenses must be incurred by Trilliant in connection with its performance hereunder and must be properly documented with receipts provided; provided, however, that Trilliant shall be responsible for travel expenses relating to Trilliant's internal operations that are not directly related to performing Trilliant's obligations hereunder, including, without limitation, account management, meetings and seminars. Expenses incurred by Trilliant's management not assigned to the work are considered "cost of doing business" and are not to be submitted to Customer for reimbursement. This typically includes, but is not limited to, costs relating to activities of Trilliant's senior managers, partners and vice presidents in their respective capacities as same. If Trilliant Confidential Page 7 Trilliant does not provide receipts in the manner detailed above, Customer retains the right to refuse payment for such expenses. 6.1.4 Unless otherwise agreed to in writing by the parties, invoices shall be submitted as follows: 6.1.4.1 For Hardware, 100% of the Hardware price shall be invoiced upon Customer's receipt of goods. 6.1.4.2 For Software and Software-related management and services, 50% of one-time license fees shall be invoiced upon the signing of a software license agreement, the remaining 50% of one-time license fees shall be invoiced upon commissioning of head-end software at the City of Denton facilities, but not later than June 30, 2011. 6.1.4.3 If Services are provided on a time and materials basis then invoices shall be submitted up to bimonthly as Services and costs are incurred. 7. TAXES 7.1 Because the Customer is a tax-exempt entity, sales, use, excise, value-added and ad valorem taxes do not apply to any deliverables involving the Customer. 7.2 In no event, however, shall Customer be responsible for or reimburse Trilliant or any of its Subcontractors for any corporate franchise, net income, local taxes or other taxes imposed upon Trilliant, including Subcontractors, for the general privilege of conducting business, on income or receipts, or any other such tax. 7.3 In the event any taxing authority or governmental entity notifies Trilliant that the amount owed for taxes arising out of the Deliverables is incorrect and the responsibility of Customer, Trilliant shall: (a) provide prompt Written Notice to Customer of same together with all returns and documentation pertaining thereto, with full particulars provided by Trilliant to Customer; (b) keep Customer apprised in a timely manner of the status of the matter; and (c) refrain from settling or otherwise resolving the dispute or claim with the taxing authority or governmental entity without Customer's prior written consent. 8. INTELLECTUAL PROPERTY 8.1 "Intellectual Property" means know how, methods, processes, techniques, proprietary information, specifications, protocols, schematics, diagrams, inventions (whether or not patentable), apparatuses, hardware, tools, devices, formulae, algorithms, software, software code (in any form including source code or executable code), user interfaces, and other forms of technology. 8.2 "Intellectual Property Rights" means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trade secret rights; (c) patent and industrial property rights; (d) other proprietary rights in Intellectual Property of every kind and nature; and (e) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (d) of this sentence. Customer requires that Trilliant, prior to closing this transaction discloses, with a letter signed by its legal counsel setting forth all causes of action that are now pending or on appeal regarding any Intellectual Property Rights referenced in subparagraphs 8.2 (a) through (e) hereinabove. Trilliant Confidential Page 8 8.3 Existinq Intellectual Propertv. Trilliant will ha�e and retain exclusive ownership of all Trilliant Intellectual Property owned by Trilliant on the Effective Date (collectively, " Trilliant's Existing Intellectual Property"), and Intellectual Property Rights therein, and Customer will have and retain exclusive ownership of all Customer Intellectual Property owned by Customer on the Effective Date and all Intellectual Property Rights therein (collectively, "Customer's Existing Intellectual Property"). 8.4 Improvements to Intellectual Propertv. Notwithstanding any other provisions in this Agreement, as between the Parties, Trilliant shall own and retain all right, title, and interest in and to any and all Intellectual Property in any improvement, enhancement, change or modification, including but not limited to derivative works, to any Existing Intellectual Property (whether made by Trilliant and/or Customer) ("Improvements"), and Customer hereby sells, releases, quitclaims, and assigns to Trilliant all the rights, title, interest, claim, or demand, that Customer has, or may have, in any such Intellectual Property. Customer shall not disclose or distribute the Improvements or any Intellectual Property therein, to any third party person or entity unless expressly authorized to do so in this Agreement or with Trilliant's prior written consent. Trilliant hereby grants Customer a non-assignable, non-transferable, non-exclusive, irrevocable license to use only for internal business purposes all Improvements that are based on Customer's Existing Intellectual Property. 9. REPRESENTATION, WARRANTIES AND COVENANTS 9.1 Hardware. Trilliant warrants to Customer for a period of twelve (12) months from the date of installation of the hardware, not to exceed eighteen (18) months from the date of shipment, that hardware designed and/or manufactured by and provided by Trilliant or its Subcontractors, shall be free from defects in material, workmanship and title, and services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. Repairs or replacements of Hardware made during the warranty period or thereafter will be warranted for sixty (60) days or the remainder of the original warranty period whichever is longer. 9.2 Software. Under the software license agreement Trilliant warrants to Customer for a period of ninety (90) days from the date of initial installation of the software that the Software will substantially conform to Trilliant's published specifications. Trilliant does not warrant uninterrupted or error-free operation of the software nor that functions contained in Software will operate to meet Customer's requirements, nor that Trilliant will correct all software defects. Software maintenance and support services shall be provided under the annual maintenance and support agreement. 9.3 Services. Trilliant warrants to Customer that services shall be perFormed in a competent, diligent manner in accordance with any mutually agreed specifications. Said warranty shall be for a period of one hundred eighty (180) days from the date of completion of the services. 9.4 Third-Partv Hardware or Software. In the case of products not of Trilliant's own manufacture or development, the only warranty available is the warranty that the original manufacturers provide, and Trilliant gives no warranty on behalf of the manufacturers of such items. Trilliant Confidential Page 9 9.5 If Hardware, Software, promptly notify Trilliant thereupon: .� or Services do not meet the above warranties, Customer shall in writing within the applicable warranty period. Trilliant shall 9.5.1 For Hardware, Trilliant's sole obligation under these warranties is limited to, at its option, replacing with similar or better performing product or repairing any Hardware which is returned to Trilliant. At Customer's expense, Customer shall remove and ship to Trilliant any such nonconforming items and shall reinstall the repaired or replaced parts. Trilliant will return any Hardware to Customer, freight prepaid. At its expense, Customer shall reinstall the repaired or replaced parts. 9.5.2 For Software, as provided for within the Maintenance and Support agreement, and as the sole remedy, Trilliant will provide a method for Customer to report the failure and Trilliant will, at its reasonable discretion provide a suitable fix, patch or workaround for the problem, which may be included in a future Software release. 9.5.3 For Services, Trilliant will re-perform the defective services until such time as the problem is cured. Warrantv Limitations. These warranties and remedies shall be null and void if: 9.6.1 For Hardware (including repaired or replacement parts), (a) improper storage, installation, operation, and maintenance of the Hardware, non-conformance with the proper operation instruction manuals provided by Trilliant or its suppliers or subcontractors, (b) Failure of Customer to keep proper records of operation and maintenance during the warranty period and failure to provide Trilliant access to those records, (c) operation outside the environmental specifications, including but not limited to lightning damage, adverse RF environments (d) product that has been determined as being stolen or scrapped, (e) if the unit has been purchased from a third party or (� repairs perFormed or alterations or modifications made except by Trilliant. 9.6.2 For Software, (a) alteration or modification of the Software except by Trilliant or in accordance with its instructions; (b) Software used in conjunction with another Trilliant's product resulting in the defect, or (d) Software damaged by improper environment, abuse, misuse, accident or negligence. 9.7 THE WARRANTIES EXPRESSED IN THIS ARTICLE 9 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF TRILLIANT. IN NO EVENT WILL TRILLIANT BE LIABLE FOR DIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, LOST PROFIT, ETC., EVEN IF TRILLIANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. MUTUAL REPRESENTATIONS 10.1 Each Party represents to the other that: 10.1.1 It has the requisite power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and Trilliant Confidential Page 10 10.1.2 The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite action on the part of such Party. 