HomeMy WebLinkAboutITRON Inc; 1988-05-10;+ e 0
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CONTRACT NO. ENC-1087-127
ITRON ENCORE SYSTEM
HARDWARE PURCHASE AND SOFTWARE LICENSE AGREEMENT
This Agreement, made this /D day of "7% I 19g, by and between ITRON, INC., a Washington corpor ion (hereinaftc "Itron") and City of Carlsbad, a California corporation, (hereinafter "Buyer") . NOW, THEREFORE, in consideration of
mutual covenants and agreements hereinafter set forth, Itron
and Buyer hereby agree as follows:
SECTION 1: Definitions.
When used herein, the following terms, whether plural or singular, shall have the meaning set forth below:
s
1.1 "Datacapture System" or "System". All Equipment,
Licensed Software, and Related Documentation
comprising the electronic data capture system sold
and licensed to Buyer pursuant to this Agreement.
1.2 "System Specification Document". This document is
produced by Itron and records requirements and
plans for Buyer. The document contains a narrativ
and chart of the system flow, a network chart of
the data communications network, the requirements
for Hardware, a definition of input, output and
cassette file structures and record layouts
including the data definitions.
1.3 "Equipment". The components and devices designed
and manufactured by Itron for the Datacapture
System and sold to Buyer pursuant to this Agreemen
1.4 "Installation". The point in time when an item of
Equipment or Licensed Software has been received
and inspected by Buyer and has been set up for use for training or testing purposes.
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1.5 "Licensed Software". The program products in machine-readable form which are contained in schedules of products offered by Itron and price
lists published by Itron from time to time during the term hereof, and all other programs recorded o the media furnished hereunder, including, but not
limited to:
(a) Any form of Itron written programming
language source code and machine-readable cod derived from the source code or otherwise R
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supplied by Itron pursuant to this Agreement
and identified in a Schedule hereto; and
(b) Any subsequent modifications, corrections or
revisions to the program products furnished t
Buyer by Itron.
1.6 "Pre-Installation Orientation". That point in
time when Itron trains the Buyer on the functions
and features of the System.
1.7 "Related Documentation". Any human-readable program listings, flow charts, input and output forms, manuals, specifications, instructions, and other materials, and any copies of any of the
foregoing, in any medium, related to the Licensed
Software and delivered to the Buyer in accordance
with the provisions of this Agreement.
SECTION 2: The Licensed Software.
2.1 License. Itron hereby grants to Buyer a
nonexclusive, perpetual license to use the License Software, including the Related Documentation, set forth on Schedule B attached hereto.
2.2 License Fee. Buyer shall pay to Itron for the
Licensed Software the license fee(s) set forth in
Schedule B. Payment of the license fee shall be i
accordance with the terms set forth in paragraph
3.3 hereinbelow.
2.3 Itron's Property. The Licensed Software,
including without limitation, programs, Related
Documentation and methods of processing, shall
remain the sole and exclusive property of Itron ar
shall not be sold, revealed, disclosed or otherwis
communicated, directly or indirectly, by Buyer to any person, company or institution whatsoever
except as set forth herein.
2.4 Scope of License. Buyer may use the Licensed
Software on hardware used or owned by Buyer. The
Licensed Software shall be used only for the
processing of Buyer's own business, which shall
include servicing, and maintaining records on
behalf of its customers. Buyer shall not: (a)
permit any third party to use the Licensed Softwai
(b) use the Licensed Software in the operation 0:
a service bureau or (c) allow access to the Licensed Software through terminals located outsic
of Buyer's business premises.
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2.5 Programming Language. The Licensed Software is
written in a specific programming language for use with operating system software. Itron shall not bc
responsible for the performance of the Licensed Software in any other programming language and operating system combination not approved by Itron
2.6 Proprietary Information. In addition to the rights and obligations set forth in paragraph 5.3
hereinbelow, Buyer acknowledges and agrees that tht information contained in the Software and Related Documentation which is labeled as proprietary or
confidential information is the property of Itron
(or another party who has licensed to Itron), and 4
the proprietary information is being made availablc
Buyer by Itron in confidence and solely on the bas.
of Buyer's confidential relationship with Itron. I
proprietary information is considered by Itron to I
trade secret of Itron. Buyer will not provide or
otherwise make available any Licensed Software or 1
Documentation, in any form, without Itron's prior
written consent, except to employees or consultant:
of Buyer whose access to the information is necessi
to enable Buyer to exercise its rights under this
License.
SECTION 3: The Equipment
3.1 Price. Itron hereby sells to Buyer and Buyer
purchases from Itron the Equipment listed on Schedi
attached hereto. Prices for the on-order Equipmeni
listed in Schedule C and in the System Specificatic
Document shall be protected from any increases for
period of one (1) year from the date of execution (
this Agreement. Buyer shall pay for the Equipment
accordance with the terms and conditions set forth
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3.2 Delivery. The Equipment shall be delivered to
Buyer within ninety (90) days of completion of
Pre-Installation Orientation. Itron shall arrange
for delivery of the Equipment to the installation
site designated by Buyer. Itron shall arrange for
transportation of the Equipment and Licensed Softwi
3.3 Payment for Licensed Software, Equipment and
Implementation Services.
(a) Payment Terms. Upon execution of this Agreement, Buyer shall pay Itron twenty-five percei (25%) of the total price for the Licensed Software, Equipment and Implementation charges as specified in Schedules B, C and D respectively. Upon delivery of the Equipment and Licensed Softwa:
Buyer shall pay Itron the balance of the total price for the Licensed Software, Equipment and
Implementation.
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(b) Freiqht and Taxes. In addition, Buyer shall
reimburse Itron for all freight and handling charg and taxes described in Section 5.5, paid by Itron.
(c) Labor and On-Site Expenses. The total amount paid by Buyer for Implementation services, in accordance with Section 3.3 (a) above, shall not
exceed the amount specified for the services in Schedule D, unless additional services other than those services originally specified in this Agreem
are performed by Itron at the request of Buyer.
(d) Payment. All payments required to be made
by Buyer shall be paid within thirty (30) days of
date of invoice. All Itron invoices shall be
accompanied by vouchers and associated documentati All payments received more than thirty (30) days
after the date of invoice shall be subject to a
late charge of one and one-half percent (1+%) per
month for each month that the invoice remains unpa
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3.4 Additional Equipment. Itron agrees to sell to
Buyer additional Equipment at its then prevailing
prices and terms. The purchase price for the
Additional Equipment shall be payable within thirt
(30) days of the date of invoice consistent with
paragraph 3.3 (d) herein. Any representations or
warranties contained in this Agreement with respec to the System, shall be applicable to the Addition Equipment.
3.5 Site Preparation. Buyer shall be responsible for supplying such space, lighting, utilities, communi
cations facilities, air conditioning and other environmental requirements for the Equipment as Itron may reasonably require. Itron shall inspect the installation site and shall either acknowledge
that the site is suitable for effective installati
and operation of the System or shall advise in wha respect the installation site does not comply with the stated requirements furnished by Itron.
3.6 Title. Title to the Equipment shall pass to Buyer
upon shipment thereof. Itron shall, at its own ri transport the Equipment to locations specified by Buyer. Buyer shall, as provided in paragraph 3.3,
be obligated to promptly reimburse Itron for all transportation costs incurred by Itron. 1
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, * e 3.7 Equipment Modification.
In the event Buyer wishes to modify the Equipment or use any non-Itron attachment, feature, or devicc on the Equipment, or any part thereof, it shall
first notify Itron in writing. Buyer shall be
entitled to modify the Equipment or install such
attachment, feature or device, without affecting
Itron's representations and warranties hereunder a
to the Equipment, only if Itron, within a reasonab
time, not to exceed thirty (30) days, provides
written notice to Buyer stating it concludes such
modification or attachment, feature or device will
not adversely affect its obligations hereunder. I
Buyer modifies the Equipment or employs such
attachment, feature or device without receipt of
such notice, Itron shall not be liable for those
representations and warranties which it reasonably
concludes would be adversely affected.
Buyer understands that Itron, by not objecting to the use of such attachment, feature or device, doe not in any way represent or warrant such attachmen feature or device, including its performance in conjunction with the Equipment.
SECTION 4: Warranty and Warranty Exclusions
4.1 Warranty
ITRON warrants that each item of Equipment will be free from defects in material and workmanship and the Licensed Software shall perform substantially in accordance with the System Specification Docume
for a period of ninety (90) days from the date of Installation. Buyer agrees to furnish ITRON full
and free access to said Equipment and Licensed Sof
Itron shall repair or provide an equivalent replacement of any item of Equipment and Licensed Software deemed defective at no charge to Buyer during this warranty period.
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THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANT- ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ITRON, INC. BE LIABLE, WHETHER IN CONTRACT, IN TORT OR ON ANY OTHER BASIS, FOR ANY DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON
ARISING FROM OR RELATED TO LOSS OF USE, FAILURE OR
INTERRUPTION IN THE OPERATION OF ANY EQUIPMENT OR
LICENSED SOFTWARE, OR FOR INCIDENTAL, CONSEQUENTIAI
INDIRECT DAMAGES OR LIABILITIES OR FOR LOSS OF
REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS
ARISING OUT OF OR IN CONNECTION WITH THE SALE,
MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTER-
RUPTION OF THE EQUIPMENT OR LICENSED SOFTWARE.
4.2 Warranty Exclusions
The warranties provided by Itron under this Agreemc
do not include the following services, but if such services are available, they can be provided by Itron under this Agreement at Itron's then applical time and material charges and travel expenses unless such activities are provided under another written agreement signed by Buyer and Itron.
(a) Repair of damage or increase in service time
caused by failure to continually provide a suitablc installation environment with all facilities prescribed by the applicable Itron installation manual.
(b) Repair of damages or increase in service time caused by the use of the Equipment for other than data processing purposes for which designed; or neglect or misuse.
(c) Repair of damage caused by accident, disaster
which includes, but is not limited to fire, flood, water, wind, lightning, transportation, or force
majeure.
