HomeMy WebLinkAboutOrcom Systems Inc; 1997-07-02;June 23,1997
TO:
FROM:
VIA:
CITY MANAGER
Administrative
General Manager
CONTRACT FOR UPGRADE TO ITRON METER READING SYSTEM
Reauested Action
Attached for your review and signature is a contract with Orcom Systems, Inc., for the
purchase and training of upgrades to our ltron Meter Reading System.
Item Explanation
In accordance with one of the City Council/Water Board’s goals, our office is upgrading
its electronic meter reading system for higher efficiency and to keep pace with software
technology. Staff has determined that it is more cost effective to simply upgrade the
existing system rather than buy a new one. The current system is manufactured by
ltron, Inc., whose equipment is considered “state-of-the-art” within the industry.
The attached contract is with Orcom Systems who was selected by ltron to be their
distributor. Orcom will supply the hardware, software and training as defined in the
contract. The Purchasing and City Attorney Offices have reviewed and approved this
contract.
Fiscal Impact
The total contract cost is $24,994. Funds have been appropriated in this year’s Water
Enterprise Operating Budget to cover these costs.
If you have any questions, please call me at extension 110.
CLINT PHILLIPS
Attachment
.......
~
.......... :::.:::::::::.:.:.:.:::.:.:.: ..... :.:.:.:.:.:.:.:.:.: .. ... ......... : per,, .... .: :. .:. : ................ ................... ... :. .:.i::::.I:::I:~.::::.~::::.::..: .: ._: :..:. :y: ,; : y: ,s ::j.:..j.:. .,: j .,: : . ::.::.::::
Aon Risk Services, Inc. of OR
1211 SW Fifth Ave., Suite 600
Port lend, OR 97204
REE
503-224-9700
OrCom Systems, Inc.
1001 S. W. Disk Drive
Bend OR 97702
~
..:.:.:::.:::j.::: . . . . . .._..... :,:::,y:.:.:.:.:.:.:.: :,:,: ,:.:. >: :.: .,.,.,.,.,. .., ,::.:.:.:.:.:.:.:.:.:::. .‘.:.:.:.:.‘.:.::. .:.:.....:...,.:: .,., ., . . . . . . .,.,.,.....,., :....:.:.:.:.y.:.\:: ,.:: . . . . . . . . . . . . . . . ,. I) .:.:. .: ,. . .
THISISTOCERTIFY THATTHEPOLlClESOFlNSURANCELlSTEDBELOWHA INDICATED.NOTWITHSTANDlNGANYREOUlREMENT.TERMORCONDITIOI
CERTIFICATE MAY BEISSUEDORMAY PERTAIN, THE INSURANCE AFFOR[
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWNMA
OWNER’S &. CONTRACKXS PRO1
ALL OWNED AUTOS
SCHEMllED AUTOS
EXQESsLIABLIlv
UMBRELLA FORM
EMPLOVERS’LIABKITV
IHE PROPRIETOR/
PARINERS/EXECUlIVE
OFFICERS ARE:
OTHER
POLlcV NUMBER
35323024 l/01/97
73237998
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE A OLICIES BELOW.
COMPANY C
COMPANY
D :.:, :. . . :..:; ‘: ,. ,. :.. .. ::.;::y:: ‘. : ‘.‘.: :. :.‘. : : :.:: ::: . : .
~FANYCONTRACTOROTHERDOCWENTWlTHRESPECTTOWHlCHTHlS D BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
HAVE BEEN REDUCED BY PAID CLAMS
POLlCV EFFECTIVE
DATE (MMIDDIVV)
l/01/97
‘OLlCV EXPRATlON
DATE (MMIDDIVV) LIMITS
GENERAL AGGREGATE E 2000000
l/O l/98 PRODUClSCOMPIOP AGG $ 2000000
l/O l/98 /
BODILY INJJRY
(Per amdenl) s
PROPERTY DAMAGE s
AUTO OKY EA ACCIDENT 0
OTHER THAN AUTO ONLV ’ .:
EACH ACCIDENT S
I AGGREGATE 1 S
EACH OCCURRENCE (S
AGGREGATE IS
Ci tv of Carlsbrd
SHOULD ANY OF THE ABOVE DESCRIBED PDLICLS BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF. THE ISSUING COMPANY WILL ENDEbVOR TO MAK
30 DAYS WRITTEN NOTICE TO THE CERTlflCATE HOLDER NAMEDTD THE LEFT.
I
Munici pal Water District I- BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSENO DBLIGATlON OR LIABKITV
Attn: Clint Phillips
5950 El Camino Real
OF ANY KIND UPON THE COMPANV. ITS AGENTS OR REPRESENTATIVES.