10.1.3 Its execution, delivery, and performance of this Agreement will not constitute: (a) a violation of any judgment, order, or decree; (b) a material default under any material contract by which it or any of its material assets are bound; or (c) an event that would, with notice or lapse of time, or both, constitute such a default as described in (b), above. 11. TERMINATION 11.1. Riqht to Terminate. This Agreement may be terminated without prejudice (except as provided in Section 11.1.1), by either party as follows: 11.1.1 Convenience. After the first anniversary date of this Agreement, for any reason upon sixty (60) days prior written notice with the exception that open purchase orders are non-cancellable absent express agreement by Trilliant. 11.1.2 Breach. Upon breach of a material provision by the other party and such party does not cure such breach within thirty (30) days after written notice received from the terminating party. 11.1.3 Insol�encv. Immediately should the other party (a) become insolvent; (b) make an assignment for the benefit of creditors; (c) file or have filed against it a petition in bankruptcy or seeking reorganization; (d) have a. receiver appointed; (e) institute any proceedings for liquidation or winding up. 11.1.4 EfFect of Termination. Termination of this Agreement shall not affect the parties' indemnification obligations under Article 11 -or any other right or obligation that by its terms survive, or impair any claim for payment that has accrued before or accrues by virtue of termination. All accepted Purchase Orders shall survive any termination unless otherwise mutually agreed to by the parties. 12. INDEMNIFICATION. 12.1 In General. Trilliant shall indemnify, defend and hold harmless the Customer and its officers, agents, and employees, against any claim for personal injury, property damage, or wrongful death arising out of or resulting from any products or services furnished by Consultant or the employees, agents, or subcontractors of the Consultant, in the perFormance of this Agreement; provided, that Consultant's obligation to indemnify, defend and hold harmless, as aforesaid, shall not apply to any claim arising out of or resulting from the sole negligence or willful misconduct of Client, its officers, agents or employees. 12.2 Intellectual Propertv Riqhts. Trilliant will defend any action, including a claim or suit, against Customer, its officers and employees, claiming that Products of its original manufacture or its Software infringes any Intellectual Property Rights, and will indemnify and hold Customer, its o�cers and employees free and harmless from and against all costs and damages awarded in any such action, provided that Trilliant is notified promptly in writing of the action and at Trilliant Network's request and at its expense is given control of such action and all reasonably requested information and assistance to settle or defend the Trilliant Confidential Page 11 same. Should use of Products or Software be enjoined as a result of such action, then Trilliant shall, within a reasonable time, which in no event is a period of in excess of sixty (60) days from the date of injunction, either: (a) obtain for Customer the right to continue to use the Product or Software; (b) modify or replace the Product or Software with non- infringing equipment or software; provided that the replacement equipment or software substantially conforms to Trilliant Network's then-current specification for the Product or Software; or (c) request the return of the Product or Software and upon its return refund the value of the Product or Software as amortized over a presumed ten (10) year straight-line depreciation period, as well as paying Customer's reasonable transportation costs. Trilliant shall have no obligation to defend any claims arising out of combinations of the Product or Software when used in combination with other Product or Software not supplied by TRILLIANT. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF TRILLIANT FOR PATENT INFRINGEMENT AND IS IN LIEU OF ANY OTHER WARRANTY AGAINST INFRINGEMENT OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY. 13. INDEPENDENT CONTRACTOR 13.1. Trilliant's status shall be that of independent contractor, and Trilliant, its employees, agents, or Subcontractors shall not be deemed, for any reason or purpose, to be a subcontractor, agent, partner, or employee of Customer. This Agreement creates no rights or benefits between Customer and any person or entity other than Trilliant. 13.2. Trilliant shall have full responsibility for all labor and employment matters, including, but not limited to, for all its and its subcontractors selection, hiring, discipline, supervision, control, compensation, benefits, labor relations, collective bargaining, as well as payroll taxes and costs. 13.3. Customer shall rely on the organization, management, skill, cooperation, and efficiency of Trilliant and the efforts of other Subcontractors, if any, to provide the intended Deliverables conforming to this Agreement within the scheduled time. 13.4. Trilliant shall at all times be fully responsible for the acts or omissions of its employees, agents, or any other person or entity under its direction or control, including the acts or omissions of its Subcontractors and their employees, agents, or other person or entity under the Subcontractor's direction or control. 13.5. Any general superintendence, inspection, review, coordination, monitoring, and oversight by Customer or the exercise of any of Customer's rights under this Agreement shall not relieve Trilliant of any of its responsibilities under this Agreement. 14. INSURANCE As set forth below, Trilliant shall at its own expense, procure from an insurance company licensed to do business in the State of Texas by the Texas Insurance Board and is rated as "A-" or higher by A. M. Best Rate Carriers, provide and maintain, and shall require each Subcontractors (regardless of tier) to provide and maintain, in effect during the perFormance of any services under the Agreement minimum insurance coverage with carriers satisfactory to Customer, including: Trilliant Confidential Page 12 14.1. Insurance shall be in effect during perFormance and until final completion and acceptance of any services under this Agreement the following minimum insurance coverage with carriers acceptable to Customer including: a. Workers' Compensation insurance in accordance with statutory limits, as required by the State of Texas , including a waiver of subrogation favoring Customer, and Employer's Liability insurance with limits of not less than one million dollars ($1,000,000) for each employee for accident;$1,000,000 each employee for disease, and $1,000,000 policy limit for disease. b. Commercial General Liability insurance providing coverage for bodily injury, property damage, personal injury, advertising liability, blanket contractual liability, covering Trilliant's obligations under this Agreement, products and completed operations, and coverage for independent contractors with limits of not less than one million dollars ($1,000,000) for each occurrence, an annual aggregate of two million dollars ($2,000,000), and a products/completed operations aggregate of two million dollars ($2,000,000). Such policy shall cover Customer as an additional insured, include a severability of interests provision and be primary and not contributory with respect to any insurance carried by Customer. c. Commercial Automobile Liability insurance providing coverage for all owned, non-owned, and hired automobiles used by Trilliant in the performance of the services with a combined single limit of not less than one million dollars ($1,000,000) for each occurrence of bodily injury and property damage. d. Excess or Umbrella Liability insurance with a limit of not less than three million dollars ($3,000,000) for each occurrence with an annual aggregate of three million dollars ($3,000,000) per location where the services are performed. This limit applies in excess of each of the coverages set forth above in paragraphs 14.1.a (Employer's Liability), 14.1.b (Commercial General Liability insurance) and 14.1.c (Commercial Automobile Liability insurance), which are scheduled as primary. e. Errors & Omissions/Professional Liability insurance, including cover for liability arising from intellectual property infringement, information technology and software development services with limits of three million dollars ($3,000,000) per occurrence. f. The insurance coverages to be provided by Trilliant under this Agreement shall not include any of the following: except for Professional Liability, any claims-made insurance policies; any self-insured retention or deductible amount greater than two hundred fifty thousand dollars ($250,000) unless approved in writing by Customer; any endorsement limiting coverage available to Customer which is otherwise required by this Section 14.1; and any policy or endorsement language that (i) negates coverage to Customer for Customer's own negligence; (ii) limits the duty to defend Customer under the policy; (iii) provides coverage to Customer only if Trilliant is negligent, or (iv) permits the recovery of defense costs from any additional insured. The insurance coverages provided under this Agreement shall not contain any restrictions or limitations which are inconsistent with Customer's rights under this Agreement. g. Trilliant shall furnish to Customer certificates of insurance regarding current coverage regarding items a. through f., inclusive, in Paragraph 14 above. The initial certificates shall be furnished within fifteen (15) days of the date of execution of this Agreement. With the passage of time, Trilliant shall update and provide Customer new certificates of insurance evidencing coverage as required in items a. through f. above. Trilliant Confidential Page 13 Trilliant agrees to provide Customer with a minimum of thirty (30) days of written notice of termination should any policy or policies lapse, and Trilliant shall thereafter promptly replace such lapsed coverage with other replacement insurance coverage, which fulfills the requirements of items a. through f. above. 