(d) Repair of damage or replacement of parts
caused by sabotage, neglect, or purposeful misuse.
(e) Inspection of altered Equipment, repair of damage or increase in service time caused by
alterations not authorized by Itron, which alterat include, but are not limited to, any deviation fro Itron's physical, mechanical or electrical Equipme design.
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(f) Repair of damage or increase in service time
caused by the conversion from one Itron model to another or the installation or removal of an Itron feature whenever any of the foregoing was performe by other than Itron or its authorized agents.
(9) Service time and materials associated with th rearrangement or relocation of Equipment.
SECTION 5: Rights and Obligations
5.1 Patents and Copyrights
ITRON will defend Buyer against a claim that
Equipment or Licensed Software supplied hereunder
infringes a U.S. patent or copyright, or that the Equipment's operation pursuant to a current releas
and modification level of any programming supplied
by Itron infringes a U.S. patent, and Itron will
pay resulting costs, damages and attorney's fees
(a) Buyer promptly notifies Itron in writing of
1 finally awarded, provided that:
the claim; and
(b) Itron has sole control of the defense and all
related settlement negotiations.
Itron's obligation under this Section is conditior
on Buyer's agreement that if the Equipment, or the
operation thereof, or Licensed Software, becomes,
or in Itron's opinion is likely to become the subject of such a claim, Buyer will permit Itron,
at Itron's option and expense, either to procure
the right for Buyer to continue using the Equipmer
or Licensed Software or to replace or modify the
same so that they become noninfringing; and if
neither of the foregoing alternatives is available
on terms which are reasonable in Itron's judgement
Buyer will return the Equipment or Licensed Softwi
on written request to Itron. Itron shall refund
to Buyer the Buyer's then undepreciated book
value of such returned Equipment and Licensed Software.
Itron has no liability for any claim based upon tl: combination, operation or use of any Equipment or
Licensed Software supplied hereunder with equipmer or software not approved by Itron, or based upon
alteration of the Equipment or modification of an! Licensed Software supplied hereunder.
The foregoing states the entire obligation of Itrc
with respect to infringement of patents, copyrigh-
trade secrets or other proprietary property. I
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5.2 Support Service. Itron warrants that the Equipment and Licensed Software are eligible for support
service under Itron's standard support agreement.
The fee for support service shall be at Itron's
then prevailing rates. At Buyer's option, the
support agreement may commence on the date of
expiration of the initial warranty period for the
Equipment and/or Licensed Software.
5.3 Confidentiality. Itron and Buyer agree to hold in
strictest confidence all information and material which is related to either party's business, which
is designated as proprietary and confidential
herein, or which is related to the performance, by
the parties, of their obligations under this
Agreement. Proprietary and confidential informatic
includes, but is not limited to, information
related to research, development, pricing, trade
secrets, customer lists, salaries or business affairs of the parties to this Agreement. The parties' obligations of confidentiality under this
Agreement shall survive termination of this Agreem
provide to Buyer, at Itron's then current prices,
all current source codes for the Licensed Software
provided hereunder.
5.4 Source Code. Upon Buyer's request, Itron shall
5.5 Taxes. There shall be added to the amounts to be paid by Buyer hereunder additional amounts equal t any taxes, duties or assessments, however designat levied or based on such amounts payable by Buyer pursuant to this Agreement, or on services renderel or on the Equipment, Licensed Software or their use, including state and local privilege or excise taxes based on gross revenue and any taxes or amounts in lieu thereof paid or payable by Itron
with respect to the foregoing, exclusive however, of taxes based on net income, which taxes shall be borne by Itron. Upon demand, Buyer will reimburse Itron or its assignees for the amount of any such taxes or other amounts which are the obligation of Buyer hereunder, regardless of when and by whom
payable. Itron will cooperate and furnish Buyer with any notices, assessments and information available in connection with Buyer's obligation under this provision. Any amounts payable by Buye
hereunder shall be paid to Itron in accordance wit
paragraph 3.3 hereinabove.
5.6 Law Compliance. Itron shall comply with
provisions of the Federal Fair Labor Standards Act
and with all other applicable federal, state and
local laws, rules, regulations and ordinances in
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the design, manufacture, sale, pricing and deliver of the Equipment and Licensed Software, including all laws prohibiting discrimination in employment,
to the extent that such laws pertain to Itron.
5.7 Term and Termination.
(a) Termination. This Hardware Purchase and Software License Agreement shall become effective upon execution by Itron and Buyer 1 and shall terminate:
(1) Thirty (30) days after a party gives the other party notice of that party's mater breach of any provision of this Agreemen unless the other party has cured the breach, or has made progress in curing
the breach to an extent satisfactory to
the nonbreaching party,
(2) Immediately upon any attempt by a party
assign, delegate, sublicense or otherwis
transfer this Agreement, the Licensed
Software, the Related Documentation, or
any of its rights or obligations under
this Agreement without the prior written
consent of the other party,
(3) At a party's option, upon ten (10) days written notice of termination, if the other party becomes insolvent, executes an assignment for the benefit of credito
or becomes subject to bankruptcy or
receivership proceedings.
(b) Rights and Obligations Upon Termination. Up0
termination of this Agreement:
(1) Buyer's obligations under paragraphs
3.3 ("Payment") , 2.6 ("Proprietary Information") , 5.3 ("Confidentiality") shall survive the termination,
(2) Buyer's Software License rights under I Section 2 shall immediately cease,
(3) Buyer shall delete the Licensed Software
from all other software into which it ha been merged; shall immediately deliver t
Itron or destroy all copies of the
Licensed Software and Related Documentat
provided that, upon Itron's written
consent, Buyer may retain one copy of th
Licensed Software and Related Documentat
for archive purposes only; and I
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(4) Buyer shall, within one (1) month after the termination of this Agreement,
certify in writing to Itron that, to the
best of Buyer's knowledge, all copies of
the Licensed Software and Related Docume
tion have been returned or destroyed,
except for any archive copy permitted
under paragraph 5.7 (b) (3) .
(c) Each party's right to terminate as expressed
this Agreement shall be in addition to any ot
rights, legal or equitable, provided by law.
5.8 Term and Termination after System Test
Upon delivery and installation of the System at
Buyer's premises, Itron and Buyer will commence a
test of the System in accordance with the testing
procedure outlined and agreed to in the System Specification Document.
If at the completion of the test period the System does not perform substantially in accordance with the System Specification Document and such perforlr deviations have not been corrected within a mutual agreeable period of time from the completion of th
test period, then Buyer may notify Itron in writin of its intent not to accept the System, in which
case, Itron shall remove all Equipment and License
Software from the premises and refund all monies F
to Itron by Buyer for said Equipment, Licensed
Software, related shipping charges and applicable taxes. In such case, Buyer's total liability for payment to Itron shall be for labor for on-site services, and travel and per diem expenses accrued up to the time of Equipment and Licensed Software removal. In any case, this amount is not to excee the amount agreed to for such services in the Syst Specification Document. It is agreed that deviati from performance of the System, as specified in tf
System Specification Document, which would cause Buyer to cancel this Agreement would be substantiz in nature and that a list of "minor" Licensed Soft inconsistencies (bugs) may be provided to Itron bl Buyer prior to the completion of the test phase. These inconsistencies will be corrected by Itron j a mutually agreeable period of time following completion of the test phase, but these items shall not be cause for Buyer to cancel the Agreemc
SECTION 6: General
6.1 Force Majeure. Neither party hereto shall be responsible for any failure or delay in the perfoi of any obligation hereunder if such failure or I
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delay is due to a cause beyond the party's control including, but not limited to acts of God, flood,
fire, war, third-party suppliers, labor disputes 01 governmental acts.
6.2 Notices and Requests. All notices and requests in
connection with this Agreement shall be given or
made upon the respective parties in writing and
shall be deemed to be given as of the day such
notice or request is deposited in the U.S. mails, postage prepaid, certified or registered, return
receipt requested, addressed as follows:
Buyer: City of Carlsbad
2075 Las Palmas Carlsbad, CA 92009-1519 Attn: Larry Wiley
Itron: Itron Inc.
E. 15616 Euclid Ave. Spokane, WA 99216 Attn: Contract Administrator
or to such address as either party designates by written notice to the other. 1
6.3 Entire Agreement. Each party acknowledges that it
has read this Agreement, understands it, and agree to be bound by its terms and further agrees that i is the complete and exclusive statement of the agreement between the parties, which supersedes an merges all prior proposals, understandings and all other agreements, oral and written between the parties relating to the subject matter of this Agreement. altered except by a written instrument duly execut by both parties.
hereunder shall be governed by and construed in accordance with the laws of the State of Californi
6.5 Enforceability and Attorneys' Fee. If any provisj
This Agreement may not be modified or
6.4 Governing Law. This Agreement and performance
in this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
In the event of litigation to enforce the terms oJ this Agreement, the prevailing party shall be
entitled.to a reasonable attorney's fee, both at the time of trial and on appeal.
6.6 No Waiver. The failure of either party to
exercise in any respect any right provided for herein shall not be deemed a waiver of any right
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6.7 Assignment. This Agreement and the rights and
duties hereunder shall not be assignable by the
parties hereto except upon written consent of the I other.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement the date and year first above written by their dul
authorized representative.
BUYER:
ITRON: -
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L 1. SCHEDULE A
Itron's System Specification Document
(to be attached hereto)
SCHEDULE B
Licensed Software
(includes programs, documentation and training manuals)
Ex Unit
License Li
Pr
1. 1 850-0250-000 ENCORE RDMS Software License $2,500 $2
- I Item QtY Model Description Price
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I Equipment
Ex. Unit Purchase Pu: Pr
3 650-0011-001 DataCap H w/256K RAM $2,500 $ 7
- Item aty Mode 1 Description Price
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without cassette backup
with cassette backup 2. 1 650-0010-001 DataCap H w/256K RAM 3 , 490 3
3. 1 610-0001-002 DCMU 300 with 3 data ports 1,645 1 4. 1 500-0052-005 Battery Charging System 604 475 1 510-0006-004 PC Interface Kit 500
TOTAL $13
SCHEDULE D
I Implementation Charges
i Implementation Charges Total $5,0
* Includes four (4) days of off-site training for up to four (4) Uti 1 personnel at Itron's headquarters in Spokane , Washington: Programmin
consultation at Itron's headquarters in Spokane, Washington; and up (5) days training, expenses and consultation by Itron Project Manage 1 Utility site.
