Resolution No. 91841
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RESOLUTION NO. 9184
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN OSISOFT SOFTWARE LICENSE AND SERVICES AGREEMENT
BY AND BETWEEN THE CITY OF VERNON AND OSISOFT, INC.
FOR THE MALBURG GENERATING STATION
WHEREAS, the City of Vernon ("City") constructed the Malburg
Generating Station within the City limits for the purpose of producing
additional generating capacity; and
WHEREAS, the Light & Power Department has determined that it
needs the services of OSISoft, Inc. ("OSI") for its PI server software
system and Software Reliance Program that provides a powerful
operational data management Real -Time Performance Management Platform
that will allow Malburg Generating Station staff to collect, analyze
and share real-time and historical information from all parts of the
operation, thereby resulting in increased reliability, availability and
efficiency; and
WHEREAS, the Director of Light & Power has determined that
OSI possesses the technical knowledge and expertise to furnish the
software and services required by the City for a cost of approximately
$107,082.75; and
WHEREAS, the City Council of the City of Vernon has
determined that, pursuant to the provisions of subsection (a) of
Section 2.27 of the Vernon City Code, it is in the public interest and
necessity to enter into an agreement with OSI.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
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finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the OSIsoft Software License and Services Agreement with the
OSI, in substantially the same form as the copy which is attached
hereto as Exhibit A and incorporated by reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor Pro-Tem to execute said Agreement for, and on
behalf of, the City of Vernon and the Acting City Clerk is hereby
authorized to attest thereto.
SECTION 4: The City Council of the City of Vernon hereby
directs the Acting City Clerk, or his designee, to send one fully
executed Agreement to:
OSIsoft, Inc.
Attn.: Norma Tam, Account Manager
777 Davis Street Suite 250
San Leandro, CA 94577
SECTION 5: The Acting City Clerk of the City of Vernon
shall certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 13th day of December, 2006.
ATTEST:
1
BRUCE V. MALKENHORST, JR.
Acting City Clerk
THOMAS A. YBARRA, Mayor Pro-Tem
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of
Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 9184, was duly adopted by the City Council of the City
of Vernon at a regular meeting of the City Council duly held on
Wednesday, December 13, 2006, and thereafter was duly signed by the
Mayor Pro-Tem of the City of Vernon.
BRUCE V. MALKENHORST, JR.
Acting City Clerk
(SEAL)
- 3 -
EXHIBIT
A
OSIsoft Confidential
OSIsoft Agreement #
EXECUTION COPY
OSIsoft Software License and Services Agreement (the "Agreement")
("Effective Date")
OSIsoft, Inc. ("OSIsoft')
City of Vernon ("Licensee")
777 Davis Street, Suite 250
4305 Santa Fe Avenue
San Leandro, California 94577
Vernon, CA 90058
e-Mail: legal(a)osisoft.com
Phone: (510) 297-5800
Contacts:
Technical:
Contacts:
Name: Kevin Moe
Business:
Phone: (323) 583.8811
Name: Norma Tam, Account Manager
Phone: (714) 593-1413
Business:
Email: Ntam@osisoft.com
Name: Mark Thompson
Phone: (323) 583-8811
OSIsoft and Licensee hereby agree as follows:
License
1.1 License Grant. Subject to the terms and
conditions of this Agreement, OSIsoft grants to Licensee a
perpetual nonexclusive, nontransferable (except as specified in
Section 10.1) license to use in accordance with Exhibit A the
OSIsoft products and related documentation ordered by Licensee
(the "OSisoft Products'). Licensee may make a reasonable
number of copies of any OSIsoft Product documentation for
internal business use.
1.2 License Restrictions. Except as expressly
provided in Exhibit A, Licensee agrees that it has no right to:
(i) modify the OSIsoft Products or to permit any third party to do
so; (ii) copy the OSIsoft Products, except as strictly required to
install the OSIsoft Software and make a reasonable number of
copies for archival or backup purposes, or (iii) use the OSIsoft
Products to provide service -bureau, software rental, time-sharing
or any data services to any third party. Any OSIsoft Products
ordered by Licensee and licensed by OSIsoft as a bundled unit
must be used by Licensee as a bundled unit. Licensee
acknowledges that OSIsoft Products contain trade secrets of
OSIsoft, and in order to protect such trade secrets, Licensee
agrees not to disassemble, decompile or reverse engineer the
OSIsoft Products, nor permit any third party to do so, except to the
extent such restrictions are prohibited by applicable law.
1.3 Limited Rights. Licensee's rights in the
OSIsoft Products will be limited to those expressly granted in this
Section 1, and OSIsoft reserves all other rights, title, interest and
Licensee Initials: Page 1 of 174-7
OSIsoft Initials:
Legal:
Name: Jeff Harrison
Phone: (323) 583-8811
licenses therein. All OSIsoft Products provided to the U.S.
Government pursuant to solicitations issued on or after December
1, 1995 is provided with the commercial license rights and
restrictions described in this Agreement. All OSIsoft Products
provided to the U.S. Government pursuant to solicitations issued
prior to December 1, 1995 is provided with "Restricted Rights" as
provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48
CFR 252.227-7013 (OCT 1988), as applicable.
