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HomeMy WebLinkAbout2000-05-22 City CouncilCity of Palo Alto C ty Manager’s Report TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: ¯ ADMINISTRATIVE SERVICES DATE:MAY 22, 2000 CMR:212:00 SUBJECT:APPROVAL OF SOFTWARE LICENSE AND SERVICES AGREEMENT, AMENDMENT ONE TO THE SOFTWARE LICENSE AND SERVICE AGREEMENT AND ENTERPRISE LICENSE ADDENDUM WITH ORACLE CORPORATION IN THE AMOUNT OF $551,336 AND APPROVAL OF MUNICIPAL PAYMENT PLAN AGREEMENT WITH ORACLE CREDIT CORPORATION. RECOMMENDATION Staff recommends that Council: 1.Approve and authorize the Mayor to execute the attached Software License and Services Agreement, Amendment One to the Software License and Services Agreement, and the Enterpris.e License Addendum with Oracle Corporation in the amount of $ 551,336. Approve and authorize the Mayor to execute the attached Municipal Payment Plan Agreement with Oracle Credit Corporation for the acquisition of the software license at zero percent financing. Authorize the City Manager or his designee to exercise the option to continue the agreements for the second year, provided the quality of the vendor’s service is acceptable during the first year of the contract. BACKGROUND On October 5, 1999, the City Council authorized staff to proceed with recommendations contained in the Information Technology (IT) Strategic Plan. One of the plan’s recommendations was the standardization of City database management systems (DBMS). In the past, the City has installed a variety of DBMS types to support its business applications. Currently, the City of Palo Alto supports eight different types of databases including Oracle, Microsoft SQL Server, Informix, Image, Btrieve, GDS, Microsoft Access, and Filemaker Pro. CMR:212:00 Page 1 of 4 While it is unrealistic for the City to standardize and use a single DBMS for all of its diverse applications, it is beneficial to reduce this number. For enterprise and departmental applicatiqns, the City has chosen to standardize using two leading DBMS vendors, Oracle and Microsoft. These vendors provide the flexibility to meet the City’s future application needs. Standardization will reduce support and staff training costs, increase staff expertise on the selected DBMS types, increase the compatibility and ease of information sharing and aggregation of data between City applications, and allow the City to pursue volume purchase agreements with the selected DBMS vendors to maximize economies of scale. DISCUSSION The Oracle Corporation offers two types of software license packaging: server-based pricing and enterprise-based pricing. Server-Based Pricing is based on the power of the computer processor in megahertz. User levels are not counted. This type of license requires a separate support contract for each computer, and back up computers are priced at 100 percent of list price. This type of license typically benefits an environment where Oracle DBMS is used on a minimal number of servers. An Enterprise-Based License covers an entire enterprise for unlimited users, servers and operating systems. Internet access is also allowed on the proposal to Palo Alto. With this type of license, ease of administration is a benefit as one support agreement covers all computers and users. Additionally, there is one support Customer Support Identification number (C SI) per operating system, and there is one support payment annually, as opposed to multiple payments for support contracts for the server-based license. Server backup is provided at no additional cost. Also, the discount for licenses is 60 to 65 percent versus the standard 20 percent government discount. After May 26, 2000, enterprise-based pricing will not be offered by Oracle. The Oracle Enterprise License Agreement (ELA) is a new way to license the Oracle DBMS for all City applications. It provides access for all City employees to any Oracle database, on any server owned by the City, from any client device or operating system. In a time when information is rapidly becoming an organization’s most important asset, the Oracle ELA provides the flexibility for City staff to access, analyze and communicate information critical to its business operations. The Oracle Enterprise License Agreement provides the following additional benefits: o One master agreement for the City of Palo Alto; ¯A volume purchase discount; ¯Elimination of platform and/or operating system transfer fees; ¯Capped support costs (lower total cost of ownership); ~Use of all versions of the Oracle database (including Oracle for laptops and PalmPilots); .Use of products needed to provide City services via the web to citizens (e.g., electronic payment of Utilities); CMR:212:00 Page 2 of 4 Unlimited test, training and development environments; and Ad-hoc query tools and reporting. The list price of the ELA is $1,070,270. The City is receiving a discount on products averaging approximately 60 percent. In addition, Oracle is offering a full credit on all licenses that the City had purchased in the past. The credit is $112,386. The net license cost to the city is $323,362. That is a total saving of $746,908 off of the list price. In addition, a discount has been applied to the cost of annual maintenance services, which total $105,587 annually. RESOURCE IMPACT The license package will be acquired through Oracle Credit Corporation for a total of $551,336. The first payment of $100,000 is due within 30 days. The second payment of $225,668 is due July 1, 2000. The third payment of $225,668 is due July 1, 2001. The full amount includes $323,362 for the net license, $211,174 for two years of annual maintenance, and $16,800 for training. Funds for this project are available in 1999-00 Capital Improvement Program project #19912 for the initial $100,000 payment. Funding for year one, in the amount of $225,668, is included in the proposed operating budget of the Administrative Services Department and is contingent on Council approval of the 2000-0 ! Proposed Budget. Funding for year two, in the amount of $225,668, will be proposed in the 2001-02 Budget. POLICY IMPLICATIONS This report does not represent any change to existing City policies. ENVIRONMENTAL REVIEW Approval of this contract amendment does not constitute a project under the California Environmental Quality Act (CEQA), therefore, no environmental assessment is required. ATTACHMENTS Attachment A: License Fee Comparison Attachment B: Backup Fee Comparison Attachment C: Annual Support Pricing Comparison Attachment D: Software License and Services Agreement Attachment E: Amendment One to Software License and Services Agreement Attachment F: Oracle Enterprise License Addendum Attachment G: Municipal Payment Plan Agreement PREPARED BY:Lacee LaLonde Executive Assistant, Information Technology CMR:21.2:00 Page 3 of 4 DEPARTMENTAL HEAD APPROVAL: CITY MANAGER APPROVAL: Director, AdminiZervices EMII~Y HARRISON Assistant City Manager CMR:212:00 Page 4 of 4 o o o o o o o0o 0o 0 0o 0 0 0 ._~ o oo ooc) oc)o oo o o o m ._~ UJ 0 0 0 0 0 00000000000 0 0 0 0 0 ORACLE ATTACHMENT D SOFTWARE LICENSE AND SERVICES AGREEMENT This Software License and Services Agreement ("Agreement") is between Oracle Corporation ("Oracle") and the Customer identified below. The terms of this Agreement shall apply to each Program license granted and to all services provided by Oracle under this Agreement, which will be identified on one or more Order Forms. I.DEFINITIONS 1,1. ,2= 1.3, 1,4° 1,5. 