356805000
Carlshad CA 92008 . . . . . . . . . . . . . ...\.. , .,... ~l:~~~~~:i:~~~~~~~~:~:~~~~~:~:.~~~~,~,~,~~~.i;:ilr ,,\,
AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is, made and entered into as of the 2~Jo day of
&IA I 1997, by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a
municipal corporation, hereinafter referred to as “District”, and ORCOM SYSTEMS,
INC., hereinafter referred to as “Contractor.”
RECITALS
District desires to replace and upgrade its ltron Datacap Meter Reading System
by acquiring the FS/2 ltron Meter Reading System using MV-RS Software. As a
distributor for the manufacturer, ltron, inc., the District has selected Orcom Systems,
Inc., as the Contractor; and Contractor possesses the necessary skills and qualifications
to provide the services required by the District;
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, District and Contractor agree as follows:
1. CONTRACTOR’S OBLIGATIONS
The Contractor will provide professional services as further described in the
Contractor’s proposal of services incorporated herein by reference for the delivery,
installation, implementation and training of the FS/2 ltron Meter Reading System.
Contractor also agrees as follows:
A. That from the date of shipment, the System proposed will perform in a
manner as described in the Contractor’s proposal and accompanying literature. If the
System does not perform at the described level thirty (30) days after used in a
production capacity as outlined in the Contractor’s proposal and described in
Optional Agreement - Itron.doc 1 Rev. 4/l 9196
. * *. . ,
accompanying literature, the Contractor, at no increased cost to the District, will add or
upgrade equipment as necessary to meet the described standard.
B. That all equipment will be delivered to the Carlsbad Municipal Water
District Administrative Offices no later than one hundred twenty (120) days after the
Contractor receives a City of Carlsbad purchase order and signed ltron End User
License and Warranty Agreement (attached Exhibit “A”). The Contractor will advise the
District of the estimated delivery date and actual delivery date at least one (1) week 1
prior to that date.
C.
3 The date for installation and training will be
set once the System’s FromHost Files have been approved by the Contractor’s
installer/trainer.
D. That at the times and places mutually agreed upon by the parties, the
Contractor shall provide training and consulting services to District personnel and shall
furnish all training materials necessary to accomplish the training of District personnel in
the use of the System.
E. To hereby assign Itron, Inc.‘s, manufacturer’s warranty that the equipment,
along with the software, will be free from any known errors and will operate as described
in the Contractor’s proposal and its accompanying literature, after installation and setup.
ltron, Inc., will offer an annual service agreement (attached Exhibit “A”) covering
equipment maintenance and software support as described in Section 6 of the
Contractor’s proposal. The cost for the first year of the agreement will be $3,312. If the
Optional Agreement - Itron.doc 2 Rev. 4/I 9196
District chooses to enter into the agreement, the agreement will begin the day after
expiration of the manufacturer’s warranty and will end after 365 days.
2. DISTRICT OBLIGATIONS
The District shall purchase the following items at the indicated price:
ltro ltron FS/2 Meter Reading System including:
(5) FS/2, 2 MB, 1x12 Pin Ports
(5) FS/2 PN Cradle with Power Supply
FS/2 Cradle to PC-AT 9 Pin Cable
FS/2 Cradle Join Kit
MV-RS Software for 1-14 Meter Readers
Implementation & Training for 5 Days (on-site in Carlsbad)
Total System Price:
Trade-in Credit:
Tax: ‘.
Shipping:
Total Delivered Price:
‘.No sales taxes charged in Oregon.
$17,025
$ 2,475
$ 60
$
$ 2,5::
$ 5,130
$27,214
($2,300)
$0
$80
$24,994
3. DESCRIPTION OF SYSTEM
The System in Paragraph 2 of the contract will be as described in Sections 3, 4,
and 5 of the Contractor’s proposal and accompanying literature.
4. FEES TO BE PAID TO CONTRACTOR
The total fee payable for the services to be performed shall be $24,994. No other
compensation for services will be allowed except those items covered by supplemental
agreements per Paragraph 7, “Changes in Work “.
Optional Agreement - Itron.doc 3 Rev. 4119196
-
5. DURATION OF CONTRACT
This agreement shall extend for a period of six (6) months from date thereof. The
contract may be extended by the District General Manager for one additional six (6)
month period or parts thereof, based upon a review of satisfactory performance and the
District’s needs. The parties shall prepare extensions in writing indicating effective date
and length of the extended contract.
6. PAYMENT OF FEES
Payment to the Contractor for purchase of the hardware and software will be due
upon receipt of all items as listed in Section 7 of the Contractor’s proposal. Contractor
will bill for hardware and software upon delivery. Charges for implementation, training
and travel expenses will be billed upon completion of said implementation and training.
