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FirstAmendmenttoContractKOrdinanceNo.201334212/17/13JR
ORDINANCE NO. A409- 2, , ? q
AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A
CONTRACT FOR THE PURCHASE OF A SUPERVISORY CONTROL AND DATA
ACQUISITION (SCADA) SYSTEM FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR
THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (BID
4074-SCADA/DMS SYSTEM FOR DENTON MUNICIPAL ELECTRIC AWARDED TO OPEN
SYSTEMS INTERNATIONAL (OSI) IN THE AMOUNT OF $203,419).
WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for
the purchase of Insurance Consultant Services in accordance with the procedures of State law and
City ordinances; and
WHEREAS, the City Manager or a designated employee has received and reviewed and
recommended that the herein described proposals are the most advantageous to the City considering
the relative importance of price and the other evaluation factors included in the request for proposals;
and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The items in the following numbered request for proposal for materials,
equipment, supplies or services, shown in the "Request 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.
RFP
NUMBER CONTRACTOR AMOUNT
4074 Open Systems International $203,419
SECTION 2. By the acceptance and approval of the above numbered items of the submitted
proposals, the City accepts the offer of the persons submitting the proposals for such items and
agrees to purchase the materials, equipment, supplies or services in accordance with the terms,
specifications, standards, quantities and for the specified sums contained in the Proposal Invitations,
Proposals, and related documents.
SECTION 3. Should the City and person submitting approved and accepted items and of the
submitted proposals wish to enter into a formal written agreement as a result of the acceptance,
approval, and awarding of the proposals, the City Manager or his designated representative is hereby
authorized to execute the written contract; provided that the written contract is in accordance with
the terms, conditions, specifications, standards, quantities and specified sums contained in the
Proposal and related documents herein approved and accepted.
SECTION 4. By the acceptance and approval of the above enumerated bids, the City
Council hereby authorizes the expenditure of finds therefor in the amount and in accordance with
the approved bids.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of , 2008.
J~Z&-
MARK A. BURROUGH YOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPR VED A TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
4
3-OR P 4074
CONTRACT BY AND BETWEEN
CITY OF DENTON, TEXAS AND OPEN SYSTEMS INTERNATIONAL, INC.
RFP NO. 4074
THIS CONTRACT is made and entered into by and between Open Systems International Inc
OSI a corporation, whose address is 3600 Holly Lane North, suite 40, Minneapolis, MN 55447-1286,
hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal
corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council
and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee.
For and in consideration of the covenants and agreements contained herein, and for the mutual
benefits to be obtained hereby, the parties agree as follows:
1.
SCOPE OF SERVICES
Contractor shall provide all labor, supervision, materials and equipment necessary for Supervisory
Control and Data Acquisition (SCADA) System for Denton Municipal Electric . These products and
services shall be provided in accordance with the Specifications for RFP 4074 SCADA/DMS System for
Denton Municipal Electric, a copy of which is attached hereto and incorporated herein as Exhibit "B"
(or on file in the office of the Purchasing Agent), and the Contractor's Proposal in response thereto, a
copy of which is available at the office of the Purchasing Agent and incorporated herein for all purposes
as Exhibit "A". The Contract consists of this written agreement and the following items which are
attached hereto and incorporated herein by reference:
(a) Updated List of Deliverables, System Configuration Diagram and Pricing documents
presenting options selected by City. (Exhibit "F")
(b) Contractor's Proposal on file in the office of the Purchasing Agent (Exhibit A);
(c) Exhibit "B" on file in the office of the Purchasing Agent;
(d) Insurance Requirements. (Exhibit "C");
(e) Form CIQ - Conflict of Interest Questionnaire (Exhibit "D");
(f) Mutual Non-Disclosure Agreement (Exhibit "E"),-
These documents make up the Contract documents and what is called for by one shall be as
binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the
Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the
written agreement then to the contract documents in the order in which they are listed above. These
documents shall be referred to collectively as "Contract Documents."
II.
TIME OF COMPLETION
Contractor agrees and covenants that all work hereunder shall be complete within 6 months
following notice to proceed from City.
Or
III.
TERM OF CONTRACT
The initial term of this Contract shall be (DATE, IF APPLICABLE) OR one year from date of
contract execution unless otherwise stated.
IV.
WARRANTY
Contractor warrants and covenants to City that all goods and services provided by Contractor,
Contractor's subcontractors, and agents under the Agreement shall be free of defects and produced and
performed in a skillful and workmanlike manner and shall comply with the specifications for said goods
and services as set forth in this Agreement and the Bid Specifications available at the office of the
Purchasing Agent and incorporated herein as Exhibit "B". Contractor warrants that the goods and
services provided to City under this Agreement shall be free from defects in material and workmanship,
for a period of one (1) year commencing on the date that City issues final written acceptance of the
project.
V.
PAYMENT
Payments hereunder shall be made to Contractor following city's acceptance of the work and within
thirty (30) days of receiving Contractor's invoice for the products and services delivered at the
milestones noted below. Total compensation under this contract shall not exceed the sum of $203,419.
The contract price shall be paid to the Contractor in installments after acceptance of the agreed upon
project milestones as follows:
1. 33 1/3% Upon Delivery of Standard OSI Software CD Media
Upon Delivery of OSI Standard Documentation
Upon Delivery of Administrator Console On-Site
2. 33 1/3% Upon delivery and Installation of remaining system hardware On-site
3. 33 1/3% Upon Completion of SAT
Contractor recognizes that this Contract shall commence upon the effective date herein and continue
in full force and effect until termination in accordance with its provisions. Contractor and City herein
recognize that the continuation of any contract after the close of any given fiscal year of the City of
Denton, which fiscal year ends on September 30th of each year, shall be subject to Denton City Council
approval. In the event that the Denton City Council does not approve the appropriation of funds for this
contract, the Contract shall terminate at the end of the fiscal year for which funds were appropriated and
the parties shall have no further obligations hereunder.
-2
VI.
PROTECTION AGAINST ACCIDENT TO EMPLOYEES AND THE PUBLIC
Contractor shall at all times exercise reasonable precautions for the safety of employees and
others on or near the work and shall comply with all applicable provisions of Federal, State, and
Municipal safety laws. The safety precautions actually taken and the adequacy thereof shall be the sole
responsibility of the Contractor. Contractor shall indemnify City for any and all losses arising out of or
related to a breach of this duty by Contractor pursuant to paragraph VIII. INDEMNIFICATION and
paragraph IX. COMPLIANCE WITH APPLICABLE LAWS set forth herein.
VII.
LOSSES FROM NATURAL CAUSES
Unless otherwise specified, all loss or damage to Contractor arising out of the nature of the work
to be done, or from the action of the elements, or from any unforeseen circumstances in the prosecution
of the same, or from unusual obstructions or difficulties which may be encountered in the prosecution of
the work, shall be sustained and borne by the Contractor at its own cost and expense.
VIII.
INDEMNIFICATION
Contractor shall release, defend, indemnify and hold the City, its elected officials, officers and
employees harmless from and against all claims, damages, injuries (including death), property damages
(including loss of use), losses, demands, suits, judgments and costs, including attorney's fees and
expenses, in any way arising out of, related to, or resulting from the services provided by Contractor
under this Agreement or caused by the negligent act or omission or the intentional act or omission of
Contractor, its officers, agents, employees, subcontractors, licensees, invitees or any other third parties
for whom Contractor is legally responsible (hereinafter "Claims"). Contractor is expressly required to
defend City against all such Claims.