15. FORCE MAJEURE AND DELAYS The failure of either party to perform any obligation otherwise due as a result of governmental action, law, order, regulation, direction, or as a result of events, such as war, act of public enemy, terrorism (domestic or foreign), strike or other labor disturbance, fire, flood, acts of God or any causes of like or different kind beyond the reasonable control of either party is excused for so long as said cause exists; provided however, and only to the extent such failure is caused by any such event and could not otherwise be avoided by the exercise of reasonable diligence. 16. SEQUENCE OF WORK Trilliant shall perForm Deliverables in accordance with the approved Project Schedules. If in Customer's opinion as to any given Deliverable it would be advantageous to immediately perform some particular part of the Deliverable, Trilliant shall, upon receipt of Written Notice, use reasonable efforts to meet such requirement. If accommodation of said request will result in increased cost to Trilliant, Trilliant shall inform Customer of the nature and amount of the increased cost and the Parties shall agree in writing, upon a corresponding price adjustment_- 17. COORDINATION AND COOPERATION 17.1. Trilliant shall cooperate with Customer and other contractors, if any, to ensure that the Deliverables are properly and are promptly performed on schedule. Trilliant shall collaborate with any other contractors and coordinate its services with the work of such other Trilliant projects, if any, which could affect the Deliverables, and Trilliant shall proceed in such manner as not to interfere or delay the progress of the work on Customer's project as a whole. 17.2. If any part of Trilliant's Deliverables depends on the proper execution or results of the work of any other Trilliant subcontractors, Trilliant shall inspect and promptly report in writing to Customer any defects in the work of such other Trilliant subcontractors that renders it unsuitable for such proper execution or results. Failure of Trilliant to do so shall constitute its acceptance of the other contractors' work as fit and proper for the reception of Trilliant's Deliverable, except as to defects that may develop in the other contractors' work after the execution of Trilliant's Deliverables. 17.3. In cases of disagreement or disputes between Trilliant and other contractors(s) which could delay or interfere with the Deliverables due to the failure to collaborate and cooperate or which cannot be resolved between Trilliant and the others involved, Customer shall be given prompt Written Notice specifying in detail the disagreement or dispute. In such cases, Customer may in its discretion which shall not arbitrarily be exercised determine the proper method of coordinating the Deliverable, and Customer's decisions in this regard shall be final, binding, and conclusive. 17.4. Trilliant shall provide, upon by Customer's request, an on-site representative who is duly authorized to act for and on behalf of Trilliant and to commit Trilliant to decisions that shall be binding on Trilliant. If requested, said representative shall attend meetings which may be scheduled by Customer. Notwithstanding the existence of a dispute or Trilliant Confidential Page 14 disagreement between Customer and Trilliant, Trilliant shall diligently and without interruption proceed with all Deliverables at such rates of progress as will ensure full completion of all Deliverables on time. 18. NATURE OF RIGHTS The rights and remedies reserved by the Parties in this Agreement shall be cumulative and in addition to any other rights or remedies to which each may be entitled, and the exercise of any such rights or remedies shall not exclude the exercise of any other rights or remedies to which each may be entitled. Neither the exercise of said rights or remedies, nor the failure to exercise such rights or remedies, shall, in any manner, create any obligation to any third person or entity. 19. MARKETING Any news release or public announcement, released by either party concerning this Agreement, will be subject to the prior approval of the other party in writing, and which such approval shall not be unreasonably denied. Any contemplated or proposed public announcement shall give due credit to the contributions of each party. In addition, no consent shall be required where disclosure of the terms and conditions of this Agreement, P.O's, SOWs, or any other matter directly or indirectly related to this Agreement is required by any law and/or regulation, upon reasonable written notice to the other Party. 20. SURVIVAL All provisions providing for limitation of or protection against loss or liability of either Party, including all licenses, warranties, protections, and indemnities, shall survive termination, suspension, cancellation or expiration of this Agreement. 21. LIMITATION OF LIABILITY AS TO ANY PROJECT, THE TOTAL LIABILITY OF EITHER PARTY FOR ALL CLAIMS OR SUITS OF ANY KIND, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, OR OTHERWISE, FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER ARISING OUT OF, RESULTING FROM, OR RELATED TO THE PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL, UNDER NO CIRCUMSTANCES, EXCEED THE PURCHASE PRICE, AS MAY BE AMENDED BY AGREED UPON PRICE FOR EXTRA WORK AUTHORIZED BY WRITTEN CHANGE ORDER; PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT APPLY TO ANY LIABILITY, CLAIM OR SUIT COVERED BY ANY POLICY OF INSURANCE REQUIRED BY THIS AGREEMENT, NOR SHALL IT APPLY TO ANY LIABILITY, CLAIM OR SUIT FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF PARAGRAPH 12.2 OF THIS AGREEMENT. NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSSES, DAMAGES, COSTS OR EXPENSES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, LOST OR REDUCED PROFITS, REVENUES, OR BUSINESS OPPORTUNITIES.). 22. GOVERNING LAW; DISPUTES RESOLUTION Trilliant Confidential Page 15 22.1. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the state's conflicts of law provisions. 22.2. DISPUTES RESOLUTION. The Parties agree to resolve any and all disputes that arise under this Agreement as follows: 22.2.1. All disputes arising under or relating to this Agreement (a "Dispute") shall be referred to the Project Managers. If the Project Managers are unable to resolve the Dispute within twenty (20) days after referral of the matter to them, the Parties shall submit the Dispute to a senior executive of each Party ("Executives"). If the Executives are unable to resolve the Dispute within thirty (30) days, the Parties shall have the option, provided both agree, to submit the Dispute to non-binding mediation as set forth below. Trilliant acknowledges that the performance of its obligations pursuant to this Agreement is critical to the business and operations of Customer, Accordingly, in the event of a Dispute between the Parties, Trilliant shall continue to perform its obligations under this Agreement in good faith during the resolution of such Dispute unless and until this Agreement is terminated in accordance with the provisions hereof, despite such dispute. 22.2.2. The Parties agree that written or oral statements or offers of settlement made in the course of the Dispute resolution process set forth in this Section 21.2.1 will (a) be Confidential Information, (b) not be offered into evidence, disclosed, or used for any purpose in any formal proceeding, and (c) not constitute an admission or waiver of rights. Trilliant and Customer will promptly return to the other, upon request, any such written statements or offers of settlement, including all copies thereof. 22.2.3. A Dispute may be submitted to mediation by written notice to the other Party, provided both Parties agree. In the mediation process, the Parties will try to resolve their differences voluntarily with the aid of an impartial mediator, who will attempt to facilitate negotiations. The mediator will be selected by agreement of both of the Parties as soon as practical, but in no event later than seven (7) days, after the written notice beginning the mediation process. Each Party shall provide the other with a list of no less than three (3) and no more than five (5) mediators, and the other Party may strike as many names as they choose. 