7. CHANGES IN WORK
If, in the course of the contract, changes seem merited by the Contractor or the
District, and informal consultations with the other party indicate that a change in the
conditions of the contract is warranted, the Contractor or the District may request a
change in contract. Such changes shall be processed by the District in the following
manner: A letter outlining the required changes shall be forwarded to the District by the
Contractor to inform them of the proposed changes along with a statement of estimated
changes in charges or time schedule. A standard Amendment to Agreement shall be
prepared by the District and approved by the District according to the procedures
described in Carlsbad Municipal Code Section 3.28.172. Such Amendment to
Agreement shall not render ineffective or invalidate unaffected portions of the
agreement.
Optional Agreement - Itron.doc 4 Rev. 4119196
8. COVENANTS AGAINST CONTINGENT FEES
The Contractor warrants that their firm has not employed or retained any
company or person, other than a bona fide employee working for the Contractor, to
solicit or secure this agreement, and that Contractor has not paid or agreed to pay any
company or person, other than a bona fide employee, any fee, commission, percentage,
brokerage fee, gift, or any other consideration contingent upon, or resulting from, the
award or making of this agreement. For breach or violation of this warranty, the District
shall have the right to annul this agreement without liability, or, in its discretion, to
deduct from the agreement price or consideration, or otherwise recover, the full amount
of such fee, commission, percentage, brokerage fees, gift, or contingent fee.
9. NONDISCRIMINATION CLAUSE
The Contractor shall comply with the state and federal laws regarding
nondiscrimination.
10. TERMINATION OF CONTRACT
This agreement may be terminated by either party upon tendering thirty (30) days
written notice to the other party. In the event of such suspension or termination, upon
request of the District, the Contractor shall assemble the work product and put same in
order for proper filing and closing and deliver said product to District. In the event of
termination, the Contractor shall be paid for work performed to the termination date;
however, the total shall not exceed the fee payable under Paragraph 4. The District
General Manager shall make the final determination as to the portions of tasks
completed and the compensation to be made.
Optional Agreement - Itron.doc 5 Rev. 4/19/96
11. CLAIMS AND LAWSUITS
The Contractor agrees that any contract claim submitted to the District must be
asserted as part of the contract process as set forth in this agreement and not in
anticipation of litigation or in conjunction with litigation. The Contractor acknowledges
that if a false claim is submitted to the District, it may be considered fraud and the
Contractor may be subject to criminal prosecution. The Contractor acknowledges that
California Government Code sections 12650 et seq., the False Claims Act, provides for
civil penalties where a person knowingly submits a false claim to a public entity. These
provisions include false claims made with deliberate ignorance of the false information
or in reckless disregard of the truth or falsity of information. If the District seeks to
recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation
costs, including attorney’s fees.
The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026,
.027 and 3.32.028 pertaining to false claims are incorporated herein by reference.
(initial)
12. STATUS OF THE CONTRACTOR
The Contractor shall perform the services provided for herein in Contractor’s own
way as an independent contractor and in pursuit of Contractor’s independent calling,
and not as an employee of the District. Contractor shall be under control of the District
only as to the result to be accomplished, but shall consult with the District as provided
for in the request for proposal. The persons used by the Contractor to provide services
under this agreement shall not be considered employees of the District for any purposes
whatsoever.
Optional Agreement - Itron.doc 6 Rev. 4119196
The Contractor is an independent contractor of the District. The payment made
to the Contractor pursuant to the contract shall be the full and complete compensation
to which the Contractor is entitled. The District shall not make any federal or state tax
withholdings on behalf of the Contractor or his/her employees or subcontractors. The
District shall not be required to pay any workers’ compensation insurance or
unemployment contributions on behalf of the Contractor or his/her employees or
subcontractors. The Contractor agrees to indemnify the District within thirty (30) days
for any tax, retirement contribution, social security, overtime payment, unemployment
payment or workers’ compensation payment which the District may be required to make
on behalf of the Contractor or any employee or subcontractor of the Contractor for work
done under this agreement or such indemnification amount may be deducted by the
District from any balance owing to the Contractor.
13. CONFORMITY TO LEGAL REQUIREMENTS
The Contractor shall cause all final reports to conform to all applicable
requirements of law: federal, state and local. Contractor shall provide all necessary
supporting documents, to be filed with any agencies whose approval is necessary.
Contractor agrees to allow District or its designated representative to monitor,
audit, review, and examine the methods, procedures, and results of Contractor.
14. OWNERSHIP OF DOCUMENTS
All plans, studies, sketches, drawings, reports, and specifications as herein
required will be delivered to the District. In the event that this agreement is terminated,
all documents, plans, specifications, drawings, reports and studies shall be returned to
the Contractor.
