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2007-282ORDINANCE NO. 2007-¢I.` AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF AN APPLICATION SERVICE PROVIDER AGREEMENT, BY AND BETWEEN THE CITY OF DENTON AND ENERCOM, INC., WHICH IS AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF CHAPTER 252 OF THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 3928-APPLICATION SERVICE PROVIDER AGREEMENT IN AN AMOUNT NOT TO EXCEED $62,600). WHEREAS, Section 252.022(a)(7) of the Texas Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; electricity, gas, water and other utility purchases; which are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council is of the opinion that this vendor satisfies the provisions of Section 252.022(a)(7) of the Texas Local Government Code; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFOR, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are also hereby approved: FILE NUMBER VENDOR AMOUNT 3928 Enercom, Inc. $62,600 SECTION 2. The acceptance and approval of the above items shall not constitute an Agreement between the City and Enercom, Inc. for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 3. The City Manager is hereby authorized to execute the "Application Service Provider Agreement by and between the City of Denton and Enercom, Inc." together with any other agreements relating to the items specified in Section 1 of this ordinance; and the expenditure of funds pursuant to said Agreement is hereby authorized. SECTION 4. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ~ 2007. C a~Ml PERR R. McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY By: - 4-ORD 3928 EHERC0M customer management software & services Agreement Between Enercom Software and the City of Denton, Texas Application Service Provider Agreement 1. AGREEMENT Enercom, Inc. (ENERCOM), a Georgia Corporation with its principal place of business at 1514 East Cleveland Avenue, Suite #200, East Point, Georgia, 30344 agrees to provide the City of Denton, Texas (through its Denton Municipal Electric department) (CLIENT) with its principal place of business at 1659 Spencer Road, Denton, TX, 76206 the services as provided for herein and in accordance with the provisions hereof in consideration of the mutual promises, covenants and agreements herein contained (the adequacy of which consideration to each of the parties hereto is hereby mutually acknowledged). ENERCOM will provide the "Energy Depot" product to DME. "Energy Depot" is a copyrighted and proprietary product of ENTERCOM. This program is not available from any other source, whether provider, distributor, etc. The "Energy Depot" name is trademarked. It is not a patented product since the underlying calculations are based on accepted and public domain engineering methodologies and principles. ENERCOM is pre-selected by "Hometown Connections" as their only partner and provider for this type of product for public power utilities. The prices stated below in this Agreement are offered exclusively to American Public Power Association (APPA) member utilities. 2. SERVICES ENERCOM will provide CLIENT with turnkey application service provider (ASP) package services as defined in Appendix B of this Agreement (attached and hereinafter referred to as "SERVICES"). This includes the ENERCOM software applications branded for and customized as specified by CLIENT, website hosting, software maintenance and other SERVICES as stated in Appendix B. In return, CLIENT agrees to pay the sums set forth in Appendix B for the delivery of such SERVICES. 3. SOFTWARE LICENSE AND SOURCE CODE ENERCOM retains sole ownership of all software licenses and source code. However, the software will be setup for CLIENT and made available online to its member utilities and their customers and other users as part of the SERVICES. 4. MAINTENANCE The SERVICES included in MAINTENANCE are described in Appendix A. 5. INVOICING AND PAYMENT ENERCOM will invoice CLIENT for the setup and customization SERVICES upon signing of this Agreement. ENERCOM will invoice the monthly ASP services package costs each quarter in advance (or annually in advance at CLIENT's discretion) starting at the time the site is completed and continuing through the term of this Agreement. All payments are due within 30 days of the invoice date. All amounts unpaid after thirty (30) days shall bear interest at a rate of one percent (1%) per month for the period overdue. In the event that any invoice is not paid by CLIENT within thirty (30) days after its due date, ENERCOM may at its sole option and discretion (reserving cumulatively all other remedies and rights under this Agreement and at law), after giving thirty (30) days notice and opportunity to cure, terminate this Agreement and the SERVICES provided hereby. 6. WARRANTY -LIMITATION OF LIABILITY- INDEMNIFICATION -INSURANCE 6.1 ENERCOM represents and warrants that it is the owner of all software to be used in the delivery of SERVICES and/or has the right to permit CLIENT to use the same. 6.2 ENERCOM will provide software system corrections under the terms of the MAINTENANCE Agreement which is part of the SERVICES (see Appendix A). Such system corrections will be provided for the term of this Agreement. 