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HomeMy WebLinkAbout2001-11-19 City CouncilCity of Palo Alto City Manager’s Report TO:HONORABLE CITY COUNCIL 4 FROM:CITY MANAGER DEPARTMENT: UTILITIES DATE:NOVEMBER 19, 2001 CMR:215:01 SUBJECT:APPROVAL OF A CONTRACT IN THE AMOUNT OF $211,566 WITH ADVANCED. CONTROL SYSTEMS TO UPGRADE THE EXISTING SUPERVISORY CONTROL AND DATA ACQUISITION (SCADA) SYSTEM CAPITAL IMPROVEMENT PROGRAM PROJECT 0210, SCADA SYSTEM UPGRADES; AND REQUEST FOR A BUDGET AMENDMENT ORDINANCE OF $140,000 TO ALLOW ACCELERATION OF THE PROJECT RECOMMENDATION Staff recommends that Council: Authorize the Mayor to execute the attached sole-source contract with Advanced Control Systems (ACS) for $211,566 for a turn-key upgrade to the City’s Supervisory Control and Data Acquisition (SCADA) system. Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contract with ACS for related additional, but unforeseen work which may develop during the project, the total value of which shall not exceed $21,000. Adopt the attached Budget Amendment Ordinance (BAO) in the amount of $140,000 to allow accelerating the project to ensure completion in FY 2001-02 instead of performing the project in two phases and completing in FY 2002-03. CMR:215:01 Page 1 0f4 DISCUSSION Project Description The current SCADA system was installed in 1997 for use by Utilities Systems Operators to monitor and operate the City’s electric distribution system. In the past few years, the software revisions to the SCADA system have required more computer processing load. In addition, several of the computer components will soon no longer be supported by the manufacturer. The SCADA system can also generate historical reports of system and distribution feeder loadings. The SCADA information is available to a limited number of personnel through .the City’s Intranet. However, the additional processing load and increased number of users has Slowed the system response to. the operators~ requests for primary operating processes. This slower response could affect the ability to operate the system in a safe manner, especially during an emergency. The necessary speed of response for the operators will be restored by replacing the two existing Hewlett-Packard SCADA servers with new A500-class servers, replacing the operator workstations, and upgrading network equipment. When the upgrade is complete, there will be adequate capacity to allow a reasonable amount of information to be made available, for Engineering, Marketing, and Supply Resources personnel. The upgrade will also allow a limited amount of information to be posted to the Web for Utilities’ customers. The project costs include hardware, software licenses, software, warranty and outside turn-key installation with project support from staff. With a Fiscal Year 2001-02 budget of $110,000, staff plan to install an Oracle server to allow data to be available to other City personnel via the Intranet. The budget also contains $150,000 and $160,000 over the following two years to upgrade the existing system and further implement the Oracle data system. After the budget was adopted, staff determined that the existing system would first need to be upgraded to be able to support the Oracle addition. Staff also determined that portions of the later upgrade tasks were necessary up front to allow the upgraded system to work properly and to regain sufficient speed for the SCADA operators. While staff intended to stage the system upgrade over two years, staff determined that doing so would not allow adequate use of the new capacity until the second phase was complete. Therefore, the order of major tasks has been rearranged and the upgrade portion of the project hasbeen accelerated for completion in one year instead of two. The overall major project will be reduced to a two year completion. CMR:215:01 Page 2 of 4 Bid Process x. The current syStem is under a support agr, cement with ACS, which was~’/ap.proved by Council on May 28, 1996 (,CMR:269:96). Due to the proprietar?).system provided by ACS, ACS must perforrr) the upgrades to the system. No other vendor can provide this upgrade and still maintain full support and software upgrades for the current system. For this reason, staff recommends a sole source with ACS.for this contract. The proposed contract scope and price was negotiated with ACS. RE S OURCE. IMPACT The total cost oft_his project is estimated tO be $250,000. Funding in the FY/01-02 budget is $110,000. Staff is seeking approval of the attached BAO in the amount of $.140,000 to fully fund the system upgrade in this year; instead of the original two year plan. The contract with ACS is expect.e.d to cost $208,966, plus travel expenses estimated to be $2,600, for a total contract amount of $2!1,566. The remaining difference of $38,434 is needed to fund.. City project management expenses andthe possible costs for contingency. A Budget Amendment Ordinance (BAO)in the amount of $140,000 is requested to fund the project.. Funds will be transferred from the Electric Distribution Rate Stabilization Reserve to the SCADA System-Upgrade Capital Improvements Program (CIP0210): ,.,- This action has minimal impact on Utilities Staff, since the majority of the work will be performed by an outside contractor. POLICY IMPLICATIONS The award of this contract does not represent, any change to existing City policies. ENVIRONMENTAL REVIEW This project is categorically exempt from the California Environmental Quality Act and no further review is necessary. CMR:215:01 Page 3 of 4 ATTACHMENTS Budget Amendment Ordinanc~~ Summary of Budget Amendmen[’ Ordinance Impacting Stabilization Reserves Approved to Date In 2001-02 Contract the Utilities Rate PREPARED BY: S.W. ZUQg’ARO Sr. Power Engineer DEPARTMENT HEAD: CITY MANAGER APPROVAL: of Utilities Assistant City Manager CMR:215:01 Page 4 of 4 ORDINANCE NO.. ORDINANCE OF THE COUNCIL OF THE. CITY OF PALO ALTO AMENDING THE BUDGET FOR THE FISCAL YEAR 2001.-02 TO PROVIDE AN ADDITIONAL APPROPRIATION OF $140,000 TO ALLOW ACCELERATION OF CAPITAL IMPROVEMENT PROGRAM PROJECT 0210, SCADA SYSTEM UPGRADES WHEREAS, pursuant to the provisions of Section 12 of Article III of the Charter of the City of Palo Alto, the Council on June ii, 2001 did adopt a budget for fiscal year 2001-02; and WHEREAS,the City Council approved a budget of $ii0,000 for Capital Improvement Program Project 0210, SCADA System Upgrades, for the addition of an Oracle server; and WHEREAS,staff recommends accelerating this project to be completed in FY 2001-02 instead of performing the project in two phases and completing in FY 2002-03; and WHEREAS, an additional appropriation of $140,000 is needed for capital improvement program project 0210 to perform the project in FY 2001-02; and WHEREAS, the additional appropriation of funds from the Electric Fund Distribution Rate Stabilization Reserve is a one-time cost and no future ongoing costs are anticipated. WHEREAS, City Council authorization is needed to amend the 2001-02 budget as hereinafter set forth. NOW, THEREFORE, the .Council of the City of Palo Alto does ORDAIN as follows: SECTION i. The sum of One Hundred Forty Thousand Dollars ($140,000) is hereby appropriated to Capital Improvement Project No. 0210, and the Electric Fund Distribution Rate Stabilization Reserve is correspondingly reduced. SECTION 2. This transaction will reduce the Electric Fund Distribution Rate Stabilization Reserve from $3,176,000 to $3,036,000. SECTION 3. As specified in Section 2.28.080(a) of the Palo Alto Municipal Code, a two-thirds vote of the City Council is required.to adopt this ordinance. SECTION 4. This project has been determined to be categorically exempt under Section 15302 of the California Quality Act. SECTION 5. ~As provided in Section 2.04.350 of the-Palo Alto Municipal Code, this ordinance shall become effective upon adoption. INTRODUCED AND PASSED: AYES: NOES: ABSTENTIONS: ABSENT: ATTEST:APPROVED: City Clerk Mayor APPROVED AS TO FORM:City Manager Senior Asst. City Attorney Director of Services Administrative Director of Utilities City of Palo Alto ATTACHMENT B Budget Amendment Ordinances Impacting Utilities Rate Stabilization Reserves Approved ’To Date in 2001-02 09/24/01 SCADA System Upgrade - CIP 0210 $0 ($140,000)($140,000) I~otal BAOs RSR Balance After BAO’s $0 ($140,000)$0 ($140,000)$0 $3,036,000 CONTRACT NO. BETWEEN THE CITY OF PALO ALTO AND ADVANCED CONTROL SYSTEMS, INC. FOR SUPERVISORY CONTROL AND DATA ACQUISITION MASTER STATION INSTALLATION This Contract No.is entered into , by and between the CITY OF PALO ALTO, a chartered city and a municipal corporation of the State of California ("CITY"), and ADVANCED CONTROL SYSTEMS, INC., a Georgia corporation, !ocated at 2755 Northwoods Parkway, Norcross, GA 30071 ("CONTRACTOR")I RECITALS: WHEREAS, cITY desires to upgrade certain computer equipment and supervisory control and data acquisition ("SCADA") software and system master station, installation, and services ("Services"), as more fully described in Exhibit’"A"; and WHEREAS, CITY desires to engage CONTRACTOR, including its employees, if any, in providing the Services by reason of its qualifications- and experience in performing .such Services, and CONTRACTOR has offeredto provide the Services on the terms and in the manner set forth.herein; WHEREAS, CONTRACTOR is the provider of SCADA equipment, software and software documentation, and.wil! furnish installation, maintenance, and technical support related to such equipment and software as~described in the several exhibits; -, NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this Contract, the parties agree: SECTION I. TERM i.I This Contract will commence on the date of its execution by CITY. The obligation of CONTRACTOR to perform the Services will commence in accordance with the time schedule set forth in Exhibit "A". Time is of the essence of this Contract. In the event that the Services are not completed within the specified time schedule on account of CONTRACTOR’s default, CITY’s city manager will have the option of extending the time schedule for any period of time. A party to this Agreement shall not be liable for a delay, in performing or failure to perform a covenant of, or term, condition or provision of this Agreement imposed upon, such party if such delay or failure to perform is. caused by an act of God om any other factor which is beyond the reasonable control of such party. This provision will not preclude the recovery of damages for delay caused by CONTRACTOR. SECTION 2. CONTRACTOR QUALIFICATIONS,STATUS,AND DUTIES OF 2..1 CONTRACTOR represents and warrants that it has the expertise and professional qualifications to furbish or cause to be furnished the Services. CONTRACTOR further represents and warrants that the project director and every individual charged with the performance of the Services under this Contract are duly licensed or certified by the State of California, to the extent, such licensing or certification is required by law to perform’ the Services. 2.2 In relianc~ on the representation and warranty set. forth in Section 2.1, CITY hires CONTRACTOR to .perform, and CONTRACTOR covenants and agrees that it will furbish or cause to be furnished, the. Services. 