Optional Agreement - Itron.doc 7 Rev. 4/l 9196
15. HOLD HARMLESS AGREEMENT
Contractor agrees to indemnify and hold harmless the District and its officers,
officials, employees and volunteers from and against all claims, damages, losses and
expenses including attorney fees arising out of the performance of the work described
herein caused in whole or in part by any willful misconduct or negligent act or omission
of the Contractor, any subcontractor, anyone directly or indirectly employed by any of
them or anyone for whose acts any of them may be liable, except where caused by the
active negligence, sole negligence, or willful misconduct of the City of Carlsbad.
Contractor shall at his own expense, upon written request by the District, defend
any such suit or action brought against the District, its officers, officials, employees and
volunteers. Contractor’s indemnification of District shall not be limited by any prior or
subsequent declaration by the Contractor.
16. ASSIGNMENT OF CONTRACT
The Contractor shall not assign this contract or any part thereof or any monies
due thereunder without the prior written consent of the District.
17. SUBCONTRACTING
If the Contractor shall subcontract any of the work to be performed under this
contract by the Contractor, Contractor shall be fully responsible to the District for the
acts and omissions of Contractor’s subcontractor and of the persons either directly or
indirectly employed by the subcontractor, as Contractor is for the acts and omissions of
persons directly employed by Contractor. Nothing contained in this contract shall create
any contractual relationship between any subcontractor of Contractor and the District.
The Contractor shall bind every subcontractor and every subcontractor of a
Optional Agreement - Itron.doc 8 Rev. 4119196
subcontractor by the terms of this contract applicable to Contractor’s work unless
specifically noted to the contrary in the subcontract in question approved in writing by
the District.
18. PROHIBITED INTEREST
No official of the District who is authorized in such capacity on behalf of the
District to negotiate, make, accept, or approve, or take part in negotiating, making,
accepting, or approving of this agreement, shall become directly or indirectly interested
personally in this contract or in any part thereof. No officer or employee of the District
who is authorized in such capacity and on behalf of the District to exercise any
executive, supervisory, or similar functions in connection with the performance of this
contract shall become directly or indirectly interested personally in this contract or any
part thereof.
19. VERBAL AGREEMENT OR CONVERSATION
No verbal agreement or conversation with any officer, agent, or employee of the
District, either before, during or after the execution of this contract, shall affect or modify
any of the terms or obligations herein contained nor entitle the Contractor to any
additional payment whatsoever under the terms of this contract.
20. SUCCESSORS OR ASSIGNS
Subject to the provisions of Paragraph 15, “Hold Harmless Agreement,” all terms,
conditions, and provisions hereof shall inure to and shall bind each of the parties hereto,
and each of their respective heirs, executors, administrators, successors, and assigns.
Optional Agreement - Itron.doc 9 Rev. 4119196
21. EFFECTIVE DATE
This agreement shall be effective on and from the day and year first written
above.
22. CONFLICT OF INTEREST
The District has determined, using the guidelines of the State of California
Political Reform Act and the City of Carlsbad Conflict of Interest Code, that the
Contractor will not be required to file a conflict of interest statement as a requirement of
this agreement. However, Contractor hereby acknowledges that Contractor has the
legal responsibility for complying with the State of California Political Reform Act and
nothing in this agreement releases Contractor from this responsibility.
23. INSURANCE
The Contractor shall obtain and maintain for the duration of the contract and any
and all amendments insurance against claims for injuries to persons or damage to
property which may arise out of or in connection with performance of the work
hereunder by the Contractor, his agents, representatives, employees or subcontractors.
Said insurance shall be obtained from an insurance carrier admitted and authorized to
do business in the State of California. The insurance carrier is required to have a
current Best’s Key Rating of not less than “A-W” and shall meet the City of Carlsbad
policy for insurance as stated in Resolution No. 91-403.
A. Coveraaes and Limits.
Contractor shall maintain the types of coverages and minimum limits indicated
herein, unless a lower amount is approved by the City Attorney or City Manager:
Optional Agreement - Itron.doc 10 Rev. 4/I 9196
1. Comprehensive General Liability Insurance. $1 ,OOO,OOO combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits shall apply
separately to the work under this contract or the general aggregate shall be twice the
required per occurrence limit.
2. Automobile Liability. $1 ,OOO,OOO combined single-limit per accident
for bodily injury and property damage.
3. Workers’ Compensation and Employer’s Liability. Workers’
Compensation limits as required by the Labor Code of the State of California and
Employer’s Liability limits of $1 ,OOO,OOO per accident for bodily injury.