6.3 THERE IS NO OTHER WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WHATSOEVER INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FORA PARTICULAR PURPOSE, REGARDING THE PROGRAM(S) OR ITS USE. 6.4 ENERCOM shall maintain Professional Liability Insurance, with policy limits of not less than $100,000 annual aggregate, during the term of this Agreement. 7. CONFIDENTIAL INFORMATION 7.1 CLIENT acknowledges the confidential nature and proprietary rights of ENERCOM in and to the contents of this Agreement and the SERVICES, including, but not limited to, the terms of this Agreement, computer programs, manuals, identifying symbols and other supporting material and data, and further acknowledges that such are properly considered to be trade secrets, and that they involve processes and compilations of information which are secret, confidential and not generally known to the public and which are the product of ENERCOM's own expenditure of time, effort, money and/or creative skills. 7.2 CLIENT agrees that it will not use, publish, disclose or otherwise divulge to any person, except necessary officers and employees of CLIENT, at any time, either during the term of this Agreement or after the termination of the Agreement, nor permit its officers or employees to so divulge any such information regarding the SERVICES without the prior written consent of an officer of ENERCOM. CLIENT agrees that all tangible objects containing or relating to the PROGRAM(s) are the sole and exclusive property of the ENERCOM. 7.3 This Section shall survive termination of this Agreement (and shall be applicable for a period of four years). 8. TAXES The charges listed in this Agreement do not include sales, use, personal property, excise or other similar taxes, excluding taxes based upon ENERCOM net income or net worth. Consequently, in addition to the charges specified herein, the amount of any present or future sales, use, personal property, or other similar tax which becomes due based on the transactions contemplated by this Agreement, shall be paid directly by CLIENT or shall be paid to ENERCOM within thirty (30) days of receipt of ENERCOM's invoice for any such taxes paid by ENERCOM. If CLIENT supplies ENERCOM with tax exemption certificates acceptable to the taxing authorities which result in abatement of the tax and refund thereof, if previously paid, then CLIENT shall be similarly relieved of liability for such tax and receive a refund of any amounts previously paid to ENERCOM on account thereof. 9. TERM 9.1 The term of this Agreement shall be for a period of 36 months, commencing on the date the Agreement is signed by both ENERCOM and CLIENT. This Agreement shall automatically renew for successive years unless the CLIENT provides ENERCOM (or ENERCOM provides CLIENT) with a written notice of termination at least 60 days prior to the end of the then current Agreement period. 9.2 If either party shall commit a material breach of any of the terms and conditions of this Agreement and shall fail to cure such breach within thirty (30) days of written notice thereof, then the non-breaching party may terminate this Agreement. CLIENT's right to use the SERVICES shall terminate at the time of termination of the Agreement and CLIENT'S obligation to pay any further sum likewise terminates with the termination of this Agreement. 10. FORCE MAJEURE Should any circumstance beyond the reasonable control of CLIENT or ENERCOM ("Event of Force Majeure") occur which delays or renders impossible the performance of its obligation hereunder, such obligations shall be postponed for such time as such performance necessarily has had to be suspended or delayed on account thereof or canceled if such performance necessarily has been rendered impossible thereby, provided, however, that this Section shall not act to relieve either party's obligations under the Section titled "Confidential Information", or CLIENT's obligation to make payments to ENERCOM when due. Events of Force Majeure shall include without limitation, accidents, acts of God, strikes or other labor disputes, war, acts, laws, regulations or rules of any government or governmental agency and any other similar circumstances beyond the control of ENERCOM or CLIENT. 11. NOTICES Any notice or communication required or permitted to be given hereunder shall be sufficiently given when received by the other party and must be delivered or mailed by registered mail, postage prepaid, or by telecopy with hard copy to follow, charges prepaid, in each case properly addressed to the addresses of the parties indicated on the signature page of the Agreement, or at such other addresses as may hereafter be furnished in writing by either party hereto to the other party and such notice shall be deemed to have been given as of the date so delivered, mailed or sent. In the case of any virus attack to the website hosted by ENERCOM for CLIENT as part of the SERVICES, ENERCOM will notify a contact person designated by CLIENT within one hour of learning of such an attack or as otherwise specified by CLIENT, and ENERCOM shall take commercially reasonable steps to immediately deal with that problem and agrees to keep CLIENT apprised each 24 hours of the status of the matter until the virus has been removed/defeated. 