2.3 CONTRACTOR Will assign TED MASTERS as the project director to have supervisory responsibility for the performance, progress, and execution of the Services. If circumstances or conditions subsequent to the execution of this Contr.act cause the substitution of the project director for any reason, the appointment of a substitute project director will be subject to the prior written approval of the project manager. 2.4 CONTRACTOR represents and warrants that it will: 2..4.1 Procure all permits and licenses, pay all charges and fees, and give all noticeswhich may be necessary and incident to the due and lawful prosecution of the Services; 2.4.2 Keep itself fully informed of allexisting and future Federal, State of California, and local laws, ordinances, regulations, orders, anddecrees which may affect those engaged or employed under this Contract, any materials used in CONTRACTOR’s .performance under this"Contract,or the performance of the Services;.- 2.4.3 Atall times observe and comply with, and cause its employees and contractors (and consultants), if any, who are assigned to the performance of this Contract to observe and comply with, the laws, ordinances, regulations, orders and decrees mentioned above; and 2.4.4 Will report immediately to the project manager, in w.riting, any discrepancy or inconsistency it discovers in the laws, ordinances, regulations, orders, and decrees mentioned above in relation to any plans, drawings, specifications or provisions of this Contract. 2.5 Any reports, information, data or other material given to, or prepared or assembled by, CONTRACTOR or its contractors, if any, under this Contract will become the property of CITY and will not be made available to any individual or organization by CONTRACTOR or its .contractors, if any, without~the prior written approval of the city manager. 2.6 CONTRACTOR will not provide CITY with any copies of a final report. 2.7 If CITY requests additional copies of reports, drawings, specifications or. any other material which CONTRACTOR is. required to furnish in limited quantities in the performance of the Services, CONTRACTOR will provide such additional copies and. CITY will compensate CONTRACTOR for its actual costs. 2.8 CONTRACTOR will be responsible for employing or engaging all persons necessary to perform the Services.. All contractors of CONTRACTOR will be deemed to be directly controlled and supervised by CONTRACTOR, which will be responsible for their performance. If any employee .or contractor of CONTRACTOR fails or ¯ refuses to carry out the provisions of this Contract or appears to be incompetent or to act in a disorderly or improper manner, the employee or contractor will be discharged immediately from further performance under this Contract on demand of the project manager. 2.9 CONTRACTOR warrants that goods manufactured or developed by CONTRACTOR and sold hereunder shall be .free from material defects in materials and workmanship for a period of TWELVE (12) months from time of shipment and shall perform substantial conformity with the specifications, as modified and accepted in this Contract. CONTRACTOR makes this limited warranty in lieu of all other~warranties, whether express or impli@d, with respect to the goods, including but not limited to any implied warranties for merchantability or fitness for a particular purpose. Any obligation of CONTRACTOR under this limited warranty shall automatically and immediately terminate without notice from or any further action by CONTRAGTOR, and CONTRACTOR shall have no responsibility for damages of any kind as a result of the occurrence of any of the following: (i) mlsuse, abuse or negligent use of the goods or any component thereof, or (ii) any repair or alteration of the goods or any component thereof made by any third party other than CONTRACTOR, except under written authorization of CONTRACTOR. The CITY’s remedies for any goods that fail to meet the standards of the CONTRACTOR’s limited warranty are limited to the replacement or repair of such goods at the sole discretion of CONTRACTOR reasonably exercised. The total liability of CONTRACTOR for all claims, whether in contrac%, tort or otherwise, arising out of, connected with, or [esulting from use of any goods or services provided by CONTRACTOR shall not exceed the total fees and charges-paid to CONTRACTOR by the CITY during the twelve (12) months .preceding any 3 such claim. In no event will CONTRACTOR be liable for any incidental, consequential, indirect, exemplary or special damages, Of whatever kind and however caused including (without limitation) damages for loss of revenue, loss "of savings or cost of capital, even if CONTRACTOR knew or should have known of the possibility of such damages. SECTION 3. DUTIES OF CITY 3.1 CITY will furnish or cause to be furnished the specified services set forth in Exhibit "A" and such other information regarding its requirements as may be reasonably requested by CONTRACTOR. 3.2 The city manager will represent CITY for all purposes under this Contract. SAM ZUCCARO is designated as the project manager for the city manager. The project manager will supervise the performance, progress, and execution of the Services. 3.3 If CITY observes or otherwise becomes aware of any default in the performance of CONTRACTOR, CITY will use reasonable efforts to give written notice thereof to CONTRACTOR in a timely manner. SECTION 4 - COMPENSATION 4.1 In consideration of the full performance of the Services by CONTRACTOR, CITY will pay CONTRACTOR a tota! sum not to exceed Two Hundred Eleven Thousand Five Hundred Sixty-Six Dollars ($211,566), payable within thirty (30) days of submission by CONTRACTOR of its itemize~ billings, in triplicate, in accordance with the following fee schedule set forth in Exhibit SECTION 5. AUDITS 5.1 CONTRACTOR will permit CITY to audit, at any reasohable time during the term of this Contract and for three (3) years thereafter, CONTRACTOR’s records pertaining to matters covered by this Contract. CONTRACTOR further agrees to maintain and retain such records for at least three (3) years after the expiration or earlier termination of this Contract. SECTION 6. INDEMNITY 6.1 CONTRACTOR agrees to protect, indemnify, defend and hold harmless CITY, its Council members, officers, employees and agents from any and all demands, claims, or liability of any nature; including death or injury to any person, property damage or any other loss, caused by or arising out of CONTRACTOR’s, its officers’, agents’, subcontractors’ or employees’ negligent acts, errors, or omissions, or willful mlsconduct, or conduct for which applicable law may impose strict liability on CONTRACTOR in the 4 performance of or failure to perform its obligations under this Contract. 6.2 CONTRACTOR shall (i) assume the defense of any suit brought against CITY for infringement of a United States Letter Patent arising solely from the use/or sale of goods furnished hereunder, (ii) defray the expense of such defense and (iii) indemnify CITY against any money_ damages and/or costs awarded in such suit provided; (a) that CONTRACTOR is given sole and exclusive control of all litigation proceedings including negotiations relative to the settlement thereof (b) that the liability claimed shall have arisen solely because of CONTRACTOR’s selections as to the design, composition or manufacture of such goods as that such goods are in the form, state and condition as sold by CONTRACTOR, (c) that CITY shall have made all payments then due, and (d) that CITY promptly informs CONTRACTOR in writing of any claims with respectto which CONTRACTOR assumes responsibility hereunder. If such goods, or any part thereof, shall be held to infringe any united States Letter Patent, and CITY is enjoined from using.such goods or such infringing part thereof, CONTRACTOR, at its option and expense will (11 procure for CITY the right to use such goods or such infringing part thereof in the United States free from any liability for patent infringement, (2) replace such goods or Such infringing part thereof with non-infringing substitute otherwise complying with the requirements of the Contract, or. (3) repurchase .such goods or such infringing pa~t thereof from CITY at the price paid thereof. The foregoing states the entire liability of CONTRACTOR for patent infringement by such goods or any part thereof. SECT,ION 7.WAIVERS 7.1 The waiver by either party of any breach or violation of any covenant, term, condition or provision of this Contract, or of the provisions of any ordinance or law, will not be deemed to be a .waiver of any other term, covenant,{., condition,- provisions, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law. The subsequent acceptance by either" party of any fee or other money which may become due hereunder will not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, condition or provision of this Contract or of any applicable law or ordinance. 7.2 No payment, partial payment~ acceptance, or partial acceptance by CITY will operate as a waiver on the part of CITY of any of its rights under this Contract. 5 SECTION 8 INSURANCE 8.1. CONTRACTOR, at its sole cost a~d expense, ¯ will obtain-and maintain, in full force and effect during the term of this Contract, the insurance coverage described in Exhibit "C", insuring not only CONTRACTOR and its contractors, if any, but also, with the exception of workers’ compensation, employer’s liability, and professional liability insurance, naming CITY as an additional insured concerning CONTRACTOR’s performance under this Contract. 8.2 All insurance coverage required hereunder will be provided through carriers with Best’s Key Ratinq Guide ratings of .A:VII or higher which are admitted to transact insurance business in the State of California. Any and all contractors of CONTRACTOR retained to perform Services under this Contractwill obtain and maintain, in full force and effect during the term of this Contract, identical insurance coverage, naming CITY as an additional insured under such policies as required above. 8.3 Certificates of such insurance, preferably on the forms provided by CITY, will be filed with CITY concurrently with the execution of this Contract. The certificates will be subject to the approval of CITY’s risk manager and will contain an endorsement stating that the insurance is primary coverage and will not be canceled or altered by the insurer except after filing with CITY’s city clerk thirty (30) days’ prior written notice of such cancellation or alteration, and that the City of Palo Alto is named as an additional insured except in policies of workers’ compensation, employer’s liability, and professional liability insurance. Current certificates of such insurance will be kept on file at all times during the term ~f this Contract with the city clerk. 8.4 The procuring of such required policy or policies of insurance will not be construed to limit CONTRACTOR’s liability hereunder nor to fulfill the indemnification provisions of this Contract. Notwithstanding the policy or policies of insurance, CONTRACTOK wil! be obligated for the full and total amount of any damage, in3ury, or loss caused by or directly arising as a result of the Services performed under this Contract, including such damage, injury, or loss arising after the Contract is terminated or the term has expired. SECTION 9. WORKERS’ COMPENSATION 9.1 CONTRACTOR, by executing- this Contract, certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code, and certifies that it will comply with such provismons, as applicable, before commencing the performance Of the Services. 