4. Professional Liability. Errors and omissions liability appropriate to
the Contractor’s profession with limits of not less than $1 ,OOO,OOO per claim. Coverage
shall be maintained for a period of five years following the date of completion of the
work.
B. Additional Provisions.
Contractor shall ensure that the policies of insurance required under this
agreement contain, or are endorsed to contain, the following provisions.
1. The Contractor shall furnish certificates of insurance to the District
before commencement of work.
2. The Contractor shall obtain occurrence coverage, excluding
Professional Liability which shall be written as claims-made coverage.
3. This insurance shall be in force during the life of the agreement and
any extension thereof and shall not be canceled without 30 days prior written notice to
Optional Agreement - Itron.doc 11 Rev. 4119196
the District sent by certified mail.
4. If the Contractor fails to maintain any of the insurance coverages
required herein, then the District will have the option to declare the Contractor in breach,
or may purchase replacement insurance or pay the premiums that are due on existing
policies in order that the required coverages may be maintained. The Contractor is
responsible for any payments made by the District to obtain or maintain such insurance
and the District may collect the same from the Contractor or deduct the amount paid
from any sums due the Contractor under this agreement.
24. RESPONSIBLE PARTIES
The name of the persons who are authorized to give written notices or to receive
written notice on behalf of the District and on behalf of the Contractor in connection with
the foregoing are as follows:
For District: Title: General Manacrer
Name: Robert J. Greanev
Address: Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008
For Contractor: Title: V.P. of Operations
Name: Orcom Svstems, Inc
Address: 1001 SW Disk Drive
Bend, OR 97702
25. BUSINESS LICENSE
Contractor shall obtain and maintain a City of Carlsbad Business License for the
duration of the contract.
Optional Agreement - Itron.doc 12 Rev. 4119196
26. ENTIRE AGREEMENT
This agreement, together with any other written document referred to or
contemplated herein, embody the entire agreement and understanding between the
parties relating to the subject matter hereof. Neither this agreement nor any provision
hereof may be amended, modified, waived or discharged except by an instrument in
writing executed by the party against which enforcement of such amendment, waiver or
discharge is sought.
/II
/If
/I/
/I/
/Ii
//I
/I/
iii
IfI
//I
I//
if/
//I
/II
/I/
/I/
//I
//I
Optional Agreement - Itron.doc 13 Rev. 4/l 9196
. -
.
Executed by Contractor this $& day of , 1997. -%hsl ~h’r’
CONTRACTOR: CARLSBAD MUNICIPAL WATER DISTRICT, a municipal corporation of the State of California
Orcom Systems, Inc. (name of Contractor)
By: 2?kiiAh-L (sign>re)
Marilyn Beem, President
(print name/title) ALETHA L. RAUTENKRANZ Secretary
By: 2 1997
Chris Weber, Executive Vice d \ Date
(printnameititle) President & Secretary
(Proper notarial acknowledgment of execution by Contractor must be attached.)
(President or vice-president and secretary or assistant secretary must sign for corpora-
tions. If only one officer signs, the corporation must attach a resolution certified by the
secretary or assistant secretary under corporate seal empowering that officer to bind the
corporation.)
APPROVED AS TO FORM:
RONALD R. BALL General Counsel
.
puty General Counsel
Optional Agreement - Itron.doc 14 Rev. 4/l 9196
. . ITRON, INC. EXHIBIT “A”
END USER LICENSE AND WARRANTY AGREEMENT
~AQeemenl.ismadelhii -Wd ’ W. keinafter ‘Bun’, and e 19- by and between lbm. btc., a Washington
. herei?after ‘find Us&. ?I% itm is in the businass of designing, manufadufng, kensing and selling electtunic and computer products whch are distributed to and users ,hereinaner l Distlibulof; WHEREAS.Oistrikrtorintendttopcovidasuct,eledrorricMdcamputsrprodudstoEndLlser,
L!!EF ltrorrrequiresEndUsarkexecutelhkEnd~LicanseandWanwtyAgreemenlpciottodeliverydIheeledronicmd~produdsb
NOW, TktEFORfZ, in cons&ration of the mutual txxenam and agwments hereinafter sat forth, fbun and End User hereby agrae as fofbws:
sdtware flow. functional description d Licensed Software, a ~finikmdinputandoufputfilestruduresandreccrdlayouts $uding the data defmitions.