1.4. Audit Rights. Upon OSlsoft's written request,
Licensee shall furnish OSIsoft with a certification signed by an
officer of Licensee verifying that the OSIsoft Products are being
used pursuant to the terms of this Agreement. In addition, upon
prior written notice, OSIsoft may audit Licensee's use of the
OSIsoft Products to ensure that Licensee is in compliance with the
terms of this Agreement. Any such audit shall be conducted
during regular business hours at Licensee's facilities and shall not
interfere with Licensee's business activities. Licensee shall
provide OSIsoft access to the relevant Licensee records and
facilities. If an audit reveals that Licensee has underpaid fees to
OSIsoft, Licensee shall be invoiced for such underpaid fees based
on OSlsoft's price list in effect at the time the audit is completed.
Licensee shall promptly deliver to OSIsoft any unpaid fee for any
errors or omissions disclosed by such audit. Licensee shall pay
OSIsoft an additional fee of twenty-five percent (25%) of the
applicable unpaid fee disclosed by the audit to compensate for
Licensee's over use of the OSIsoft Products. If the underpaid fees
exceed ten percent (10%) of the license fees previously paid by
Licensee, then Licensee shall also pay OSlsoft's reasonable costs
of conducting the audit.
OSlsoft Confidential
2. Ordering and Delivery.
2.1 Order Process. Licensee or a Licensee Affiliate may
submit written orders containing the information and in the format
reasonably requested by OSlsoft ("Orders'l to OSlsoft or
OSlsoft's authorized distributor for the purchase of new or
additional licenses of OSlsoft Products or for Software Reliance
Program services (as described in Section 4). Any OSlsoft
Software received by Licensee via FTP or other electronic delivery
method will be governed by this Agreement even if no reference to
this Agreement is made in connection with such electronic delivery.
Any "click -wrap" or other terms or conditions which are presented
to Licensee's users during the FTP or other electronic delivery
process will be superseded by this Agreement, unless such
software is designated as trial, test or beta software. All OSlsoft
Products will be delivered ex works or FOB OSlsoft. The rights
granted in this Agreement and all risk of loss will transfer to
Licensee upon shipment or transmission of the OSlsoft Products.
OSlsoft will replace copies of OSlsoft Software that are lost or
damaged in transit without additional charge.
2.2 Licensee Affiliate. "Licensee Affiliate" means any
entity that controls, is controlled by, or is under common control
with Licensee. For purposes of this Agreement, "control" of an
entity means having ownership of more than fifty percent (50%) of
the voting equity or beneficial interest of such entity. Licensee
Affiliates must expressly agree to the terms and conditions of this
Agreement by executing OSlsoft's then current form of
acknowledgement prior to or in connection with submitting an
Order. Unless otherwise expressly agreed, all Orders submitted
by Licensee Affiliates will be at OSlsoft's then -current list price.
Licensee and any Licensee Affiliate that purchases licenses
hereunder shall be jointly and severally liable for any breach of this
Agreement by any Licensee Affiliate.
2.3 Order Submission and Acceptance. Orders submitted
directly to OSlsoft will not be deemed binding on OSlsoft until an
authorized representative of OSlsoft expressly accepts such Order
in writing or until Licensee receives the OSlsoft Products,
whichever first occurs. Licensee must notify OSlsoft prior to using
any OSlsoft Product at a location other than the one specified in
the applicable Order. Except for information necessary to place an
Order, such as identification of the OSlsoft Product, quantity and
other similar information, any terms and conditions of any Order
that are inconsistent with or in addition to the terms and conditions
of this Agreement will be deemed stricken from such Order, and
OSlsoft hereby expressly rejects such terms and conditions even if
OSlsoft accepts such Order. Licensee will be responsible for any
contractors submitting Orders to OSlsoft on Licensee's behalf.
OSlsoft reserves the right to refuse, cancel or delay shipment to
Licensee if Licensee (i) fails to make any undisputed payment as
provided herein or under the terms of payment set forth in any
invoice or otherwise agreed to by OSlsoft and Licensee, (ii) fails to
meet the reasonable credit or financial requirements established
by OSlsoft, or (iii) otherwise fails to comply with the terms and
Licensee Initials: Page 2 of 174-7
conditions of this Agreement. OSlsoft also reserves the right to
discontinue the distribution of any or all OSlsoft Products upon 30
days notice and to cancel any orders therefore without liability of
any kind to Licensee or any other person. No such cancellation,
refusal or delay will be deemed a termination (unless OSlsoft so
advises Licensee) or breach of this Agreement by OSlsoft.
3. Payment of OSlsoft Invoices. Provided that Licensee
meets OSlsoft's then -current credit standards and policies,
payment of all fees and expenses pursuant to OSlsoft's invoices
will be due and payable within forty five (45) days from receipt of
invoice by Licensee. All fees are non -cancelable, non -contingent
and non-refundable except as expressly stated in this Agreement.
Licensee will pay all amounts due under OSlsoft's invoices in U.S.
currency, free of any and all currency controls or other restrictions.