6 SERVICES SECTION i0.TERMINATION OR SUSPENSION OF CONTRACT OR I0.I The city manager may suspend the performance of the Services, in whole or in part, or terminate this Contract, with or without causE, by giving thirty (30) days’ prior written notice thereof to CONTRACTOR. Upon receipt of such notice, CONTRACTOR will immediately discontinue its performance of the Services. 10.2 CONTRACTOR may terminate this Contract or suspend its performance of the ServZces by giving thirty (30) days’ prior written notice thereof to CITY, but only in the event of a substantial failure of performance by CITY or in the event CITY indefinitely withholds or withdraws its request for the initiation or continuation of the Services to be performed. 10.3 Upon. such suspension or termination by CITY, CONTRACTOR will be paid for the Services actually rendered to CITY on or before the effective date of suspension or termination; provided, however, if this Contract is suspended or terminated on account of a default by CONTRACTOR, CITY will be obligated to compensate CONTRACTOR only for that portion of the Services which are of direct and immediate benefit to CITY, as such determination may be made by the city manager acting in the reasonable exercise of her discretion. 10.4 Upon such suspension or termination, CONTRACTOR will deliver to the city manager immediately any and all copies of studies, sketches, drawings, computations, and other data, whether or~not completed, prepared by CONTRACTOR or its contractors, if any, or given to CONTRACTOR or its contractors, if any, in connection with this Contract. Such materials will become the property of CITY. 10.5 The failure of CITY to agree with CONTRACTOR’s independent findings, conclusion~,, or recommendations, if the same are called for under this Contract, on the basis of differences in matters of judgment, will.not be construed as a failure on the part of CONTRACTOR to fulfill its obligations under this Contract. SECTION ii.ASSIGNMENT II.i This Contract is for the personal services of CONTRACTOR, therefore, CONTRACTOR will not assign, transfer, convey, or ofherwise dispose of this Contract or any right, title or interest in or to the same or any part thereof without the prior written consent of CITY. A consent to one assignment will not be deemed to be a consent to any subsequent assignment. .Any assignment made without the approval of the city manager will be void and, at the option of the city manager, this Contract may be 7 terminated. law. This Contract will not be assignable by operation of 11.2 CITY shall not assign, transfer, convey, or otherwise dispose of this Contract or any right, title or interest in or to the Master Station System, or any part thereof, without the prior written consent of CONTRACTOR, which consent shall not be unreasonably withheld. SECT{ON 12. NOTICES 12.1 All notices hereunder will be given in writing and mailed, postage prepaid, by certified mail, addressed as fol!ows: To CITY:Office of the City Clerk City of Palo Alto Post Office Box 10250 Palo Alto, CA 94303 To CONTRACTOR: Attention of the Manager, Contract Administration at the address of CONTRACTOR recited above SECTION 13. CONFLICT OF INTEREST 13.1 In accepting this Contract, CONTRACTOR covenants that it presently has no interest, and will not acquire any interest, director indirect, financial or otherwi,se, which would conflict in any manner or degree with the performance, of the Services.- 13.2 CONTRACTOR further covenants that, in the performance of this Contract, it will not employ any contractor or person having such an interest. CONTRACTOR certifies that no person who has or will have any financial interest under this Contract is an officer or employee of CITY; this provision will be interpreted in accordance with-, the applicable provisions of the. Palo Alto Municipal Code and the Government Code of the State of Cali.fornia. SECTION 14.NONDISCRIMINATION 14.1 As set forth inthe Palo Alto Municipal Code, no discrimination will bemade in the employment of any person under this Contract because of the age, race, color, national origin, ancestry, religion, disability, sexual preference or gender of that person. If the value of this Contract is, or may be, five thousand dollars ($5,000) or more, CONTRACTOR agrees to meet all requirements of the Palo Alto Municipal Code pertaining to nondiscrimination in employment, including completing the requisite form furnished by CITY and set forth in Exhibit "D". 8 14.2 CONTRACTOR agrees that each contract for services with an~independent provider will contain a provision substantially as follows: "[Name of Provider] wi!l provide CONTRACTOR with a certificate stating that [Name of Provider] is currently in compliance with all Federal and State of California laws covering nondiscrimination in employment; that [Name of Provider] will pursue an affirmative course of action as required by the Affirmative Action Guidelines of the City of Palo Alto; and that [Name of Provider] will not discriminate in the employment of any person under this .contract because of the age, race, color, national origin; ancestry, religion, disability, sexual preference or gender of such person." 14.3 If CONTRACTOR is found in violation of the nondiscrimination provisions of the State of California Fair¯ Employment Practices Act or similar provisions of Federal law or executive order in the performance of this Contract, it will be in default of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct the sum of twenty-five dollars ($25) for each person for each calendar day during which such person was subjected to acts of discrimination, as damages for breach of contract, or both. Only a finding of the State of California Fair Employment Practices Commission or the equivalent federal agency or officer will constitute %vidence of a breach of this Contract] 14.4 If CONTRACTORis in default of the nondiscrimination provisions of this Contract or the Affirmative Action Guidelines pertaining to this Contract, CONTRACTOR will be found in material breach of this Contract. Thereupon, CITY will have the power to cancel or suspend this Contract, in whole or in part, or to deduct from the amount payable to CONTRACTOR the sum of two hundred fifty dollars ($250) for each calendar day during which CONTRACTOR is not in compliance with this provision as damages for breach of contract, or both. SECTION 15.MISCELLANEOUS PROVISIONS 15.1 CONTRACTOR represents and warrants that it has knowledge of the requirements of the Americans with Disabilities Act of 1990, and the Government Code and the Health and Safety Code of the State of California, relating to access to public buildings and accommodations for disabled persons, and relating to facilities for disabled persons. CONTRACTOR will comply with or ensure by its advice that compliance With such provisions will be effected in the performance of this Contract. 9 15.2 This Contract will be governed by the laws of the State of California, excluding its conflicts of law. 15.3 In the event that an action is brought, the parties agree that trial of such action will be vested exclusively in the state courts of California or in the United States District Court for the Northern District of California in the County of Santa Clara, State of California. 15.4 The prevailing party in any action brought to .enforce the provisions of this Contract may recover its reasonable costs and attorneys’ fees expended in connection with that action. 15.5 This document represents the entire and integrated agreement between the.parties and supersedes all prior negotia- tions, representations,, and contracts, either written or oral. This document may be amended only by a written instrument, which is signed by the parties. 15.6 All provisions of this Contract, whether covenants or conditions, will be deemed to be both covenants and conditions. 15.7 The covenants, terms, conditions and provisions of this Contract will apply to, and will bind, the heirs, successors, executors, administrators, assignees, and contractors,, as the case may be, of the ~parties. 15.8 If a court of competent jurisdiction finds or rules that any provision of this Contract or any amendment thereto is void or unenforceable, the unaffected provisions of t~is Contract and any amendments thereto will remain in full force and effect. ¯15.9 All .exhibits referred to in this Contract and any addenda, appendices, attachments, and schedules which, from time to time,, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Contract and will be deemed to be a part of this Contract. 15.10 This Contract may be executed in any number of counterparts,each of which will be an original, but all of which together.will constitute one and the same instrument. 15.11 This Contract is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipa! Code. This Contract will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated for the following fiscal year, or (b) .at any time within a fiscal year in the event that funds are only appropriated for a portion of the fisca! year and funds for this Contract are no longer available. This Section 15.11 shall take precedence in the event i0 of a conflict with any other covenant, term, provision of this Contract. condition, or 15..12 In the event of any conflict involving interpretation of this Contract, the order of precedence for interpretation of provisions of this Contract shall be as follows: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Scope of Services and Time Schedule Quotation Insurance Nondiscrimination Compliance Form Software License Agreement Customer Confidentiality Agreement Support Agreement IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Contract on the date first above written. ATTEST:CITY OF PALO ALTO City Clerk APPROVED AS TO FORM: Senior Asst. City Attorney APPROVED: Assistant City Manager Director of Utilities Director of Administrative Services Risk Manager Attachments:EXHIBIT "A": EXHIBIT !’B": EXHIBIT "C": EXHIBIT "D": EXHIBIT "E": EXHIBIT "F": EXHIBIT "G": Mayor ADVANCED CONTROL SYSTEMS, INC. /! By: Its:- Taxpayer’s i.D. No. 58-1224052 [Compliance with Corp. Code @ 313 is required if the entity on whose behalf this contract is signed as a corporation; or in the alternative, a-certified corporate resolution attesting to the signatory authority of the individuals signing in their respective capacities is acceptable] SCOPE OF SERVICES-AND TIME SCHEDULE QUOTATION INSURANCE NONDISCRIMINATION COMPLIANCE FORM SOFTWARE LICENSE AGREEMENT CUSTOMER CONFIDENTIALITY AGREEMENT SUPPORT AGREEMENT II CERTIFICATE OF ACKNOWLEDGEMENT (Civil Code § 1189)’, On. ~o¢. I , 2001, before me, ~ - a Notary .