One (1) round trip airfare shall be billed at actual, as incurred. 1
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CONTRACT NO. ENC-1087-127 TERMS AND CONDITIONS FOR SYSTEM SUPPORT SERVICES BETWEEN CITY OF CARLSBAD
& ITRON, INC.
1. TERM OF AGREEMENT
This Agreement shall be effective from the date accepted by ITRON and shall remain in force for at least one year after the warranty expiration date on the initial Equipment (the "anniversary date"). The Agreement may be terminated by
either party upon ninety (90) days prior written notice.
If written notice is not received from the Customer ninety
(90) days prior to the initial anniversary date or any subsequent anniversary date, the terms and conditions of this Agreement shall be automatically extended for an additional twelve (12) month period. Except as otherwise
provided herein, ITRON may withdraw individual items of
Equipment or Licensed Software from this Agreement at the
end of the first year after service for each item has commence
or thereafter, upon ninety (90) days prior written notice to
the Customer. When an item of Equipment or Licensed Software
is withdrawn from the Agreement, the Customer shall receive
credit for any charges already paid for service beyond the
date of withdrawal.
2. SUPPORT SERVICE
ITRON shall provide Support Service to keep the Equipment and
Licensed Software, listed on Schedule A, in good working ordei
Support Service shall include labor, parts, tools, and test
equipment necessary for the service and support of the items
being serviced. New or equivalent to new standard parts
shall be used in effecting repairs. Parts shall be provided on an exchange basis and replaced parts shall become the
property of ITRON. The Customer shall provide facilities for
storage and safekeeping of spare parts and test equipment and a working area for the use of ITRON's Field Engineers within a reasonable distance of the Equipment to be serviced.
3. QUARTERLY CHARGES
Support Services for each item of Equipment and Licensed Software shall commence upon the expiration of the warranty period for said item. The quarterly charge, as specified in Schedule A for the current quarter, is due and payable upon expiration of the initial warranty period on the initial Equipment. Upon completion of all warranty periods, (if more than one Installation date) Customer shall receive a credit on the initial quarterly charge paid, Such credit shall be based upon the actual warranty expiration dates. An; subsequent quarterly charge shall be due and payable upon the first day of each quarter. ITRON may not change the quarterl: charge prior to the initial anniversary date, and thereafter only upon written notice at least ninety (90) days prior to ai
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subsequent anniversary date. Any adjusted rate may not exceed ITRON's published rates for commercial users in effect on the adjustment date. Any such adjusted rates shall become effective on the date specified in the notice unless the Customer exercises the option to withdraw the affected items from this Agreement. There shall be no additional charge for travel expense associated with services performed except that actual travel expense shall be charged in those instances when the site at which the item is located is not normally accessibl
by private automobile or scheduled public transportation.
4. TAXES
In addition to the charges due under this Agreement, the
Customer agrees to pay amounts equal to any taxes and duties
resulting from this Agreement, or any activities hereunder,
exclusive of taxes based upon net income.
5. RISK OF LOSS
Customer shall bear the entire risk of loss, damage, destructic or theft of the Equipment or Licensed Software for any reason, other than negligence of ITRON, its employees or authorized agents, during the term of this Agreement. Customer agrees that ITRON shall not be liable to Customer for loss of profit or other financial loss resulting from the loss of business which may be caused, directly or indirectly, by the inadequacy of any items of Equipment or Licensed Software for any purpose or any use thereof or by any deficiency or defect therein. I 6. ACCESS TO THE EQUIPMENT AND LICENSED SOFTWARE
ITRON shall have full and free access to the Equipment and Licensed Software to provide service thereon. If persons other than authorized ITRON representatives shall perform maintenance or repair of the Equipment or Licensed Software, and as a result further repair by ITRON is required, such further repairs shall be made at ITRON's applicable time and material rates and terms then in effect. The Customer represe
that it is the owner of the Equipment serviced under this Agreement, or, if not the owner, has authority from the owner to include the Equipment under this Agreement.
7. ENGINEERING CHANGES
Engineering changes or Licensed Software releases, determined
applicable by ITRON shall be controlled and installed by ITRON at no additional charge to Customer on Equipment or Licensed Software covered by this Agreement. The Customer may, by providing notice subject to written confirmation by ITRON,
elect to have only mandatory changes, as determined by ITRON, installed on Equipment or Licensed Software so designated. IT reserves the right to charge, at its applicable time and mater
rates and terms then in effect, for additional service time ar
replacement parts when such additional service and parts are
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6.
required due to the conversion from one ITRON model to another or the installation or removal of an ITRON feature whenever
any of the foregoing was performed by other than ITRON.
8. TRANSFER OF EQUIPMENT
Any transfer of Equipment designated for stationary use by
Customer requires written notification to ITRON within thirty
(30) days of such transfer. Customer shall be responsible
for knowledge of the location of each item of Equipment and
for any damages or malfunctions arising from such relocation.
9. EQUIPMENT CHANGES
Changes requested by Customer, in Equipment specifications,
attachments, or features may result in an adjustment of the
specified basic quarterly charge.
10. EARLY TERMINATION
Any of the following events shall constitute default:
(a) Failure by Customer to pay the quarterly charge within fifteen (15) days after the due date. (b) Any breach or failure by a party to observe or perform any other obligations hereunder and the continuance of
such default for fifteen (15) days after notice in writing to that party of the existence of such default,
unless the party in default has made progress in curing the default to an extent satisfactory to the
non-defaulting party. Insolvency or bankruptcy of a party or the making by
that party of an assignment for the benefit of creditors
or the consent of that party to the appointment of a
trustee or receiver for that party or for a substantial part of its property.
reorganization, arrangement or insolvency proceedings.
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(d) The institution by or against a party of bankruptcy, 1
Upon the occurrence of such default, the other party may, at i
option and without notice to or demand on the party in default, declare this Agreement terminated and thereupon all accrued charges shall become immediately due and payable. I 11. GENERAL PROVISIONS
(a) Modification of Equipment or Licensed Software
ITRON's obligations hereunder shall be void in the event
Customer, without ITRON's prior written approval, makes
any modification, alteration or change upon the Equipment
or Licensed Software or uses additional attachments, features or devices in connection therewith.
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(b) Sublease and Assignment
Neither party may sublease or assign its rights or
obligations under this Agreement without the written
consent of the other party. Upon an assignment by
ITRON, it thereby shall transfer all its rights hereunder free of all defenses, setoffs, or counterclaims which
Customer may be entitled to assert against ITRON. No such assignee shall assume or undertake any obligation of ITRON created hereunder without assignee's written acceptance thereof expressed in the instrument of assignment; and Customer shall continue to look to ITRON for performance of such obligations. Customer agrees to honor any assignment made hereunder; and thereafter, to pay all amounts due by it to assignee, to the extent of its rights and subject to Customer's rights hereunder. A successor in interest by merger, operation of law, or purchase of the entire business of either party shall acquire all interest and be subject to all obligations of such party hereunder.
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(c) Successor Liability This Agreement is binding upon and shall inure to the
' benefit of the parties, their successors in interest and assigns (as limited by ll(b) above).
(d) Interpretation of Agreement
This Agreement shall be interpreted under and enforced
in accordance with the laws of the State of California.
(e) Severability
If any part of this Agreement is judicially determined
to be invalid, the parties agree that all remaining
parts shall retain their full force and effect.
(f) Modification of Agreement
No part of this Agreement may be deleted, changed or
expanded without the express written consent of both 1 parties.
(9) Concurrent Remedies
No right or remedy herein conferred upon or reserved to
either party is exclusive of any other right or remedy he
or by law or equity provided or permitted; but each
shall be cumulative of every other right or remedy given
hereunder or now or hereafter existing at law or in
equity or by statute or otherwise and may be enforced
concurrently therewith or from time to time.
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(h) Notices
All notices in connection with this Agreement shall be
given or made upon the respective parties in writing
and shall be deemed to be given as of the day such
notice is deposited in the U.S. mails, postage prepaid,
certified or registered, return receipt requested,
addressed as follows:
CUSTOMER: CITY OF CARLSBAD
2075 Las Palmas
Carlsbad, CA 92009-1519
Attn: Larry Wiley
ITRON : ITRON, INC. E. 15616 Euclid Ave. Spokane, WA 99216 Attn: Contract Administrator
(i) The terms and conditions of this Agreement supersede those of all previous agreements between ITRON and
Customer with respect to service of the Equipment and Licensed Software. Any terms and conditions appearing on
Customer's purchase orders or authorizations shall not
apply to or become a part of this Agreement.
12. RESPONSIBILITY
ITRON shall not be responsible for any loss, property damage,
personal injury or expense, including legal expense, incurred
by any employee, agent, invitee or licensee of Customer or any other person other than employees or authorized agents of
ITRON regardless of how caused, if arising out of the use or
possession of the Equipment or Licensed Software by Customer,
unless such loss, property damage, personal injury or expense,
including legal expense, is caused by the fault or negligence of ITRON, its employees or authorized agents. 1 13. EXCLUSIONS
(a) Support Service under this Agreement shall not
include electrical work or utility change external to
the Equipment, nor:
1) The furnishing of supplies or accessories; painting
or refinishing the Equipment or furnishing material thereof;
or adding or removing accessories, attachments or
other devices;
2) Making the Customer sponsored specification changes;
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3) Performing services connected with relocation of
Equipment, repair of damage resulting from accident,
transportation subsequent to delivery, neglect,
misuse or abuse, lack of reasonable care, failure
of electrical power, air conditioning, or humidity
control, causes other than ordinary use, or failure
or malfunction of attached, related, collateral or
ancillary equipment not covered by this Agreement.