In the event the City is a named party to a suit arising out of the subject matter of this Contract,
the City shall have reasonable input into the selection of defense counsel to be retained by Contractor in
fulfilling its obligation hereunder to defend and indemnify City. City reserves the right to provide a
portion or all of its own defense; however, City is under no obligation to do so. Any such action by City
is not to be construed as a waiver of Contractor's obligation to defend City or as a waiver of
Contractor's obligation to indemnify City pursuant to this Contract. Contractor shall retain defense
counsel within seven (7) business days of City's written notice that City is invoking its right to
indemnification under this Contract. If Contractor fails to retain counsel within such time .period, City
shall have the right to retain defense counsel on its own behalf, and Contractor shall be liable for all
costs incurred by City.
IX.
COMPLIANCE WITH APPLICABLE LAWS
Contractor shall at all times observe and comply with all Federal, State and local laws, ordinances
and regulations including all amendments and revisions thereto, which in any manner affect Contractor
or the work, and shall indemnify and save harmless City against any claim related to or arising
from the violation of any such laws, ordinances and regulations whether by Contractor, its
employees, officers, agents, subcontractors, or representatives. If Contractor observes that the work
is at variance therewith, Contractor shall promptly notify City in writing.
-3
X.
VENUE
The laws of the State of Texas shall govern the interpretation, validity, performance and
enforcement of this Contract. The parties agree that this Contract is performable in Denton County,
Texas, and that exclusive venue shall lie in Denton County, Texas.
XI.
ASSIGNMENT AND SUBLETTING
Contractor agrees to retain control and to give full attention to the fulfillment of this Contract,
that this Contract shall not be assigned or sublet without the prior written consent of City, and that no
part or feature of the work will be sublet to anyone objectionable to City. Contractor further agrees that
the subletting of any portion or feature of the work, or materials required in the performance of this
Contract, shall not relieve Contractor from its full obligations to City as.provided by this Contract.
XII.
INDEPENDENT CONTRACTOR
Contractor covenants and agrees that Contractor is an independent contractor and not an officer,
agent, servant or employee of City; that Contractor shall have exclusive control of and exclusive right to
control the details of the work performed hereunder and all persons performing same, and shall be
responsible for the acts and omissions of its officers, agents, employees, contractors, subcontractors and
consultants; that the doctrine of respondeat superior shall not apply as between City and Contractor, its
officers, agents, employees, contractors, subcontractors and consultants, and nothing herein shall be
construed as creating a partnership or joint enterprise between City and Contractor.
XIH.
INSURANCE AND CERTIFICATES OF INSURANCE
Contractor shall procure and maintain for the duration of the contract insurance coverage as set forth
in the Insurance Requirements marked Exhibit "C" attached hereto and incorporated herein by
reference. Contractor shall provide a signed insurance certificate verifying that they have obtained the
required insurance coverage prior to the effective date of this Contract.
XIV.
HINDRANCES AND DELAYS
No claims shall be made by Contractor for damages resulting from hindrances or delays from
any cause during the progress of any portion of the work embraced in this Contract.
XV.
AFFIDAVIT OF NO PROHIBITED INTEREST
Contractor acknowledges and represents it is aware of all applicable laws, City Charter, and City
Code of Conduct regarding prohibited interests and that the existence of a prohibited interest at any time
will render the Contract voidable. Contractor has executed the Affidavit of No Prohibited Interest,
attached and incorporated herein as Exhibit "D".
XVI.
SEVERABILITY
The provisions of this Contract are severable. If any paragraph, section, subdivision, sentence,
clause, or phrase of this Contract is for any reason held to be contrary to the law or contrary to any rule
or regulation having the force and effect of the law, such decisions shall not affect the remaining
portions of the Contract. However, upon the occurrence of such event, either party may terminate this
Contract by giving the other party thirty (30) days written notice.
XVII.
TERMINATION
City may, at its option, with or without cause, and without penalty or prejudice to any other remedy
it may be entitled to at law, or in equity or otherwise under this Contract, terminate further work under
this contract, in whole or in part by giving at least thirty (30) days prior written notice thereof to
Contractor with the understanding that all services being terminated shall cease upon the date such
notice is received.
XVIII.
ENTIRE AGREEMENT
This Contract and its attachments embody the entire agreement between the parties and may only be
modified in writing if executed by both parties.
XIX.
CONTRACT INTERPRETATION
Although this Contract is drafted by City, should any part be in dispute, the parties agree that the
Contract shall not be construed more favorably for either party.
XX.
SUCCESSORS AND ASSIGNS
This Contract shall be binding upon the parties hereto, their successors, heirs, personal
representatives and assigns.
XXI.
HEADINGS
The headings of this Contract are for the convenience of reference only and shall not affect in any
manner any of the terms and conditions hereof.
XXII.
RIGHT TO AUDIT
The OWNER shall have the right to audit and make copies of the books, records and computations
pertaining to this agreement. The CONTRACTOR shall retain such books, records, documents and
other evidence pertaining to this agreement during the contract period and five years thereafter, except if
an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all
audit tasks are completed and resolved. These books, records, documents and other evidence shall be
available, within 10 business days of written request. Further, the CONTRACTOR shall also require all
Subcontractors, material suppliers, and other payees to retain all books, records, documents and other
-2
evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All
books and records will be made available within a 50 mile radius of the City of Denton. The cost of the
audit will be borne by the OWNER unless the audit reveals an overpayment of 1% or greater. If an
overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must
be borne by the CONTRACTOR which must be payable within five business days of receipt of an
invoice.
Failure to comply with the provisions of this section shall be a material breach of this contract and shall
constitute, in the OWNER'S sole discretion, grounds for termination thereof. Each of the terms
"books", "records", "documents" and "other evidence", as used above, shall be construed to include
drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or
prepare a final printed document.
-3
IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year
and day first above written.
CONTRACTOR -
BY: ! -
OWNER (SIGNATURE) I ja7~ oq
Name: g0.hm0.~n VIOV e. &OL
Title: Pi~Si c~er~ F CEO
3,100 , l1~4 Lh _ N. She LIO Mien ea ~1h N
MAILING ADDRESS 55LH7- ig&o
55I- OSS9
PHONE NUMBER
7(v3 - SS I - 0 756
FAX NUMBER
open SQ: -tems \y)XPcn(XM0nu\~ lnc .
PRINTED NAME
CITY OF DENTON, S
BY:
CIT MANAGER
DEPARTMENTAL APPROVAL
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
C
BY:
-4
EXHIBIT C
CITY OF DENTON
INSURANCE REQUIREMENTS FOR CONTRACTORS
Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders
confer with their respective insurance carriers or brokers to determine in advance of Bid submission the
availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent
low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from
award'of the contract. Upon bid award, all insurance requirements shall become contractual obligations,
which the successful bidder shall have a duty to maintain throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and
maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the
minimum insurance coverage as indicated hereinafter.
As soon as practicable after notification of bid award, Contractor shall file with the Purchasing Department
satisfactory certificates of insurance, containing the bid number and title of the project. Contractor may, upon
written request to the Purchasing Department, ask for clarification of any insurance requirements at any time;
however, Contractors are strongly advised to make such requests prior to bid opening, since the insurance
requirements may not be modified or waived after bid opening unless a written exception has been submitted
with the bid. Contractor shall not commence any work or deliver any material until he or she receives
notification that the contract has been accepted, approved, and signed by the City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the
following general specifications, and shall be maintained in compliance with these general specifications
throughout the duration of the Contract, or longer, if so noted:
• Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M.