~blic in and for said County and State, . perso~@lly appeared ~P~5+ ~ ~b1~4~-- , personally known to me or proved to me on the basis of satisfactory .evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they exe.cuted the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf.of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Notary Public, Gwlnnett Count, Georgia CERTIFICATE OF ACKNOWLEDGEMENT (Civil Code § 1189) STATE OF ,) ) SSo COUNTY OF ) On , 2001, before me, , a Notary Public in and for said County and State, personally appeared , personally known to me or proved to me on the basis of s~tisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that bY his/her/their signature(s) on the instrument the person(s), or the entity, upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public 12 ADVANCED CONTROL SYS-I’EM8~PROPRIETARY Delegation of Authority Agreement, Advanced Control Systems, Inc. In my capacity as the Executive Vice President of Advanced Control Systems, Inc. (the ’Company’), and with the ability to delegate responsibilities to employees of the Company, I, Robert C. Frenzel, hereby authorize and appoint you, Horst W. Ruckert, to sign the Company’s response to requests for proposals for control systems, contracts, bonds, and third party agreements (the ’Delegated Authority’). " In exercising your Delegated Authority, you may execute on behalf of the Company any documents or contracts that directly relate to your Delegated Authority under this agreement. You agree to use your best efforts to utilize your Delegated Authority as directed or as it might be used to accomplish the best interests of the Company. You may not represent to any party, whether another employee of the Company or a third party not affiliated with the Company, that you have any greater authority than the authority delegated above. You may exercise your Delegated Authority from January 1, 1999 until the Delegated Authority is no longer necessary or is impracticable because of the accomplishment of a Company goal, or when I. give you notice that you no longer have the right to exercise your Delegated Authority. Agreed to this 1st day of January, 1999, by Executive Vice President/CFO Horst W. Ruckert Manager, Contract Administration Delegation of Authority Agreement Revised January 1, 1999 Page 1 of 1 EXHIBIT A CITY of Palo Alto - SCADA Upgrade Scope of Work The basic scope of work is to upgrade the existing SCADA-System (furnished by Advanced.Control Systems (ACS) in 1996). The final result shall be to improve the speed and capacity of the existing SCADA system, and to replace obsolete hardware. The project shall be turn,key in scope, with all necessary hardware and software completely tested, installed, and made ready foJ: reliable operation. The project shall include butnot be limited to the following: Add 2 new HP A500 ¯ ¯ ¯ ¯ ¯ ¯ ¯ ¯ servers with: 550 MHz, 64 bit PA8500 RISC Processor 512 MB of ECC RAM Two(2) 9 GB Disk Drives External 12x CD-ROM Drive External 12 GB DDS-3 DAT Drive One (1) 700/96 Console Dual 10/i00 Base-T LAN Adapters Enhanced Keyboard and Mouse Provide I-~P-U’X release 11.0 Software Licenses with: ¯LAN/9000 with TCP/IP ¯ARPA/9000 Network Services ¯NFS/9000 Network File Services ¯X-Windows Software V11.5 - System License ¯H.P Visual User Environment (VUE) 3.0 ¯K&R C Compiler Replace 2 existing HP Workstations with 2 new HP Vectra VL400 NT~based workstations each with: ¯933 MHz, Pentinm III Processor ¯256 MB of ECC RAM ¯20.GB Disk Drive ¯Two (2) Matr0x graphics processor cards ¯Two (2) 21" high resolution, Color monitors ¯Two (2) 10/100 Base-T LAN Adapters ¯Windows 2000/NT ¯Reflections X for W2000/NT ¯Enhanced Keyboard and Mouse ¯Check existing.consoles regarding physical dimensions 5. 6. 7. Keep in service one existing HP workstation Existing ACS Software shall be transferred to new servers Provide New ACS Short term Load Forecasting Software (priced as an option) Upgrade ne~cvork hardware with: ¯2 new Digi Port Servers, each with 16 ports. ¯2 new HP 24 port 10/100 Base-T Hubs ¯1 new Satellite GPS Clock with Antenna and cable ¯ . New server and equipment cabinet(s), interconnection cables, power distribution, and all misc. hardware needed for complete system integration. Replace 4 Front-end processor and 1 hot-standby motherboards, pre-wired and tested, able to receive the City’s existing FEP modules. If necessary, upgrade all city-owned FEP and psi card firmware ~h the latest versions. Project will be considered a turn-key project. ACS will provide all Project Management, Engineering, System Integration, component acquisition, Manufacturing, integrating, and testing labor. ACS shall clearly state any City labor or.materials needed to support the upgrade proce-’ss. This .shall include any special power requirements, labor by an electrician if needed to discormect and reconnect power to existing and new equipment. ACS shall estimate the number of days of on- site service to accomplish the change-over from the old system to the new upgraded system, and provide the costs for this. 10.Twelve (12).months warranty to provide on-site maintenance within three business day response by H_P for hardware problems. Price adder to reduce response to one business day. Repair or replacement if necessary of any other equipment. Warranty shall include all software against defects. . S.W. Zuccaro September 9, 2001 " ADVANCED CONTROL SYSTEMS" August 24, 2001 Mr. Fernando Vele~. Palo Alto Electric Utility 250 Hamilton Ave. Palo Alto, CA. 94301 Re:. ACS Quotation Dear Mr. Velez: We are pleased to offer our quotation for your SCADA upgrade project, City reference number 135850. Attached is our pricing for the total request for your items 1 - 10. Additionally as you requested, we have listed sep’erately the HP pricing which is attached in Exhibit I. Please,understand, ACS would not be in a position to accept-a~ull "turn-key" responsibility for the system as you describe if the HP hardware were purchased outside. Although we will continue to provide our engineering, integration and support for the project as we have -quoted, the elements pertaining to the KP hardware would become out of our control. This would include issues of hardware quality, design specification, testing , performance, drawings and logistics, We believe as a channel partner with !-[P, we offe} their products at very competitive prices and provide additional value for our design integration and handling of this portion of the project. However, should you chose to purchase the hardware elsewhere, you may simply deduct our quoted HP prices from the project total which would then represent our contract price for your request. Specifically, the total project price we have quoted is $191,674 (plus travel expenses). Should you purchase the I-IP hardware items 1.1, 1.2, 1.4 and 1.7 from another source where we have quoted a total price of $36,285 then our price would simply be reduced by this amount or become $155,389 (plus travel expenses). .ADVANCED CO NTROL SYSTEMS" We hope this provides a satisfactory response to meet your requirements and look forward to your review of our proposal. Should you need any additional information, please give me a call. Ted Masters Strategic Sales Manager ADVANCED CONTROL SYSTEMS" Ext. Price Exhibit I Item Description of HP Hardware $29,397 1.1 Included 1.2 $6112 1.4 $776 included 2 HP A500 Servers with: ¯550 MHz, 64 bit PA8500 RISC Processor ¯512MB of ECCRAM ¯Two(2) 9 GB Disk Drives ¯External 12x CD-ROM Drive ¯External 12 GB DDS-3 DAT Drive ¯One (1) 700/96 Console ¯Dual 10/100 Base-T LAN Adapters ¯Enhanced Keyboard and Mouse HP-UX Release 11.0 Software Licenses LAN/9000 with TCP/IP ARPA/9000 Network Services NFS/.9000 Network File Services X-Windows Software V11.5 - System License HP Visual User Environment (VUE) 3.0 KSZR C Compiler 2 I-IP Vectra VL400 NT-based workstations with: ¯933 MI-Iz, Pentium Ill Processor ¯256 MB of ECC RAM ¯20 GB Disk Drive ¯Two (2) Matr0x graphics processor cards ¯Two (2) 21" high resolution, color monitors ¯Two (2) 10/100 Base-T LAN Adapters ¯Windows 2000/NT ¯Reflections X for W2000/NT ¯Enhanced Keyboard and Mouse 1.7 2 I-IP 24 port 10/100 Base-T Hubs 1.11 lot Twelve (12) months warranty maintenance within three business day response by I-IPI to provide on-site ADVANCED CONTROL SYSTEMS® 2?.55 Nortl{w0ods Parkway Norcross, Georgia 30071 Tel.: (?~.0) 446-8854 Fax: (7?0) 448,095? Quotation Page 1 of 3 To:City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94303 Attn:Sam Zuccaro Phone #:650-566-4508 Fax #:650-566-4536 Date: June 1, 2001 ACS Quote No.: EC01Q-1989 rev 1 F.O.B. (X)Norcross Terms: As Stated Below Customer Requested Date ACS Estimated Shipping Date Description This quotation is for adding new A500 SCADA servers, NT Workstations, upgrading network equipment, and for a satellite Clock. Add new AS00 SCADA servers Hardware Hewlett-Packard A500 Server with: ~550 MHz, 64 bit PA8500 RISC Processor ~512MB of ECC RAM ~Two (2) 9 GB Disk Drives~Extenral 12x CD-ROM Drive ~External 12GB DDS-3 DAT Drive ~One (1) 700/96 Console~Dual 10/100 Base-T LAN Adapters ~Enhanced Keyboard and Mouse Hewlett-Paekard Software Licenses HP-UX Release 11.0 LAN/9000 with TCP/IP ARPA/9000 Network Services NFS/9000 Network File Services X-Windows Software V11.5 - System License HP Visual User Environment. (VUE) 3.0 K&R C Compiler ACS Software Existing RDAC software to be transferred to new SCADA servers. New ACS Software SB-900830 Short Term Load Forecasting Item Qty 1 1.1 2. 1.2 2 1.3 Lot Customer P. 0. or Contract No: Ship Via: Best Way Invoice.Sales Tax °/6 Not Included Invoice Shipping Charge~ Not Included Unit Price Total FORM ID: 4.3-002-004 ROUTING: Customer Project Proposal/Quote File ORIG. DATE: Nov. 1976 REVISION: 4__DATE: August 4, 2000 " ADVANCI=D CONTROL SYSTE~MS® 2755 Northwoods Parkway Norcross, Georgia 30071 Tel.: (770) 446-8854 Fax: (770) 448-0957 City of Palo Alto June 1, 2001 ACS Quote No.: EC01Q-1989 revl Quotation Page 2 of 3 Item Qty 1.4 2 1.5 4 1 1.6 2 1.7 2 1.8 1 1.9 Lot 1.10 .Lot Description NT workstations to replace existing 712/80 workstations Hewlett-Packard Vectra V-L400 with: ~933 MHz, Pentium III Processor ~256MB of ECC RAM ~20 GB Disk Drive~CD-ROM Drive ~Two (2) Matrox graphic processor cards ’ ~Two (2) 21" high resolution, Color monitors~Two (2) 10/100 Base-T LAN Adapters ~Windows 2000/NT~. Reflections X for W2000/NT ~Enhanced Keyboard and Mouse SCADA Master to RTU Communications Front End Processor motherboards, pre-wired and tested, able to receive customer’s existing FEP modules. Customer’s.existing FEP modules are the current hardware configuration, and will be used in the pre-wired FEPs. If necessary, the protocol firmware will be upgraded. Ho~ Standby Front End Processor motherboard, pre: wired and tested,, able to receive customer’s existing Hot Standby FEP modules. Customer’s existing Hot. Standby FEP modules are the current hardware configuration, and will be,used in the pre,wired FEPs. If necessary, the protocol firmware will be upgraded. Miscellaneous Network Hard~vare Replace existing multiplexer ports with Digi port servers, each with i6 ports. HP 24 port 10/100 Base-T Hubs True Time Model XL-AK GPS clock, with antenna and 50’ of cable New Server cabinet, Server interconnection cables, New network cables, interconnection cables for port servers, and miscellaneous hardware for system integration. System Integration and Project Support Project Management, Engineering, Drafting, Component Acquisitionl Manufacturing, Integration and Testing Labor. FOR.MID: 4.3-002-004 ROUTING: Customer Project Proposal/Quote ~ile ORIG. DATE: Nov. 1976 REVISION: 4__ Unit Price Total DATE: August 4~ 2000 ¯ ADVANCE~D CONTROL SYSTEMS® 2755 Northwoods Parkway Norcross, Georgia 30071 Tel.: (770) 446-8854 Fax: (770) 448-0957 City of Palo Alto June 1, 2001 ACSQuote No.: EC01Q-1989 revl Quotation Page 3 of 3 Item Qty 1.11 1,12 10 Days Description Warranty The ACS twelve (12) months warranty provides on-site maintenance with three business day response by HP for hardware problems, repair of ACS equipment at the factory, and covers all sofiwar.