12. CONSIDERATION The CLIENT shall pay ENERCOM a total of payments in an amount not-to-exceed $62,600 for its services hereunder in accordance with the terms of this Agreement and attached Appendix "B." 13. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, USA. However, exclusive venue shall lie in the State District Courts of Denton County, Texas. In case any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect under any applicable statute or rule of law, then such provisions shall be deemed inoperative to the extent that they are invalid, illegal or unenforceable, and the remainder of this Agreement shall continue in full force and effect. The parties hereto agree to replace an invalid, illegal or unenforceable provision with a new provision that provides the most nearly similar permissible economic effect as the invalid, illegal or unenforceable provision. 14. SUCCESSOR AND ASSIGNS This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and assigns, provided, however, this Agreement may not be assigned by any Party without the express written consent of all Parties hereto. Such consent shall not be unreasonably withheld by CLIENT or ENERCOM. Notwithstanding the foregoing, CLIENT shall be permitted to assign to Exelon without obtaining ENERCOM's prior written consent in the event the merger between CLIENT and Exelon closes during the term of this Agreement. 15. ENTIRE AGREEMENT This Agreement states the entire agreement of the Parties. Except as herein expressly provided to the contrary, the provisions of the Agreement are for the benefit of the Parties hereto solely, and not for the benefit of any other person, persons or legal entities. No waiver, alteration, modification, or representation of any of the provisions of the Agreement shall be binding unless in writing and signed by a duly authorized representative of ENERCOM and CLIENT and expressly referring to this Agreement, incorporated into and made a part thereof. 16. SEVERABILITY If any part of this Agreement is held to be invalid, void or otherwise unenforceable, the other parts of this Agreement shall continue in full force and effect unless the severance of the portion held unenforceable would frustrate the purposes of the Agreement. 17. WAIVER The waiver by either party hereto of any breach of any term, covenant, condition, or agreement contained herein or any default in the performance of any obligation hereunder shall not be deemed to be a waiver of any other breach or default of the same or of any other term, covenant, condition, agreement or obligation. 18. SECTION HEADINGS Section headings are provided for convenience only and shall not affect the interpretation of this Agreement. ENERCOM ACCEPTANCE By: Paul E. Conlan Title: President and CEO, Enercom, Inc. A Georla rp4 olratio/n Signature: C.rl>~Lt~ Date: r• 20D7 CLIENT ACCEPTANCE CITY OF DENTON, TEXAS A Texas Municipal Corporation By: George C. Campbell Title: City Manager Signature: G- Date: _ a ATTEST: JENNIFER WALTERS, CITY SECRETARY By. APPROVED AS TO LEGAL FORM: EDWIN M SNYD R, CITY/ TORN By: l/ 1~ APPENDIX A - MAINTENANCE & SUPPORT AGREEMENT The following services are included in the SERVICES: • SYSTEM UPGRADES AND ENHANCEMENTS - ENERCON will make available from time to time various upgrades and enhancements to the base applications. Such upgrades and enhancements may affect performance and/or functionality of the applications. Upgrades may require customization to re- create previously made CLIENT features in the upgraded version. Such customizations may be billable and must be approved by CLIENT in advance. ENERCOM will also update the energy costs database on a regular schedule as will be established with CLIENT. • PRODUCTION SUPPORT - ENERCOM will provide reasonable ad-hoc assistance including guidance on system use and problem analysis to specific CLIENT support personnel via telephone, letter, e-mail, or fax. • SYSTEM CORRECTIONS - ENERCOM will correct any residual errors identified which create abnormal results not in conformance with the program's intended functionality as defined by ENERCOM. ENERCOM will correct such errors which might be identified by CLIENT provided, that CLIENT accompanies such error report with documentation thereof and assists ENERCOM in the diagnosis and correction thereof. Such correction by ENERCOM shall be ENERCOM's sole obligation. • PRIORITY RESPONSE - CLIENT will be assigned a primary ENERCOM client support contact and provided their email address and phone number. ENERCOM's client support will respond