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HomeMy WebLinkAbout2013.06.18 City Council AgendaCity Council City of University Park Meeting Agenda City Hall 3800 University Blvd. University Park, TX 75205 Council Chamber5:00 PMTuesday, June 18, 2013 EXECUTIVE SESSION 3:30 - 4:00 P.M. As authorized by Texas Government Code §551.074, the City Council will convene into closed Executive Session to discuss renewal of a contract with the City Manager. No action will be taken. Executive Conference Room, 1st floor, City Hall. 13-160 PRE-MEETING WORK SESSION(S) 4:00 - 4:15 P.M. Friends of the UP Library President Byron Egan and Richards Group representative Brad Todd will provide information to the Council regarding a funding campaign for the Friends of the UP Public Library. No action will be taken. Council Conference Room, 2nd floor, City Hall. 13-159 4:15 to 5:00 P.M. WORK SESSION FOR AGENDA REVIEW. The City Council will convene into open work session to receive agenda item briefings from staff. No action will be taken. Council Conference Room, 2nd Floor, City Hall. 13-154 TO SPEAK ON AN AGENDA ITEM Anyone wishing to address the Council on any item must fill out a green “Request to Speak” form and return it to the City Secretary. When called forward by the Mayor, before beginning their remarks, speakers are asked to go to the podium and state their name and address for the record. I.CALL TO ORDER A.INVOCATION: City Manager Bob Livingston B.PLEDGE OF ALLEGIANCE: City Manager Livingston / Boy Scouts C.INTRODUCTION OF COUNCIL: Mayor W. Richard Davis D.INTRODUCTION OF STAFF: City Manager Bob Livingston II.AWARDS AND RECOGNITION Page 1 City of University Park Printed on 6/14/2013 June 18, 2013City Council Meeting Agenda Recognize retirement of Fire Lieutenant Shane Schindler with 33 years of service A.13-158 III.CONSENT AGENDA Consider and act on request to abandon certain SMU rights-of-wayA.13-150 Agenda Memo - SMU Abandonment Req ROW MAP SMU - Proposed Parking Lot.2013 Attachments: Consider and act on FY2014 Interlocal Cooperation Agreement for Joint Provision of a Student Resource Officer (SRO) B.13-152 6-18-13 SRO Agenda SRO 2013-2014 Agreement Attachments: Consider and Act on FY 2014 Interlocal Cooperation Agreement for Joint Provision of a D.A.R.E. Officer C.13-153 6-18-13 DARE Agenda DARE 2013-2014 Agreement Attachments: Consider approval of bid from Flagship, Inc. for annual street sweeping services D.13-157 Bid Tab Agenda Memo - Street Sweeping Contract Attachments: Consider approval of minutes of the June 4, 2013 City Council MeetingE.13-161 Agenda Memo 2013_06_04 CC Mtg Min Attachments: IV.MAIN AGENDA Consider and act on proposed amendments to the Ordinance regulating park facilities usage A.13-102 Agenda Memo - Park Ordinance 264park regulations60706 2013_06_14 Attachments: Consider resolution amending master fee scheduleB.13-155 Fee schedule amendment memo 06182013.docx Fee schedule amendment resolution 05212013.docx Fee Resolution Attachment A Attachments: Page 2 City of University Park Printed on 6/14/2013 June 18, 2013City Council Meeting Agenda Consider request from DCPCMUD to participate in cost of emergency generator purchase C.13-151 Agenda Memo - DCPCMUD Request Emergency Generator Letter to UP Attachments: Consider approval of a contract with Itron, Inc. for the purchase and installation of an advanced metering infrastructure system D.13-156 Agenda Memo Sales Agreement - Itron Maintenance Agreement - Itron Itron proposal pricing Itron proposal options pricing Attachments: V.PUBLIC COMMENTS Anyone wishing to address an item not on the Agenda should do so at this time . Please be advised that under the Texas Open Meetings Act , the Council cannot discuss or act at this meeting on a matter that is not listed on the Agenda . However, in response to an inquiry, a Council member may respond with a statement of specific factual information or a recitation of existing policy. Other questions or private comments for the City Council or Staff should be directed to that individual immediately following the meeting. VI.ADJOURNMENT As authorized by Section 551.071(2) of the Texas Government Code, this meeting may be convened into Closed Executive Session for the purpose of seeking confidential legal advice from the City Attorney on any Agenda items listed herein. Page 3 City of University Park Printed on 6/14/2013 AGENDA MEMO 6/18/2013 Agenda TO: Honorable Mayor and City Council FROM: Gene R. Smallwood, P.E.; Director of Public Works SUBJECT: Abandonment of Certain Street-Alley Rights-of-Way BACKGROUND: SMU recently acquired all of the residential properties in the area bounded by Airline Road, McFarlin Blvd, Dublin Ave, and University Blvd. The university has plans for the near term to develop additional surface parking (see attached site map) along the east side of Airline, south from the University-Fondren alley to McFarlin. To accomplish this task, SMU requests that the City abandon the following street and alley rights-of-way: • University-Fondren alley, east from Airline to Dublin; • Fondren, east from Airline to Dublin; • Fondren-McFarlin alley, east from Airline to Dublin; • SMU-Dyer alley, east from Airline to Bush Ave; If the City Council is amendable to the requested abandonment, staff will obtain an appraisal (at SMU’s cost) to determine the fair market value (FMV) of the rights-of-way. The City Attorney then prepares an abandonment ordinance for Council consideration at a subsequent meeting. If approved, SMU remits the FMV to the City and receives a certified copy of the abandonment ordinance. In addition to the abandonment ordinance, the City and SMU must enter into an agreement which will detail how utility services will be provided to the subject properties. The City currently serves the area with water and sanitary sewer, however, with the proposed changes, SMU will provide those services. This agreement will be brought to Council prior to their consideration of the abandonment ordinance. RECOMMENDATION: Staff recommends City Council approval of SMU’s request to abandon the above- referenced street and alley rights of way, and authorization to obtain an appraisal. Page 4 of 69 Page 5 of 69 AGENDA MEMO 6/18/2013 Agenda TO: Honorable Mayor and City Council FROM: Gary W. Adams, Chief of Police SUBJECT: Approval of an Interlocal Cooperation Agreement for Joint Provision of a Student Resource Officer (SRO) for FY2013-2014 BACKGROUND: Under the terms and conditions of the current Interlocal Cooperation Agreement for Joint Provision of a SRO in the Highland Park Independent School District between the City of University Park and the Town of Highland Park, both parties are to review the agreement annually for renewal. Under the agreement, the estimated costs of the program, including salary and benefits for the SRO, and excluding materials, are shared by the City of University Park and the Town of Highland Park, with the City of University Park providing for 75% of such estimated costs and the Town of Highland Park providing for 25% of such estimated costs. The City will advance and pay all costs as they accrue and the Town will reimburse the City for its 25% share upon receipt of a statement from the City as outlined in the Interlocal Cooperation Agreement. RECOMMENDATION: Staff recommends the City of University Park enter into an Interlocal Cooperation Agreement with the Town of Highland Park in order to continue to provide a SRO for the Highland Park Independent School District's high school. Page 6 of 69 THE STATE OF TEXAS § § COUNTY OF DALLAS § INTERLOCAL COOPERATION AGREEMENT FOR JOINT PROVISION OF POLICE SERVICES THIS INTERLOCAL COOPERATION AGREEMENT is made and entered into on this 18th day of June 2013, by and between the City of University Park, Texas (hereinafter referred to as “CITY”), acting by and through its Mayor or his designee, and the Town of Highland Park, Texas (hereinafter referred to as “TOWN”), and acting by and through its Mayor or his designee. WITNESSETH: WHEREAS, the Texas State Legislature has authorized the use of interlocal cooperation agreements between and among governmental entities for the provision of governmental services and functions; and WHEREAS, this Interlocal Cooperation Agreement is made under the authority granted by and pursuant to the Interlocal Cooperation Act, Texas Government Code, Chapter 791, and as otherwise provided herein, relative to the joint authorization by CITY and TOWN to provide certain police services. WHEREAS, the governing bodies find that the performance of this agreement is in the common public interest of both parties, and that the services provided pursuant hereto benefit the citizens of the CITY and the TOWN; and WHEREAS, the parties, in expending funds in the performance of the governmental functions or in performing such governmental functions under this Agreement, shall make payments therefore only from current revenues legally available to such party; NOW THEREFORE, FOR AND IN CONSIDERATION of the mutual agreements contained herein, the parties hereto do hereby agree as follows: I AGREEMENT A. The CITY and TOWN agree, under the terms and conditions provided herein, and with consent of the Highland Park Independent School District, to share the cost of provision of the police personnel, salary and benefits, equipment and supplies, necessary for implementation of the School Resource Officer (SRO) program at the Highland Park High School for the 2013-2014 school year. B. The CITY will employ and furnish an appropriately trained and experienced police officer of its Department for the SRO position during the term hereof. The total Page 7 of 69 estimated cost for provision of the program during the current term of this Agreement is $73,810.00, plus incidental expenses such as travel expenses, promotional items, and materials. The parties agree that the CITY will pay 75% of the cost of provision of the program, and the TOWN will pay 25% of such cost for the term hereof. The CITY will advance and pay all such costs as they accrue and the TOWN will reimburse the CITY for its 25% share upon receipt of a statement from the CITY therefor, which statement will be rendered on or before June 30, 2014 and be payable in full on or before August 15, 2014. II GENERAL REQUIREMENTS APPLICABLE TO TOWN AND CITY The following subparagraphs shall apply to this Agreement: A. (1) IMMUNITY: Nothing in this Agreement shall be construed to affect, alter, or modify the sovereign immunity of either party under the Texas Civil Practice and Remedies Code §§101.001 et seq. It is expressly understood and agreed that in the execution of this Agreement, neither CITY nor TOWN waives, nor shall be deemed to waive, any immunity or defense that would otherwise be available to each against claims arising in the exercise of its governmental powers and functions. (2) INSURANCE: During the term of this Agreement, and any extensions thereof, CITY agrees to obtain and maintain, as part of the cost of providing the services described herein, general liability insurance naming TOWN as an additional insured to protect against potential claims arising out of the CITY’s provision of the service. The CITY shall furnish TOWN with a certificate of insurance in accordance with this paragraph within sixty (60) days from the date of execution of this Agreement. Nothing contained herein shall be construed to grant any third party rights or waive the governmental and/or public purpose of the provision of the police service described in this Agreement. TOWN may also have its own insurance, at its own expense, for any liability for such services, if it so chooses. B. THIRD PARTIES: This Agreement does not create any third-party beneficiaries. Nothing in this Agreement shall be construed to create, expand or form a basis for liability to any third party under any theory of law against either the CITY or TOWN unless such a basis exists independent of this Agreement under State or federal law. C. NOTICE: Each notice or other communication which may be or is required to be given under this Agreement shall be in writing and shall be deemed to have been properly given when delivered personally during the normal business hours of the party to whom such communication is directed, or upon receipt when sent by United States registered or certified mail, return receipt requested, postage prepaid, to the appropriate one of the following addresses as may be designated by the appropriate party; however, each party has a right to designate a different address by giving the other party fifteen (15) days prior written notice of such designation: Page 8 of 69 If to TOWN: Mayor Town of Highland Park 4700 Drexel Drive Highland Park, Texas 75205 If to CITY: Mayor City of University Park 3800 University Blvd. University Park, Texas 75205 C. MANAGEMENT AUTHORITY: During the term of this Agreement, and any extensions thereof, CITY agrees to provide adequate supervision and training of the police officer assigned to be the SRO. The CITY shall perform and exercise all rights, duties and functions and services in compliance with all applicable Federal, State and local laws and regulations. E. CLAIMS AGAINST PARTIES: Each party shall be responsible for defending and/or disposing of all causes arising against the respective party as a result of this program. It is expressly understood and agreed that in the execution of this contract, neither CITY nor TOWN waives, nor shall be deemed to waive, any immunity or defense that would otherwise be available to each against claims arising in the exercise of governmental powers and functions. F. TERM: The term of this Agreement shall be for the school year commencing on the first day of the Fall school term, 2013. G. ENTIRE AGREEMENT: This Agreement contains the entire agreement of the parties hereto, and no other oral or written commitments shall have any force or effect if not contained herein. H. SEVERABILITY: In case any one (1) or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalidity, illegality or unenforceable provision had never been contain herein. I. AUTHORITY: The undersigned officers and/or agents are authorized to execute this contract on behalf of the parties hereto, and each party hereto certifies to the other that any necessary resolutions extending such authority have been duly passed and are now in full force and effect. Page 9 of 69 III TERMINATION Either party, or the Highland Park Independent School District, may terminate this Agreement with or without cause, by giving prior written notice of the date of termination to the other party, as provided herein. IV REMEDIES No right or remedy granted or reserved to the parties is exclusive of any other right or remedy herein by law or equity provided or permitted; but each shall be cumulative of every other right or remedy given hereunder. No covenant or condition of this Agreement may be waived without written consent of the parties. Forbearance or indulgence by either party shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. V APPLICABLE LAW This Agreement is governed by the laws of the State of Texas and venue of any action brought to enforce the terms hereof shall lie exclusively in Dallas County, Texas. VI RECITALS The recitals to this Agreement are incorporated herein for all purposes. VII EXECUTION This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument, to be effective on the date first written above. ATTEST: CITY OF UNIVERSITY PARK, TEXAS By: ____________________________________ by: ________________________________ City Secretary W. Richard Davis, Mayor Page 10 of 69 APPROVED AS TO FORM: _______________________________________ City Attorney ATTEST: TOWN OF HIGHLAND PARK, TEXAS By: ____________________________________ by: ________________________________ Town Secretary Joel T. Williams III, Mayor APPROVED AS TO FORM: _______________________________________ Town Attorney Page 11 of 69 ACKNOWLEDGEMENTS THE STATE OF TEXAS § § City Acknowledgment COUNTY OF DALLAS § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared W. Richard Davis known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed same for and as the act and deed of the City of University Park, a municipal corporation of Dallas County, Texas, and as the Mayor thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _____ day of _______________ 2013. ____________________________ ____________________________ My Commission Expires: Notary Public In and For The State of Texas ____________________________ Notary’s Printed Name THE STATE OF TEXAS § § Town Acknowledgment COUNTY OF DALLAS § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Joel T. Williams III, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed same for and as the act and deed of the Town of Highland, a municipal corporation of Dallas County, Texas, and as the Mayor thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ________ day of ____________ 2013. ____________________________ ____________________________ My Commission Expires: Notary Public In and For The State of Texas ____________________________ Notary’s Printed Name Page 12 of 69 AGENDA MEMO 6/18/2013 Agenda TO: Honorable Mayor and City Council FROM: Gary W. Adams, Chief of Police SUBJECT: Approval of an Interlocal Cooperation Agreement for Joint Provision of a D.A.R.E. Officer for FY2013-2014 BACKGROUND: Under the terms and conditions of the current Interlocal Cooperation Agreement for Joint Provision of a D.A.R.E. officer in the Highland Park Independent School District between the City of University Park and the Town of Highland Park, both parties are to review the agreement annually for renewal. Under the agreement, the estimated costs of the program, including salary and benefits for the D.A.R.E. officer, and excluding materials, are shared by the City of University Park and the Town of Highland Park, with the City of University Park providing for 75% of such estimated costs and the Town of Highland Park providing for 25% of such estimated costs. The City will advance and pay all costs as they accrue and the Town will reimburse the City for its 25% share upon receipt of a statement from the City as outlined in the Interlocal Cooperation Agreement. RECOMMENDATION: Staff recommends the City of University Park enter into an Interlocal Cooperation Agreement with the Town of Highland Park in order to continue to provide a D.A.R.E. officer for the Highland Park Independent School District's middle school. Page 13 of 69 THE STATE OF TEXAS § § COUNTY OF DALLAS § INTERLOCAL COOPERATION AGREEMENT FOR JOINT PROVISION OF POLICE SERVICES THIS INTERLOCAL COOPERATION AGREEMENT is made and entered into on this 18th day of June 2013, by and between the City of University Park, Texas (hereinafter referred to as “CITY”), acting by and through its Mayor or his designee, and the Town of Highland Park, Texas (hereinafter referred to as “TOWN”), and acting by and through its Mayor or his designee. WITNESSETH: WHEREAS, the Texas State Legislature has authorized the use of interlocal cooperation agreements between and among governmental