4) Service which would be impractical for ITRON's Field Engineers to render because of alterations in the Equipment or its connection by mechanical or electrical means to another machine or device.
(b) ITRON is not responsible for Equipment or Licensed
Software failure or failure to render service due to
causes beyond control of ITRON. ITRON WILL NOT IN ANY
EVENT BE LIABLE TO THE CUSTOMER FOR SPECIAL, CONSEQUENTIA I OR EXEMPLARY DAMAGES.
14. OTHER SERVICE
When the Customer requests service outside the scope of this Agreement, it shall be furnished at ITRON's applicable time
and material rates and terms then in effect.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement by their duly authorized representative.
CUSTOMER: CITY 0
BY
Title CuoN:A . .&-w/s /vA2Yb&
Date Sk/@
ITRON: -
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Equipment and Licensed Software Support Charges
Total I Item Qty Model Description Quarterly C
1. 3 650-0011-001 DataCap H w/256K RAM $188.
without cassette backup
with cassette backup
1 500-0052-005 Battery Charging System 604 14. 4. 5. 1 510-0006-004 PC Interface Kit 15.
1 850-0250-000 ENCORE RDMS Software 150.
TOTAL $536.
2. 1 650-0010-001 DataCap H w/256K RAM 119.
1 610-0001-002 DCMU 300 with 3 data ports 49.
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1988 TOTAL SYSTEM SUPPORT PACKAGE
Itron provides its customers with a Total System Support Pack;
consisting of a twenty-four (24) hour Customer Support hotline
service, on-going consulting services, on-site critical problc
resolution, complete record keeping and documentation control, hardware services and software services. Although primary support service for third party hardware and software is provi by the respective third party vendors, Itron provides problem determination through the Total System Support Package.
CUSTOMER SUPPORT GROUP
Itron Customer Support Representatives are available twenty-fc
(24) hours per day, seven (7) days per week via a Customer
Support hotline. All customer requests of Itron should be focused through the Itron Customer Support Representative. A
response to a request or a plan for resolving the reported issue will be provided by the Customer Support Representative within a twenty-four (24) hour period. The Customer Support Representative is responsible for the record keeping, scheduling, status reporting and problem resolution/escalatior procedures. The Customer Support Representative is the custon in-house spokesperson at Itron.
Phone consultations provide the customer with the ability to discuss such things as installation instructions, hardware and software inquiries, operating procedures, modifications to the existing System and other concerns that may arise. The custon
has access to a team of trained professionals, drawing upon tk
expertise not only of the Customer Support group, but also an) other organization within Itron necessary to resolve a problen or address a concern.
All telephone contacts are documented to assist Itron personne in tracking the issue or problem (Problem Tracker), and the
status is monitored until final resolution. The Itron Custom€ Support group maintains a monthly log reflecting the current
status of any outstanding hardware/software issues and/or
customer requested modifications. These logs include problem
modification reference numbers, date reported, description,
priority and scheduled release date. These reports are provic
on a monthly basis to the customer for his review.
SOFTWARE SERVICES
Software support can be accessed via Itron's twenty-four (24)
hour per day, seven (7) day per week Customer Support hotline, Itron provides all of the labor and materials necessary to
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maintain the software in accordance with the Design Specifica Document. Software support services are furnished via Itron software releases and on-site critical problem resolution. Itron provides a ninety (90) day warranty on all Itron- manufactured software supplied with the System. At the end o the warranty period, the Total System Support Package begins
providing continued on-going support.
During the initial installation of the System, the software i fully tested by both the customer and Itron. Upon System accc tance and placing the System into "live" operation (when the data is gathered in the field utilizing the System and such d# is used for mainframe processing), the software shall be considered "frozen" (the System shall operate for a period of sixty (60) days without any software changes). During that period of time any problems will be reported and modification,
if any, will be requested. At the conclusion of the sixty (61
day period, the Itron Project Manager will conduct a status
visit to review all open issues and modification requests, anc
appropriate action will be taken.
All software issues or modification requests shall be reportec
through Itron's Customer Support hotline. Once a problem is verified by Itron it will be given to the Software Services group for correction. If a problem is not verifiable by Itror the Customer Support Representative may request additional documentation or data from the customer. During the period oJ time between major System releases, only problems determined t be "critical" in nature will be acted upon immediately. "Critical" problems will be defined as those that impact the collection or pass-through of data which ultimately affect mainframe processing.
ANY CUSTOMER REQUESTED CHANGE TO A SYSTEM FEATURE OR FUNCTION THAT DIFFERS FROM THE DEFINITION SET FORTH IN THE DESIGN SPECIFICATION DOCUMENT, OR CHANGES THE SCOPE OF THE FEATURES AND FUNCTIONS OF THE ORIGINAL SYSTEM, SHALL BE CONSIDERED A
MODIFICATION. ITRON RESERVES THE RIGHT TO DETERMINE IF A REQUESTED CHANGE IS A MODIFICATION.
All modification requests made by the customer shall be submit to Itron in writing. The requests should include the appropri
modified pages from the Design Specification Document. If the
modification is significant in size or scope, Itron may elect send a Project Manager on-site to finalize the design of the modification. The time and expense to complete the design is
billable at applicable rates. All customer requested
modifications will be bid by Itron, prior to scheduling, at th
applicable time and materials rate. The modification bid shal include programming, documentation, testing and implementation
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for the modification. Upon customer approval of the bid, the modification will be scheduled. ITRON RESERVES THE RIGHT TO
REJECT ANY REQUESTED MODIFICATIONS.
Any release of Itron software is accomplished through the trar portation of magnetic media to the customer site. Included w: the release will be the Problem Tracker or modification
description, description of the change, documentation and installation procedures. Full consultation may be provided v: the Customer Support hotline to ensure proper installation.
Once this software has been released, it will become the new software base from which all future changes will be derived.
Itron provides third party operating system software support.
Itron will, from time to time, provide new releases or upgradt
to the operating system software as deemed necessary by the
Itron Software Services group.
Itron maintains a current backup of all customer related software, source code and appropriate documentation. If required, Itron can provide full software recovery within twenty-four (24) hours of notification. Complete software contingency planning consulting services are available from Itron at applicable time and expenses.
On-site critical problem resolution by qualified Itron prograr ming staff will be available twenty-four (24) hours per day, seven (7) days per week, when a joint determination by Itron i
the customer has been made confirming the need for on-site
assistance. Itron can provide such service in a minimum of fc
(4) business hours plus travel time. ITRON RESERVES THE RIGH'
TO CHARGE APPLICABLE TIME AND EXPENSES FOR THE ON-SITE PROBLEl
RESOLUTION WHEN IT IS DETERMINED THAT THE FAILURE IS DUE TO
HARDWARE OR SOFTWARE NOT SUPPORTED BY ITRON.
The Total System Support Package excludes support of the following items:
1. Customer modified software.
2. Third party software installed by the customer not
supplied by Itron or designated in the Design Specification Document.
party software/firmware into the System, requested ; customer, whether such software is provided by Itro: or customer.
negligence.
between Itron and the customer.
3. Any software changes required to integrate third
4. System corruption due to accident, misuse or
5. Software not included in the System Support Agreeme
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HARDWARE SERVICES
Hardware support can be accessed through Itron's twenty-four
(24) hour per day, seven (7) day per week Customer Support
hotline. Itron provides all of the labor and materials
necessary to maintain the hardware in accordance with the Des: Specification Document. Hardware support services and on-sitc critical problem resolution are furnished via Itron designate( depot service centers. Itron provides a ninety (90) day warranty on all Itron-manufactured hardware supplied with the
System. At the end of the warranty period for each piece of equipment, the Total System Support Package begins providing continued support services.
Itron provides regional depot service centers for the
expeditious service and turnaround of customer hardware. Itrc provides a seventy-two (72) hour in-house turnaround upon arrival at the depot service center during normal business
hours. Depot service center hours of operation are Monday through Friday, 8:OO a.m. to 5:OO p.m., excluding holidays.
Regional depots are located across the country, accommodating the differing time zones. Shipping charges to the designated depot service center will be borne by the customer, and returi
shipment will be paid by Itron. Return shipment will be in tl
same manner in which received. If the need should arise to
expedite the service and/or return shipment of depot serviced
hardware, a call to the Customer Support Representative shoulc
be placed. The cost for the expedited service shall be borne
the customer.
When the customer has procured the recommended sparing levels for its System, Itron will provide a loaner service should thc depot be unable to meet the seventy-two (72) hour in-house turnaround. Loaners will be provided for a maximum of ten (1( days without charge. If units are not returned to the depot
within fifteen (15) days, the published monthly rental charge
will be assessed. Complete hardware contingency planning
consulting services are available from Itron at applicable tir
and expenses.
All hardware incidents shall be reported through Itron's Customer Support Representatives. Once the issue is verified by Itron, an action plan will be formulated and the schedule communicated to the customer. If the issue is not verifiable by Itron, the Customer Support Representative may request additional information or data.
Should a customer replaceable module/sub-assembly failure occi
Itron will supply the individual module/sub-assembly to the
customer for replacement. The defective module/sub-assembly
is then returned to the originating service center. Dependinc
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upon the module/sub-assembly and the repair, the unit may be returned to the customer for re-installation and the loaner
unit returned to Itron within five (5) days of receipt of
repaired module/sub-assembly.
If the customer requires movement of stationary equipment, Itr can provide hardware installation services at applicable time and expenses. Any need for assistance because of damage or malfunction resulting from the customer moving the equipment
shall be billable at applicable time and expenses.
Itron reserves the right to incorporate Engineering changes to
Itron hardware that will result in improved product performanc and/or reliability. The installation of such changes, whether
through normal service cycles or on-site visits, will be the
sole determination of Itron. The Itron Customer Support
Representative will notify the customer of any on-site
Engineering changes planned and the respective installation schedule or plan. Periodically, Itron may perform preventive maintenance on designated equipment. Such service will be scheduled and communicated via the Customer Support Representative.
