2010-180
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2010-180
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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 �
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i
MARK A. BU UGH�;IVIAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By. -
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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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.
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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
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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)
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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
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• 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,
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• 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:
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• 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
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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
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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
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Trilliant Networks, Inc.
i
sy: �
Name: Andrew C. White
Title: President, Chief Executive Officer
Date: � � "J�'I � �