All past due amounts under OSlsoft's invoices will incur interest at
a rate equal to 1.5% per month beginning as of forty (40) days
after the applicable due date. Except for taxes paid by OSlsoft on
its net income, all amounts due pursuant to OSlsoft's invoices are
net of, and Licensee will be solely responsible for, any shipping
charges, withholding, use, sales, value-added, import and any
other taxes, fees, tariffs or duties associated with this Agreement
or Licensee's use of the OSlsoft Products and Software Reliance
Program. This section will not apply when an authorized OSlsoft
distributor invoices Licensee for Orders submitted to such
distributor. However, Licensee will comply with any payment terms
agreement Licensee may have with such distributor.
4. Software Reliance Program. Subject to Licensee's
advance payment of the applicable Software Reliance Program
fees Licensee will be enrolled in OSlsoft's then -current Software
Reliance Program ("Software Reliance Program'). OSlsoft's
current terms of Software Reliance Program will be provided on
request and are also available through OSlsoft's description of
services section at http://www.osisoft.com Promptly following its
use of any Updates, Bug Fixes or other replacement software as
designated by OSlsoft and accepted by Licensee ("Replacement
Software'J, Licensee will return or destroy the OSlsoft Software
replaced by the Replacement Software. Licensee will not receive
any credit for software replaced by Replacement Software so long
as the Replacement Software "replaces" the original software in
kind. If Licensee purchases OSlsoft's professional services,
OSlsoft warrants that the results of such services will comply with
mutually agreed upon specifications for a period of 90 days
following acceptance by Licensee. Licensee agrees to supply
OSlsoft with access to and use of all information and facilities
reasonably necessary for OSlsoft to render any on -site services
pursuant to this Agreement. OSlsoft will comply with all
reasonable safety rules, insurance requirements, as specified
under Section 5.2 of this Agreement, and procedures provided by
Licensee to OSlsoft personnel in advance.
5. Warranties.
5.1 Limited Warranty. OSlsoft warrants that, for a
period of one (1) year after installation of the OSlsoft Products, the
OSlsoft Initials:
OSIsoft Confidential
OSlsoft Products will function in accordance with OSlsoft's
accompanying documentation in all material respects. As
Licensee's sole and exclusive remedy and OSlsoft's entire liability
for any breach of the foregoing warranty, OSlsoft will repair or
replace, at no additional charge to Licensee, any OSlsoft Products
that fail to meet this limited warranty. The limited warranty set forth
herein shall automatically become null and void if a party other
than OSlsoft modifies the OSlsoft Products in any way. EXCEPT
AS EXPRESSLY SET FORTH IN THIS SECTION, OSlsoft MAKES
NO WARRANTIES OF ANY KIND EITHER EXPRESS OR
IMPLIED, AND OSlsoft EXPRESSLY DISCLAIMS ANY AND ALL
SUCH OTHER WARRANTIES, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
QUIET ENJOYMENT AND NON INFRINGEMENT.
5.2 Insurance Requirements. During the term of
this Agreement, OSlsoft will obtain and maintain in force insurance
with the following policy limits:
(a) Worker's Compensation as required by
statutory regulations in the applicable state and Employer's
Liability Insurance with limits not less than $1,000,000;
(b) General Liability Insurance with limits not less
than $1,000,000 per occurrence for bodily injury or property
damage; $2,000,000 in the aggregate.
(c) Automobile Liability with a combined single
limit of $1,000,000.
5.3 Proof of Coverage and Additional Insured.
At Licensee's request, OSlsoft will furnish Licensee with
Certificates of Insurance evidencing the insurance described
above, including a notice that no change in, or cancellation of, any
such policy or policies shall be made without notice to Licensee at
least thirty (30) days prior to such change or cancellation. At
Licensee's request, OSlsoft will add Licensee as an additional
insured to such insurance policies. OSlsoft will notify Licensee in
advance if any charges may be incurred.
6. Indemnity
6.1 OSlsoft Indemnity Obligation. OSlsoft will
defend any action brought against Licensee to the extent that it is
based upon a claim that the OSlsoft Products infringe any U.S.
patent, copyright or trade secret, and will pay any costs, damages
and reasonable attorneys' fees attributable to such claim that are
finally awarded or paid in settlement in any such action, provided
that: (i) Licensee promptly notifies OSlsoft in writing of the claim;
(ii) Licensee grants OSlsoft sole control of the defense and
settlement of the claim; and (iii) Licensee provides OSlsoft with all
assistance, information and authority reasonably required for the
defense and settlement of the claim, at OSlsoft's expense.
Licensee Initials: Page 3 of 174-7
OSlsoft Initials:
6.2 Iniunction. If Licensee's use of any of the
OSlsoft Products hereunder is, or in OSlsoft's opinion is likely to
be subject to the type of infringement claim specified in
Section 6.1, OSlsoft may, at its sole option and expense:
(i) procure for Licensee the right to continue using such OSlsoft
Products, as applicable under the terms of this Agreement;
(ii) replace or modify such OSlsoft Products so that it is non -
infringing, but retains substantially the same functionality; or (iii) if
options (i) and (ii) above cannot be accomplished despite OSlsoft's
reasonable efforts, then OSlsoft may terminate Licensee's rights
and OSlsoft's obligations hereunder with respect to such OSlsoft
Products and refund to Licensee the unamortized portion of the
fees paid for such OSlsoft Products, based upon a straight-line
three (3) year depreciation commencing as of the date Licensee
received such OSlsoft Products.