Best Company rating of at least A.
• Any deductibles or self-insured retentions shall be declared in the bid proposal. If requested by the
City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to
the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim administration and defense expenses.
• Liability policies shall be endorsed to provide the following:
• Name as additional insured the City of Denton, its Officials, Agents, Employees and
volunteers.
• That such insurance is primary to any other insurance available to the additional insured with
respect to claims covered under the policy and that this insurance applies separately to each
insured against whom claim is made or
suit is brought. The inclusion of more than one insured shall not operate to increase the
insurer's limit of liability.
-5
EXHIBIT C
• Cancellation: The City requires 30 day written notice should any of the policies described
on the certificate be cancelled or materially changed before the expiration date.
• Should any of the required insurance be provided under a claims-made form, Contractor shall
maintain such coverage continuously throughout the term of this contract and, without lapse,
for a period of three years beyond the contract expiration, such that occurrences arising during
the contract term which give rise to claims made after expiration of the contract shall be
covered.
• Should any of the required insurance be provided under a form of coverage that includes a
general annual aggregate limit providing for claims investigation or legal defense costs to be
included in the general annual aggregate limit, the Contractor shall either double the
occurrence limits or obtain Owners and Contractors Protective Liability Insurance.
• Should any required insurance lapse during the contract term, requests for payments
originating after such lapse shall not be processed until the City receives satisfactory evidence
of reinstated coverage as required by this contract, effective as of the lapse date. If insurance
is not reinstated, City may, at its sole option, terminate this agreement effective on the date of
the lapse.
-6
EXHIBIT C
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the
following marked specifications, and shall be maintained in compliance with these additional specifications
throughout the duration of the Contract, or longer, if so noted:
[X ] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than $1,000,000.00shall be
provided and maintained by the Contractor. The policy shall be written on an occurrence basis
either in a single policy or in a combination of underlying and umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current edition) is used:
• Coverage A shall include premises, operations, products, and completed operations,
independent contractors, contractual liability covering this contract and broad form
property damage coverage.
• Coverage B shall include personal injury.
• Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form
GL 0404) is used, it shall include at least:
• Bodily injury and Property Damage Liability for premises, operations, products and
completed operations, independent contractors and property damage resulting from
explosion, collapse or underground (XCU) exposures.
• Broad form contractual liability (preferably by endorsement) covering this contract, personal
injury liability and broad form property damage liability.
[X] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits
(CSL) of not less than $500,000.00 either in a single policy or in a combination of basic and umbrella or
excess policies. The policy will include bodily injury and property damage liability arising out of the
operation, maintenance and use of all automobiles and mobile equipment used.in conjunction with this
contract.
Satisfaction of the above requirement shall be in the form of a policy endorsement for:
• any auto, or
• all owned, hired and non-owned autos.
-7
EXHIBIT C
[ ] Workers Compensation Insurance
Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting
the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at
least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for
occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree
to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any
work performed for the City by the Named Insured. For building or construction projects, the
Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas
Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under
this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as
insured for property damage and bodily injury which may arise in the prosecution of the work or
Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy
shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy
limits will be at least combined bodily injury and property damage per occurrence with a _ aggregate.
[ ] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor
or if a contractor leases or rents a portion of a City building. Limits of not less than each
occurrence are required.
[ ] Professional Liability Insurance
Professional liability insurance with limits not less than per claim with respect to
negligent acts, errors or omissions in connection with professional services is required under this
Agreement.
[ ] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such
policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may
appear.
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises,
burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should
be written on a "blanket" basis to cover all employees, including new hires. This type insurance should
be required if the contractor has access to City funds. Limits of not less than each occurrence are
required.
-8
EXHIBIT C
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous contracts and specific
service agreements. If such additional insurance is required for a specific contract, that requirement will
be described in the "Specific Conditions" of the contract specifications.
-9
EXHIBIT C
ATTACHMENT 1
[ ] Worker's Compensation Coverage for Building or Construction Projects for Governmental
Entities
A. Definitions:
Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority
to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-
83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or
entity's employees providing services on a project, for the duration of the project.
Duration of the project - includes the time from the beginning of the work on the project until the
contractor's/person's work on the project has been completed and accepted by the governmental
entity.
Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or
entities performing all or part of the services the contractor has undertaken to perform on the
project, regardless of whether that person contracted directly with the contractor and regardless of
whether that person has employees. This includes, without limitation, independent contractors,
subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity,
or employees of any entity which furnishes persons to provide services on the project. "Services"
include, without limitation, providing, hauling, or delivering equipment or materials, or providing
labor, transportation, or other service related to a project. "Services" does not include activities
unrelated to the project, such as foodibeverage vendors, office supply deliveries, and delivery of
portable toilets.
B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll
amounts and filing of any overage agreements, which meets the statutory requirements of Texas
Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the
project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental entity prior to being
awarded the contract.
D. If the coverage period shown on the contractor's current certificate of coverage ends during the
duration of the project, the contractor must, prior to the end of the coverage period, file a new
certificate of coverage with the governmental entity showing that coverage has been extended.
E. The contractor shall obtain from each person providing services on a project, and provide to the
governmental entity:
1) a certificate of coverage, prior to that person beginning work on the project, so the governmental
entity will have on file certificates of coverage showing coverage for all persons providing
services on the project; and
2) no later than seven days after receipt by the contractor, a new certificate of coverage showing
extension of coverage, if the coverage period shown on the current certificate of coverage ends
during the duration of the project.
-10
EXHIBIT C
F. The contractor shall retain all required certificates of coverage for the duration of the project and for
one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery,
within 10 days after the contractor knew or should have known, of any change that materially affects
the provision of coverage of any person providing services on the project.
H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the
Texas Workers' Compensation Commission, informing all persons providing services on the project
that they are required to be covered, and stating how a person may verify coverage and report lack of
coverage.
1. The contractor shall contractually require each person with whom it contracts to provide services on
a project, to:
1) provide coverage, based on proper reporting of classification codes and payroll amounts and
filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code,
Section 401.011(44) for all of its employees providing services on the project, for the duration of
the project;
2) provide to the contractor, prior to that person beginning work on the project, a certificate of
coverage showing that coverage is being provided for all employees of the person providing
services on the project, for the duration of the project;
3) provide the contractor, prior to the end of the coverage period, a new certificate of coverage
showing extension of coverage, if the coverage period shown on the current certificate of
coverage ends during the duration of the project;
4) obtain from each other person with whom it contracts, and provide to the contractor:
a) certificate of coverage, prior to the other person beginning work on the project; and
b) a new certificate of coverage showing extension of coverage, prior to the end of the
coverage period, if the coverage period shown on the current certificate of coverage ends
during the duration of the project;
5) retain all required certificates of coverage on file for the duration of the project and for one year
thereafter;
6) notify the governmental entity in writing by certified mail or personal delivery, within 10 days
after the person knew or should have known, of any change that materially affects the provision
of coverage of any person providing services on the project; and
7) contractually require each person with whom it contracts, to perform as required by paragraphs
(1) - (7), with the certificates of coverage to be provided to the person for whom they are
providing services.
EXHIBIT C
By signing this contract or providing or causing to be provided a certificate of coverage, the
contractor is representing to the governmental entity that all employees of the contractor who will
provide services on the project will be covered by workers' compensation coverage for the duration
of the project, that the coverage will be based on proper reporting of classification codes and payroll
amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in
the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing
false or misleading information may subject the contractor to administrative penalties, criminal
penalties, civil penalties, or other civil actions.