entities for the provision of governmental services and functions; and WHEREAS, this Interlocal Cooperation Agreement is made under the authority granted by and pursuant to the Interlocal Cooperation Act, Texas Government Code, Chapter 791, and as otherwise provided herein, relative to the joint authorization by CITY and TOWN to provide certain police services. WHEREAS, the governing bodies find that the performance of this agreement is in the common public interest of both parties, and that the services provided pursuant hereto benefit the citizens of the CITY and the TOWN; and WHEREAS, the parties, in expending funds in the performance of the governmental functions or in performing such governmental functions under this Agreement, shall make payments therefor only from current revenues legally available to such party; NOW THEREFORE, FOR AND IN CONSIDERATION of the mutual agreements contained herein, the parties hereto do hereby agree as follows: I AGREEMENT A. The CITY and TOWN agree, under the terms and conditions provided herein, and with consent of the Highland Park Independent School District, to share the cost of provision of the police personnel, salary and benefits, equipment and supplies, necessary for presentation of the Drug Abuse Resistance Education (D.A.R.E.) program at the Highland Park Intermediate School/McCulloch Middle School for the 2013-2014 school year. Page 14 of 69 B. The CITY will employ and furnish an appropriately trained and experienced police officer of its Department to conduct the D.A.R.E. program during the term hereof. The total estimated cost for provision of the program during the term of the 2013-2014 school year is $95,776.00. The parties agree that the CITY will pay 75% of the total cost for provision of the program and the TOWN will pay 25% of such cost for the term hereof. The CITY will advance and pay all such cost as it accrues and the TOWN will reimburse the CITY for its 25% share upon receipt of a statement from the CITY therefore, which statement will be rendered on or before June 30, 2014 and be payable in full on or before August 15, 2014. II GENERAL REQUIREMENTS APPLICABLE TO TOWN AND CITY The following subparagraphs shall apply to this Agreement: A. (1) IMMUNITY: Nothing in this Agreement shall be construed to affect, alter, or modify the sovereign immunity of either party under the Texas Civil Practice and Remedies Code §§101.001 et seq. It is expressly understood and agreed that in the execution of this Agreement, neither CITY nor TOWN waives, nor shall be deemed to waive, any immunity or defense that would otherwise be available to each against claims arising in the exercise of its governmental powers and functions. (2) INSURANCE: During the term of this Agreement, and any extensions thereof, CITY agrees to obtain and maintain, as part of the cost of providing the services described herein, general liability insurance naming TOWN as an additional insured to protect against potential claims arising out of the CITY’s provision of the service. The CITY shall furnish TOWN with a certificate of insurance in accordance with this paragraph within sixty (60) days from the date of execution of this Agreement. Nothing contained herein shall be construed to grant any third party rights or waive the governmental and/or public purpose of the provision of the police service described in this Agreement. TOWN may also have its own insurance, at its own expense, for any liability for such services, if it so chooses. B. THIRD PARTIES: This Agreement does not create any third-party beneficiaries. Nothing in this Agreement shall be construed to create, expand or form a basis for liability to any third party under any theory of law against either the CITY or TOWN unless such a basis exists independent of this Agreement under State or federal law. C. NOTICE: Each notice or other communication which may be or is required to be given under this Agreement shall be in writing and shall be deemed to have been properly given when delivered personally during the normal business hours of the party to whom such communication is directed, or upon receipt when sent by United States registered or certified mail, return receipt requested, postage prepaid, to the appropriate one of the following addresses as may be designated by the appropriate party; however, each party Page 15 of 69 has a right to designate a different address by giving the other party fifteen (15) days prior written notice of such designation: If to TOWN: Mayor Town of Highland Park 4700 Drexel Drive Highland Park, Texas 75205 If to CITY: Mayor City of University Park 3800 University Blvd. University Park, Texas 75205 D. MANAGEMENT AUTHORITY During the term of this Agreement, and any extensions thereof, CITY agrees to provide adequate supervision and training of the police officer assigned to provide the DARE program. The CITY shall perform and exercise all rights, duties and functions and services in compliance with all applicable Federal, State and local laws and regulations. E. ACCOUNTABILITY: CITY agrees to furnish upon the request of TOWN copies of reports of daily activity submitted by the police officer assigned as the D.A.R.E. officer. CITY also agrees to furnish upon the request of TOWN any and all aggregate or statistical information created by CITY to document, track, or report activities of the police officer assigned as the D.A.R.E. officer. F. CLAIMS AGAINST PARTIES: Each party shall be responsible for defending and/or disposing of all causes arising against the respective party as a result of this program. It is expressly understood and agreed that in the execution of this contract, neither CITY nor TOWN waives, nor shall be deemed to waive, any immunity or defense that would otherwise be available to each against claims arising in the exercise of governmental powers and functions. G. TERM: The term of this Agreement shall be for the 2013-2014 school year commencing on the first day of the Fall school term, 2013. H. ENTIRE AGREEMENT: This Agreement contains the entire agreement of the parties hereto, and no other oral or written commitments shall have any force or effect if not contained herein. I. SEVERABILITY: In case any one (1) or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof, and Page 16 of 69 this Agreement shall be construed as if such invalidity, illegality or unenforceable provision had never been contain herein. J. AUTHORITY: The undersigned officers and/or agents are authorized to execute this contract on behalf of the parties hereto, and each party hereto certifies to the other that any necessary resolutions extending such authority have been duly passed and are now in full force and effect. III TERMINATION Either party, or the Highland Park Independent School District, may terminate this Agreement with or without cause, by giving prior written notice of the date of termination to the other party, as provided herein. IV REMEDIES No right or remedy granted or reserved to the parties is exclusive of any other right or remedy herein by law or equity provided or permitted; but each shall be cumulative of every other right or remedy given hereunder. No covenant or condition of this Agreement may be waived without written consent of the parties. Forbearance or indulgence by either party shall not constitute a waiver of any covenant or condition to be performed pursuant to this Agreement. V APPLICABLE LAW This Agreement is governed by the laws of the State of Texas and venue of any action brought to enforce the terms hereof shall lie exclusively in Dallas County, Texas. VI RECITALS The recitals to this Agreement are incorporated herein for all purposes. VII EXECUTION This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument. Page 17 of 69 Duplicate originals executed by the parties to be effective on the date first written above. ATTEST: CITY OF UNIVERSITY PARK, TEXAS By: ____________________________________ by: ________________________________ City Secretary W. Richard Davis, Mayor APPROVED AS TO FORM: _______________________________________ City Attorney ATTEST: TOWN OF HIGHLAND PARK, TEXAS By: ____________________________________ by: ________________________________ Town Secretary Joel T. Williams III, Town Mayor APPROVED AS TO FORM: _______________________________________ Town Attorney Page 18 of 69 ACKNOWLEDGEMENTS THE STATE OF TEXAS § § City Acknowledgment COUNTY OF DALLAS § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared W. Richard Davis known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed same for and as the act and deed of the City of University Park, a municipal corporation of Dallas County, Texas, and as the Mayor thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ____ day of __________ 2013. ____________________________ ____________________________ My Commission Expires: Notary Public In and For The State of Texas ____________________________ Notary’s Printed Name THE STATE OF TEXAS § § Town Acknowledgment COUNTY OF DALLAS § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Joel T. Williams III known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed same for and as the act and deed of the Town of Highland Park, a municipal corporation of Dallas County, Texas, and as the Mayor thereof, and for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ____ day of __________ 2013. ____________________________ ____________________________ My Commission Expires: Notary Public In and For The State of Texas ____________________________ Notary’s Printed Name Page 19 of 69 Bid #13-06 -STREET SWEEPING -ANNUAL CONTRACT Creation Date May 23, 2013 End Date Jun 7, 2013 10:00:00 AM CDT Start Date May 23, 2013 5:14:05 PM CDT Awarded Date Not Yet Awarded 13-06--01-01 SECTION A STREET SWEEPING Supplier Unit Price Qty/Unit Total Price Attch. Docs Flagship Inc. [Ad] First Offer -$17.00 121.68 / curb mile $2,068.56 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: MOORE DISPOSAL INC First Offer -$24.80 121.68 / curb mile $3,017.664 Y Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Sweeping Services of Texas -Operating, LP First Offer -$85.00 121.68 / curb mile $10,342.80 Y Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: 13-06--01-02 SECTION B STREET SWEEPING Supplier Unit Price Qty/Unit Total Price Attch. Docs Flagship Inc. [Ad] First Offer -$18.00 904.8 / curb mile $16,286.40 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: MOORE DISPOSAL INC First Offer -$18.95 904.8 / curb mile $17,145.96 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Sweeping Services of Texas -Operating, LP First Offer -$37.50 904.8 / curb mile $33,930.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: 13-06--01-03 SECTION C STREET SWEEPING Supplier Unit Price Qty/Unit Total Price Attch. Docs Flagship Inc. [Ad] First Offer -$25.00 924.24 / curb mile $23,106.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: MOORE DISPOSAL INC First Offer -$32.10 924.24 / curb mile $29,668.104 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Sweeping Services of Texas -Operating, LP First Offer -$75.00 924.24 / curb mile $69,318.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: 13-06--01-04 SECTION D SWEEPING Supplier Unit Price Qty/Unit Total Price Attch. Docs MOORE DISPOSAL INC First Offer -$20.00 156 / cycle $3,120.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Flagship Inc. [Ad] First Offer -$42.00 156 / cycle $6,552.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Sweeping Services of Texas -Operating, LP First Offer -$195.00 156 / cycle $30,420.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: City of University Park Bid 13-06 Jun 13, 2013 12:11:25 PM CDT BidSync p. 2 Page 20 of 69 13-06--01-05 HOURLY RATE -STREET SWEEPER WITH OPERATOR Supplier Unit Price Qty/Unit Total Price Attch. Docs MOORE DISPOSAL INC First Offer -$95.00 1 / hour $95.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Flagship Inc. [Ad] First Offer -$125.00 1 / hour $125.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Sweeping Services of Texas -Operating, LP First Offer -$125.00 1 / hour $125.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: 13-06--01-06 HOURLY RATE -STREET FLUSHER WITH OPERATOR Supplier Unit Price Qty/Unit Total Price Attch. Docs MOORE DISPOSAL INC First Offer -$70.00 1 / hour $70.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Sweeping Services of Texas -Operating, LP First Offer -$150.00 1 / hour $150.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Flagship Inc. [Ad] First Offer -$200.00 1 / hour $200.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: 13-06--01-07 HOURLY RATE -PICKUP TRUCK WITH LABORER Supplier Unit Price Qty/Unit Total Price Attch. Docs MOORE DISPOSAL INC First Offer -$40.00 1 / hour $40.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Flagship Inc. [Ad] First Offer -$75.00 1 / hour $75.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Sweeping Services of Texas -Operating, LP First Offer -$75.00 1 / hour $75.00 Y Product Code: 968-74 Agency Notes: Supplier Product Code: Supplier Notes: Supplier Totals Flagship Inc. [Ad] $48,412.96 (7/7 items) Bid Contact Wade Kasper wkasper@flagshipinc.com Ph 972-574-9702 Address 1104 E. Dallas Rd. #200 Grapevine, TX 76051 Bid Notes Paper bid is attached to "Section A Street Sweeping" line item Agency Notes: Documents attached Supplier Notes: Paper bid is attached to "Section A Street Sweeping" line item MOORE DISPOSAL INC $53,156.728 (7/7 items) Bid Contact STEVE MOORE TRRASH@AOL.COM Ph 214-357-4355 x102 Address 2128 HAWES DALLAS, TX 75235 Agency Notes: Paper bid attached Supplier Notes: Sweeping Services of Texas -Operating, LP $144,360.80 (7/7 items) Bid Contact Andrew G Atkinson andya@mrdirttx.com Address 3324 Roy Orr Blvd. Grand Prairie, TX 75050 City of University Park Bid 13-06 Jun 13, 2013 12:11:25 PM CDT BidSync p. 3 Page 21 of 69 Ph 817-268-4100 Fax 817-268-4101 Bid Notes Paper bid is attached to "Section A Street Sweeping" line item Agency Notes: Paper bid attached Supplier Notes: Paper bid is attached to "Section A Street Sweeping" line item ** City of University Park Bid 13-06 Jun 13, 2013 12:11:25 PM CDT BidSync p. 4 Page 22 of 69 AGENDA MEMO 6/18/2013 Agenda TO: Honorable Mayor and City Council FROM: Christine Green, Purchasing Agent SUBJECT: Street Sweeping – Annual Contract, Bid #13-06 BACKGROUND: We received bids on June 7th a second time for street sweeping services on an annual contract basis. The original bids were rejected by the City Council on May 21st due to a bid opening time discrepancy in the bid packet. Three vendors submitted bids: Flagship, Inc. $ 48,412.96 per year Moore Disposal $ 53,156.73 per year Sweeping Services of Texas $144,360.80 per year Flagship, the low bidder, provided a lengthy list of references that included many area client cities. The cities of Southlake, Flower Mound, Lewisville, Corinth, and Arlington provided positive comments about Flagship’s services. Moore Disposal has had the City’s street sweeping contract since January 2008. The new contract to begin in July has a three-year term with two additional one-year renewals for a potential contract term of five years. RECOMMENDATION: Staff recommends awarding Bid #13-06, Street Sweeping – Annual Contract, to Flagship, Inc. in the amount of $48,412.96 per year. Page 23 of 69 AGENDA MEMO 6/18/2013 Agenda TO: Honorable Mayor and City Council FROM: Liz Spector, City Secretary SUBJECT: Consider and act on minutes of the June 4, 2013 City Council Meeting BACKGROUND: Minutes of the 6/04/2013 meeting are attached for the Council’s review. RECOMMENDATION: Page 24 of 69 MINUTES CITY COUNCIL MEETING CITY OF UNIVERSITY PARK, TEXAS COUNCIL CHAMBER – CITY HALL TUESDAY, JUNE 4, 2013, 5:00 P.M. 4:00 - 5:00 P.M. PRE-MEETING WORK SESSION(S) The City Council convened at 4:00 p.m. into open work session to review agenda items with staff. Present were Mayor Davis, Mayor Pro Tem Clark, Council members Begert, Moore and Stewart, along with City Manager Livingston and City Attorney Dillard. Mayor Davis asked Director of Parks Gerry Bradley to review the proposed amendments to the park use rules with the Council. Mr. Bradley briefly reviewed the work Council and staff have done on the draft ordinance. Councilmember Begert stated he wanted to remove the restriction on the number of tennis balls permitted on the courts. Mayor Davis asked to eliminate the $25 penalty for failure to cancel reservations. He suggested that instead, the ordinance be worded to state repeated no-shows may result in forfeiture of tennis permit. The Council also requested staff to remove the three hour time restriction on tennis instructors in section 1.09.076. The Council then discussed rules governing group sizes for boot camps and personal training. Mayor Pro Tem Clark suggested that such groups be restricted to a maximum size of fifteen participants. Councilmember Stewart stated he was not in favor of that restriction. The Council then discussed group sizes. Park Director Bradley said he will determine specific locations in Caruth, Burleson and Curtis parks for the various group sizes. He said staff thinks this will have the least negative impact on residents. He also said staff will work on a tier system for pricing registration of training groups and boot camps based on number of participants. Mayor Davis adjourned the work session at 5:00 p.m. I. CALL TO ORDER The City Council Meeting was called into session at 5:00 p.m. in the Council Chamber at City Hall. Present were Mayor Davis, Mayor Pro Tem Bob Clark, Councilmember Bob Begert, Councilmember Dawn Moore, and Councilmember Tommy Stewart. Also in attendance were City Attorney Rob Dillard and City Manager Bob Livingston. A. INVOCATION: City Attorney Robert L. Dillard, III B. PLEDGE OF ALLEGIANCE: City Attorney Dillard / Boy Scouts C. INTRODUCTION OF COUNCIL: Mayor W. Richard Davis D. INTRODUCTION OF STAFF: City Manager Bob Livingston Staff present included: Director of Parks Gerry Bradley, Director of Finance Kent Austin, Page 25 of 69 Library Director Sharon Martin, Fire Chief Randy Howell, Assistant to the City Manager George Ertle, Director of Human Resources Luanne Hanford, Assistant Director of Public Works Jacob Speer, Director of Community Development Robbie Corder, City Secretary Liz Spector, Director of Public Works Bud Smallwood, Police Chief Gary Adams, Director of Information Services Jim Criswell and Community Information Officer Steve Mace. II. AWARDS AND RECOGNITION A. 13-138 RECOGNITION: of Fire Department Honor Guard members This item was pulled because the Honor Guard was in Houston, Texas attending the funeral for four Houston, Texas firefighters who were killed in the line of duty the previous week. III. CONSENT AGENDA A. 13-117 Consider and act on an Ordinance abandoning Preston Road Fresh Water District Easement Consent Agenda approval will adopt Ordinance 13/20, abandoning an easement at 3925 Marquette. ORDINANCE NO. 13/20 AN ORDINANCE OF THE CITY OF UNIVERSITY PARK TEXAS, ABANDONING A WATER MAIN LINE AND EASEMENT OF THE PRESTON ROAD FRESH WATER DISTRICT IN THE FIFTH AND