On-site critical problem resolution by qualified Itron staff will be available twenty-four (24) hours per day, seven (7) days per week, when a joint determination by Itron and the
customer has been made confirming the need for on-site
assistance. Itron can provide such service in a minimum of
four (4) business hours plus travel time. ITRON RESERVES THE
RIGHT TO CHARGE APPLICABLE TIME AND EXPENSES FOR ON-SITE PROBL RESOLUTION WHEN IT IS DETERMINED THAT THE FAILURE IS DUE TO HARDWARE OR SOFTWARE NOT SUPPORTED BY ITRON.
The Total System Support Package excludes support of the following items:
1. Cassette tapes (90 day warranty). 2. Shoulder straps, holsters, hand straps and safety
3. Physical damage resulting from accident, misuse or
4. Damage or malfunction resulting from stationary
5. Damage resulting from electrical power, air
6. Non-Itron supplied components.
7. The furnishing of supplies or accessories; painting
or refinishing the equipment or furnishing material
thereof.
between Itron and customer.
straps.
neglect.
equipment relocation by customer.
conditioning or humidity control failure.
8. Hardware not included in the System Support Agreemen
May 11, 1988
Ms.Karen R. Kundtz
Deputy City Clerk
City of Carlsbad
1200 Elm Ave.
Carlsbad,CA 92008
Dear Ms. Kundtz:
Enclosed is an executed copy of the Purchase and Service
Agreements.
I am also enclosing a copy of Itron's 1988 Total System
Support Package.This document details the level of Service
provided under the Service Agreement.
We are very pleased to have City of Carlsbad as a client
Utility and look forward to a successful installation.
Sincerely,
Sr. Contract Administrator
LK/lb
enc.
cc:Linda LeGrand
Dan McGuire
EAST 15616 EUCLID AVENUE
PO. BOX 15288
SPOKm!E, WASWINGTON 99215
(509) 9269900
TELEX: 9703809850 IT80N SPM
FAX: (509) 928-1455
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1200 ELM AVENUE TELE CAR LS BA D, CALI FO RN I A 92008 (619) d
Office of the City Clerk
Mitg of Marlgbab
May 5, 1988
Itron, Inc.
E. 15616 Euclid Ave.
Spokane, WA 99216
Attn: Contract Administrator
Re: Agreement For Hand-Held Electronic Meter Reading System
The Carlsbad City Council, at its meeting of April 12, 1988
approved an agreement with Itron, Inc. for the purchase and
installation of a hand-held meter reading system.
Enclosed is the original agreement which has been signed by the
Mayor on behalf of the City of Carlsbad.
has been signed by a representative of your company, please return
it to the City Clerk’s Office.
A copy of the agreement as well as a copy of Resolution No. 88-120
which approved the agreement are enclosed for your records.
Thank you for your assistance in this matter.
As soon as the document
gzfi Deputy City Clerk
Encs.
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CONTRACT NO. ENC-1087-127 ITRON ENCORE SYSTEM HARDWARE PURCHASE AND SOFTWARE LICENSE AGREEMENT
This Agreement, made this day of I 19 I bl and between ITRON, INC., a Washington corporation (hereinaft
"Itron") and City of Carlsbad, a California corporation,
(hereinafter "Buyer"). NOW, THEREFORE, in consideration of
mutual covenants and agreements hereinafter set forth, Itror
and Buyer hereby agree as follows:
SECTION 1: Definitions.
When used herein, the following terms, whether plural or
singular, shall have the meaning set forth below:
1.1 "DataCapture System" or "System". All Equipment, Licensed Software, and Related Documentation
comprising the electronic data capture system sol(
and licensed to Buyer pursuant to this Agreement.
1.2 "System Specification Document". This document i: produced by Itron and records requirements and plans for Buyer. The document contains a narrati7 and chart of the system flow, a network chart of the data communications network, the requirements for Hardware, a definition of input, output and cassette file structures and record layouts including the data definitions.
1.3 "Equipment". The components and devices designed and manufactured by Itron for the DataCapture System and sold to Buyer pursuant to this Agreemei
1.4 "Installation". The point in time when an item o Equipment or Licensed Software has been received and inspected by Buyer and has been set up for us( for training or testing purposes.
1.5 "Licensed Software". The program products in machine-readable form which are contained in schedules of products offered by Itron and price
lists published by Itron from time to time during
the term hereof, and all other programs recorded I
the media furnished hereunder, including, but not
limited to:
(a) Any form of Itron written programming
language source code and machine-readable co
derived from the source code or otherwise
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supplied by Itron pursuant to this Agreement and identified in a Schedule hereto; and
(b) Any subsequent modifications, corrections or revisions to the program products furnished t Buyer by Itron.
1.6 "Pre-Installation Orientation". That point in
time when Itron trains the Buyer on the functions and features of the System.
1.7 "Related Documentation". Any human-readable
program listings, flow charts, input and output forms, manuals, specifications, instructions, and
other materials, and any copies of any of the
foregoing, in any medium, related to the Licensed Software and delivered to the Buyer in accordance with the provisions of this Agreement.
SECTION 2: The Licensed Software.
2.1 License. Itron hereby grants to Buyer a nonexclusive, perpetual license to use the Licensf Software, including the Related Documentation, sei
forth on Schedule B attached hereto.
2.2 License Fee. Buyer shall pay to Itron for the Licensed Software the license fee(s) set forth in Schedule B. Payment of the license fee shall be .
accordance with the terms set forth in paragraph
3.3 hereinbelow.
2.3 Itron's Property. The Licensed Software,
including without limitation, programs, Related
Documentation and methods of processing, shall
remain the sole and exclusive property of Itron a:
shall not be sold, revealed, disclosed or otherwi
communicated, directly or indirectly, by Buyer to any person, company or institution whatsoever
except as set forth herein.
2.4 Scope of License. Buyer may use the Licensed
Software on hardware used or owned by Buyer. The
Licensed Software shall be used only for the processing of Buyer's own business, which shall include servicing, and maintaining records on
behalf of its customers. Buyer shall not: (a) permit any third party to use the Licensed Softwa
(b) use the Licensed Software in the operation o a service bureau or (c) allow access to the Licensed Software through terminals located outsi of Buyer's business premises.
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2.5 Programming Language. The Licensed Software is
written in a specific programming language for USE
with operating system software. Itron shall not k
responsible for the performance of the Licensed Software in any other programming language and operating system combination not approved by Itron
rights and obligations set forth in paragraph 5.3
hereinbelow, Buyer acknowledges and agrees that tk information contained in the Software and Related
Documentation which is labeled as proprietary or
confidential information is the property of Itron (or another party who has licensed to Itron), and the proprietary information is being made availabl Buyer by Itron in confidence and solely on the bas of Buyer's confidential relationship with Itron.
proprietary information is considered by Itron to
trade secret of Itron. Buyer will not provide or
otherwise make available any Licensed Software or
Documentation, in any form, without Itron's prior
written consent, except to employees or consultant
of Buyer whose access to the information is necess
to enable Buyer to exercise its rights under this
License.
2.6 Proprietary Information. In addition to the
SECTION 3: The Equipment
3.1 Price. Itron hereby sells to Buyer and Buyer purchases from Itron the Equipment listed on Schec
attached hereto. Prices for the on-order Equipmer listed in Schedule C and in the System Specificati
Document shall be protected from any increases for
period of one (1) year from the date of execution
this Agreement. Buyer shall pay for the Equipment
accordance with the terms and conditions set fort!
3.2 Delivery. The Equipment shall be delivered to
Buyer within ninety (90) days of completion of
Pre-Installation Orientation. Itron shall arrange
for delivery of the Equipment to the installation
site designated by Buyer. Itron shall arrange foi
transportation of the Equipment and Licensed Softb
3.3 Payment for Licensed Software, Equipment and
Implementation Services.
(a) Payment Terms. Upon execution of this
Agreement, Buyer shall pay Itron twenty-five percc (25%) of the total price for the Licensed
Software, Equipment and Implementation charges as
specified in Schedules B, C and D respectively. Upon delivery of the Equipment and Licensed Softwz Buyer shall pay Itron the balance of the total price for the Licensed Software, Equipment and
Implementation.
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(b) Freight and Taxes. In addition, Buyer shall
reimburse Itron for all freight and handling charc
and taxes described in Section 5.5, paid by Itron,
(c) Labor and On-Site Expenses. The total amount
paid by Buyer for Implementation services, in
accordance with Section 3.3 (a) above, shall not exceed the amount specified for the services in Schedule D, unless additional services other than those services originally specified in this Agree1 are performed by Itron at the request of Buyer.
(d) Payment. All payments required to be made by Buyer shall be paid within thirty (30) days of date of invoice. All Itron invoices shall be
accompanied by vouchers and associated documentat All payments received more than thirty (30) days
after the date of invoice shall be subject to a late charge of one and one-half percent (14%) per month for each month that the invoice remains unpl
3.4 Additional Equipment. Itron agrees to sell to Buyer additional Equipment at its then prevailing prices and terms. The purchase price for the
Additional Equipment shall be payable within thir
(30) days of the date of invoice consistent with paragraph 3.3 (d) herein, Any representations or
warranties contained in this Agreement with respe to the System, shall be applicable to the Additio Equipment.
3.5 Site Preparation. Buyer shall be responsible for supplying such space, lighting, utilities, commun
cations facilities, air conditioning and other
environmental requirements for the Equipment as
Itron may reasonably require. Itron shall inspec
the installation site and shall either acknowledg
that the site is suitable for effective installat
and operation of the System or shall advise in wh
respect the installation site does not comply wit the stated requirements furnished by Itron.
3.6 Title. Title to the Equipment shall pass to Buye
upon shipment thereof. Itron shall, at its own r transport the Equipment to locations specified by Buyer. Buyer shall, as provided in paragraph 3.3
be obligated to promptly reimburse Itron for all transportation costs incurred by Itron.
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3.7 Equipment Modification.