K. The contractor's failure to comply with any of these provisions is a breach of contract by the
contractor which entitles the governmental entity to declare the contract void if the contractor does
not remedy the breach within ten days after receipt of notice of breach from the governmental entity.
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EXHIBIT D
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session.
OFFICE USE ONLY
This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a
Date Rcccived
person who has a business relationship as defined by Section 176.001(1-a) with a local governmental
entity and the person meets requirements under Section 176.006(a).
By law this questionnaire must be filed with the records administrator of the local government entity not later
than the 7th business day after the date the person becomes aware of facts that require the statement to be filed.
See Section 176.006, Local Government Code.
A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An
offense under this section is a Class C misdemeanor.
1 Name of person who has a business relationship with local governmental entity.
Open. SyS~e,ms \n\-eV-OaNiora\,1nc.
2
❑ Check this box if you are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7ie business day after the
date the originally filed questionnaire becomes incomplete or inaccurate.)
3 Name of local government officer with whom filer has an employment or business relationship.
NIA
Name of Officer
This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business
relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the
filer of the questionnaire?
0 Y
t • r
es
No
B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the
local government officer named in this section AND the taxable income is not received from the local governmental entity?
Q Y
E2"N
es
o
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer
serves as an officer or director, or holds an ownership of 10 percent or more?
Y
t " ' N
es
o
D. Describe each affiliation or business relationship.
4
ila71o9
Signature of person doing business with the governmental entity Date
Adopted 06M/2007
-13
EXHIBIT E
0SI
MUTUAL AGREEMENT FOR USE AND NON-DISCLOSURE
OF CONFIDENTIAL INFORMATION
THIS AGREEMENT is made effective as of January 27, 2009, by and between the following Parties:
Open Systems International, Inc. ("OSI") and;
City of Denton ("DME").
Both of whom shall be collectively referred to as the "Parties".
To further the business relationship, the Parties may wish to disclose to each other certain information that is
nonpublic, confidential, and/or proprietary in nature. Such disclosures may include, but are not limited to,
business plans and technology, operations, software programs, computer systems and design, product
development plans, business directions, marketing plans, financial information, technical and commercial
processes, schedules, any project related information, data, testing, results, documentation, state of
technology, specifications, pricing, licensing structure, work statements, customer lists, staff information and
credentials, product information, action items and other technical or business information (hereinafter
"Confidential Information"). Whereas both Parties desire to assure the protection and preservation of the
Confidential Information which may be disclosed to each other:
NOW THEREFORE, in reliance upon and in consideration of the following undertakings, both Parties agree
as follows:
1. All information disclosed to either Party shall be deemed to be "Confidential Information" provided
that written information is clearly marked in a conspicuous place as "Proprietary Information",
"Confidential", or as a "Trade Secret", and verbal information has been or is, within thirty (30) days
following its verbal disclosure, confirmed in writing as Proprietary or Confidential Information.
2. The Recipient (the Party receiving the Confidential Information from another Parry) may use the
Confidential Information received from the Discloser (the Party providing the Confidential Information
to another Parry) only for the purposes intended under this Agreement and to the extent required to
accomplish these purposes and shall not disclose this Confidential Information to anyone or use this
Confidential Information for any purpose independent of the efforts and purposes of this Agreement.
3. No other rights, and particularly licenses, trademarks, inventions, copyrights, patents or, other
intellectual property are implied or granted under this Agreement.
4. Confidential Information supplied shall not be reproduced in any form except as required to
accomplish the intent of this Agreement.
5. The responsibilities of each Party are limited to using its reasonable and best efforts to protect the
Confidential Information received with the same degree of care used to protect its own Confidential
Information from unauthorized use or disclosure by its employees, agents or contractors, except that
such Confidential Information may be used or disclosed to employees, agents or contractors as may
be reasonably required to accomplish the intent of this Agreement. Further, each Parry warrants that
it may enter this Agreement on behalf of all employees, agents and contractors of the Party who
may have access to the Confidential Information.
The obligations of the Recipient contained in this Agreement shall be binding upon any division,
subsidiary, shareholder, employee, agent, contractor, assignee, transferee, successor or receiver of
Recipient and any other who has or may obtain access to the Confidential Information, through
Recipient. Recipient agrees to advise and inform such parties who have.access to Confidential
Information of Recipient's obligations under this Agreement and its applicability to them. Recipient
shall immediately notify Discloser in the event of any unauthorized use or disclosure of the
Confidential Information. Recipient warrants that it may enter this Agreement on behalf of all
employees, agents and contractors of the Party who may have access to the Confidential
Information and agrees to be responsible for any breach of this Agreement by such parties.
Page 1 of 3 Bilateral NDA Rev 3.0 12JAN09 CM-TO06
EXHIBIT E
o s
6. All Confidential Information, unless otherwise specified in writing, shall remain the property of
Discloser, shall be used by the Recipient only for the purpose intended, and shall be returned after
Recipient's need for it has expired and upon request of Discloser, and in any event, upon completion
or termination of this Agreement.
It is understood that the term "Confidential Information" does not include information which:
i) has been or may in the future be, published or placed into the public domain through no
fault of the Parties;
ii) is possessed by Recipient prior to disclosure under this Agreement (Recipient shall be
obligated to substantiate such prior possession);
iii) Recipient independently develops without reliance upon or reference to any Confidential
Information provided pursuant to this Agreement;
iv) Discloser agrees, consents or approves in writing to disclosure;
v) Discloser transmits to Recipient after Discloser receives written notice that Recipient does
not desire to receive further Confidential Information from Discloser; or
vi) is obligated to be produced under order of a court of competent jurisdiction provided that, in
the event Recipient receives a subpoena or other validly issued administrative or judicial
process demanding Discloser's Confidential Information, Recipient shall promptly notify
Discloser and tender the defense of such demand. Unless the demand shall have been
timely limited, quashed or extended, Recipient shall thereafter be entitled to comply with
such demand to the extent permitted by law. If, following the tender of defense, Discloser
requests Recipient's cooperation, Recipient shall cooperate in the defense of the demand at
Discloser's expense. Information disclosed pursuant to this exception shall be closely
restricted to that compelled by the applicable administrative or judicial process.
To the extent reasonably practicable, if Recipient knowingly discloses information provided by
Discloser pursuant to any of these six exceptions, Recipient shall notify Discloser of the event and
extent of such disclosure to permit Discloser to oppose or limit the impact of such disclosure.
8. For the purposes of all communications and transmittals of Confidential Information under this
Agreement, the respective authorized representative of each Parry, subject to change upon written
notice, are:
OPEN SYSTEMS INTERNATIONAL, INC.
NAME:
TITLE:
Bahman Hoveida
President & CEO
ADDRESS: 3600 Holly Lane N., Suite 40
Minneapolis MN 55447-1286
PHONE: (763) 551-0559
EMAIL: bhoveida@osii.com
CITY OF DENTON
NAME: Karen Smith
TITLE: . Senior Utility Buyer
ADDRESS: File 4074, 901 B Texas Street
Denton, TX 76209
PHONE: 940-349-7100
EMAIL: karen.smith@cityofdenton.com
9. All Confidential Information is provided "AS IS," without warranty or guarantee of any kind as to its
accuracy, completeness, operability, fitness for particular purpose, or any other warranty, express or
implied. Discloser shall not be liable to Recipient for any damages, loss, expense or claim of loss
arising from Recipient's use of or reliance on the Confidential Information of Discloser.