Lmsad Software’. The program products in n&rina-readable
form and all other programs recurded on the media to be licensed to End User. induding, but nol limited to: (a) any form d ltnn written prog
and machine-readable code derived mm the source code a ramnvng . &ngwgesourcea&
otherwise licensed to End User and @) any subsequent modiiitions. corractions or revisii to the program products licensed lo End User by Bon. ‘Related Duwnentation’. Any hum program listings, +w charts, input and output forms, manuals, specifications, mstructions. arxt other materials, and any copies of any of the foragoing. in any medium, related to tha Equipment an& fkensed Software and delivered to the End User.
ffON 7 THE LICENSED SOFTWARE
21
22
23
24
2.5
License. ltmnhet&ygrantsbEndlJseranonexdusive,
nonfransferabla, pefpelual ricerlse to use lfe lkensed soflvm,
the Related Documfsntation. The Licensed Softwam, &Ming without
Documentatfm and methods d the sole and excfusive m d Bon and sflall not be sold, rewalell. diisf3d 01 otherwise
Ccmhcaled, diiy or indirectly, by End User b any parson, or insliMion whatsoever exced as sel forth fxarain.
EndUsermay,atitswnexpeftse
andisthepropertydlfmn(orandtx?rparlyvhohaskensadb tlmn). and that the proprietary infumatian is being ma& available toEndUserbyttroninconli&nceandsolelyanihebasisdEnd
Us&s confidential relationship with ftron. Tha proprietary fnfonwtionisconsidered ltrontobaatradesecretofftrtm. End
userwinnd x ‘eoro P rwisemakeavaiiable any Licensed Sdtware u elated Downentation, in any fam, except as required by law or judicial a govemmental order, without Bon’s *
Et
w&ten consent, except to employees a axrsuttants d End
r who93 access to the information Is necessary lo enable End User to exercise its rights under this License.
SECTfON 3. PAYMENT
End User acknowkdges that Distributor will provide paymant to Bun on End Users behalf lo provide consideration d this Agraement and that End User is the baneliciary of such payment. End User further understands that End User is reimbursing fMributor for such payment as part of End User’s agreement for obtainii the Equipmenl and
Limsed !Mtware.
SEClfON 4. WARRANTY AND WARRANTY EXCLUSIONS 4.1
42
JVanardy. Hrcn warrants that, for the periods set forth below horn
the date of shipment lrom ftron. each item of Equipment till be free fmm dalects in material and workmanship and the Licensed Software shall perlorm substantially in adance with the functional Specification Document:
upsraded Equipmefi All new Equipment and Licensed Software 14months
ftmr~ shall repair or provide an equivalent replawnar# d any item dEquipmentandLicensedSofhwedaemeddafectiveatno
WHETHER EXPRESS, IMPLIED OR STATUTORY, BfCLUDfNG BUT NOT WfTED TO UPLfED WARRANTIES GF YERCtfANTABlfJTY AND FfTNESS FOR A PAMfAR PURPOSE OR ANY IMPUED WARRANTY ARfSfNG FROM
CD&fG~o;~;FORMANCE, COURSE OF DEALfNG DR
aervicasareavaitabb,theycanbepmvfdedby&nrndsrthis Agreement at ttronk then applicable time and mate&t cMgas and travel exoenses. R&k d damage or increase in service time caused by failure lo continually provide a suitabte installation envirownfznt. Repair ot damage or increase in service time caused by the usedtheEqurpmentacLicensedSoMarefcxdharthan data prwssing purposes for whii designed; a neglect or misuse.
Repair d damage caused by accident a disaster, which indudes. but is nol limited to bra, flood, submersion in water,
.
(4
Mid. fighckg, lfampcah -mequenl lo deliveq, or facamajelue. fnspedian d allemd Equffxwnt, repair d damage a &reaseinswicetimecauredbyattwtionsnotautho&d
by bran, which afterations indude, twt are y ff$~l;~~ dWiStiOflflUIl~Sphysical.- Equipmerldesign. Repair d damage a incmsainservia3timeaausedbyhe cmmionfrcrnoneftmntnodeltoanotherof Uw installation arertxWdanhWue~ranyqItheb.nqohg
~=fyp~~r~~a@arrqwwwdq*. asaaabdwllhha mmngema~arek@imdEq@nmt
ON 5. &HE AND QBLIGATfm
h&Q& llron Will defend End User against a claim fhafEqu@nanfalirmsedSofhwesuppliedhereudertirbges rU.S.ment.ami&t.badesewtaottmrxowietarvmrtv
5.1
.\
c;
52
5.3
5.4
I-
( ‘-- mm3
flghl&Uufthe&i~~saperatimpursuGtbrc&mt’~ release and madifiiticm level d any Licensed Sdtwam supptii by I@ infhgas a U+ patent, copyriqht. trade secqt a dher