~ against defects. Sub-Total Price for Adding new AS00 SCADA Servers, NT Workstations, Network Hardware, ,and. Satellite Clock Onsite Installation Assistance ACS estimates ten (10) days of onsite assistance will be necessary for the server replacement and system reconfiguration. Customer will be charged actual time spent, including travel time, plus expenses. Unit Price Total $1,400/day plus expenses Total Quotation Price Payment Terms ACS’ standard payment.schedule is as follows: . 20% , At Contract 70% At Shipment 10% At Final Acceptan"ee or Within 90 DaYs of Shipment Providing that any Delay in Acceptance is not the Fault of ACS. ~$177,674 $14,000 plus expenses $191,674 plus _ expenses The above quotation is valid for ninety (90) days. All prices are based on system purchase. All purchase orders should be mailed to contract administrator at the above address. This quotation contains proprietary information. By:David Estock Title: Program Manager, Domestic Systems. FORM ID: 4.3-002-004 ROUTING: Customer Project Proposal/Quole File ORIG. DATE: Nov. 1976 REVISION: ,1 DATE: August 4, 2000 City of Palo Alto - SCADA Upgrade Sys~tem Description Phase I: TOTAL PRICE: $191.7 K A, New Equipment Cabinet: ACS will manufacture, a new equipment cabinet in Atlanta complete with all necessary hardware to connect to the system. This will enable ACS to stage, connect, load and fully test the system here, plus it should minimize the system downtime during installation. The cabinet will contain the new A-500 servers running the latest HP-UX rev. 11 operating software, and the latest PRISM rev. 6 software. New FEP card-cages will be included. This card cages will contain four (4) FEP motherboards and one (1) Hot Standby motherboard. These will be pre-wired in order to receive Palo Alto’s existing FEP modules, but will allow ACS personnel to install compatible FEP hardware here in Norcross .and fully test the entire cabinet. This will allowthe delivery of a fully integrated system.and insure no interoperability problems on site by delivering a ready-to-install cabinet. This will save valuable on-site .time for installation and startup instead of spending the time that would be required to mount, wire and test the existing FEP cages. ACS will utilize the City’s existing FEP modules once the system is delivered, and thus there will be no charge to the City for the FEPs other than the cages and cabling. The.new cabinet will have all the hardware as-?eferenced in the quote EC01Q-1989 and will replace the two cabinets at the Site today. If the City desires, the City can retain one of their existing cabinets for auxiliary communications equipment. Palo Alto will be responsible for upgrading their network to 100 MB, and adding the router which will connect to the equipment in the new cabinet. ACS will install two (2) new Digi port servers and two (2) new 24 port 10/100 hubs in the cabinet for this connection. ACS will configure and test the system with hardware that is compatible to the City’s existing hardware~ Although the current system’s architecture has been analyzed by ACS, a new tape of the system’s database should be obtained to load the most recent database configuration into the new servers, After Pal0 Alto makes this tape, no. changes should be made to the system’s database. This will insure an exact match of the database with the City’s current configuration and insure compatibil{ty. The new SCADA servers will be HP A-500 enterprise servers. These are recommended to insure good performance now and in the future. The servers will be able to handle the higher performance demands of later versions of software (rev. 6), as well as allow for future performance upgrades. The servers will be supplied with a single CPU, however a second CPU can be added which would improve the performance by over 2 times (as per I-IP;s performance indices). The A500s will be supplied with two (2) 9GB hard drives, an external 12GB DAT tape drive, and an external CD ROM. In addition to a complete upgrade of the City’s existing system and software, ACS will - provide and integrate a satellite clock. Further to this, as additional benefit to the City, . ACS will include their software package for short-term load forecasting .as part of this overall upgrade package. For delivery, we anticipate ACS’ work in Atlanta will require 12 weeks. During this time the City will provide a current database tape of the system, and upgrade their existing network to 100MB. Upon delivery of the cabinet from Atlanta, ACS will provide on-site services to connect, integrate and test the system. Further, ACS will assist in a channel- by-channel switchover to the new system which will require the testing of each FEP as it is brought on line. We expect minimal downtime for the installation of the new cabinet, and thd system operation from the old system will have to occur without a backup machine until the new upgraded system is fully on line. The overall process should take between 2 to 4 weeks, depending upon the testing required for wtiich ACS has quoted a daily rate. B. Consoles: Since the current workstations are utilized only for OI functions, we recommend replacing them with PC’s loaded with Reflections-X software. This will provide improved performance at minimal cost. ACS will provide two. (2) dual-headed HP Vectra VIA00 PCs which are the current standard for Palo Alto. ACS will fully load and stage these computers in Atlanta and take full responsibility with-their specification and ~-integration with the system. The City’s existing single screen 712 workstation will remain in use. AlthoUgh this workstation will no longer.be on HP support, the City will now have two spare 712 units and four spare CRTs to prolong the use of this workstation. These consoles will be provided and delivered together with ’the system and are included in the above timetable for installation and testing of the fully integrated system. 10117101 11:10 FAX 0000000000 Palmer & Cay of Georgia, Int. 3348 Peachtree Road, N.E.. Suite 1400 Atlanta, GA 30326 404-231-8595 INSUR~O Advanced Control Systems, Inc. 2755 Northwoods Parkway GA 30071 - 002/002 6129101THIS CERTIFICATE IS ISSUED AS A MATrER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATEHOLDER, THIS CERTIFICATE DOES NOT AMEND, EXTEND ORALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. ;OMPANIES AFFORDING COVERAGE -- Paul Rre & Marin~ Ins Co THIS IS TO CERTIFY THAT THe POLICIES OF iNSURANCE LISTED EIGLOW HAVI; BEEN ISSUED TO THE INSUR=O NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESP£~ ~0 WHICH THIS C~RTIFICATE MAY BE ]~SU~D OR M~Y PERTAIN, THE INSURANCE AFFORDED ~Y THE POLICR~ ~ESCRIBED HEREIN IS SUBJECT TO ALL TH~ TERMg, ~XCLU~IONB AND CONDWION$ OF ~UCH POLICIES, UMITS SHOWN MA~ HAVE B~N REDUCE~ ~Y PAID ~PE OFINEU~CE POU~ NUMBER ~UCY EP~EOTI~ POUCY ~PI~ON TE06802860 6/30/01 6130/O2 ANY AUTO TE06802660 TE06802660 WVA680B20~ CO~tsnta Special F~rm In=ludlng Theft TE0680~650 6/80/01 6/30/01 6130101 6130101 OE~C~JP’rlON OF OP~RATIONSILOOATIONS/VENICI~51$FECI~(" ITGM= CITY OF PAL0 ALTO,ITS COUNCIL MEMBERS, OFFICERS, AGENY~ AND EMPLOYEES ARE NAMED AS ADDITIONAL INSURED8 AS RESPECTS GENERAL LIABILITY AS THEIR INTEREST MAY APPEAR, 6/30/02 6!30/02 S/30102 6/30/02 , ~ooooo~ P0O00g0 ~0ooooo 1000000 2Sooo0 1000000 2~00oo0o 2~oooooo 100000 " ~0000o 100o00 CITY OF PALO ALTO ATTN:.MR, FERNANDO VI~L!~Z- MGR P,O. BOX 10250 PAL0 AL.TO, CA 94303 EXHIBIT~"D" CERTIFICATION ofNONDISCRIMINATION SECT ON 410 SCADA Master Station Replacement Certification of Nondiscrimination: As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed below certifies that they do nqt discriminate in employment With regards to age, race, color, religion, sex, national origin, ancestry, disability, or sexual preference; that they are in compliance with all Federal, State and local directives and executive orders regarding nondiscrimination in employment; and that they agree-to demonstrate positively and aggressively the principle Of e~ual oppodunity in employment. The Bidder agrees specifically: 1.’0 To establish or observe employment, policies which affirmatively promote opportunities for minority persons at all job levels. 2.0 To communicate this policy to al!persons concerned, including all employees outside recruiting .services, especially those serving minority communities, and to the minority communities at large. 3.0 To take affirmative action stel~s to hire minority employees within the organization. 4.0 To be knowledgeable of the local, state, and federal laws and re~ula.tions co.ncerning affirmative action policies and provide opportunities for employees. Firm:. Advanced Control Systems~ Inc.DATE: November i0~ i~95 Title of Officer Signing: Executiy~e~Vice President/Chief Financia! Officer .se includel any additional infdrmation available regarding equal opportunity employment programs now in effect within your company. Please attach additional pages if necessary) CITY of PALO ALTO: Non-discrir~inaLion (6/94) END OF SECTION SECTION 410-1 EXHIBIT ADVANr, I= D r.ONTROL .~ySTEM.~¯ PROPRIETARY Licensee:. City of Palo Alto Effective Date" Account No.’ J #.. 6292 ADVANCED CONTROL SYSTEMS SOFTWARE LICENSE AGREEMENT TillS SOI~’TWARE LICENSE AGREEMENT (the "’Agreement") is entered into by ADVANCED CONTROL SYSTEMS, INC., a Georgia corporation ("ACS"), and the party identified below as "LICENSEE" ("Licensee"). The effective date of this Agreement (the. "Effective Date") is the date set forth above. In consideration of their respective rights and obligations under this Agreement and other valuable consideration, the receipt, sufficiency and ad, equacy of which are hereby acknowledged, and intending to be legally bound by this Agreement, Licensee and:ACS have fully reviewed and agree to all of the terms and conditions of this Agreement. ADVANCED CONTROL sYSTEMS, INC.. Printed-Name:H0rst W. Ruckert Position:Manager. ~Contract Administration Attestati°n Signature !~/~-~1-- c~.~’~.A,G’~q,ro - Printed Name:Amy L. Harris Advanced Control Systems, Inc. 2755 "Northwoods Park-way Norcro~, GA 30071 -’. Attention: Hors~ W. Ruckert Telephone No.: (770) 446-8854 Fax No.: (770) 448-0957 Position:Administrative Assistant LICENSEE Authorized Signature Printed Name: Position: Attestation Signature Printed Name’: Position: City of Palo Alto Address: 250 Hamilton Avenue .Palo Alto, California 94301 Attention: Telephone/’4o.: ( ) Fax No.: ( ) ADDITIONAL TERMS AND CONDITIONS OF THIS AGREE~v[ENT BEGh-N ON TH:E FOLLOWING PAGE. THIS AGREEMENT ALSO CONTAINS SEVERAL ATTACI-IED SCI-IEDULES AND/OR EXHIBITS, TI-IE PAGE ~ERS OF-WHICH ARE NOT NUMBERED.’ ADVANCED CONTR(~L SY.~TI~MS¯PROPRIETARY TERMS AND CONDITIONS .BACKGROUND A. Licensee has" acquired from ACS’ ACS’ supervisory control and data acquisition system (the "System"), which consists of: (I) certain computer software and associateddocumentation developed by ACS that is described in Pan On.._.