6.3 OSlsoft Indemnity Exclusions. OSlsoft will
have no liability for infringement claims of any kind arising from:
(i) any use of the OSlsoft Products beyond the scope of this
Agreement; (ii) Licensee's use of the OSlsoft Products in
combination with any products not developed by OSlsoft, if the
basis for the claim is such combined use; (iii) Licensee's failure to
use updated or modified versions of the OSlsoft Products provided
or made available by OSlsoft without additional charge; or
(iv) OSlsoft's compliance with designs or specifications provided
by Licensee. THE PROVISIONS OF THIS SECTION 6 SET
FORTH OSlsoft's SOLE AND EXCLUSIVE OBLIGATIONS AND
LICENSEE'S SOLE AND EXCLUSIVE REMEDIES WITH
RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS.
7. Limitations of Liability. EVEN IF ANY REMEDY SET
FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR
OTHERWISE AND REGARDLESS OF WHETHER A CLAIM
ARISES UNDER CONTRACT, TORT (INCLUDING
NEGLIGENCE), BREACH OF WARRANTY, STRICT LIABILITY
OR OTHERWISE, AND WHETHER OR NOT OSlsoft HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES,
IN NO EVENT SHALL OSlsoft BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR
DAMAGES OF ANY KIND (INCLUDING LOSS OF USE, DATA,
BUSINESS OR PROFITS) NOR SHALL OSISOFT's TOTAL
CUMULATIVE LIABILITY HEREUNDER EXCEED THE TOTAL
LICENSE FEES PAID BY LICENSEE TO OSlsoft UNDER THIS
AGREEMENT DURING THE TRAILING 12 MONTH PERIOD OR
TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000),
WHICHEVER IS GREATER. The parties expressly agree that the
allocation of risk contained in this Section is an essential basis of
this Agreement.
8. Confidential Information. It is understood by all parties
to this Agreement that the Licensee is a municipality and as such
all information may be subject to the Public Records Request Act;
Govt. Code §§ 6250 - 6276.48. "Confidential Information"
means the OSlsoft Products and any business (including any
pricing information provided by OSlsoft) or technical information
OSlsoft Confidential
that is marked by a disclosing party as "confidential" or
"proprietary" at the time of disclosure. Licensee's Confidential
Information shall also include information related to Licensee's
operations that Licensee discloses to OSlsoft in connection with
this Agreement in whatever form. OSlsoft's Confidential
Information shall also include, without limitation, any interfaces
developed using OSlsoft's Software. The receiving party will not
use or disclose any Confidential Information of the other party
except as expressly permitted herein or required by law and will
use all reasonable measures to maintain the confidence of all such
Confidential Information, which measure will in no event be less
than the measures that the receiving party takes to protect its own
confidential information of similar importance. Confidential
Information will not include information which: (i) is or becomes
publicly available without fault of the receiving party; (ii) is
independently developed by the receiving party without use or
access to the Confidential Information; or (iii) was known to the
receiving party prior to its receipt of the Confidential Information
from the disclosing party and is not subject to other restrictions on
disclosure or use. In all events OSlsoft will be free to incorporate
into its products any features or functionality that may be
suggested by Licensee.
9. Term and Termination. This Agreement will remain in
effect perpetually unless and until terminated pursuant to this
Section. Either party may terminate this Agreement if the other
party breaches any material term, and such breach remains
uncured for thirty (30) days after receiving notice thereof. In the
event of any termination of this Agreement, the parties agree to
return or at the other party's request destroy all of the other party's
Confidential Information within three (3) business days, and
without limiting the foregoing, Licensee will return or at OSlsoft's
request destroy all copies of the OSlsoft Products within its
possession or control. Licensee may terminate this Agreement
without cause upon thirty (30) days written notice to OSlsoft, at
which time Licensee will abide by the termination arrangements
outlined above. Licensee may terminate its license to the OSlsoft
Products under this Agreement at any time by destroying all copies
of the OSlsoft Products and Confidential Information associated
with the OSlsoft Products within its possession or control.
Termination of this Agreement by either party will be a
nonexclusive remedy for breach without prejudice to any other
right or remedy of such party. The rights and obligations of the
parties contained in Sections 3, and 6 through 10 will survive the
termination of this Agreement.