23. NOTICES 23.1. All notices required to be given hereunder shall be in writing and shall be deemed to have been validly given if delivered by registered or certified first class mail, postage prepaid, return receipt requested, by fax, or email, or delivered by hand to the following addresses: a. To Customer: George C. Campbell, City Manager City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349-8507 Trilliant Confidential Page 16 Phil Williams, General Manager Denton Municipal Electric 1659 Spencer Road Denton, Texas 76205 Fax: (940) 349-7334 Email: phil.williams@cityofdenton.com Michael S. Copeland, Utility Attorney City of Denton, Texas 215 East McKinney Street Denton, Texas 76201 Fax: (940) 349-8120 Email: Michael.Copeland@cityofdenton.com b. To Trilliant: Trilliant Networks, Inc. 1100 Island Drive Redwood City CA 94062 Kyle Lehman, Project Manager Fax: (650) 508-8096 Email: Kyle.Lehman@trilliantinc.com Attn: General Counsel Fax: (650) 508-8096 Email: Juan.Otero@trilliantinc.com c. Notices delivered by hand, fax or email shall be effective upon the date of delivery if on a business day before 5 p.m. (PST or PDT), or if not on a business day, before 5 p.m. (PST or PDT) on the first following business day. Notices sent by either registered or certified mail as aforesaid shall be effective five days after being deposited in the United States mail. 24. ENTIRE AGREEMENT This Agreement constitutes the full, complete and only agreement between the parties hereto with respect to the foregoing Deliverables. This Agreement supersedes any course of perFormance, course of dealings, usage of trade, previous agreements, representations, and understandings, either oral or written. No terms, conditions, agreements, representations, understandings, course of performance, course of dealing, or usage of trade purporting to modify, vary, supplement, explain, or amend any provisions of this Agreement shall be effective unless in writing, signed by representatives of the Parties authorized to amend this Agreement. Trilliant Confidential Page 17 If any part of this Agreement is determined to be judicially unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. 25. HEADINGS Any table of contents or section, article, attachment and exhibit titles and headings are inserted for convenience only and shall not be used for the purposes of interpreting this Agreement. 26. DOCUMENTS Documents, drawings, diagrams, charts, prints, attachments, pictures, papers, sketches, or items identified as part of this Agreement shall be deemed complementary in that what is shown on one and not specified on the other, or vice versa, shall be considered as shown on both. 27. ARTICLES The Agreement is divided into Articles and paragraphs which are titled and numbered for convenience only. It is not to be inferred that this is a complete or correct segregation of the several divisions of Deliverables to be performed. Customer shall not be liable for omission or duplication of items of Deliverables by Trilliant or Subcontractor, due to real or alleged error in arrangement of matter in this Agreement. 28. CLARIFICATIONS Under no circumstances shall Customer be liable or responsible for any oral clarifications, instructions, or interpretations. 29. ASSIGNMENT AND TRANSFER This Agreement may not be assigned or transferred by agreement, merger, consolidation, operation of law and/or otherwise, in whole or in part, by Trilliant without the prior written consent of Customer. Subject to the foregoing, this Agreement shall bind and inure to the benefit only of the Parties hereto and their respective successors and permitted assigns. 30. EXHIBITS AND SCHEDULES TO AGREEMENT This Agreement includes the Exhibits and Schedules listed below, including their Attachments, which as a whole, constitute the entire Agreement between the Parties, all of which form one integrated agreement: Exhibit 1.1 Definitions Exhibit 2.1 Form of Statement of Work Exhibit 3.1 Software License Terms and Conditions Exhibit 4.1 Maintenance and Su ort Terms and Conditions Exhibit 5.1 Hostin Terms and Conditions 31. NEGOTIATED TERMS Trilliant Confidential Page 18 32 The Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of, or against, any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement. COUNTERPARTS This Agreement may be executed by the Parties in five or more counterparts, all of which taken together shall constitute one and the same instrument- IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized representatives. TRILLIANT NETWORKS, INC. A Delawar Cor ration By: ( ignature) Name: Andrew C. White Its: President, Chief Executive Officer (Title) Date: ATTEST: JENNIFER WALTERS, CITY SECRETARY By: , G�� APPROVED AS TO LEGAL FORM: ANITA RG , CITY AT E By: THE CITY OF DENTON, TEXAS A Texas Municipal Corporation By: -�--- ( ign ture) Name: �7��/Z�'� C�. �/¢�%�,��� Its: G�i Tl� �'I�i�/✓�C,�� (Title) Trilliant Confidential Page 19 Exhibit 1.1 To Agreement for Advanced Metering Infrastructure ("AMI") Software, Hardware, Program Management and Support Services Definitions 1.1.1 "Agreement" has the meaning ascribed to such term in the preamble to the Agreement, and includes all Exhibits and Schedules thereto attached and/or therein referred. 1.1.2 "Applicable Laws" means all federal, state and local laws, statutes, ordinances, codes, regulations, rules, orders, and resolutions of all Governmental Authorities relating to the performance of the Deliverables and the transactions contemplated by this Agreement, including, without limitation, Environmental Laws, health, safety, building, and employment laws. 1.1.3 "Business Day" means any day on which commercial banks are not authorized or required to close for business in New York. 1.1.4 "Customer" has the meaning ascribed to such term in the preamble to the Agreement. 1.1.5 "Confidential Non-Disclosure Confidentiality Information" has the meaning ascribed to such term in Section 3 of the Agreement. 1.1.6 "Deliverables" means the items to be delivered and/or milestones to be met as part of the Advanced Metering Infrastructure project and set forth in the appropriate Statement of Work including but not limited to all Services, labor, supervision, supplies, fixtures, furnishings, vehicles, machinery, computers, processes, and equipment designed or intended for use in the production process of a Purchase Order Request, tools, materials, computers, software, utilities, items, documents, and things required by this Agreement to be performed or supplied, including, among other things, all sampling, assaying, construction, designing, testing, qualification, certification, and any component thereof, fully complete, operational, functional, and usable for its intended purpose under Applicable Laws. 1.1.7 "Hardware" means any product other than software designed and/or manufactured by or on behalf of Trilliant but excludes any third-party product provided as a pass - through item in writing or resold by Trilliant to Customer as part of a Purchase Order. 1.1.8 "Dispute" has the meaning ascribed to such term in Section 22 of the Agreement. 1.1.9 "Intellectual Property" has the meaning ascribed to such term in Section 8.1 of the Agreement. 1.1.10 "Intellectual Property Rights" has the meaning ascribed to such term in Section 8.2 of the Agreement. 1.1.11 "Milestone Dates" means, for a given Scope of Work, those specific dates that the Parties agree are critical to the progression of the Deliverables, and which are designated as "Critical" in the applicable SOW. 1.1.12 "OSHA" means the Occupational Safety and Health Act of 1970, as amended. Trilliant Confidential Page 20 1.1.13 "Party" and "Parties" each has the respective meaning ascribed to such term in the preamble to the Agreement. 1.1.14 "Payment Schedule" has the meaning ascribed to such term in Section 6.1 of the Agreement and as further detailed in the appropriate Statement of Work. 1.1.15 "Person" means any natural person, partnership (limited, general, or other), joint venture (limited or otherwise), Customer (limited liability or otherwise), corporation, association, Governmental Authority, or any other legal entity of whatever kind or nature, together with any combination of one or more of the foregoing. 1.1.16 "Price" for any given Purchase Order Request, has the meaning ascribed to such term in the corresponding Payment Schedule. 1.1.17 "Project Manager" and "Project Managers" each has the respective meaning ascribed to such term in the Agreement. 1.1.18 "Purchase Order Request" has the meaning ascribed to such term in Section 3 of the Agreement and provided for through the Purchase Order Request Template attached as Exhibit 1.2. 1.1.19 "Services" means any services, Deliverables, goods, equipment, materials, items, tasks, information, data, direction, consulting or other item or thing provided in accordance with this Agreement. 1.1.20 "Software" as to a given Scope of Work means the computer software programs(s) described in the corresponding Statement of Work developed by Trilliant, as well as related user manuals and standard documentation. 1.1.21 "Specifications" means, for a given Scope of Work, the corresponding document attached to or referencing this Agreement and stating in precise and explicit language those functions and capabilities a system (i.e., a software application, a communications network, and so on) must provide, as well as states any required constraints by which the Deliverables must abide, which document functions as a blueprint for completing the corresponding Deliverable with as little cost growth as possible. The Specifications include all appropriate project management documents, such as statements of work, installation procedures, validation and acceptance testing plans, and documentation plans. The Parties contemplate that the Specifications for a given Scope of Work may be modified by mutual consent from time to time in accordance with the Agreement. 1.1.22 "Scope of Work" or "Statement of Work" or "SOW° means the Deliverable(s) to be performed pursuant to a Purchase Order Request. 1.1.23 "Subcontractor" means any Person having a direct or indirect contract or purchase order with the Trilliant for the performance or supply of all or any portion of the Deliverables required by this Agreement or the supply of any materials, equipment, installation, or other Services required by this Agreement. 1.1.24 "Trilliant" has the meaning ascribed to such term in the preamble to the Agreement. 