1 1,7o 1,8, II. 2.1. "Program" means the software in object code form distributed by Oracle for which Customer is granted a license pursuant to this Agreement, and the media, Documentation and Updates therefor. "Documentation" means the user guides and manuals for installation and use of the Program software. Documentation. is provided in whatever form is generally available. "Update" means a subsequent release of the Program which Oracle generally makes available for Program licenses at no additional license fee other than media and handling charges, provided Customer has ordered Technical Support for such licenses for the relevant time period. Update shall not include any release, option or future product which Oracle licenses separately. "Order Form" means the document in hard copy or electronic form by which Customer orders Program licenses and services, and which is agreed to by the parties. The Order Form shall reference the Effective Date of this Agreement. "Designated System" means the computer hardware and operating system designated on the relevant Order Form. "Technical Support" means Program support provided under Oracle’s policies in effect on the date Technical Support is ordered. "Commencement Date" means the date on which the Programs are delivered by Oracle to Customer, or if no delivery is necessary, the Effective Date set forth on the relevant Order Form. "Services" means Technical Support, training, or consulting services provided by Oracle to Customer under this Agreement. PROGRAM LICENSE Rights Granted Ao Oracle grants to Customer a nonexclusive license to use the Programs specified on an Order Form under this Agreement as of the Commencement Date, as follows: to use the Programs solely for Customer’s operations on the Designated System or on a backup system if the Designated System is inoperative, consistent with the use limitations specified or referenced in this Agreement, an Order Form, or the Documentation. Customer may not relicense, rent or lease the Programs or use the Programs for third-party training, commercial time-sharing or service bureau use; ii. to use the Documentation provided with the Programs in support of Customer’s authorized use of the Programs; ill.to copy the Programs for archival or backup purposes, and to make a sufficient number of copies for the use specified in the Order Form. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies; iv.to modify the Programs and combine them with other software products; and Vo to allow third parties to use the Programs for Customer’s operations so long as Customer ensures that use of the Programs is in accordance with the terms of this Agreement. Customer shall not copy or use the Programs (including the Documentation) except as specified in this Agreement or an Order Foi’m. Customer shall have no right to use any other software program that may be delivered with ordered Programs. Customer agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Programs, except to the extent required to obtain interoperability with other independently created software or as specified by law. C°Oracle shall retain all title, copyright and other proprietary rights in the Programs. Customer does not acquire any rights, express or implied, in the Programs, other than those specified in this Agreement. Transfer and Assignment Customer may transfer a Program license within its organization upon notice to Oracle; transfers are subject to the terms and fees specified in Oracle’s transfer policy in effect at the time of the transfer. B.Customer may not assign this Agreement or transfer a Program License to a legal entity separate from Customer without the prior 2.3, III, 3.1. 3,2, 4.2, 4,3, written consent of Oracle. Oracle shall not unreasonably withhold or delay such consent. 4.4, Verification At Oracle’s written request, not more frequently than annually, Customer shall furnish Oracle with a signed certification verifying that the Programs are being used pursuant to the provisions of this Agreement and applicable Order Forms. Oracle may audit Customer’s use of the Programs. Any such audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. If an audit reveals that Customer has underpaid fees to Oracle, Customer shall be invoiced for such underpaid fees. Audits shall be conducted no more than once annually. TECHNICALSERVICES Technical Support Services Technical Support services ordered by Customer will be provided under Oracle’s Technical Support policies in effect on the date Technical Support is ordered. Consulting and Training Services Oracle will provide consulting and training services agreed to by the parties under the terms of this Agreement. All consulting services shall be billed on a time and materials basis unless the parties expressly agree otherwise in writing. Incidental Expenses For any on-site services requested by Customer, Customer shall reimburse Oracle for .actual,reasonable travel and out-of-pocket expenses incurred. TERM AND TERMINATION Term If not otherwise specified on the Order Form, this Agreement and each Program license granted under this Agreement shall continue perpetually unless terminated under this Article IV. Termination by Customer Customer may terminate any Program license at any time; however, termination shall not relieve Customer’s obligations specified in Section 4.4. Termination by Oracle Oracle may terminate this Agreement or any license upon written notice if Customer materially breachesthis Agreement and fails to correct the breach within 30 days following written notice specifying the breach. Effect of Termination Termination of this Agreement or any license shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any Order Form. The 5,2, parties’ rights and obligations under Sections2.1.B, 2.1.C, and 2.2.B, and Articles IV, V, VI and VII shall survive termination of this Agreement. Upon termination, Customer shall cease using, and shall return or destroy, all copies of the applicable Programs. INDEMNITY, WARRANTIES, REMEDIES Infringement Indemnity Oracle will defend and indemnify Customer against a claim that the Programs infringe a copyright or patent or other intellectual property right, provided that: (a) Customer notifies Oracle in writing within 30 days of the claim; (b) Oracle has sole control of the defense and all related settlement negotiations; and (c) Customer provides Oracle with the assistance, information and authority necessary to perform Oracle’s obligations under this Section. Oracle will reimburse Customer’s reasonable out-of- pocket expenses incurred in providing such assistance. Oracle shall ha~,e no liability for any claim of infringement based on use of a superseded or altered release of Programs if the infringement would have been avoided by the use of a current unaltered release of the Programs which Oracle provides to Customer. If the Programs are held or are believed by Oracle to infringe, Oracle shall have the option, at its expense, to (a) modify the Programs to be noninfringing; or (b) obtain for Customer a license to continue using the Programs. If it is not commercially reasonable to perform either of the above options, then Oracle may terminate the license for the infringing Programs and refund the license fees paid for those Programs. This Section 5.1 states Oracle’s entire liability and Customer’s exclusive remedy for infringement. Warranties and Disclaimers Program Warranty Oracle warrants for a period of one year from the Commencement Date that each unmodified Program will perform the functions described in the Documentation. go Media Warranty Oracle warrants the tapes, diskettes or other media to be free of defects in materials and workmanship under normal use for 90 days from the Commencement Date. C=Services Warranty Oracle warrants that its Technical Support, training and consulting services will be performed consistent with generally accepted industry standards. This warranty shall be valid for 90 days from performance of service. Disclaimers THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED VI. 6.1. 