10. General
10.1 Assignment, Independent Contractors
Notices and Force Maieure. Licensee may assign this Agreement
provided that OSlsoft consents in writing to such assignment. Such
consent will not be unreasonably withheld. Licensee hereby
acknowledges that as a condition to such consent, OSlsoft may
require any assignee to update all OSlsoft Products to the then -
current version and purchase one year of Software Reliance
Program services at OSlsoft's then -current rate. Except as
Licensee Initials: Page 4 of 174-7
OSlsoft Initials:
otherwise specified in writing by OSlsoft in its consent to assign
this Agreement, Orders submitted by the Assignee will be in
accordance with OSlsoft's then current list price. Any attempted
assignment, whether by operation of law, as a result of any change
in control (as control is defined in Section 2) of Licensee or
otherwise without complying with this Section shall be null and
void. The parties to this Agreement are independent contractors
and neither party will have the power to bind the other or incur
obligations on the other's behalf without the other's prior written
consent. All notices required or permitted under this Agreement
will be sent to the address specified above (or such other address
specified by the receiving party) in writing and will be deemed
effective upon receipt. OSlsoft will not be responsible for any
failure or delay in its performance under this Agreement due to
causes beyond its reasonable control.
10.2 Disputes and Governing Law. Any dispute
arising out of or relating to this Agreement, including without
limitation its existence, validity or termination, shall be referred to
and finally resolved by arbitration through JAMS. The arbitration
panel shall consist of a single arbitrator experienced in the
enterprise software industry, selected and agreed to by the parties.
If the parties cannot agree upon selection of an arbitrator, then
JAMS shall appoint the arbitrator. The place of the arbitration will
be Los Angeles, California. The arbitration will be conducted in
English. The arbitrator shall apply the substantive law of California.
The arbitrator shall provide detailed written findings of fact and
conclusions of law in support of any award. Judgment upon any
such award may be enforced in any court of competent jurisdiction.
Notwithstanding the foregoing, OSlsoft may file an action in any
court of competent jurisdiction to enforce its intellectual property
rights in the OSlsoft Products without first submitting its claim to
arbitration, Licensee hereby submits to the jurisdiction and venue
of the federal or state courts located in Los Angeles, California for
this purpose. This Agreement will be governed by and construed in
accordance with the laws of the State of California, excluding that
body of law pertaining to conflicts of law and the United Nations
Convention on Contracts for the International Sale of Goods. The
prevailing party in any action arising from or relating to this
Agreement shall be entitled to recover all attorneys' fees and costs
including, without limitation, arbitration fees and fees of experts.
10.3 Compliance with Laws: Government
Approvals and Severability. Licensee's use of the OSlsoft
Products will comply with all laws, rules, and regulations of the
United States and other countries that may be applicable to the
OSlsoft Products. Without limiting the generality of the foregoing,
Licensee acknowledges that the distribution and use of OSlsoft
Products and any technical data related thereto (collectively
"OSlsoft Technology') may be subject to U.S. export control
laws and regulations including, but not limited to, the U.S. Export
Administration Act of 1979, as amended, and the regulations
promulgated there under. Licensee will not export or re-export,
directly or indirectly, any OSlsoft Technology, to any destination for
any use that is restricted by U.S. export control laws and
regulations including, without limitation, to any party that is
OSIsoft Confidential
involved in sensitive or unguarded nuclear activities, or activities
related to chemical or biological weapons or missiles, unless
Licensee first obtains the required authorizations from the U.S.
Department of Commerce or other appropriate governmental
agencies. Licensee may not use the OSlsoft Products to operate
or control any inherently dangerous application. Notwithstanding
the preceding sentence, Licensee may use the OSlsoft Products in
a commercial nuclear power facility so long as Licensee does not
use the OSlsoft Products: (i) in any manner where failure of the
OSlsoft Products would affect the operability of Licensee's facility
or affect Licensee's ability to safely cease all operations of the
facility; (ii) to control any safety related system or in any safety
related application; or (iii) in any manner that would violate
applicable laws or regulations. Licensee shall indemnify and hold
OSlsoft harmless from any and all claims, liability, costs, damages
and losses arising out of or related use of the OSlsoft Products in
violation of this section. OSlsoft shall have no responsibility to test,
certify, validate or to take any other action regarding the OSlsoft
Products with the Nuclear Regulatory Commission or any other
governmental agency. Obtaining such approvals, if any, will be the
sole responsibility of Licensee. Within ninety (90) days of the
Effective Date, Licensee must, at Licensee's expense, obtain and
arrange for the maintenance of all government approvals, if any
that may be necessary to make this Agreement effective in the
locations where the OSlsoft Products are used by Licensee. If for
any reason any part of this Agreement is found unenforceable, the
remainder of this Agreement will be enforced to the maximum
extent permissible.
Licensee Initials: Page 5 of 174-7
OSlsoft Initials:
10.4 Use of Name in Customer List. Licensee
consents to OSlsoft's use of Licensee's non -stylized corporate
name in its customer lists. Licensee may withdraw such consent
at any time with reasonable notice.