~e of Schedule A (the "ACS Software"); ¯ . (ii) certain computer software andassociated documentation developed by parties other than ACS that is described in Part Two of Schedule A (the "Third Party Software"); B. This A~reement sets forth the terms and conditions of the license of the ACS Software and the sublicense of the Third Party Software (sometimes referred to coll~ctivi~ly as the"Software’) to Licensee. As used in this Agreement, "Parties" shall refer collectively to ACS and Licensee. ARTICLE I SOFT~kRE LICENSE 1.1 Licens___.~£. ACS grants to Licensee, subject to the limitations contained in this Article 1, a nontransferable,nonexelusive, paid-up license (a) to use the ACS Software in object cod~ (machine readable) format only, ;and a nontransferable, nonexclusive; paid-up sublicense to rise the Third Pai’ty Software in 6bject code (machine readable) format only, in both ~ases ~olely in e0nnection with Lieensee’g internal business operation~, and (b) to-make .one (1) copy of the ACS Software and the .Third Party Software for non-productive, archival or backup pu.rposes. This license shall commence as of the Effective Dateand continue indefinitely unless ~nd umi~"this Agreement¯ is terminated in accordance with Article 6. Licensee shall have no rights with respect to the Software, by implication, estoppel orotherwise, other than the rights expressly granted m this Agreement. 1.2 .Third Party Software. Licensee agrees to bebound by any provisions of any Third Party Software license .- agreements (the "Third Party Licenses") betwi~en ACS and the Third Party Software vendors listed on Schedule B that are applicable to Licensee’s use of the Third-Party Software .(the "Third Party Provisions"). Schedule B sets forth a number of specific Third Party Provisions from the Third Party Licenses that are required to be expressly included in this Agreement. Notwithstanding anything to the contrary inthis Agreement, to theextent that any of the provisions of this Agreement are inconsistent with any of the Third Party Provisions, the ThirdParty Provisions shall govern. 1.3 Limitations" on Equipment and Location.Licensee may use the Software only On and in conjundtion with the specific computer equipment and peripherals identified bmodel number in Part Ode of Schedule C and by serial numb~eYr in ACS’ packing list enclosed with the initial System and any subsequent shipment, as necessary (the "Approved Equipment"), 0nly at Licensee’s facilities located at the location set forth in Pan Two of Schedule C (the "Approved Location"), and only in conjunction with the further limitations set forth in Part Three of Schedule C; provided, however, that Licensee may use the Software on backup equipment when the Approved Equipment is . temporarily inoperable, until operable stares is restored andproces.sing on the backup equipm6nt is completed. 1.4 _RestriCtions on Use. Licensee shall not copy or. reproduce all or any part or" the Software for any purpose other than a~ is expressly permitted under Section 1.1. Licensee shall not (and shall not attempt to)’sell, lease; license, sublicense, give, share, communicate, distribute, or otherwise convey the Software to any person or entity. Licensee shall not use the Software to provide a service bureau or similar arrangement. Licensee acknowledges that no provision of this Agreement or any other agreement grants Licensee any rights v, iith respect to the source e0de (human readable) format of the Software. Licensee shall not(and shall not attempt to) m’odif’y, prepare derivative works of reverse engineer, decompile or disassemb e any component of the Software. Licensee shall not use the Software or provide information about the Software to others t’or purposes of creating any software competitive with the Software. 1.5 Delivery. If ACS has not done So prior to the Effective Date, ACS shall deliver one (1) copy of the Software to Licensee at the Appt’oved Location within ten (10) business days after the Effective Date. 1,6 Software Support. Licensee has executed ACS’ "Software Maintenance Support Agreement’¯’ pursuant to which ACS shall provide Licensee with support services for the Softwareduring and after the "Warranty Period" (as defined in Section 3.1). 1.70ivnership, Protection an~l Security. (a) Licensee aeknowledge~ that ACS shall retain all ownership .in the "Intellectual Property" (as defined below)associated With the.ACS Software and all other property rights associated with the ACS Software. To the extent Licensee has or later obtains any Intellectual Property or other property rights inthe ACS Software, .by operation of law’or otherwise, Licensee h~reby assigns (or agrees .to secure the assignment of) all suchrights t~xelusively to ACS and agrees to take any further action requested by ACS~to effectuate such an assignme~. "Intellectual Property’ means (a) copyrights; moral rights, and any other fights to any form or medium of expression, (b) "Trade Secretst’ (as dot-reed in Section t-. l(a)), privacy fights, and any other protection for confidential informatiofl or ideas, © patents and patent applications, (~1) any items, information or theories which are ~roteetable or registrable under any of the copyright, patent, trade secret, confidentiality or other similar laws, and (e) any other similar rights or interests, recognized by applicable law. (b) Licensee shall reproduce any ACS copyright notice o~" any other notice ofACS’ Intellectual Property rights with respect to the ACS Software on any backup copy of the ACS Softwaremade by Licensee, Licenseeshall maintain records of the location of its backup copy of the ACS Software and shall notify ACS in writing immediately if the original or .backup copy of the ACS Software is lost or stol~n or moved to any loeati0n other than the Approved Location. Licensee shall erase the ACS Software from any media containing the ACS Software before disposing of the media. Licensee shall take any reasonable.action required by ACS to facilitate Licensee’s compliance with this Section 1.7. ARTIC:~E 2 PAYMENTS 2.1 Software License Fee__ _ __s. The Parties acknowledgethat, as of the Effective Date, Licensee has paid ACS a "System Fee," a component of which is-a license fee. for the licenses granted Licensee in this Agreement. 2.2 .Taxes, Duties. Licensee Shall be responsible for. and hereby agrees to pay anysales, use and other similar taxes or duties assessed by local, state or federal authorities, that are imposed by reason of Licensee’s ’acquisition of the System from ACS and the transactions described in this Agreement, except for taxes based solely on ACS’ income, notworth or holdings. At . ACS’ request, Licensee shall furnish ACS proof of payment of such taxes. ADVANCFD CONTROl PROPRIETARY ARTICLE 3 WARRANTIES AND RE~IEDI-E.S 3.1 Limited Warranty. -IF LICENSEE IS FIRST LICENSING THE ACS SOFTWARE AS OF ~ EFFECTIVE DATE, ACS WARRANTS TO LICENSEETHAT FOR OtNE YEAR AFTER THE EFFECTIVE, DATE (THE "WARRANTY.PERIOD") TI-IE ACS SOFTWAREWILL PERFORA.I IN SUBSTANTIAL CONFORMITY WITH THE PERFORMANCE SPECIFICATIONSSET FORTH IN SCHEDULE D (THE "SOFTWARE SPECIFICATIONS"). IF LICENSEE IS ALREADY LICENSING THE ACS SOF’I%VARE AS OF ~ EFFECTIVE DATE AND TtIE DATE OF THE PREVIOUS LICENSE AGREEMENT IS NOT MORE THAN "I~,VELVE(12) MONTHS PRIOR TO TIIE EFFECTIVE DATE, TH~N ACS WARRANTS TO LICENSEE THAT FOR Tt-IE REMAhNDER OF SUCH TWELVE MONTH PERIOD, ~ ACS SOFTWARE. WILL PERFORM IN SUBSTANTIAL CONFORz~;IITY WITH THE SOFTWARE SPECIFICATIONS. OTHER THAN THE PRECEDING LhMITED WARRANTY, ACS LICENSES TI-IE Solar’WAREVvqTHOUT ANY EXPRESS OR IMPLIED WARRANTIE.S OF ANY KhND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITYOR FITNESS FOR A PARTICULAR PURPOSE. ACS DOES NOT WARRANT.THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREh-IENTS OR THAT TI-IEOPERATION OF THE SOFT’WARE WILL BE UNIN"~"ERRUPTED OR ERROR-FREE OR THAT ~ SOFTWARE CONTAINS NO DEFECTS OR ERRORS. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSEE " ASSU~EF_,,_q FULL RESPONSIBILITY FOR THE SELECTION, POSSESSION, PERFORMANCE AND PROPER INSTALLATION ANDUSE OF THE SOFI~.VARE AND FOR VERIFYING THE RESULTS OBTAINED THEREFROM. 3.2 .Third Party Software. THE T..[-IIRD PARTY SOFTWARE IS NOT WARRANTED h-N’ ANY RESPECT BY ACS. TO TH~ EXTENT PERMITTED BY LAW OR/MNY APPLICABLE THIRD PARTY LICENSE, ACS WILL TRANSFER AND ASSIGN TO LICENSEE ANY WARRANTY ACS HOLDS WITH RESPECT TO ~ THIRD PARTY SOb’TWARE. 3.3 Damage Digclalmer. THE LIABILITY OF ACS, ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, SUCCESSORS OR ASSIGNS FOR DAMAGES, WHETHER FOR BREACH OF THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE LESSER OF (A) TH:F_, PORTION OF THE SYSTEM FEE CONSTITUTING THE LICENSEE FEE FOR THE SOFTWARE, IF SUCH LICENSE FEE IS IDENTIF1V..D IN ACS INVOICE(S) DELIVERED TO LICENSEE, OR (B).THE TOTAL AMOUNT PAID BY LICENSEE TO ACS PURSUANT TO ALL AGREEIVIENTS IDENTIFIED BY ~ "JOB NUMBER" SET FORTH ON THE FIRST PAGE OF THIS AGREEM3ENTi WI-IETHER THE LIABILITY ARISES FROlVl CONTRACT, TORT OR .OTHER CLAIMS. ACS IS NOT AN INSURER AND ITS PRICING REFLECTS THE ASSUMPTION OF NO RISK BY ACS FOR ANY DAMAGES SUSTAh-NED BY LICENSEE ARISING OUT OF LICENSEE’S USE OF THE SOFTWARE, AND ACS SPECIFICALLY DISCLA_IMS ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL.DAMAGES WHICH MAY ARISE FROM THIS AGREE~IENT OR TI-[E POSSESSION OR USE OF ALL OR ANY PORTION OF THE SOFTWARE, EVEN TO THE EXTENT ACS IS AWARE OF THE RISK OF SUCH DAMAGES. ACS SHALL NOTBE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOSS OF USE OR DATA OR INTEILRUPTION OF BUS1ANESS ARISING OUT OF ANY USE OR FA [LURE OF ALL OR ANY PORTION OF THE SOFTWARE. ARTICLE 4 ADDITIONAL COVENANTS AND REPRESENTATIONS AND WARRANTIF.,q .4.1 Lice~see Covenants. (a) Trade Secrets anti Confidential Information.Through exercise of its rights under this Agreement Licensee may be exposed to "Trade Secrets" and "Confidential Information" (both as defined below) of ACS. Licensee acknowledges and agrees that ACS’ Trade Secrets and Confidential Information represent a substantial investment by ACS. Licensee alsoa.cknowledges andagrees that any disclosure or use of any of ACS’ Trade Secrets or Confidential Information, except as otherwise authorized in this Agreement, would be wrongful andcould cause immediate andirreparable injury to ACS. As used in this Agreement, "Trade Secrets" shall mean, to the extent consistent with definitions of "trade secrets" under applicable law, information (including, bfit not limited to, confidential business information, technical or non4echnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, lists of actual or potential customers or suppliers, and the terms of this Agreement and a’ny assoeJated agreements between the Parties) that: (a) derives economic value, actual or potential, from notbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic valuefrom its disclosure or use; a’nd (b) is the subject of efforts that are reasonable under the circumstances to mainiain its secrecy. The "Trade Secret~" of ACS shall not include information that (I) hasbecome gener~lly known by or available to the public or ACS’ competitors through no wrongful act or omisston of Licensee;has been furnished to Licensee by a party other than ACS that is not under a co~afideniiality obligation to ACS; Off) has beendisclosed by ACS on a non-confidential basis to panics other than Licensee, o1 has. not been treated consistently by ACS as proprietary and confidential; or (iv) has been developed independ#ntly by Licensee. As used in this Agreement, "Confidential Information" shall mean, with respect