SEVENTH SECTIONS OF UNIVERSITY HEIGHTS ADDITION, AS MORE PARTICULARLY DESCRIBED HEREIN, TO THE ABUTTING OWNERS; AND PROVIDING FOR THE FURNISHING OF A CERTIFIED COPY OF THIS ORDINANCE FOR RECORDING IN THE REAL PROPERTY RECORDS OF DALLAS COUNTY, TEXAS, AS A QUITCLAIM DEED OF THE CITY; AND PROVIDING AN EFFECTIVE DATE B. 13-126 Consider and act on an Ordinance approving and adopting Rate Schedule RRM "RRM - Rate Review Mechanism" for Atmos Energy Corporation, Mid-Tex Division Consent Agenda approval will adopt Ordinance 13/21, approving and adopting Atmos Energy Corporation Rate Schedule RRM. ORDINANCE NO. 13/21 AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, APPROVING AND ADOPTING RATE SCHEDULE "RRM - RATE REVIEW MECHANISM" FOR ATMOS ENERGY CORPORATION, MID- TEX DIVISION TO BE IN FORCE IN THE CITY FOR A PERIOD OF TIME AS SPECIFIED IN THE RATE SCHEDULE; PROVIDING FOR THE REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING A Page 26 of 69 SEVERABILITY CLAUSE; DETERMINING THAT THIS ORDINANCE WAS PASSED IN ACCORDANCE WITH THE REQUIREMENTS OF THE TEXAS OPEN MEETINGS ACT; DECLARING AN EFFECTIVE DATE; AND REQUIRING DELIVERY OF THIS ORDINANCE TO THE COMPANY AND ACSC LEGAL COUNSEL. C. 13-133 CONSIDER AND ACT: on approval of MOU between the City of University Park and the SPCA of Texas Consent Agenda approval will authorize the City Manager to execute a contract with the SPCA of Texas to assist with animal related relief activities including rescue and provision of transportation and sheltering of animals injured and/or displaced following a disaster at the City's request. D. 13-109 Consider approval of minutes of the May 7, 2013 City Council Meeting E. 13-131 Consider approval of minutes of the May 14, 2013 Special City Council Meeting F. 13-132 Consider minutes of the May 21, 2013 City Council Meeting Mayor Pro Tem Clark made a motion to approve the consent agenda. Councilmember Moore seconded, and the motion carried unanimously. IV. MAIN AGENDA A. 13-124 Public Hearing on Dallas County Office of Emergency Management HazMAP Community Hazard Plan There was no one present who wished to speak and Mayor Davis closed the public hearing. B. 13-105 Discuss: University Park Public Safety Committee Report on Races UPPD Chief Gary Adams addressed the City Council regarding recommendations from the Public Safety Advisory Committee. Chief Adams stated at the request of the City Council, he conducted a discussion with the City's Public Safety Advisory Committee to receive their recommendations about regulating the increasing number of 5k races conducted on City streets. Chief Adams said after some deliberation, the committee recommended that all such requests be made 45 days in advance of the race date and that each race route be approved by the Chief of Police. In addition, he said races will be conducted on a variety of routes to ease potential hardship on residents. Chief Adams stated that unless participants in any event exceed 300, they will not be required to obtain approval of the City Council. Mayor Davis thanked Chief Adams for the information. Councilmember Stewart said he was at meeting as the Council's representative. He said the issue was discussed thoroughly and the committee stated the twelve races Page 27 of 69 currently conducted in the City were not a burden. Mayor Pro Tem Clark asked if there was an amount that would burden the City. Chief Adams said the committee did not determine there was a problem. He said the Police Department has no concerns about the races as they generally are conducted on weekends and early in the mornings. He said the largest race conducted in the City has been the 3-Day Walk sponsored by the Susan G. Komen Foundation. He said even that large event caused no concern for him or his staff. C. 13-125 Discuss: PWAC recommendation regarding sidewalk and ROW improvements for building permits in excess of $10,000 in valuation Director of Community Development Robbie Corder addressed the Council regarding the City ordinance requiring homeowners obtaining permits valued in excess of $10,000 to repair broken or dilapidated sidewalks and any right-of-way encroachments as part of permit approval. He said after a recent bout of bad weather, many homeowners were forced to make emergency roof repairs in excess of $10,000, triggering this requirement for several families. He said he received a lot of feedback from the homeowners who felt the additional repairs triggered by the ordinance unfairly penalized them during a time of hardship. He said he referred study of the issue to the Public Works Advisory Committee as requested by the Council. Mr. Corder said the committee recommended changing the requirement to only trigger the repairs when permits in excess of $10,000 are submitted for new construction, remodels, additions, concrete work or fence permits. He said the committee recommended not including roofing permits or certain trade permits. Mr. Corder said a second change recommended by PWAC is to remove language pertaining to appeals in sidewalk section of the Code to agree with other sections that do not allow appeals. Councilmember Begert asked Mr. Corder if he agreed with the recommendations from PWAC. Mr. Corder stated he was. He said he will request the City Attorney to draft an ordinance amendment for the Council's future consideration if directed by the Council. Councilmember Begert made a motion to approve the PWAC recommendation regarding sidewalk and ROW improvements for building permits in excess of $10,000 in valuation. Mayor Pro Tem Clark seconded, and the motion carried unanimously. D. 13-102 CONSIDER AND ACT: on proposed amendments to the Ordinance regulating park facilities usage Mayor Davis said the City Council has worked on this issue through the three previous Council meetings. He stated the Council has received and reviewed much information from staff and residents. Page 28 of 69 Mayor Davis said the Council worked for an hour during work session to give staff information to make specific changes to the draft ordinance. He said the Council has requested staff bring a draft ordinance incorporating the changes to the next Council meeting for consideration. He stated he has closed the evidentiary hearing and will not take comments from the floor. He stated the Council will consider any written correspondences they received and he intends to finalize an ordinance amending park use rules at the June 18 meeting. Mayor Davis thanked everyone in attendance for their interest in this issue and asked that they review the draft ordinance that will be on the website prior to the next Council meeting. E. 13-134 DISCUSS: FY2014 budget calendar Director of Finance Kent Austin addressed the Council. He stated the City Council Meeting schedule for adoption of the FY14 budget needs to be set. He said he will formally transmit the budget to the Council at the August 6 meeting. He said two public hearings will need to be scheduled if there is an effective tax increase, which he anticipates. He asked the first hearing be conducted at the August 20 Regular Council Meeting followed by a second hearing at a special called meeting on August 27. He said the budget can then be adopted by the City Council at the September 3 Council Meeting. He said his objective is to have the budget approved by mid- September. Mayor Davis asked if three Council members present will be sufficient. Kent Austin said a vote will be required on August 6 to set dates for the public hearings and three members will be sufficient. City Manager Livingston asked the Mayor and Council members let him know their schedules for the months of August and September to allow staff to set dates for budget hearings. V. PUBLIC COMMENTS There were no requests to address the Council under Public Comments. VI. ADJOURNMENT There was no further business before the City Council and Mayor Davis adjourned the meeting. Considered and approved this 18th day of June 2013. __________________________ W. Richard Davis, Mayor ATTEST: __________________________ Elizabeth Spector, City Secretary Page 29 of 69 AGENDA MEMO 6/18/2013 Agenda TO: Honorable Mayor and City Council FROM: Gerry Bradley, Director of Parks SUBJECT: Proposed Amendments to the Park Ordinance BACKGROUND: For the past several months, staff has been working with City Council and the Park Advisory Committee, along with citizen input to develop amendments to the Park Ordinance primarily dealing with for-profit use of our park system. A revised draft will be reviewed by City Council during the June 18, 2013 meeting. RECOMMENDATION: Staff will take direction from City Council on how to proceed with the revised ordinance. Page 30 of 69 ORDINANCE NO. ________ AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING THE CODE OF ORDINANCES OF THE CITY OF UNIVERSITY PARK BY AMENDING ARTICLE 1.09, DIVISION 3 “TENNIS COURTS” REGULATING USE OF TENNIS COURTS AND ADDING A NEW SECTION REGULATING TENNIS INSTRUCTORS USING CITY TENNIS COURTS; AMENDING SECTION 1.09.151 TO REGULATE COMMERCIAL USE OF PARKS; AMENDING SECTION 1.09.153 REGULATING SPORTS CLINICS; PROVIDING FOR THE REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF UNIVERSITY PARK, TEXAS: SECTION 1. That Chapter 1, Article 1.09, of the Code of Ordinances, City of University Park, Texas, is hereby amended by amending Division 3 “Tennis Courts” in part as follows: “Division 3. Tennis Courts … Sec. 1.09.072 Reservations; closing time Only persons with a current tennis court permit can make a tennis court reservation. Reservations may only be made for a current permit holder. No person may exclusively use any tennis court at a particular time without a reservation having been made with a representative of the parks department. No permit holder may reserve a court for more than 1.5 hours per day. A permit holder must have his or her permit card in his or her possession at all times when using a reserved City tennis court. Reservations must be cancelled within a reasonable time in advance of the time reserved if the resident is unable to use the reserved court. Repeated violations of the policies of this Division may result in cancellation of the violator’s tennis court permit. The City reserves the right to reschedule reservations due to court or lighting maintenance requirements. Notwithstanding that the parks are open until 11:00 p.m. daily, tennis courts shall close at 10:00 p.m. daily so as to reduce lighting impact and noise in the neighborhood surrounding the tennis court. … Sec. 1.09.074 Permits Page 31 of 69 A qualified resident of the City, upon making application, may secure an annual tennis permit. Residents of the area of the City of Dallas known as Greenway Parks, lying generally between the Dallas North Tollway, Mockingbird Lane, Inwood Road, and University Blvd., shall be authorized to secure an annual tennis permit for use of the tennis courts at Germany Park only. Such permit shall be numbered and coded so as to indicate the time of its validity. The charges for individual tennis permits, under twelve years of age permits and over sixty-five years of age permits shall be established by resolution of the City Council. The permit number shall be used in obtaining a reservation from the reservations office. … Sec. 1.09.076 Tennis instructors All tennis instructors who wish to use the tennis courts of the City for instructing tennis pupils must register with the City. The registration application must be submitted with a registration fee as set by appropriate resolution of the City Council. A registered tennis instructor must have his or her registration card in his or her possession at all times when providing instruction on a City tennis court. Tennis instructors may provide instruction on a City tennis court only to persons holding a current City tennis court permit, and the permit holder’s invited guests who are present, and who have reserved the tennis court for that time period. Tennis instructors shall not be permitted to make tennis court reservations. Any violation of this section by a tennis instructor may result in the cancellation of his or her permit and any and all privileges associated with the use of the tennis permit.” SECTION 2. That Chapter 1, Article 1.09, of the Code of Ordinances, City of University Park, Texas, is hereby amended by amending Division 5 “Reservation of Parks and Playing Fields” in part as follows: “Division 5 Reservation and Use of Parks and Playing Fields Sec. 1.09.151 Use of parks and park facilities for individual or group training or instruction ... (b) …No person shall sell, offer for sale or solicit the sale of any food or other merchandise in a public park. Except as provided in this Section, no person shall offer any services for monetary gain in a public park. The policies of this section shall not apply to persons acting pursuant to and with the written authorization of the City Council or its designee. … (d) Any group of two hundred (200) or more people not sponsored by the City and desiring to use a City park as a gathering place or for an event or function of any kind shall be subject to the following requirements: [remainder of section language remains unchanged] Page 32 of 69 (e) All individuals or groups conducting any type of for-profit camp, clinic or personal instruction in City parks must register annually with the City. Registrations must be submitted with fees as set by appropriate resolution of the City Council. An instructor must have his or her registration card in his or her possession at all times when providing physical training or instruction to an individual or group in a City park. At least 51% of the participants must be City residents. The instructor will furnish a roster of participants to the parks department at least three days in advance of the beginning of instruction. The Director of Parks, or his designee, will specify a location in a park for conduct of each training group based on planned activity and group size. Classes shall not be permitted to use playgrounds, swimming pools, gazebos or other structures, picnic tables or benches, fences, utility poles, picnic areas, basketball or tennis courts to conduct physical training or instruction to an individual or group. (f) The use of lights, or equipment weighing more than twenty-five (25) pounds, is prohibited. Physical training or instruction may not be conducted in a park before 6:00 a. m. or after 10:00 p. m. All City, YMCA and HPISD programming will have priority at all times over use of a City park by an instructor. The use of park and City structures as workout devices or for anchoring is prohibited. Park benches and picnic tables may not be used for physical training activities, such as for step-ups. Resistance bands may not be connected to park fencing, signs, poles, trees or shrubs, drinking fountains or any other appurtenance in the park. Any violation of this section by an individual or group may result in the cancellation of his or her registration. (g) Amplified music and bullhorns are prohibited in a City park, except for authorized City programs. Interruption of another person’s park use or reservation is prohibited. The use of signs or banners to advertise on park property is prohibited. The use of profanity in the parks is prohibited. The City reserves the right to reschedule any reservation due to maintenance requirements. … Sec. 1.09.153 Sports clinics (a) [current section language unchanged] (b) No person shall operate a sports clinic in a City park without registration with the parks department. A registration fee established by appropriate City Council resolution shall be required with an application to conduct a sports clinic. The registration fee must be paid at least three business days prior to the operation of the sports clinic. The person registered to operate a sports clinic shall submit a roster of participants at least one week prior to the operation of the sports clinic. At least 51% of its participants listed on the roster shall be City residents. No park site will be reserved for a sports clinic or clinics for more than one week in any month. “Seasonal rental period” is March, April, May, June and July. Field rentals for sports clinics will be allowed only during the seasonal rental period, and may only operate in Burleson, Caruth and Coffee parks. (c) Amplified music and bullhorns are prohibited in a City park, except for authorized City programs. Interruption of another person’s park use or reservation is prohibited. The use of signs or banners to advertise on park property is prohibited. The use of profanity in the parks is prohibited. Page 33 of 69 The use of tennis courts for sports clinic activities is prohibited. Using fields during inclement weather closure is prohibited. The City reserves the right to reschedule any reservation due to maintenance requirements. Any violation of this section by a registered sports clinic operator may result in the cancellation of his or her registration.” SECTION 3. All provisions of the ordinances of the City of University Park in conflict with the provisions of this ordinance are hereby repealed. SECTION 4. The provisions of this ordinance are severable and should any such provision be declared unconstitutional, such shall not affect any of the remaining provisions hereof or the Code of Ordinances as amended hereby. SECTION 5. Any person violating any of the provisions of this ordinance or the Code of Ordnances as amended hereby, shall be deemed guilty of a misdemeanor and upon conviction in the Municipal Court shall be subject to a fine not exceeding five hundred dollars ($500.00) for each offense. SECTION 6. This ordinance shall take effect immediately from and after its passage and the publication of the caption, as the law and Charter in such cases provide. DULY PASSED by the City Council of the City of University Park, Texas, on this ____day of ______ 2013. APPROVED: ______________________________ W. RICHARD DAVIS, MAYOR APPROVED AS TO FORM: ATTEST: _______________________________ ________________________________ CITY ATTORNEY LIZ SPECTOR, CITY SECRETARY (rld/4-15-13/60706) Page 34 of 69 ORDINANCE NO. ___________ AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING THE CODE OF ORDINANCES OF THE CITY OF UNIVERSITY PARK BY AMENDING ARTICLE 1.09, DIVISION 3 “TENNIS COURTS” REGULATING USE OF TENNIS COURTS AND ADDING A NEW SECTION REGULATING TENNIS INSTRUCTORS USING CITY TENNIS COURTS; AMENDING SECTION 1.09.151 TO REGULATE COMMERCIAL USE OF PARKS; AMENDING SECTION 1.09.153 REGULATING SPORTS CLINICS; PROVIDING FOR THE REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE. DULY ADOPTED by the City Council of University Park, Texas on the ____ day of ____ 2013. APPROVED: __________________________________ MAYOR ATTEST: __________________________________ CITY SECRETARY Page 35 of 69 AGENDA MEMO 6/4/2013 Agenda TO: Honorable Mayor and City Council FROM: Kent R. Austin, Director of Finance SUBJECT: Amendments to master fee schedule—parks and police BACKGROUND: Included on the June 18, 2013, agenda is a resolution amending the City’s master