6.2= VII. 7.1. WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Oracle does not warrant that the Programs will operate in combinations other than as specified in the Documentation or that the operation of the Programs will be uninterrupted or error-free. Pre-production releases of Programs and computer-based training products are distributed "AS IS." Exclusive Remedies For any breach of the warranties contained in Section 5.2, Customer’s exclusive remedy, and Oracle’s entire liability, shall be: For Programs The correction of Program errors that cause breach of the warranty, or if Oracle is unable to make the Program operate as warranted, Customer shall be entitled to terminate the Program license and recover the fees paid to Oracle for the Program license. For Media The replacement of defective media returned within 90 days of the Commencement Date. For Services The reperformance of the services, or if Oracle is unable to perform the services as warranted, Customer shall be entitled to recover the fees paid to Oracle for the unsatisfacto~ services. PAYMENT PROVISIONS Invoicing and Payment All fees shall be due and payable 30 days from the invoice date. Customer agrees to pay applicable media and shipping charges. Customer shall issue a purchase order, or alternative document acceptable to Oracle, on or before the Effective Date of the applicable Order Form. Taxes The fees listed in this Agreement do not include taxes; if Oracle is required to pay sales, use, property, value-added or other taxes based on the licenses or services granted in this Agreement or on Custome¢s use of Programs or services, then such taxes shall be billed to and paid by Customer. This Section shall not apply to taxes based on Oracle’s income. GENERAL TERMS Nondisclosure By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the Programs, the terms and pricing under this Agreement, and all information clearly identified as confidential. 7,2, 7,3, 7.4, 7,5. A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. Customer shall not disclose the results of any benchmark tests of the Programs to any third party.without Oracle’s prior written approval. The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of two years after termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Governing Law This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of California. Jurisdiction Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in San Francisco or San Mateo County, California. Oracle and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. Notice All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail to the first address listed in the relevant Order Form (if to Customer) or to the Oracle address on the Order Form (if to Oracle). To expedite .order processing, Customer agrees that Oracle may treat documents faxed by Customer to Oracle as original documents; nevertheless, either party may require the other to exchange original signed documents. Limitation of Liability In no event shall either party be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages. Oracle’s liability for damages hereunder shall in no event exceed the amount of fees paid by Customer under this Agreement, and if such damages 7,7, 7,8, result from Customer’s use of the Program or services, such liability shall be limited to fees paid for the relevant Program or services giving rise to the liability. The provisions of this Agreement allocate the risks between Oracle and Customer. Oracle’s pricing reflects this allocation of risk and the limitation of liability specified herein. Severability If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. Waiver The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Oracle’s proprietary rights in the Programs, no action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has accrued. Export Administration Customer agrees to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that neither the Programs nor any direct product thereof are (1) exported, 7,9, directly or indirectly, in violation of Export Laws; or (2) are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Entire Agreement This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement and any Order Form shall supersede the terms in any Customer purchase order or other ordering document. This Agreement shall also supersede all terms of any unsigned or "shrinkwrap" license included in any package, media, or electronic version of Oracle-furnished software and any such software shall be licensed under the terms of this Agreement, provided that the use limitations contained in an unsigned ordering document shall be effective for the specified licenses. The Effective Date of this Agreement shall be Executed by Customer: Authorized Signature: See attached signature page Name: Title: Address: Oracle is a registered trademark of Oracle Corporation 13006-6199 Executed by Oracle Corporation: Authorized Signature: See attached signature page Name: Title: Address: 500 Oracle Parkway, Redwood City, CA This is the signature page for the Software License and Services Agreement Between The City of Palo Alto and Oracle Corporation effective ,2000.~ Executed by Customer: Authorized Signature: Name: Title: Address: Executed by Customer: Authorized Signature: Name: Title: Address: Executed by Customer: Authorized Signature: Name! Title: Address: Executed by Customer: Authorized Signature: Name: Title: Address: Executed by Customer: Authorized Signature: Name: Title: Address: Executed by Customer: Authorized Signature: Name: Title: Address: Executed by Customer: Authorized Signature: Name: Title: Address: Executed by Oracle Corporation: Authorized Signatu~.~~Name: Title: P.nI~Pl31~ATF ¢.~IIN~;EL Address: 500 O~i~ 15~~’l~a~/, Redwood City, CA Executed by Oracle Corporation: Title: Address:500 Oracle Parkway, Redwood City, CA John F. Zettler Directs, Senior Contracts Managers Oracle Service Industries ATTACHMENT E AMENDMENT ONE to the SOFTWARE LICENSE AND SERVICES AGREEMENT between THE CITY OF PALO ALTO and ORACLE CORPORATION This Amendment One ("Amendment") to the Software License and Services Agreement effective , 2000 ("Agreement") between The City of Palo Alto ("Customer") and Oracle Corporation("Oracle") is effective as of the due date ’designated below. In the event of any inconsistencies between this Amendment and the Agreement, this Amendment shall take precedence. Accordingly, the Agreement is modified as follows: 1. Add the following language to the end of the introductory paragraph of the Agreement: "The parties previously entered into a Software License and Services Agreement dated May 14th, 1993 ("1993 Agreement"). It is the intent of the parties that the 1993 Agreement govern those licenses and services provided to the Customer by Oracle prior to the Effective Date of the Agreement. Licenses and services provided to the Customer from the Effective Date of the Amendment forward shall be governed by the Agreement and this Amendment." 2. Under section Ill "TECHNICAL SERVICES" add the following language as new subsection 3.4: "No consulting or on-site services shall be authorized by the parties except by further written agreement, which includes, at a minimum, appropriate indemnity and insurance provisions and a limit on reimbursable expenses." 3.Under section IV "TERM AND TERMINATION" add the following language as the last sentence to subsection 4.4 "Effect of Termination": "Upon early termination for reasons other than Customer default, Oracle shall reimburse to Customer a pro-rated amount of any unused prepaid services." 4.Under Section V "INDEMNITY, WARRANTIES, REMEDIES" add the following language to the end of the second to last sentence in the second paragraph of subsection 5.1 "Infringement Indemnity": "along with a pro-rated amount of any unused prepaid services." The Effective Date of this Amendment is ,2000. ORACLE CORPORATION S i gn’ la’~’.’