1.1.25 "Trilliant Personnel" means employees, consultants and subcontractor assigned by Trilliant to perform Services or Deliverables in a particular SOW. Trilliant Confidential Page 21 1.1.26 "Written Notice" means a written document signed by an authorized representative of the sending Party that conforms with the formalities of the Agreement. Trilliant Confidential Page 22 Exhibit 2.1 Form of Statement of Work Agreement for Advanced Metering Infrastructure ("AMI") Software, Hardware, Program Management and Support Services STATEMENT OF WORK ("SOW") NO. 00-OX This Statement of Work (S0111n defines a Statement of Services, Schedule and Price for work to be completed by Trilliant Networks, Inc. ("Trilliant") for Denton Municipal Electric ("Customer"). Unless specified otherwise within this SOW all work completed under this Statement of Work will be in accordance with the terms of the Agreement. AUTHORIZATION This Statement of Work is authorized and made an attachment to the above-identified Agreement. Authorized by: Accepted by: Customer Trilliant � (Signature) By; (Signature) Name: Name: (Please print) (Please print) Title: Title: Date: Date: Trilliant Confidential Page 23 Exhibit 3.1 Software License Terms and Conditions In addition to the terms and conditions set forth in the Agreement for Advanced Metering Infrastructure, the terms and conditions in this Exhibit 3.1 apply to Customer's license of Software. The license of Software and Customer's use of such software is deemed to be Services as that term is used and defined in the Agreement. ARTICLE 1 DEFINITIONS 1.1 Definitions. Capitalized terms used herein without definition shall have the meaning given to them in the Agreement. In addition, the following terms, as used herein, have the following meanings: 1.1.1. "Derivative Work" means any and all changes, upgrades, revisions, improvements, and modifications that improve upon or are derivative of the Software. 1.1.2. "Documentation" means the user, operating, and installation manuals or guides, and other printed or electronically stored or displayed materials relating to the use and operation of the Software as are made commercially available by Trilliant from time to time. 1.1.3. "Enhancement" means any modification or addition to the Software that changes its utility, efficiency, functional capability, or application. 1.1.4. "License Fee" means the license fee, if any, identified on Schedule 1 hereto. 1.1.5. "Customer Aqent" means any employee of Customer or Customer affiliate or an independent Customer contractor retained by Customer to perform services requiring use of the Software. 1.1.6. "Network Nodes" means any device containing a SecureMesh compatible radio. 1.1.7. "Obiect Code" means the compiled run time or execution version in machine language of a particular piece of software. 1.1.8. "Software" means the computer programs and data in Object Code form provided by Trilliant to Customer hereunder, as listed on Schedule 1 hereto, including any Enhancements to, and Derivative Works of, the same. 1.1.9. "Specifications" means the Documentation and any additional performance criteria or specifications mutually agreed to by the parties in writing. 1.1.10. "Third Partv" means any person or entity other than Customer and Trilliant. ARTICLE 2 LICENSE 2.1 Grant of License. Upon the terms and conditions set forth in this Exhibit F, Trilliant hereby grants to Customer and Customer Agents and Customer hereby accepts from Trilliant, during the Term a personal, non-exclusive, non-transferable, right and license, without the right to grant sublicenses, to use the Software and the Documentation solely for Customer's normal business operations, by no more than the number of authorized users and number of Network Nodes specified on Schedule 1 hereto, if any. 2.2 Except for Trilliant's warranty obligations under Article 3, Trilliant has no obligation under this Exhibit to correct any bugs, defects, or errors in the Software, or to otherwise support, maintain, improve, modify, upgrade, update or provide any Enhancements or Derivative Works to the Software. Any such obligation to support or maintain the Software will be subject to a separate Exhibit or agreement between Trilliant and Customer. 2.3 Ownership of Software and Documentation. As between the Parties, Trilliant shall own and retain all right, title, and interest in and to the Software and Documentation, including all worldwide rights to patents, copyrights, trademarks, trade secrets, and other intellectual property in or relating to the Software and Documentation. Customer is not acquiring any right, title, or interest of any nature whatsoever in any Software or Documentation, except the limited license granted under Section 2.1 to use the Software and Documentation. 2.4 Restrictions on Use. Customer's use of the Software and Documentation is subject to the following restrictions: 2.4.1. Customer may not use the Software and Documentation, or authorize or permit any Third Party to use or access the Software and Documentation, for any purpose other than as expressly authorized under Section 2.1. 2.4.2. Customer may not sublicense, assign, or otherwise transfer any of its rights in the Software or pocumentation to any Third Party, except Customer Agents, nor allow any Third Party, except Customer Agents, to access or use the Software or pocumentation. 2.4.3. Customer may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create Derivative Works based on the Software to develop any other computer program or for any other reason. 2.4.4. Customer may not modify, adapt, translate, or create Derivative Works based on the Documentation without the prior written consent of Trilliant. 2.4.5. Customer may not electronically transfer the Software from one computer to another over a network for purposes of use by a third-party. 2.4.6 Customer may not use the Software in a live production environment. 2.5 Limited Copvina Riaht. Customer may make no more than five (5) copies of the Software and Documentation solely for disaster recovery, training, testing, development, demo and other nonproduction purposes such as normal backup and archival purposes. All copies of the Software and Documentation, including the original copies provided by Trilliant to Customer in accordance with this Exhibit 3.1, are the property of Trilliant. All copies of the Software and Documentation must include any and all copyright notices provided on the corresponding original Software and Documentation. SCHEDULE 1 to Exhibit 3.1 Licensed Number of Number of License Fee Software Authorized Network Users Nodes UnitySuite 50,000 Per SOW Metering Application v9.3 ProCare 2 Per SOW Services Software v9.0 EXHIBIT 4.1 Maintenance and Support Terms and Conditions In addition to the terms and conditions set forth in the Agreement for Advanced Metering Infrastructure, the terms and conditions in this Exhibit 4.1 apply to Trilliant's maintenance and support of the following software: • UnitySuiteT"' Application • ProCareT"" Services Software ARTICLE 1 - DEFINITIONS 1.1 Definitions. Capitalized terms used herein without definition shall have the meaning given to them in the Agreement for Advanced Metering Infrastructure. In addition, the following terms, as used herein, shall have the following meanings: 1.1.1 "Custom Enhancement" means an Enhancement (as defined below) developed, in whole or in part, by Trilliant, at Customer's specific request and direction. 1.1.2 "Enhancement" means any modification or addition that, when made or added to a Licensed Program, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. 1.1.3 "Error" means a problem or error occurring in any Licensed Program that has been reported, is reproducible, and causes the Licensed Program to not be in material conformance with its published specifications (the "Specifications"). Any nonconformity resulting from Customer's misuse, improper use, alteration, or damage of a Licensed Program, or Customer's combining or merging the Licensed Program with any hardware or software not supplied or identified by Trilliant as compatible with the Licensed Program, shall not be considered an Error. 1.1.4 "Error Correction" means a modification or an addition that, when made or added to a Licensed Program, corrects or eliminates the practical adverse effect on Customer of an Error in the Licensed Program. 1.1.5 "General Enhancement" means any minor release, update, modification or "bug fix" (designated by a renumbered release number such as v3.3 to v3.4) which does not necessarily provide materially new functionality, as determined by Trilliant in its sole discretion, and made generally available to Trilliant's supported customers.) 1.1.6 "Normal Workinq Hours" means the hours between 9:00 a.m. and 8:00 p.m. Eastern time, Monday through Friday, except for observed U.S. holidays. 1.1.7 "Maior Enhancement" means a new major functional version of the Program and/or Documentation (designated by a renumbered release for example, v1.6 to v2.0) commercially released by Trilliant. 1.1.8 "Previous Sequential Release" means at any time the version or release of Licensed Program which has been replaced by the then-current version or release of such Licensed Product. Notwithstanding anything to the contrary herein, a Previous Sequential Release will be supported by Trilliant only for a period of six (6) months after release of the then-current version or release. ARTICLE 2- SCOPE OF SERVICES 2.1 Services. During the Term, Trilliant shall render the following maintenance and support services in support of the Licensed Programs and Previous Sequential Release (as set forth in Section 1.1.8), during Normal Working Hours, subject to the compensation agreed upon by the parties in writing. The maintenance and support services provided under this SOW are deemed Services as that term is used and defined in the Master Services Agreement. 