10.5 Entire Agreement, Waiver and Language.
This Agreement, together with Exhibit A (" OSlsoft Products Usage
Terms") and Exhibit B (OSlsoft Proposal #4JP010005T, dated
November 30, 2006), is the entire agreement between OSlsoft and
Licensee with respect to all OSlsoft products and services and
their use, superseding any prior agreements (except for
agreements which pertain to trial or beta software) or
understandings related to any OSlsoft products or services. This
Agreement cannot be amended except by a writing which
specifically references this Agreement and is signed by both
parties. In no event will any purported amendment or agreement
be binding on OSlsoft, unless executed by an OSlsoft officer. The
failure by either party to enforce any provision of this Agreement
will not constitute a waiver of future enforcement of that or any
other provision. The parties hereto have agreed that this
Agreement and any documentation, agreements and/or
correspondence ancillary thereto be written in English. This
Agreement may be executed in counterparts, each of which will be
deemed an original, but all of which together will constitute one
and the same instrument.
(CONTINUED ON NEXT PAGE)
OSlsoft Confidential
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date through their duly authorized representatives.
Each individual signatory below hereby represents and warrants that they have full corporate power and authority to execute this agreement
and bind the respective parties to the terms and conditions of this Agreement.
OSISOFT, INC. I CITY OF VERNON
Signature:
Name: Bernard Morneau
Title: Executive Vice -President
Signature:
Name:
Title:
Licensee Initials: Page 6 of 1744
OSlsoft Initials:
Signature:
Name: Leonis C. Malbura
Title: Mayor
Attest:
Bruce V. Malkenhorst, Jr., Acting City Clerk
Approved As to Form:
Jeff Harrison, City Attorney
OSlsoft Confidential
EXHIBIT A
OSlsoft Products Usage Terms
The following usage terms will apply only to the extent that Licensee orders each type of OSlsoft Product as specified by OSlsoft in its then
current price list or otherwise.
ClientlServer Products (Currently includes PI System Software, Sigmafine, ProcessPoint and IT Monitor
Licensee's use of Client Software cannot exceed the number of Individual Licenses specified in accepted Orders and licensed pursuant to
this Agreement. Licensee's use of Server Software cannot exceed the number of DataStream Points created in such Server Software (as
measured by the OSlsoft Software), Data Connections, Elements or Users as applicable and specified in accepted Orders and licensed
under this Agreement. Server Software modules and DataStream Points designated by Licensee in an Order for use with one "PI" Server
Software module cannot be moved to or otherwise used with any other "PI" Server Software module without OSlsoft's express consent. The
"PI" Server Software may not be used to programmatically interoperate with third party applications or Licensee developed applications
unless Licensee has purchased the data access Server Software for such "PI" Server. Additionally, except as otherwise expressly provided
in this Agreement, once DataStream Points have been designated by Licensee in an Order for use with a PI Server Software module,
Licensee cannot return such DataStream Points to OSlsoft for any credit or refund of any kind. Except for Server to Server Interfaces,
Licensee's use of Interfaces will not exceed the number of instances specified in accepted Orders and licensed pursuant to this Agreement.
Licensee's use of Server to Server Interfaces shall not exceed the number of Data Connections specified in accepted Orders and licensed
pursuant to this Agreement.
Thin -Client Products (Currently includes RtWebParts and RtPortal)
In using this type of OSlsoft Software, Licensee will not exceed the number of Concurrent Users specified in accepted Orders and licensed
under this Agreement.
Enterprise Application Integration (Currently includes RLINK Products)
In using this type of OSlsoft Software, Licensee will not exceed the number of Data Connections between the Enterprise Application
Integration software and OSlsoft's server software as specified in accepted Orders and licensed under this Agreement.
Development Systems (Currently includes any OSlsoft Software designated by OSlsoft or Licensee for development or support
purposes)
This type of OSlsoft Software is licensed solely for Licensee's internal development and support purposes on a single computer. Such
OSlsoft Software cannot be used in production or otherwise used to process any data generated from Licensee's business operations.
Redundant Servers
To qualify as a Redundant Server, the Server may only be used as a back-up system to a designated primary production Server without
Client access or Interface connections. Redundant Servers may not contain any DataStream Points that are not also contained in the
primary production Server the Redundant Server is backing up. A Redundant Server may only be used as a production Server with Client
access and Interface connections during such times that the primary production Server is not in operation.
Third Party Software
Software designated as "Third Party Software" on OSlsoft's price list are not subject to this Agreement. OSlsoft acts only as a distributor for
Third Party Software and all licensing terms, support and warranty service, if any, will be provided by the third party vendor for this type of
software. Except for OSlsoft's failure to deliver the Third Party Software in accordance with Licensee's accepted Orders, notwithstanding
any provision in this Agreement, in no event will OSlsoft be liable to Licensee or to any third party for damages of any kind arising from or
related to the Third Party Software.
Usage Definitions
VS/soft Software" means all those software products delivered to Licensee or licensee's designee including without limitation, (i) those that
are designed and designated by OSlsoft to operate on a network server computer ("Server Soffware'J, a client computer ("Client
Software'J, or as an interface with certain hardware monitoring devices, third party software and multiple copies of Server Software
(`7nterface'l; and (ii) all related documentation, bug fixes and updates delivered to Licensee by OSlsoft or its designee.
Licensee Initials: Page 7 of 174-7
OSlsoft Initials:
OSIsoft Confidential
"Concurrent Users" mean individuals who are accessing the same copy of Server Software at the same time.