~ &S i gn ature: Name:&i0~ E Z~ttl~"Name:--TtEffN~TT’ATBAK-- Director, Senior Contracts Maaa~s Title:CORPORATE COUNSEL &___!lm~Seruice Industries Title: CITY OF PALO ALTO City of Pale Alto Amend 1 DCM - 05/01/2000 Signature: Name: Title: Additional Palo Alto Signatures CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO City of Palo Alto Amend 1 DCM - 05/01/2000 ATTACHMENT F ORACLE ENTERPRISE LICENSE ADDENDUM between CITY OF PALO ALTO and ORACLE CORPORATION This Enterprise License Addendum, including all attachments incorporated herein, (the "Addendum") between the City of Palo Alto (the "Customer") and Oracle Corporation ("Oracle") is placed pursuant to the Software License and Services Agreement, executed by (the "Customer") and Oracle Corporation ¯ effective ,2000 ("Agreement"), and establishes the pricing and terms and conditions of an Enterprise License. In the event of any inconsistencies between this Addendum and the Agreement, this Addendum shall take precedence. 1. Definitions. 1.1 "Designated System" means the computer hardware and operating systems designated on this Addendum. 1.2 1.3 1.4 1.5 "Enterprise" is defined as any number of Computers of the Designated Systems listed in this Addendum, except for Power-Unit based, Computer-based, Processor-based licenses or other similar licenses as specified herein. The Designated Systems shall be located in the United States. [A] "Client" is a Designated System which is (a) used by only one (1) individual at a time, or (b) executes the Oracle Programs in local memory or stores the Oracle Programs on a local storage device. The term "Client Only" refers to a hardware platform/operating system combination which is used exclusively in the Client capacity. [A] "Server" is a Designated System that allows a Client or another Server acting in a Client capacity access to the database technology. "Employee" is a full-time or part-time employee of Customer who is paid for with funds granted by Customer so that such person may use and/or access the Programs on behalf of and in support of Customer’s internal data processing operations only. All Employees are licensed for unlimited use of Oracle Products identified on Attachment A, section 1.A. There are 1,080 Employees in the Total User count as of the Effective Date. 1.6 "Contractors" are individuals that are not employees of Customer but rather are contracted by Customer and granted access by Customer to the Oracle Programs licensed hereunder. In addition, Contractors are not employees of a direct competitor of Oracle Program licensing (Sybase, Informix, etc.). Contractors shall agree to be bound by the terms and conditions of this Addendum, before Customer grants Contractors access to the Oracle Programs licensed hereunder. There are 20 Contractors in the Total user Count as of the Effective Date. 1.7 A "Total User" is defined as the sum of the Employees, as defined in Section 1.5 herein, and Contractors, as defined in Section 1.6 herein who are provided access to the Programs acquired herein. The Total User Population is one thousand one DCM-Palo Alto Enterprise License Addendum 05/16/2000 Page 1 of 10 hundred (1,100) Total Users; one thousand eighty (1,080) Employees and twenty (20) Contractors as of the Effective Date. 1.8 An "Oracle Universal Data Server" is any of the following Oracle Programs: Oracle8i Enterprise Edition, Oracle8i Enterprise Edition Options, Oracle8i Standard Edition, Oracle Rdb Enterprise Edition, Oracle Rdb Server Options, Oracle Express Server. "Named User" (or "Developer") is defined as an individual who is authorized by Customer to use the Oracle Programs, regardless of whether the individual is actively using Programs at any given time. 1.10 "Concurrent Devices" (or "Concur Dev") is the maximum number of input devices accessing the Programs at any given point in time. If multiplexing software or hardware (e.g. a TP monitor, webserver product) is used, this number must be measured at the multiplexing front-end. 1.11 "Computer or Workstation" means licensed fo( use on a single specified computer. 1.12 "Intranet" is the Web environment established by Customer where the number of web-application users are known and countable. Typically, access to Web- applications is restricted via a firewall, user accounts, and passwords. 1.13 "Internet" - is the Web environment open to the general public, with unregulated access and where users are not countable. 1.14 "Power Unit - INTEL" - One Power Unit- INTEL is defined as one MHz of power in all Intel or Intel compatible processors in the computers on which the Programs are installed and operating. The total number of Power Units - INTEL is determined by adding together the number of MHz in all the processors in all such computers. Customer may add processors and computers, or modify existing processors and computers, provided that if, at any time, Customer’s use exceeds the total number of licensed Power Units - INTEL, Customer will acquire licenses for the additional Power Units - INTEL. At Oracle’s request, no more than once annually, Customer shall certify in writing the Power Unit - INTEL computation, including the number of relevant computers and processors, and the MHz of each such processor. (For example: two computers with two 400 MHz processors each would equal 1,600 Power Units- INTEL). 1.15 A "Web Specific" Program is defined as a Program license which may only be accessed by third parties via internet networking protocols and which is limited to use solely for deployment of Customer’s public web site. Customer’s application may allow third party web access to a licensed Web Specific Program solely for viewing, querying or adding data, provided such use is in accordance with the other terms of the Agreement. No internal data processing by Customer or its clients shall be permitted with a Web Specific Program. Prohibited internal uses shall include, but shall not be limited to, the following types of uses: human resource, finance and administration,’ internal messaging and communications, accounting, sales force management, etc. All uses of the Oracle Programs shall be either intemet, intranet or a combination of the two. As such, all uses shall be covered under the Total User license, the Web Specific license or a combination of the two. DCM-Palo Alto Enterprise License Addendum 05/16/2000 Page 2 of 10 Enterprise License. Oracle hereby grants the Customer a non-exclusive Enterprise License for those Programs set forth on Attachment A, for the two (2) computer hardware/operating system combinations identified in Attachment B. Customer is licensed to use each Program only on the Designated System(s) specified in Section A of this Enterprise License Addendum and for which such Program is available on the Effective Date. The Shipment Summary included with this Enterprise License Addendum specifies the Programs on the particular Designated System(s) requested by the Customer, that were shipped or are currently being shipped to the Customer. 