fee schedule. The proposed fee changes relate to use of City parks and playing fields, as discussed over the past two months. Also included is a Police Department item for copies of Online Accident Report Distribution Systems RECOMMENDATION: Staff recommends approval of the resolution amending the master fee schedule. Page 36 of 69 RESOLUTION NO. _________________________ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING APPENDIX A, FEE SCHEDULE, OF THE UNIVERSITY PARK CODE OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF UNIVERSITY PARK, TEXAS: SECTION 1. That Appendix A of the Code of Ordinances is hereby amended by as follows in Exhibit A. SECTION 2. This Resolution shall take effect immediately from and after its passage, and it is accordingly so resolved. DULY PASSED by the City Council of the City of University Park, Texas, on the 18th day of June, 2013. APPROVED: __________________________________ W. RICHARD DAVIS, MAYOR ATTEST: _________________________________ LIZ SPECTOR, CITY SECRETARY Page 37 of 69 EXHIBIT A CITY OF UNIVERSITY PARK, TEXAS APPENDIX A, FEE SCHEDULE, CODE OF ORDINANCES ARTICLE A4.00 PUBLIC SAFETY AND JUDICIAL . . . Sec. A4.002 Online accident reports The fee per copy of an online accident report shall be eight dollars ($8.00). . . . ARTICLE A6.00 PARKS AND RECREATION . . . Sec. A6.002 Tennis permits and instructor registration (1) All qualified residents of the city, upon making application with the Parks Department, may secure an annual tennis permit. Such permit shall be numbered and coded as to indicate the time of its validity. The charge shall be as follows: Individual permit $40.00 $20.00 Family permit $80.00 Children 12 and under $10.00 Persons over 65 $10.00 (2) Professional tennis instructors shall pay a registration fee of fifty dollars ($50) per year. . . . Sec. A6.005 Park reservations for sports clinics Any individual or group wishing to use a park or playing field to conduct a sports clinic as a profit-making venture shall reserve the park or playing field and pay the appropriate fee as follows: Half day $100.00 Full day $200.00 Week $500.00 A refundable damage deposit of two hundred fifty dollars ($250.00) shall also be paid for each clinic. If, after the completion of the clinic, the number of hours during which the park or playing Page 38 of 69 field was actually in use exceeds the fee paid, the applicant shall be liable and responsible to pay the additional fee in the park department office within five (5) days. If the actual number of hours is less than the fee paid, the applicant shall receive a pro rata refund. The application forms and all fees must be in the park department office at least one (l) week before the clinic is scheduled to begin. Sec. A6.006 Park reservation fees (a) Any organized group not sponsored by the city and having special features (i.e., pony rides, petting zoos, bounce machines, port-a-lets, tents, etc.) which wishes to use a park, must make a reservation with the park department, make a two hundred fifty dollar ($250.00) refundable deposit, and pay a rental fee according to the following schedule: Number of Persons Fee Amount 1–25 $25.00 26–50 $50.00 51–99 $100.00 100–199 $200.00 200–299 $300.00 300 and up $500.00 (b) Deposits are not required for groups of twenty-five (25) or fewer who wish to reserve a park without special features. (c) Baseball fields may also be reserved for an additional fee of ten dollars ($10.00) per hour. (d) Personal trainers, boot camp instructors, and other paid professional trainers using the parks must pay a registration fee of one hundred dollars ($100.00) per year. (e) The cost to conduct a fitness or training class shall be as follows: Participants Amount 1 – 10 $50.00 11 – 25 $100.00 26 -- 40 $500.00 Page 39 of 69 AGENDA MEMO 5/21/2013 Agenda TO: Honorable Mayor and City Council FROM: Gene R. Smallwood, P.E.; Director of Public Works SUBJECT: DCPCMUD Generator BACKGROUND: Officials from the Dallas County Park Cities Municipal Utilities District (DCPCMUD) met recently with staff from the City of University Park and the Town of Highland Park to discuss the issue of an emergency generator at the water treatment plant. Following the meeting, General Manager Larry McDaniel provided details of the discussion in the attached letter: • The plant currently has two separate sources of electrical supply. If one energy source fails, the other service can be brought on line almost immediately. This configuration has served the DCPCMUD since the plant was constructed, and has resulted in no interruption of water service to the City and the Town. • If, through some catastrophic event, the DCPCMUD water supply is out of service, both the City and the Town have emergency connections with Dallas Water Utilities. Those connections will provide water service on an interim basis. • The cost of an emergency generator at the DCPCMUD plant would be between $1.5 and $2 million, which would add about $0.06 per 1,000 gallons to the City and Town rates. The District would appreciate the two Councils recommendation on whether to install an emergency generator. RECOMMENDATION: Staff recommends the DCPCMUD not install the emergency generator. Page 40 of 69 Page 41 of 69 AGENDA MEMO 6/18/2013 Agenda TO: Honorable Mayor and City Council FROM: Jacob Speer, Assistant Director of Public Works SUBJECT: Contract with Itron, Inc. for purchase and installation of automated water meter reading system BACKGROUND: Two years ago, staff began investigating products and methods for improving our meter reading operations. The focus was on improving our customer service abilities and the cost of obtaining meter readings. Our research led us to a concept known in the industry as “advanced metering infrastructure” (AMI). An AMI involves the following: • Fully automated meter reading data collection through the use of wireless, 2-way data transmission for the purposes of increased meter reading efficiency and workforce safety. • Collection of interval (daily, hourly, 15-minute) consumption data and the ability to store the data in order to conduct advanced analyses on the collected data. • Easy access to meter information throughout the organization so that utility personnel can locate pertinent data in a timely manner. • Enhanced service to customers with the ability to conduct timely bill complaint investigation and resolution using detailed data collected by the system that can also be shared directly with the customer. Staff prepared a Request for Information in order to better understand the technologies and techniques being used by various companies in the AMI industry. After reviewing the information submitted by 7 companies, staff prepared a Request for Proposals for an AMI system utilizing the techniques and methods best suited for the City of University Park. We received AMI proposals from 5 vendors. Staff reviewed those proposals and identified 3 vendors with solutions that met the goals and specifications for the project. Those 3 vendors were invited to make a presentation to staff to further explain their proposed solution. A team of 8 City staff members from 3 departments reviewed the RFPs and presentations. The 3 finalists were also required to participate in a 60-day field demonstration. Each vendor installed their equipment on 24 pre-selected water meters at various locations throughout University Park. City staff was then able to observe the performance of each system in our specific environment. Following the demonstration period, the staff committee met to evaluate each of the finalists. Staff Page 42 of 69 was unanimous in its selection of the best solution, but a few questions and concerns remained. Staff named a lone finalist and continued its review and evaluation of the proposed solution. The finalist came back for another Q&A session with the staff committee. Additionally, 4 members of the committee traveled to Georgia to meet with a similarly sized utility who was using the finalist’s system. With all questions and concerns satisfactorily addressed, staff concluded that the solution proposed by Itron, Inc. was best suited for University Park. The AMI for University Park includes the following components: • A data collection and transmission device connected to each of the 10,000 water meters in the City. • Collectors at City Hall and the Northwest Hwy water tower to receive the radio transmissions and send them to the servers/software in the Utility Billing office. • Repeaters at approximately 6 locations throughout the City to relay the signal from the meters to the collectors. • Handhelds units to collect manual reads during the installation process and to provide a backup method of collecting reads. • Servers to store the meter reading data. • Software to analyze the meter data and send it to the billing system. Itron will install the collectors and repeaters and assist in the installation/configuration of the servers and software. Itron will also train City staff in the installation of the meter transmitters. Staff will install the units (approximated 10,000) over the next 4 years. RECOMMENDATION: Staff recommends approval of a contract with Itron, Inc. for the purchase and installation of an advanced meter infrastructure system in the amount of $1,196,585.54. Page 43 of 69 ITRON SALES AGREEMENT This Itron Sales Agreement (the "Agreement") is entered into as of the last date of execution on the signature page hereto (the "Effective Date") by and between Itron, Inc. ("Itron") and [_____________] ("Customer"). Itron and Customer may each be referred to as a "Party" and together as the "Parties." The Parties agree as follows: 1. Equipment Terms a. Equipment Purchase. Customer agrees to purchase the equipment, if any, identified on Attachment A (the "Equipment") from Itron at the price(s) and in the quantities set forth thereon pursuant to the terms of this Agreement. Prices set forth on Attachment A are valid for the later of one year from the date of this Agreement or the date set forth on Attachment A (the "Pricing Period") and are contingent upon Customer purchasing the quantities set forth on Attachment A. If Customer fails to purchase such quantities for any category of Equipment for any reason (including a termination for breach by Itron) by the end of the Pricing Period, Itron may retroactively adjust the price for such Equipment to Itron's list price as of the Effective Date, or the date such pricing is added to Attachment A, whichever is the later date. b. Ordering During the term of this Agreement, Customer shall order quantities of Equipment by issuing a purchase order, change order or release (each an "Order") to Itron, in each case specifying the type and quantity of Equipment, the shipment destination and the requested delivery date. Unless otherwise agreed in a separate writing signed by an authorized representative of each Party, the requested delivery date in an Order must be no earlier than ninety days following Itron's receipt of such Order. c. Firmware The purchase of Equipment manufactured by Itron will include a perpetual, irrevocable license to use and execute any software embedded in the Equipment. The license to any software embedded in third party Equipment provided by Itron shall be between Customer and the manufacturer of such third party Equipment. d. Invoicing. Itron will invoice Customer for the Equipment upon shipment. e. Delivery, Title and Risk of Loss. Unless otherwise agreed by the Parties, Itron will make arrangements with its carrier to deliver Equipment to Customer's location at Customer's expense. For Equipment delivered to Canada, title to the Equipment and risk of loss shall pass to Customer upon delivery to the Customer. For Equipment delivered to all other locations, title to the Equipment and risk of loss shall pass to Customer upon Itron's delivery to a carrier for shipment to Customer. f. Limited Equipment Warranty i. Warranty and Remedy. Except to the extent otherwise provided in Attachment A, Itron warrants to Customer that the Equipment that is manufactured by Itron will be free from defects in materials and workmanship and will conform to the applicable published Itron specifications for a period of one year from the date of shipment. Except to the extent otherwise provided in Attachment A, Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section or under Attachment A shall be for Itron to repair non-conforming Equipment or provide Customer with replacement Equipment after Customer has returned non-conforming Equipment properly packaged and prepaid to a repair facility designated by Itron in accordance with Itron's then-current RMA procedures. If Itron, in its sole discretion, determines that it is unable to repair or replace such non-conforming Equipment, Itron will refund to Customer the amount paid for such Equipment. Equipment that is repaired or replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. Customer will pay the cost of returning non- conforming Equipment to the place of repair designated by Itron and Itron will pay the cost of delivering repaired or replacement Equipment to Customer. ii. Exclusions. The warranty provided herein does not cover damage due to external causes, including accident, abuse, misuse, inadequate maintenance, problems with electrical power, acts of God; service (including installation or de-installation) not performed or authorized by Itron; usage not in accordance with product instructions or in a configuration not approved by Itron; normal wear and tear; and problems caused by use of parts and components not supplied by Itron. The warranty provided herein shall be void if the Equipment is modified in a way not authorized in writing by Itron. The above warranty does not cover any third party equipment provided by Itron. Any warranty for such equipment will be between Customer and the third party manufacturer. 2. Software Terms a. Definitions. "Delivery" with respect to Software, means that Itron has either made the Software available to Customer via electronic means or has provided the Software to a carrier on physical media for delivery to Customer. "Documentation" means all printed or electronic materials published or otherwise that are provided to Customer and that describe or relate to the functional, operational or performance capabilities of the Software. "Endpoint" means (i) a physical device (e.g., a meter, encoder-transmitter-receiver or other measuring or monitoring device) that is the source of data used in the Software application or (ii) a virtual device created in the Software application to simulate the existence of a physical device. An example of a virtual device that is an Endpoint would include a single electricity meter that serves 10 apartment units. If the consumption data from that electricity meter was divided between the 10 units (e.g., on the basis of square footage) and used in the Software application as if that single electricity meter was actually 10 electricity meters, it would count as 10 Endpoints. Page 44 of 69 Further, each account, whether active or inactive, in the application that is associated with a single physical device counts as a separate Endpoint. "Object Code" means the binary, machine-readable version of the Software. "Production Environment" means a single instance of the Software used in an environment other than a Test Environment. "Software" means software identified on Attachment A that is owned by Itron and any modifications, corrections, improvements or enhancements thereto provided by Itron. "Source Code" means human-readable computer programming code, associated procedural code and related documentation. "Specifications" means the applicable published Itron functional specifications for an item of Software. "Test Environment" means a single instance of the Software used solely for test purposes. Such installation can only be used to verify the correct installation, operation, and integration of the Software and/or components. "Third Party Software" means software that is not owned by Itron but is identified on Attachment A as being provided by Itron. "Use" means the ability to run, execute, display and, subject to the restrictions described below, duplicate and distribute internally. "Warranty Period," with respect to a particular item of Software, means the warranty term beginning on the warranty start date, as set forth on Attachment A. If no such period is identified on Attachment A, the Warranty Period shall be 90 days from the date of Delivery. b. License Grant. Subject to the terms of this Agreement and for the license fee set forth on Attachment A, Itron grants to Customer a nonexclusive, nontransferable, perpetual Object Code license to Use the Software and Documentation for its internal business purposes only in connection with the number of [Endpoints] set forth in Attachment A. c. Restrictions. As a condition to the foregoing license grant, Customer shall not (i) violate any restriction set forth on Attachment A, (ii) modify or create any derivative work from the Software, (iii) include the Software in any other software, (iv) use the Software to provide processing services to third parties or on a service bureau basis, (v) reverse assemble, decompile, reverse engineer or otherwise attempt to derive Source Code (of the underlying ideas, algorithms, structure or organization) from Software, or (vi) use the Software to process business information concerning customers derived through merger, asset acquisition or other entity combination. Except as expressly permitted in this Agreement, (i) the Software may not be installed on a computer that is not part of the Customer's computer network, (ii) Customer may not copy the Software other than to make one machine readable copy for disaster recovery or archival purposes, and (iii) installation of the Software shall be limited to one Production Environment and one Test Environment. Customer may only make copies of Documentation as reasonably necessary for the use contemplated herein. The Software and Documentation shall be considered the confidential information of Itron and, as such, shall be subject to the confidentiality provisions of this Agreement. d. Invoicing. Itron will invoice Customer for the Software and any Third Party Software upon Delivery. e. Limited Software Warranty i. Warranty and Remedy. For the Warranty Period, Itron warrants to Customer that the Software will perform substantially in accordance with the Specifications. Itron does not warrant that the Software will operate uninterrupted or error-free. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron to repair or replace the non- conforming Software. If Itron, in its sole discretion, is unable to repair or replace non-conforming Software, Itron will refund to Customer the amount paid for such Software. Software that is repaired or replaced pursuant to this Section will be warranted for the remainder of the original warranty period or 30 days, whichever is longer. Customer's license to Software for which it has received a refund hereunder shall terminate upon its receipt of a refund. ii. Exclusions. The warranty provided in this Section shall not apply to the extent that non-compliance relates to or is the result of (i) use of the Software in combination with software, equipment or communications networks not provided by Itron, (ii) a change to the Software's operating environment not made or authorized by Itron, (iii) Customer's failure to install any correction or enhancement provided by Itron, (iv) viruses introduced through no fault of Itron, (v) any use of the Software not authorized by this Agreement. The warranty provided in this Section is valid only if Customer has complied with the terms of this Agreement (including paying the applicable Software license fees) and shall be void to the extent of any modification to the Software not authorized by Itron. f. Third Party Software and Documentation. Itron shall provide the Third Party Software, if any, identified on Attachment A and any related documentation. Any Third Party Software and related documentation provided by Itron in connection with this Agreement shall be subject to a separate license agreement between the Customer and the third party software provider and will be subject to separate third party warranties, if any. Customer agrees that it will be bound by and will abide by all such third party software licensing arrangements. Customer is solely responsible for acquiring any software that is required to use the Software or Third Party Software. g. Audit. Customer will maintain accurate and detailed records as necessary to verify compliance with this Agreement. Itron may audit these records to verify compliance at any time during Customer’s regular business hours after giving notice 5 business days in advance of the audit. Except as described below, Itron will bear all costs and expenses associated with the exercise of its audit rights. Any errors in payments identified will be corrected by Customer by appropriate adjustment. In the event of an underpayment of more than 5 percent, Page 45 of 69 Customer will reimburse Itron the amount of the underpayment, reasonable costs associated with the audit, and interest on the overdue amount at the maximum allowable interest rate from the date the obligation accrued. h. Obligations Upon Termination for Cause. Upon a termination by Itron for cause, Customer's license to any Software and right to receive maintenance and support for such Software shall immediately terminate and Customer shall (i) delete any Software from all of its computers, (ii) immediately deliver to Itron or destroy all copies of such Software and any related Documentation and (iii) certify in writing to Itron within 10 days of any such termination that, to the best of Customer's knowledge, Customer has complied with this Section. i. Other Provisions. Customer shall not, directly or indirectly, export or transmit the Software to any country to which such export or transmission is prohibited by any applicable regulation or statute. The Parties agree that Software provided under this Agreement shall be deemed to be "goods" within the meaning of Article 2 of the Uniform Commercial Code, except when such a practice would cause an unreasonable result. The Parties agree that the Uniform Computer Information Transaction Act (or a version thereof or substantially similar law) shall not govern this Agreement. 3. Professional Services Terms a. Definitions. "Change Order" means a written confirmation of a change in the Professional Services, Deliverables or cost thereof that is executed by both Parties. "Deliverable" means any software, reports, results, studies or other documentation identified as a "Deliverable" to be provided by Itron in a SOW. "Professional Services" means the services to be provided by Itron pursuant to a SOW. "SOW" means a written statement of work describing the activities, tasks and responsibilities of Itron and Customer that, at the time of execution, is attached hereto as Attachment B or that, subsequent to execution, references this Agreement and is executed by authorized representatives of the Parties. b. Purchase of Professional Services; License. During the term of this Agreement, Itron will make commercially reasonable efforts to provide to Customer the Professional Services and Deliverables, if any, described in the applicable SOW within the time periods set forth in such SOW. Changes to the Professional Services or Deliverables may only be made through a Change Order. Itron hereby grants to Customer a non-exclusive, perpetual license to use the Deliverables solely for Customer’s internal purposes. c. Fees and Expenses. Customer agrees to pay for Professional Services in the manner set forth in the applicable SOW (e.g., on a time and materials basis or on a fixed-fee basis) and at the rates set forth on Attachment A or in the applicable SOW. Itron reserves the right to adjust rates for Professional Services performed on a time-and-materials basis no more than once each year. Customer shall also reimburse Itron for reasonable and documented travel, lodging and related expenses incurred in connection with the Professional Services. d. Invoicing. Professional Services will be performed either on a time-and-materials basis or a fixed-fee basis, as set forth on Attachment A or the applicable SOW, provided that Attachment A will supersede the SOW to the extent of any conflict. Professional Services performed on a time and materials basis will be invoiced at the end of the calendar month in which they are performed. Professional Services that are performed on a fixed fee basis will be invoiced as set forth on the applicable SOW or, if not set forth on a SOW, upon completion. e. Limited Professional Services Warranty. Itron warrants to Customer that it shall perform the Professional Services with reasonable care and in a diligent and competent manner. Itron's sole obligation and Customer's exclusive remedy in connection with a breach of the foregoing warranty shall be to correct or re- perform the non-conforming Professional Services. If Itron, in its sole discretion, is unable to correct or re-perform non-conforming Professional Services, its sole obligation will be to refund to Customer the amount paid for such Professional Services. Customer must report any deficiencies in the Professional Services to Itron in writing within 60 days of performance to receive the warranty remedies described herein. f. Access to Facilities and Personnel. Customer agrees to provide Itron with access to its facilities and personnel as reasonably required for Itron to provide the Professional Services and Deliverables. All employees and representatives of Itron that perform Professional Services on Customer's premises shall comply with reasonable guidelines pertaining to employee conduct, including Customer safety procedures and policies, provided to Itron by Customer. Neither Party shall require releases or waivers of any personal rights from representatives of the other in connection with visits to its premises, and the Parties agree not to plead any such releases or waivers in any action or proceeding. g. Insurance. During the term of this Agreement, Itron will maintain the following minimum levels of insurance (i) workers' compensation insurance for Itron employees equal to applicable statutory limits and an employer's liability policy in an amount not less than $1,000,000.00; (ii) an occurrence form commercial general liability policy or policies in an amount not less than $1,000,000 per occurrence and $2,000,000.00 aggregate; (iii) an automobile liability policy or policies in an amount not less than $1,000,000.00 combined single limit; and (iv) a professional liability policy or policies insuring against liability for errors and omissions covering professional activities contemplated under the Agreement in an amount not less than $1,000,000.00. Upon written request, Itron will provide Certificates of Insurance evidencing the coverage described in this Section. Page 46 of 69 4. Managed Service Terms a. Access to Managed Service. Subject to the terms of this Agreement, Itron grants to Customer, for its internal business purposes only, the non-transferrable, non- exclusive right to access and use the service identified on Attachment A as a "managed" or "hosted" service (the "Managed Service") in accordance with the terms of service attached hereto as Attachment C (the "Terms of Service"). b. Use Restrictions. Customer is responsible for maintaining the confidentiality of all information required to access the Managed Service and for the activities of its employees or representatives that access the Managed Service. Customer will not (i) access or use the Managed Service other than in accordance with the Managed Service documentation; (ii) reverse engineer the software underlying the Managed Service; (iii) engage in any activity that interferes with or disrupts the Managed Service or any servers or networks connected to the Managed Service; (iv) allow a third party to access the Managed Service or operate the Managed Service for the benefit of a third party, including as a service bureau; (v) modify or create derivative works based on the Managed Service; or (vi) use the Managed Service in a manner that violates any law or regulation or the rights of any third party. c. Managed Service Term. Itron will make the Managed Service available to Customer for an initial one-year period beginning on the Effective Date. Thereafter, Itron shall provide the Managed Service for successive one year periods unless the Managed Service is terminated in writing by either Party at least 90 days prior to the end of the then-current one-year period. d. Invoicing. Itron shall invoice Customer for the initial annual Managed Service fee identified on Attachment A immediately following the Effective Date. Thereafter, Itron shall invoice Customer for each successive one-year period prior to the commencement of such period. Itron may elect to increase the annual fee for any successive annual period by providing Customer with written notice of such increase at least 90 days prior to the commencement of such period. e. Customer Data. Customer retains all right, title and interest in and to any electronic data or information contained in any database, table or similar file or document provided by Customer for use in connection with any Managed Service (the "Customer Data"). Customer grants to Itron a license to use the Customer Data to the extent necessary for Itron to provide the Managed Service, or as required by law. Customer is solely responsible for the Customer Data, including providing the Customer Data required for proper operation of the Managed Service, and will not provide, post or transmit any Customer Data or any other information or material that: (i) infringes or violates the rights of any third party or any law or regulation or (ii) contains any virus or programming routine that has the effect of damaging, surreptitiously intercepting or expropriating any system, data or personal information. Itron may take any remedial action it deems advisable to address any violation of this Section but Itron is under no obligation to review Customer Data for accuracy or potential liability. Customer agrees to indemnify Itron for any loss or damage suffered by Itron in connection with Customer's breach of its obligations under this Section. f. Service Levels Itron agrees to make commercially reasonable efforts to: (i) maintain Appropriate Security Measures (defined below); (ii) provide regular backups for the Customer Data as further described in the Terms of Service; and (iii) make the Managed Service generally available 24 hours a day and 7 days a week except for (y) planned downtime in accordance with the Terms of Service and (z) downtime caused by circumstances beyond Itron's reasonable control, including telecommunications or network failures or delays, computer failures that could not reasonably have been prevented by Itron or acts of vandalism (e.g., network intrusions and denial of service attacks). Itron's sole obligation, and Customer's exclusive remedy, in connection with a breach of any obligation of Itron with respect to the performance or availability of the Managed Service shall be for Itron, at its option, to correct the failure or to refund to Customer the amount paid for the Managed Service for the period in which it was affected. Customer's subscription to the Managed Service shall terminate upon its receipt of any such refund. "Appropriate Security Measures" means customary technical, physical and procedural controls to protect Customer Data against destruction, loss, alteration, or unauthorized disclosure to third parties. Customer acknowledges that, notwithstanding Appropriate Security Measures, use of or connection to the Managed Service presents the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Managed Service and Customer Data. Accordingly, Itron does not guarantee the privacy, security or authenticity of any information stored in connection with or transmitted to or from any Managed Service. g. Federal Communications Commission ("FCC") Licensed Facilities Customer acknowledges and agrees that Itron maintains the exclusive right to operate and control any Federal Communications Commission ("FCC") licensed facilities involved in the provision of services, including the transmitter and other components that produce RF energy (e.g. Itron Cell Control Units, Endpoints, etc.). Itron will make all decisions regarding any FCC licenses used to implement the Managed Services provided for by this Agreement, including the preparation and filing of applications with the FCC. 5. Payment Terms and Taxes. For invoices not paid within 30 days of the invoice date, in addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of one percent per month applied against overdue amounts. Customer shall also be responsible for collection costs associated with late payment, if any, including reasonable attorneys' fees. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Unless otherwise indicated on Attachment A, Customer shall pay all amounts owing under this Agreement in U.S. Dollars. The prices set forth on Attachment A do not include taxes. Customer will be responsible for and pay all applicable sales, use, excise, value-added and other taxes associated with the provision of products or services by Itron, excluding taxes on Itron's income generally. If Customer is a Page 47 of 69 tax exempt entity, or pays taxes directly to the state, Customer will provide Itron with a copy of its Tax Exemption Certificate or Direct Pay Permit, as applicable, upon execution of this Agreement. 6. Changes. Changes to the products or services ordered by Customer pursuant to this Agreement, including the purchase of additional quantities or entirely new products or services, may be made at Itron's then-current pricing by purchase order or Change Order (in a form acceptable to Itron), provided that any such purchase order must first be accepted by Itron. 7. Confidentiality. With respect to any information supplied in connection with this Agreement and designated by either Party as confidential, or which the recipient should reasonably believe to be confidential based on its subject matter or the circumstances, the recipient agrees to protect the confidential information in a reasonable and appropriate manner, and to use and reproduce the confidential information only as necessary to realize the benefits of or perform its obligations under this Agreement and for no other purpose. The obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. The recipient may disclose the confidential information on a need-to-know basis to its contractor's, agents and affiliates who agree to confidentiality and non-use terms that are substantially similar to these terms. 8. IP Ownership. Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to any product, software or deliverable provided by Itron pursuant to this Agreement are and will remain the exclusive property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product, software or deliverable or Itron's confidential information other than rights granted in this Agreement. 9. Indemnification a. General Indemnity. Itron will defend Customer from any claim for (i) death of or bodily injury to a Customer employee or third party to the extent caused by Itron's gross negligence or intentional torts, or (ii) physical damage to tangible personal property owned by Customer or a third party to the extent caused by Itron's gross negligence or intentional torts and will pay costs and damages awarded against Customer (or settled) in any such action that are specifically attributable to Itron's gross negligence or intentional torts. b. Infringement Indemnity. Itron will, at its own expense, defend any claim or action brought against Customer by an unaffiliated third party to the extent that the action is based upon a claim that any product manufactured, software licensed or service provided by Itron hereunder directly infringes any U.S. patent (issued as of the Effective Date) or any copyright or trademark and Itron will pay those costs and damages awarded against Customer (or settled) in any such action that are specifically attributable to such claim. The foregoing indemnity does not apply to products not manufactured by Itron or software licensed by third parties. c. Conditions to Infringement Indemnity. Itron's infringement indemnity obligations under this Section are conditioned on Customer's agreement that if the applicable product or service becomes, or in Itron's opinion is likely to become, the subject of such a claim, Customer will permit Itron, at Itron's option and expense, either to procure the right for Customer to continue using the affected product or service or to replace or modify the same so that it becomes non-infringing. Such replacements or modifications will be functionally equivalent to the replaced product or service. If the foregoing alternatives are not available on terms that are reasonable in Itron's judgment, Itron shall have the right to require Customer to cease using the affected product or service in which case Itron will refund to Customer the depreciated value of the affected product or service. d. Exclusions. Itron shall have no obligation under this Agreement to the extent any claim of infringement or misappropriation results from: (i) use of a product or service, other than as permitted under this Agreement or as intended by Itron, if the infringement would not have occurred but for such use; (ii) use of any product or service in combination with any other product, equipment, software or data, if the infringement would not have occurred but for such combination; (iii) any use of any release of a software or any firmware other than the most current release made available to Customer, (iv) any claim based on Customer's use of a product after Itron has informed Customer of modifications or changes to the product required to avoid such claims and offered to implement those modification or changes, if such claim would have been avoided or mitigated by the implementation of Itron's suggestions, (v) any modification to a product made by a person other than Itron or an authorized representative of Itron, or (vi) compliance by Itron with specifications or instructions supplied by Customer. Itron shall not be liable hereunder for enhanced or punitive damages that could have been avoided or reduced by actions within the control of Customer. e. Right to Defend. As a condition to Itron's indemnity obligations under this Agreement, Customer will provide Itron with prompt written notice of the claim, permit Itron to control the defense, settlement, adjustment or compromise of the claim and provide Itron with reasonable assistance in connection with such defense. Customer may employ counsel at its own expense to assist it with respect to any such claim. f. Indemnity Disclaimer THIS SECTION CONSTITUTES ITRON'S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT AGAINST CUSTOMER. Page 48 of 69 10. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, (I) IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND AGAINST INFRINGEMENT AND (III) WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. 11. WAIVER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 12. CAP ON LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR A BREACH BY CUSTOMER OF (I) ANY INTELLECTUAL PROPERTY RIGHT OF ITRON OR (II) ANY LICENSE GRANTED BY ITRON HEREUNDER, THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT—WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE—SHALL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE HEREUNDER. ITRON SHALL NOT BE LIABLE FOR ANY CLAIM MADE THE SUBJECT OF A LEGAL PROCEEDING MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION ASSERTED IN SUCH CLAIM AROSE. ITRON'S PRICING REFLECTS THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 13. Term and Termination a. Term of Agreement. Unless terminated earlier as provided herein, the term of this Agreement shall be from the Effective Date through December 31st of the year in which any products or services to be provided hereunder have been provided. The term of this Agreement shall thereafter automatically renew for successive one year periods unless either Party provides the other with written notice of its intent not to renew at least 90 days prior to such termination; provided, however, that Customer shall be obligated to purchase and Itron shall be obligated to provide any product or service that is the subject of an unfulfilled order accepted by Itron prior to the time of any such termination. Notwithstanding the foregoing, the term of any license provided by Itron hereunder shall be as set forth in the provision granting such license. b. Termination for Cause. Other than Customer’s nonpayment which shall constitute a breach of this Agreement if full payment is not received within five (5) days of written notice, either Party may terminate this Agreement by providing the other Party with written notice if the other Party (i) becomes insolvent, executes a general assignment for the benefit of creditors or becomes subject to bankruptcy or receivership proceedings; (ii) breaches its obligations related to the other Party's confidential information; or (iii) commits a material breach of this Agreement that remains uncured for 30 days following delivery of written notice of such breach (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default and the action required to cure the breach or default). c. Survival. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement shall survive termination or expiration and continue in full force and effect for the period so contemplated including, but not limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, payment terms, confidentiality, waiver of consequential damages, and cap on liability. 14. Miscellaneous a. Entire Agreement. This Agreement and any attachments hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous agreements pertaining to such subject matter. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded hereby and Customer represents and acknowledges that it has not relied on any representation or warranty other than those explicitly set forth in this Agreement in connection with its execution of this Agreement. Neither Party shall be bound by terms and conditions imprinted on or embedded in purchase orders, order acknowledgments, statements of work not attached hereto or other communications between the Parties subsequent to the execution of this Agreement. b. Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only by a writing signed by an authorized representative of each Party and declared to be an amendment hereto. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision. No waiver granted under this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision herein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived. Page 49 of 69 c. Governing Law; Jury Trial. This Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of Washington without reference to Washington conflicts of law principles or the United Nations Convention on Contracts for the Sale of Goods. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT. d. Assignment. Customer may not assign or transfer its interests, rights or obligations under this Agreement by written agreement, merger, consolidation, operation of law or otherwise without the prior written consent of an authorized executive officer of Itron. Any attempt to assign this Agreement by Customer shall be null and void. For purposes of this Agreement, the acquisition of an equity interest in Customer of greater than 25 percent by any third party shall be considered an assignment. e. Publicity. Unless otherwise provided in a separate confidentiality agreement between the Parties, each Party may issue a press release following the execution of this Agreement, subject to the other Party's written approval, which shall not be unreasonably withheld. Each Party hereby consents to the other Party's use of its name, URL and logo on its website and in its customer and partner lists for corporate and financial presentations. f. Force Majeure. Neither Party will be responsible for any failure or delay in performing any obligation hereunder if such failure or delay is due to a cause beyond the Party's reasonable control, including, but not limited to acts of God, flood, fire, volcano, war, third-party suppliers, labor disputes or governmental acts. Notwithstanding the foregoing, Itron shall have no obligation to deliver Equipment or provide Services to the extent that Customer is unable to pay as a result of a force majeure event. g. Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be delivered in person, by facsimile, by certified mail (return receipt requested), or by a nationally recognized overnight service with all freight charges prepaid, to the address set forth below. Notices will be deemed to have been given at the time of actual delivery, if in person, or upon receipt (as evidenced by facsimile confirmation, return receipt or overnight delivery verification). Either Party may change its address for notices by written notice to the other Party in accordance with this Section. Itron: Attn: General Counsel Itron, Inc. 2111 North Molter Road Liberty Lake, WA 99019 Customer: h. Miscellaneous. Headings used in this Agreement are intended for convenience or reference only and will not control or affect the meaning or construction of any provision of this Agreement. If any provision in this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby and such provision shall be interpreted so as to best accomplish the intent of the Parties within the limits of applicable law. Any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement shall not apply to the terms and conditions of this Agreement. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and all of which together shall constitute one and the same agreement. If available, maintenance and support for products will be provided pursuant to a separate maintenance agreement. Itron shall perform all work to be performed in connection with this Agreement as an independent contractor and not as the agent or employee of Customer. All persons furnished by Itron shall be for all purposes solely Itron's employees or agents and shall not be deemed to be employees of Customer for any purpose whatsoever. This Agreement is entered into only for the benefit of Customer and Itron. No other person or entity shall have the right to make any claim or assert any right hereunder, and no other person or entity shall be deemed a beneficiary of this Agreement. [Signature Page Follows] Page 50 of 69 Agreed to and accepted: Itron, Inc. Customer Signature: __________________________________ Signature: __________________________________ Print Name: ________________________________ Print Name: ________________________________ Title: ______________________________________ Title: ______________________________________ Date: ______________________________________ Date: ______________________________________ Tax Exempt: Yes / No (if yes, attach copy of Tax Exemption Certificate) Page 51 of 69 Attachment A-1 Pricing Summary Page 52 of 69 Attachment A-2 Warranty Terms Product Warranty Terms Centron and Sentinel electricity meters 3 years from shipment Repairs for out-of-warranty electricity meters Itron shall perform the repairs with reasonable care and in a diligent and competent manner. Itron's sole obligation in connection with repair warranty failures shall be, at its option, to correct or re-perform repairs or refund to Customer the amount paid for the repairs. Customer must report any deficiencies in repair work to Itron in writing within 90 days of shipment to receive the remedies described herein. Mobile Collector 3 years from shipment 200W series water endpoints (including battery) Standard Warranty: Full warranty consistent with the warranty terms in the Agreement for the first 5 years from shipment. Optional Extended Warranty (if purchased by Customer): For warranty claims in years 6 through 10, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 100 percent of its then-current list price for the replacement product. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. 100W, 60W and 80W-i series water endpoints (including battery) Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. The warranty on Itron water endpoints shall be void if the endpoint is used in connection with a third party reading system that is not approved by Itron. Leak Sensor Full warranty consistent with the warranty terms in the Agreement for the first 10 years from shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then-current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then-current list price for the replacement product. MLOG Radio Logger (including battery) Full warranty consistent with the warranty terms in the Agreement for the first 5 years from shipment. For warranty claims in years 6 through 10, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 60 percent of its then-current list price for the replacement product. Upgraded handhelds or Mobile Collectors 90 days from shipment MV-RS Software 12 months from Delivery METRIS Meters and METRIS RD Meters Itron warrants that eighty five percent (85%) or more of the METRIS Meters shipped to Customer during any calendar year will be free from defects in materials and workmanship such that they maintain set point calibration that is within two percent of their original factory set point calibration (open and check) (“Calibration Warranty”). The foregoing Calibration Warranty is valid Page 53 of 69 until the earlier of (i) 15 years from shipment to Customer of the METRIS Meter for which warranty coverage is sought, (ii) the measurement of more than one million cubic feet of gas measured by such meter, or (iii) until such meter is replaced by Customer in connection with a periodic meter change- out. Itron's sole obligation and Customer's exclusive remedy in connection with the breach of a warranty provided under this Section shall be for Itron, at its option, to repair any non-conforming METRIS Meters, provided that if Itron determines that it is unable to repair a non-conforming METRIS Meter, Itron will refund to Customer the depreciated value of such non-conforming METRIS Meter. At the request of Itron, Customer will provide evidence of a meter’s service history to verify warranty coverage. While Itron will repair or replace METRIS RD meters covered under warranty that are defective due to a failure in the remote disconnect functionality, Itron’s warranty is not a guarantee that the remote disconnect functionality will always work. Customer shall not rely on the remote disconnect functionality in the METRIS RD meters as a substitute for standard safety procedures, including manual shut-off, and shall remain solely responsible for ensuring that proper safety procedures are utilized in connection with gas leaks and other unsafe circumstances. Page 54 of 69 Attachment B Statement of Work Page 55 of 69 Attachment C Terms of Service Page 56 of 69 MAINTENANCE AGREEMENT This Maintenance Agreement (this "Maintenance Agreement") is entered into as of the last date of execution on the signature page hereto (the "Effective Date") by and between Itron, Inc. ("Itron") and [_______________] ("Customer"). Itron and Customer may each be referred to as a "Party" and together as the "Parties." The Parties agree as follows: 1. Technical Support a. Support Services. Itron will make available qualified technical representatives by telephone, email or other remote means during its then-current normal business hours to assist Customer Coordinators (defined below) with the operation of and answer questions related to the software (the "Software") and equipment (the "Equipment") identified on Attachment A (together, the "Products"), which are covered by the services described herein (the "Maintenance Services"). Such technical support shall include, but is not limited to, troubleshooting, problem diagnosis, release or system management, and recommendations for fully utilizing the Products. Itron's current Support Services contact and support hours are described in the "Itron Supports Services Contacts" document (the "Contacts Document"), which can be obtained by calling (877) 487-6602. Consistent with Section 1.c hereof, Customer will not use Support Services technical representatives in lieu of having qualified and trained support personnel of its own. b. Field Support. Upon mutual agreement of the Parties, Itron will dispatch support personnel to Customer's location to provide technical support. Such support will be billed at Itron's then-current hourly rates (with reasonable travel and living expenses invoiced at Itron's cost) unless the cause of the reported problem is found to be the fault of Itron. c. Customer Coordinators and Service Requests. Customer will identify no more than 2 supervisory level employees (each a "Customer Coordinator") for each Itron product line, as identified in the Contacts Document, to serve as administrative liaisons to Itron for all matters pertaining to the Maintenance Services for such product line. Customer Coordinators shall report problems with Software or Equipment (each such report, a "Service Request") as soon as practicable for entry into Itron's support tracking system. Before a Customer Coordinator interfaces with Itron, he or she will attend training sessions offered by Itron to ensure that he or she is (a) knowledgeable about the operation of the Products, and (b) qualified to perform problem determination and remedial functions with respect to the Products. Such training sessions will be at Itron's then-current rates. Customer will be solely responsible for all travel and other expenses incurred in connection with such training sessions. If Itron notifies Customer that additional training is necessary, Customer will promptly ensure that all applicable employees and/or Customer Coordinators receive such training. 2. Software Maintenance a. Definitions. "Error" means a failure of the Itron Software to substantially comply with the applicable published Itron specifications. "Fix" means a correction of an Error, including a work-around, in order for the Itron Software to function in accordance with the applicable published Itron specifications. "Improvement" means an update, modification, enhancement, extension, new version (regardless of name or number), new module, or other change to the Itron Software that is developed or otherwise provided by Itron. "Itron Software" means Software identified on Attachment A as "Itron Software." "Software Release" means a collection of Fixes or Improvements made available to Itron customers(either via physical media or download access). b. Fixes. Itron shall make commercially reasonable efforts to provide Fixes for Errors identified in a Service Request in accordance with the Response Time, Effort Level, and Escalation Path guidelines (together, the "Service Levels") outlined below for the applicable Severity Levels identified therein. Itron's obligations with respect to Service Levels are contingent upon Customer (i) devoting the same level of effort to resolving the Error as is required of Itron, (ii) responding to requests made by Itron within the applicable Response Time, and (iii) assigning its most qualified personnel to help Itron address the Error. Severity Level Response Times Effort Level and Escalation Path Severity Level 1. An Error for which there is no work-around that causes the Software to be unavailable. Itron will respond to the Service Request within 4 business hours of receipt and will update Customer at three hour intervals each day for unresolved Service Requests, or as otherwise agreed by the Parties. Customer will respond to an Itron inquiry or request within three hours. Itron will have technical analysts make diligent efforts on a 24x7 basis*, or as otherwise agreed by the Parties. A Service Request shall be escalated to Itron's Call Center Manager if a Fix is not provided within 1 business day of Itron's receipt of a Service Request. *24X7 support for Severity Level 1 Errors is not available for all products listed in the Contacts Document. Severity Level 2. An Error other than a Severity Level 1 Error for which there is no work-around that results in a severe loss of access to the Software or that causes essential features of the Software to not work. Itron will respond to the Service Request within 1 business day and will update Customer at least every other day. Customer will respond to an Itron inquiry or request within 1 business day. Itron will have technical analysts make diligent efforts during normal business hours. Service Requests shall be escalated to Itron's Call Center manager if a Fix is not provided within 3 business days of Itron's receipt of a Service Request. Page 57 of 69 Severity Level Response Times Effort Level and Escalation Path Severity Level 3. An Error other than a Severity Level 1 or Severity Level 2 Error that has a material impact on the functionality of the Software (e.g., a feature is not working as documented but a work- around is available and significant business functions are not materially impaired). Itron will respond to the Service Request within 2 business days. Itron will have technical analysts make diligent efforts during normal business hours. Severity Level 4. An Error other than a Severity Level 1, Severity Level 2 or Severity Level 3 Error. Itron will respond to the Service Request within 3 business days, or as otherwise agreed by the Parties. Itron will have its support analysts devote commercially reasonable efforts during normal business hours. Severity Level 5. A Service Request for an enhancement or new functionality. N/A Itron will pass the Service Request to its internal Product Management for review. If the enhancement or new functionality requires more immediate attention, Itron Consulting Services can be engaged to create a customized proposal at Itron's then-current services rates. c. Improvements. Itron shall provide Improvements, if any, at its then-current price for such Improvements (or at no charge if such Improvements are made available to Itron customers generally at no charge). d. Software Releases. i. Release Numbering Convention. Fixes and/or Improvements are made available to customers through periodic Software Releases. For informational purposes, Itron's current practice (which may be changed at any time in Itron's discretion) is to provide Releases using the numbering convention "XX.YY.ZZ." • The "XX" in Itron's numbering convention refers to a "System Release," which is a new version of the item of Itron Software. A System Release may include Fixes, Improvements or interfaces to new functional modules or platforms not previously supported by Itron. • The "YY" in Itron's numbering convention refers to a "Service Pack Release," which is an update to a System Release. Service Pack Releases may include Fixes or Improvements and are provided to Itron customers generally on a periodic basis. • The "ZZ" in Itron's numbering convention refers to a "Hot Fix Release," which is an unscheduled release provided to one or more customers as a short-term, temporary fix to a Severity Level 1 Error. While not utilized by all Itron Software product lines, Hot Fix Releases are not made available to Itron customers generally but may be included in the next scheduled Service Pack for general release. ii. Support for Releases of Itron Enterprise Edition and Openway Software. This subsection applies only to Itron Enterprise Edition and OpenWay software products. Maintenance Services for Itron Enterprise Edition and OpenWay software products shall be limited to the most recent System Release and the prior System Release (and the most current Service Pack Release associated with such System Release). Customer will test and install Service Pack Releases associated with the System Release in use by Customer within 6 months of such Service Pack Releases being made available to Customer. Customer will upgrade to the latest System Release at least every twenty-four (24) to thirty-six (36) months. At Customer's request, Itron will assist with any such upgrade at its then-current hourly rates. Itron may elect to provide Maintenance Services for an unsupported Release of Itron Software at its then-current rates for customer support. iii. Support for Releases of all Other Itron Software. This subsection applies to all Itron Software other than Itron Enterprise Edition and OpenWay Software products. Maintenance Services for all Itron Software other than Itron Enterprise Edition and OpenWay software products shall be limited to the most recent System Release and the two prior Service Pack Releases. Customer will test and install System Releases and Service Pack Releases within 12 months of such Releases being made available to Customer. At Customer's request, Itron will assist with any such upgrade at its then-current hourly rates. Itron may elect to provide Maintenance Services for an unsupported Release of Itron Software at its then-current rates for customer support. e. Interoperability. Itron makes no representation or warranty regarding the ability of the Itron Software to interoperate with third party hardware or software other than software or hardware identified as compatible with the Itron Software in Itron's published documentation for such Itron Software (the "Documentation"). f. Documentation and Software Library. Itron will make an electronic copy of the Documentation available to Customer at no additional charge via physical media or download access. Itron will maintain a copy of its most recent supported version of the executable Itron Software to be made available to Customer as necessary in the event of corrupted or inoperative Itron Software. g. Restoring Software to Maintenance Services. If Customer declines Maintenance Services after the end of warranty or discontinues Maintenance Services for any Itron Software, and thereafter wishes to resume Maintenance Services for the most recent Release of such Itron Software, Customer shall, prior to receiving such Maintenance Services, notify Itron in writing of its request for Maintenance Services and pay Itron’s then-current re- initiation fee. h. Exclusions. Itron shall have no obligation to Customer to the extent any Itron Software is adversely affected by: (i) use of the Itron Software in combination with other software, equipment or communications networks that are not referenced in the Documentation; (ii) any Page 58 of 69 modification to the software or operating environment that is made other than through the fault of Itron, after the Effective Date; (iii) the use of a version of the Itron Software that is not supported by Itron; (iv) Customer's failure to implement a Fix provided by Itron; (v) the operation or maintenance of the Itron Software other than through the fault of Itron; (vi) viruses introduced through no fault of Itron; (vii) use of the Itron Software other than as permitted by Itron; or (viii) Customer's failure to perform Customer responsibilities in accordance with this Agreement. i. Customer Responsibilities. i. Remote Communications. Customer will obtain, install, operate, and maintain remote communications software and equipment in a manner that will allow for remote access to the Software. Customer will make such remote access available to Itron representatives, as necessary, for remote diagnosis and troubleshooting of the Software. ii. System Configuration and Administration. Customer will ensure that its equipment, operating system, and data communications environment associated with the Software is configured, operated, and maintained in accordance with the Documentation and any applicable third party documentation. These administrative activities shall include but not be limited to: checking audit logs, clearing discovered exceptions, and performing daily, weekly, and monthly operational tasks and system responsibilities. Customer will consult with Itron prior to making changes that may affect the operation of the Software. iii. Network Administration. Customer will monitor and maintain, repair, replace and upgrade its local, and wide area network components (if any)—including network servers, network clients, network hubs, routers, modems, and other software components necessary for efficient and reliable network operations associated with the Software—to ensure continued conformance with the Documentation. In addition, Customer will administer related host names, Internet Protocol addresses, network interfaces, access, security, communications, and equipment and software version control. iv. Database Administration. Customer will administer the agreed upon database(s) associated with the Software, including hardware and software components, in accordance with the Documentation or any applicable third party documentation, which administration shall include, monitoring the database server, backing up electrical power sources, and configuring and administering of database schema, application interfaces, networking operating system, communications, and file transfer software. Customer will maintain database files (e.g., truncate, cleanup, and delete files consistent with industry standard practices)and perform regular data backup and data archiving. v. Data Review. If Itron determines that it is necessary to evaluate Customer data in order to reproduce error conditions not reproducible with Itron’s standard test data sets, Customer will provide Itron with access to such data. Itron will manage such data in a secure manner while in use and delete the data from Itron systems upon completion of the investigation. Itron shall not be liable for any delay or failure to resolve the problem if access to such production data is denied to Itron. 3. Equipment Maintenance a. Preventive and Corrective Maintenance. Upon receipt of an item of Itron Equipment (defined below) for which Customer has subscribed to receive Maintenance Services ("Covered Equipment"), Itron shall (i) perform the preventive Maintenance Services that it determines is reasonably necessary to maintain such Equipment in Operational Condition (defined below), and (ii) diagnose and correct any failure in such Equipment as necessary to meet Operational Condition (excluding minor cosmetic deficiencies such as blemishes, dents or scratches). The term "Itron Equipment" refers to Equipment identified on Attachment A as "Itron Equipment." The term "Operating Condition" means capable of performance in accordance with Itron's published specifications. b. Maintenance Procedures. Customer shall initiate a request for Maintenance Services for an item of Itron Equipment by delivering the item to the applicable Itron address identified on the Itron Equipment Repair Table (the "Repair Table"), which can be obtained by calling (877) 487-6602, at Customer's expense and in accordance with the applicable return material authorization procedure. Upon receipt of an item of Itron Equipment with the required information, Itron shall assess the item to determine whether it is Covered Equipment and whether the maintenance requested is included within the Maintenance Services and not otherwise excluded from coverage as provided herein. If the item of Itron Equipment is Covered Equipment and the maintenance requested is included in the Maintenance Services, Itron shall provide the applicable Maintenance Services and shall make commercially reasonable efforts to return the item of Itron Equipment to Customer at Itron's expense within the applicable turnaround identified on the Repair Table. Itron Equipment that is not Covered Equipment or maintenance or support that is requested but not included in the Maintenance Services shall be addressed as described in Section 3.d hereof. c. Exclusions. The Equipment Maintenance Services described herein do not include repairs related to: i. damage due to external causes, including accident, abuse, misuse, inadequate maintenance, problems with electrical power, acts of God; usage not in accordance with product instructions or in a configuration not approved by Itron; ii. service (including installation or de-installation) not performed or authorized by Itron; iii. use of parts, configurations or repair depots not certified by Itron; iv. Customer's failure to perform Customer responsibilities in accordance with this Agreement, including caring for Products in accordance with user documentation; or v. Products for which Itron has discontinued Maintenance Services pursuant to Section 5 hereof. Page 59 of 69 d. Estimation Fees Itron will provide Customer with a price quote for the estimated cost, including labor, materials and shipping, for any repairs that are requested but not included in the Maintenance Services (whether because the item of equipment is not covered by Maintenance Services or because the nature of the repair is not included in Maintenance Services). If Customer elects to have Itron proceed with the requested maintenance on any such item, Itron shall provide such services at its then-current rates. If Customer elects not to proceed with the requested repair, Itron will return the item of equipment at Customer's expense. Itron may charge Customer its then-current handling, inspection and shipping fees for any such returned equipment. e. Adding/Restoring Equipment to Maintenance Services. Following the Effective Date, additional Itron Equipment purchased by Customer, of a similar type and model already covered by Maintenance Services,shall automatically be deemed to be Covered Equipment following expiration of the warranty for such Equipment. If Customer declines Equipment coverage after the end of warranty or if Customer discontinues Maintenance Services for any Covered Equipment, and thereafter wishes to add such equipment as Covered Equipment, Itron may, prior to such equipment being included as Covered Equipment,(i) inspect such equipment at its then-current rates to determine whether it is in Operating Condition and/or (ii) charge its then-current re-certification fee, in addition to the Equipment’s first term maintenance fee. f. Customer Responsibilities. Itron shall make available, and Customer shall obtain, a copy of Itron's user documentation for items of Covered Equipment and Customer shall perform regular preventive maintenance for each such item in accordance with such documentation. Customer shall also keep accurate records of Equipment serial numbers and locations to assist Itron with the Maintenance Services. g. Loaner Equipment Program. Subject to the requirements below, Itron shall make commercially reasonable efforts to provide Customer with a Mobile Collector or Handheld unit, as applicable, for the Customer to use (each an item of "Loaned Equipment") while a Mobile Collector or Handheld unit, as applicable, that is Covered Equipment is receiving Maintenance Services. Itron shall provide Loaned Equipment if all the following criteria are satisfied: i. Customer has maintained an inventory of spare Mobile Collectors or Handheld units equal to at least 10 percent of the number of Mobile Collectors or Handheld units deployed in Customer's service territory (with at least one Mobile Collector) and such inventory has been depleted; ii. Itron has provided preventive Maintenance Services for each of Customer's Mobile Collectors or Handheld Devices (as applicable) that are Covered Equipment in the 12-month period prior to Customer's request for Loaned Equipment; and iii. Itron is unable to return the Mobile Collector or Handheld Devices, as applicable, receiving Maintenance Services within the applicable turnaround time set forth on Attachment A. iv. Loaned Equipment will remain the property of Itron and shall be returned to Itron promptly upon receipt of the corresponding item of Itron Equipment. For Loaned Equipment that is not returned within 14 days from shipment of the corresponding item of Itron equipment, Itron may charge a late fee equal to 10 percent of the then-current list price for the item of Loaned Equipment for each 30 day period during which the item of Loaned Equipment remains unreturned. Itron shall pay the cost of delivering Loaned Equipment to Customer and Customer shall pay the cost of returning Loaned Equipment to Itron. 4. Compensation and Payment a. Definitions "Annual Adjustment" means Itron’s standard price increase. "Annual Fee" means the annual fee set forth on Attachment A hereto for each category of Products identified thereon plus the Annual Adjustment, if any. The Annual Fee for Maintenance Services to be provided for any partial Maintenance Year (i.e., for Products with a Maintenance Commencement Date that falls after the beginning of the Maintenance Year) shall be prorated based on the applicable number of months Customer is to receive Maintenance Services during such Maintenance Year. "Maintenance Commencement Date" means the date for commencement of the Maintenance Services for a Product identified on Attachment A hereto. "Maintenance Year" means any period of 1 year during the Term beginning on the Effective Date or any anniversary thereof. b. Compensation and Invoicing. As compensation for the Maintenance Services, Customer shall, in advance, pay to Itron the Annual Fee for each Maintenance Year in which it receives Maintenance Services. Itron shall invoice Customer for Maintenance Services to be provided during the first Maintenance Year as soon as practicable following the Effective Date. For Maintenance Services provided during any subsequent Maintenance Year, including Maintenance Services for newly purchased Products, Itron shall provide Customer with a renewal notice at least 100 days prior to the commencement of each Maintenance Year. Customer may discontinue Maintenance Services for a Product by providing Itron with written notice of non-renewal for such Product no less than 90 days prior to the commencement of any subsequent Maintenance Year. Approximately 20 days prior to the commencement of any subsequent Maintenance Year, Itron shall provide Customer with an invoice for the Annual Fee payable by Customer for the forthcoming Maintenance Year. Itron may, in its discretion, invoice Customer for Maintenance Services for a Product that is added during the course of any Maintenance Year as soon as such Product has been added or at the beginning of the next Maintenance Year. c. Payment. Invoices will be due and payable 30 days following the date of invoice. For invoices not paid within 30 days of the invoice date, in addition to other remedies to which Itron may be entitled, Itron may charge Customer a late fee of 1 percent per month applied against undisputed overdue amounts. Customer shall also be responsible for collection costs associated with late payment, if any, including reasonable attorneys' fees. Fees paid pursuant to this Maintenance Agreement, including the Annual Fee, do not include taxes. Customer will be responsible for and pay all applicable sales, use, excise, value-added and other taxes associated with the provision of Page 60 of 69 the Maintenance Services, excluding taxes on Itron's income generally. If Customer is a tax exempt entity, or pays taxes directly to the state, Customer will provide Itron with a copy of its Tax Exemption Certificate or Direct Pay Permit, as applicable, upon execution of this Agreement. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Customer shall pay all amounts due under this Agreement in lawful money of the United States, unless otherwise provided in Attachment A. 5. Term and Termination a. Term. The term of this Maintenance Agreement ("Term") shall commence upon the Effective Date and shall continue unless and until terminated in accordance with this Section. b. Termination. Either party may terminate this Maintenance Agreement effective as of the end of any Maintenance Year by giving the other Party written notice of termination at least 90 days prior to the end of such Maintenance Year. If either Party commits a material breach of or default under this Maintenance Agreement or any agreement between the Parties related to this Maintenance Agreement, then the other Party may give such Party written notice of the breach or default (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Maintenance Agreement that are in breach or default and the action required to cure the breach or default) and, at the notifying Party's election, this Maintenance Agreement shall terminate pursuant to this Section if the breach or default is not cured within 30 days after receipt of notice (or such later date as may be specified in the notice). c. Effect of Termination. Itron shall not be obligated to provide any Maintenance Services after the end of the Term. If either Party terminates the Maintenance Agreement for a reason other than a termination for breach or default or if Itron terminates Maintenance Services for one or more Products, Customer shall be entitled to a prorated refund of the Annual Fee. d. End of Support. Itron may discontinue Maintenance Services for any Equipment or Software, effective as of the end of the current Maintenance Year, by giving Customer written notice of such discontinuance no less than 90 days prior to the end of such Maintenance Year. At Customer's request, Itron may elect to provide custom support for products for which Maintenance Services have been discontinued at Itron’s then- current rates. e. Survival Any Section of this Maintenance Agreement, which by its nature is intended to survive termination or expiration, shall survive the termination or expiration of this Maintenance Agreement. 6. Miscellaneous a. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS MAINTENANCE AGREEMENT, ITRON DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE PRACTICE. b. No Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL ITRON BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR COVER OR FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL (INCLUDING LOSS OR CORRUPTION OF DATA OR LOSS OF REVENUE, SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES, EVEN IF ITRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. c. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF ITRON AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES, ARISING IN ANY WAY IN CONNECTION WITH THIS MAINTENANCE AGREEMENT—WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE—SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS MAINTENANCE AGREEMENT DURING THE MAINTENANCE YEAR IN WHICH THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE. ITRON SHALL NOT BE LIABLE FOR ANY CLAIM MADE THE SUBJECT OF A LEGAL PROCEEDING MORE THAN 2 YEARS AFTER THE CAUSE OF ACTION ASSERTED IN SUCH CLAIM AROSE. d. Excused Performance. Itron shall not be liable for, or be considered to be in breach of or default under, this Maintenance Agreement on account of any delay or failure to perform as required by this Maintenance Agreement as a result of any cause or condition beyond Itron's reasonable control. e. Notices. Any notice required or permitted under this Maintenance Agreement or required by law must be in writing and must be delivered in person, by facsimile, by certified mail (return receipt requested), or by a nationally recognized overnight service with all freight charges prepaid, to the address set forth on the signature page hereto. Notices will be deemed to have been given at the time of actual delivery, if in person, or upon receipt (as evidenced by facsimile confirmation, return receipt or overnight delivery verification). Either Party may change its address for notices by written notice to the other Party in accordance with this Section. Notwithstanding the foregoing, notice of renewal or non-renewal of Maintenance Services shall be sent to the email or other address set forth on the signature page hereto. Page 61 of 69 f. Assignment. Customer may not assign or transfer its interests, rights or obligations under this Maintenance Agreement by written agreement, merger, consolidation, operation of law or otherwise without the prior written consent of an authorized executive officer of Itron. Any attempt to assign this Maintenance Agreement by Customer shall be null and void. g. Nonwaiver. Any failure by either Party to insist upon or enforce performance by the other Party of any of the provisions of this Maintenance Agreement or to exercise any rights or remedies under this Maintenance Agreement or otherwise by law shall not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather the provision, right or remedy shall be and remain in full force and effect. h. Governing Law. This Maintenance Agreement and performance hereunder will be governed by and construed in accordance with the laws of the State of Washington without reference to Washington conflicts of law principles or the United Nations Convention on Contracts for the Sale of Goods. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT. i. Confidentiality. With respect to any information supplied in connection with this Maintenance Agreement and designated by either Party as confidential, or which the recipient should reasonably believe to be confidential based on its subject matter or the circumstances, the recipient agrees to protect the confidential information in a reasonable and appropriate manner, and to use and reproduce the confidential information only as necessary to perform its obligations under this Maintenance Agreement and for no other purpose. The obligations in this Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party; (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. The recipient may disclose the confidential information on a need-to-know basis to its contractor's, agents and affiliates who agree to confidentiality and non-use terms that are substantially similar to these terms. j. Intellectual Property. Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to any product, software or deliverable provided in connection with the Maintenance Services are and will remain the exclusive property of Itron. Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product, software or deliverable or Itron's confidential information other than rights granted in this Maintenance Agreement. k. Entire Agreement. This Maintenance Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes any and all prior agreements between Itron and Customer related to the Maintenance Services and other items furnished under this Maintenance Agreement. No amendment, modification or waiver of any of the provisions of this Maintenance Agreement shall be valid unless set forth in a written instrument signed by the Party to be bound thereby. [Signature Page Follows] Page 62 of 69 Agreed to and accepted by: Customer Signature: Print name: Title: Date: Billing Contact Information Name: Address: Phone: Email: Renewal Notice Contact Information Name: Address: Phone: Email: Purchase Order Number: Itron, Inc. Signature: Print name: Title: Date: Address: Itron, Inc. Attention: General Counsel 2111 North Molter Road Liberty Lake, WA 99019 Page 63 of 69 Attachment A Products Product Quantity Annual Maintenance Fee (Per Item) Annual Maintenance Fee (Total) Maintenance Commencement Date* Itron Products * [The Maintenance Commencement Date for Itron Software is the first day of the month following shipment or electronic delivery by Itron, except the Maintenance Commencement Date for MV-RS Software is the warranty expiration date. The Maintenance Commencement Date for Itron Equipment is the warranty expiration date.] Page 64 of 69 Electric/Water/Gas Information collection, analysis and application 2111 N. Molter Rd. Liberty Lake, WA 99019 fax: 866-787-6910 www.itron.com Item Category Description Qty Unit Price Extended Price Notes ERT's, Network Infrastructure and Hardware 1 ERT 100W ERT, Encoder with Integral Connector and Antenna Connector, and Remote Mount Antenna Kit $162.00 100W ERT Discount ($82.00) 10,000 $80.00 $800,000.00 2 ERT Accessories Itron Splice Kit (1 required per splice)TBD $4.00 TBD 3 Network TCU 100, External GPS/WAN Antenna, AC powered, Cellular WAN with remote mount ERT antenna and hardware 2 $13,500.00 $27,000.00 (2) 4 Network Repeater 100, Internal GPS/WAN Antenna, AC powered with direct mount ERT antenna and hardware 3 $3,410.00 $10,230.00 (2) 5 Network ** SPARE ** TCU 100, External GPS/WAN Antenna, AC powered, Cellular WAN with remote mount ERT antenna and hardware (installation services not included for spare) 1 $13,500.00 $13,500.00 6 Network ** SPARE ** Repeater 100, Internal GPS/WAN Antenna, AC powered with direct mount ERT antenna and hardware (installation services not included for spare) 1 $3,410.00 $3,410.00 7 Hardware FC300, SRead Radio, Imager, GPS, Bluetooth 7 $4,990.00 $34,930.00 (3) 8 Hardware FC300 single dock, includes power supply and power cable 2 $423.00 $846.00 (3) 9 Hardware FC300 5-bay multi-dock, includes power supply and power cable 1 $1,698.00 $1,698.00 (3) 10 Hardware FC300 Charge/Comm. Interface Cable, USB client for ActiveSync with power connector 1 $42.00 $42.00 (3) $891,656.00 Software 11 Software Network Software Up to 10,000 ERT's $5,000.00 12 Software MVRS Software License - 7,501-10,000 ERT's Serviced $4,000.00 (4) Software Total $9,000.00 Professional Services 13 Professional Services Project management, implementation, engineering services, and training 1 $108,370.00 $108,370.00 (5) 14 Professional Services Software implementation and training 1 $39,200.00 $39,200.00 (5) 15 Professional Services Interface Development 1 $30,000.00 $30,000.00 (5) 16 Professional Services Collector Installation-Water Tank 2 $12,500.00 $25,000.00 (5) 17 Professional Services Collector Installation-Pole Mount 1 $8,125.00 $8,125.00 (5) 18 Professional Services Repeater Installation 2 $950.00 $1,900.00 (5) 19 Professional Services MVRS Software Implementation Services 1 $11,242.50 $11,242.50 (6) Professional Services Discount ($32,000.00) Estimated Travel and Expenses $26,630.00 (5) Professional Services Total $218,467.50 Estimated Freight $2,742.04 (8) Fixed Network 100 System Total $1,121,865.54 University Park, TX Pricing Summary for January 18, 2013 ERT's, Network Infrastructure and Hardware Total BMR# 3075-13 Ver1 Jan Page 65 of 69 Electric/Water/Gas Information collection, analysis and application 2111 N. Molter Rd. Liberty Lake, WA 99019 fax: 866-787-6910 www.itron.com University Park, TX Pricing Summary for January 18, 2013 BMR# 3075-13 Ver1 Jan Item Category Description Qty Unit Price Extended Price Notes Optional Hardware and Software 20 ERT 100W ERT, Encoder with Integral Connector and Antenna Connectors for Leak Sensor and Antenna, and Remote Mount Antenna Kit $177.00 100W ERT Discount ($92.00) TBD $85.00 TBD 21 Leak Sensor Leak Sensor $85.00 Leak Sensor Discount ($25.00) TBD $60.00 TBD 22 Software Year 1 - mlogonline Hosted service Annual Hosted services fee (4000-4999 devices) TBD $0.00 TBD 23 Software Year 2 - mlogonline Hosted service Annual Hosted services fee (4000-4999 devices) TBD $3,500.00 TBD Optional - Web Presentment 24 Digi Mobile Web Presentment for up to 5,000 devices 1 $10,000.00 $10,000.00 (7) Notes and Assumptions (1) (2) (3) (4) (5) (6) (7) (8) University Park can use MVRS software with Itron handheld reading devices to collect meter data to create billing and reports within MVRS. Network configuration is based on location data provided by the utility. Changes to this data may affect collector and repeater quantities. Please see attached Site Listing for more information. FC300 Handheld unit and single desk dock require a power supply and AC power cord. The same power supply can be used for both. Itron recommends at least one USB cable be purchased if only ordering a FC300 Multi-dock for IT staff to support data recovery or troubleshooting issues that may occur over the life of the system. 1 splice kit will be required when retrofitting an existing installed encoded meter register. Professional Services price is based on a 6 month project duration and assumptions that may require confirmation with the Utility. In order to create a formal Scope of Work and confirm the Professional Services quoted, a more detailed discussion of project requirements will be conducted with the Utility. Travel and expenses have been estimated and will be billed at actual. Estimated expenses are included. Itron estimates 50 per diems at $275 and 15 airfares at $750. MVRS Software Implementation Services includes set up and configuration of PC, PC Operator training and review, FC300 MVRS training and review. Optional Web Presentment Base license is invoiced at a minimum of 5,000 meters at a license fee of $10,000.00. For 5,001- 10,000 meters, each additional meter will be invoiced at $1.60 each. The initial license fee shall cover Maintenance for the application for the first year. In each year thereafter, an annual maintenance fee shall be paid based on the number of meters being reported on. Taxes, duties, and tariffs are not included. Freight has been estimated and will be billed at actual. Prices are in US dollars. Prices are valid for 90 days. Page 66 of 69 Electric / Gas / Water Maintenance and Other Annual Fees Information collection, analysis and application 2111 N. Molter Rd. Liberty Lake, WA 99019 fax: 866-787-6910 www.itron.com Item Category Description Qty Unit Price Extended Price Notes Annual Maintenance 1 Annual Maintenance TCU 100, External GPS/WAN Antenna, AC powered, Cellular WAN with remote mount ERT antenna and hardware 2 $120.00 $240.00 2 Annual Maintenance Tower Box, AC powered 2 $102.00 $204.00 3 Annual Maintenance Repeater 100, Internal GPS/WAN Antenna, AC powered with direct mount ERT antenna and hardware 3 $72.00 $216.00 4 Annual Maintenance ** SPARE ** TCU 100, External GPS/WAN Antenna, AC powered, Cellular WAN with remote mount ERT antenna and hardware (installation services not included for spare) 1 $120.00 $120.00 5 Annual Maintenance ** SPARE ** Tower Box, AC powered 1 $102.00 $102.00 6 Annual Maintenance ** SPARE ** Repeater 100, Internal GPS/WAN Antenna, AC powered with direct mount ERT antenna and hardware (installation services not included for spare) 1 $72.00 $72.00 7 Annual Maintenance Network Software Up to 10,000 ERT's 1 $1,200.00 $1,200.00 8 Support MVRS First Year Customer Support 1 $810.00 $810.00 (2) 9 Annual Maintenance MVRS Software License - 7,501-10,000 ERT's Serviced 1 $1,644.00 $1,644.00 (2) 10 Annual Maintenance FC300, SRead Radio, Imager, GPS, Bluetooth 7 $462.00 $3,234.00 11 Annual Maintenance FC300 single dock, includes power supply and power cable 2 $37.80 $75.60 12 Annual Maintenance FC300 5-bay multi-dock, includes power supply and power cable 1 $192.00 $192.00 Annual Maintenance Total $8,109.60 Notes and Assumptions (1) (2) University Park, TX BMR# 3075-13 Ver1 Jan January 18, 2013 100W Full warranty is consistent with the warranty terms in the Agreement for the first 10 years from date of shipment. For warranty claims in years 11 through 15, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 50 percent of its then- current list price for the replacement product. For warranty claims in years 16 through 20, Itron's sole obligation will be to provide Customer with a discount on replacement product equal to 25 percent of its then- current list price for the replacement product. MVRS Software Warranty is one year from date of shipment. First Year Customer Support fee covers technical support needs during the first year. Software Maintenance fees commence upon end of warranty, covering both software and technical support. Page 67 of 69 Electric / Gas / Water Network Infrastructure Site Listing Information collection, analysis and application 2111 N. Molter Rd. Liberty Lake, WA 99019 fax: 866-787-6910 www.itron.com Site ID Device Type Location Site Antenna Height (ft) Site 1 Tower Collector NW Water Tower Tower 155 Site 2 Tower Collector Fondren Water Tower Tower 155 Site 3 Repeater City Hall Building 50 Site 4 Repeater TBD 3rd Party - Utility Pole 25 Site 5 Repeater TBD 3th Party - Utility Pole 25 Itron's network design is optimized by using these identified sites. If these sites or antenna heights change, the design may be impacted. University Park, TX BMR# 3075-13 Ver1 Jan January 18, 2013 The propagation analysis results indicate a total of 2 CCU 100's and 3 Repeater 100's will be required. The CCU 100 sites are listed below with assumed heights based on the most current information available from the utility. 2 of the CCU 100's will utilize Itron's tower mount collector (TCU). Repeater 100's are assumed to be mounted on utility poles at least 25 feet above ground level. Of these sites, 3 are Utility owend and 2 are third-party existing sites. Page 68 of 69 Electric / Gas / Water Information collection, analysis and application 2111 N. Molter Rd. Liberty Lake, WA 99019 fax: 866-787-6910 www.itron.com Item Part Number Description Qty Unit Price Extended Price Notes Software 1 FDM A Field Deployment Manager Up To 10,000 ERT's 1 $5,000.00 $5,000.00 (1) Professional Services 2 Services FDM Implementation Services $63,970.00 (2-4) Estimated Travel and Expenses $5,750.00 (2) Software and Professional Services Total $74,720.00 Annual Maintenance 3 Maintenance Field Deployment Manager Up To 10,000 ERT's 1 $1,000.00 $1,000.00 (5) Annual Maintenance Total $1,000.00 Notes and Assumptions (1) (2) (3) (4) (5) (6) Pricing Summary for City of University Park, TX Freight and taxes are not included. Prices are in US dollars. Prices are valid for 90 days. Implementation pricing includes a single primary workflow that supports the Installation business process, the Maintenance business process, or the Meter Shop business process. Audit and Service business processes are also supported as a sub workflow associated with the primary workflow. Additional hours will be required for modification to the standard workflow or if additional workflows are identified during the detailed requirements analysis. Implementation pricing assumes University Park will perform data mapping and transformation of the host file(s) to the Itron file specification. Utility is required to provide as a minimum SQL Server 2008 SP2 and Windows Server 2008 R2 64bit - Standard or Enterprise. Any additional Server specifications will be identified during the requirements session. Utility is also required to supply a valid SSL Certificate for use on the FDM Application Server. This can be purchased from a trusted certificate authority or self-generated by the Utility’s IT Department. Professional services pricing is an estimate and is based on assumptions that have not been confirmed. In order to create a formal Scope of Work and an accurate professional services bid, a more detailed discussion of actual project requirements will be necessary. Travel and expenses have been estimated and will be billed at actual. Estimated expenses are included. Itron estimates 15 per diems at $250 and 4 airfares at $500. Software Maintenance start date is date specified in the Software License and Maintenance Agreement or the Software Maintenance Agreement. BMR# 3028-13 Ver1Jan January 10, 2012 Page 69 of 69