papnaarypmpenynghl,~~~w.raalhg~s* dama El andattomeyeesfinal amrded,prov&dthatz % Usarfmnptfynotifiis oninwritiqdthaclaim,aml lfm has sob cattrd d the defensa and afl &ted settlement negotiatii. ftron’sobfigationunder this Section is andiied on End User’s ageemer$thatiftheEquiprnent,ortheofmtionthered,athe Licensed Software, becomes, a in &on’s opinion is likely to becMeVlesubjeddsuchadakn,EndUserwillpem\it~,at Ilron’soptionandexpense,eithertoprocuretherigMIorEndUser
to awtinue using the Equipment a Licensed Softwam o( to replace a maMy the same so that they become noninfringing; such replacanenls a modiiitions shall be functionally equivalent to the Equipment and Licensed S&ware; and if the foregoing attematives are not available on terms which are reasoMMe in ban’s judgement, End User wig return the EquipmentaUcensedSoftwareonwittenreqGesttottrcn. Ron shallrefundtoEndikertheEndIlse~sthenbookvalueo(such re.tumed Equipment and Ucensed Software as depreciated. bon has no liilily for any daim based upon the combination,
operationausedanyEqurpmentorLicensedSdtwresupptii hemnderwitheq@mentasofhmenc4appfovdbytfmn,a based upan End Use13 alteration d the Equipment a modiication
Tfler den bnsedSoftwres@iedhereunder. orqdngstatestheentireobIigatbnd&mwithrespectto kdrin~emenl d patents. cumiahts. trade secrets or athe~
I&. fTf3ONs TOTAL UASfLfTY FOR
OAMAGES TO EH) USER SHALL NOT EXCEED THE AMOUNISPAJDSYENDUSERFOR THE EQUIPMENT AND KXNSED SOFIWARE. IN NO EVENT SHALL KRON BE LIABLE, WHETHER fN CONTRACT, NEGLfGENCE, TORT, OA ON ANY OTHER BASIS, FOR COVER OR FOR INCfMMAL, CONSEOUEf4TfAL (INCLUDWG LOSS OF REVENUE, BAVINGS OR PRGFKS OR EXEMPfARY DAMAGES ARfBlNG OUT OF DR # J ONNECTfON WfTH THE SALE, -CE, USE, PERFORMANCE, FAfLURE ON MTERRUPTfON IN THE OPERATfON OF THE ENT OR LfCENSED SOFMARE. &CllrvanatsUBttheE@pfMttad lllebselvkeuldecurankstendud servlce~TheeeforsefviceahatlbealHmn~lhen 9” prevaBqrabs. AtEndUse~soption,thesewimqmamentmay ammence~thedatedexpirationdtheinitialwamantyperiod falheEtlt+mtandlocLicensedsdlware. ConffdenMlhr Excepl as requid by law a judicial a
govemmentat&er,fkonandEndtJseragmebhofdfnsbictest confiiaftinformationandmateriatwhichisrdatedtoeittw
v s business, rvhich is designated as proprietary and cwrdentiafherein.awhichis relatedtotheperformanwbythe paties of lkir abfigatias under this Agreement. fVopdetary and
5.5
5.6
5.7
codiienlial infomwon includes, but is not limited to the terms d this 4reement. information related b research, devetoprnent, pting. trade secrets, customer lists, salaries a business aflairs d the parties to this Agreemenl. The parties’ obkgatrons d
cc$~~~under Ihs Agreement shall surwve temxnatxm of
ement u L ce sed Software hfodiic&g Ron’s obligations
hereubr may’ hen adversely affected h ke event End User modifiis Ihe Equipment or Licensed Mhvare Q uses any aachmenl, feature, or device on Ihe Equipment, wifhout first otttaining l!rods written approval. Lawa ttronshaltwmptywiU~pro&iowofU~ FederalFti Labor Standards M in the msnutacture ol 6~ Equipmenl and Licensed Sohware. irlud3 al bws pmhbiting Qo;miralion in empbymecj IOU? gxl;l thet such Ian% p6111m to Itr#r.
Jemd e ato (a) j&mination. This End User License and Warranty
Agreement shall become effective upon execution by ltron and End User and may terminate:
(1) Thirty (3) days alter a party gives the dher party written notice of that part+ material breach d this Agreement, unless Ihe other party has made progress in curing the breach to an extent satisfadoty to the
nonbreaching paq, (2) At a party3 option, upon ten (10) days written notice of tenninalion, upon any attempt by a party lo assign, delegate, sublicense a otherwise transfer this Agreement, the Licensed Software, the Related Dccumentation, or any d its rights or obligations utder this Agreement without the phor mitten consent of the
(3) zg$ &tim upon ten (10) days written notice of termination, it thb dher party becomes insolvent.
executes an assignment for the benefit oi creditors, cf becomes subjecl lo bankruplcy cr receivership
proceedings. (b) Riahts and Obliaations Uwn Termination.