2.1 2.2 2.3 Grant of Total User-Based Lice~ase. As of the Effective Date of this Addendum, Oracle hereby grants to Customer, for Customer’s internal use, a non-exclusive, non- transferable Total User-based license to use the Programs set forth in Attachment A (section 1.A) on Customer’s Enterprise. Grant of Limited-Use Program License. As of the Effective Date of this Addendum, Oracle hereby grants to Customer, for Customer’s internal use, a non-exclusive, non- transferable license to use the Limited Use Programsas described in Attachment A (section 1.B). Certification and Audit. Upon Oracle’s request, and not more frequently than annually during the Term of this Addendum, Customer shall furnish a signed certification verifying that the Programs licensed herein are being used pursuant to the terms of this Addendum and the Agreement, as set forth below. (A)Total User Certification. Commencing on the Effective Date of this Addendum, Customer is licensed for a maximum of one thousand one hundred (1,100) Total Users. Upon execution of this Addendum and on the anniversary of the Effective Date of this Addendum, Customer shall, upon Oracle’s request, submit to Oracle a certification stating that it has not exceeded its limit of Total Users. (i)Decrease of Total Users. In the event that the number of Total Users as reported in the certification and/or audit is less than the number of Total Users for which Customer has paid a license fee, the Customer shall not be entitled to a refund, credit or any other special consideration. (ii)Increase of Total Users. In the event that the number of Total Users as reported in the certification and/or audit is greater than the number of authorized Total Users for which the Customer has paid a license fee (1,100 Total Users), Customer shall be required to purchase additional licenses and associated Technical Support fees for any such additional Total Users; such additional Total Users shall then be deemed licensed in accordance with the terms and conditions of the Addendum. (B)Audit/Verification. Audit/Verification shall be in accordance with the Verification terms and conditions contained in .the Agreement. DCM-Palo Alto Enterprise License Addendum 05/16/2000 Page 3 of 10 2.4 Modifications to the Enterprise License. Provided Customer has continuously maintained Technical Support as set forth in this Addendum, Customer may modify the Addendum as follows: (A) (B) (c) For a .period of three (3) years from the Effective Date of the Addendum, add additional Client Only computer hardware/operating systems at no charge subject to availability. For a period of three (3) years from the Effective Date of the Addendum, the Customer may specify up to three (3) additional computer hardware/operating system combinations, for a total of five (5) combinations, at no additional charge. Such additions are subject to the Programs in the Enterprise being available in production release status on the additional computer hardware/operating system combination at the time of such modification. For a period of three (3) years from the Effective Date of the Addendum and upon Customer’s issuance of a proper Order Form, Customer may add additional Total Users in increments of fifty (50) for the Programs shown in Attachment A, section 1A as licensed on an Total User basis on Attachment A hereto, at the prices below. per 50 Total Users Years 1-3 License Years 1-3 Support $12,350 $2,250 2.5 License Credits and Support Roll-Ins. In consideration for terminating Customer’s Program licenses under the below Customer Support Identification (CSI) numbers, as of the Effective Date, Customer shall receive a credit toward the license fees due under this Addendum. This license credit js reflected in the total license fees contained in Attachment A herein. The support fees due under this Addendum shall be reduced by the amount of unused Technical Support associated with these CSI numbers, provided the invoices for such Technical Support have been paid in full. This support fee reduction is not reflected in Attachment A herein; it will be processed upon the Effective Date of this Addendum. Terminated CSIs 546337, 590900, 1098240, 1177463, 1806305, 2420730, 2438484, 2537257 License credits shall only be applied towards the same Programs licensed herein (for example, credit for X Program only applied towards licenses for X Program) and may not be used to acquire other licensed Programs, consulting, education, technical support, documentation, or other Oracle products or services. 3.Intranet & Intemet Usage 3.1 Intrariet Use. Intranet use of Oracle Universal Data Server Programs excludes general public (Internet) access and includes the countable, customer authorized, licensed, and paid for Total Users as defined herein. Access by internal customer authorized, licensed users through Internet protocols shall be considered Intranet usage. DCM-Palo Alto Enterprise License Addendum 05/16/2000 Page 4 of 10 3.2 Intemet Use. Intemet use of Oracle Universal Data Server Programs addresses general public access. If Customer elects to provide Internet access to Customer web- based applications accessing Oracle Universal Data Server Programs, a "Web Specific" Power Unit -based license shall be required for each Server on which the Oracle Universal Data Server will be installed. In the event Customer opts to have a single server providing both Interact and Intranet access, Customer shall be required to purchase a license for both Internet and Intranet access. 4. Delivery, Duplication, Distribution and Installation. 4.1 Delivery: For each Program in the Addendum, Oracle shall deliver to the location specified on the Purchase Order one (1) Master Copy of the Programs and one (1) set of documentation for those Programs currently available in production release as of the Effective Date of this Addendum for use on the computer hardware/operating system combination(s) in the Shipment Summary, Attachment B. One set of documentation will be provided with each Update. Due to manufacturing processes, Oracle ships large media packs that may contain software that Customer did not order; Customer shall have no right to use such software. Customer is lice.nsed to use each Program only on the Designated System(s) specified in Section A of this Addendum and for which such Program is available on the Effective Date. An increase in the number of Total Users, Named Users/Developers, Power Units, etc., in the Addendum does not require the delivery of a Master Copy.) Documentation provided by Oracle shall be on CD- ROM. o 4.2 Duplication, Distribution and Installation. Oracle grants the Customer the right to copy the software media for the Programs licensed hereunder from the Master Copy and Updates. The Customer may copy one (1) set of documentation for each licensed user/device type for each Program acquired herein. Customer shall be responsible for copying and installing the Programs only on the Designated Systems in the Enterprise as well as the distribution of any related software media. The Customer is responsible for ensuring that all applicable confidential, proprietary and/or restricted rights markings are included on all copies of Programs, Updates and documentation. Technical Support. Support levels on a Enterprise License shall not be mixed. Technical Support may not be acquired for a subset of the Programs on the Addendum. Although Technical Support service is not mandatory, the option for Technical Support service is universal; either all the licensed quantities of the Programs are supported or none of them are supported. Technical Support fees are due annually in advance. 