2.1.1 Web Support. Trilliant shall maintain a web portal that allows Customer to report Issues with the Licensed Programs and to define the severity level. Trilliant shall make available qualified analysts to provide, at Customer's request, support services for the Licensed Programs, including: 2.1.1.1 Troubleshooting and diagnosing Errors in the Licensed Programs; Trilliant remote support has a dependency on Customer to provide secure access to all components of the solution including device connectivity, network access, and server(s) hosting the head-end software. 2.1.1.2 Interpreting error messages in the Licensed Programs; and 2.1.1.4 Answering questions regarding documentation and operations of the Licensed Programs. 2.1.2 Remote Troubleshootinq and Field Support. Customer shall make available to Trilliant remote access to its systems for the purpose of troubleshooting and problem resolution. If there are instances where web support or remote access is neither successful nor expedient, and upon mutual agreement between Trilliant and Customer, Trilliant will dispatch support personnel to Customer. If the field support is not covered under the service level defined in Schedule 2 attached hereto, then Customer will be responsible for reasonable pre-approved travel and labor costs as part of a separate agreement. 2.1.3 Error Corrections. At Customer's request, Trilliant shall make freely available to Customer, any Error Corrections developed during the Term for the Licensed Programs. 2.1.4 General Enhancements. Trilliant shall make available to Customer, via regularly scheduled maintenance releases any General Enhancements to the Licensed Programs developed during the Term. 2.1.5 Custom Enhancements. If requested by Customer, Trilliant shall develop Custom Enhancements to the Licensed Programs, in accordance with a separate development and support agreement(s) entered into by and between Trilliant and Customer and subject to the payment of the amounts provided in such separate agreement. Support services for Custom Enhancements are not included under this SOW. 2.1.6 Modifications to Licensed Pro_ r�s. Trilliant shall have no responsibility to provide services under this SOW if the Licensed Programs have been modified by parties other than Trilliant. 2.2 Severitv Levels. For each request by Customer for any of the services provided hereunder, Trilliant will assign a severity level in accordance with the descriptions set forth on Schedule 3 attached hereto. Trilliant will respond to the service request in the time and manner associated with the assigned severity level, as provided on Schedule 3. ARTICLE 3 - Customer RESPONSIBILITIES 3.1 Authorized Contacts. Customer shall designate on Schedule 4 attached hereto not more than four (4) contacts who are authorized to request the services provided hereunder (collectively, the "Authorized Contacts"). To reduce confusion and redundant contacts, only one (1) Authorized Contact shall be designated per service requested. 3.2 Customer Equipment. Customer shall be responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interFaces, and other hardware and software necessary to operate the Licensed Programs and to obtain from Trilliant the services called for by this Agreement (collectively, the "Customer Equipment"). Customer will make the Customer Equipment available to Trilliant as necessary for Trilliant to provide the services called for by this Agreement. This may include (depending on the service level) remote access to customers systems. SCHEDULE 1 to Exhibit 4.1 Supported Licensed Programs Licensed Number of Number of Software Authorized Network Users Nodes UnitySuite 50,000 Metering Application v9.3 ProCare Services 2 Software v9.0 SCHEDULE 2 to Exhibit 4.1 Maintenance and Support Rate Schedule for Licensed Programs See Pricing Schedule attached to SOW SCHEDULE 3 to Exhibit 4.1 Severity Levels Severitv 1: Severe Business Impact - An Error in a Licensed Program causes a complete loss of service and no work can reasonably continue. No workaround is available. a. Response Time: Trilliant will strive to respond to any request for service related to a Severity 1 level Error within 1 business hour of receipt of such request. Severitv 2: Significant Business Impact - An Error in a Licensed Program causes a severe loss of service, wherein important features are not working properly and there are no acceptable workarounds. However, operation does continue in a restrictive fashion. b. Response Time: Trilliant will strive to respond to any request for service related to a Severity 2 level Error within 2 business hours of receipt of such request. Severitv 3: Minor Business Impact - An Error in a Licensed Program causes a minor loss of service, wherein the impact is inconvenience. A workaround is available. c. Response Time: Trilliant will strive to respond to any request for service related to a Severity 3 level Error within 12 business hours of receipt of such request. Severitv 4: Information/ Minor Errors - There is no loss of service. Includes requests for more information, questions on particular application functionality, or minor system errors. d. Response Time: Trilliant will strive to respond to any request for a Severity 4 level service request within 24 hours of receipt of such request. Severitv 5: Enhancement Request - Requests for General Enhancements. Response Time: Trilliant will strive to respond to any request for a Severity 5 level service request within 24 hours of receipt of such request. Primarv Contact Name: [Denton Contact 1] Phone: SCHEDULE 4 to Exhibit 4.1 Authorized Contacts Alternate Contact Name: [Denton Contact 2] Phone: Mobile: Mobile: Email: Email: Exhibit 5.1 Hosting Terms and Conditions In addition to the terms and conditions set forth in the Agreement for Advanced Metering Infrastructure, the terms and conditions in this Exhibit 5.1 apply to the hosting services provided by Trilliant under this SOW: ARTICLE 1— Scope of Services 1. During the Term, Trilliant will provide the services described on Schedule 1 attached hereto (the "Hostina Services") to Customer in accordance with the service levels set forth in this Agreement. The Hosting Services are deemed Services as that term is used and defined in the Agreement for Advanced Metering Infrastructure. 1.1. Account Access. Where applicable, Trilliant will deliver to Customer an initial application administrator user ID, password and other account information ("Account Access Information") necessary for Customer to access the Hosting Services in accordance with this Agreement. Thereafter, Customer will create and manage Account Access Information for each user of the Hosting Services. Customer is responsible for all activity occurring under such Account Access Information and shall abide by all applicable local, state and federal laws and regulations in connection with Customer's use of the Hosting Services, including those related to data privacy and the transmission of technical or personal data. Customer shall: (i) notify Trilliant immediately of any unauthorized use of any Account Access Information or any other known or suspected breach of security, and (ii) not impersonate another Trilliant user or provide false identity information to gain access to or use the Hosting Services. ARTICLE 2 — Customer Responsibilities 2. Customer will provide Trilliant with the cooperation, access and detailed information reasonably necessary for Trilliant to implement and deliver the Hosting Services, including, where applicable, (i) test time on Customer's computer systems and networks sufficient for Trilliant to provide the Hosting Services and (ii) one (1) employee who has substantial computer system, network management and project management experience satisfactory to Trilliant to act as project manager and as a liaison between Trilliant and Customer. ARTICLE 3— DISCLAIMER OF LIABILITY 3. Trilliant makes no representation, warranty or guaranty that any data provided by Customer will be accurate or reliable. SCHEDULE 1 to Exhibit 5.1 HOSTING SERVICES Definition of Hosting Services. During the Term, Trilliant will provide Customer, through the World Wide Web, limited access to, and use of, the Software and shared data hosting services herein described, subject to Customer having entered into a separate Software License Agreement with Trilliant. The hosted environment will be equipped with UPS Power, Security, Fire Suppression, Enterprise Backup Services (with regular intervals) and Disaster Recovery. Definition of Software. The Software is Trilliant's web-based application entitled "SerViewCom" and/or "UnitySuite". Obligafions of Tri/liant. During such time while any Customer Data resides on any Trilliant server, Trilliant will provide technological measures, such as data encryption (SSL) for data transmission. The hosted environment will have an appropriate firewall for Customer with shared clustered Oracle database behind the firewall so that only the Customer web server can access the data, in a commercially reasonable effort to restrict access to Customer Data by unauthorized users. Support by Trilliant. Trilliant will provide support associated with the hosting services during the period of the agreement during regular business hours. The primary interFace for support will be through the Trilliant Support Site where trouble tickets can be logged for prioritization and follow up by Trilliant personnel. Application Upgrades. Trilliant reserves the right to make modifications, including upgrades, patches, revisions or additions to