Upat termination of this Agreement: (1) End Useh obligations under paragraph 2.5 (‘Proprietary Information’) and the parties’ obligations under paragraph 5.4 (Xodiintiality’) shall survive the termination;
[r End Usets Mware License rights under Sedion 2 shall immediately cease; End User shall delete the Licensed Software lrun all other sdhvare into which it has been memed: and End User shall immediately deliver to ftrcn’or destroy all copies of the Licensed Software and Related fbaxnentation: however. End
User may, upon Itron’s prior witten consent, retain one (11 copy d the Licensed Sdtware and f&Wed ooamie~tatfon for arch& purposes *, and ti EndUwahafLwM1onefl1moMafterOte ‘~’ teMtiondtiAgreemar&c&byinwitiqtofim that,tothabestdEndUse6fmomkdge,aflcopias~d me Licensed !sdlwam aid Related Doamentabon havebeenretumedaddroye4exceplforanya&va
cow pew lder PafawN 5.7(b)(2). (c) Q!&&&. Eachpatpri@~bfe.rmmafeasexpressed in
l$iAg~~;~~~r b any cdw rights legal ,
62
its rights a obligations under this Agreement without the written. consent of the other party.
. .
c- i
*
L 6.3
6.4
6.6
6.6
&ym&&g This Agreement and p&mane shsll be go&d b hereunder ml construed in accordsnce with the fsws of the Stste of Iv rshin Enfocceabilii and Allomev If any provision in this Agreement shall be held to be invalid, illegal or unentorceable the validity. legality and enforceability d the remaining pro&ions shall m no wa be at&ted tx impaired thereby. ln the event d litigation to en! orce tha terms ol this Agreement, the prevailing panYshallbeenliUedtoreasonabkattomaylees,bc4hat tha tie dlnalandonappepl.
m Nodghtarremedyhereinonlerreduponor reservedb~,~~i8BXdUSivedanycdwrigMcr~ hereinorbylaworequiyprovi&dor permitled; buf each shall be
cumulativaofsvefyotherrigtrlorremedygivanherwderornow or hereafter existing at law or in equity 01 by StaMe or otharwise be enlora?d amamenf thfxewith 01 from time to tima. sandf’letn~& Notices x reundershallbeinmitiand
shall ba given by eithe; party to the other by delivery or by mailing the same by prepaid registered mail addressed as specikd herein or to sudr ether address as may be substituted by written notice
&$y&y&!=s~~~ Use, at
addressprovidedbdOW.
6.7
6.8
ItCil: ITRON, INC. 2818 N. Sullivan Road Spokane, WA 99216 Attn: Cantrad Administrator Any sti notice. so given shall be deemed to have been received by the party to whom addressed ore the day of delivery tharad. &j&Aareemenl Each party acknowledges that it has read this
Agreement, u&stands it. and agrees to be botmd by its tamts and lurlher agrees that it is the complete and exdusive statement dthe agmement between lha parties. Any terms and conditions appearingcnEndUse~sauthodzalionsshallnotapplytoa beccme a pad d this Agraamanl; this Agreement may be modified
or altered only by a mitten i&ument hat refers to this Agreement and is duly exea&d by an authorizad representative d each
Controlling. Headings usad in this Agreement a~
intended for convenience or reference only and shall not control cx affed the meaning or construclion ol any provision d this
Agreement
IN WITNESS WHEREOF the parties hereto have signed this Agreement the day and year lirst above written by their duly authorized representative.
END USER: ITRON, INC.
By: By:
Name: Name:
Tie: Title:
Address:
c
--.
.
~aaqwaGon,nametheStateinwhichincwporated
Dumand-tNlJmber
-
CERTIFICATE OF NOTARIAL ACT
State of Oregon
County of Deschutes
This instrument was acknowledged before me on Mav 8.1997
by Marilvn Beem and Chris Weber as President and Executive Vice
President and Secretarv, respectively, of Orcom Svstems, Inc.
Signature of Notarial Officer
, $5&uLz2& 47 * /&~~~~I
Title _.
My commission expires: ] j&i/t 3 b /4 ‘? p /
July 3, 1997
Vice President of Operations
Orcom Systems, Inc.
1001 SW Disk Drive
Bend, OR 97702
Re: Itron Meter Reading System
Enclosed is a copy of the fully executed agreement with Orcom Systems, Inc. for the
purchase of the FS/2 Itron Meter Reading System for the Carlsbad Municipal Water
District.
If you have any questions, please do not hesitate to contact this office.
City Clerk
ALR:ijp
Enclosure
c: Clint Phillips
1200 Carlsbad Village Drive - Carlsbad, California 92008-1989 - (760) 434-2808