10. The offending Recipient agrees to indemnify and hold the injured Discloser harmless from and
against any cost, loss, damage or expenses (including reasonable attomey's fees) arising from use
of the Confidential Information for any other purposes or in any other manner than that for which the
Confidential Information is delivered, including modifications of or use thereof in connection with
material supplied by others. Recipient shall not be liable for the inadvertent or accidental disclosure
of Confidential Information obtained under this Agreement provided Recipient uses the same degree
of care Recipient uses to protect its own confidential information of like importance.
Page 2 of 3 Bilateral NDA Rev 3.0 12JAN09 CM-TO06
EXHIBIT E
plr~ 2?
O S
11. I This Agreement shall be governed by the laws of the State of and there are no
understandings, agreements of representations, express or implied, not specified herein. This
Agreement may only be amended in writing signed by both Parties.
12. Each Party agrees that while this Agreement is in place, and for a period of three years after it is
terminated for any reason, it will not directly or indirectly, solicit, hire, or retain for employment or
contract services, any current or former employee or contractor of the other Party who has been so
employed at any time during this three year period. The Parties agree that any such hiring contrary
to the terms of this Agreement, may result in irreparable harm for which damages or other remedy at
law may be inadequate.
13. Each Party shall be entitled, without waiving any other rights or remedies, to such injunctive or
equitable relief as may be deemed proper and necessary by a court of competent jurisdiction to
prevent any irreparable harm which may be caused by a breach or threatened breach of this
Agreement.
14. This Agreement shall continue indefinitely with respect to Confidential Information provided by the
Parties under its protections. However, each Party has the right to stop providing Confidential
Information to the other Party at any time. Recipient shall have a continuing obligation to ensure that
its does not disclose the Confidential Information publicly or to any impermissible third parties
without Discloser's express consent so long as the information exchanged remains "Confidential
Information" within the context of this Agreement.
ACCEPTED BY:
OPEN SYSTEMS INTERNATIONAL. INC.
3600 Holly Lane North, Suite 40
Minneapolis, MN 55447-1286
BY: a
PRINTED: hQQ )mo \ Nk)V 6 nko,
TITLE: FCes~ deiir~ f CEO
DATE: e~ 1 aq
ACCEPTED BY:
CITY OF DENTON
File 4074, 901 B Texas Street
Denton, TX 76209
BY:
PRINTED: George Campbell
TITLE: Ci M a • e
DATE:
Page 3 of 3 Bilateral NDA Rev 3.0 12JAN09 CM-TO06
O S
Exhibit F
Updated 1-26-09
PRICE AND BID TABULATION FORMS
CITY OF DENTON
RFP FOR SCADA/DMS SYSTEM FOR DENTON MUNICIPAL ELECTRIC
Proposal/Bid Tabulation Sheet
Quantity
Item Description
Price per
Item
Total Price
2
Servers
Includes Server, KVM Monitor Tray, Switches,
Cabinet and LAN/Serial Cabling and Connectors
$11,506
$23,012
2
GPS Clock
$2,473
$4,946
Operating System
Included
Included
1
SCADA Software (Lot)
$30,000
$30,000
2
Front End Processors
$1,610
$3,220
4
User Interface Consoles (Hardware and Software)
$3,265
$13,060
CFE
Printers
CFE
CFE
1
Database Conversion
$3,500
$3,500
1
ICCP Data Link
$7,500
$7,500
1
DNP Virtual RTU
$3,500
$6,500
1
Historical Information System (Microsoft SQL
Licensing, includes 12 User CALs)
$3,773
$3,773
1
Interface to Milsoft OMS
$4,500
$4,500
1
Annual Customer Support Fee*
$9,995
$9,995
1
User Training Classes (up to 2 courses, 2 students,
each course is 3-5 days)
$8,000
$8,000
1
Factory Acceptance Testing
$8,000
$8,000
1
Site Acceptance Testing
$6,000
$6,000
1
Installation Supervision
$3,400
$3,400
1
Backup Exec v12 Server & Workstation (Lot)
$2,507
$2,507
1
Revision Control Software (Lot)
Included
Included
2
C Compiler & Development Tools
Included
Included
Subtotal Base System
$137,913
Open Systems International, Inc. 1 Confidential
Denton Municipal Electric
, O 1
Selected Options:
Exhibit F
Updated 1-26-09
PRICE AND BID TABULATION FORMS
Quantity
Item Description
Price per
Item
Total Price
1
Automatic Generation Control
$12,850
$12,850*
1
Interchange Transaction Scheduling
$8,750
$8,750*
1
Dispatcher Training Simulator
Per List of Deliverables
$39,706
$39,706*
4
Upgrade to Cisco 3560 Switches
$4,200
$4,200
Selected Options Total
$65,506
$65,506
Total Base System
$203,419
Deferred Options:
Quantity
Item Description
Price per
Item
Total Price
1
Economic Dispatch (Option)
$5,690
$5,690
1
Production Costing (Option)
$3,450
$3,450
1
Reserve Monitoring (Option)
$4,390
$4,390
1
Short-Term Load Forecast (Option)
$6,550
$6,550
1
Unit Commitment/Transaction Evaluation (Option)
$18,950
$18,950
1
Corporate Historian/Web Server (Option)
Per List of Deliverables
$13,061
$13,061
Notes:
1. Prices quoted above do not include sales tax.
*Includes first year of Annual Customer Support Fee (15% of license fees).