the Software, and as appropriate will provide advanced notification of said modifications. Backup Managemenf. During the Term, Trilliant shall perForm a regular backup of Customer Data to tape library in the form of nightly backup tapes, weekly backup tapes, and monthly backup tapes. Weekly backup tapes will be stored for one (1) month and monthly backup tapes will be stored for one (1) year; both weekly and monthly tapes will be stored off-site in a secure, fire-resistant location. All backup tapes will be destroyed at the end of this SOW and upon approval from Customer. Virus Protecfion. Trilliant has installed and will maintain centrally managed, industry standard anti-virus software in a commercially reasonable effort to protect the Hosting Services from virus infections and to prevent virus infections of Customer Data. Nardware and Operating System Management. Trilliant shall perform hardware maintenance, monitoring and problem resolution, and operating system maintenance, patching, upgrading, monitoring and problem resolution in accordance with standard practices. Operating System Security. Trilliant will maintain all operating systems used by Trilliant in providing the Hosting Services at commercially reasonable patch levels for security. Web Server and Dafabase Server Security. Trilliant will maintain all web servers and database servers used by Trilliant in providing the Hosting Services at commercially reasonable patch levels for security. Audit Logging. Trilliant will monitor and log all system access to the Hosting Services to produce an audit trail. COF DENTON Denton Municipal Electric Automated Metering Infrastructure (AMI) Statement of Work (SOW) for Phase 1 Contents �lTrilliant ChangeRecord ..............................................................................................................................................................2 Acronyms.......................................................................................................................................................................2 Definitions......................................................................................................................................................................2 Advanced Metering Infrastructure (AMI) Installation Project ..........................................................................................2 Phase1 Objectives ........................................................................................................................................................2 TrilliantScope of Services .............................................................................................................................................3 Trilliant Responsibilities for Phase 1 ..............................................................................................................................3 HeadEnd System Implementation ............................................................................................................................3 HeadEnd System Operations ...................................................................................................................................3 ProjectManagement Services ...................................................................................................................................4 Meter and Network Equipment Procurement .............................................................................................................4 Training.....................................................................................................................................................................4 Supportand Hosting Services ...................................................................................................................................4 Rolesand Responsibilities ........................................................................................................................................5 DentonResponsibilities .................................................................................................................................................5 Data/Resources .........................................................................................................................................................5 ProjectManagement .................................................................................................................................................5 Impacted ProcedurelProcess Assessment ................................................................................................................6 Documentation.......................................................................................................................................................... 6 Pricing............................................................................................................................................................................6 Signatures...................................................................................................................................................................... 8 DentonCorporation ...................................................................................................................................................8 Trilliant.......................................................................................................................................................................8 Trilliant Confidential con DENTON Change Record ��lTrilliant �� � � �' �� Author Uersion' Change Reference : , ��.���<� 3�� 05/11/10 Trilliant—GarrettJohnston 1.0 06/10/10 Trilliant — Paul Karr 2.0 Added meters and network infrastructure to support Turtle replacement project 6/16/10 Triliiant — Paui Karr 3.0 Minor points of clarification, update performance metric to 98%, refine meter type detail and prices, add 3`d ProCare user license at no additional cost 6/17/10 Trilliant — Paul Karr 3.1 Finalized unit and total pricing details for meters Acronyms AMI Advanced Metering Infrastructure WAN Wide Area Network NAN Neighborhood Area Network MDM Meter Data Management Definitions HES NAN WAN Head End System Neighborhood Area Network Wide Area Network HAN Home Area Network VPN Virtual Private Network NIC Network Interface Card Advanced Metering Infrastructure (AMI) Installation Project The Denton Municipal Electric (DME) Advanced Metering Infrastructure (AMI) project is a five-year project to convert reading of electric meters to the Trilliant SecureMesh Network that includes tiers for the Wide-Area Network (WAN)Ibackhaul, Neighborhood Area Network (NAN) and Home Area Network (HAN). The project is proposed to begin in July 2010 with planned completion by June 2015. The project will involve multiple phases that align with Denton fiscal years that run from October 1 through September 30. Phase 10bjectives This Statement of Work document is focused on Phase I of the project that is expected to be completed within 3 months or less. The objectives of Phase 1, which will run from the date of contract signing (tentatively set for July 21, 2010) to September 30, 2010, will be to: 1. Re-connect the previous pilot environment at DME initially utilizing Trilliant hosting facilities for the head end system 2. Focus on preparation for full deployment of the Trilliant network including communications and IT components 3. Delivery of ineters and network equipment to be used for Turtle replacement initiative (note that while Trilliant will be pursuing best effort in delivery of all equipment by Sept 30, 2010, lead times to be confirmed upon final release of orders) Trilliant Confidential DENTON Trilliant Scope of Services Specifically, Trilliant will provide the following services during Phase 1: ���Trilliant 1. Re-connect the pilot environment including the following components previously installed at DME a. Trilliant SecureMesh Network (including collectors) and Verizon cellular backhaul of approximately 500 electric residential meters with under the cover disconnects and commercial meters used for pilot b. Host UnitySuitelSerViewCom (SVC) head end system at Trilliant headquarters in Redwood City, Calif. 2. Deliver document with comprehensive design of the complete SecureMesh Network (WAN, NAN and HAN) throughout the Denton Municipal Electric certificated service territory 3. Operate the Trilliant solution on a daily basis to ensure the ensure data is available for 98% of ineters by 9 AM Pacific Time the following day. 4. Work with Denton to plan for full rollout including: a. Assessment of optimal approach for upgrading to current versions of system components b. Training on installation of at least one piece of each type of hardware component to provide experience for installers and develop standard processes Trilliant Responsibilities for Phase 1 Trilliant shall provide and be responsible for the following tasks and services as part of the Denton AMI project: Head End System Implementation Trilliant will host UnitySuite AMI software during Phase 1. (The head-end system will be transitioned to a Denton- owned and -operated system in a later phase). For Phase 1, Trilliant will provide the UnitySuite AMI software solution (also known as SerViewCom) including hardware (servers, routers, etc.) and third-party software infrastructure with Internet connectivity. Trilliant will also provide the following services: Setup, and configure UnitySuite AMI system o Configure network components required to support initial 500 meters installetl at Denton into UnitySuite AMI software o Establish initial set up of account data in UnitySuite based on a file provided by Denton