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2008-289 %(+$1$%$1$-"$%.1, 2008289 AdditionalFileExists AdditionalFileContainsRecordsNotPublic,AccordingtothePublicRecordsAct Other %(+$2#§º«(´¯º¯§²¹ 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. -12 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. Page 3 of 8 Rev 4.4 09MAY07 CM-T007 Confidential DME_Software License_Agreement 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. Page 4 of 8 Rev 4.4 09MAY07 CM-T007 Confidential DME_Software_License_Agreement 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. Page 5 of 8 Rev 4.4 09MAY07 CM-TO07 Confidential DME_Software_License_Agreement 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. Page 6 of 8 Rev 4.4 09MAY07 CM-T007 Confldential DME Software_License_Agreement 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) Page 8 of 8 Rev 4.4 09MAY07 CM-T007 Confidential DME_Software_License_Agreement