Open Systems International, Inc. 2 Confidential
Denton Municipal Electric
_ Exhibit F
O S ' Updated 1-26-09 LIST OF DELIVERABLES
SCADAMM'S Control Center Hardware
Item Description Quantity
1 SCADA/HIS Server
Dell PowerEdge 2950 (rack - mount)
2 - Quad-Core 2.33GHz Intel Xeon CPUs
3x146GB Disks (RAID5)
4GB RAM
DVD-ROM
4 - 1000/10013aseT Ethernet Ports
Integrated Graphics Card
Internal Tape Drive
Redundant Power Supplies
Windows 2003 Server Operating System
2 Rack-Mount 15" LCD Monitor, Keyboard & Mouse 1
3 Arbiter 1093C GPS Clock Time Standard 1
4 Cisco 3560 LAN Switches (24 Port) 2
5 Operations Consoles - 1 Monitor 2
Dell Precision T3400
2.40GHz Intel Core 2 Duo Processor
80GB Disk
2GB RAM
DVD-Writer
2 - 1000/100BaseT Ethernet Ports
Graphics Card
1 - 22" Dell Widescreen LCD Panel
Sound Card & Speakers
Microsoft Windows Vista Business
Microsoft Office Professional
Open Systems International, Inc. 1 Confidential
Denton Municipal Electric
Exhibit F
O ' Updated 1-26-09 LIST OF DELIVERABLES
Item Description Quantity
6 Administration Console - 1 Monitor
Dell Precision T3400
2.40GHz Intel Core 2 Duo Processor
80GB Disk
2GB RAM
DVD-Writer
2 - 1000/100BaseT Ethernet Ports
Graphics Card
1 - 22" Dell Widescreen LCD Panel
Sound Card & Speakers
Microsoft Windows Vista Business
Microsoft Office Professional
7 Digi PortServer Communications Server (16 Port)
8 19" Server and Communications Cabinet / Rack
9 LAN/Serial Cabling and Connectors
1
1
1
1 Lot
Open Systems International, Inc. 2 Confidential
Denton Municipal Electric
_ Exhibit F
O S ' Updated 1-26-09 LIST OF DELIVERABLES
SCADAMMS Backup Control Center Hardware
Item Description Quantity
10
SCADA/HIS Server
1
Dell PowerEdge 2950 (rack - mount)
2 - Quad-Core 2.33GHz Intel Xeon CPUs
3x146GB Disks (RAID5)
4GB RAM
DVD-ROM
4 - 1000/100BaseT Ethernet Ports
Integrated Graphics Card
Internal Tape Drive
Redundant Power Supplies
Windows 2003 Server Operating System
11
Rack-Mount 15" LCD Monitor, Keyboard & Mouse
1
12
Arbiter 1093C GPS Clock Time Standard
1
13
Cisco 3560 LAN Switches (24 Port)
2
14
Operations Console - 1 Monitor
1
Dell Precision T3400
2.40GHz Intel Core 2 Duo Processor
80GB Disk
2GB RAM
DVD-Writer
2 - 1000/100BaseT Ethernet Ports
Graphics Card
1 - 22" Dell Widescreen LCD Panel
Sound Card & Speakers
Microsoft Windows Vista Business
Microsoft Office Professional
15
Digi PortServer Communications Server (16 Port)
1
16
19" Server and Communications Cabinet / Rack
1
17
LAN/Serial Cabling and Connectors
1 Lot
Open Systems International, Inc. 3 Confidential
Denton Municipal Electric
_ Exhibit F
O S ( Updated 1-26-09 LIST OF DELIVERABLES
Operation Systems Software
Item Description Quantity
1 monarchTm SCADA Platform License: 1 Lot
(DBMS, Failover, Alarming, Tagging, Reporting, APIs, Database Maintenance)
2 OpenView License (console-based metric) 6
3 OpenView License (control-enabled, concurrent-session metric) 3
4 OpenView License (view-only, concurrent-session metric) 7
5 OpenFEP/RTU Communication Front End License (DNP) 1 Lot
6 OpenHIS (Historical Information System/Archiving) License 1 Lot
(based on MS SQL Server)
7 OpenCalc (Calculation Subsystem) License 1 Lot
8 OpenTrend (Trending Subsystem) License (1 per console) 6
9 OpenDDC (Disturbance Data Collection) License 1 Lot
10 Open ICCP (Inter-Center Communications Protocol) License 3 Links
11 OpenODBC (Open Database Connectivity) License 1 Lot
12 OpenVRTLI (Virtual RTU) Communication Front End License (DNP Slave) 1 Lot
13 MultiSpeak Milsoft OMS Interface 1 Lot
14 Revision Control Software (CVS) 1 Lot
15 Windows C Compiler & Development tools 2
16 MS SQL Server RDBMS Licensing 1 Lot
17 Symantec Backup Exec v12 Server & Workstation 1 Lot
Open Systems International, Inc. 4 Confidential
Denton Municipal Electric
Exhibit F
Updated 1-26-09 LIST OF DELIVERABLES
o 0 S 1
Selected Optional Items
Item . Description Quantity
1 Dispatcher Training Simulator (DTS) Option
DTS Server
2 Consoles (Trainer & Trainee)
3rd Party Licensing
LAN/Serial Cabling and Connectors
OpenOTS (Operator Training Simulator) License
2 OpenAGC(Generation Control - Load Frequency Control) License
(20 Units, 1 Control Area)
3 OpenTMS (Transaction Management Scheduling) License
1 Lot
1 Lot
1 Lot
Open Systems International, Inc. 5 Confidential
Denton Municipal Electric
Exhibit F
O ' Updated 1-26-09 LIST OF DELIVERABLES
~f
Deferred Optional Items
Item Description Quantity
1 Corporate Historian/Web Server Option 1 Lot
Corporate HIS/Web Server
KVM Switch & Connectors
3rd Party Licensing
LAN/Serial Cabling and Connectors
2 OpenAGC(Economic Dispatch, Reserve Monitoring, Production Costing, Multi-Area) 1 Lot
(20 Units, 1 Control Area)
3 OpenSTLF (Short-Term Load Forecast) License 1 Lot
4 OpenUC (Unit Commitment/Transaction Evaluation) License
5 OpenlA (Inadvertent Interchange) License
1 Lot
1 Lot
Open Systems International, Inc. 6 Confidential
Denton Municipal Electric
A0
CERTIFICATE OF LIABILIT
Y INSURANCE DATE(MM/DD/YY)
.
2/06/09
PRODUCER 952-830-3000
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Wells Fargo Insurance
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER THIS CERTIFICATE DOES NOT AMEND, E)(TEND OR
Services
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
4300 MarketPointe Dr #600
COMPANIES AFFORDING COVERAGE
Bloomington, MN 55435
COMPANY
A Continental Casualty Company
INSURED
COMPANY
Open Systems International Inc ✓
B Valley Forge Insurance Co.
Attn: Liz Geris
COMPANY
3600 Holly Lane, N. #40
C
Plymouth MN 55447
COMPANY
D
coVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW
HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITI
ON OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFF
ORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY
HAVE BEEN REDUCED BY PAID CLAIMS.
LTR
TYPE OF INSURANCE
POLICY NUMBER
POLICY EFFECTIVE
DATE(MM/DD/YY)
POLICY EXPIRATION
DATE(MM/DD/YY)
LIMITS
A
GE
NERAL UABIUTY%`
2084021923L_,--
7/1 5/08
7/1 5/09
GENERAL AGGREGATE
$ 2000000
~
MERCIAL GENERAL LIABILITY
_
I
PRODUCTS - COMP/OP AGG
S 2000000
CLAIMS
MADE E
x1OcCUFr_
I
PERSONAL & ADV INJURY
$ 1000000
OWNER'S & CONTRACTOR'S PROT
EACH OCCURRENCE
S 1000000
FIRE DAMAGE (Any one fire)
S 100000
MED EXP (Any one person)
$ 5000
A
AUTOMOBILE UABIUTY-_
2079819146 ✓
7/15/08
7/15/09
X ANY AUTO L,---
COMBINED SINGLE LIMIT
S 1000000
ALL OWNED AUTOS
BODILY INJURY
SCHEDULED AUTOS
(Per person)
S
HIRED AUTOS
BODILY INJURY
S
NON-OWNED AUTOS
(Per accident)
PROPERTY DAMAGE
$
GARAGE LIABILITY
AUTO ONLY - EA ACCIDENT
S
ANY AUTO
OTHER THAN AUTO ONLY:
EACH ACCIDENT
S
AGGREGATE
S
A
EXCESS LIABILITY
2079619230
8/1 3/08
7/1 5/09
EACH OCCURRENCE
S 9000000
Iq
UMBRELLA FORM
AGGREGATE
$ 9000000
OTHER THAN UMBRELLA FORM
$
B
WORKERS COMPENSATION AND
2079806784---
7/15/08
7/15/09
X w STATU- H-
TOe RY LIMITS ER
EMPLOYERS' LIABILITY
EL EACH ACCIDENT
S 500000
THE PROPRIETOR/
PARTNERSIEXECUTIVE
INCL
EL DISEASE - POLICY LIMIT
$ 500000
OFFICERS ARE:
EXCL
EL DISEASE - EA EMPLOYEE
$ 500000
OTHER
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
BID NUMBER: RFP N. 4074 ✓
PROJECT NAME: SCADA/DMS SYSTEM FOR DME-'--
CITY OF DENTON IS ADDITIONAL INSURED AS RESPECTS ABOVE LISTED PROJECT
CERTIFICATE HOLDER
CANCH.LATION
CITY OF DENTON
SHOULD ANY OF THE ABOVE DESCRIBER POLICIES BE CANC81M BE~RE THE
EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL
ATTN: SAM BRIDGES
30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LET,
901 B TEXAS STREET
BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY
DENTON, TX 76201
OF ANY KIND UPON THE COMPANY, ITS AGENTS OR F04?ESENTATFVES.