specifying meter ids and account numbers o Set up of Trilliant standard exports. This does not include development of new exports. o Confirm electric meters properly associate to Head End System Functional testing of the implemented system including o Event testing — Outage, Tamper etc. o Connectivity with installed Trilliant system components o Remote Disconnect functionality o Required Data Extracts Migration of data from previous system is not included in this scope. Conduct requirements gathering workshop with customer on site to determine configuration requirements for full system rollout and document results. Head End System Operations For the period of July 5 to September 30, 2010, Trilliant will operate and monitor the system to meet the defined SLA requirements including: • Monitoring of system performance • Investigation of system anomalies • Scheduled reports are received by time specified by client Trilliant Confidential 3 �OF DENTON ��lTrilliant • Data Extract files are being sent successfully • Trouble tickets are handled within specified time lines of the support contract • Trouble tickets are logged and reported on (daily, weekly, monthly as specified by client) Project Management Services Kyle Lehman will serve as the project director responsible for Trilliant's portion of the project. Mr. Lehman will lead Trilliant project management services including: • Ensure collaboration as needed for a successful delivery of Phase 1 • Submit Trilliant deliverables based on the most-current, approved Denton project plan with authorization to provide approvals and escalation as required • Request information necessary to order and configure network and meter products for Denton • Attend status calls with Denton including network and meter performance debriefs • Create with client success criteria for Phase 1 • Provide weekly status reports including o Tracking of time and expenses o Status of deliverables per the most-current, approved project plan • Coordinate and escalate with Trilliant executives and resources as appropriate • Assist in tracking and managing issues • Support change control • Develop and maintain the detailed project plan, which will be reviewed at weekly status meetings to ensure the schedule is achieved Meter and Network Equipment Procurement Trilliant will provide procurement and integration services for Phase 1 including the following activities: • Manage the network equipment ordering. � Ensure that meter and module configurations are consistent and accurate. • Serve as the single point-of-contact for manufacturing, delivery and failure issues, • Upgrade equipment as required to current firmware levels. Training Trilliant will provide during Phase 1 the following training-related items: Courses o User training for UnitySuite AMI software (also known as SerViewCom) o Use of ProCare field tool o Field installation of Hardware including meters and collectors Documentation o Electronic copies of presentations, user guides and other documentation covered in the training course, Support and Hosting Services Trilliant will provide the following initial services and ongoing support as part of Phase 1: • Configure Denton's network equipment in the hosted system. • Provide initial configuration of operations reports for users and facilitate questions on standard data exports, • Create trouble tickets based on Denton's requested investigations for all field devices during the project • Provide return material authorization (RMA) as required for inoperable or damaged equipment during the project, Trilliant Confidential 4 oTM DENTON !�lTrilliant • Provide an online trouble ticket site and support procedures to submit and track any new or outstanding issues. • Follow Trilliant's standard service levels to support ticket resolution (as noted in the Trilliant-Denton contract.) • Provide Telecommunications network requirements including connectivity and equipment at the Trilliant Redwood City, Calif. facility to enable VPN connectivity to the Denton facility. • Provide End-to-End Connectivity Validation Report including continual validation of end-to-end connectivity for all meters connected to the network. • Provide user documentation for the UnitySuite Head-End, ProCare software applications, network equipment and meter specifications. Roles and Responsibilities The following table outlines resources proposed for Phase 1 of the Denton project. Final determination of resources will be tletermined following contract signature based on availability of Trilliant resources, Project Director Overall project managing, scheduling, customer point of contact Sr. Architect / Subject Matter Expert Specialized support for impementation design Network Architect Network Design Network Planner Network design support and deployment planning System Integration Lead System deployment planning lead System Integration Analyst System deployment delivery Training Technical Consultant Training development and delivery Services Assurance Analyst System operations monitoring and reports Denton Responsibilities Data/Resources Denton will provide the following to Trilliant during Phase 1: Data o Locations of all meters and other assets that will be read by the network and other asset-related information required for network designs o WAN "hard wired" locations o Data file of service locations (meter service addresses and service pole locations) Resources including field and office personnel to meet the Denton Detailed Project Plan Hardware including a router to support the VPN as well as all facilities required to backhaul data from Trilliant Gateways to the Head End, Project Management Denton will provide the following project management resources: Trilliant Confidential oTM DENTON ��1Trilliant • Designated project manager with authorization to provide approvals on Trilliant work and assist Trilliant in facilitating and escalating as required across Denton to ensure successful delivery of project. � Weekly status meetings with project participants, and monthly executive reviews, • Training site to conduct training. • Prompt review and management of approval process within Denton for SOW requests that may be submitted to support mutually identified areas of additional work for Trilliant. • Development and maintenance of the project plan, with input from Trilliant. Impacted Procedure/Process Assessment DME will: • Develop the network and meter equipment installation/removal procedures with support from Trilliant, Final standards and procedures will be approved jointly between Denton and Trilliant. • Develop asset management processes associated with the NlClinfrastructure equipment tracking. • Update call center processes to address customer questions. Documentation DME will, as required, document: • Updates of the mapping system with installed network equipment • Installation standards for field devices Pricing Project Director $ 2,000.00 15% $ 1,700.00 Sr. Architect / Subject Matter Expert $ 2,OOo.00 15% $ 1,700.00 Network Architect $ 2,000.00 15% $ 1,700.00 Network Planner $ 1,350.00 15% $ 1,147.50 System Integration Lead $ 1,500.00 15% $ 1,275.00 System Integration Analyst $ 1,350.00 15% $ 1,147.50 Training Technical Consultant $ 1,350.00 15% $ 1,147.50 Services Assurance Analyst $ 1,200.00 15% $ 1,020.00 The following table reflects the meter mix and quantities to be included within this Phase I order, Item Fm Class V Resl With With Meter With Meter Unit Extentletl Com Disc Demantl Type Batt Qty Price Price Switch 1 2S 200 240 Res YES NO AXSD No 5592 $140,12 $ 783,551,04 2 2S 200 240 Resl NO NO AL No 320 $ 65,12 $ 20,838.40 Com Trilliant Confidential oTM DENTON �ilTrilliant 3 2S 200 240 Res/ NO YES AX Yes 16 $141.14 $ 2,258.24 Com 4 4S 20 240 Res/ NO YES AX Yes 12 $155,86 $ 1,870.32 Com 5 9S 20 120- Com NO YES AX Yes 4 $230.05 $ 920.20 277 Wide Range 6 16S 200 120- Com NO YES AX Yes 4 $230,05 $ 920.20 277 Wide Range 7 2S 320 240 Resl NO YES AX Yes 4 $154.36 $ 617.44 Com 8 12S 200 120- Com NO YES AX Yes 4 $230.05 $ 920.20 277 Wide Range Totals 5956 $ 811,896.04 Pricinq Summarv Network Infrastructure and Meters SecureMesh WAN Gateway SecureMesh Extender Bridge SecureMesh Power Service Unit Mounting Kit for Gateway and Extender SecureMesh Repeater SecureMesh Meters SecureMesh USB Radio Quantity 2 18 20 20 27 5956 2 Unit Price $15,200.00 $6,444.00 $650.00 $435.00 $497.00 mix $150.00 Extended Price $30,400.00 $115,992.00 $13,000.00 $8,700.00 $13,419.00 $ 811,896.04 $300.00 Services* $175,000.00 Software Licenses (UnitySuite Metering, 3 ProCare licenses) $185,500.00 Software Maintenance and Support Services (discounted and extended throuqh 9/30/2011) $37,100.00 Total $9,391,307.04 " Notes: 1. The services total is based on esfimated resource requirements 2. Trilliant will not charge for hosting service during Phase 1, During Phase 1, Denton and Trilliant will work together to confirm Denton's requirements for support of production rollout antl then work together to arrive at payment agreement for hosting services beyond Phase 1. 3, Network infrastructure quantities are estimates based on a preliminary analysis of the territory and location data provided for the Turfle metes. Final network quantities and location selection shall occurthrough network tlesign phase of project, Trilliant Confidential 7 �OF DENTON Signatures The City of Denton, Texas A Texas Municipal Corporation By: Name: ��� � ( ". l;%���,vGL �— Title: �% �/1�'� G/� Date: V ""�/ ZD/ ��l F� ATTEST: JENNIFER WALTERS, CITY SECRETARY By: ` �����, APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: Trilliant Confidential 8 ���Trilliant Trilliant Networks, Inc. i sy: � Name: Andrew C. White Title: President, Chief Executive Officer Date: � � "J�'I � �