to ACS, all valuable, pi’oprietar~ and confidential information belon[[ing to orpertaining to’ACS that does not constitute a Trade Secret of ACS and that ~s not generally known by or available to ACS’ competitors but is generally known only to ACS and those of its employees, independent eontra~ctors, clients or agents to whom such information must be confided for internal business purposes. (b) C0nfidentialitv Covenants. Except as reqtfired in order to perform its obligations under this Agreement, Licensee shall not [and Licensee shall take full responsibility- for ensurmg that none of its employees or other personnel or agents shall not), without the express prior written consent of ACS, redistribute, market, publish, disclose or divulge to any other person or entity, or us~ or modify for use, direetiy or.indirectly in any way for any person or entity: (I) any of ACS’ Confidential Information during the tern~ of this Agreement and for a period of three (3) years after the termination of this Agreement; and (ii) any of ACS’ Trade Secrets. at any time during which such information shall constitute a Trade Secret (before or after termination of this Agreement). Licensee further agrees to cooperate with any reasonable confidentiality requirements of ACS. License~ shall immediately notify ACS of any unauthorized disclosure or use of any of the Software. Trade Secrets or ~2onfidential Information of ACS of which Licensee becomes aware. © Survival. The terms and covenants of thisSection 4.1 shall survive any expiration or termination of this Agreement, and upon any expiration or termination of this Agreement, Licensee agrees immediately to return to ACS all coptes of Software ~n its possession or control. 4..2 Autl~orization~ Ability. Licensee represents and warrants to ACS that it has-full authorization to enter into and fully perform the terms of this Agreement, and that Licensee’s entering into and performing the terms of this Agreement will not constitute a violation of any law, regulation, contract or understanding applicable to Licensee, ADVANCI~D CONTROL SY,~TI~M.~°PROPRIETARY Performance. Licensee acknowledges that its eovena~nts in Section 4.1 shall survive any termination of the Agreement, are special, unique and extraordinary, and in.the event of the breach - or threatened breach by Licensee or any of its employees or other personnel of any covenant or agreement in this Agreement, shall be entitled, .if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or in equity,, and shall be entitled to such. relief as may be available at law or in equity. Without limithig the generality of the foregoing, Licensee expressly acknowledges that in the event of any breach or threatened breheh of Section 4.1 by Licensee orany of its employees or other personnel, ACS shall be entitled to maintain any proceedings (a) to obtain damages, (b) to order the specific performance of this Agreement by Licensee and its employees and other personnel, and © to obtain preliminary or permanent injunctive relief as well as an equitable accounting of all profits and benefits arising out of such violation or threatened violation, which rights and remedies shall be cumulative and in addition to any other rights or remedies to which ACS me)) be entitled. ARTICLE 5 INDEMTqlFICATION 5.1 Indemnification. Licensee; at.its expense,, shall indemnify ACS, its respective employees, officersi directors, shareholders, agents and independent contractors .(collectively, the "Indemnltees") and hold the Indemnitee~ harmless against any and all !osses, costs (including court costs and reasonable attorneys’ fees), damages, settlements, suits, actions, expenses, liabilities, and claims st~stained by or involving the Inderrmitees arising out of or resulting from (a) any use of the Software by or on behalf of Licensee, or any of its personnel, clients or customers, or any other parties who gain access to Licensee’s copies of the Software(whether such uge or access ’is authorized or not), or (b) any material breach by Licensee of the terms and conditions of this Agreement. 5.1 Defense of Infringement Aetion~ by ACS. ACS, "at its expense, shall defend any claim, suitor action brought against Licensee based upon an assertion that Licensee’s use of the-’, ACS Software infringes the valid Intellectual Property fights of any third party. As a condition precedent to such defense, (a) Licensee must iramediately notify ACS in writing of any such claim, and (b) Licensee must allow ACS the right to control the defense and any related settlement negotiations (with full cooperation from Licensee).. ARTICLE 6 TERMINATION 6.1 TerminafionbyACS. Notwithstanding anything to the contrary elsewhere in this Agreement, ACS, by written notice to Licensee, may terminate this Agreement or suspend further performance by ACS without terminating this Agreement upon the occurrence of any. of the following: (a) Licensee terminates or suspends 2doing business; (b) Licensee becomes. subject to any bankruptcy or insolvency proceeding under federal or state law (unless removed or dismissed within sixty (60) days from the filing date), or becomes insolvent, becomes subject to direct control of a transfere6, ieeeivdr orsimilar authority, or makes an .assignment for the benefit of creditors; © Licensee. commits a material breach of Seclions 1.1; 1.4, 4.1 or 7.6; or (d)Licensee breaches or fails to perform any other material terni or provision of this Agreement and has not eu~ed such breach or failure within fifteen (15) days of receiving written notice from ACS specifying the breach or failure. 6.2 Simultaneous Terminatior~ of License.Termination of this Agreement for any reason shall simultaneously and automatically, terminate all rights and licenses granted toLicensee pursuant to Article 1. A termination of this Agreement shall not relieve the Parties of their continuing obligations under those portions of this Agreement that~ by their terms, or in accordance with Section 7.11, survive the termination of this Agreement. 6.3 Li.censee Obligations on Termination. Upon any termination of this Agreement, Licensee shall immediately: (a) cease using the System, (b) return to ACS any copies of theSoftware in Licensee’s possession, © comply with any other post- termination provisions applicable to Licensee in this Agreement (including, but not limited to, the covenants of Licensee in Section 4.1), and (d) furnish ACS, if ACS so requests, with written eertificati0n, executed by an executive officer of Licensee, that Licensee has complied fully with the terms and conditions of subsections (a) through © of this Section 6.3. ARTICLE 7 MISCELLANEOU__ _S 7.1 Freeddm of Acttbn. This Agreemem shall not be construed in any way to limit ACS’ right to grant ethersany right or license to use any of its computer products or related services and any associated documentation. Except as may otherwise be specifically provided in this Agreement, this Agreement alone establishes the fights, duties, and obligations of Licensee and ACSwith respect to the subject matter hereof. 7.2 .SeverabilltY. In case any one or more of the provisions contained in this Agreement or any application of thoseprovisions shall be invalid, illegal or unenforceable in any respect,the validity, legality and enforceability of the remaining provisions contained in this Agreement and any other applications of such .remaining provisions shall not in any way be ’affected or impaired by such invalidity, illegality or unenforeeability. 7.3 Assimmaent. Except as set forth in this Agreement, Licensee may not assign this Agreement or any interest in this Agreement without the prior written consent of ACS, which ACS w.il~l not unreasonably withhold. 7.4 .Choice of Law~ Interpretation, The validity,construction, and enforcement of this Agreement, and the determination of the rights and duties of the Parties, shall be governed by tlie laws of the State of California (exclusive of anychoice of law :or other provision that would result in the application of thg’.laws of any other jurisdiction). Should any provision of this Agreement require judicial inteigretation, the Pa~es agree that the judicial body interpreting or construing such provision shall not apply the assumption that the terms of this Agreement shall be more strictly construed against either one or the other party, both parties hereby acknowledging and agreeing that both Parties and/or their respective agents have participated in the preparation of this Agreement. 7.5 Notice____~s. Any notice, authorization, consent or other communication required or permitted under this Agreemefit shall be made in writing and shall be deemed effective when delivered (except as m~y expressly be provided otherwise in this Agreement) to the addresses set forth under ACS’ and Licensee’s respective signature provisions on the signature page to this Agreement. The Parties agree that a teleeopied notice shallconstitute an acceptable writing in accordance with this Section 7.5. 7.6 Burdens and Benefits. This A~reement shallbe binding uptn and shall inure to the "benefit of the Parties, their successors and permitted assigns. Licensee shall use diligent efforts to ensure that all of its employe~s,-agents, contractors and other personnel comply With the obligations of L eensee under this Agreement as if such parties were the "Licensee" under this Agreement. 7.7 CaptionS~ Sections, Articles and Schedula~.The captions and headings in this Agreement are for convenience of reference only and shall not be referred to in the construction or interpretation of this Agreement. Any reference in this Agreement to a "Schedule," "Section" or an "Article" shall refer, respectively, td schedules, sections or articles in this Agreement. The content and terms of all schedules (including any schedules that are not completed as of the execution of this Agreement and any amended schedules) are by this reference incorporated into . this Agreement. ¯ ADVANCI£D CONTROL SYSTEMS®PROPRIETARY 7.8 Entire Agreement;. This Agreement (including any agreement attached as or referred to in an Exhibit) constitutes the entire agreement among the Parties with respect to its subject matter, and supersedes any prior statement or ~riting not a part of this Agreement or otherwise referenced in this Agreement (including any prior license agreement between the Parties with respect to the Software), and neither Party shall be bound by any prior or contemporaneous representation, statement, promise, warranty, covenant, or agreement pertaining the subject matter of this Agreement unless set forth or referred to in this Agreement. 7.9 Amendments. No amendment, change, or mnd!fi.eation of tiffs Agreement or any of the terms, conditions orprov|s|ons of this Agreement, and no waiver of a right, remedy, privilege or power, or discharge of an obligation or liability, conferred upon, vested in, or imposed upon either Party, and no consent to any act or omission pertaining to the requirements ofthis Agreement shall.be effective unless evidenced by (I) a purehase order of Lieensee signed by its duly authorizedrepresentative which shall constitute Licensee’s written authorization and agreement to amend this Agreement, and (ii) an "Amendment to Software License Agreement" signed by a dulyauth6rized representative of ACS which sets forth the amendments described in Licensee’s purchase order;~ however, that Licensee agrees that the terms and conditions of any purchase order issued by Licensee in accordance.with this Seetinn 7.9 shall be null and void with respect to this Agreement and any Amendment to Software License Agreement issued pursuant heretoi’and shall not be deemed to alter, amend or modify any of the terms and conditions set forth herein in any manner whatsoever unless specifically set forth otherwise in the Amendment to Software License Agreement. 