In the event Buyer wishes to modify the Equipment
or use any non-Itron attachment, feature, or devic
on the Equipment, or any part thereof, it shall
first notify Itron in writing. Buyer shall be
entitled to modify the Equipment or install such
attachment, feature or device, without affecting Itron's representations and warranties hereunder e to the Equipment, only if Itron, within a reasonat:
time, not to exceed thirty (30) days, provides
written notice to Buyer stating it concludes such
modification or attachment, feature or device will not adversely affect its obligations hereunder. 1 Buyer modifies the Equipment or employs such attachment, feature or device without receipt of such notice, Itron shall not be liable for those representations and warranties which it reasonabl!
concludes would be adversely affected.
Buyer understands that Itron, by not objecting to the use of such attachment, feature or device, dot not in any way represent or warrant such attachmei feature or device, including its performance in conjunction with the Equipment.
SECTION 4: Warranty and Warranty Exclusions
4.1 Warranty
ITRON warrants that each item of Equipment will bt free from defects in material and workmanship and the Licensed Software shall perform substantially
in accordance with the System Specification Documc for a period of ninety (90) days from the date of Installation. Buyer agrees to furnish ITRON full and free access to said Equipment and Licensed So
Itron shall repair or provide an equivalent
replacement of any item of Equipment and Licensed
Software deemed defective at no charge to Buyer
during this warranty period.
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THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANT- ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL ITRON, INC. BE LIABLE, WHETHER IN CONTRACT, IN TORT OR ON ANY OTHER BASIS, FOR ANY DAMAGES SUSTAINED BY BUYER OR ANY OTHER PERSON
ARISING FROM OR RELATED TO LOSS OF USE, FAILURE OF INTERRUPTION IN THE OPERATION OF ANY EQUIPMENT OR
LICENSED SOFTWARE, OR FOR INCIDENTAL, CONSEQUENTII INDIRECT DAMAGES OR LIABILITIES OR FOR LOSS OF
REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOS: ARISING OUT OF OR IN CONNECTION WITH THE SALE, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTER- RUPTION OF THE EQUIPMENT OR LICENSED SOFTWARE.
4.2 Warranty Exclusions
The warranties provided by Itron under this Agreer
do not include the following services, but if sucl
services are available, they can be provided by
Itron under this Agreement at Itron's then applic:
time and material charges and travel expenses
unless such activities are provided under another
written agreement signed by Buyer and Itron.
(a) Repair of damage or increase in service time caused by failure to continually provide a suitab installation environment with all facilities prescribed by the applicable Itron installation manual.
(b) Repair of damages or increase in service timc caused by the use of the Equipment for other than
data processing purposes for which designed; or neglect or misuse.
(c) Repair of damage caused by accident, disaste which includes, but is not limited to fire, flood water, wind, lightning, transportation, or force majeure.
(d) Repair of damage or replacement of parts caused by sabotage, neglect, or purposeful misuse
(e) Inspection of altered Equipment, repair of
damage or increase in service time caused by
alterations not authorized by Itron, which altera
include, but are not limited to, any deviation fr Itron's physical, mechanical or electrical Equipm
design.
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(f) caused by the conversion from one Itron model to
another or the installation or removal of an Itror
feature whenever any of the foregoing was performe
by other than Itron or its authorized agents.
(9) Service time and materials associated with tF
rearrangement or relocation of Equipment.
Repair of damage or increase in service time
SECTION 5: Rights and Obligations
5.1 Patents and Copyrights
ITRON will defend Buyer against a claim that
Equipment or Licensed Software supplied hereunder infringes a U.S. patent or copyright, or that the Equipment's operation pursuant to a current relear and modification level of any programming suppliec
by Itron infringes a U.S. patent, and Itron will
pay resulting costs, damages and attorney's fees
finally awarded, provided that:
(a) Buyer promptly notifies Itron in writing of
(b) Itron has sole control of the defense and a1
Itron's obligation under this Section is conditio]
on Buyer's agreement that if the Equipment, or thc operation thereof, or Licensed Software, becomes,
or in Itronls opinion is likely to become the
subject of such a claim, Buyer will permit Itron, at Itron's option and expense, either to procure
the right for Buyer to continue using the Equipme
or Licensed Software or to replace or modify the
same so that they become noninfringing; and if
neither of the foregoing alternatives is availabl
on terms which are reasonable in Itron's judgemen
Buyer will return the Equipment or Licensed Softw
on written request to Itron.
to Buyer the Buyer's then undepreciated book
value of such returned Equipment and Licensed
Software.
Itron has no liability for any claim based upon t
combination, operation or use of any Equipment or
Licensed Software supplied hereunder with equipme
or software not approved by Itron, or based upon
alteration of the Equipment or modification of an Licensed Software supplied hereunder.
The foregoing states the entire obligation of Itr with respect to infringement of patents, copyrigh trade secrets or other proprietary property.
the claim; and
related settlement negotiations.
Itron shall refund
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5.2 Support Service. Itron warrants that the Equipmenl and Licensed Software are eligible for support
service under Itron's standard support agreement. The fee for support service shall be at Itron's then prevailing rates. At Buyer's option, the support agreement may commence on the date of expiration of the initial warranty period for the Equipment and/or Licensed Software.
5.3 Confidentiality. Itron and Buyer agree to hold ii strictest confidence all information and material
which is related to either party's business, whicl
is designated as proprietary and confidential
herein, or which is related to the performance, b:
the parties, of their obligations under this
Agreement. Proprietary and confidential informat includes, but is not limited to, information
related to research, development, pricing, trade
secrets, customer lists, salaries or business
affairs of the parties to this Agreement. The
parties' obligations of confidentiality under thi
Agreement shall survive termination of this Agree]
provide to Buyer, at Itron's then current prices,
all current source codes for the Licensed Softwar
provided hereunder.
5.5 Taxes. There shall be added to the amounts to be paid by Buyer hereunder additional amounts equal any taxes, duties or assessments, however designa levied or based on such amounts payable by Buyer pursuant to this Agreement, or on services render or on the Equipment, Licensed Software or their
use, including state and local privilege or excis taxes based on gross revenue and any taxes or amounts in lieu thereof paid or payable by Itron
with respect to the foregoing, exclusive however, of taxes based on net income, which taxes shall b borne by Itron. Upon demand, Buyer will reimburs
Itron or its assignees for the amount of any such
taxes or other amounts which are the obligation o
Buyer hereunder, regardless of when and by whom
payable.
with any notices, assessments and information
available in connection with Buyer's obligation
under this provision. Any amounts payable by Buy
hereunder shall be paid to Itron in accordance wi
paragraph 3.3 hereinabove.
5.4 Source Code. Upon Buyer's request, Itron shall
Itron will cooperate and furnish Buyer
5.6 Law Compliance. Itron shall comply with provisions of the Federal Fair Labor Standards Ac
and with all other applicable federal, state and local laws, rules, regulations and ordinances in
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the design, manufacture, sale, pricing and delivei
' of the Equipment and Licensed Software, including
all laws prohibiting discrimination in employment,
to the extent that such laws pertain to Itron.
5.7 Term and Termination.
(a) Termination. This Hardware Purchase and
Software License Agreement shall become effective upon execution by Itron and Buyer and shall terminate:
(1) Thirty (30) days after a party gives thc other party notice of that party's mate: breach of any provision of this Agreemei unless the other party has cured the breach, or has made progress in curing the breach to an extent satisfactory to the nonbreaching party,
(2) Immediately upon any attempt by a party assign, delegate, sublicense or otherwi transfer this Agreement, the Licensed Software, the Related Documentation, or any of its rights or obligations under this Agreement without the prior writte consent of the other party,
(3) At a party's option, upon ten (10) days written notice of termination, if the other party becomes insolvent, executes an assignment for the benefit of credit
or becomes subject to bankruptcy or
receivership proceedings.
(b) Rights and Obligations Upon Termination. Up
termination of this Agreement:
(1) Buyer's obligations under paragraphs
3.3 ("Payment"), 2.6 ("Proprietary
Information") , 5.3 ("Confidentiality")
shall survive the termination,
(2) Buyer's Software License rights under Section 2 shall immediately cease,
(3) Buyer shall delete the Licensed Softwar from all other software into which it h been merged; shall immediately deliver Itron or destroy all copies of the Licensed Software and Related Documenta provided that, upon Itron's written consent, Buyer may retain one copy of t Licensed Software and Related Documenta for archive purposes only; and
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(4) Buyer shall, within one (1) month after the termination of this Agreement,
certify in writing to Itron that, to thc
best of Buyer's knowledge, all copies oj the Licensed Software and Related Documc tion have been returned or destroyed,
except for any archive copy permitted under paragraph 5.7 (b) (3) .
(c) Each party's right to terminate as expressed this Agreement shall be in addition to any oi rights, legal or equitable, provided by law.
5.8 Term and Termination after System Test
Upon delivery and installation of the System at
Buyer's premises, Itron and Buyer will commence a test of the System in accordance with the testing procedure outlined and agreed to in the System Specification Document.
If at the completion of the test period the Systei
does not perform substantially in accordance with the System Specification Document and such perfor! deviations have not been corrected within a mutua
agreeable period of time from the completion of t
test period, then Buyer may notify Itron in writi of its intent not to accept the System, in which
case, Itron shall remove all Equipment and Licens
Software from the premises and refund all monies to Itron by Buyer for said Equipment, Licensed Software, related shipping charges and applicable
taxes. In such case, Buyer's total liability for payment to Itron shall be for labor for on-site services, and travel and per diem expenses accrue
up to the time of Equipment and Licensed Software
removal. In any case, this amount is not to exce the amount agreed to for such services in the Sys
Specification Document. It is agreed that deviat from performance of the System, as specified in t System Specification Document, which would cause Buyer to cancel this Agreement would be substanti in nature and that a list of "minor" Licensed Sof inconsistencies (bugs) may be provided to Itron b
Buyer prior to the completion of the test phase.
These inconsistencies will be corrected by Itron a mutually agreeable period of time following completion of the test phase, but these items
shall not be cause for Buyer to cancel the Agreerr
SECTION 6: General
6.1 Force Majeure. Neither party hereto shall be
responsible for any failure or delay in the perfc
of any obligation hereunder if such failure or
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delay is due to a cause beyond the party's control including, but not limited to acts of God, flood, fire, war, third-party suppliers, labor disputes c governmental acts.
6.2 Notices and Requests. All notices and requests in connection with this Agreement shall be given or made upon the respective parties in writing and shall be deemed to be given as of the day such notice or request is deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested, addressed as follows:
Buyer: City of Carlsbad
2075 Las Palmas Carlsbad, CA 92009-1519 Attn: Larry Wiley
Itron: Itron Inc.
E. 15616 Euclid Ave. Spokane, WA 99216 Attn: Contract Administrator
or to such address as either party designates by
written notice to the other.
6.3 Entire Agreement. Each party acknowledges that ii has read this Agreement, understands it, and agret
to be bound by its terms and further agrees that :
is the complete and exclusive statement of the
agreement between the parties, which supersedes ai merges all prior proposals, understandings and al. other agreements, oral and written between the
parties relating to the subject matter of this Agreement. This Agreement may not be modified or altered except by a written instrument duly execu.
by both parties.
6.4 Governing Law. This Agreement and performance hereunder shall be governed by and construed in
accordance with the laws of the State of Californ
6.5 Enforceability and Attorneys' Fee. If any provis in this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. In the event of litigation to enforce the terms o this Agreement, the prevailing party shall be
entitled?to a reasonable attorney's fee, both at the time of trial and on appeal.
exercise in any respect any right provided for herein shall not be deemed a waiver of any right
hereunder.
6.6 No Waiver. The failure of either party to
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6.7 Assignment. This Agreement and the rights and
duties hereunder shall not be assignable by the
parties hereto except upon written consent of the
other.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement the date and year first above written by their dul
authorized representative.
'RL AD
BUYER: CITY BY /@jJ[L 0 k f \
Title &&u&c -A. A&&KS. MHY4
ITRON : ITRON, INC.
BY
Title
E!i! CITY CITY OF ATTORN€ cpri! 1.7 .<D
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SCHEDULE A
Itron's System Specification Document
(to be attached hereto)
SCHEDULE B
Licensed Software
. (includes programs, documentation and training manuals)
Unit E:
License L P
1. 1 850-0250-000 ENCORE RDMS Software License $2,500 $
Item Qty Model Description Price -
0 0
SCHEDULE C
Equipment
Unit E2
Purchase PC
Item Qty Model Description Price - PI
1. 3 650-0011-001 DataCap H w/256K RAM $2,500 $ 7
2. 1 650-0010-001 DataCap H w/256K RAM 3,490 - without cassette backup
with cassette backup
I
3. 1 610-0001-002 DCMU 300 with 3 data ports 1,645 1
4. 1 500-0052-005 Battery Charging System 604 475
5. 1 510-0006-004 PC Interface Kit 500
TOTAL $1:
SCHEDULE D
Implementation Charges
Implementation Charges Total $5,C
* Includes four (4) days of off-site training for up to four (4) Uti personnel at Itron's headquarters in Spokane, Washington; Programmir consultation at Itron's headquarters in Spokane, Washington; and up (5) days training, expenses and consultation by Itron Project Manage Utility site.
One (1) round trip airfare shall be billed at actual, as incurred.
0 *
CONTRACT NO. ENC-1087-127
TERMS AND CONDITIONS FOR SYSTEM SUPPORT SERVICES BETWEEN CITY OF CARLSBAD
& ITRON, INC.
1. TERM OF AGREEMENT
This Agreement shall be effective from the date accepted by ITRON and shall remain in force for at least one year after the warranty expiration date on the initial Equipment (the "anniversary date"). The Agreement may be terminated by either party upon ninety (90) days prior written notice. If written notice is not received from the Customer ninety
(90) days prior to the initial anniversary date or any subsequent anniversary date, the terms and conditions of
this Agreement shall be automatically extended for an
additional twelve (12) month period. Except as otherwise
provided herein, ITRON may withdraw individual items of
Equipment or Licensed Software from this Agreement at the
end of the first year after service for each item has commenc or thereafter, upon ninety (90) days prior written notice to
the Customer. When an item of Equipment or Licensed Software is withdrawn from the Agreement, the Customer shall receive
credit for any charges already paid for service beyond the
date of withdrawal.
2. SUPPORT SERVICE
ITRON shall provide Support Service to keep the Equipment and
Licensed Software, listed on Schedule A, in good working orde
Support Service shall include labor, parts, tools, and test
equipment necessary for the service and support of the items being serviced. New or equivalent to new standard parts
shall be used in effecting repairs. Parts shall be provided
on an exchange basis and replaced parts shall become the property of ITRON. The Customer shall provide facilities for storage and safekeeping of spare parts and test equipment and
a working area for the use of ITRON's Field Engineers within a reasonable distance of the Equipment to be serviced.
3. QUARTERLY CHARGES
Support Services for each item of Equipment and Licensed
Software shall commence upon the expiration of the warranty
period for said item. The quarterly charge, as specified in
Schedule A for the current quarter, is due and payable upon expiration of the initial warranty period on the initial Equipment. Upon completion of all warranty periods, (if more than one Installation date) Customer shall receive a credit on the initial quarterly charge paid. Such credit shall be based upon the actual warranty expiration dates. Ar
subsequent quarterly charge shall be due and payable upon the
first day of each quarter. ITRON may not change the quarter1
charge prior to the initial anniversary date, and thereafter
only upon written notice at least ninety (90) days prior to e -1-
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subsequent anniversary date. Any adjusted rate may not exceed ITRON's published rates for commercial users in effect
on the adjustment date. Any such adjusted rates shall become effective on the date specified in the notice unless the
Customer exercises the option to withdraw the affected items
from this Agreement. There shall be no additional charge for travel expense associated with services performed except that actual travel expense shall be charged in those instances when
the site at which the item is located is not normally accessib
by private automobile or scheduled public transportation.
4. TAXES
In addition to the charges due under this Agreement,
Customer agrees to pay amounts equal to any taxes and duties resulting from this Agreement, or any activities hereunder,
exclusive of taxes based upon net income.
5. RISK OF LOSS
Customer shall bear the entire risk of loss, damage, destructi
or theft of the Equipment or Licensed Software for any reason,
other than negligence of ITRON, its employees or authorized
agents, during the term of this Agreement. Customer agrees that ITRON shall not be liable to Customer for loss of profit
or other financial loss resulting from the loss of business
which may be caused, directly or indirectly, by the inadequacq of any items of Equipment or Licensed Software for any purpose
or any use thereof or by any deficiency or defect therein.
6.
ITRON shall have full and free access to the Equipment and
Licensed Software to provide service thereon. If persons other than authorized ITRON representatives shall perform
maintenance or repair of the Equipment or Licensed Software,
and as a result further repair by ITRON is required, such further repairs shall be made at ITRON's applicable time and
material rates and terms then in effect. The Customer represc that it is the owner of the Equipment serviced under this
Agreement, or, if not the owner, has authority from the owner to include the Equipment under this Agreement.
7. ENGINEERING CHANGES
Engineering changes or Licensed Software releases, determined
applicable by ITRON shall be controlled and installed by ITROE at no additional charge to Customer on Equipment or Licensed
Software covered by this Agreement.
providing notice subject to written confirmation by ITRON,
elect to have only mandatory changes, as determined by ITRON,
installed on Equipment or Licensed Software so designated. I: reserves the right to charge, at its applicable time and mate] rates and terms then in effect, for additional service time ai replacement parts when such additional service and parts are
the
ACCESS TO THE EQUIPMENT AND LICENSED SOFTWARE
The Customer may, by
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required due to the conversion from one ITRON model to another
or the installation or removal of an ITRON feature whenever
any of the foregoing was performed by other than ITRON.
8. TRANSFER OF EQUIPMENT
Any transfer of Equipment designated for stationary use by Customer requires written notification to ITRON within thirty
(30) days of such transfer. Customer shall be responsible
for knowledge of the location of each item of Equipment and
for any damages or malfunctions arising from such relocation.
9. EQUIPMENT CHANGES
Changes requested by Customer, in Equipment specifications,
attachments, or features may result in an adjustment of the
specified basic quarterly charge.
10. EARLY TERMINATION
Any of the following events shall constitute default:
(a)
(b)
Failure by Customer to pay the quarterly charge within fifteen (15) days after the due date. Any breach or failure by a party to observe or perform any other obligations hereunder and the continuance of
such default for fifteen (15) days after notice in
writing to that party of the existence of such default,
unless the party in default has made progress in curing
the default to an extent satisfactory to the
non-defaulting party. Insolvency or bankruptcy of a party or the making by
that party of an assignment for the benefit of creditors
or the consent of that party to the appointment of a
trustee or receiver for that party or for a substantial part of its property.
reorganization, arrangement or insolvency proceedings.
(c)
(d) The institution by or against a party of bankruptcy,
Upon the occurrence of such default, the other party may, at option and without notice to or demand on the party in default, declare this Agreement terminated and thereupon all accrued charges shall become immediately due and payable.
11. GENERAL PROVISIONS
(a) Modification of Equipment or Licensed Software ITRON's obligations hereunder shall be void in the event Customer, without ITRON's prior written approval, makes any modification, alteration or change upon the Equipmen or Licensed Software or uses additional attachments, features or devices in connection therewith.
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(b) Sublease and Assignment Neither party may sublease or assign its rights or obligations under this Agreement without the written
consent of the other party. Upon an assignment by ITRON, it thereby shall transfer all its rights hereundei free of all defenses, setoffs, or counterclaims which
Customer may be entitled to assert against ITRON. No
such assignee shall assume or undertake any obligation of ITRON created hereunder without assignee's written
acceptance thereof expressed in the instrument of
assignment; and Customer shall continue to look to ITRON
for performance of such obligations. Customer agrees to honor any assignment made hereunder; and thereafter, to
pay all amounts due by it to assignee, to the extent of
its rights and subject to Customer's rights hereunder.
A successor in interest by merger, operation of law, or
purchase of the entire business of either party shall
acquire all interest and be subject to all obligations
of such party hereunder.
This Agreement is binding upon and shall inure to the
' benefit of the parties, their successors in interest and
assigns (as limited by ll(b) above).
(d) Interpretation of Agreement
This Agreement shall be interpreted under and enforced
in accordance with the laws of the State of California.
If any part of this Agreement is judicially determined
to be invalid, the parties agree that all remaining parts shall retain their full force and effect.
No part of this Agreement may be deleted, changed or
expanded without the express written consent of both parties.
No right or remedy herein conferred upon or reserved to
either party is exclusive of any other right or remedy ht
or by law or equity provided or permitted; but each
shall be cumulative of every other right or remedy given
hereunder or now or hereafter existing at law or in equity or by statute or otherwise and may be enforced
concurrently therewith or from time to time.
(c) Successor Liability
(e) Severability
(f) Modification of Agreement
(9) Concurrent Remedies
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(h) Notices
All notices in connection with this Agreement shall be
given or made upon the respective parties in writing
and shall be deemed to be given as of the day such
notice is deposited in the U.S. mails, postage prepaid,
certified or registered, return receipt requested, addressed as follows:
CUSTOMER: CITY OF CARLSBAD
2075 Las Palmas Carlsbad, CA 92009-1519 Attn: Larry Wiley
ITRON : ITRON, INC.
E. 15616 Euclid Ave.
Spokane, WA 99216
Attn: Contract Administrator
(i) The terms and conditions of this Agreement supersede
those of all previous agreements between ITRON and
Customer with respect to service of the Equipment and
Licensed Software. Any terms and conditions appearing o
Customer's purchase orders or authorizations shall not
apply to or become a part of this Agreement.
12. RESPONSIBILITY
ITRON shall not be responsible for any loss, property damage,
personal injury or expense, including legal expense, incurred
by any employee, agent, invitee or licensee of Customer or any other person other than employees or authorized agents of
ITRON regardless of how caused, if arising out of the use or
possession of the Equipment or Licensed Software by Customer,
unless such loss, property damage, personal injury or expense
including legal expense, is caused by the fault or negligence
of ITRON, its employees or authorized agents.
13. EXCLUSIONS
(a) Support Service under this Agreement shall not include electrical work or utility change external to the Equipment, nor:
1) The furnishing of supplies or accessories; painting or refinishing the Equipment or furnishing material
thereof;
2) Making the Customer sponsored specification changes or adding or removing accessories, attachments or
other devices;
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3) Performing services connected with relocation of
Equipment, repair of damage resulting from accident, transportation subsequent to delivery, neglect,
misuse or abuse, lack of reasonable care, failure
of electrical power, air conditioning, or humidity control, causes other than ordinary use, or failure or malfunction of attached, related, collateral or
ancillary equipment not covered by this Agreement. 4) Service which would be impractical for ITRON's Field Engineers to render because of alterations in the Equipment or its connection by mechanical or electrical means to another machine or device.
(b) ITRON is not responsible for Equipment or Licensed Software failure or failure to render service due to causes beyond control of ITRON. ITRON WILL NOT IN ANY EVENT BE LIABLE TO THE CUSTOMER FOR SPECIAL, CONSEQUENT12 OR EXEMPLARY DAMAGES.
14. OTHER SERVICE
When the Customer requests service outside the scope of this
Agreement, it shall be furnished at ITRON's applicable time and material rates and terms then in effect.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement by their duly authorized representative.
CUSTOMER: CITY
BY
Title CuL/MA . A&-&& MevdR
Date
ITRON : ITRON, INC.
BY
Title
Date
e e
>
SCHEDULE A
Equipment and Licensed Software Support Charges
Total Item Qty Model Description Quarterly C
1. 3 650-0011-001 DataCap H w/256K RAM $188.
without cassette backup
119 I 2. 1 650-0010-001 DataCap H w/256K RAM
with cassette backup
49 #
14
3.
15
4.
150
5. 6. 1 850-0250-000 ENCORE RDMS Software
TOTAL $536
1 610-0001-002 DCMU 300 with 3 data ports
1 500-0052-005 Battery Charging System 604
1 510-0006-004 PC Interface Kit
-*a- . .-
: 4.1, f:
%-. Ll-2 7
&dad
/q-lAm&+a,
-ew vu wnum-wwnw - nubaww
HAND-HELD ELECTRONIC METER
Adopt Resolution No .J~-/JO accepting proposals and awarc contract in the amount of $35,000.00 to ITRON of Spc
Washington, for the Encore Electronic hand-held meter rc
ITEM EXPLANATION:
At the present time the Utilities 6 Maintenance Department, Division is reading and recording sixteen thousand (16,000) meters each month, This task requires three (3) emp: working fifteen (15) days to complete. Meter recorc
maintained in books with each meter service in the City 1
its own meter page. The meter readers read and record each
reading and compute the monthly consumption in the field
finished meter book is delivered to Finance to begin the b
process. Finance checks each meter book, adds all new accc
makes additions for new move-ins and move outs. The p billing process requires two (2) Finance staff four (4 each month to key punch the data collected in the fi complete the billing cycle.
This time consuming process prompted representatives fr
Utilities CU Maintenance and Finance Departments to inves
new and improved methods for meter reading and billing. Th was to investigate and recommend a system that would improv flow, eliminate mathematical errors, improve reliability of
readings, improve meter reading efficiency and eliminate th consuming key punch process for billing.
In addition to improving the meter reading and billing proc staff also desired a system which was capable of being us other purposes such as inventory control, and the pa management rating process.
During early 1987, City representatives reviewed demonstr )o from various firms specializing in Electronic Meter E
After considering all of the presentation ct a a determining the needs of the City, a request for proposal was developed and distributed on September 17, 1987 to 4
that produced electronic meter reading systems. Thr 2 responses were received by the requested date, October 1,
from the following firms: 0 F 0 a (A) Radix Corporation i (B) Syscon Corpo*- tion 0 L 3 0 0
ow
(C) Itrcn, -:ne,
r
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PAGE 2 OF AB rc 9381
An evaluation committee consisting of staff representatives f
Streets, Water, Information Systems and Finance were provi copies of the proposals to evaluate against a previou established criteria. Copies of the individual evaluations attached.
The system submitted by Itron, Incorporated met or exceeded of the City's specifications; was the most versatile system
was unanimocsly recommended by the committee.
Staff found Itron had these distinct features making 1 superior product .
(A) Specific keyboard, user friendly, easy to underst and operate. (B) Hand-held unit built specifically for utility use.
(C) If hand-held unit is damaged, data cassette back-uI
provided. No other vendor met this requirement. (D) "Easy Build" software provides for other uses sucl
Pavement Rating, Street Sign Inventory, Materii
Building Facilities, Maintenance and Sewer Lift Stal
Management and Rating. No other vendor prov: software with this level of versatility. (E) Larger capacity - For future growth
Twice as large as other systems (F) Local service center - Westminister, California
(G) Superior training, which will enable the system tc
implemented faster and with minimum errors.
The total costs, including tax and annual maintenance costs
each system are:
ITRON SYSCON RADIX
Basic System $18,635 $15 , 840* $16 , 440 IBM/PC System 8,742 8,742 8,742 Additional Travel Cost 2,850 - -
2,144 1,505 2,136 Annual Maintenance Costs Tax 6% 1 , 643 1,474 1,511
TOTAL COSTS $34 , 014 $27 , 561 $28,829
*Both Syscon and Radix were non-responsive to the require that a data loss contingency be provided for in the hand- devices. This feature prevents the loss of previously colle
data in the event of a failure of the hand-held devices.
Syscon and Radix software systems are also non-responsive tc
specifications, in that the software provided is not adapt for other uses.
PAGE 3 OF ABt 73fl
Implementation of this system will save an estimated $12,000annually in the Finance Department and an incalculable, butlikelysignificant,amount in the Utilities and MaintenanceDepartment.Based on the estimated savings in the FinanceDepartment alone,the cost of the system can be amortized in lessthan 3 years and well within the 5 to 7 year life expectancy ofthe system components.
FISCAL IMPACT:
Funds for acquisition of Hand-Held Meter Reading Systems were notincluded in the 1987/88 budget.Funds in the amount of$35,000.00 are available in the unreserved retained earnings ofthe Water Enterprise Fund.
EXHIBITS:
1.Resolution No. yz-)Jo.2.Unweighted Criteria Evaluation.3.Bid Evaluation,
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RESOLUTION NO. 88-120
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSE
CALIFORNIA, ACCEPTING PROPOSALS AND AUTHORIZING
EXECUTION OF A CONTRACT FOR HAND-HELD METER READING SYSTI
WHEREAS, proposals have been received by the Cit]
Carlsbad, California, for a hand-held meter reading sys
and
WHEREAS, the proposal that was the best and I
versatile system and the most responsive to the needs of
City was submitted by Itron of Spokane, Washington for
Encore Electronic Hand-Held Meter Reading System in
amount of $35,000.00; and
WHEREAS, funds for acquisition of the system were
included in the 1987/88 budget and are available in
Unreserved Retained Earnings of the Water Enterprise Fun(
NOW, THEREFORE, BE IT RESOLVED by the City COUnCi.
the City of Carlsbad, California, as follows:
1. The above recitations are true and correct.
2. The City Council does hereby approve
authorization to transfer this $35,000.00 into the W
Maintenance and Operation account number 501-820-6310-
(Capital Outlay), for the purchase of the Encore Electr
Hand-Held Meter Reading System,
3. The proposal of $35,000.00 by Itron of Spok
Washington, for the Encore Electronic Hand-Held M
Reading system is hereby accepted and the Mayor and the
Clerk are hereby authorized to execute a contract theref
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PASSED, APPROVED AND ADOPTED by the City Council of th
City of Carlsbad, California, at a regular meeting held o
the 12th day of April , 1987, by the followin
vote, to wit:
AYES: Council Members Lewis, Kulchin, Mamaux and Larson
NOES: None
ABSENT: Council Member Pettin
ATTEST:
A~WdkC~~~er~
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