with an initial reply to the client within a maximum of four (4) hours. This response is guaranteed during normal business hours (9:00 am to 5:00 pm, EST/EDT), and excludes holidays. • CUSTOMER SUPPORT - ENERCOM will provide limited end-use customer support related to use of ENERCOM's online software. Support will be primarily via email or phone. This support may be requested directly by customers via links in the Help section of the software, or may be requested by CLIENT. The following items are specifically excluded from the SERVICES are subject to charge by ENERCOM on a time and materials or set fee basis if requested by CLIENT: • Customer (end-use customer) questionnaire or energy audit report data debugging or correcting. • Analysis, design, construction, testing, implementation and training related to system functions not described in Appendix B. APPENDIX B - SERVICES AND PRICING Enercom - Energy Depot for Homes and the Energy Comparison Tool Special Hometown Connections Pricing APPA'MEMBER STANDARD HOMETOWN SITES FOR INDIVIDUAL: MUNICIPAL UTILITIES' " _ - DISCOUNTED PRICE:, FOR RESIDENTIAL CUSTOMERS - - Energy Depot for Homes. (Release 4.1) For a single municipal utility. Includes software $8,700 setup for Personal Energy Profile (online home energy audits), Energy Library, Energy Advisor, (one time) 2 and the Energy Calculator. Setup includes adding the utility's name/logo, average residential energy costs, weather data, email addresses, link to program product or service offers, etc. Hosting Service Package. Enercom provides a convenient service package that includes $325 software license, website hosting, software maintenance and upgrades, data management, (per month) 3 online WebTrends site usage reports, telephone support, priority response guarantee and more. Energy Depot for Homes - Spanish Language (Option). A Spanish language version of $2,800 2 (one ) Energy Depot for Homes is available as an add-on to the English language software. License nth 3 150 $15 (per month) and setup as for the English language version. Energy Comparison Tool. (Release 2.0) Enercom will setup the Energy Comparison Tool $ 0 (ECT) online software for the utility. The ECT includes the Home Energy Systems (no start-up cost) comparisons for home heating and air conditioning systems, as well as water heaters and standard light bulbs versus compact fluorescent lamps. The tool provides side-by-side comparisons of new and existing equipment and provides annual energy use and cost for both systems as well as energy cost savings and simple payback. Setup includes adding the utility's name, graphic logo, email address, link back to the utility's website, local energy costs, default home size and weather zone. It will also integrate the ECT into the utility's Energy Depot for Homes site. This special price (with no start-up cost only applies when the ECT is added as part of an Energy Depot for Homes software implementation. Hosting Services Package. Enercom provides a convenient service package that includes software license, website hosting, data management and software maintenance. $350 (per month) 3 FOR BUSINESS CUSTOMERS Energy Depot for Business. (Release 4.1) For a single municipal utility. Includes software $9,700 license for Business Energy Profile (online business energy audit), Energy Library and Energy (one time) 2 Advisor. Also includes setup with the utility's name/logo, average commercial energy costs, weather data, email addresses, link to program product or service offers, etc. Hosting Service Package. Enercom provides a convenient service package that includes $325 website hosting, software maintenance and upgrades, data management, online WebTrends (per month) 3 site usage reports, telephone support, priority response guarantee and more. NOTES: 1. This Standard Site approach is chosen by most municipal utilities. The APPA price is deeply discounted over Enercom's regular pricing. Each utility's site is setup with the utility's name/brand, average energy costs, weather data, email link, a link to program, product or service offers and more. Additional customization is very limited and will be priced separately. Customers enter billing data manually (or allow the software to simulate their billing histories). Enercom provides turnkey implementation including hosting the applications on its servers. Hosting service package costs are billed quarterly in advance. A 36-month minimum contract is required. 2. One-time software setup cost which will be invoiced upon contract signing. 3. Enercom will invoice the utility for all Hosting Services Packages on a quarterly or annual basis in advance (at the utility's choice). These charges start when the Depot site(s) open. 4. Option - A custom link to automatically import customer billing data can be added as an option to any of the Depot software suites. There is a one-time cost of $5,000 for this feature. 5. For further information, please contact Paul Conlan at 404-946-0196 or conlan(cD.enemomusa. com.