AUTHBNTAIA%
ACORD 255 (1i-1.95;) 7,2- 317
®AGQF~ CORPORATION 1988
0'~~OSI
SOFTWARE LICENSE AGREEMENT
This Software License Agreement is made this 27th day of January, 2009, between Open Systems
International, Inc., with offices at 3600 Holly Lane North, Suite 40, Minneapolis, MN 55447-1286,
United States of America (hereinafter "Licensor"), and City of Denton, with offices at 901B Texas
Street, Denton, TX 76209, (hereinafter "Licensee").
1. Definitions.
1.1 Software.
"Software" shall mean machine-
readable "object code" or "executable
code" along with documentation
(electronic or hardcopy), and media
(tape, CD ROM, DVD, or diskette). A
description of the Software being
licensed under this Software License
Agreement is included in Attachment A.
1.2 Server Software.
"Server Software" shall mean that
portion of the Software, which is
installed on a single, or a redundant set
of two (2) computers, which serve a
number of simultaneous users. Some
systems may have several sets of
redundant servers, which, if any, are
defined in Attachment A.
1.3 Client Software.
"Client Software" shall mean that
portion of the Software, which is
installed on a single user workstation or
computer, which allows connection with
the Server Software, and use of the
Software.
2. License.
2.1 Grant of License.
Licensor hereby grants to Licensee, pursuant to the following terms and conditions, a
perpetual, non-exclusive, non-transferable, license to use the Software in support of its
primary business mission and in operation of its own assets located as described on
Attachment A.
Licensee agrees not to assign, sublicense, transfer, pledge, lease, rent, share, or otherwise
transfer its right under this Software License Agreement except to a successor of all of
Licensee's assets and business, provided the successor agrees to be bound by this Software
License Agreement.
Licensee agrees not to use the Software to provide Software Services to third-party entities
whose assets are not owned by the Licensee in competition with the Licensor.
2.2'Use on Designated Equipment.
Licensee agrees to install the Software only on computers owned, leased, or otherwise
controlled by Licensee.
The Server Software use shall be limited to one primary site and one backup site consistent
with the number of Server Software licenses purchased as listed in Attachment A.
Page 1 of 8 Rev 4.4 09MAY07 CM-TO07
Confidential DME Software_License_Agreement
Client Software shall only be installed on single workstations or single personal computers
and in accordance with the number of Client Software licenses purchased as listed in
Attachment A.
Licensee may transfer the Software to other equipment if the particular primary equipment is
inoperative, provided that at any time, the Server Software is active in accordance with the
number of Server Software licenses purchased, and the Client Software is active in
accordance with the number of Client Software licenses purchased.
Licensee may not create multiple-use operations facilities by installing the Software in more
than a single location to allow simultaneous and parallel use of the Software.
2.3 Disassembly or Decryption.
Licensee shall not disassemble, decompile, reverse-engineer or otherwise reduce the
Licensed Software to human-perceivable form in whole or in part, including but not limited to
translating or creating derivative works, or to bypass any licensing restrictions.
3. License Fees.
In consideration for the foregoing license, Licensee shall pay Licensor all applicable License
fees in accordance with terms of the Work Orders and Authorizations between Licensee and
Licensor:
During the term of this Software License Agreement, Licensor shall have the right to direct a
recognized accounting firm to conduct, during normal business hours, an audit of (and to
copy) the appropriate records of the Licensee to verify the number of copies of the Software
in use by the Licensee, the computer systems on which such copies are installed and in the
case of limited user licenses, the number of users using such copies, and the database sizing
dictating the database size-dependent license fees. Representatives of the accounting firm
shall protect the confidentiality of the Licensee's Confidential Information and abide by the
Licensee's reasonable security regulations and conduct themselves in such a manner as not
to interfere unreasonably with Licensee's normal business operations while on Licensee's
premises.
4. Copies.
Licensee, solely to enable it to use the Software, may make archival copies of the Software,
provided that such copies shall include Licensor's copyright and other proprietary notices. All
copies made by Licensee are the exclusive property of Licensor.
5. Software Ownership.
5.1 Licensor's Representation.
Licensor represents that it is the owner of the Software and all portions thereof or has
appropriate sublicensing rights.
5.2 Modifications.
Licensee shall have the right to use the Software and develop applications in support of its
business using the Licensor-provided Applications Programming Interfaces (APIs) and tools.
Such enhancements or modifications are not considered part of the Licensor's Software.
Page 2 of 8 Rev 4.4 09MAY07 CM-7007
Confidential DME_Software_License_Agreement
Only Licensor shall have the right to modify, maintain, enhance, or otherwise alter the
Software source code, unless specified otherwise.
6. Title to Software and Confidentiality.
Although copyrighted, the Software is unpublished and contains proprietary and confidential
information of the Licensor, and is considered by Licensor to constitute valuable trade
secrets. This includes the Software processes, User Interface Displays, Reports, Database
Definitions and Formats, and all Documentation.
The Software is proprietary to Licensor and title to it remains with Licensor. Enhancements or
derivative work developed solely by the Licensee using the License granted herein shall
remain the property of the Licensee.
All applicable rights to copyrights, trade secrets, patents and trademarks in the Software or
any modifications or enhancements made by Licensor or at Licensee's request pursuant to
any Special Provisions listed in Attachment A to this Software License Agreement, shall
remain with Licensor. Licensee shall not sell, publish, disclose, display or otherwise make
available the Software or copies thereof to others.
Violations of the above are subject to the mutual confidentiality obligations between Licensor
and Licensee
7. Confidentiality.
Each party agrees that should information which is proprietary or confidential (hereinafter
"Confidential Information"), as designated and marked by the party providing the information
(the Disclosing Party), be shared with the other party (the Receiving Party), the Receiving
Party shall not disclose this Confidential Information to anyone or use this Confidential
Information for any purpose independent of the efforts and purposes intended under any
applicable system implementation Contract or Software License Agreement between the
parties. The Receiving Party shall not use any Confidential Information to the detriment of the
Disclosing Party and shall use efforts to protect the confidentiality of any such Confidential
Information commensurate with those which it employs to protect its own Confidential
Information. The Receiving Party will ensure that it enters into agreements with its
employees, consultants, agents, shareholders and any other who have or may obtain access
to the Confidential Information, to maintain such Confidential Information in confidence.
In the everit the Receiving Party receives a subpoena or other validly issued administrative or
judicial process demanding production of Confidential Information previously provided by the
Disclosing Party, the Receiving Party shall promptly notify the Disclosing Party of this fact
and tender the defense of or opposition to this subpoena or demand to the Disclosing Party.
If the subpoena or demand is not timely limited, quashed or extended, the Receiving Party
shall thereafter be entitled to comply with such subpoena or demand to the extent required by
law. If requested by the Disclosing Party after the tender of defense or opposition is
accepted, the Receiving Party shall cooperate in the defense or opposition at the expense of
the Disclosing Party.
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8. Warranty.