5.1 Silver Technical Support. The Silver Technical Support service plan is set forth in Attachment C, and the fees for Technical Support for the first year of this Addendum are set forth in Attachment A. 5.2 Technical Support Cap. For up to four (4) years from the end of the first year of Technical Support under this Enterprise License Addendum, Customer may acquire Technical Support services for all the Programs licensed in the U.S. under this Addendum (except for licenses that are modified or are added to this Addendum after the Effective Date), for an annual fee not to increase each year by more than zero percent (0%) of the Technical Support fee paid by Customer for similar Technical Support services in the preceding year (excluding any Support fee credit issued for DCM-Palo Alto Enterprise License Addendum 05/16/2000 Page 5 of 10 terminated licenses), provided Customer continuously maintains Technical Support services during such period. Thereafter, Customer may obtain annual Technical Support services from Oracle under Oracle’s Technical Support fees and policies in effect when such services are ordered. Program Availabilitg. The Customer agrees that it has not relied on the availability of any Program on any computer hardware/operating system combination(s) in executing this Addendum and issuing any relevant purchase order(s). Furthermore, the future availability of any Programs on a computer hardware/operating system combination(s) shall not affect the Customer’s payment obligations under this Addendum and the relevant purchase order(s). Oracle is under no obligation to make available any Programs on any computer hardware/operating system combination(s) under this Addendum except as otherwise described in a Shipment Summary provided by Oracle which shall be included with purchase order(s) as appropriate. Consulting. In the event consulting services are acquired from Oracle by Customer at any time, said consulting services are offered separately from the Program licenses acquired pursuant to this Addendum. Customer understands that it has the right to acquire said Program Licenses without acquiring said consulting services. 8. Pricing 8.1 Fees. The total Program license fees, associated Technical Support fees, and fees for Education Units for this Addendum are set forth in Attachment A. 9.Payment. Payment for all fees shall be in accordance with the Agreement. The payment obligation incurred by issuing an Order Form/Purchase Order, is non-cancelable and the amounts paid are non-refundable. This Addendum is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code. This Addendum will terminate without 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 funds are only appropriated for a portion of the fiscal year and funds for this Addendum are no longer available. This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of this Addendum. 10.List of Attachments. The following attachments are incorporated as part of this Addendum, as applicable: Attachment A Enterprise License Detail Attachment B Shipment Summary Attachment C Silver Technical Support Service 11. General. 11.1 For purposes of this Addendum First Year (Year 1) Technical Support shall be defined as the Effective Date through June 30, 2001. 11.2 The pricing and terms and conditions herein shall expire on May 19, 2000 unless on or before that date (a) this Enterprise License Addendum is executed by both parties; DCM-Palo Alto Enterprise License Addendum 05/16/2000 Page 6 of 10 J~Signature: Name: Title: and (b) Customer issues an acceptable Order Form for the Programs and Technical Services detailed herein. Unless and until a purchase order is issued by Customer to Oracle for license fees and First Year Technical Support fees as set forth in Attachment A, Oracle is not liable and has no obligation to perform any of its duties or responsibilities under this Addendum. 11,3 Exclusion of Pre-printed Terms. The following purchase order number is placed pursuant to this Enterprise License Addendum. Accordingly no other pre-printed, attached, or referenced terms and conditions shall apply. The Effective Date of this Addendum is ,2000. ORACLE CORPORATION~.....~CITY OF PALO ALTO . /, J0~ [ ~.~11~ &HFMANT PATHAK Name: Director, Senior Contracts Managen!CO RPOP,,ATE COUI~SEL ~1~~. ~., .1~,,I,,~,~,~ &Title: Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO Signature: Name: Title: CITY OF PALO ALTO DCM-Palo Alto Enterprise License Addendum 05/16/2000 Page 7 of 10 ATTACHMENT A ENTERPRISE LICENSE DETAIL 1. PROGRAMS Program Qty License Level License Type A. Total User Based Programs Universal Data Servers Oracle 81 - Enterprise Edition Oracle Diagnostics Management Pack Oracle Tuning Management Pack Oracle Application Server, Enterprise Edition B. Limited Use Programs Universal Data Servers WebDB Spatial Development, Query & Reporting Tools Enterprise Developer Suite Programmer SQL*Plus Discoverer User Edition Discoverer Administration Edition Web Restricted - Perpetual Licenses Oracle 8i- Enterprise Edition Perpetual License Diagnostics Management Pack - Perpetual license Tuning Management Pack - Perpetual license Developer Server - Perpetual License Oracle Application Server, Enterprise Edition Total License Fees: ’1,100 1,100 1,100 1,100 Full Use Full Use Full Use Full Use 4 Full Use 50 Full Use Total User Total User Total User Total User Concurrent Device Concurrent Device 1 Full Use Developer 19 Full Use Developer 13 Full Use Developer 10 Full Use Named User 2 Full Use Named User 960 Web Specific 960 Web Specific 960 Web Specific 500 Web Specific 960 Web Specific Power Unit - RISC Power Unit Power Unit Power Unit Power Unit $323,362 TECHNICAL SUPPORT Year I Silver Technical Support Effective Date - 6/30/01": * See section ll "General" oftheAddendum. ORACLE EDUCATION UNITS Total Oracle Education Units: 4.SUMMARY 50 Units Total Program License Fees: Year I Silver Technical Support: Oracle Education Units: Total Fees due as of Effective Date: $105,587 $16,800 $323,362 $105,587 $16,800 $445,749 DCM-Palo Alto Enterprise License Addendum 05/16/2000 Page 8 of 10 Shipment Summary: ATTACHMENT B SHIPMENT SUMMARY Hardware Platform / Operating System Combinations PC / Windows NT HP 98xx/HP-UX Media CD -ROM CD -ROM Programs Oracle8i Server Enterprise Edition, Diagnostics Pack, Tuning Pack, WebDB, Spatial, Enterprise Developer Suite, Programmer, Plus, Discoverer User Edition, Discoverer Admin Edition, Application Server Enterprise Edition, Developer Server (Forms Server and Reports Server) Oracle8i Server Enterprise Edition, Diagnostics Pack, Tuning Pack, WebDB, Spatial, Programmer, Plus, Application Server Enterprise Edition, Developer Server (Forms Server and Reports Server) B. ’,sHIP TO" Addresses and Copies to be Shipped: The Ship-To address for the Programs listed above must be determined prior to the Effective Date, and such address must be included on the purchase order from the Customer to oracle. Such address information should specify the point of contact, the point of contact’s phone and fax number, and the complete mailing address (not just a P. O. Box). DCM-Palo Alto Page 9 of 10Enterprise License Addendum 05/16/2000 ATTACHMENT C CENTRALIZED SILVER TECHNICAL SUPPORT SERVICE Silver Technical Support has two (2) components: Silver level telephone technical assistance ("Silver"), and Updates. A. Silver telephone technical assistance includes the following: (i)Telephone technical support for the two (2) acquired points of contact ("POC") authorized by CUSTOMER to contact Oracle’s Support Hotline, twenty-four (24) hours a day, seven (7) days a week. CUSTOMER may designate up to four (4) back-ups for each POC; (ii) Each POC or designated backup may request faxed copies of management reports; (iii) Each POC or designated backup receives proactive alerts advising of known problems and problem resolution; (iv)Each POC or designated backup is granted access to Oracle’s On-Line Support system and Bug Database system; (v) Quarterly newsletters and bulletins delivered to each POC or designated backup; and (vi) The POC or designated backup is required to be the first point of contact for all questions regarding the ’Programs. Prior to the POC or designated backup contacting Oracle for technical assistance, POC or designated backup shall consolidate and document all technical assistance requests and answer all of those software use questions he/she can. For only those questions that CUSTOMER technical staff and!or POC or designated backup are unable to answer, the POC or designated backup may contact Oracte’s Support Hotline as noted above. B. Updates include the following: (i) Oracle shall provide one (1) set of Updates to the Master Copy for Supported Programs. Terms and Conditions Specific to Technical Support: (i)CUSTOMER shall notify Oracle whenever the designated POC or designated backup responsibilities are transferred to another individual. The POCs are the first.point of contact for all questions regarding Oracle’s Programs. (ii) (iii) (iv) Updates may include corrections to errors reported in the current commercial release of the Programs as such corrections become generally available to Supported Program Licenses. However, nothing in this Addendum or Schedule shall obligate Oracle to update the Program or to correct all Program errors; Oracle supports only the current release of the Program and is under no obligation to support Programs when it is no longer commercially available. However, Oracle agrees to provide to CUSTOMER support on the old release (i.e., the previous commercial release) on an "as-available" basis as is generally provided by Oracle to all supported commercial customers at no additional charge; and CUSTOMER acknowledge that the Programs are for use on the software manufacturer’s unmodified version of the operating system and as certified by Oracle. In the event that the software manufacturer’s operating system is modified, or in any way changed, Oracle shall not be responsible for any problems relating to the incompatibility between the CUSTOMER hardware platform/operating system combination and Oracle’s applicable referenced hardware platfoi’m/operating system combination. DCM-Palo Alto Page 10 of 10Enterprise License Addendum 05/16/2000 ATTACHMENT G C) r , ( L( ®CREDIT CORPORATION Municipal Payment Plan Agreeme Customer: City of Palo Alto Address:250 Hami~ Avenue Palo Alto, a 94303 Phone: PPA No.:Effective Date:-May-00 Executed by Customer (authorized signature): By: Name: Title: Executed by Oracle C[_edit Corporation: Ha’me: Title: This Payment Plan Agreement is entered into by Customer and Oracle Credit Corporation ("OCC") to provide for the payment of the System Price specified in a Payment Schedule on an installment basis, Each Payment Schedule shall incorporate the terms and conditions contained in this Payment Plan Agreement (and both documents are together referred to as a "PPA"). Each Payment Schedule shall specify the Software and/or other products and services (which items, together with any upgrade, transfer or substitution of the foregoing, collectively are the "System"), the System Price, and the Order and Agreement (together, the "Agreement") covered by the Payment Schedule. OracleCorporation, when acting as licensor of. the Software or provider of services for the System shall be referred to as "Supplier". Except as otherwise provided under this PPA, Customer’s fights and remedies against Supplier under the Agreement, including warranty and refund provisions, shall not be affected. 1. APPROPRIATION OF FUNDS: Customer is an agency or political subdivision of the state in which Customer is located, and shall have the right to terminate its obligation to pay the Payment Amounts due under a PPA if funds .are not appropriated or otherwise made available in subsequent fiscal periods for all Payment Amounts due during that fiscal period. The obligation to pay the Payment Amounts due under the applicable PPA shall terminate on the last day of the fiscal period for which appropriations were received, without penalty or expense to Customer of any kind. Customer shall be responsible for any obligations outstanding prior to termination for which funds have been appropriated. Customer shall provide OCC with at least thirty (30) days notice to OCC of such nonappropriation, together with reasonable details regarding the non- appropriation of funds, as requested by OCC or as mandated by applicable law. Upon the termination of this PPA, Customer agrees to cease use and return the System in accordance with the terms of the Agreement. To the extent permitted by law, Customer agrees that: (i) it has funds available to pay all Payment Amounts due during the current fiscal period; (ii) it intends toobtain funds for payment of Payment Amounts in each subsequent budget; (iii) if this PPA is terminated for nonappropriation of funds, it will not appropriate funds during that fiscal period to which the nonappropriation applies for the acquisition, retention or operation of any other system or services performing’similar functions as those performed by the System; and (iv) will not give priority in the application of funds to any other function~ly similar system or services. 2. PAYMENT NONCANCELLABLE: Upon acceptance, except as provided in Section 1 above, Customer agrees to pay OCC the Payment Amounts in accordance with the Payment Schedule, with each payment due and payable on the applicable Due Date. If full payment of each Payment Amount and other amounts payable is not received by OCC within 10 days of each Due Date, Customer agrees to pay to OCC interest on the overdue amount at the rate equal to the lesser of: the maximum amount allowed by applicable prompt payment laws (a copy of whtch Customer will provide to OCC, if applicable), or one and one-half percent (1.5%) per month. If Customer provides OCC an exemption certificate (in form acceptable to OCC), Customer shall not be liable for any applicable sales, use, property or any other tax allocable to the System, Agreement or any PPA ("Taxes"), Payment Amounts exclude any Taxes, and Customer remains responsible for obligations and any amounts otherwise payable under the Agreement. Customer’s obligation to remit Payment Amounts to OCC or its assignee in accordance with this PPA is absolute, unconditional, noncancellable, independent, and shall not be subject to an), abatement, set-off, claim, counterclaim, adjustment, reduction, or defense for any reason, including but not limited to, any termination of any Agreement, or performance of the System. 3. ASSIGNMENT: Customer hereby consents to OCC’s assignment of all or a portion of its rights and interests in and to this PPA to third-parties ("Assignee"). OCC shall provide Customer notice thereof, which shall be sufficient if it discloses the name of the Assignee and the address where further payments hereunder shall be made, and no further action shall be required to complete the assignment. Customer agrees that Assignee shall not, because of such assignment. assume any of Suppfier’s obligations to Customer. Customer shall not assert against Assignee any claim, defense, counterclaim or setoff that Customer mayhave against Supplier. Customer agrees not to make any claim against Assignee for any loss or damage of the System or breach of any warranty, express or implied, as to any matter whatsoever, including but not limited to the System and service performance, functionality, features, merchantability or fitness for a particular purpose, or any indirect, incidental or consequential damages or loss of business. Assignee shall have no liability with respect to the System or Agreement. Customer shall pay Assignee all amounts due and payable under this PPA, but shall pursue any claims under any Agreement against Supplier. Exceptas provided for a Customer default below, neither OCC nor its Assignees wil! interfere with Customer’s quiet enjoyment or use of the System in accordance with the Agreement’s terms and conditions. 4. GOVERNMENTAL USE: Customer represents and warrants to OCC as of theEffective Date, and throughout the term of each PPA, that: (i) the use of the System is essential to the proper, efficient and economic functioning of Customer or to the services that Custome.r provides (and upon OCC’s request Customer shall provide an essential use certificate in a form acceptable to OCC with each PPA); (ii) Customer will make immediate use of the System, and intends to use the System for the entire Term; and (iii) the System shall be used lawfully and exclusively by the Customer for the purpose of performing its governmental functions. 