"DataStream Point' means a tag or module that is created and exists in certain Server Software modules that is used to setup, configure or
store data -points or data structures.
"Data Connection" means a link between the data generated from one copy of OSlsoft Software and another copy of OSlsoft Software or a
third party data source.
"Element" means every occurrence of a logical entity in a flow sheet model of equipment that exists within certain Server Software.
"Individual Licenses" means the number of client computers onto which Licensee may install Client Software. One Individual License may
be used on up to two client computers to facilitate home office use or remote access so long as one Individual License is not used by two
individuals at the same time. Individual Licensed Software cannot be used to export data from the OSlsoft Software and serve such data
directly or indirectly to another client or CPU computer.
"Licensee Customers" means customers of Licensee for whom Licensee may generate, store or process Licensee Data.
"Users" means the number of individuals who are authorized to access a copy of Server Software.
Licensee Initials: Page 8 of 174-7
OSlsoft Initials:
OSlsoft Confidential
EXHIBIT B
OSlsoft Proposal #4JP010005T to Licensee, dated November 30 2006
A,* t slls ft� Proposal
Date:
1113012006
estm-
MWk ThOMPOM
333-8 6-3698
Seller:
Ostsoft, tnc.
Sold to*
City Of Vernon
Proposal type-.
Budgetary
43€ 5 S Santa Fe Ave
swan .
VERNON CA SSE US
Proposal Nw.
4JP0100DSTStrip
tw
City OfVemon
4306 S Santa Fe Ave
VERNONC si058 US
q
Your
Hill trs:
City Of -..lemon
4306 S Santa Fe Ave
VERNONCA 9WS8 US
SLA Number.
Delivery Method-
mt
S€ P Expiration: 1113MOOT T Not due in 30 days
Proposal valid from' 1011612006 Valid to: 13l1S,
Introduction
Proposal Number: 4JP010MST
Requester: Mark Thompson
Site. City Of Vernon Vernon
Description of Proposal:
Pricing
Total Price-, 95,007.75 USDI
ar nation. city Ot Vernon
End User Site; City Of Vernon 'Vemon
IwWmg €he wikng men for C mH be $107,082,75
Page 1 t 6 n
Licensee Initials: Page 9 of 174-7
OSlsoft Initials:
OSIsoft Confidential
k*,, osisoft.
Proposal
Licensee Initials: Page 10 of 174-7
OSlsoft Initials:
OSIsoft Confidential
00sv""ti't.
17 7
- Pfe-InStalletion dweldist review; confirmation that all prerequisites are met beWe proceeding -
installation of the P) Server software
- Creafion and saing of P1 server archives
- Corifiguratim and testing of the Pt bai*ul> procedize
- Configuration of a set of basic pi monitodrig: tags for archtying PI ryvem statistics
0-,"t-n
Validation of communication With the data source
- Installation and configuration of the P1 commurkation libraries
- Configuration and testing of buffering
- Configuration of up to;10,000 tags
- Installation of P1 client software on one client station
- Installation of P! System Management Tools on one management station
- Post -Installation verification
- P1 system management overview
- Ostsoft technical support overview
- OSlsoft training curriculum overview
- Installation report
Licensee Initials: Page 11 of 174-7
g=
OSIsoft Initials:
OSIsoft Confidential
0 sufto Proposal
,r
Process,The InStWhation 6
�;I 1111111 11 111 1 WIN 11 1 11 11111 11x
1 I IN III
Contact Informa On
Licensee Initials: Page 12 of 174-7
OSlsoft Initials:
OSIsoft Confidential
00SU"'(,"fl.
Any order submitled to OSIsolt, Inc ("OSJaW) by or on behalf of City of Vernon ("Custorner) vAll
begoverned by the Softwere License and Services Agreement by and between OSIsoft and
_dated, (Agreement #
a) The Terms and Conditions of the Software LicenseAgreernertt (SLA) between OSISOft and
the Licensee are the We and exclusive terms and conditions governing Licensees purchase
and license of products and services from OSIsoft.
b) Additional or diflerent terms and corwhtions submitted byLkensee, wtWther on Licensee's,
purchase order or otherwise, shall be deemed objected to by OSIsoft and shall be of noeffect nor
in any cirournstance binding upon Oslsoft unless accepted by OSIsoft In writing.
10 Payment term Is net cash 30 days after invoicedste.
4) This Proposal does not include hardware, cables, generic or third party software, or any ot�her
such supplies required to use the licensed software-
SoftwaI Conditions.
4) The prices quoted herein are In US$, F.O. a. San Leandro (California) and are valid for
a period of 60 days.
0) Shipping and handling of software will be tharged at cost to the Licensee and will be
added to the invoke.
c) Except for taxes paid by OSIsoft on Its not income, all amunts due pursuant to OSIsoft's
invoices are net of, and Licensee will be sol0l responsible for,any shippft charges and
withholding, use, sales, value-added, import and any other taxes, fees, tariffs or duties associated
with this Proposal or Licensea's use of the OS13oft products and technical support savice&
d) OSI reserves the tight to change our price list as we deem necessary,
Licensee Initials: Page l3ofl74-7
OSIsoft Initials:
OSlsoft Confidential
(40SU"oft..:
LA'e:
NAM
iiftL
Data:
Licensee Initials: Page 14 of 17.1.7
OSlsoft Initials:
OSlsoft Confidential
Customer Information Form — Page 1 of 2
1. Customer Information:
Company Name:
Trade Name / dba:
Street Address
City State
Contact Person
Phone #
URL Address
2. Invoicing Information (only if different from above):
Company Name:
Trade Name on invoice if different from Company Name
Address
City State
Contact Person
Phone #
DUNS #
3. Corporate Structure:
Check One: Individual / Sole Proprietor ❑ Corporation ❑
Are you a publicly traded company? Yes ❑ No ❑
Do you have a parent company? Yes ❑ No ❑
Do you have subsidiaries? Yes ❑ No ❑
4. Purchasina Information: Permits and Certificates:
Are you tax exempt? Yes ❑ No ❑
Do you have a resale certificate? Yes ❑ No ❑
Do you have a Direct Pay Permit? Yes ❑ No ❑
Federal Tax Id
Printed Name:
OSlsoft Internal Use only
boihrment Numb
aSlsctrers
aSlWW.,
Licensee Initials:
Page 15 of 174-7
Zip
E-Mail
Fax #
Zip
E-Mail
Fax #
Partnership ❑ Other ❑
If Yes, please provide symbol:
If yes, please list:
If yes, please list:
If yes, please attach certificate
If yes, please attach certificate
If yes, please attach certificate
SIC/NAICS
Signature:
Return Completed Form to:
Country
Country
Mail Original:
OSlsoft, Inc., Attn: Legal
777 Davis Street, San Leandro CA 94577
Scanned Copy Via Email:
legal@osisoft.com
Faxed Copy:
510-667-0894
OSlsoft Initials:
OSlsoft Confidential
Customer Information Form — Page 2 of 2
1) Site Name:
Licensee Affiliate Legal
Name:
Contact Name, phone &
email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS#
SIC# or NAICS #:
3) Site Name:
Licensee Affiliate Legal
Name:
Contact Name, phone &
email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS #
SIC# or NAICS #:
5) Site Name:
Licensee Affiliate Legal
Name:
Contact Name, phone &
email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS#
SIC# or NAICS #:
7) Site Name:
Licensee Affiliate Legal
Name:
Contact Name, phone &
email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS#
SIC# or NAICS #:
9) Site Name:
Licensee Affiliate Legal
Name:
Contact Name, phone &
email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS#
SIC# or NAICS #:
11) Site Name:
Licensee Affiliate Legal
Name:
Contact Name, phone &
Licensee Initials: Page 16 of 174-7
2) Site Name:
Licensee Affiliate Legal Name:
Contact Name, phone & email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS#
SIC# or NAICS M
4) Site Name:
Licensee Affiliate Legal Name:
Contact Name, phone & email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS #
SIC# or NAICS M
6) Site Name:
Licensee Affiliate Legal Name:
Contact Name, phone & email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS #
SIC# or NAICS M
8) Site Name:
Licensee Affiliate Legal Name:
Contact Name, phone & email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS#
SIC# or NAICS #:
10) Site Name:
Licensee Affiliate Legal Name:
Contact Name, phone & email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS #
SIC# or NAICS M
12) Site Name:
Licensee Affiliate Legal Name:
Contact Name, phone & email:
OSlsoft Initials:
4
OSIsoft Confidential
email:
Physical Street Address:
City, State, Zip Code:
Country:
DUNS#
SIC# or NAICS #:
Licensee Initials:
Page 17 of 174-7
Physical Street Address:
City, State, Zip Code:
Country:
DUNS #
SIC# or NAICS #:
OSlsoft Initials:
LEONIS C. MALBURG ,
Mayor
THOMAS A. YBARRA Of,
Mayor Pro -Tern
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK 4305 Santa Fe Avenue, Vernon, California 90058
Councilman Telephone (323) 583-8811
January 8, 2007
OSIsoft, Inc.
Attn: Ms. Norma Tam, Account Manager
777 Davis Street, Suite 250
San Leandro, CA 94577
Re: Software License and Services Agreement
Dear Ms. Tam:
MARK C. WHITWORTH
Fire Chief
LEWIS J. POZZEBON
Director of Environmental Health
S. KEVIN WILSON
Director of Community Services
SHARON L. DUCKWORTH
City Treasurer
DONAL O'CALLAGHAN
Director of Light & Power
Transmitted herewith is a fully executed original License and Services
Agreement, which was approved by City Council on December 13, 2006,
through Resolution No. 9184.
If you have any questions regarding this matter, please call Mr. Donal
O'Callaghan, at (323) 583-8811 ext. 834.
ry truly yours,
Nel o
AyyGi
Deputy City Clerk
NG:dr
Enclosure
c: Donal O'Callaghan
Dolores Jaunzemis
Resolution No. 9184
Agreement File No. 06-138
T'Nciugludy jubugtrfal