8.1 Scope of Warranty.
(a) Licensor warrants that the Software will be free of nonconformities in materials and
workmanship and shall perform substantially in accordance with the functional
specifications described in the Work Orders and Authorizations between Licensee
and Licensor for a period of one (1) year following the Final Acceptance. Licensor
shall correct, replace or provide functional "workarounds", at no cost to Licensee, of
any items of the System that do not comply with the warranty in this Section 8. In the
event any part of the System is not susceptible to correction, replacement or
"workarounds," Licensor shall refund that portion of the payment price paid by
Licensee hereunder attributable to such part. Licensor shall have no obligation
hereunder to make repairs or replacements required through normal wear or
necessitated in whole or in part by fault or negligence of Licensee, its agents or
employees, improper or unauthorized use of the equipment by Licensee, its agents or
employees, or by causes external to the equipment such as, but not limited to, power
failure or air conditioning failure and catastrophe.
(b) Licensor hereby represents and warrants to Licensee that:
(i) Licensor is the lawful owner of the Software described in Attachment A and
has the right and authority to grant the license granted pursuant to this
Software License Agreement without the approval or consent of any third
party; and
(ii) the Software does not and shall not infringe upon any patent, trademark,
copyright, trade secret, or the intellectual property, or proprietary right of any
other third party and there is no actual or threatened suit against Licensor
based on the alleged violation of such rights; and
(iii) there is no action, suit claim, investigation, or proceeding pending, or to the
best of Licensor's knowledge, threatened against, by or affecting Licensor or
the Software which, if adversely decided, might adversely affect Licensor's
ability to enter into this Software License Agreement or perform its
obligations herein; and
(iv) Licensor's execution of this Software License Agreement and granting of the
license hereunder does. not infringe upon the rights of any third party.
(c) Following the one (1) year warranty period, unless otherwise covered by a separate
Software Support Services Agreement, the Software Products and the System will be
licensed on an "as is" basis without any further warranty.
(d) EXCEPT AS SET FORTH IN THIS SECTION 8, LICENSOR MAKES AND
LICENSEE RECEIVES NO EXPRESSED OR IMPLIED REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO THE SOFTWARE, ITS CONDITION,
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY
LICENSEE. LICENSOR FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL
OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
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9. Assignment.
Licensee may not assign the Software or this Software License Agreement to anyone,
including any parent, subsidiary or affiliate or as part of the sale of any portion of its business,
or pursuant to any merger, consolidation or reorganization, without Licensor's prior written
consent, except to a successor of all of Licensee's assets and business provided the
successor agrees to be bound by this Software License Agreement.
10. Termination.
Licensor shall have the right to terminate this Software License Agreement and the license granted
herein:
(a) Upon written notice in the event that Licensee, its officers, agents, or employees
materially breach any provision of this Software License Agreement. Such notice
shall identify and describe the default upon which termination is based and the
Licensee shall have thirty (30) days following receipt of the written notice to cure
such default which, if affected, shall prevent termination of the Software License
Agreement.
(b) In the event Licensee
(i) becomes subject to any bankruptcy or insolvency proceeding under Federal
or State statute(s) which filing is not withdrawn within sixty (60) days for the
filing thereof,
(ii) becomes insolvent or becomes subject to direct control by a trustee, receiver
or similar authority, or
(iii) has wound up or liquidated, Licensee's business, voluntarily or otherwise.
Within thirty (30) days after termination of the license, Licensee will return to Licensor the
Software in the form provided by Licensor or, upon request by Licensor, destroy the Software
and all copies, and certify in writing that they have been destroyed. Termination under this
paragraph shall not relieve Licensee of its obligations regarding confidentiality of the
Software.
11. Limitation of Liability.
Neither party shall be liable, whether in contract, warranty, tort (including negligence), strict
liability, indemnity or any other legal theory, for loss of use, revenue or profit, or for costs of
capital or of substitute use or performance, or for indirect, liquidated, incidental or
consequential damages, or for any other loss or cost of a similar type, or for claims by either
party for damages of the other party's customers. The maximum liability under this Software
License Agreement shall be the total of all sums paid by Licensee to Licensor at the date on
which the act or omission giving rise to the claim arose except for claims made for intellectual
property infringement or violation of the mutual confidentiality obligations hereunder. Both
parties agree that the exclusions and limitations set forth in this Article 11 are separate and
independent from any other remedies that they may have.
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12. Miscellaneous.
12.1 Complete Agreement.
Each party acknowledges that it has read and understands this Software License
Agreement and agrees to be bound by its terms. The parties further agree that this
Software License Agreement, including Attachment A and the Work Orders and
Authorizations between Licensor and Licensee are the complete and exclusive statement
of this Software License Agreement between the parties, which supersedes and merges all
prior proposals, understandings and all other agreements, oral or written, between the
parties. This Software License Agreement may not be modified or altered except by written
instrument duly executed by both parties.
12.2 Governing Law.
The validity, interpretation, and enforcement of this Software License Agreement shall be
governed by the laws of Texas, and the parties agree and consent to the jurisdiction of the
applicable State and Federal courts for Denton County, Texas. Only these courts shall be
considered "courts of competent jurisdiction" for purposes of Section 13, below.
12.3 Limitation of Actions Period.
No action, regardless of form, arising out of this Software License Agreement, may be
brought by either party more than twelve (12) months after the cause of action has arisen.
12.4 Waiver.
The waiver or failure of either party to exercise in any respect any right provided for herein
shall not be deemed a waiver of any further right hereunder.
12.5 Severability.
If any provision of this Software License Agreement is invalid, illegal or unenforceable
under any applicable statute or rule of law, only that provision is to be deemed omitted, and
the remaining provisions shall not be affected in any way.
13. Dispute Resolution.
The Parties acknowledge that unauthorized disclosure of Confidential Information in violation
of Section 7 above or other breach of any obligation under this Software License Agreement
may result in irreparable harm for which monetary damages or other remedy at law may be
inadequate. Each party shall be entitled, without waiving any other rights or remedies, to such
injunctive or equitable relief as may be deemed proper and necessary by a court of competent
jurisdiction to prevent any irreparable harm which may be caused by a breach or threatened
breach of this Software License Agreement.
Any dispute for claims which will not result in irreparable harm if not immediately addressed
may be brought for decision in the applicable court of competent jurisdiction only after the
parties have met and attempted to amiably resolve the dispute.
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LICENSOR:
OPEN SYSTEMS INTERNATIONAL, INC.
3600 HOLLY LANE NORTH., SUITE 40
MINNEAPOLIS, MN 55447-1286
BY:
(Sig a ure
NAME: $r,,h,r Hpye(do~
TITLE: [ms
&eyN C-t.O
DATE: 118 i Qq
Page 7 of 8
Confidential
LICENSEE:
CITY OF DENTON
FILE 4074, 901 B TEXAS STREET
DENTON, TX 76 09
BY:
(Signature)
NAME: George Campbell
TITLE: City M na e
DATE:
Rev 4.4 09MAY07 CM-TO07
DME Software_License_Agreement
ATTACHMENT A
Client Software:
(List licensed products along with documentation plus number of licenses purchased)
Refer to the List of Deliverables in the Contract by and between City of Denton, Texas and Open
Systems international, Inc. RFP No. 4074, along with any contract change orders and/or purchase
orders thereafter.
Server Software:
Refer to the List of Deliverables in the Contract by and between City of Denton. Texas and Open
Systems International, Inc. RFP No. 4074, along with any contract change orders and/or purchase
orders thereafter.
Location of Servers:
(List address of site)
Primary site:
Backup site:
Special Provisions
(List any special provisions)
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