5. DEFAULT; REMEDIES: Except as provided under Section 1, any of the following shall constitute a Default under this PPA: (a) Customer fails to pay when due any sums due under any PPA; (b) Customer breaches any representation or fails to perform any obligation in any PPA; (c) Customer materially breaches or terminates the license relating to the Software; (d) Customer defaults under a material agreement with Assignee; or (e) Customer becomes insolvent or makes an assig~ment for the benefit of creditors, or a trustee or receiver is appointed for Custz.~aer or for a substantial part of its assets, or bankruptcy, reorganization orinsoiv~ncy proceedings shall be instituted by or against Customer. In the event of a Default that is not cured within thirty (30) days of written notice, OCC may: (i) subject to limitations imposed by applicable law, require all outstanding Payment Amounts and other sums due-and scheduled to become due (discounted at the lesser of the rate in this PPA or five percent (5%) per annum simple interest) to become immediately due and payable by Customer; (ii) pursue any rights provided under any Agreement, including terminating all of Customer’s rights to use the System and related services; and (iii) pursue any other rights or remedies available at law or in equity. In the event OCC institutes any action forthe enforcement of the PPA, and if authorized by statute and awarded by a court, there shall be due from Customer, in addition to the amounts due above, all costs and expenses of such action, including reasonable attorneys’ fees. No failure or delay on the part of OCC to exercise any right or remedy hereunder shall operate as a ~,aiver thereof, or as a waiver of any subsequent breach. All remedies are cumulative and not exclusive. Customer ackn6i, ledges that upon a default under this PPA, no party shall be required to license, lease, transfer or use any Software in mitigation of any damages resulting from Cugtomer’s default. 6. CUSTOMER’S REPRESENTATIONS i ,~ND COVENANTS: Customer represents that this PPA has been duly autho#zed and constitutes a legal, valid,binding and enforceable agreement of Customer; does not violate Customer’s charter or by-laws, any law, judgment, regulation, procurement requirements or other agreement binding upon Customer; and no further consent or approval is needed. Any transfer or assignment of Customer’s rights or obligations in the System, or under the Agreement or this PPA shall require Supplier’s and Assignee’s prior written consent. Customer agrees to promptly execute any ancillary documents and take further actions as OCC or Assignee may reasonably request, including, but not limited to, assignment notifications, acceptance certificates, certificates of authorization, opinions of counsel, registrations, and filings. Customer agrees to provide OCC or Assignee copies of Customer’s balance sheet, income statement, and other financial reports as OCC or Assignee may reasonably request. 7. MISCELLANEOUS: This PPA shall constitute the entire agreement between Customer and OCC regarding the subject matter herein and shall supersede any inconsistent terms set forth in the Agreement or any related agreements, Customer purchase orders and all prior oral and written understandings. If any provision of this PPA is invalid, such invalidity shall not affect the enforceability of the remaining terms of this PPA. Customer’s obligations under each Payment Schedule shall commence on the Effective Date specified therein.. Each Payment Schedule, and any changes to a PPA or any related document, shall take effect when executed by OCC. This PPA shall be governed by the laws of state where Customer is located, and is effective as of the PPA Effective Date. OCC8.7.97 O RA( L E°c.EDn Page ~. of ~. Customer:City of Palo Alto Address:250 Hamilton Avenue Palo Alto, cA Contact:Rod Massey Phone:650 329-2114 Order:dated Agreement:dated PPA No.:dated Payment Schedule (’Oracle Product) No. :~ Executed by Customer (authorized signature): By: Name: Title: "Executed by Oracle Credit Corporation: Name: Title:~R. DIRECTOR; OFD (3PEFIATION~ Payment Schedule Effective Date:- May-00 Software: Support: Education: Consulting: Other: System Price: $323,362.00 $211,174.00 $16,8oo.0o $551,336.00 Yrs. 1-2 Support Pavment Schedule; Payment Amount 1 each @ $100,000 2 each @ $225,668 Due Date: Net 30 01-Jul-00 and 01-Jul-01 3 payments due and payable as set forth above ~ (if this box is checked): [] The System was ordered from an alliance member/agent of Oracle Corporation, whose name and address is specified below, by executing an Order. Customer has directly licensed the Software from Oracle Corporation as Supplier pursuant to the Agreement. For this Payment Schedule, the alliance member/agent is also a Supplier, and the Order and Agreement shall each be considered a separate Agreement hereunder. OCC shall be provided with an Order executed by Customer. Alliance members/agents are not authorized to waive or alter any term or condition of this PPA. Neither OCC nor Assignee shall be responsible to Customer for any claim or liability pertaining to the actions or statements of any alliance member/agent, OCC may add the applicable Taxes due on the System Price to each Payment’Amount, based on the applicable tax rate invoiced by Supplier at shipment, but only if OCC is provided with invoices between Customer and alliance member/agent for the System (specifying applicable Taxes) within ten days of the Payment Schedule Effective Date. Alliance Member/Agent: Address: Contact:Phone: This Oracle Payment Schedule constitutes a separate agreement, and incorporates by reference the terms and conditions of the above Payment Plan Agreement ("PPA") between Oracle Credit Corporation ("OCC") and Customer for the acquisition of the System from Oracle Corporation or any other party providing any portion of the System, including an alliance membedagent of Oracle Corporation ("Supplier"), and adds the following additional terms. A. PAYMENTS: Thi¢ PPA shall replace Customer’s payment obligation under the Order and Agreement to Supplier, to the extent of the System Price listed above, upon Customer’s delivery of a fully executed Order, Agreement, PPA, and any other documentation required by OCC, andexecution of the PPA by OCC. Customer agrees that OCC may add the applicable Taxes due on the System Price to each Payment Amount based on the applicable tax-rate invoiced by Supplier at. shipment. OCC mayadjust subsequent Payment Amounts to reflect any change or correction in Taxes due. If the System Price includes support fees for a support period that begins after the first support period, such fees and the then relevant Taxes will be paid to Supplier in the applicable support period as invoiced from the Payment Amounts received in that period. The balance of each Payment Amount, unless otherwise stated, includes a proportional amount of the remaining components of the System Price. B. SYSTEM: Software shall be accepted, and the services shall be deemed ordered pursuant to the terms of the Agreement. Customer agrees that any software acquired from Supplier to replace any part of the System shall be subject to the terms of the PPA. C. ADMINISTRATIVE: Customer agrees that OCC or its Assignee may treat faxes or photocopies delivered to OCC as original documents; however, Customer agrees to deliver original signed documents if requi~sted. Customer ag#ees that OCC may insert the appropriate administrative information to complete the above form. OCC will provide a copy of the final PPA upon request. PS_Oracle Product_USO4Feb99