7.10 Waiver7. A Party’s waiver of the othei" Party’s non-compliance with any provision o~’ this Agreement shall not constitute a waiver of any prior or subsequent non-compliance, by the other Patty of that provismn or a non-eomplia:n, ee by the other Party of any other provision of this Agreement. A Party’s single or partial exercise of any right, remedy, privilege, or power provided for under or pursuant to this Agreement.by eithei- Party preclude or limit such Party fr6m any other or further exercise thereofor from pursuing a~ay other right, remedy, privilege, or power available pursuant to thisAgreement, at law or in equity. 7..11 Survival. Th~ rights and responsibilities of the Parties under Sections 1.7, 2.2 and 7.6 and Articles 3, 4 and 5 .shall survive any termination of this Agreement. 7.12 P~bllc Recordes Act Notwithstanding any provisions in these TERMS AND CONDITIONS to the contrary, Licensee," as a public agency of the State of California subject to laws governing the inspection or examination of agreements and docuraents and other writings by the general public, including the California Public Records Act, California Governnaent Code section 6250 et seq., may be required tO permit the inspection or examination of the agreement between ACS and Licensee and all attachments thereto. Licensee will notify ACS immediatel~ following any public inqu|ry or request to inspect or examine any Trade Secret or Confidential Information of ACS, which notice inany event shall be given to ACS at least ten days prior to any disclosure of stich information, in order that ACS, at its election, may be afforded the opportunity to contest any. such inquiry or request at its sole cost and expense. Each such notice shall include the name ot~ the requesting party, the scope of the request and Licensee’s intended response to such request, if then known. Licensee shall disclose in response to such a request only that information required to be disclosed by law; PROPRIETARY ACS SOFTWARE LICENSE Schedule A- Part One 1 1 1 1 1 4 1 1 1 1 1 Description of ACS Advanced RDAC Redundant RDAC Command Interpreter Advanced Report Vector Graphics Vector Graphics {Includes (3) 71 Disturbance Trending Dis Mapboard Driw PaintJet Color Trouble Call .SC~D~E and related docurn~ntation (SB-900530) Kernel (SB-900535) r (Applix) (SB-900770) System (SB-900790) e - Terminal License (SB-900792) & (1) PC Reflections-X} ’,is (SB-900780) (SB-900765) (SB-900715). . (SB-900854) Part Two 2 2 2 2 1 .4 1 1 Schedule B -- Third ** The follo~ -- Description HP-UX LANk ARPA/ NFS/9~ X-Wi~ Third Party Software and related documentation for Series 700 (8 User) with TCP/IP ¯ Network Services Network Fil.e Services . Software System Vl1.0-. Software Terminal. V 11.0. S Full Use Oracle L[c.ense arty .Software Vendors and Third Party. Provisions ng is a list of the Third Party Software Vendors- ** The following are the Third Party Provisions expressly required to be included in this Agreement (a.). The provisions of the attached license agreement between Hewlett-¯Packard and ACS, dated August 14, 1992, are hereby incorporated by reference into this Agreement. (b)APPLIX, Inc. grants to Advanced Control Systems,’ the right to install and Use the SOFTWARE ("Primary Copy") on computer systems configured by Advanced Control Systems for resaleto their customers and to install a single copy of the S.OFTWARE ("Backup Copy") forbackup purposes on one.additional computer system at the same customer site for use solely in the event that the main computer . system becomes inoperable. At no time shall both the Primary Copy and-the Backup Copy-be used simultaneously, ADVANr.I~D CONTROl 8Y.~TI~M.~¯PROPRIETARY Schedule C. Part One -- The Approved Equipment (id~ed by n~del number and serial number) is as follows : ../ - /. . 1 HPM-9000/SeriesD.2Xf6 SPU.(s) Wo~ation Master Station System -Serial # /- (to be detepa(med at.tirne of shipment) Seria,~ (tobe de}g’rmined at time of shipment) Part Two -- The Approved Location is as follows: City of Palo Alto 250 Hamilton Avenue Pal0 Alto, California 94301 Part Three. -- The following additional limitations, if any, are imposed on Licensee: NONE Schedule D-- The ACS Software Specifications are as follows: - _. Specifications as detailed by City of Palo Altd’,u.gder Purbhase Order # ~-"EXHIBIT "F" ADVANCED ~.ON-I-RO/SYSTEMS~PROP~ETARY ADVANCED CONTROL SYSTEMS CUSTOMER CONFIDENTIALITY AGREEMENT THIS AGREEMENT, dated this day of , 1996, by and between ADVANCED CONTROL SYSTEMS, INC., 2755 Northwoods Parkway, Norcross, Georgia 3.0071, a Georgia Corporation ("ACS"), and City of Palo Alto, 250 HamiRon Avenue, Palo Air0, CA, 94301. WITNESS.ETH.: WHEI~AS, Customer has purchased-and/or desires to purchase .from ACS, pursuant to verbal and/or writ-ten agreements the parties, computersystems, computer hardware and/or computer software desigfied and manufactured by ACS (the "’ACS System"); and WHE~REAS, from time to time Customer has beei~..and may,, in the-future be given access to certain-confidentialinf0rmation and trade secrets developed by or on behalf Of ACS at significant cost; and WHEREAs, it is essential to the business of ACS that such confiden{ial information and trade secrets remain confidential arid secret; and WHEREAS, Customer has agreed with ACS to keep such confidential information’ and trade secrets confidential and to otherwise comply with the matters set forth herein; to the extent it is permissible to maintain such confidentiality under California law, which agreement the parties desire to set forth in writing. NOW THEREFORE, in considerati’on of the premises, Customer agrees with ACS as follows: Confidential Information Customer acknowledges and agrees that all knowledge, data and information which Customer may acquire from ACS or by examination of any of ACS’ products, or from ACS’. employees or consultants or other customers, or on ACS’ prem!ses, with respect to ACS’ inventions, designs, mebhods, systems, improvements, trade secrets and other private or non-public matters related to .ACS’ bus~ness, computer systems, computer hardware and/or computer PROPRIETARY software (hereinafter collectively called "Confidential Information"), repre- sent a substantial investment by ACS and shall for all ti~e and for.all purposes be regarded as strictly confidential, and that any use of such Confidential Information.cont.rary to the terms of this Agreement would be wrongful and cause irreparable injury to ACS. Non-Disclosure Covenant Customer shall not, without the express prior written consent of the ChiSf Executive Of-ricer of ACS, duly authorized by the Board of Directors of ACS, redistribute, market, punish, disclose or divulge to any other person, fm-n or corporation or use, directly .or indirectly, for the benefit of any other person, firm, or.corporation any Confidential Information of ACS. Cus, tomer will confine the disclosure of any such Confidential Information, property, or trade secrets of ACS to those employees of Customer who are directly employed in Customer’s business in connection therewith, and shall further require all employees and .persons who deal with said property, trade secrets or Confidential Information not to disclose same to any other person, fl_rm or corporation. With respect to Confidential Information of ACS that does not constitute a "trade secret" under applicable law, the-term of Cus- t0mer’s obligations in-this Section 2 shall begin oa the date of this Agree- ment and end on the later of the following two dates to occur: (a) .the date that is three (3) years ~fter the dat~ that Customer and ACS cease negotiating any purcl{ase or license)greement with respect to the ACS System (assuming Cusicomer does not purchase or license the ACS System); the date that Customer and ACS enter into a license or pur- -chase agreement containing confidentiality provisions similar in. scope and substance to the provisions in this Agreement. With respect to Confidential Information of ACS that does constitute a "trade secret’t under applicable law, the term of Customer’s obligations in this Section 2 shall begin on the date of this Agreement and shall end on the later of the following two datfis to occur: (i)the date that such Confidential Information ceases being a "trade secret", the date that Customer. and ACS emer into a license or pur- chase agreement containing confidentiality provisions similar in scope and substance to the provisions inthis Agreement. ADVANOI~D CON-i-RO!_ SYST£MS~ PROPRIETARY o Ownership of Proprietary Information Except as otherwise expressly agreed in writing, all the inventions, discover- ies, designs: and improvements (the "P.ropriet~iry Information"), whether pa.tentable or not, conceived or originated by Customer solely.or jointly with others, either based upon any Confidential Information, or derived in whole or in part through the assistance of ACS, shall be the property of ACS. Customer will. promptly communicate and disclose to ACS, and.upon ACS’ request will, without additional compensation, execute such documents as ACS shall request, including, withoutlimitation, assignments .and transfers, to.substantiate ACS’ ownership of the Proprietary Information. Return of Data Upon termination of Customer’s use of AC8’ products, or upon completion of. Customer’s examination of ACS’. products in contemplation of purchase, Customer Shall return tO ACS all drawings, plans, models, and other materi- als made by ACS for Customer or supplied by ACS to Customer, together with all Confidential Information represented in writing and-all Proprietary Information not expressly authorized to be retained by Customer. Remedies ¯ Customer hereby acknowledges and agrees flaat in the event of any violation hereof, ACS shall be authorized and entitled toobtain from any court of competent jurisdiction pretkminary and pe~. anent injunctive relief as well as equitable ac-’eounting 0f .all profits or benefits arising out of a vlolatlon of any of the’ Customer’s covenants hereundei, which rights and reinedies shall be cumulative and in addition to any other rights or remedies to which ACS may be entitled. Binding Effect This Agreement shall be binding upon Customer, its representatives,, succe~’-. sors and assigns, and shall inure to the benefit of ACS and its successors, and assigns. Governing Law This Agreement has been executed in the STATE OF GEORGIA and the nature, validity and effect of this Agreement shall be governed by and construedin all respects under the laws and decisions of the State of Ca] i forn i a. ADVANCI~D CONTROLSYSTEMS¯ .PROPRIETARY IN WITNESS WHEREOF, the parties have executed this Agreement and set their hands and seats the day and year first above written. ADVANCED CONTROL SYSTEMS, INC. " I--IORST W. RUCKERT TITLE:MANAGER, CONTRACT ADMINISTRATION DATE:April 30, 1996 CUSTOMER NAME: BY: TITLE: DATE: